Structural analysis of Amendment II

From the US Constitution's Bill of Rights:

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

To do some analysis on this Amendment requires examining it by its parts as this is a passive voice clause that hints at it being of a large scope unlike the active voice clauses that mention a particular part of government or government function.  To those not familiar with this sort of terminology I point you to two prior posts looking at the work of Nicholas Rosencranz in – All agree or none shall pass Part 1 and Part 2.  His work on the Subjects and Objects of the US Constitution serve as a means to examine the inter-contextual structure of the Constitution and its Amendments via the SVO structure of sentences.

To begin comes the passive voice system in which the subject is not one of a stated power or function of the US government nor, indeed, any State government which would get direct recognition.  Here the subject is the Militia which has prior mention in the US Constitution which allows for the context of Amendment II to be seen in light of what the prior citations are for this subject.  In Article I, Section 8 there is this mention:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

These are passive voice clauses as compared to the five more active voice clauses seen preceding them in Section 8 regarding the Army and Navy which are power grants to Congress:

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

In these clauses Congress is granted power to do things: To define and punish Piracies and Felonies; To declare war, grant Letters of Marque and Reprisal; To raise and support Armies; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces.

These are all things Congress is granted power to do and they are specific power grants to specific Objects be they legislative in nature or to parts of the government specifically created and cited by this language.  Congress is not granted power to create the Militia but to arm, organize, train and discipline the Militia when it is actively called up for service.  This is a function not of creation but of regulation to normalize the operations of the Militia to that of the military power granted to Congress.  This is not a power grant to Congress for creation of such a body or organization.  This is the power granted to Congress for the Militia is exacting: it may provide for calling forth the Militia and that the Militia will act under the Law to suppress Insurrections and repel Invasions.  In those two instances Congress is granted only the power to tell the Militia it must act in accordance to the Laws of the Union which are not just the civil laws but the military laws used to govern the stated Army and Navy powers of Congress.  Those Laws are those of the Piracies and Felonies, War, Letters, Rules of Capture, and Rules for the Government and Regulation of the land and naval Forces as well as the Militia.  These are militarily known as the Laws of War and are operational in nature, which means they are how a military is to operate and what the rules are it is to follow when in war.

The internal organization, creation, and all other powers for how the Militia gets its officers are not granted to Congress but to the States the Militia comes from.  That is to say that the power of assigning officers, creating drill routines, how often training is supposed to happen and how the Militia gets organized is not granted to Congress but to the States separately.  The second clause is thus one of regulation during a call-up to service which is strictly limited to war or suppression of insurrection.

From this the Militia begins to get a definition:

1) Militias are State bodies created by the States,

2) Militias can be called into service by Congress during war or to suppress insurrection,

3) Congress can regularize the operations of Militias to be in accord with army and navy laws, rules, procedures and common arms,

4) Militias have their internal command structure determined by their respective States, not by Congress,

5) Militias are not regular forces under the command of Congress and are explicitly stated as bodies that may be called forth in service to the Union but are otherwise not under Congressional power.

There are two additional clauses in Article I that deal with these powers, and they are in Section 10, which is in regards to the States, and I will give you the first and third clauses as the second does not deal with war powers:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

[..]

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

These are active voice prohibitions and exceptions that pertain to the war powers and the Militia is an adjunct to those powers.  The first is an explicit prohibition on the States on war powers that they may not utilize nor exercise: Treaties, Alliance, Confederation and Letters.  The second is an active voice prohibition with exception.  States are not allowed without Consent of Congress to keep Troops or warships in time of peace or enter into Agreement or Compact with another State or foreign Power, or engage in war.  The exception is explicit on these things: unless actually invaded, or in such imminent Danger as will not admit of delay.  Any State suffering invasion or in imminent Danger that no other forces can come to defend the State is then relieved of such prohibitions.

From this we get another definition of the Militia:

6) Militia are not Troops or navy.

That is Militias are not standing forces but those individuals of a State who come together to practice the arts of war but do not form a standing military organization.  They do not get regular pay from the State.  While uniforms may be regularized, actually getting one can be done either by purchase or donation of used equipment.  In fact all the equipment and supplies rely on those who volunteer for such work without pay and with only the internal rank recognition as formulated by their State.  As is often seen in movie depictions these are 'Honorary' titles, save during call up to arms by Congress or utilized by their State to combat invasion or Dangers, in which case they become active and formal titles of rank.

A Militia  is not the National Guard unit as that is part of an organization directly created by Congress, under standard Congressional regulations for the army and the navy, with its internal structure defined by Congress.  National Guard have many appearances of Militia in duties and their ability to be called up by Governors but their internal command structure is one created by Congress, not the States. 

If the National Guard were a Militia they would be able to own their own weapons and equipment, be responsible for them and train as their States provided for, as well as have rank positions that were solely a State concern.  The bases, armories, equipment, supplies, provisioning, and all other things would be the property of the Militia, the members of the Militia or set aside by the State to form volunteer Troops that answer to the State, first, then federal government only during times of war or insurrection.  In some instances the National Guard is explicitly called a Reserve Unit of a military branch, and a Militia is specifically not a Reserve but an autonomous unit under direct regulation of their respective States as non-standing forces.

Moving on to Article II, Section 2 and the Executive Branch there is the following, in part:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; [..]

This is an active voice in 'The President shall...' and a direct and specific power grant to the individual of the President.  As leader of the armed forces, the President also becomes leader of the Militia of the several States only when they are called into service by Congress.  Thus there is a two part requirement with order precedence: active call into service by Congress then allows the Presidential power of command.  What is interesting is that the States generally place their Governor (or other determined Executive) in charge of the Militia during call to service for the State. 

This is an ongoing tradition of the several States as existed before the Constitution  as I examined for a number of the States in this posting.  Indeed during such times of service a Governor's power grant of Field Marshal or General (or whatever a State determines it to be) would then place the Governor in charge of his Militia during call up by the legislature in that State and such duties would also place that Governor in charge during a call up by Congress as the leader of the Militia.  This would serve as a check and balance on the President and federal power and also allow for a voice in wartime to be heard from the States, especially on operations taking place within that State (to repel an invasion, say).  The President would get overall command of forces, yes, but the particular way those commands are passed down would be through the Governor (who may appoint a State determined Militia Officer in charge of actual disposition, but the chain of command would still be present).

That is the Executive power grant and it is short and sweet.

In the Judicial power grant in Article III there is this from Section 2 and do note the internal link to an Amendment is in situ from the Archives:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State,--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

During active calling for the Militia they serve as an adjunct to the regular forces and under the codes for them set by Congress.  In general when operating in the field on hostile territory, even during an insurrection, the State may not be said to be in control of such territory where that conflict is taking place or that the actual land is contested via force of arms.  Thus the military code is in place for field operations and as they are not normal, civilian operations they operate under the Courts Martial system.  Thus Courts Martial are normally not jury trials but ones by Tribunal or, if in the field during combat, often by a commanding officer who must make a life or death decision on the spot.

There is an appeals process to the Supreme Court and that is a direct and mentioned power grant to it.

Thus we now know who regulates the Militia: the States in Peace and the Congress only under calling forth in war.  This regulation is one that is in the nature of training, organization, and command structure.  Prior to the US Constitution, State Constitutions tended to leave the lowest and most local level of the Militia up to local organization and officers below a certain rank, and then those companies would come under the structure regulated by the State.  In this case 'regulation' is in regards to the regularization of duties, training, etc. not in what you arm yourself with.  If a higher level wants the Militia to have different arms in the field, then it must supply them and train the Militia in its usage, which is the Congressional language that says as much.  There are no prohibitions in such regularization and, indeed, it is usually an upgrading of arms and armament when it is supplied by Congress.  And nothing prevents the Militia from using what it wants to as each individual must support himself within the organization.

