Atlasia Law Journal

[Junkie]

The Atlasia Law Journal will be a scholarly journal devoted to discussion of court decisions and the statutes they review.  The Journal is nonpartisan.  The thread will remain open for readers to post their opinions of the articles posted.  The editors remind readers that no disrespect for the Courts will be tolerated.  Articles by other writers on statutes and/or court decisions may be pmd to me for approval.  With that, the first article:

Got Mens Rea?

In common law, there exists the Latin phrase actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty unless the mind be also guilty".  In other words, a guilty act, or actus rea, must be accompanied by a guilty mind, or mens rea.  In Morissette v. United States, 342 U.S. 246 (1952), Justice Robert Jackson wrote that crime was "generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand."  Without some level of intent, an act could not be criminal in nature.  Adopting this standard, the unanimous Morissette Court, was holding that because of due process, statutes dealing with harm to the State, persons or property required the proof of a criminal intent to commit the criminal act.  Thus, most criminal statutes include some sort of "intent" element: intentionally, recklessly, negligently, etc.  The Morissette Court did acknowledge an exception to this requirement could be found in public welfare offenses, such as building codes, health laws, and food and drug laws.

This is of note when one considers Section 1 of the Consolidated Criminal Justice Act, F.L. 15-1 (including amendments) and the Privacy Protection Act F.L. 31-18.  For the purposes of this article, we will not address the crimes detailed in the Acts of Treason, Section 2 F.L. 15-1.  Section 1 of F.L. 15-1 and F.L. 31-8 detail a total of eight crimes.  They are:

1. The impersonation, or attempted impersonation, of another Atlas Forum member on the Atlas Forum. F.L. 15-1, Section 1 Clause 1

2. The "hacking" or taking over control of another Atlas Forum members personal account without their permission. F.L. 15-1, Section 1 Clause 2

3. Voter fraud, defined as the creation of identities other than ones primary identity in Atlasia and subsequently entering this identity into the tally of registered voters. F.L. 15-1, Section 1 Clause 3

4. Posting pictures, other media, or links to the same of a pornographic nature on the boards provided for the purposes of Atlas Fantasy Elections. F.L. 15-1, Section 1 Clause 4

5. Maliciously editing the AtlasWiki to remove legitimate content or create off-topic pages. F.L. 15-1, Section 1 Clause 5

6. Posting threads on the boards provided for the purposes of Atlas Fantasy Elections of a sexual nature that contribute nothing to political or philosophical discussion.F.L. 15-1, Section 1 Clause 6

7. The performance of the duties of a cabinet official or deputy cabinet official without proper promotion or appointment. F.L. 15-1, Section 1 Clause 7 as amended.

8. It shall henceforth be a punishable crime in Atlasia to publicly post the contents of private discussions, whether by internet messaging, personal message or other forms of personal communication, without the consent of all parties involved in said correspondence. F.L. 31-18, Section 1 Clause 1.

As one can see, of the eight criminal violations included in these statutes, only one has a mens rea element.  That is "editing of the AtlasWiki" as defined in F.L. 15-1, Section 1 Clause 5.  In order for the government to prove an individual has violated this statute, it must prove that the individual did so "maliciously."  Interesting to note, the statute fails to define "maliciously."  One can only assume that the Senate intended for the term to be defined by common usage or by common law.  All other statutes are without an element as to an individual's mental state, thus making them "status" crimes.  As "status" crimes it does not matter whether the defendant in question intended to commit the crime, only that they did so.  This appears to be in contrast to the reasoning of Justice Jackson in Morrissette.

Consider the outcomes in two Atlasian criminal cases.  In Atlasia v. Jesus, 2007 Atl. S.C. Supp. 1, then Chief Justice Texas Texasgurl found the defendant not guilty of "editing of the AtlasWiki in violation of F.L., Section 1 Clause 5.  Looking at the court transcript, it was not questioned by the defendant as to whether he committed the crime.  Rather, in the eyes of the Court, it came down to whether it was committed "maliciously."  The Chief Justice stated that while the defendant committed the crime, she "could find no malicious intent here at all, misguided perhaps."  Thus, while in the eyes of the Chief Justice, Jesus had committed the "evil act," without the appropriate "evil mind," the defendant could not be find guilty.

