The Aquarian Agrarian: September 2011

The Spooner Amendment

The following is a proposed amendment to the United States Constitution. Its purpose is to put into practice principles which were endorsed by Reconstruction-era author Lysander Spooner in his 1867 essay “No Treason”.

Section 1.

Representatives shall be apportioned among the several States which may be included within this Union according to their respective numbers, according to the whole numbers of citizens in each State.

Section 2.

All elections to federal, state, county, and municipal public offices shall be conducted through open ballot voting, wherein the evidence of the candidate or candidates for whom each participant in an election voted is open to public scrutiny.

Section 3.

The Senators and Representatives, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution, and the Oaths and Affirmations before mentioned shall be written, signed, sealed, delivered to, and witnessed and acknowledged by the persons who elected them, or their servants, attorneys, or Representatives, under penalty of forfeiture of salary, removal from office, and revocation of citizenship of public officers, and of revocation of citizenship of voting citizens.

Section 4.

For having been party to the proceedings of elections, or to assumptions to and execution of the duties of public office, which shall have occurred prior to the enactment of this legislation, and in a manner which is inconsistent with the processes required by Sections 1, 2, and 3 of this legislation, no person shall be held to answer to a charge of any criminal or civil offense.

Section 5.

The Senators and Representatives shall not be privileged from Arrest during their Attendance of the Session of their respective Houses, nor in going to nor returning from the same, and in addition to any Speech or Debate in either House, they may be questioned in any other Place.

Section 6.

The Congress shall make no law prohibiting any person from questioning, contesting, disputing, or doubting the validity of the public debt of the United States.

Section 7.

The several States may enter into any Confederation.

Section 8.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

In defense of Section 2 of my proposed legislation:

In "No Treason", Lysander Spooner wrote the following on the subject of voting:

"No man can reasonably or legally be said to do such thing as assent to, or support, the Constitution, unless he does it openly and in a way to make him personally responsible for the acts of his agents, so long as they act within the limits of the power he delegates to them...

"[T]he general fact that our government is practically carried on by means of [secret ballot] voting, only proves that there is among us a secret band of robbers, tyrants, and murderers, whose purpose is to rob, enslave, and... murder, the rest of the people...

"[Secret ballot] voting furnishes no legal evidence as to who the particular individuals are (if there are any), who voluntarily support the Constitution. It therefore furnishes no legal evidence that anybody supports it voluntarily. So far, therefore, as [secret ballot] voting is concerned, the Constitution, legally speaking, has no supporters at all."

“On general principles of law and reason, the oaths which the pretended agents of the people take [‘]to support the Constitution,[’] are of no validity or obligation… [because] …they are given to nobody. There is no privity (as the lawyers say) – that is, no mutual recognition, consent, and agreement – between those who take these oaths, and any other persons.

“…[S]ay that, among… persons, in whose presence the oath was taken, there were [a given number of persons], who had secretly – by secret ballot, and in a way to avoid making themselves individually known to me, or to the remainder of the [people] – designated me as their agent to rule, control, plunder, and, if need be, murder these… people.

“The fact that they had designated me secretly, and in a manner to prevent my knowing them individually, prevents all privity between them and me; and consequently makes it impossible that there can be any contract, or pledge of faith, on my part towards them; for it is impossible that I can pledge my faith, in any legal sense, to a man whom I neither know, nor have any means of knowing, individually.”

Spooner criticizes secret-ballot voting by invoking the term “privity” (meaning a legally-recognized relation between two parties, such as that of service) as preferable to and distinct from “privacy” (meaning the state or condition of being free from public attention).

It is precisely this freedom from public attention which is embodied in the practice of secret-ballot voting that makes that system of voting antithetical to the idea that government processes should be open to the public, and to its scrutiny.

This is because any defense of the secret-ballot system which invokes the necessity of defending individual “privacy” rather than “privity” undermines the openness of the legitimate, voluntary social contract, whereby people make themselves individually known to one another, and the decisions which they make in the public sphere known to one another (or, at least, potentially so).

