Restoring the Republic – Part III

In Part 1 of this series, I covered the Constitutional Changes that aided the downfall and how to fix them.  In Part 2 I covered restoring the balance of power between the citizens and the government. This post will address reining in the national government by restoring the meaning of a few key constitutional phrases. In the final part, I’ll tie it all together with some additional thoughts.

The overarching power of the national government in the US is a direct product of an impossibly broad reading of one phrase in the Constitution, the refusal of the courts to recognize the 9th and 10th Amendments and the courts turning a blind eye to the national government achieving by taxation or spending what it is prohibited from doing by law. Fix these three things, and even the 16th Amendment is not so dangerous (though if the money is available some politician somewhere will try to scheme to use it and disregard the Constitution in the process).

The first and most important of these is restoring the proper meaning of the “Interstate Commerce Clause”. It’s a simple phrase with a clear meaning, but the progressives, in order to force their unconstitutional programs on the country, warped it to mean something it clearly did not when it was passed and then use it to circumvent all of the checks and balances in the Constitution.  The US Constitution, in Article 1, Section 8 says, in part:

The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

 In the most plain reading of the text, Congress is empowered to regulate trade BETWEEN states, just as it is between the US and foreign powers (and Indians tribes as well). In no way could ‘regulate trade with foreign nations’ be read to allow Congress to regulate trade WITHIN those nations, even if the ultimate destination of the good or service was the US. Until the good or service crosses the US border, the Congress has no power to regulate or control it. The Congress can’t regulate the sale of Italian Wine to German consumers. Even more so, it is absolutely certain that the Congress can not regulate trade between a Italian baker and  Italian consumer. Such a notion would be absurd. And it’s equally absurd to think Congress could then regulate trade between an Illinois wheat grower and an Illinois baker or an Illinois baker and an Illinois consumer. Yet, this is exactly what the national government claims it may do, and what the courts permit it to do.

Ever since Wickard v. Filburn, covered here in detail and referenced by yours truly many times, Congress has interfered with any and all activity, even activity that occurs completely within a state’s boundaries. The Framers in no way intended for this result, expecting the citizens of each state, through their legislatures, to regulate any economic activity as they saw fit, so long as it was consistent with the state and national constitutions. The notion that the national government could reach into a state and control the daily lives of the people was so frightening to all, Federalists and Anti-Federalists alike, that provisions were written into the Constitution to ensure that this did not happen. As we’ll cover below, some felt the limitations were not sufficient and so the Bill of Rights, containing a clear statement of the principle of state power, was added almost immediately after the Constitution was ratified (and in fact, ratification in some states was contingent on this).

As the federal government sees it, and the courts have permitted, any activity that might in any way affect interstate commerce is now the purview of the federal government. In the case of Wickard, it was growing corn for his own use. This offended the centralized control supporters who realized that if they couldn’t prevent private economic activity they would never be able to impose the kinds of controls they wished. Unfortunately, they got their way. Federal regulations now touch every part of your life and there is no escaping them. The centralized command and control structures continue to grow every year as “new” and “better” ways of regulating and controlling your life are implemented.

A small impediment was thrown in the way of the national government when the “Individual Mandate” of the Affordable Care Act was found to be unconstitutional as a regulatory requirement. That impediment was immediately removed by finding that Congress power to tax allowed it to create tax consequences for failing to buy insurance. While the Court did state that this was only permitted since the taxes were not high enough to be coercive, the public is at the mercy of a future Supreme Court deciding what the ‘coercive’ limit it. I suspect we’ll never hit that limit, since the Court will defer to Congress’ taxing power. In the end, this wasn’t even a speed-bump on the way to and end-run around the Constitution.

The thing is, even THIS wasn’t enough for those who wanted to see centralized planning and control. There were still things that were prohibited to them by the courts. The landmark case that both reinforced this and opened the floodgates to a torrent of federal rules and regulations that are not part of the constitutionally delegated powers of the national government was South Dakota v. Dole. This case upheld the national government’s right to control state policy by withholding already allocated funds. In other words, a bait and switch exercise if there ever was one. The states signed up for the interstate highway program (something that is arguably constitutional under the delegated federal power to create ‘post roads’). Later on, after the states were committed to the program (with the federal government sending fuel tax money back to the states), new rules were unilaterally imposed on the states by Washington, and continued receipt of highway funds to maintain the FEDERAL highways was made contingent on accepting these unrelated conditions. The 7-2 ruling put an end to any limits on federal power. From this point on,  the federal government used the purse strings of existing funding to implement new rules.

Although it created other problems, the rulings on the Affordable Care Act in National Federation of Independent Business v. Sabelius finally put some limits on this power, though not enough to roll-back any of the previous egregious power grabs. In this case, three Justices of the Supreme Court said that the Congress had overreached and that they could not reduce current funding for Medicaid for states that refused to implement Medicaid expansion. These three, together with the two that would have upheld the whole Act, and the four that found the entire Act unconstitutional, created a majority that allowed the Medicare expansion but denied the power to cut current funding. Given the fractured nature of the ruling, nobody can predict what might happen with future funding-cut threats. My guess is that they will be permitted, so long as the national government can convince the courts that the funds withheld are insufficient to be coercive (see SD v. Dole).

So, now, if it involves interstate commerce, federally funded projects or taxes, there are no limits on what the Congress and the President can do. The Courts have ignored the expressly stated limited powers delegated to the national government, so long as the government takes care to follow the rules laid out by the court. If a law would be unconstitutional, you simply either make it a condition for a state to follow to continue to receive funding, make it a tax or declare it to be related to interstate commerce. The courts then proceed to ignore every other limitation in the Constitution.

I mentioned before that the Framers, in an attempt to calm the fears of the Anti-Federalists, added the Bill of Rights that contained, along with eight others, the following:

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Courts have routinely ignored these amendments and generally reject arguments based on them. They are, in effect, dead letters, quaint notions from a time before the “Living Constitution” foisted on us by the progressives in their never-ending quest to “do something” to improve our lives. The entire federal edifice erected by the progressives is a monument to their failure. It has not stopped war, solved poverty, equalized income, prevented economic dislocation, created jobs, improved education, prevented banking scandals, forestalled stock market crashes  nor any other thing. Remember, this is referring to the centralized power, not to local governments where we find many success stories.

That was the dream of the Framers—strong local and state governments that provided the services they community wanted and needed, according to the desires of the local community and on terms the local voters set. National power was to be severely limited to a small set of duties—protecting the borders, conducting foreign policy (trade, treaties, war), ensuring free trade among the states, running a postal service and a other clearly enumerated tasks.

The solutions are simple. Restore the proper meaning of the “Commerce Clause”, reject any conditions, regulations or policies that would be unconstitutional if passed into law directly (as opposed to using the taxing or spending power) and return the 9th and 10th Amendments to their rightful place. Doing this would put us on the road to restoring the Republic in a generation.

In Part 1 of this series, I covered the Constitutional Changes that aided the downfall and how to fix them. In Part 2 I covered restoring the balance of power between the people and the government.  In Part 4 I’ll tie it all together with some additional thoughts.

Restoring the Republic – Part II

In Part 1 of this series, I discussed restoring the Constitutional Balance between the States and the Federal Government. We now turn to restoring the balance between the people and the government at all levels, not just Federal. There are a couple of things that need to be done to to restore the power of the people and limit the power of the government. The Framers thought they had prevented a centralization of power by listing a clear set of limited, delegated powers for the national government. In an attempt to ensure that this was not misunderstood, the Bill of Rights makes the explicit statement that the ultimate source of government is the people and that they retain all rights and privileges except those delegated to the government explicitly.

The first necessity is electoral—our system of government requires as many competitive electoral districts as possible. With gerrymandering run amok, we have very few that actually are in any way competitive. A simple, straight-forward solution to this problem is to eliminate all forms of gerrymandering, whether by state governments, the Courts, the Department of Justice or any other group. Electoral districts should be drawn roughly rectangular, starting in the North West part of a state and drawn to encompass roughly the same number of voters. Districts like this and this (both from my home state of Illinois) should never be allowed under any circumstances. Fixing this would shake up the House of Representatives as well as State Legislatures. And that would be a good thing. All of a sudden, many, if not most districts would become competitive and that is good for a responsive government.