However, in Atlasia v. Giovanni, 2010 Atl. S.C. Supp 1 (upheld in Giovanni v. Atlasia 2010 Atl. S.C.2d 1) Justice Marokai Blue found the defendant of voter fraud in violation of F.L. 15-1, Section 3.  Justice Blue stated that while the court found no "evidence that Giovanni's actions had any malicious sort of intent or intent on skewing the elections, even if his actions are plainly illegal."   Thus, in this instant, due to the formulation of the criminal statute, the defendant was guilty, despite a specific finding of the court that the defendant had no "evil intent" to go with his "evil actions," to use the words of Justice Jackson.  Interestingly, in this ruling, Justice Blue almost seemed to suggest two different mens reas, "maliciously" or "with intent to tamper with an election," that clearly could be used in this statute.

Now perhaps based upon the unique nature of Atlasian society, these criminal statutes could only be written in this fashion.  However, one can only wonder whether Justice Jackson would see any "due process" in such a society.

[Badger]

Me likey a LOT. Not just the article, but the whole concept of an Atlasian law review journal. Awesome idea, especially if you can keep up with it.

Perchance, sir, would you be among several other posters on the forum who are part of (or studying for) the real world legal profession?

[bullmoose88]

Me likey a LOT. Not just the article, but the whole concept of an Atlasian law review journal. Awesome idea, especially if you can keep up with it.

Perchance, sir, would you be among several other posters on the forum who are part of (or studying for) the real world legal profession?

Ditto

[Sam Spade]

Good stuff.  I wholeheartedly approve.

I actually have a lot to say about the criminal statutes in Atlasia (some of which might come across as quite surprising), but in my position I can say very little except when the case arises.

I think the reason why mens rea is lacking in most of the crimes punished in Atlasia has to do with the difficulty of proving it more than anything.

I hope that the HAEV ruling that is forthcoming will produce much discussion.  I suspect it will.

[Associate Justice PiT]

     I thoroughly enjoyed your inaugural article. I look forward to more in the future.

[Purple State]

This may actually be the missing educational piece of Atlasia. Learning how politics and politicking works is great, but also understanding how Atlasian law and common law are structured would actually be really cool. Well done and keep up the excellent work.

[Kaine for Senate '18]

This is awesome

[Junkie]

The Senate with the Power.  What Power?

It is well established that "for the Senate to legitimately exercise power under the Constitution, such power must be expressly allocated within the Constitutional text itself."  Peter v. Atlasia, 2009 Atl. S.C.2d 4 citing Fritz v. Ernest, 2004 Atl. S.C.2d 6 See Also Atlasia v. States Rights, 2005 Atl. S.C. 2d 1 (held that the Marriage Equity Act was constitutional as the Constitution expressly granted the Senate the power to legislate marriage in Article 1, Section 5, Clause 5); Bono v. Atlasia II, 2005 Atl. S.C. 2d 2 (very complex decision affirming various statutes are upheld and struck down based on whether the power was granted to the Senate in the Constitution); Boss Tweed v. Atlasia, 2006 Atl. S.C. 2d 1 (held that Article 1, Section 5, Clause 30 granted the Senate the power to abolish an agency created by Executive order);Jas v. InksLWC, 2008 Atl. S.C. 2d 5 (held that Article 1, Section 5 gives the Senate the power to create offices within the Executive Department).  This of course begs the question: under what expressly allocated power were the crimes, excluding those involving treason, as detailed in the Consolidated Criminal Justice Act and the Privacy Protection Act exercised?

The powers of the Senate are expressly allocated in Article 1, Section 5 of the Federal Constitution.  Those powers are as follows:

1.)To lay and collect taxes, duties, imposts and excises, but all duties, imposts and excises shall be uniform throughout the Regions of the Republic of Atlasia and the District of Columbia.
2.) To borrow money on the credit of the Republic of Atlasia and repay such debts.
3.) To regulate commerce with foreign nations.
4.) To provide an area of Freedom, Security and Justice without internal frontiers, and a single market where competition is free and undistorted.
5.) To establish uniform rules of Naturalization and Alienation, Marriage and Divorce, and Adoption and Emancipation of Minors throughout the Republic of Atlasia.
6.)  To establish uniform laws on the subjects of Bankruptcies, Contracts, and Incorporation throughout the Republic of Atlasia.
7.)  To provide for the Punishment of Fraud in a uniform manner throughout the Republic of Atlasia.
8.) To establish coin and currency, which shall be the sole legal tender of the Republic of Atlasia, regulate the value thereof, with respect to other coin and currency.
9.) To fix standards of weights and measures and of such items of commerce as it deems needful throughout the Republic of Atlasia.
10.) To build or regulate the infrastructure needed for communication and transportation.
11.) To promote the Progress of Science and useful Arts, by securing to Authors and Inventors the exclusive Right throughout the Republic of Atlasia to their respective Writings and Discoveries for limited Times which shall not be extended once secured.
12.) To promote Science and the useful Arts by sponsoring researches on diverse subjects.
13.) To promote the Public Health, by the conducting of researches, investigations, experiments, and demonstrations relating to the cause, diagnosis, and treatment of medical disorders and by assisting and fostering such research activities by public and private agencies.
14.) To protect the Public Health and commerce, by providing for the quarantine, vaccination, and treatment of individuals, animals and plants as needed to prevent the spread of contagious diseases.
15.) To promote the distribution of Knowledge of Science and useful Arts, by assisting and fostering persons seeking to be educated, to provide education, or to produce educational materials.
16.) To provide for the humanitarian relief of the distress caused by unpredictable events of natural or man-made origin.
17.) To provide for systems of Insurance and Annuity for Unemployment, Disability, and Retirement.
18.) To have sole power to declare War, grant Letters of Marque and Reprisal, and make Rules concerning captures on land and water;
19.) To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.
20.) To promote Comity between Nations by engaging in such activities with other Nations as are of mutual benefit.
21.) To provide for the common defense of the Republic of Atlasia.
22.) To raise and support armed forces and to make rules for the government and regulation of the armed forces of the Republic of Atlasia.
23.) To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.
24.) 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 Republic of Atlasia, reserving to the Regions respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by the Senate.
25.) To exercise exclusive legislation, in all cases whatsoever, over such District (not exceeding twelve nautical miles square) as may, by cession of particular Regions, and the acceptance of the Senate, become the seat of the government of the Republic of Atlasia, and to be known as the District of Columbia.
26.) To exercise exclusive legislation, in all cases whatsoever, over all places purchased by the consent of the legislature of the Region in which the same shall be, for the provision of military facilities, courthouses, and other needful buildings.
27.) To exercise exclusive legislation, in all cases whatsoever, over such Territory as may be under the jurisdiction of the Republic of Atlasia, but are not part of any Region.
28.) To create the Executive Departments as it may deem necessary and to assign duties to their officers.
29.) To Suspend the Privilege of the Writ of Habeas Corpus, and to make provision for its Suspension by the executive when the Senate is not in session, but the Privilege shall be Suspended only when in Cases of Rebellion or Invasion the public Safety may require it.
30.) And to make all laws which shall be necessary and proper for carrying into execution the powers enumerated in this section, and all other powers vested by this Constitution in the government of the Republic of Atlasia, or in any department or officer thereof.

It is fairly clear that the Senate is not expressly given the power to create federal criminal statutes in any of these powers.  Interesting to note is that Article 1, Section 5 (3) limits the federal power to regulating foreign commerce.  If this power had included "commerce between the regions" the argument could have been made that this inherent power was the basis for the Senate's ability to create federal criminal law.  In fact, in Section 5 (19) the Senate is granted the power to define and punish "felonies committed on the high seas, and offenses against the law of nations."  By limiting this power to crimes on the high seas and against the law of nations, it appears that the Senate is being denied the right to create federal criminal law within the borders of Atlasia.  Thus, that power is relegated to the Regions and is beyond the power of the federal government.

However, there does appear to be two powers that could possibly be argued to grant the Senate the ability to establish criminal law.  The first is Section 5 (10) allowing the Senate to regulate infrastructure needed for transportation and communication.  It might be argued that the use of personal messages, the Atlaswiki, and user accounts is related to infrastructure for "communication."  Yet, the preamble to both criminal statutes makes no connection between the statutes and the criminal laws.  It seems hard to imagine that this section, which is more related to infrastructure such as highways and bridges, would be accepted by the Supreme Court as "expressly granting" the Senate the power needed here.

The last possibility would be Section 5 (30) which gives the power to the Senate to make all laws necessary and proper to carry into execution the powers of a department or officer, such as the Attorney General.  Yet again, the preamble does not contain any connection between the two.  Additionally, it does not appear that these laws are necessary to carrying out the duties of the AG.  Rather statute makes the AG carry out prosecutions of these statutes.

In the end, it will take a criminal prosecution to truly determine this issue as it has not been raised in any case.  It makes this writer wonder, if it has not been raised, maybe I am completely wrong about the issue.  I cannot be the first to think of this.  But reading the law, I wonder.

[Fritz]

Oh

My

God

[Purple State]

Sam!

Someone get Sam. And Peter. And Jas and Al.

Crisis time!

[Marokai Backbeat]

I try to read these. Really, I do.

