Plain English. The 5th Amendment is a single, compound sentence outlining requirements for due process.

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.

Earlier drafts of today’s post contained an analysis of the construction of the entire amendment. It turned out longer than expected, and was hard to read. For the sake of brevity, I am focusing on the middle portion of the amendment that is relevant to my point, the more extensive list of things that government may not do.

…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.

In whole, the 5th Amendment is often framed in the context of the justice system. I believe, however, that the plain language of the Amendment means much more than this. It says the government cannot do A, B, C, D, and so on, “without due process of law,” making it larger than criminal justice itself, encompassing a prohibition of takings that result from arbitrary acts. The intention behind putting the prohibited into effect never enters the equation – if government takes something from someone, it MUST do it with due process of law (even tax law), not with generalized policies that have the same result even under the best of intentions.

For monetary policy, the power for the Federal Government to coin and regulate the value of money is explicitly delegated to Congress in Article I in a breathtaking sweep of authority to coin something it calls money and regulate its value. Due to lack of definition of what money is in the Constitution, Congress could quite possibly define buffalo chips as money if it keeps herds of buffalo. But because the established rule of construction is to interpret a clause in a document to as to allow meaning to the rest, this does not mean that government may use its coinage authority in an arbitrary and capricious way that results in individual deprivation of life, liberty, or property and be constitutionally consistent at the same time, regardless of why it does what it does or whether it has any reason at all.

The process of law regarding the result that the Fed’s FOMC is to achieve with money policy is this:

The Fed “shall maintain long run growth of the monetary and credit aggregates commensurate with the economy’s long run potential to increase production, so as to promote effectively the goals of maximum employment, stable prices, and moderate long-term interest rates.”

Of course, context is everything to understanding what it means; and the context for this mandate is in the title of the Act, The Full Employment and Balanced Growth Act, and in Act’s synopsis that states that the purpose of the Act to “assert the responsibility of the Federal Government to use all practicable programs and policies to promote full employment, production, and real income, balanced growth, adequate productivity growth, proper attention to national priorities, and reasonable price stability.

An Act to translate into practical reality the right of all Americans who are able, willing, and seeking to work to full opportunity for useful paid employment at fair rates of compensation…

…to assert the responsibility of the Federal Government to use all practicable programs and policies to promote full employment, production, and real income, balanced growth, adequate productivity growth, proper attention to national priorities, and reasonable price stability…

In the Fed’s Blue Book justification for explicit inflation targeting (2005), it says that the intention to implement the policy was to make retirement planning more predictable; while also noting that this will result in higher levels of unemployment.

The logical inconsistency of intending for the hypothetical average person to have more predictable retirement planning with the understanding that the policy intended to do this will cause higher levels of unemployment when the labor participation rate for those aged 24-55, at its peak, was in the high 80 percentile is quite striking and certainly begs the question of how many would have their retirement plans blown completely out of the water in exchange. Never mind entertaining ideas about what these people may do to feed themselves and their families either in the short or longer run because what happens individually to the higher levels of unemployed isn’t mentioned. Even under the assumption that the higher levels of unemployment may be churn rather than static, taking turns in the unemployment line doesn’t really help us have more certain retirement plans or provide for short-term needs, and applies an opportunity cost.

Outside of the problematic logic behind the explicit inflation targeting policy outlined internally at the Fed in 2005 and operationalized in 2006, but not released to the public until 2011, the stated policy focus together with known side effects of higher levels of unemployment is not consistent with the spirit or letter of the law on monetary policy that says nothing about promotion of retirement planning certainty or a Congressional desire to tolerate higher unemployment in exchange. This implementation of this policy outside of the law was an arbitrary act;  one that is arguably equally unjust to providing immigration hearing summons without the appointed date, time, and location printed on them. Yet even now, after inconsistency between the policy and the law, and the arbitrariness with which it was implemented has been pointed out by people smarter and more influential than me, the policy is alive and well at the Fed with debate over it scarcely raging.

 

 

 

PS: Regarding the immigration controversy in California, there has been a constitutional question raised regarding whether Congress has the authority to make laws pertaining to who may be admitted into a state on the basis that Article I, Section 8 contains only the power to “establish uniform rules of naturalization.” But those raising this question are likely overlooking Article 1, Section 9 that delineates who gets to “let people in.”

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.

Immigration WAS a function of federalism concerning states that existed when the Constitution was ratified until 1808. After 1808 it was federalized.

Over time, many compelling arguments regarding “gray areas” in the Constitution have been raised to debate. In my view, this controversy isn’t anywhere near gray; and it isn’t clear to me how deciding which government has authority over immigration could be any clearer or easier to figure out. Where it impedes and obstructs rather than simply declining to cooperate with immigration enforcement, California is out of bounds of acceptable behavior as a member of the Union on account that it did not

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