Having elected representatives that are accountable to the people is not enough. There needs to be a firewall to protect the people from egregious acts by the government. Judges are ill-suited to this, especially life-tenure Federal judges that are accountable to nobody. The true firewall, the very last line of defense for the citizen is the jury. That group of peers, drawn from the community where the crime was committed, is the only thing standing between the power of the state and the person sitting in the dock. Unfortunately, the jury system has been corrupted and co-opted by the state into a tool for prosecutors rather than a check on unfettered government power. Fixing this is actually easy, it simply means educating the populace about the true nature and function of the jury.

The nature and composition of the jury is critical. It must truly be randomly selected from the community with no way for anyone to interfere, except when a clear, demonstrable bias or clear need for exclusion of a juror is shown. There should be no peremptory challenges permitted by lawyers. These allow both prosecution and defense to exclude from the jury anyone they think might be unfavorable to their case without specifying any reason. This defeats the random selection and creates a jury that does not represent the community, but reflects the biases of the prosecutor and defense attorneys. Challenges for cause against a person serving on a jury must be specific and must be examined only in the light of the defendant obtaining a fair trial and the state receiving a fair hearing of the charges. For example, an exclusion of someone who knows the victim or the defendant (or their families) is perfectly acceptable as it would be impossible to ensure there was no bias involved. It would also be critical to make it very difficult to be excused from jury duty to ensure that self-selection does not create bias.

The true function of the jury is revealed in the steps they should take to determine the outcome of a particular case. First, did the government prove beyond a reasonable doubt that the individual did what they are accused of. Second, did the defendant know, or should they have known, that the act was criminal. Third, should the act, in fact, be a crime. Fourth, does the proposed punishment fit the crime. If the answer to ANY of these is “no” then the jury should acquit. I’m sure that some reader is now screaming “jury nullification” in a not so kind tone. I will refer you, gentle reader, to the case “United States v. Moylan” [417 F.2d 1002 (4th. Cir. 1969)] where the 4th Circuit Court of Appeals unanimously stated:

If the jury feels that the law under which the defendant is accused is unjust, or exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the right to acquit, and the courts must abide that decision.

Sadly, many judges will remove a juror that understands and knows this, as the government is quite intolerant of citizens who understand this right. That has to be fixed before this can be wholly effective. That said, education can help, so long as those who do understand the power of the jury and the right to acquit keep this to themselves in the courtroom and are careful about how they go about addressing the issues in the jury room. If you hang a jury, one of your fellow jurors might rat you out and this is cause for removal from the jury.

I suspect everyone knows, understands and agrees that the government must prove their case beyond a reasonable doubt in order to obtain a conviction. Reasonable doubt means that all things being equal, there exists no evidence nor theory that a reasonable person would accept. It does not mean perfection nor proof beyond any doubt. If the evidence is fairy examined by the jury, and both sides are able to freely present their theories and attempt to discredit the other side, and the prosecution presents convincing evidence, then step one is completed. If not, then an acquittal is to be returned.

Next, we turn to an extremely important concept called mens rea. No law should be enforced against someone who did not know, and had no reasonable way of knowing, that an act was illegal. An example of such is prosecution for packaging lobster taills in plastic rather than a cardboard box. There was no reasonable way for Ms. Huang to know that it was against Honduran law and applied to her because of the Lacey Act. This would not let a murderer or rapist “off the hook” by a claim that they didn’t know it was against the law. It would require the government to prove that any tax evasion or fraud was intentional for criminal charges to be proved.  A mistake should not be punished as a crime. So, when the jury reviews the case, they must make a determination that the defendant knew, or that a reasonable person would know, that the act was illegal. If so, then step two is completed. If not, then an acquittal is to be returned.

We move then to the most controversial of the steps, and one that has caused problems in the past-the notion that the jury may simply reject a conviction if the accusation is for an act that ought not be be illegal. I fully acknowledge that some number of people will go free when they should have been convicted, but the system is supposed to err on the side of acquittal not on the side of conviction. As Blackstone wrote “it is better that 10 guilty persons escape than that one innocent suffer“. In other words, we always err to finding the person “not guilty”. To protect against a single nullfiier (e.g. an anarchist who actually appears for jury duty and serves with the intent of acquitting anyone in the dock), this step would require only 2/3 vote by the jury. If 5 of the jurors rejected the law, then an acquittal is returned, otherwise this step is complete.

Finally, the last step is for the jury to decide if the proposed punishment fits the crime. With politicians enacting ever harsher penalties for misdemeanors and felonies punishments are often extreme compared to the damage done by the crime. To draw an example from the arts, I mean to prevent injustice such as the following:

Javert: Now bring me prisoner 24601. Your time is up snd your parole’s begun.You know what that means.
Valjean: Yes, it means I’m free.
Javert: No! It means you get your yellow ticket-of-leave. You are a thief.
Valjean: I stole a loaf of bread.
Javert: You robbed a house.
Valjean: I broke a window pane. My sister’s child was close to death and we were starving.
Javert: You will starve again unless you learn the meaning of the law.
Valjean: I know the meaning of those 19 years; A slave of the law
Javert: Five years for what you did; The rest because you tried to run

Yes, it’s fiction. But we have laws on the books that have equally inequitable punishment. The aforementioned Virginia law against wearing a mask in public is a Class 6 FELONY! That’s a sentence of 1 to 5 years in prison. For wearing a mask. With no criminal intent. No jury should ever convict anyone of this crime based on step 3 above, but even should they do so, the punishment does not fit the crime. And yes, before you ask, this law is enforced. Again, we’ll use the 2/3 standard. If 5 members of the jury feel the proposed punishment is unjust, and acquittal should be returned. Otherwise, assuming all previous steps were completed, a conviction should be returned. An alternative solution, and one I prefer, is to eliminate mandatory minimum sentences and have the jury return and advisory opinion to the judge as to the sentence.

Reformed juries, with the powers as described, act as a powerful check on the government. Political districts drawn in roughly similarly shaped and populated ways act as a strong check on the political parties and make politicians more accountable (since they are more vulnerable). These two important checks would go a long way to restoring the republic.

In Part 1 of this series, I covered the Constitutional Changes that aided the downfall and how to fix them. In Part 3 I’ll cover limiting the power of the national government (specifically the Interstate Commerce Clause) and in Part 4 I’ll tie it all together with some additional thoughts.

Restoring the Republic – Part I

As my long-term readers might remember, I was working on a series on the Death of the Republic. I’ve let that lapse, though I will likely return to it in the future. It’s hard to write at times about the rotten, stinking corpse of the Republic, seeing how far we have fallen. Even so, I keep wondering if it can be restored.

Firstly, we must address what it means to ‘restore’ the Republic and how a restored Republic would function. What I mean by this is a government that properly reflects the Founders’ vision of self-government where local and state governments are paramount and the national government limits itself to matters of foreign policy, foreign trade, fielding a military, immigration and customs. In other words, the things specifically delegated to the national government by the Constitution.

The Constitution created significant checks and balances, not just in the tripartite national government, but between the national and state government and between the state and the people as well. Foolish progressive experiments have pushed us away from a Republic and destroyed true checks and balances. Abuses by state and national prosecutors, aided and abetted by state and national judges, have destroyed the checks and balances of the jury system. Fixing some of these is simply a matter of will, fixing others requires restoring the Constitutional balances by repealing the failed progressive amendments, namely the 16th and 17th as well as rejecting a significant amount of case law that redefines the meaning of sections of the Constitution to be completely changed from the spirit and intent. This article will address the constitutional changes. Future articles will delve into other areas.

Although not at the top of the news—or the bottom, in most cases—the biggest Federal power grab from the states is through Unfunded Mandates. Unfunded Mandates are policies, procedures and regulations imposed on the states by the national government without funding being provided. Think “No Child Left Behind” and Medicaid. They force states to collect taxes to implement nationally imposed programs, allowing Washington politicians to take credit for programs while not having to fund them. In the system envisioned by the Founders, no such programs would ever have passed the Congress. None.