In topics pertaining to the administration of public policy (particularly in regards to elections whereby authority is delegated), the term “privacy” is, practically, synonymous with the term “secrecy”, as has been (in some cases) the term “independence”.

It is for these reasons that I contend that Section 2 of my proposed legislation, which mandates that "[a]ll elections to federal, state, county, and municipal public offices shall be conducted through open ballot voting, wherein the evidence of the candidate or candidates for whom each participant in an election voted is open to public scrutiny”, would – as Spooner prescribed – provide for the furnishment of legal evidence that certain individuals voluntarily support the Constitution, and that it would also make individuals personally responsible for the acts of their agents, so long as such agents act within the limits of the power delegated to them.

In defense of Section 3 of my proposed legislation:

In "No Treason", Spooner wrote the following on the subject of contracts:

"...[S]ince 1677 – there has been on the statute book of England, and the same, in substance, if not precisely in letter, has been re-enacted, and is now in force, in nearly or quite all the States of this Union, a statute, the general object of which is to declare that no action shall be brought to enforce contracts of the more important class, unless they are put in writing, and signed by the parties to be held chargeable upon them.

"...Furthermore, the law everywhere (probably) in our country, as well as in England, requires that a large class of contracts, such as wills, deeds, etc., shall not only be written and signed, but also sealed, witnessed, and acknowledged.

"...[W]e are so insane, or so wicked, as to destroy property and lives without limit, in fighting to compel men to fulfill a supposed contract, which, inasmuch as it has never been signed by anybody, is, on general principles of law and reason – such principles as we are all governed by in regard to other contracts – the merest waste of paper, binding upon nobody, fit only to be thrown into the fire; or, if preserved, preserved only to serve as a witness and a warning of the folly and wickedness of mankind."

The statute to which Spooner referred was An Act for Prevention of Frauds and Perjuries (29 Chas. 2 c. 3), a 1677 Act of the Parliament of England. The act provides that contracts of surety (also called guarantee) for another’s debt are unenforceable unless evidenced in writing.

It is for these reasons that I contend that Section 3 of my proposed legislation, which mandates that “[t]he Senators and Representatives, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution, and the Oaths and Affirmations before mentioned shall be written, signed, sealed, delivered to, and witnessed and acknowledged by the persons who elected them, or their servants, attorneys, or Representatives, under penalty of forfeiture of salary, removal from office, and revocation of citizenship of public officers, and of revocation of citizenship of voting citizens”, would – as Spooner prescribed – provide for the furnishment of authentic evidence that a given individual has voluntarily delegated to a given public official the authority to act as his or her agent and representative.

The effect of Section 3 of my proposed legislation would be to amend Article VI, Clause 3 of the U.S. Constitution, which states that “[T]he Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution…”

In defense of Section 1 of my proposed legislation:

To enact and enforce Sections 2 and 3 of this bill but not Section 1 would eventually cause some problems with regards to the apportionment of the U.S. House of Representatives according to the populations of the respective states.

This is because population-based political apportionment is based on the principle that political liberties and responsibilities shall be distributed according to the number of persons living within the territory over which a given government claims and exercises jurisdiction, rather than according to the number of persons whom actually voluntarily submit to such jurisdiction (and – at that – in a way that is both authentic and verifiable).

It is because population-based political apportionment is based on the assumption that it is desirable that the federal government distribute political freedoms based on the number of people available to be coerced within a given territory rather than based on the number of people actually volunteering to part with certain freedoms and liberties in exchange for the privilege to participate in the government of themselves and of their consenting compatriots.

Article I, Section 2, Clause 3 of the United States Constitution states that "[r]epresentatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."

Section 2 of Amendment XIV to the United States Constitution – which amended the aforementioned clause – states that "[r]epresentatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed."

Being that to have either of these two laws in place while enforcing Sections 2 and 3 of my proposed legislation would cause different percentages of populations living within the territories in which governments claim and exercise jurisdiction to voluntarily consent to participate in the American governmental system operating under the authority of the Constitution, the outcome of this would be that the relative number of consenting individuals represented by the various members of the United States House of Representatives would eventually tend to vary by a wide margin – that is, to an even further degree than that to which is does currently – because some people living within the jurisdictional territorial boundaries of the United States – and of its subsidiary governments – would choose to not subject themselves to their laws.