From this we now have a much better definition of the Subject of the Amendment II: the Militia.

Next is the Verb in the SVO sentence and it reads as follows:

being necessary to the security of a free State,

The Militia is a pre-requisite to a free State and that has a similar mention in the body of the Constitution in Article IV, Section 4:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

This is an active voice part of the compact between the States and the US government which is created by the signatories to the Constitution, which are the duly elected representatives of that State with the assent of the people of that State.  The purpose of this larger government is to ensure that a Republican Form of Government is in every State, which is to say a multi-way power division between branches that have separate power domains, and that the government shall protect each State from Invasion.  Here we learn an important proviso on the prior Article I, Section 8 mention of suppression of insurrections: that can only be done when a State Legislature, or Executive when the Legislature is not actively convened, petitions Congress for this intervention.  Thus there is a State check on the suppression of insurrection power and is broadened to domestic Violence for the States.  Not only is this a positive check on Congressional over-reach, but it actually puts a greater scope on what a State may see as violence against the State as an entity.

It can then be said that as the States are guaranteed a Republican Form of Government and that each State shall be a free State, that the Republican Form of Government is a pre-requisite for a free State.  Indeed this goes with prior examination of Art. I, Sec. 10 and that the scope of governments in the States are to have Legislative, Executive and Judicial branches, although their exact powers are determined by each State.

A Militia then serves two purposes from Amendment II:

1. It serves to keep an established free State as free,

2. It is the foundation of a free State as its guarantor.

The US government is only to serve to protect each of the States and to come in service when a State Legislature or, in limited circumstances, Executive calls upon Congress for help.  As seen in Art. I, Sec. 10, the normal prohibitions upon a State to keep Troops disappears during an invasion, emergency which shall not admit of Delay which is larger domestic Violence against the State as an entity.  Isn't it nice how the same stuff gets repeated in slightly different terms throughout the Constitution so that people can get a good idea of what a specific power is?  Art. IV, Sec. 4 does that without ever once mentioning the Militia, and yet it now fully scopes out the power relationship with regards to it via the States and the larger government they have created.

If this larger government is the external guarantor of a free State, the Militia is the internal guarantor of it.  Amendment II puts the Militia in an exactly equal power position as the entirety of the US federal government in the Verb activity of the Militia.  They are exactly equal in power and are given the same domain with the exception of which is internal and which is external, and the line between them is demarcated and explicitly drawn.  It is because of that equivalence of power and stature that the Congress cannot control and regulate the Militia at all times, as that would make a sham of having a free State.  To have a free State you must have:

1. A Militia.

2. A Republican Form of Government.

Anything that is a necessary prerequisite for something else thus places it ahead of the other thing.  If A is necessary to having B, then B cannot be necessary to have A: A comes before B.  And if B is necessary to get C, then A comes before C.

A = Militia

B = free State

C = United States government

A then B.

B then C.

Militia before a free State before the United States government.

That is the explicit logic structure set up by Amendment II and is in accord with creation of the Constitution by free States.  You do not get to the United States before you get to a free State and you do not get to a free State before you have a Militia.

Now comes the Object of the SVO sentence:

the right of the people to keep and bear Arms, shall not be infringed.

Who makes up the Militia which is the Subject of this Amendment?  That is answered: the people keeping and bearing Arms in a way that is not infringed upon.

Who would do such infringing?  Who is this prohibiting, in other words?

The power of a passive voice is that when it is not explicit (which would create an active voice, as in Amendment I) then it is universal for that domain in question.  You can go to Amendment III and see this sort of thing at work with the 'No Soldier shall, in time of peace be quartered in any house, without consent of the Owner...'  This is a universal protection against any that would house a Soldier in a private residence.  It does not matter if Congress wants it done or if the Executive orders it, or a Judge requires it: it is prohibited from all THREE from doing this.  Their power is limited, and circumscribed during peace time and then in times of war there is necessary military law to follow for territories under dispute.  In other words even during wartime there is a necessary set of laws to follow for Soldiers as set by Congress.  Yet at no time is 'set by law' mentioned in Amendment II, which means there are no provisos to Congress making law in this area.

Amendment IV also is a passive voice reading 'The right of the people to be secure in their persons, houses, papers...' is one that is against the Executive who must seek a Warrant from a Judge before violating these protections.  Otherwise, on just the say-so of an Executive this cannot be done.  What is more is that Congress cannot order a blanket search by law without having provisions for the Judiciary to moderate it via the Warrant process.  Yet the Executive and Judiciary are not mentioned in Amendment II.

Take a look at Amendment V, and I'll do a bit more with it here as it mentions the Militia, but as individuals:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Note that while serving under call-up during wartime means you are subjected to military law and its system, so the standard civilian protections are not enforceable for individuals serving during a war.  Why don't jihadis get a civil trial?  They are at war with us, waging illegal war and are subject to military justice whenever they wage war against the Nation.  Similarly if you are in the Militia under call-up and commit a crime in-theater, you can expect military justice as given by Congress.  Thus when called up the Militia is under military law, and when not serving they are under civilian law.  It would be expected that during time of training in the voluntary Militia you would be under the laws set by your State for such activities and training.

It can be seen that there are laws for the individual regarding the Militia, how it is formed (done by the State) and how it serves under call-up either by the State or by Congress.  These are not prohibitory laws for firearms, but laws for conduct and order within the ranks and during combat.  Thus these are not venues to prohibit arms of any sort and they are universal and inclusive of not just the federal government but, because A then B, of the State as well.  Internally this is consistent with the other Amendments in the Bill of Rights and the Body of the Constitution as well, and this provision has rooting in both and must be read as part of the existing structure of the Constitution itself.

Would this mean that there are no prohibitions on any arms for anyone?

No, there are prohibitions and one of the simplest deals with loss of certain civil rights by criminals.  Convicted felons have their civil rights restricted in regards to the franchise and the keeping and bearing of arms as such individuals have demonstrated that they have placed themselves outside the law for their own reasons in the way of crime and are no longer trusted with either the franchise nor the right to bear arms.  But do note that felons who pick up any readily available arms for self-defense against animals or other criminals (or in times of war) will not be prosecuted as they have exercised their positive natural liberty to preserve their own life.  To those wishing to give back the franchise to felons, why not the right to keep and bear arms?  If they have, indeed, served their time and done penance, and you wish to trust them with the franchise, then why not with arms as they come in hand-in-hand should not your trust be perfect in that regard?

Looking back to the Common Law, there were restrictions on arms one could not bear on their own, such as cannons and mortars.  These crew-served weapons one could own (a man's home is his castle) but couldn't take along with him to the store or city council meeting.  Keeping and bearing meant that you could keep such heavier arms, but had restricted utilization of them because you could not bear them.  Keep and bear arms means things you can carry with you.  And back in that day it was not just muskets, pistols and such, but axes, swords, long knives, sabers... anything you could afford, really.  About the only other restrictions were on those who had lost all touch with reality, those who were violently insane, or just unable to learn how to operate even the simplest of arms or who were so withdrawn that very little could reach them save hunger.  They were usually restricted by confinement, kept from dangerous objects by family or cared for by individuals or institutions that tended to the sick.  If you heard voices but performed your duties, recognized commands and realized the voices in your head couldn't order you to do anything but that guy with rank insignia could, then you had the opportunity to defend yourself like the rest of them.  While we may have improved upon diagnosis, description and some treatment of these problems, the social controls seem to be less, today, than they were way back when before the Framing.  If you can't trust your fellow man to help on this, then bucking the stupidity up to government isn't an answer and becomes a whole different sort of problem.