Why am I so sure of this? Because no Senator would ever have been reappointed by a state legislature if they agreed to an unfunded mandate. Progressives knew this, and knew they needed to destroy the power of states to resist the federal government. They accomplished this goal by passing the 17th Amendment. In one simple act, the power of the states was destroyed. Since the legislature no longer controlled the appointment of senators, senators were free to ignore the best interest of their state, free to ignore the wishes of the state legislature and were now subject to pressure from interests outside the state. Because of this, the US Senate has gone from being a place of serious debate and a protection for the states  to a populist body that seeks to increase federal power. Exactly the opposite of what the Framers intended.

You see, the House of Representatives was meant to be the raucous, wild, uncontrollably populist branch, elected every 2 years, en masse, to blow with popular opinion. The Senate, elected by the legislature in rotating groups of 1/3 every 2 years, was meant to be stable, unaffected by populist whim and provide a firewall against both federal encroachment and populist sentiment. The progressives willingly and intentionally destroyed it to move their agenda forward, caring not a bit for the checks and balances that blocked their attempts to remake the US into a centralized democracy.

Of course, empowering the government by disenfranchising the states was only half the battle. Somehow thees grandiose ideas had to be funded. The other shoe had already dropped—the 16th Amendment had granted the national government the right to tax individual citizens of the states. This provided a way for Washington to directly and powerfully control, direct and manage the lives of individual citizens—a notion that was foreign to the Framers. The Anti-Federalists predicted this development, but lost the argument. Even the Bill of Rights failed to prevent this kind of encroachment.

A further development, also pushed by the progressives, was to force the states to implement ‘democratic’ reforms (despite the Constitution requiring the federal government to guarantee ‘republican’ forms of state government) in the states. With the slogan “One person, one vote” they used the courts to force states to elect state Senators by population, rather than by county. This destroyed the balance of power in states between cities, suburbs, towns, villages and rural areas.  In Illinois, Chicago controls the entire state and despite the “One person, one vote” slogan used to create this situation, effectively disenfranchises anyone outside of the 6 county area (Cook, Du Page, Lake, Kane, Kendall, Will). Illinois is a disaster economically, politically and financially. 4 of the last 9 governors went to federal prison. The state is effectively bankrupt. There are no effective checks on the state government—not even federal prosecutors. California is similarly situated (though minus the imprisoned governors). Taxes are raised, even more money is spent and the states spiral into bankruptcy (though no provision of the US Bankruptcy code allows a state to actually go bankrupt).

Fixing this is fairly simple in theory, very difficult in practice. Repealing the 17th Amendment (and tweaking the original rules slightly) would be difficult at best. The rallying cry of “they want to take your vote away” would be hard to overcome, even though it is likely in the best interest of the majority of voters in each state to give up their vote for Senator. They would regain a measure of control of their lives and have an easier time effecting change since they would only need to replace their state legislature, something they are in complete control of (unlike the US Senate or House where they have little chance of effecting true change). The minor tweaks are that the State House of Representatives has 10 days to elect a new Senator after a vacancy, and up to 10 days before a term expires to elect a successor. If a vacancy is not filled in those periods, the governor appoints a Senator (and no consent is necessary from the legislature) to serve until the State House of Representatives acts. Upon their act, their elected Senator immediately takes office. This ensures timely action by the legislature to protect their prerogative. It ensures that the state will be represented by giving the governor the power to make an interim appointment until the legislature acts if they have not done so within the time-frame specified.

An outright repeal of the 16th Amendment would create an immediate, massive shortfall in federal funds. As such, it is pragmatically, economically and financially impractical. Too much of the current financial system relies on US government instruments, US government spending and too many people rely on transfer payments. Utter chaos would result. Some might argue that this is preferable, equivalent to ripping off a sticking plaster. I don’t agree—that “cure” would very likely result in dictatorship, war, famine and mass death.

Perhaps the best approach is to apply a gross receipts tax on all businesses with exceptions nor deductions and eliminate the personal income tax completely. A tax of 13% would raise in the neighborhood of $4 trillion (about what the US Budget was for 2012), assuming that US Gross Receipts are about $30 trillion (estimated by the US Census Bureau). Since we want to cut the federal government, set the rate at 7%. The government has to cover anything it wants to spend from this tax plus excise taxes and duties. That still leaves the Federal Government with $2 trillion to spend.

This about this-no personal income tax. No social security tax. No Medicare tax. Corporate taxes would be a simple one-page document stating income. The amount of time and money saved would be immense. The IRS would become a tiny shell simply processing monthly receipts and reports from business. I acknowledge that these taxes very probably would be passed on to consumers, but I think the end result would be a major benefit to the economy.

Finally, to prevent a repeat of courts interfering with republican forms of government, an amendment guaranteeing the states the right to draw districts for Senators based on, for example, counties. A statement that no state could be deprived of this right without the consent of its legislature would be needed as well (similar to the statement the no state can be deprived of equal representation in the US Senate without its consent).

These measures, repeal and/or modification of the 16th and 17th Amendments, as well as a return to prior methods of electing State Senators would go a long way to restoring the balance of power between the States and the national government.

In Part 2, I’ll discuss restoring the balance of power between the people and the government. In Part 3, we’ll cover restoring the meaning of the “interstate commerce clause”. Part 4 will tie it all together.

Living In A Surveillance State

I have nothing to hide from people I trust. I do NOT trust the government.

In my previous post on the Surveillance State, I described the measures that are being used by the government to monitor everything we do. Since that article, new information has come to light. It appears that PRISM involves capturing internet traffic and storing it for later analysis. This means that all communication that you send on the internet is potentially in the NSA archives. If your data is encrypted with at least 512bit encryption, it is secure, for now, assuming you control ALL parts of the encryption, and in most cases, you do not.

In non-technical terms, this means that if you use a Secure website (e.g. https://) or have the “SSL” box checked for your email, all of this can be decrypted by the government. How? All they need to do is obtain the encryption certificate from the website owner (e.g. Google) or the means to recreate the certificate from a certificate provider (e.g. VeriSign). If they issue a “National Security Letter” to a provider and demand the keys, your data is now in the clear. There is nothing that can be done to fix this for anything already sent. There are new technologies slowly being rolled-out (e.g. Perfect Forward Secrecy) that will be able to protect your data, but these are not in common use at the time of this writing.

So, can you protect yourself from all this snooping? The short answer is “no”. Given the pervasiveness of government monitoring escaping government surveillance is a practical impossibility. Even going totally off the grid, living off the land and having no fixed abode isn’t enough. Simply doing so will attract attention from the government! It is further made difficult due to the fact that the national government owns significant portions of the land that would be best suited to this kind of life. But it’s not much of a life unless you are enthralled with a subsistence, hunter-gatherer lifestyle. I am not.

So what is one to do? The most that can be done is to reduce your visibility and footprint as much as possible. This means making decisions about how you conduct your life and how you make use of technology. In some cases, there is very little inconvenience involved and no loss of enjoyment in your life. In others, the inconvenience or loss of enjoyment will reach levels where some people will not want to give up their current lifestyle, or won’t be able to afford to. I’ll address some strategies and try to rate their effectiveness (E), cost(C)  and difficulty(D). This is not a comprehensive list, but it will get you started. Ideas will be presented pretty much in order from lowest cost and difficulty to highest cost and difficulty.

Reverse disclaimer: This is something I actually do know about, do have demonstrated expertise and can help you with. Of course, such expertise annoys the government, so practically it’s not much different than if they wanted accuse me of giving diet or financial advice. 🙂

Use only very, very strong passwords and passphrases (E: High, C: Low, D: Low)

Before you do anything else, make sure you know about strong passwords and passphrases and use them. Despite what you hear in the media, there are only two things that matter with regard to strong passwords: a) the alphabet and b) length. You must use the largest alphabet possible, that is, the widest possible range of characters (e.g. upper and lower case, numbers, special characters). Second, it must be at least 10 characters, preferably longer (the longer, the better). Totally random is best. It is imperative that you use a different password for every single site or system you access. Never, ever use the same password or passphrase for multiple systems. Never.