It is for these reasons that I have included in my proposed legislation the mandate that “[r]epresentatives shall be apportioned among the several States which may be included within this Union according to their respective numbers, according to the whole numbers of citizens in each State”; i.e., citizens who are citizens because they consent to the Constitution in a manner that is voluntary, authentic, and verifiable, rather than because they begrudgingly, inauthentically, and unverifiably became citizens for the purpose of retaliating in a civil and civilized manner against the perpetrators of some secretive, aggressive act of initiatory coercion and / or expropriation.

In defense of Section 5 of my proposed legislation:

In "No Treason", Spooner wrote the following on the subject of the questioning of federal public officials:

"...[B]y the Constitution... the properties, liberties, and lives of the entire people of the United States are surrendered unreservedly into the hands of men who... shall never be [‘]questioned[‘] as to any disposal they make of them.

"...Thus the Constitution (Art. I, Sec. 6) provides that, '[f]or any speech or debate [or vote,] in either house, they [the senators and representatives] shall not be questioned in any other place.[']... this provision protects them from all responsibilities for the laws they make.

"...The Constitution also enables them to secure the execution of all their laws, by giving them power to withhold the salaries of, and to impeach and remove, all judicial and executive officers, who refuse to execute them.

"Thus the whole power of the government is in their hands, and they are made utterly irresponsible for the use they make of it. What is this but absolute, irresponsible power?... they shall never be [']questioned,[']... for violating their oaths... The right of absolute and irresponsible dominion is the right of property... The two are identical... they own us as property... they are our masters, their will is our law."

It is for these reasons that I contend that Section 5 of my proposed legislation, which mandates that “[t]he Senators and Representatives shall not be privileged from Arrest during their Attendance of the Session of their respective Houses, nor in going to nor returning from the same, and in addition to any Speech or Debate in either House, they may be questioned in any other Place” – which would amend Article I, Section 6, Clause 1 of the United States Constitution, and also invalidate a portion of it – would, as Spooner prescribed, permit the senators and representatives to be questioned; which is to say that – just as the senators and representatives may withhold the salaries of, impeach, and remove from office judicial and executive officers – senators and representatives would be subject to the same type of "questioning" which I have just described, but by their electors – i.e., the people who voted in the elections which they won – rather than by the executive and judicial branches of government.

Additionally, I would note that such "questioning" of senators and representatives could take place immediately upon refusal of any such public official to sign a written oath in support of the Constitution, and – in pursuance of Section 3 of my proposed legislation – such “questioning” would be administered in the form of “forfeiture of salary, removal from office, and revocation of citizenship” of the offending public officer.

In defense of Section 6 of my proposed legislation:

In "No Treason", Spooner wrote the following on the subjects of taxation and debt:

"...[T]axation is made compulsory on all[;] whether they vote or not, a large proportion of those who vote, no doubt so as to prevent their own money being used against themselves; when in fact, they would have gladly abstained from voting, if they could thereby have saved themselves from taxation alone…

“To take a man's property without his consent, and then to infer his consent because he attempts, by voting, to prevent that property from being used against his injury... is... no proof at all [that he supports the Constitution].

"On general principles of law and reason, debts contracted in the name of [']the United States,['] or of [']the people of the United States,['] are of no validity. It is utterly absurd to pretend that debts... are binding upon... millions of people, when there is not a particle of legitimate evidence – such as would be required to prove a private debt – that can be produced against any one of them, that either he, or his properly authorized attorney, ever contracted to pay one cent.

"...[T]here is in existence no such firm, corporation, or association as [']the United States,['] or [']the people of the United States,['] formed by any open, written, or other authentic and voluntary contract, and having corporate property with which to pay these debts... this secret band of robbers and murderers, who were the real borrowers of this money... do not propose to pay their debts otherwise than from the proceeds of their future robberies and murders."