Thus the restrictions upon individuals are those of self-government, caring for your fellow man, and seeing that those who are criminal really may do their time, but that lack of self-control for a felon means that there is a serious lack of something there that time just may not heal.  That's about it. 

A free State is not just kept by armed citizens, it is formed by armed citizens, and that logic is one that is at the basis of Amendment II.  It is a recognition that the positive natural liberty of bearing arms is not just self-defense, but in the creation of a free State that will recognize your rights as an individual to be free to live in a society that respects you and that government is forced to respect by its very foundation.  Of course there are dangers to this, but there is worse danger and blood... rivers of blood... due to tyrants and autocrats, despots and dictators, emperors of many stripe who have decided that slavery for others is better for them... when government is not forced to recognize that it is accountable to free citizens who are willing to change or abolish government when it no longer respects their freedom and liberty.

Roots of constitutional government

Elsewhere I have two posts on this topic (part I, part II) taking a look at where the US Constitution gets some of its roots.  Those roots are much further back than just the Enlightenment Era and the post-Westphalian conception of how a State is to be run so as to allow individual liberty of religious freedom.  That in and of itself is a great advance in that the State as conceived in the post-Westphalian West is something that while it can have a general religious direction, it is not seen as a benefit to promulgate worship at a religion directed by the State.  With that said, post-1648 thought is built on preceding lines of thought and the direction Continental Europe would take between the slow retreat of the Western Roman Empire (ca. 500AD) and the 30 Years War is not the main thread that was followed by the old Roman Province of Britannia.

If the swapping of Roman rule for local rule happened anywhere the fastest it was at the outskirts of the Empire, which was Britannia in the North and up to the Rhine river and Germanic peoples to the North East.  The Germanic peoples and their close Scandinavian cousins (excepting the Laplanders in Finland who have a language closer to the Bosque in Spain) had territory under their domain that stretched as far as the Upper Volga river, as far south as the Danube, and then westward towards what we would call Switzerland and then north up to Denmark and Norway.  The retreat of Roman rule meant territory going back to local concerns and smaller tribes in this larger cohort of Germanic and Viking populations could then see such territory as ripe for plunder or trade.  The Roman Catholic Church tended to represent concentrations of local wealth when the Empire receded and those outposts became focal points for raiding due to the accumulated wealth.  Two peoples of what we would call Denmark, the Angles and the Saxons, saw the East of Britannia as being similar to their lands in climate and far larger for spreading out in expanse.  By the investing of local populations in moving to these new lands (as Vikings were doing in the area of Northumbria and York) permanent settlements of a new type and legal view got planted in that territory.

These Anglo-Saxons retained a Viking system of authority in government which rested not upon a King to make law, but a King to govern the law and be a part of the body of the governed.  Unlike Kings in Continental Europe, the Kings of Viking peoples were held accountable to the Thing, which is a once to twice annual gathering of local Law Givers to administer justice, settle disputes and then receive local problems to be taken up to the next realm of government at what we would call a 'county' level.  These ill-defined regions tended to have local governors that were Jarls or Earls, and amongst their gatherings of Law Givers one or two would go to the largest assembly of the Thing that would then present multi-county problems to the King and also tell of how the law was being administered.  Law was not so much handed down by the King as settled upon by this group and the King, and then it had to be administered at the more local levels which had representation at the highest level via the Law Givers.  As a later Swedish King would put it: No King is above the law.

The Anglo-Saxon tradition of local law administration also had a relatively unique piece to it that is one that we would recognize today.  Trials, as such, had a law giver but the actual judgment of guilt or innocence was performed by peers with no interest in the dispute.  Thus law was judged by a jury and administered by a Law Giver and to be convicted one had to be convicted by a jury of his peers.  This system of law had proven to be durable over time and allowed for local management of affairs in a diverse Kingdom and was also one that scaled well downwards until there was only one local governing area or shire, and upwards until it encompassed many disparate geographic regions (as under King Canute).

One major record for this consolidation of what would become Angla-Land in old Britannia, was The Anglo-Saxon Chronicle (seen textually at the Online Medieval and Classical Library), sponsored by King Alfred the Great of Wessex.  It is of note that between ca. 500 AD and the rule of Alfred (871-899 AD) that the Anglo-Saxons now differentiated themselves as a different peoples from the Vikings and the Germanic peoples.  Linguistically and genetically they do source from those peoples, but through a process of inter-marriage with local tribes that survived and amalgamation with those tribes via the extensible shire and borough system (a burr or burg or borough being a small unit within a town that self-governs) the Anglalanders now had a National perspective.  King Alfred cemented this by commissioning The Anglo-Saxon Chronicle which would be kept in the common tongue (not in Latin) which would do two things: confirm that government was to be understood widely amongst the governed, and, more importantly, solidify what would become the English language in use and spelling.

National identity via commonly held government that is administered locally and having even the highest reaches of the government under the power of the law are all important and vital concepts in the formulation of constitutional government.  While constitutional government can often be 'in name only' and a sham used by a ruling organization that puts itself above the law, it contains the germinal seed of governing that goes quite beyond those who abuse it and remains as a reference point for the ideal that government is, indeed, something that is done in accordance to the people and in a way the people of a Nation understand.

With the expansion of English rule over the older Kingdoms such as Sussex, Kent and Mercia, and the absorbing of Viking groups in the regions of Northumbria and York, then into Scotland, the new system of government served at once to break down larger territorial blocks (into shires and newly placed fortified towns with boroughs) and yet retain Earls who would oversee these more local territories that used to be Kingdoms in their own right.  That would place tension within the English system all the way to Ethelred II, and would even see Kingdoms temporarily resurrected when one Earl or another would gain enough power to try and upset the current ruling order.

Even though this stuff gets written down, it is merely agreements that are renewed by Kings with their Earls who are locally powerful aristocrats but are accountable to local law.  The written form of constitution had not been put fully in place, save as these agreements, so that when Alfred agrees to have taxation that is only amenable to his Earls, he forms a limit to the power of the King (that is the State) in that realm.  Taxation, from that, must be something that is amenable to the representative aristocracy for a given region and, what would follow to the displeasure or some Kings, would that for there to be such taxation there must be representation.  The Monarch would have some areas of taxation left solely to the State under his control, such as admiralty taxes and port taxes, meant for use and maintenance of ports, protection of them and even raising a navy.  Over time and abuse those would also move into the purely representative realm as the precedent had been established early on under Alfred.