Why does this matter? See Steve Gibson’s excellent page on password haystacks for full details, but the short version is that your goal is to make the number of passwords that have to be tried brute force so large that there is an extremely low probability of guessing your password. For example, an 8-character password that uses upper and lower case, a digit and two symbols would take, on average, 1 day to crack with a brute-force method that could guess 1 billion times a second (and yes, the NSA could do this). Simply making this password 10 characters changes the average time to crack from 1 day to 19 years. 12 characters would 1000 CENTURIES. You’ll be dead before they get your data even if cracking improves by 3 orders of magnitude! 20 characters is probably overkill, since that would take TRILLIONS of centuries to brute force. So, unless a site forces you to use a password less than 12 characters, use that, or more (I use at least 16 unless a site requires less). A site that requires less than 10 character passwords should be contacted and asked to fix this!

When you combine length, randomness and diversity, you have the problem of remembering all of your passwords. What you can NOT do is use a standard phrase and add something about the site you are using. Anything like that simplifies the process if ONE password from one site gets out, and this seems to happen quite often. For example, let’s say you used the string D0g12345678910 and added the domain name (e.g. While your password in theory has 40 centuries worth of protection, if it ever leaked, every site you use (e.g. would be instantly available to the government or a hacker (and if you did the same with your home computer, you are toast).

The solution to this is to use a ‘password safe’ to store your passwords. Create a memorable, but long passphrase for your password safe, and use it to generate long, random passwords for any internet site you use. I use 1Password but there are many other choices, including LastPass. Both come highly recommended and are completely self-contained (that is, they use TNO). Both of these have plugins for your browser that will allow you to auto-fill userids and passwords with a keystroke and entering your passphrase for the safe. An example of a long, memorable password (do NOT use this one) is: OneSmall$tepForAMan1. That’s trillions of centuries of protection. That should be enough. 🙂 Do NOT use your login password for your safe and do NOT allow your password safe to open automatically or stay open.

Shred ALL paper that you are disposing of (E: High, C: Low, D: Low)

Probably the single most effective thing you can do. Remember, once you put your recycling out by the curb you lose control of it. There is no privacy right nor protection from search for anything that is intentionally abandoned (including email stored on a remote server, like Google, if it’s more than 6 months old). Get yourself a good cross-cut shredder. Mine cost about $200 and turns a standard 8.5×11 sheet of paper into about 3000 diamond-shaped particles. No group of Iranian women is going to put THAT back together! It also shreds CDs, DVDs and credit cards. Nothing that has your name, address, account numbers, etc, should ever leave your house intact. While there is a bit of an up-front cost, it’s not high given the life expectancy of a good shredder and the effectiveness of shredding anything before the government (or identity thieves) can get their grubby hands on it.

Hand deliver your recycling to a drop-off point (E: High, C: Low, D: Low)

If your community has recycling drop-off, use it rather than curb-side pick-up. If you drop it off, it becomes very difficult to trace to you, especially if you’ve shredded anything that can identify you. You’d be amazed what could be learned from your trash and recycling! In our area we have a drop-off that takes everything that the curb-side pick-up does and also takes shredded paper. If your community doesn’t take shredded paper, find one that does or dispose of it as trash. Be sure to destroy anything that could identify you (shipping labels, prescription bottle labels, etc) before you drop it off.

Note: Handle electronic recycling (or re-sale or donation) VERY carefully. Any storage media must be wiped before you dispose of the device. A good method is to wipe the drive (most systems have a way to do this) and then re-install the basic OS. This makes it nearly impossible for anyone, even the NSA, to discover what was on the device.

Compost anything that can be composted (E: High, C: Low, D: Low)

This is for the truly paranoid and the gardeners. Any table scraps, cuttings, spoiled food, etc, goes into a compost barrel (a 35-50 gallon rubber trash can works well for this). Use the compost in your garden. Snoopers can’t look in your trash and see what you eat, etc. Implementing this, along with the two previous items, should leave you with almost nothing for the garbage man. The money you save in trash fees (we get charged by volume) should cover the costs of the shredder and trips to the recycling center.

Use cash for as many local transactions as possible (E: Med, C: Low, D: Low)

Cash transactions are, at least for the time being, very difficult for the government to track. So long as you do not identify yourself to the merchant in any way (see below on loyalty cards), it is very, very difficult to track your purchases. Sure, it might be possible for facial recognition software to match you to your purchases, but that kind of data collection isn’t even on the radar (except perhaps in casinos). This won’t cost you more than a trip to the ATM to withdraw money once a week or so. Stores mostly don’t want checks and they don’t pay a fee when you give them cash. You get the added benefit of cutting down the amount of money the banks take in and increasing the store profit.

Drop your cable/satellite subscription (E: Low, C: Low, D: Low)

This is one that will save you a lot of money, but may not be very effective. Sure, the government could get a list of the shows you watch, but nothing that the cable companies provide for viewers is likely to be illegal. There is a small potential that watching “Doomsday Preppers” could be used to show that you are a survivalist, but a good chunk of the jury likely watches it as well!  That said, if you only watch over-the-air broadcasts and DVD’s it’s pretty much impossible for the government to know what you are watching short of a warrant to search your house for DVDs. Note that watching via Netflix or other streaming service, or from a website or via iTunes purchases can be tracked, so again, the effectiveness of this step against the government is limited.

Encrypt all of your data at home with a strong passphrase (E: High, C: Low, D: Med)

I listed this as medium difficulty because on Windows it’s a bit more complicated than it is on a Mac, and you likely will need some help if you are not tech savvy. Before  you begin, you must change your login password to something difficult to guess then encrypt your system. If you have a Mac is trivial to do (enable Filevault with one click, provide a strong passphrase and you are done. Then encrypt your Time Machine disk, if you have one). On Windows, you will likely need something like TrueCrypt. Remember to never walk away with your computer unlocked/logged-in.

This is a VERY, VERY important thing to do. It will slow your computer a bit, but not significantly (and if you have an SSD instead of spinning disk you likely won’t notice at all). Doing this ensures that your computer is safe from government eyes. It’s important that you never, ever, ever give anyone your passphrase. The government can’t force you to give it to them (based on your 5th Amendment right against self incrimination), but they could force your wife, best friend, kid and, under the right circumstances, possibly your lawyer, to turn it over. If you put it in a safe, a safety deposit box or at a friends or relative’s house, a search warrant will get it.

It’s imperative to also ensure that you ALWAYS use ‘Secure Delete’ if you have a physical disk in your computer. Even if your disk is not encrypted, this will ensure the data can’t be recovered. Note that if you have an SSD, it is simply not possible to ‘Secure Delete’ due to the technology and you shouldn’t even use it since all it does is shorten the life of your SSD! Whole-disk encryption is the only way to go. And you absolutely must keep your passphrase secret.

NOTE: Phones and tablets encryption is highly variable and it’s always possible that the vendor (e.g. Apple, Samsung, Google, etc) could decrypt it. For Apple devices, once you set a lock code the device is encrypted. It’s easy to brute force this encryption if  you only use 4 digits. If you enable complex passwords, you increase your security, but still are vulnerable to vendor-assisted decryption.

Keep no paper records (E: High, C: Low, D: Low)

Once you encrypt your disk (that’s why this one follows encryption despite being much easier) scan any documents you need to keep and destroy the originals. In the very, very rare case of a document you absolutely must keep, give it to your attorney for safe-keeping. Scan everything else, put it on your encrypted drive, ensure you have a secure, offsite, working backup and then shred the original. No paper makes it infinitely harder for the government to get that information—your passphrase is only in your head.