The full text of the first sentence of Section 4 of Amendment XIV to the United States Constitution reads, "[t]he validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned."

The fragment of that sentence to which I aim to draw attention is, "[t]he validity of the public debt of the United States, authorized by law... shall not be questioned."

Not only did Spooner point out that, when a person is taxed against his or her will, a subsequent act of consent by that person to the so-called authority which levied the tax does not validate or confirm that person's consent retroactively; but Spooner also makes it clear that, when such a person consents to the authority of such agencies, that consent is not even legitimate because no authentic written evidence can be produced that such an act of consensual delegation of authority ever took place.

To reiterate and summarize, all government proceedings have, thus far, occurred without authentic, verifiable, written proof of consent to delegate authority, the payment of such debt is always contingent upon the future power and ability of governments to coercively extract payments from persons.

It is for these reasons that I contend that Section 6 of my proposed legislation, which mandates that “[t]he Congress shall make no law prohibiting any person from questioning, contesting, disputing, or doubting the validity of the public debt of the United States”, would ensure that no person shall be punished for questioning the validity of the public debt of the federal government.

In defense of Section 7 of my proposed legislation:

Article III Section 3 of the Constitution states, “[t]reason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”

The statutory Act of April 30^th, 1790 states, “…[i]f any person or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort, such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death.”

About the Act of April 30^th, 1790, Spooner wrote, “[t]he whole pith of the act lies in the words, [‘]persons owing allegiance to the United States,[’]… [i]t does not attempt to show or declare who does [‘]owe allegiance to the United States;[’] although those who passed the act… wished others to think, that allegiance was to be presumed… against all born in this country… As the Constitution professes to rest wholly on consent, no one can owe allegiance, service, obedience, or any other duty to it, or to the government created by it, except with his own consent.”

This is what Spooner intended to imply in choosing the title of his essay, which is that no act of treason was committed in the action of the Confederate States in attempting to dissolve the political bands which had once connected them to the Union.

The fact that the Confederate States no longer felt that the manner in which the Union interacted with them upheld the Constitution – and their revolt against the Union – embodies the revocation of consent which is implicit in the notion of legitimate delegation of authority; namely, that the administration of all governance is predicated upon the existence of consent of the governed to continue to be governed.

The significance of this is that any and all aggression which was committed against citizens of Confederate states whom did not own slaves and / or participate in the legalistic sanctioning of their continued slavery is deemed to have been initiatory aggression – and therefore immoral, unjust, and in violation of the non-coercion principle – while violence against slave-owners and those who utilized the rule of law to officially sanction the propagation of slavery is deemed to have been moral, just, and an appropriate exercise of (what would incorrectly be described as) force.

It is for these reasons that I have included in my proposed legislation the provision that “[t]he several States may enter into any Confederation” because Lysander Spooner’s primary reason for writing “No Treason” was to argue against slavery – and in favor of the right of the Union to demand that the Confederacy emancipate the slaves – while defending the Confederate States’ rights to secede from the Union, as an act of legitimate revocation of consent to be governed by a Constitution which was illegitimate to begin with.

The effect of the enactment and enforcement of Section 7 of my proposed legislation would be the invalidation of Article I, Section 10, Clause 1 of the U.S. Constitution, which reads (in part), “[n]o State shall enter into any… Confederation…”.

In defense of Section 4 of my proposed legislation:

I have included in this bill the mandate that “[f]or having been party to the proceedings of elections, or to assumptions to and execution of the duties of public office, which shall have occurred prior to the enactment of this legislation, and in a manner which is inconsistent with the processes required by… this legislation, no person shall be held to answer to a charge of any criminal or civil offense” because the election of the public officials who may vote on my proposed legislation – in addition to the actual voting on the bill itself – as well as the potential ratification and signing-into-law of the bill (due to there being a total lack of written evidence that any such public officials had ever been properly delegated the authority of the persons who they claim to represent) shall not have been legitimate in the first place, given the secret-ballot voting system which has been (evidently, de-facto) in place since the Constitution was written, as well as the aggressive actions which were and have been required to implement it, its subsequent amendments, and the statutes whose legitimacy is predicated upon it.