But I'm a Justice that suffers from ADD.

[Purple State]

I try to read these. Really, I do.

But I'm a Justice that suffers from ADD.

You will want to read the second one. Kinda a constitutional crisis that one is.

Oh, and I just want to note that we have all been totally owned by someone with 67 posts. I think that should throw out the argument that new members can't contribute. Who is this guy?

[Marokai Backbeat]

I wouldn't really call it a "crisis." A matter worth looking into, at least.

And yes, I'm wondering who this fellow is as well.

[Purple State]

I wouldn't really call it a "crisis."

Now it is.

[Associate Justice PiT]

     There's probably other issues like that. I know on a few occasions that I've wondered where exactly the Senate derived the power to make laws about certain matters.

[Peter]

I think the obvious justification (certainly the justification that I've always had for the statutes in my own mind) is Article I, Section 5, Clause 4:

You must be logged in to read this quote.

How exactly would the Senate provide security and justice without the ability to create criminal offences? Any necessary ballast to this clause is provided by the necessary and proper clause.

[Sam Spade]

cool - I'd like to see a case on these grounds.

I already discussed CCJA Section 2, Clauses 1&2 (and therefore 3) in my dissent to Xahar v. Southeast, but as for broad criminal statutes that don't affect us - can't wait to hear it.

[Јas]

Sam!

Someone get Sam. And Peter. And Jas and Al.

Crisis time!

Peter nailed this already.
I'd be interested though to see Junkie's response though.

[Badger]

Peter's right as usual. This can wait until when and if someone files suit, and the Court I have no doubt will make a common sense decision that a proper broad interpretation of the constitution's language includes the right to, you know, pass laws with criminal penalties.

Excellent article again from Junkie, but those yelling "Constitutional crisis!!" are overreacting more then a tad.

[Junkie]

EDITOR'S NOTE:

I can honestly say that I was not expecting the response that followed my article, "The Senate with the Power.  What Power?"  I never thought that my writings could potentially result in prison riots.  Perhaps the most interesting result was to several of the actual writers of the constitution respond to my thoughts.  I had already begun to move onto another article for the Law Journal, but believe that the furvor demands that I respond in defense of my article.  I would like to take this time to state that I have the utmost respect for everyone that wrote this constitution.  My observations were just that.  All that being said, here is my response:

The Senate With The Power. What Power?: A Defense.

In the past day, there has been much attention brought to my recent article in the Atlasian Law Journal.  I do believe that two critiques of the article should be addressed.  The first by Peter, a delegate to the Constitutional Convention, was:

I think the obvious justification (certainly the justification that I've always had for the statutes in my own mind) is Article I, Section 5, Clause 4:

You must be logged in to read this quote.

How exactly would the Senate provide security and justice without the ability to create criminal offences? Any necessary ballast to this clause is provided by the necessary and proper clause.

The second was by Badger:

Peter's right as usual. This can wait until when and if someone files suit, and the Court I have no doubt will make a common sense decision that a proper broad interpretation of the constitution's language includes the right to, you know, pass laws with criminal penalties.

Both of these responses seem to indicate that my interpretation is flawed.  As I indicated in my initial article, I was entirely sure that my reasoning was correct.  What it is interesting is that Peter and Badger's responses both appear to implicate different ways of interpreting the Constitution.  Peter seems to indicate that a "plain reading" way of interpreting the Constitution will show that the Senate has the power to legislate federal criminal law.  On the other hand, Badger seems to argue that a "framer's intent" view would also grant the Senate such power.  After further research, I believe that, under either method of interpretation, my reasoning is still valid.  I will deal with both in order

Plain Reading

Peter argued that Article 1, Section 5, Clause 4 is the obvious justification.  However, he only quoted half of the clause.  The full clause reads, "To provide an area of Freedom, Security and Justice without internal frontiers, and a single market where competition is free and undistorted."  I believe that a plain reading of this clause shows that power of the Senate appears to be limited to providing "freedom, security and justice" in terms of free and undistorted markets.  In other words, under this clause the Senate can enact laws in terms of free markets, not federal criminal activities.
I believe that this interpretation is further corroborated when one considers how the limited powers of the Senate are listed.  As one reads the enumerated powers of the Senate, it is clear that they are almost grouped in areas of power.  At a quick glance, the clauses are grouped into 8 sections of power:

Clauses 1 through 4 deal with the economy and trade
Clauses 5 through 7 deal with contracts of various sorts
Clauses 8 through 10 deal with currency and infrastructure
Clauses 11 through 15 deal with Art, Science, and Public Health
Clauses 16 through 20 deal with Internation Relations
Clauses 21 through 24 deal with defense of the nation
Clauses 25 through 27 deal with areas in which the federal government has exclusive jurisdiction
Clauses 27 through 30 deal with management of the government.