Use web services such as backup or file-sharing only if they are TNO (E: High, C: Low, D: Med)

Let me say right up front that DropBox is NOT secure. They can decrypt your data. Period. Don’t believe me? Listen to Steve Gibson’s podcast on cloud storage. As of this writing, July 26, 2013 neither are Google Drive nor SkyDrive. They do not encrypt data with a TNO (Trust No One) model. The data is secure in transit, but they control the encryption and your data is just a National Security Letter away from the government’s hands. I use ‘SpiderOak‘ (recommended by Steve Gibson) for my secure storage. They do NOT have my encryption keys and all they could turn over to the government is the encrypted data. With no keys, only brute-force methods could potentially extract the data, and with current computing powers, the universe will end before they crack the passphrase (it’s long and completely random).

Backup software should work the same way—it has to encrypt the data with a passphrase only you know before one bit leaves your computer. I use ‘Arq‘ on the Mac and store the backups on Amazon’s S3 storage. Note that S3 is NOT secure by itself, you must encrypt the data BEFORE you send it to Amazon’s cloud.

[Note: This is the point at which I am currently operating. The rest of this is too much for me, at least at this point, though I do some part of some of the below.]

Only buy firearms or other self-defense items in person and with no registration (E: High, C: Low, D: Med)

If you want to have tools for self-defense, you need to buy them in-person and from someone who can sell to you without telling the government about it. In other words, private sales at a gun show. If you buy from a licensed dealer, you will need a background check and forms filled out. While the forms aren’t sent it, the government can get them as needed. They will know what you have , when you bought it, etc.

Why is this the first item in the “I don’t do this” list? It is because Illinois requires a FOID (Firearms Owner ID) card to have any firearm in your possession, even in your own home. I am also required, because of my job, to keep current a list of all firearms I own with local law enforcement (the price you pay for clearance to enter the secure areas of the police station). In other words, at this point in my life, I can’t do this. Of course, moving out of IL would solve this, so long as I moved to a state with no ID card or registration requirement, and didn’t have a job that required me to disclose or report on firearms.

Use a VPN or TOR for web surfing (E: Med, C: Low, D: Med)

It is possible to obfuscate much of what you do on the internet. This could be highly effective, though the government will know that you are using such a service and which one, and there is a  possibility that they could gather information from such a connection. If you use any site that they are monitoring (e.g. get the logs for or capture with PRISM) they will know you used it and STILL be able to do traffic analysis if you login. That said, this does make it somewhat harder on them.

Using a VPN (Virtual Private Network) encrypts all of your traffic from your computer and sends it to another computer on the internet. That computer then sends your traffic, intermixed with every other users’ traffic to the ultimate destination. Data comes back to you in the reverse fashion. One highly recommended service is ProXPN. TOR works in a similar way, but has random components to it that make government tracking more difficult. Just download the TOR Browser and use it to surf. Both solutions will take a bit of tech savvy to implement and you may find that some services do not work as you would expect (e.g. gaming). Even if this can’t keep the government 100% out of your internet use, it’s highly effective in keeping your ISP from snooping or monitoring (no more ‘six strikes’).

Update 2013-08-08: The US government has taken down a significant portion of the TOR network and it may be compromised. There is no real way to know for sure, so I strongly suggest not using it. Reports say that government-created malware was inserted into TOR, though this cannot be confirmed. In the end, I think TOR is fatally compromised, at least in its current invocation.

Ditch your I-Pass (electronic tolling), Chicago Card (bus pass) and other e-payment devices (E: Low, C: Med, D: Low)

Every time you use some form of RFID/WiFi/NFC payment system, you are tracked. That means every time your car goes through the “tollbooth” every time you swipe your card to get on the bus records are kept. You are tracked. Period. By not using these devices you deprive the government of that data. Unfortunately, this is very ineffective, at least for tolls. License plate scanners read every single plate that goes past the tollbooth. That data is stored. You are tracked. The only real solution is to give up your car, which is way too much for me.

Stop using store loyalty cards (E: Med, C: Low, D: Low)

This will immediately deprive both the merchant and the government of a direct tie to you if you pay cash (if you are using credit cards, this step will do nothing to help you-it only works in combination with paying cash). This is an easy to do thing that is very effective. It will likely cost you some money or time, depending on whether you have to shop multiple places to get the best prices or you bite the bullet and pay more by not taking advantage of the loyalty card discounts. From my perspective, this cost/time trade-off is very low for the success achieved.

Shop only in-person, never on-line (E: Med, C: Med, D: Low)

Easy to do, but you’ll give up the convenience of Amazon Prime shipments showing up 2 days after ordering at your house, the lower prices that usually can be found on-line and the far greater-selection available. If you want to ensure that no records of what you buy fall into the wrong hands, this is a necessary step.

Eliminate use of Credit Cards, Debit Cards and ATM Cards (E: High, C: Med, D: Med)

Here you start to give up significant options in your life. COD has gone the way of the dodo. That means ordering on-line requires either a credit/debit card or a bank account. All of these are tracked. Your only option is to use gift cards, and these only work for some merchants (e.g. Apple for iTunes, Amazon.Com, Target, etc). That said, they still have to ship things to you and that means records of what you bought. Period. This does cut your bank or credit card company completely out of the transaction, assuming you pay cash for your gift cards.

Stop using your mobile phone, GPS, computer etc (E: Med, C: High, D: High)

I rate this one as only medium in effectiveness and high in cost and difficulty. Why? Because the convenience and usefulness of these devices is so high and the effectiveness of ditching them is, at best, medium, that it’s just not worth it to me to get rid of them. Why aren’t these effective? You’ll still have utilities in your name, your car can be tracked by license plate scanners and your mail is being monitored. Not to mention the fact that every day more and more things are computerized and ‘paper’ options are fewer and fewer. To me, you give up too much to gain too little.

Note: If you have a phone, it doesn’t matter if you use location services to check-in to places. Foursquare, Facebook, etc, do not give the government any additional information that they don’t have. Since the phone companies provide location data along with call and message metadata, your location is known at all times. You could turn off the phone, but it’s not very useful, and the minute you turn it on, your location is known.

 Reduce your use of the financial system (E: High, C: High, D: High)

This is probably the hardest of all of the ideas to implement. It is virtually impossible to disassociate yourself from the financial services sector. If you want to make purchases on the internet, you must use a credit or debit card, and those transactions are being vetted by the NSA. It is very costly and time-consuming, if not downright impossible, to live without a bank account of any kind. Many employers only pay by direct deposit and most landlords will not take cash for rent. If your employer pays by check (almost nobody will pay in cash except for very rare instances), you could use a check-cashing service but these tend to be expensive. You could also convert your cash to money orders, but this leaves a paper trail, the very thing you are trying to avoid.

Note that crypto-currencies like BitCoin can help you here, but the problem is, in the end, that you still have to have stuff delivered somewhere. And that’s the weak link in the chain.

Go off the grid completely (E: High, C: High, D: High)

This means nothing is in your name. No services, no real estate, no car, no driving license, no passport, nothing. You live as a hermit moving from place to place, hunting and gathering food. Your only possessions are whatever you carry on your back. Since you’re completely out of the financial system (including money), you’ll have to craft anything you need or find a way to barter for it, though barter involves human interaction, and that runs the risk of tracking. Sure, you could have enough silver or gold coins to last for anything you might need, but set foot in town or a store and you’ll be noticed. And, as I said above, intentionally going off the grid will attract attention. They will notice that your mail is being returned/piling up, you aren’t filing tax returns, etc. They will try to find you.

There you have it. Not exhaustive, but a good start at helping you determine how much your privacy is worth. I’m slowly moving down the list. I don’t think the government is going to stop willingly. A massive, massive voter backlash is the only hope, and even then, unless true libertarians are elected, the monitoring will continue unabated. Too many people think that security theatre is worth the loss of liberty and that propagates the bad behavior.

I’ll leave you with two conflicting quotes, one from a Founding Father and one from a current Congressman. It shows just how far America has fallen from our basic principles and why we’re in the situation we are in today.

“When the government fears the people, there is liberty. When the people fear the government, there is tyranny.” [Thomas Jefferson]

“If someone is so fearful that, that they’re going to start using their weapons to protect their rights, makes me very nervous that these people have these weapons at all.” [Rep. Henry A. Waxman, D-California]

I don’t think the disaster we find ourselves in could be shown more succinctly than this.