In our Constitution it is interesting that the Supreme Court with the case of US v Wiltberger (1820) (which I looked at in the context for piracy) establishes that the extent of reach for US maritime law via the admiralty goes to a time prior to King Richard II and (if memory serves) goes back to King William.  William of Hastings comes in at a point where there is strife between Ethelred II and his Earls, due to changes in taxation, raising of troops and other actions being taken that were seen as not holding to the agreements between the Earls and the King since Alfred.  Ethelred II had the unfortunate problem of being on the throne when one of the strongest Viking Kings, King Sweyn of Denmark, had set his sights on Angla-Land as the best place to expand Viking rule.  King Sweyn went far beyond prior Viking raiders of the prior two to three centuries, and actually established military encampments and localized rule in surrounding areas.  At the Battle of Maldon a diverse Kingdom under Ethelred II was represented to try and halt the expansion of King Sweyn's Vikings.  For all the glory and songs about Maldon, Ethelred II lost the battle and was on the way to losing his Kingdom unless he could come to some agreement with his Earls. King Sweyn took the day in 1013, the Kingdom and early in 1014 he died. That defeat and subsequent retreat to the Isle of Wight, meant that Ethelred II had to send his son Edward as part of the agreement to pull in his tax policies and otherwise moderate his imposition on the Earls.  Edward was, in other words, hostage to the agreement of 1014:

A.D. 1014. This year King Sweyne ended his days at Candlemas, the third day before the nones of February; and the same year Elfwy, Bishop of York, was consecrated in London, on the festival of St. Juliana. The fleet all chose Knute for king; whereupon advised all the counsellors of England, clergy and laity, that they should send after King Ethelred; saying, that no sovereign was dearer to them than their natural lord, if he would govern them better than he did before. Then sent the king hither his son Edward, with his messengers; who had orders to greet all his people, saying that he would be their faithful lord -- would better each of those things that they disliked -- and that each of the things should be forgiven which had been either done or said against him; provided they all unanimously, without treachery, turned to him. Then was full friendship established, in word and in deed and in compact, on either side. And every Danish king they proclaimed an outlaw for ever from England. Then came King Ethelred home, in Lent, to his own people; and he was gladly received by them all. Meanwhile, after the death of Sweyne, sat Knute with his army in Gainsborough until Easter; and it was agreed between him and the people of Lindsey, that they should supply him with horses, and afterwards go out all together and plunder. But King Ethelred with his full force came to Lindsey before they were ready; and they plundered and burned, and slew all the men that they could reach. Knute, the son of Sweyne, went out with his fleet (so were the wretched people deluded by him), and proceeded southward until he came to Sandwich. There he landed the hostages that were given to his father, and cut off their hands and ears and their noses. Besides all these evils, the king ordered a tribute to the army that lay at Greenwich, of 21,000 pounds. This year, on the eve of St. Michael's day, came the great sea-flood, which spread wide over this land, and ran so far up as it never did before, overwhelming many towns, and an innumerable multitude of people.

This would not be the first time nor the last time that the Earls would hold the King to account to them, and the Earls would also demonstrate that while a powerful Earl could reign in the King, other Earls would not necessarily let that Earl then drag the Nation into a civil war.

King Sweyn was capable, competent and ready to make local agreements to start chipping away at England.  King Canute, however, would go for everything and, in 1016, actually do that.  Even with the replacement of so many English Earls with Danish Jarls, often with the expediency of killing of aristocrats and nobles, King Canute would then do something upon ascending the throne in England and agree to the prior compacts between the King and the Earls.  Yes he did garner a lot of booty and outright cash from this, but he put a guarantee on the continuity of government which, with a number of his own people in place, would assure a relative calm for England.  Canute had the great fortune to do all of that before he was 20.  He would also hold Norway, Denmark, Brittany and almost every other Viking land and become the last King of the Vikings.  In doing that he sought to allow local law prevail in each place as a uniform code of laws was unsuited to such vast and disparate holdings by any Monarch.

So, why would King Canute agree to have limits on the power he could exert over taxation, raising of men at arms and such?

The answer is simple and it is what drew his father, King Sweyn, to England: it is rich.

All of that raiding, tribute, and the rest of it had a point and that point was that the internal trade system of England afforded a prosperous economy.  From the time of Vikings holding York at least until Alfred if not after, York was the second largest trading city in Europe and it was situated in what was England.  That put it right after Constantinople in trade wealth.  Trade wealth, however, is transactional in nature not put into monuments or into vast storehouses of gold, but moving from hand to hand in exchange for goods and services.  Taxation on such wealth can garner large amounts of funds for a State but that also puts the very trade, itself, at the peril of over-taxation.  If Vikings understood one thing, it was that while local people must trade, the place of trade could move and today's central trading spot could become a ghost-town if over-taxed.  Thus keeping in the traditional agreements, traditional tax rates and traditional restrictions on the power of the King was agreeable to Canute due to the wealth it assured via continuity of trade.

Prior to William the Conqueror the system of England is one that, while largely not adhering to the written law standards of Roman law, is something comprehensible to the modern reader.  In fact we begin to see the outlines of a number of vital features embodied in the US Constitution showing up as common practice agreements in England.

- Representative government and holding the governors accountable to the law.  If there is any feature of US law it is that those administering law are held accountable to the same law and the same standards of it.  That is a strongly egalitarian principle that seems to evade many other revolutions that claim to be about egalitarianism and yet put a ruling class that is unaccountable to the law into a governing role.

- Trial by jury is ancient in the Anglo-Saxon lineage and pre-dates the migration of the Angles and Saxons to Britannia.

- Limited State power via a representative class in the governing role is a form of republicanism.  Not called republican by name, but the essence of breaking down the power structure of a Nation State into separate realms of power to a judiciary, legislative and executive is, inherently, republican in nature.  While the roles of these areas were malleable and remain malleable, that they are present and distinct is easy to discern with the earliest of written agreements between King and Earls.

- Another vital concept showing up is federalism, although not named as such, the ability of local government to hold the next higher form accountable to it is one that is clearly demonstrated by Ethelred II.  In fact the power to raise armies is directly related to the agreement of those local parts of government to agree to their part of the agreement between King and Earls.  That is not a conflict between the Earls as legislative group (moderating taxes) but in a direct power relation in support of the Nation State from the sub-National level.  That and having local law givers and juries figure out if they like higher level law then puts a distinctly federal cast into a republican system, yet neither is named as such as this is just common practice of government.

These are powerful and potent concepts that the Framers of the US Constitution could rely on because they had been time-tested by 1787 having been in practice for over 600 years by then in England.  Far from being new, these were old ideas that were put into a constitutional and written framework which at once both regularizes and solidifies the practices.

What followed King Canute is the son of King  Ethelred II, King Edward the Confessor.  With the return of Edward came rising conflict between him and Godwin, Earl of Wessex, which would put England into turmoil but not open civil war.  In a matter of months the Earls would hold the King to account for the conflict between the two of them, and yet, when Godwin gets the upper hand, the Earls would then side with the King to put Godwin in check.  The idea was to keep a continuity of peace within England and to put the Earls in the position of being able to veto the strongest amongst them and the King as well.  These conflicts left the Kingdom weakened internally, even after the death of Godwin, with problems between the sons of Godwin with the earl of Mercia (which had been a Kingdom prior to its absorption into England).  Harold would have to deal with not just Tostig (Godwin's son in Northumbria), but in the year after his father's death in 1066 the agreement he had with William in Brittany and a Viking incursion near York.

Of these things only dealing with William at Hastings would prove to be too much and some of that brought on by a prior agreement with William after Harold had been shipwrecked traveling between Brittany and England.  The agreement to have William in power after the death of Edward the Confessor put into motion what would be known as the Norman Conquest under King William.

King William attempted to put a ducal system of nobility on top of the Earl/shire system that was then currently in place in England and even utilized the past agreements system to attempt a reconciliation amongst the Earls.  Although a few Earls did sign on to backing William, many did not and they found themselves chased down, executed or went into self-exile and lost power.  The Harrowing of Northumbria would be one of the worst parts of this and it would lead to a devastated region in England that would be later recorded in the Domesday book commissioned by William.  This is one of the great books that accounts for all property in England down to the last horse, cow and pig and is done so that King William can get an idea of just what sort of tax base he is dealing with.