The unfortunate significance of this concession is that my proposed legislation itself – even once it has become “law” – would never be authentic, or, indeed, truly legitimate. I also concede that the moral and legal implications of Section 4 are monstruously hypocritical and duplicitous, and I would even go so far as to conjecture that it would be vehemently criticized, opposed, disregarded, neglected, and / or ignored by Lysander Spooner himself, as well as by the vast majority of his supporters (at least those who understand contract law, and, thus, would properly interpret my proposed legislation as an apologia for Statism and for its institutions and processes).

However – being that the very enactment and enforcement of the Constitution represented an aggressive act of initiatory force (i.e., violence) against its supposed subjects – were public officials who were to assume and execute the functions of public office to be charged, prosecuted, and punished for the offense of doing so illegitimately, the only appropriate crime with which they would be charged would be treason – which is traditionally punishable by death – and I believe that the execution of some half-a-million elected U.S. government officials and another twenty million appointed and hired civil employees would constitute a great loss of civic and governmental procedural knowledge for our society.

Additionally – in regards to the some hundred and thirty million people who vote in the United States every year – it would be preposterous to argue that three out of every seven Americans should be arrested, charged with treason, prosecuted, and executed for participating in a process which they believe to be legitimate, but which does not conform to standards set by a British legal document which is nearly a hundred years older than is their government itself, and which is relatively obscure by the standards of the modern civic and political culture of the United States.

Although it may ultimately prove futile to do so, I would defend this assertion by once again quoting Spooner himself: “…a man finds himself environed by a government that he cannot resist… [h]e sees… that, if he will but use the ballot… he may become a master; if he does not use it, he must become a slave… a man’s voting under the Constitution of the United States, is not to be taken as evidence that he ever freely assented to the Constitution, even for the time being… until every man is left perfectly free to consent, or not, without thereby subjecting himself or his property to injury or trespass from others.”

In summary, I would use this quote to defend the notion that voters and public officials should not be held responsible for their participation in the governmental system – as it stands right now – due to the fact that each of them was compelled to do so, that compulsion having been in the guises of liberty, voluntarism, and consent.

While I can only hope that this defense of my proposed legislation will be sufficiently satisfactory to the citizens of the United States in general, and the followers of Lysander Spooner especially, I believe that unless and until this bill is passed, enacted, and enforced, the legitimacy of American government, the transparency, responsibility and accountability of the action of its agencies and its officers, and the liberty of its subjects, will remain a usurpative delusion which flies in the face of common law, contract law, and the freedom of association.

SUMMARY

SECTION 1

Require the apportionment of the House of Representatives by the number of citizens (not denizens) in each State

[Amending Section 2 of Amendment XIV to the U.S. Constitution;

which itself amended Article I, Section 2, Clause 3 of the U.S. Constitution].

SECTION 2

Permit the public scrutiny of the evidence of voting results for elections of candidates in all jurisdictions.

SECTION 3

Require that the oaths of public officials to support the Constitution be written, signed, sealed, delivered, witnesses, and acknowledged

[Extrapolating the contract-law-relevant English Act for Prevention of Frauds and Perjuries as applicable to U.S. common law; amending Article VI, Clause 3 of the U.S. Constitution].

SECTION 4

Immunize public officials from criminal and civil prosecution for having governed without written evidence of having been elected and having signed an oath to support the Constitution.

SECTION 5

Completely revoke U.S. Senators’ and U.S. Representatives’ privilege from arrest

[Amending Article I, Section 6 of the U.S. Constitution].

SECTION 6

Legalize the questioning of the validity of the public debt

[Invalidating Section 4 of Amendment XIV to the U.S. Constitution].

SECTION 7

Permit the States to enter into confederations

[Invalidating a portion of Article I, Section 10, Clause 1 of the U.S. Constitution].

SECTION 8

Empower the Congress to enforce the provisions of this article by appropriate legislation.

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