[Updated 2013-07-25 15:00 UTC for grammar/spelling/clarity and added links I missed before]

[Updated 2013-08-08 11:00 UTC for reports about TOR being compromised]

Proposition 8 and Standing – the People vs the Executive

Nuances in Supreme Court rulings are often missed by the public—things often turn on esoteric points of law, complicated logic or long-standing precedent that seems antiquated or out of date, or is at conflict with the ‘popular’ will. The recent Supreme Court ruling on Proposition 8 pretty much hits all of those, and leaves us with a question—when the executive authority of a state refuses to follow the will of the voters in the performance of his or her duties, what is the recourse?

Why this question? Because that’s what the Supreme Court actually decided. They did not rule on the judgment of the District Court. They said that the appeal was not properly filed and that therefore the Appeals Court ruling was invalid (and thus vacated) and that they, the Supreme Court, could not rule on the merits of the case. It was an opinion about standing, and nothing more. It did NOT address the issue of gay marriage. What really happened? Keep reading.

Firstly, lets look at how the process of challenging a law in court works. We’ll look at this from a simplified, layman’s viewpoint, and in broad generalities. Ask an attorney (I’m not one) if you want more detail or need legal advice! There are a number of hurdles that must be overcome before the case is actually heard by a court.

The first hurdle to be overcome is jurisdiction—does the court you are asking to intervene have jurisdiction over the subject matter and the persons involved. Not all courts have jurisdiction over all subjects and over all persons. For example, courts in a state that I do not reside nor have any relationship with do not usually have jurisdiction over me. If I don’t go to California, sell into California or otherwise create as ‘nexus’ with California, California Courts have no jurisdiction over me. If you sue me in California State Court, I can likely have the case dismissed for lack of personal jurisdiction. You would likely need to pursue your claim in the Illinois Courts or Federal Court.

Once the court accepts the case based on jurisdiction, there must be a ‘live controversy’ that requires judicial intervention. There must be two adversarial parties, each with a claim that cannot be reconciled. In the case of Proposition 8, the question was about the power of the people to Amend the California Constitution and whether the Amendment and the process violated the California or US Constitution or applicable Federal Law. Almost immediately upon passage of Proposition 8 legal challenges were filed by those who would be affected by the law. The ‘live controversy’ then was between the state (in the person of the Governor and/or Attorney General) and couples who wished to marry but were unable to do so because of Proposition 8.

This brings us to the final hurdle—standing. Do the parties to the suit have the right to challenge or defend the law (or, on appeal, the ruling of the lower court). In order to challenge a law, an individual or group must show particularized (i.e. direct, personal) harm. That is, it’s not possible to challenge the general effects of a law, but only those effects that can be demonstrated to have a direct impact on the person or group bringing the challenge before the court. In this case, the gay couples could show particularized harm (the law discriminates against us by refusing to allow us to marry) so they had standing. The defendants in this case were the Governor and/or Attorney General representing California. Standing for the state is pretty much automatic when defending or appealing a ruling about state law or the state Constitution.

Unless all of the above (and often more) issues are properly resolved, the case will be dismissed for lack of jurisdiction (you may have filed in the wrong court), lack of a live controversy (there is nothing for a court to decide) or lack of standing (you aren’t in a position to show personal harm). At this point, we have a potentially live case.

Another topic that will be important here is the exercise of discretionary authority by the executive branch. Put simply, the Governor, Attorney General, State’s Attorney’s, Public Prosecutor, Police and all other ‘executive branch’ agents exercise discretion every day in how they do their jobs. Not every criminal act is prosecuted, not every alleged crime is investigated, not every failure to pay taxes leads to fines or other punishment, etc. These decisions are left to the executive and discretion is often broad. That said, if we recall Marbury v. Madison, it is possible for a court to issue a Writ of Mandamus that orders an elected official to perform an official duty. Only certain actions will result in writs-they generally apply only to ministerial or legally compelled duties, not to political or discretionary decisions.

So, what happened at in Federal Court? After the Supreme Court of California found Proposition 8 to be properly executed and voted on and thus the California Constitution was properly amended, future same-sex marriage was outlawed in California (previous marriages were held to remain valid). The gay couples involved brought action in the US District Court. They had standing (still affected by Prop 8), the court had jurisdiction (for example, on the claim of equal protection under the 14th Amendment) and there was certainly a live controversy (the Court had a specific question before it). The District Court found that Proposition 8 violated the ‘due process’ clause on the grounds that there was no compelling state interest in refusing gay couples marriage licenses.

When this happens (a court overturns a statute or constitutional provision), it is the state that makes the appeal. Mind you, nothing requires them to do so. They may look at the case, decide they can’t win on appeal and simply allow the ruling to stand. Or, the executive officials may have changed and the new ones do not wish to see the law enforced. The thing is, they do not need to give a reason to the court for declining to appeal—they simply don’t file. That’s what happened in this case. The state of California decided no to pursue an appeal. This is a political decision and an exercise of discretion. That means that it’s very unlikely that the executive could be compelled by mandamus to appeal the decision. The Courts usually do not intervene in cases like this, leaving them to the political process.

At this point, several other groups (for example, Imperial County, CA and supporters of Prop 8) filed to intervene to press the appeal. The Appeals Court requested an opinion from the California Supreme Court as to whether these parties had standing to do so. The California Supreme Court ruled, that under California Law, they did. The Ninth Circuit accepted this ruling and then proceeded to uphold the District Court’s decision. An appeal was then filed with the US Supreme Court.

The US Supreme Court accepted the case and looked at the standing issue. The Court decided that the outside groups did not have standing to press the appeal, in accordance with long-held precedent. The parties could show no particular injury resulting from the District Court’s opinion, nor from the fact that Proposition 8 was not defended by the executive. In this case, the only party that COULD show particular interest was the State of California, and the State, through its governor and attorney general, declined to participate. Thus, there is no live controversy, and no case. The Supreme Court vacated the Appeals Court’s ruling (as was appropriate to do) and thus the ruling of the District Court that Proposition 8 was a violation of the US Constitution was the final judgment in the matter.

This leaves us with an important political question—how do the people enforce a validly enacted law, found to be so by the state Supreme Court, when the executive refuses to enforce it, or, in this case, defend it in court. There are numerous political options, depending on your state Constitution. These include impeachment, recall or replacement at the next election. It’s also possible for the legislature to pass a law requiring that the executive defend the law until final resolution.

To many, this sounds anti-democratic. I submit that not only is it anti-democratic, but that it is proper as well. We do not have (nor do I want) direct democracy. The Founders rejected such notions, looking to the history of populist movements as an argument against it. The Senate was specifically setup to not be a popularly elected branch, but this was foolishly changed by the 17th Amendment. We live in a Constitutional Republic where we delegate sets of powers and authority to the government. That delegation includes discretion and our recourse when we disagree is to replace the executive and/or legislature through political means.

The Constitution and Marriage

The US Constitution says nothing about marriage. Nothing at all. It is totally silent. Since it is silent, the Federal Government has no authority over marriage. Period. Why? Because the US Constitution is a document that delegates powers from the States and the People to a National government. Contrary to what many might believe (including, sadly, many current and past Justices of the Supreme Court), any power not delegated to the national government is retained by the states, or by the people. The Constitution says so:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. [Amendment X]

The Founders and the several states added this amendment to make it absolutely crystal clear that the national government may only exercise those limited delegated powers and no more. Over the years the courts have effectively eliminated the Tenth Amendment from their jurisprudence, insisting that the “commerce clause”, “necessary and proper” clause and various other clauses control the cases, not the clear and explicit statement in the Tenth Amendment.

What does this mean? It means that the Federal government has absolutely no say in who may marry whom. It must rely on the judgment of the several states, through their elected officials, to determine what the criteria for marriage are. And it must accept the administrative acts that declare individuals married. Any benefits offered to ‘married’ persons must be offered based on the sole judgment of the state that issued the marriage certificate. Period. End of discussion.