By force of arms the Earldoms went down and the ducal system established military strongpoints under Dukes from William's extended family in Brittany.  With the ducal system also comes a different system of law enforcement, that being the position of sheriff who is also the tax collector for a given area under a Duke.  Along with these new systems would come the concept of the King's Land which would have different laws over it than the rest of the lands of England.  The King's Land laws would expand under William's son, William Rufus, so that even scaring a deer in the Royal Forest had a relatively nasty punishment attached to it.  During the reign of King William II the amount of land held in the King's name went up to 25% of all the land in England.

Under William II there would also be strife between the Church and the King as the King had the power to appoint Bishops and Arch-Bishops and when he decided not to fill a position, then the land and wealth fell into the hands of the King.  This was not the only concern of the Church as William II also kept close company with a male friend, produced no heirs and for all his martial skill appeared to be homosexual.

Thus amongst the common people and even yeoman class, there were problems with William II that started with the changes to the tax system via sheriffs and the encroachment of the King's Land via the Forestry Laws that were making life difficult for many.  Amongst the aristocrats and lesser nobility, the taste of what William I had done coupled with the evident land grab of William II put them ill at ease and an uncertain succession was in no one's interest.  And the Church had problems both on spiritual and practical grounds.  These were all problems which, no matter how well run other affairs of State were run, pointed to near-term problems that were not being addressed and some few were being made worse.  The death of William Rufus during a hunting accident left only his brother, Henry son of William I, as the closest claimant to the throne, although other cousins in Europe could also lay claim via kinship to William I and his wife.

If you were Henry faced with this, what would you do?

Would you continue the path of William II, your brother who had his problems put on display and was gaining ire amongst many classes in the populace?  This was the European path and it wasn't working that well in England.  Yet a stern and capable new King might just be able to solidify those gains and try to change the centuries old culture of England in two generations.

Would you try to put a cap on things and let an able relative take the throne (and the blame) for the turmoil that was coming and try to stand aside to save your own skin and, perhaps, offer a return to things only a bit less bad than they were under your brother's reign?

Would you take to the throne, and abase yourself before the Church (thereby crippling the treasury, or what was left of it at any rate) and then try to persuade it to be your interlocutor with the people?

Would you try to pull a Canute, re-affirm the power base amongst the nobles, withdraw much of the Forestry Law and coverage, assert the traditional role of the Church and undo what could be undone of the tax system your father put in place?

The time to act on any of these was short as even a relatively good sized war meant that the closest relative with a claim would be no less than a month away (with good travel) and no more than 6 months away (with major problems).  What Henry did was not only pull a Canute, but actually print up copies of what he was going to do and sent those to be read out in every town and village in England.  This would become The Charter of Liberties of Henry I and it would not only repeal many laws and tax systems, but also ensure the rights of the minor nobles and aristocracy for inheritance.  By re-establishing the seignorage on coin minting (if you brought in an ounce of gold you typically had to pay a certain part for the minting, or the King took that up as part of the cost of running things via taxation), assuring coinage, and re-establishing much of the traditional governing system, King Henry would, at a single stroke, win over everyone from the commoners to the Dukes and by utilizing the Church during his confirmation ceremonies and moving to restore Church lands and nominate Bishops and Arch-Bishops, put himself in good graces with the Church.  All of that meant that any other claimants to the throne faced a unified England under King Henry.

The Charter of Liberties of Henry I became heavily reprinted and later Kings would assure everyone that they held to that Charter which protected the liberties of conscience for worship, regular coinage, protection of property at least down to the level of Baron, and the local application of law to which all the aristocrats and nobles were also held accountable.  The framework that The Charter of Liberties of Henry I established became the template for the Magna Carta and for all later coronations of Kings and Queens of England and Great Britain.  It holds key pieces that would be put into the US Constitution and are recognizable as such.

One of the first is uniform coinage, which is a traditional way to assure a population that their trade is well regulated via consistent weights and measures.  That power was given to the US Mint and to a bureau of standards, and while part of many other legal systems, it remains a touchstone for the US especially now that the currency is no longer tied to precious metals.  A traditional way to re-establish a solid economy is to lay fears of devaluation to rest and that remains as true today as it did in the time of Henry I.

Another is the enshrining of the law above all people in the land, including the King.  Due process of law for inheritance and becoming penniless are given as powers to the US Congress via the Constitution and the concept of regularity of the law in its drafting and consistent application would become a major point in the centuries to follow in England.

Traditional, that is to say consensual, taxation is restored giving local government a say in the overall amount that could be taxed in the Nation.

Withdrawal of much of the Forestry Law becomes a major relief for the common man in England so that spooking deer did not cause one to be maimed, and was a major lesson to the Framers of the US Constitution in the necessary limits of land held by the Nation's State to require asking for its use and to enshrine that the land of an individual State actually belonged to it as it had to consent for usage for the common good by the National government.  It is an example of restriction of government from becoming onerous and abusive via confiscation of land by fiat and one that was worth regularizing in the US Constitution.

The Charter of Liberties of Henry I is not an actual constitution so much as it is a written agreement to a contract.  The people, as represented through their local and regional government, sets forth grounds for which they will be governed and restrictions on actions by the King, and the King then must agree to those terms so as to govern the people in the way they wish to be governed.  In fact all constitutions written by the people and proclaimed by them in overwhelming majority is just that:  a contract that any who wish to govern must abide by.  There are sham constitutions, those foisted upon a population by a ruling elite that then have no intention of abiding by it, or of having written themselves so many powers that the people of a Nation have no representation in government.  That is par for the course with human nature, after all.  What the US Constitution, in particular, has is a depth of understanding of just where the power for such a government comes from and that those who would govern are ultimately held accountable for their adhering to the contract by the people and their representatives.    The recourse for abuses and excesses is to find those that will stop such abuses and excesses and go back to the core basis of the constitution and re-affirm it not just in word but in substance.

The lesson of Henry and even Canute is that this is best done quickly, major portions of the abuses ripped out as fast as possible and as sharply as possible, re-affirm continuity of government so that those left out in the cold by the changes know that they don't have a recourse to change the system back, and then stick to that and pass it on as a durable lesson.  A once working government that has moved to excesses is found by trimming off the excess even if that means huge branches of the government, itself.  In return the continuity of the very basics of government tend to ensure stability, not chaos, which allows for further reforms and pruning to happen so as to get a well run and restricted government once more.  The other path, that of overthrowing the arrangement and trying to put a new constitution in place, is fraught with danger and, as Oliver Cromwell found, you often find your brand, new system emulating the old system you wished to end.  That points out that the actual requirement for continuity by a people of a Nation may actually be stronger than any new governing group or cabal may wish to think about.   Which brings into question just what it is that such revolutionaries are actually trying to do when what they end up with is little different than what they started with... wouldn't long-term reform have been a better path with less bloodshed?  And for those returning from a time of excess, there is much in the English tradition that points to less bloodshed, not more, from re-establishing a reformed government with sound and understood basis than trying to do something brand new from scratch.

Directions of political parties

USA Today is soliciting input on where the Republican Party should go in the future and, really, that is not my place to say.

What I can and do look at is the future of the entire political landscape over the next 20 to 50 years and when looking at that it does not look anything like our current political landscape much of anywhere on the planet.  As the United States has been a leader in many things, the direction that the Nation is starting to move in is one that is beginning to reflect some of the basics of why I started this particular blog: getting back to basics and seeing that the greatest power for the force of good for all mankind is the unchained individual.  To understand how this stuff works the back to basics part is necessary as I laid out in my very first post for this site.