While it may appear to be irrelevant at first, I believe if one is to argue that Clause 4 gives the Senate the power to legislate federal criminal law, this is actually decisive.  The question becomes whether Peter is right that the "and" in Clause 4 is adding two unrelated powers.  A "plain reading" approach appears not to support this posistion.  In every other enumerated power, the clauses are very specific and limited.  In addition, the grouping of the clauses shows what these powers are meant to relate to.  Thus, it appears very clear that "to provide an area of Freedom, Security and Justice without internal frontiers" is meant to give the Senate power in providing unrestricted markets, not criminal prosecution.

Framers Intent

Badger believes that "a proper broad intrepretation" of the Constitution would allow for a reading giving the Senate the power to enact criminal legislation.  This section may seem presumptious, as unlike with the American Constititution, many of our framers are still around and active politically.  However, to truly read the Constitution under this frame of reference, we must look at the mind of the framers at the time of enactment.  Unfortunately, I have not been able to find the posts from the actual convention.  It appears from here (https://uselectionatlas.org/FORUM/index.php?topic=17583.30) that there were problems with the server on which the convention took place.

There does remain one thread of conversation that I was able to find.  The debate was over a very general clause intended to give the Senate power of the "general welfare."  When debating this, the following comments were made:

To provide for the General Welfare.

It was very long-winded as you can see. There was another suggestion posted by JDF that was longer, but I'm still not happy about something that effectively can potentially mean that the Regions have jurisdiction over nothing.

I would rather err on the side of giving the federal government too little power rather than too much.

I would rather err on the side of giving the federal government too little power rather than too much.

Exactly.

We already deal with education.  Could one not make the argument that that is some sort of violation of regional rights?  We recongnize a divide between regional and federal power there, why can't we do the same here?

General welfare gives carte blanche authority to enter into almost any realm of public affairs to the federal government. There then comes a dispute over who has primacy when legislating on certain issues. When legislating education it is quite clear that all the Senate is doing is throwing money at the issue, and there is clearly still capacity for the Regions to throw money at education. If you allow for the general welfare clause, can the Senate start overriding Regional Laws almost implicitly? I don't like the sound of this, and there's no wording I can conceive that doesn't essentially render the clause inert without giving the Senate carte blanche. If you want other specific topics opened up to Senate legislation, I'll consider it, but general welfare is off the table as far as I am concerned.

In the end, the "general welfare" clause was not added to the enumerated powers.  I believe the natural conclusion is that the Framer's at the time wanted to limit the power of the Federal Government to what they specifically enumerated in the 30 Clauses of Section 5.  When you couple this with the holding in Peter v. Atlasia, 2009 Atl. S.C.2d 4 citing Fritz v. Ernest, 2004 Atl. S.C.2d 6, I think it becomes clear that the Senate does not have the power to enact federal criminal law under the current constitution

[Marokai Backbeat]

Mmhmm. Sure.

[Barnes]

I hate it when people talk about "Framers", this game is like six years old, people.

[Junkie]

I hate it when people talk about "Framers", this game is like six years old, people.

Sorry did not mean to get on your wrong side.  I guess I could have used the term "signing delegates."  I used the term "Framers" because I am new to this type of anlysis in this world, and am carrying over what I would use elsewhere. 

While many of you know the people who wrote the constitution, I do not and wanted to give a little respect.  In 2005, when it was drafted, I had no idea that the site existed and spent most of the year intoxicated.  Will use a different term in later articles.

[Barnes]

I hate it when people talk about "Framers", this game is like six years old, people.

Sorry did not mean to get on your wrong side.  I guess I could have used the term "signing delegates."  I used the term "Framers" because I am new to this type of anlysis in this world, and am carrying over what I would use elsewhere. 

While many of you know the people who wrote the constitution, I do not and wanted to give a little respect.  In 2005, when it was drafted, I had no idea that the site existed and spent most of the year intoxicated.  Will use a different term in later articles.

You didn't get my wrong side. I just meant this game isn't really some 230 years old like the US.

[Sam Spade]

I would just like to point out that Article 1, Section 5, Clause 4 is essentially taken from the EU Constitution and the Court, in future cases, will probably, at least in part, examine that Constitution to determine the extent of what the words mean...