As for the individual states, it is their constitution, legislature, courts and people who decide the criteria for marriage. They are the sole judge of who qualifies to be married and under what conditions. There is one major caveat-the constitution requires them to recognize all marriages performed by other states as well:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. [Article IV, Section 1]

This is seen in the fact that you don’t need a driving license for every state, just one issued by the state where you are a resident. You don’t need a new marriage certificate when you move to another state. Your license plates are good in every state. And so on. The states may not pick and choose. Congress may declare how this is to operate, but what they may not do is single out individuals or groups—they may only make general laws (that is, laws that apply across the board). If some marriage certificates are accepted, then ALL marriage certificates are accepted, and Congress may not pick and choose.

Note that this applies even in the case of differing standards. For example, in about a third of the states, first cousins may marry without  restriction. In the rest, either restrictions are placed on the issuance of marriage licenses, or it is banned outright. The thing is, only Arizona and New Hampshire have laws on their books that declare cousin-marriage by residents of another state void (i.e. the state would not consider you married). I could find no evidence of prosecution of these laws in recent times, and I suspect the laws would be struck down on equal protection grounds without even reaching Article IV (since the courts don’t seem to like it much more than the Tenth Amendment). So, note well, states that ban certain marriages by their own citizens accept those approved by all other states.

Where does this leave our current situation with “gay” marriage? The same place every other legal act of a state leaves us—with Article IV requiring that all other states recognize ALL marriages approved by other states. And a federal government that is required by the Tenth Amendment to recognize ALL marriages approved by the states. It is really that simple. And it means a lesbian couple married in New York that moved to Texas would have to be treated by Texas as validly married, and afforded all the rights and privileges of a married couple. Of course, Texas could refrain from approving any same-sex marriages, if that is what their legislature and people decide.

Per the US Constitution, the ‘battle’ was over once the first state approved same-sex marriages. At that point, all other states have to recognize those marriages. Moral objections cannot override the Constitution. Distaste for someone’s choice of marriage partner cannot override the Constitution. Given that it takes 38 states to amend the Constitution and 13 have already approved gay marriage, and other states have permitted civil unions, it is very unlikely that 34 states (not to mention 2/3 of each the Senate and House) would be willing to sign-off on a Constitutional change to reverse this. The Founders would have offered secession as an option, but the Civil War pretty much put paid to that notion.

Is there a solution? Not one that will satisfy the American right. Those of us who value individual liberty and believe in limited government think that the best solution is to get the government out of the marriage business completely. Handle all personal relationships with contract law without any need for state approval. In other words, I assign via contract, declaration or other document certain rights and privileges to another person or persons, and the state honors them. Any personal agreement with another person to stay together would be governed by a contract we worked out (rather than one imposed by the state as is the case with marriage). And any ceremony that solemnized such an agreement could be conducted in the church, synagogue or mosque of your choice, of if not religious, by any public declaration you chose. Frankly, the State of Illinois’ approval of a marriage, mine or any other persons, is meaningless to me. They shouldn’t have a say. Period.

This post came about because of the convoluted cases about DOMA and California Proposition 8. The issues raised were odd (e.g. if a proposition is found unconstitutional in a state and the executive authority declines to appeal that ruling, are those who proposed the proposition entitled to appeal). The decision was odder still, being narrow in scope and with Justice Kennedy basically saying that those who object to the 5-4 ruling somehow hate the human race. A simple clear ruling based on what I wrote above would have left the issue in the hands of the people, where it belongs. Yes, their hands are tied somewhat by Article IV, Section 1, but they have the power to change that if they so desire. That said, the havoc that could be wreaked by a badly worded Amendment that tried to revise Article IV could be nightmarish, even to a conservative appalled at the next-door neighbor women married to each other.

Bottom line, the Constitution doesn’t give any wiggle room. From my perspective, this is a good thing.

Your Grandchildren Will Live Under Communism!

Your grandchildren will live under Communism—so claimed Nikita Khrushchev. He thought it would be via conquest and the alleged superiority of the Soviet system that would bring this result. Instead, following the collapse of the Soviet Union, it was the citizens of America that meekly surrendered their freedoms in favor of an overarching, all-controlling government.

It has really come to this. When I wrote my post “Papers Please, Comrade“, we didn’t have the information about the scope of the NSA’s spying on Americans. Now we do, as documented in my post  The Surveillance State. Every day brings new revelations on powers exercised by the US government that smack of the old Soviet Union. Journalists are spied on and threatened. More and more documents are classified to prevent citizens from knowing what their government is doing. Secret courts issue secret warrants and make secret rulings. The IRS is used as a weapon against political targets.

It doesn’t end there. Regulatory agencies operate as petty dictators, imposing increasingly draconian rules and regulations on everyday citizens that violate the spirit and letter of the Constitution, and the Courts aid and abet them. These regulations destroy freedom and liberty and limit opportunity. Not to mention destroying jobs.

The thing is, you aren’t even safe from government control doing the most mundane things. Did you know that if a friend offers to let you use his computer and says “you may only open the web browser” and you subsequently open a word processor, federal prosecutors consider that a felonious act! The same could be true for accessing a public website! And they are trying to make it worse! There are so many ways to be convicted of a felony that it is impossible list them. In fact, it might not even be possible to know about them, since violating the laws of another country that we have a treaty with can result in felony prosecution! Then again, so can walking on the street in Virginia wearing a mask—and note there is NO exception for a ski mask during winter. And you don’t even have to cover your face to be guilty.

It goes on and on and on. Lifetime registration as a sex offender for urinating outdoors. Ditto for having sex with your 16-year old girlfriend the day you turn 18. Increasingly severe penalties for the most minor offenses. Piling-on of charges to force guilty pleas for weak or flimsy cases. Using laws designed to fight organized crime against individuals and small businesses. Asset forfeiture that requires you to prove innocence to get your property back. Administrative hearings run by politicians with redress to court only if you file a civil suit and bear all the costs. You are a slave, the property of the state, and you can not escape. A far cry from what the Founders intended.

And if that wasn’t bad enough, the public schools are teaching your kids to be informers (what the Russians called ‘stukach’). Pediatricians are doing the same thing. In the schools, they are demonizing tobacco, alcohol, drugs and guns and teaching the kids that these things are bad and asking questions in such a way as to have the kids inform on you. Pediatricians are being encouraged to ask kids if there are guns in the home. If your kids inform on you, there are all kinds of things that could happen. For example, some DCFS (Department of Children & Family services, possibly differently named in your state) could try to “inspect” your home out of concern for the child’s safety and they often have broad powers to take your kids from you.

When making things illegal and taboo doesn’t work, or in the rare occasion when the courts limit governmental power, financial penalties are used to control behaviors and force obedience to the desires of the state. Taxes are raised on things the state doesn’t like and subsidies offered for things it does. Government contracts and jobs are awarded only to those who bend the knee to the desires of the government. Even if you refuse, your employer likely cooperates with the government on many things due to financial concerns.

The assaults aren’t slowing down. In fact, they are accelerating. One of the scariest assaults right now is on the First Amendment. The loony left, completely out of its mind over Citizens United, is proposing a Constitutional Amendment that would strip all corporations of all rights. If this Amendment were to pass, NO corporation would have any rights. That means that the Chicago Tribune no longer has the right to publish. It’s a corporation. The ACLU would no longer have standing to sue on its own behalf. It’s a corporation. Churches would no longer have freedom of religion. They are (usually) corporations. All of this because the left simply can’t stand the fact that a group of individual owners of a corporation pool their resources for political action. I would note that if the proposed Amendment passes, unions would no longer have any rights either, as they are (usually) corporations. This is not an exaggeration.

Does all of the above sound like the former USSR to you? It certainly sounds like it to me. In a single generation we have implemented the powers of a dictatorial state. It seems to me that Khrushchev was right, though I might argue that what he have is fascism rather than communism, but that’s like arguing whether it’s better to be stabbed to death or bludgeoned to death.

It’s only going to get worse until We the People stand up and put a stop to it.

Quis custodiet ipsos custodies?