The concept known as Federalism is embodied in the US Constitution and it depends on a moral people who will do the heavy lifting of creating society to do their job at the lowest, most accessible level to them.  That is not the government of the Nation State which is far too gross and coarse a level to deal with local matters.  There is nothing as important as moving away from the idea that a 'social contract' is embodied by any law at the Nation State level and that the 'social contract' is the agreeable form of government that the people have instituted amongst themselves as upheld in spare, even sparse, written form that delimits power to the Nation State and reserves powers to the State (the interior unit of the United States equivalent to provinces in other Nations) and the individual.  Beyond that it is a Do It Yourself concept at play that revolves around republican form of government.

A republican form of government (as opposed to the Republican Party that seems to have forgotten what a republican form of government actually is) is one that divides power internally amongst branches of government and gives them each separate and sovereign domains of power (not rights) that serve the people and act as a check and balance amongst themselves so that no branch dares to over-reach its power domain to swallow up all of government.

Future political parties are wise to mirror this system of federalism with checks and balances internal to their party structure so that no single body ends up being the 'deciding' organization and that the organization, as a whole, is led by its membership, not by party officials.

That is a very stark direction to go that is distinctly different from anything on the political landscape much of anywhere on the planet today.  Yet it is not a radical proposition, at all, as if you acknowledge that federalism is the best way to put power into mutual check with final over-ride by the people of a Nation, then it is a good direction to go for any political party of such a Nation to model itself on that objective, directly.  This is known as 'Do as You Say' and is a part of the concept of Honor:

Do as You Say.

Say what You Mean.

Mean what You Do.

If you espouse 'conservative values' and uphold the Founding era documents and the Founders, then you must back federalism to the hilt and admit that individuals are the greatest moral actors in this life and that Nation States are a mere and shallow reflection of them.  Any system for any form of human activity that vests unchecked power and authority into few hands without immediate and stiff checks and balances, with limitations, is an authoritarian one.  Political parties that become authoritarian, that have governing organizations that create rules to reflect the impetus of those doing the governing is no longer trusting the members of the party for direction and living by an example that admits that power must be recognized first and foremost at the lowest levels of the organization.  That is going Back To Basics and putting Honor into what you espouse.

I've given outline as to how this works in the modern era in Dawn of a New Era and this means that modern ideas must be incorporated into a party so that its membership can better organize at the lowest levels so as to tell the highest levels what to do based on local concerns.  Most of that will be: Mind Your Own Business.

The drivers for the New Era are ones that address the capability of the individual to process information and network with each other so as to shift data to information to knowledge and personal wisdom at an increasing rate of speed over time.  As individuals do this they will remove older power structures between themselves and higher levels, sharing information with their like minded fellows and from that process will emerge a new and slimmed down, less powerful party system.

An end result is one that I outlined within my first ten posts in what such a party will look like (called The Jacksonian Party as there is no other name I could actually put on it at the time).  This is a party concept that doesn't follow President Jackson, but follows what those who put him into office had to deal with on a daily basis and how that social idea became something that spread and prospered in the United States.  This is a cultural phenomena and it leads to end-states driven by multiple factors to reduce the size, scope and power of political parties over time.  A result is a decentralized, disintermediated political structure in which a political party is a mere framework of ideas that helps individuals as candidates to run for office.  A requirement is that the actual party structure, and those helping to govern it, are given very little money and no say in individual candidates at all.

Again, to repeat that: the governing organs of a party are given no say in individual candidates and no money to back 'preferred' ones at all.

Such a political party is run via the agreeable laws and by-laws that members agree to adhere to. Those are created at the most local level and use a federalist form of system to find across-the-board topics suitable to higher power levels of office that do not infringe on the rights and powers of individuals nor upon lower government structural levels.  Inherently federalism recognizes the sovereign power of the people through its compacts to create government and when government is created at any level it is given a separate and sovereign domain within that sovereign power that may be checked and balanced, but cannot be repealed by, other parts of government or other governments at different power scales unless agreed-to by the people.

We call these social contracts Constitutions and within the United States each State has one.  All States agree to the powers granted to the Nation State government as they are the signatories to the US Constitution, and that sign-off is backed by the people of that State as voiced not just via their government but by themselves in the majority.  Similar is done at the State level although States may have different requirements for amending their constitutions so long as it is in a republican form of government.

Adhering to such structures is something that is done by individuals as part of their daily lives, and to that end the political parties they form will reflect that individuals are capable of leading their own lives with minimal outside government interference.  When citizens are trapped by a web of laws, rules and regulations, the object of the rule of law is lost which is a self-ordered society that has citizens holding each other to account for their actions.  Laws are a framework of accountability for actions, not a coercive means to force people into certain behaviors but as a system of punishments against behavior destructive to the social order.

This does not create the modern socialist/progressive concept of 'the personal is the political' but leads to an understanding that politics is driven by individuals and is reflective of them, and that such politics as are necessary are just that: necessary and not a force for good.  Positive morality is created by individuals and political parties must respect that and must not seek to foster the use of negative powers to that end.  Punishment is punishment, it is not the moral and social good in and of itself and only through the use of the positive powers of individuals is that positive moral life created.  Removing negative actors from society for punishment is the necessary function of that organ of society we call government and it is not the brain, as organs go, but the more process oriented ones that remove unwanted or dangerous items from the body for the overall health of the body of society.  The idea of making the personal into the political creates a cancer within the organs of government as it seeks to cater to each and every individual want, not address the needs of the body, and soon those organs are crowding out the functioning of the body of society and killing it.

As all of these things are based on self-evident truths, that all men are created equal and endowed with their Creator with certain unalienable rights and amongst these are Life, Liberty and the Pursuit of Happiness.  Indeed all rights and powers start with the individual and none accrue to higher orders of government that are not already within individuals.  There is no power or right that accrues to any government of any society and that society is, itself, created when individuals agree within themselves to forebear the use of negative powers and rights to save protect their families, their homes and their very selves.  Society must reflect this self-governance, abide by it and recognize that self-government is the highest of all forms of government invented amongst men as it is the most powerful as it uses the power of restraint to create good amongst men.

In less than a century (indeed, perhaps less than two decades) it is this power, unleashed by the distributive forces of knowledge amongst men that will reshape the political and social structure not just of the United States but of the world and all mankind.  As we step into an era where the power of the individual to self-govern becomes paramount, this puts the positive liberties of man to create a moral and just society with limited government as an end product of this recognition, not a goal or end-state by any means.  Our politics will remain as divided as ever amongst Nations as all Nations have the sovereign right of their people to have a free and independent society that has, amongst the powers of the Earth, the ability to create government to suit them.  These things that are representative of such differences we call Nations and they start not at the Nation State level but at the level of family, home and hearth.

Any political party seeking to create a power over all men that isn't God but mere government is seeking an Empire and tyranny.

And their day is drawing to a close as the Dawn of a New Era begins.

My advice to the Republican Party, indeed all political parties: get with the program or your days are numbered.

Sovereign Domains

In examining the decision in the Obamacare decision (and I will use the pdf page numbering, not that of the Court), it is important to keep in mind what I have gone through in two prior posts about Sovereign Powers and the domains of them.  I utilize the works of Fred Saberhagen's SWORDS Series to illuminate this, and it is worth going over the functions of Swords as each of them is a Sovereign Power and that defines their Domain of power:

THE SONG OF SWORDS

Who holds Coinspinner knows good odds

Whichever move he make

But the Sword of Chance, to please the gods

Slips from him like a snake.

The Sword of Justice balances the pans

Of right and wrong, and foul and fair.

Eye for an eye, Doomgiver scans

The fate of all folk everywhere.

Dragonslicer, Dragonslicer, how d'you slay?

Reaching for the heart in behind the scales.

Dragonslicer, Dragonslicer, where do you stay?

In the belly of the giant that my blade impales.

Farslayer howls across the world

For thy heart, for thy heart, who hast wronged me!

Vengeance is his who casts the blade

Yet he will in the end no triumph see.

Whose flesh the Sword of Mercy hurts has drawn no breath;

Whose soul it heals has wandered in the night,

Has paid the summing of all debts in death

Has turned to see returning light.

The Mindsword spun in the dawn's gray light

And men and demons knelt down before.

The Mindsword flashed in the midday bright

Gods joined the dance, and the march to war.

It spun in the twilight dim as well

And gods and men marched off to hell.

I shatter Swords and splinter spears;

None stands to Shieldbreaker.

My point's the fount of orphans' tears

My edge the widowmaker.

The Sword of Stealth is given to

One lonely and despised.

Sightblinder's gifts: his eyes are keen

His nature is disguised.

The Tyrant's Blade no blood hath spilled

But doth the spirit carve

Soulcutter hath no body killed

But many left to starve.

The Sword of Siege struck a hammer's blow

With a crash, and a smash, and a tumbled wall.

Stonecutter laid a castle low

With a groan, and a roar, and a tower's fall.

Long roads the Sword of Fury makes

Hard walls it builds around the soft

The fighter who Townsaver takes

Can bid farewell to home and croft.

Who holds Wayfinder finds good roads

Its master's step is brisk.

The Sword of Wisdom lightens loads

But adds unto their risk.

(end of the song)

Federalism is a means of dividing Sovereign Power into different Domains and then placing those Domains in whole or in part in different parts of government.  The US Constitution tells which branch of government gets which power, and that power is part of the Sovereign Power: it is that Power of a Nation expressed via its State through its government.    All Nations are equal in the Sovereign Power, there is no greater or lesser amongst them as they all express that Power because they are Nations.  Like individuals some Nations are larger than others, some have greater resources than others, and some are blessed by geography while others are accursed by same.  These things, like our own natural liberty in the realm of individuals, do not matter as all Sovereign Powers are equal amongst all Nations.  Indeed the Sovereign Power is bound up with the very individuals that create the Nation as a Nation only exists where there is the basis for it and that basis does not start on high, with the Nation, but on low with marriage.

When looking at the Obamacare decision it is necessary to also remember that the Domains of the Sovereign Power to each branch of government are discrete: they are defined and exist within a defined space and are separated from each other.  In this distribution within a federalist system there are 'checks and balances' that are not only amongst the three branches of federal government but also between the federal government, the State governments and the people who are the source of the power that is being used by these governments.

For Chief Justice Roberts there is a major decision that was made in the following way in the second page of the decision:

The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a), so that those subject to a tax must first pay it and then sue for a refund. The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate. But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit. Pp. 11– 15.

There is a difference between paying a tax and paying a penalty: a tax is levied upon a transaction while a penalty can be levied upon an action alone not just a transaction.  Both are attached to doing activities, however, while the 'mandate' is levied against those doing nothing.

These topics cover two separate Domains of Power granted to Congress, which are the taxation power and the commerce regulation power.  Let us take a look at these powers in the Constitution in Article I:

Section. 7.

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

[..]

Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

[..]

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

[..]

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

[..]

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section. 9.

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

[..]

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken. [Amendment XVI see below]

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

AMENDMENT XVI

Passed by Congress July 2, 1909. Ratified February 3, 1913.

Note: Article I, section 9, of the Constitution was modified by amendment 16.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Congress gets Domains of taxation and regulation of commerce and they are discrete and differentiated in that taxation (and any other revenue bills) must start in the US House of Representatives.  Penalties can be non-monetary (such as prison sentences or hard labor) and those can start in either House of Congress, but anything that requires taking money from the people or the States must start in the US House of Representatives.  Thus the labels are important as those labels that the US Congress assigns for taxation indicate that such bills that garner revenue started in the US House of Representatives, not the Senate.  It may seem a minor quibble, but the Affordable Care Act started in the US Senate, which can neither levy taxes nor have penalties with monetary revenue generation for the federal government.  If the argument is that this is a tax, then the bill should be struck down due to its lack of legitimate originating body.  Within the US Congress the people have determined that it is only the House which can originate such bills (they can be started in the Senate but then must be redone as a House bill, passed in the House, then passed in the Senate as a House bill).

As the US Constitution is a limiting power system (as the power outlays in the main body and Amendments IX and X enforce) there is a limitation in the power of taxation:  "...provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"

This is the Common Defense and General Welfare clause and it relates directly to taxes, duties, imposts and excises for generating revenue.  In referring to 'the United States' instead of 'the several States', the taxation power relates to the entirety of the Nation taken as a unit: it is not a power that allows it to be broken down to separate between individual States or amongst the people.  When Chief Justice Roberts refers to "The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate." he is trying to construe that health care insurance is something that is treated for the Nation as a whole and yet there are other ways to garner health care other than through insurance.  Health care is garnered  by and amongst individuals who live in States, and those States each have separate jurisdiction over those things not delegated to the federal government, and it can be done through any means an individual wishes which includes sole reliance on charitable institutions.

As the Common Defense and General Welfare are put together, they are considered a single object defining the taxation power.  The taxation Power Domain starts broad in Section 7, but is refined in Section 8 so that it cannot be used tyrannically.  Because both Common Defense and General Welfare of the United States relate to the Nation as a single whole, any taxation power is administered equally across all States as a single whole.  Taxes are levied upon activities and they are in a clause in Section 8 that deals with activities of trade: taxes, duties, imposts and excises.

Even further there is the forgotten part of the General Welfare clause that is added to Common Defense and General Welfare: "...to pay the Debts and provide for the common Defence and general Welfare of the United States;"  By using the word 'and' there is the direct connection of these three objects: Debts, Common Defense, General Welfare.  These are treated as a single object due to the 'and' between them: taxes, duties, imposts and excises are to be collected only for these things.  The Debt of the United States is its federal government's debt.  Similarly the running of the Common Defense for the Nation is done by the federal government.  The General Welfare of the Nation is done via external trade and assuring regularity of internal trade amongst the States which is a power granted to government.

Does healthcare fall into any of these categories?

1) It does not fall into the Debt.  It is incurred by individuals in the States, under the regulatory apparatus of the States.  Healthcare does not fall into this object category.

2) It does not fall into the Common Defense.  Healthcare is done as in internal and individual purchase for individual needs for medicine, medical examination, medical care and medical treatment.  If a pandemic requires federal intervention because it acts like an invading enemy, then the US military will deal with it.

3) It does not fall under the General Welfare.  The General Welfare deals with trade that is between Nations or between States and is attached to the regularity of imposts, duties, and excises, which are all specific taxes dealing with trade.  It is their specificity to trade, and the negative power structure of the overall Constitution that limits the federal government to these trade based forms of taxation for trade (otherwise they would just be taxes without restriction within this Domain of Power).  As healthcare is purchased locally and is not an item of inter-State trade (until such time as States wish to regularize this amongst themselves as the several States), then there is no entry point to tax it at the federal level.  If it was an item of inter-State trade it would be limited to duties, imposts and excises, not other forms of taxation.

In each category for the Domain of the Taxation Power granted Congress, health care is not seen as part of its Domain because it is not for the Nation taken as a whole or for the trade amongst States either.  In trying to set up regulatory law on health care, the Congress has created law where it has no Power Domain.  Because there is no Power Domain for Congress to exercise power, there can be no definition of a 'shared responsibility' as that responsibility is, indeed, not shared but falls to individuals and the States.