Ensuring Your Right to Remain Silent

DISCLAIMER: I am not an attorney. What is written here is my opinion and how I would deal with the situations described. I am not able to provide legal advice. Consult your own attorney before implementing any of the personal strategies that I discuss. The use of specific pronouns is for clarity and communication only and does not imply advice being given. By reading this you agree that I am not providing legal advice.

The recent Supreme Court decision in Salinas v. Texas [no Wikipedia entry as yet] reminds us just how important it is to never speak to any government official unless you are compelled by law to do so. The gist of the case is that in certain circumstances, and these circumstances as somewhat unclear, your refusal to answer a question, or your behavior when refusing to answer a question, may be introduced as evidence. Generally speaking, under Miranda v. Arizona and Griffin v. California, you had a right to refuse to answer questions either in court or when arrested, and your refusal to answer those questions could not be used against you. Procedurally, this lead to the now famous (thanks to television) “Miranda rights” recitation: “You have the right to remain silent. If you give up your right to remain silent, any thing you say or do may be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you by the court”—or words to that effect (the Supreme Court did not specify exact language).

The question answered in this particular case centered around the issue of what you have to do to claim protection under the 5th or 6th Amendments that protect you against self-incrimination, guarantee you a lawyer, etc. The Supreme Court, in a highly fractured ruling 3+2 to 4 (see the above links for details), said that you have to positively assert your right to keep it. While I don’t agree with the case, it doesn’t really affect me personally because I follow a simple rule—never speak to any government agent or employee unless you are otherwise compelled by law to do so. Make sure you have the necessary information to contact a lawyer, any lawyer, in the case you need to do so. Specialty, doesn’t matter. You just want representation. That initial lawyer will be able to assist you directly, or refer a colleague who is an expert on whatever the matter is (taxes, criminal arrest, etc).

Clearly, there are some instances when you do have to speak to a government agent or employee, such as applying for a driving license, license plates, etc. In those cases, confine your conversation to the exact details of the transaction and nothing more. Other cases include security checkpoints (e.g. TSA, entering a government building, etc), where you cannot pass without answering questions and refusing to answer questions might lead to your arrest. Your only option here is to avoid these checkpoints if at all possible. If you need to pass the checkpoint, you have no options. While I consider these mostly unconstitutional as they prevent my free movement, the Courts have not recognized these rights nor forced the Executive or Congress to remove them.

Let’s take the police first. Generally speaking, so long as you are not driving (we’ll cover that specific instance below), the only thing you are required to do is truthfully identify yourself. You aren’t required to present identification or discuss what you are doing. In such an encounter, it is critical that you remain polite, respectful and courteous at all times.  Keep your hands visible and at your sides at all times. Never make a move away from the officer until given leave to move.

Once you have identified yourself:

  1. Ask the officer if you are free to go. If the answer is yes, say “Thank you” and move away slowly but deliberately.
  2. Ask the officer if you are being arrested. If the answer is no, go back to step 1. Repeat this until you are given leave.
  3. If the answer is yes, state clearly “I assert my right to remain silent and my right to have an attorney present. I will not speak with you without an attorney present. I do not waive any rights.” Go peacefully with the officer. Do not resist. Do not argue. Speak with nobody except your attorney. Say NOTHING. Don’t even make smalltalk.
  4. While in police custody, do not answer any questions, continue to assert your right to remain silent and ask for an attorney any time they speak to you other than basic functional questions (e.g. do you need the bathroom, are you hurt, do you need food).

Note that incident to the arrest, they may search your person, including a wallet, purse, etc. You may also be asked at the time of booking to further identify yourself by providing your home address. I would provide only that information sufficient to properly identify myself and decline any other questions, including arrest history, where you work, relatives names, etc. They may take your picture and fingerprint you. They may also swab you for DNA, per Maryland v. King.

The bottom line is, offer basic cooperation with commands relating to booking and your incarceration, but say nothing without a lawyer present. Keep reminding them of this until you talk to your lawyer. At that point, follow his or her advice.

Traffic stops are a special case. Generally, you must provide your license, registration and proof of insurance. In addition, you may be required to submit to a ‘breathalyzer’ to check for alcohol in your system. In some jurisdictions, you may refuse and request a blood test instead. In most jurisdictions, refusal to take such a test (either by breath or by blood) will result in serious legal penalties. Your best bet is to cooperate, answer questions directly, clearly and provide no extra information. Your goal should not be to try to talk the officer out of the citation, but to finish the encounter as quickly as possible. If the citation is in error, show up for court and fight it. Arguing with the officer isn’t going to help you in any way, and might just escalate to your arrest, the very thing you want to avoid.

The officer making the stop is generally entitled to take steps necessary to ensure his safety, and that includes looking into your vehicle for any obvious threats or evidence of a crime. Some jurisdictions allow the search of mobile telephone handsets incident to traffic stops. I ensure that my device is in a closed area in the car (e.g. glove box) and not visible nor on my person. If asked if I have a cell phone, I would say “I’m not carrying one”, which is a truthful answer. Barring arrest or some visible evidence of a crime, they generally cannot search your vehicle. In the case of a traffic accident, the traffic stop rules generally apply. Beyond that, say nothing until you speak with your insurance agent and your attorney.

In the case of a police investigation where you might be a witness, decline to provide any information but offer a written statement once you have had a chance to consult your attorney on the matter. In certain cases, refusal to cooperate with a police investigation can lead to criminal charges. Make it clear to the office that you want to cooperate, but you want to consult your attorney first. I would make an exception for something like witnessing a kidnapping, since time is of the essence, but otherwise, I would run anything I was going to say by an attorney.

Dealing with other government officials is generally easier. For the most part, you are summoned to speak to them and are able to consult your attorney in advance. The most common federal agent you would speak to would be the IRS. In such an encounter you have the right to have a representative with you when you speak to the agency. You want to make sure that the person you take with you has expertise in the area you are dealing with, e.g. a CPA and/or Tax Lawyer. For other agencies, different rules apply, but in most cases, you may have an attorney with you. State and local governments may have cause to enter your home for inspections.

Dealing with the government agent at your door:

  1. Be polite, courteous and calm. Never do anything to alarm or frighten them. Keep your hands clearly visible at all times.
  2. When they arrive at the door, ask them to hold their identification to the window or peep-hole on the door. Do not open the door until satisfied that the person is legitimately who they say they are. In most cases, it’s possible to phone the office and verify that the individual is who they say they are and that they are there on official business. If you can’t confirm, tell them so and ask them to leave. Use your best judgment with uniformed personnel.
  3. Once you are satisfied with the identity of the person, step outside and close and lock the door behind you. Do not allow them to enter the house at this time.
  4. Write down all of the information from the ID they show you including name, office or department, rank, badge number, and any other relevant information.
  5. Ask the person the reason for their visit. If they cite a regulation, ordinance or law, ask for a copy and read it. Be sure to write down exactly what they tell you for a reason and keep a copy of the regulation.
  6. Be very careful about answering any questions and remember that you may assert your right against self-incrimination (well, except for the IRS!) or contact an attorney if you feel necessary.
  7. Deciding to let them in your house is a judgment call, but remember there may be serious consequences for not doing so (e.g. refusing a building inspector may lead to a declaration that your home is unfit to live in). Your goal is to keep them from entering, if at all possible, and if not, ensure they confine themselves to the specific purpose for which they are there.

Generally speaking, if you rent, your landlord may give permission to enter in a specific set of circumstances (e.g. inspections required by local ordinance for rental properties). There is little, if anything that can be done to prevent this kind of entry.

One critical agency to avoid at all costs is the Department of Children and Family Services (or your state equivalent). They often have broad powers to make instant rulings and decisions, so ANY cooperation with them should be done only under the supervision of a lawyer. Should they demand entry to your home demand a warrant and turn them away if they do not have one. Then call an attorney immediately.

This probably seems a bit over the top, but given that there are so many laws, regulations and ordinances that are serious offenses (e.g. result in large fines and/or jail time), it is critical that you ensure your right against self-incrimination and your right to remain silent. And given the ruling in Salinas v. Texas, the only way to do this is to never talk to the government unless compelled to do so by law.