Yes this is a condemnation of Medicare, Medicaid and any other attempts for the federal government to have anything to do with healthcare.  That includes offering tax write-offs and subsidies via the tax code.  By having no Power Domain in this realm, Congress has not the power to act.  For the Affordable Care Act to be a tax it must have the proper starting point (the US House), the proper subject (the United States as a unitary whole), the proper object (Debt, Common Defense, General Welfare) as taxation is the activity.  This is due to the SVO sentence structure of the English Language and when reading the US Constitution the drafters were mindful of their language and the internal logic of the sentences so that they had proper Subject, Verb, Object agreement.  For the Affordable Care Act to have its implementation be the Verb of taxation it must have the proper Subject and Object to complement it.

It lacks those things as a tax.

In this I have disagreement with Chief Justice Roberts: he cannot parse out a sentence in the US Constitution.

As Chief Justice Roberts didn't reference the Commerce Clause in regarding taxation, it is worth noting that 'the several States' wouldn't cover the Affordable Care Act as there are no 'several States' seeking to implement a system of regularizing health care amongst them.  Even if there were States doing that and the federal government had any role to play, it would be limited via the explicit language in the General Welfare Clause to duties, imposts, and excises.  Thus all Clauses dealing with 'amongst the several States' do not apply to the Affordable Care Act.

Do note, however, that the regulatory part of the of the Commerce Clause would allow for penalties up front, such as trading in contraband goods.  Penalties in the Commerce Clause can go directly to non-monetary ones, while penalties in taxation are only for the non-payment of taxes: taxes are not penalties but a cost put on the activity of trade.  Taxes are the overhead of trade, in other words.  When Congress speaks of penalties, they can be applied immediately to illegal trade, while penalties for taxes are for non-payment of taxes.  This is a distinction with a difference as the penalties show up at different phases of the activity involved and have different types of consequences and severity within the limits of the separate Domains of Power.  Both Domains do cross on activity by type, yes, but they have different functions based on types of activities: it is very hard to tax illegal trade thus it requires a different set of penalties, while payment of taxes is done on legal trade and the non-payment of taxes (the inactivity of paying the tax overhead) has the stated purpose of generating revenue , first, and penalizing non-payment, second.  Thus one can garner penalties for illegal trade (or legal trade done illegally) and the other is for legal trade, done legally but not garnering the given tax overhead for that legal trade.  In the case of legal trade done illegally anyone doing that can face direct penalties for doing same and have tax non-payment liabilities also show up.  A single action can be a breach of two separate Domains of Power for different reasons.

A further restriction on the Tax Power is:  "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken."  If the Affordable Care Act is a capitation tax that is apportioned by any other means than by Census or income (Amend. XVI) then it is not given to be within the Tax Power Domain.  The Affordable Care Act offers up this 'tax' only to those who do not purchase health insurance: it is not done by Census or income.  Therefore if the basis for the Tax Power Domain is used, then it cannot be done via this Clause, either.

On page 5 of the decision... amazing how much analysis you can pack into a single paragraph on a single page, isn't it?  This section deals with Chief Justice Roberts and Justices Breyer and Kagan:

(a) The Spending Clause grants Congress the power “to pay the Debts and provide for the . . . general Welfare of the United States.” Art. I, §8, cl. 1. Congress may use this power to establish cooperative state-federal Spending Clause programs. The legitimacy of Spending Clause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs. Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17. “[T]he Constitution simply does not give Congress the authority to require the States to regulate.” New York v. United States, 505 U. S. 144, 178. When Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism. Cf. South Dakota v. Dole, 483 U. S. 203, 211. Pp. 45–51.

Notice how the Justices left paying for the Common Defense out of the Clause?  Yes they are trying to make a point but the Object of the Clause is compound and self-reinforcing giving it added definition, thus refining the scope of the power.  And what is the view for not upholding the Medicaid changes?  Fascinating to read this taking the entire ACA into consideration "The legitimacy of Spending Clause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs."

The entire ACA is attempting to force a large change in how each State operates.  If the States don't agree to it then, like in Medicaid, its legitimacy is questionable.  Mind you, this is reading the exact same programmatics which is the ACA into changes into Medicaid which is a federal to State system of money transfers with strings attached.  Just like ACA.  The ACA goes further in purporting power to the federal government to set up 'health care exchanges' in States that don't voluntarily agree to set up their own.  By the logic of the 3 Justices involved, that would be outside the bounds of the Constitution.

Do these Justices even bother to think about what they are writing and the context in which they are writing it?  Talk about compartmentalized thinking...

At that point, due to the similarity of structure and Power Domain that ACA has with Medicaid (voluntary agreement structure State-federal), then the obvious way to get a 7-2 decision to strike down the ACA is just not to agree to it at the State level.    That is because the ACA does foist off a lot of structure onto the States without trying to get the States to agree to it, per State.  That is the same structural problem with Medicaid that has just been ruled out of bounds for the federal government to do.  And the moment one State opts out of all of the ACA, then it is the federal government no longer treating the States or the people equally which then should bring down the entire structure completely.

Mind you, if the States started doing that with Medicaid, something similar might be in store for it, as well.  Really, with these three Justices on the five part of 5-4 striking down, and the other 4 wanting a complete striking down, the first case with ACA of a State just refusing it entirely should get you that 7-2 majority for the ACA, which would invalidate the entire structure due to equal application of the law and this not being something set up amongst the several States but put upon the States by the federal government.

So, by page 5 on the upholding side, there is the Chief Justice being unable to parse a sentence, and he is joined by Breyer and Kagan in being unable to see the similarly structural qualities of the ACA to Medicaid, and the result of what would happen if a State does not voluntarily accept the ACA... which is the point of the entire case brought by the States.  Hmmmmm... just how stupid are these people in black robes, anyways?

Hey, I haven't even gotten to the logical inconsistencies around page 38 of the pdf.  You don't have to go that far to find stuff that is most disturbing in this decision.

Since so many are looking at a more general preface on page 12 of the pdf, lets see what the general view of the Court is:

Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders. “Proper respect for a co-ordinate branch of the government” requires that we strike down an Act of Congress only if “the lack of constitutional authority to pass [the] act in question is clearly demonstrated.” United States v. Harris, 106 U. S. 629, 635 (1883).Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

May it be said that it is not the job of the Court to save the politically chosen representatives from their own inability to actually craft a law and that it is also not the job of the Court to shift the Power Domain of an act of Congress from one venue to another as the origination of that power is not that of the Court but Congress.  Trying to change those Power Domains to make a law 'work' is not the job of the Court: it is the job of the Court to make sure that the laws crafted within a given designated Power Domain of Congress or the President are Constitutional.  It is not permissive reading that is going on, but changing of Power Domains that are not given nor granted to the Court to do.

Yes those labels do have meaning and designation of which Power Domain the crafted laws is made to fall under.  The Court is no more given nor capable of doing that than is the President: only Congress can do that.  If they didn't do it right, the idea isn't to change the Domain but to send it back to Congress and tell them to do it right.

The Court cannot protect the people from our choices and they cannot shield Congress from its own incapacities and must point them out so that the Nation can get Constitutional laws drafted by the Congress in the proper Houses of Congress, properly ratified that do not seek to impose power in Domains not granted to the federal government.  When labels are changed by the Court to save the Congress from its incapacities neither the people nor the Nation are served and the Court has failed to do its job as it is given to do.  This isn't about policy but simply doing the job one has volunteered to do in the way you have agreed to do it.