Monday, June 24, 2013

Obamacare is an Unconstitutional Bill of Attainder Law

I wrote the following in July 2012 as a comment to three different blog articles at the Heritage Foundation website.  Though Heritage did not post my comment in July 2012, I still believe my comment tells the truth about Obamacare and the U.S. Constitution.  My conclusion is simply this: Obamacare is unconstitutional.

Steven A. Sylwester
June 24, 2013

Chief Justice Roberts needs to review the entire U.S. Constitution with the same regularity that a skilled musician must practice scales and fingering techniques, that is: daily.  "First Principles" are songs sung to beautiful music, songs which must be sung to be fully appreciated — alone in the shower, but also together with others in chorus with full orchestra accompaniment.  For example, one cannot really appreciate the majesty and spine-tingling splendor of Handel's magnificent Hallelujah Chorus unless one experiences the entire Messiah and thereby knows the soaring sweep that builds the musical crescendo of the Hallelujah Chorus within its full context.  So too with the elements of the U.S. Constitution, for too much important context and clarity of understanding is lost whenever one clause or another is removed for sterile examination; music must be sung to find its glory, and a lyric must be uninterrupted to find its expression.

Even so, experiencing the entire Messiah from start to finish is transcendent and sublime, and to sing it is even more so; one is transformed.  So too with the U.S. Constitution, for the transformation that turns a mere citizen into a patriotic American is made when the heartbeats of the Founders are felt in one’s own chest, when one knows with certainty a personal resolve to be among the “we” who “mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”

What is sad is that Chief Justice Roberts does not hear or feel the music of the U.S. Constitution in his soul any longer because he has disembodied its clauses from its poetry and prose and has then
over-intellectualized those naked particulars in his mind; he does not sing its patriotic song or dance to its pulsating rhythm because he has dissected it in his thoughts into a scattering of lost notes and
forgotten phrases that are now disjointed and disparate from the whole that once was.  Even in Jazz — that great American invention of musical improvisation — the melody is never lost by the genius
interpreter; the essential truth — the story — remains ever present. In his ruling regarding Obamacare, Chief Justice Roberts lost the story found in the First Principles that form the essence of the U.S. Constitution.  It is no small thing.  In fact, the consequences could be terrible.

In my search through the wreckage, I found the following unexpected hope: Obamacare is a Bill of Attainder Law, and is therefore unconstitutional.

On July 18, 2012, I submitted the following as a comment to
and to
Neither comment has posted at the Heritage website as of July 19, 2012.

Steven A. Sylwester

* * *

The shocking truth is this: John Glover Roberts, Jr., who is the 17th Chief Justice of the United States, does not know The Constitution of The United States.

First, consider the Oath of Office:
"I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and
perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States; and that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.  So help me God."

Now consider Article. I. Section. 7. First Sentence, which states: "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."  Nowhere does the Constitution allow the Supreme Court to be a participant in the legislative process that raises "Revenue" for governmental purposes.  Consequently, if the language of a law does not explicitly describe something as a tax, then it cannot be rightly concluded under any circumstance that the legislators of the law intended a tax.  It is not for the Supreme Court to ever divine or in any way construe intent that is not explicitly stated. Rather, it is the Supreme Court's business to only rule on the constitutionality of something as it is, not as it should be, for to ever cross over into "should be" is to become an actual participant in the legislative process.

However, Chief Justice Roberts could have stated in his ruling: "As is, Obamacare must be ruled unconstitutional.  But a reworking of Obamacare's language that would result in explicit use of the word "tax" to describe certain revenue gathering processes might result in a different ruling."  It is fair for a justice to provide unsolicited advice in a ruling, but it is unfair — that is: unconstitutional — for a justice to ever actually implement his/her unsolicited advice in the effective creation of new law, for justices have not been given the constitutional right to be legislators.

Consider Article. I. Section. 8. First Sentence, which begins: "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; ..."  Be most certainly assured: "The Congress" does NOT include the Supreme Court.

But all the above is trumped by a glaring oversight that should overrule Chief Justice Roberts' mistaken belief that the "Power To lay and collect Taxes" makes Obamacare constitutional.  The "glaring oversight" is found in Article. I. Section. 9. Paragraph 3, which states: "No Bill of Attainder or ex post facto Law shall be passed."

A "Bill of Attainder" is defined as: "A legislative act that singles out an individual or group for punishment without a trial."

"The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply - trial by legislature."  U.S. v. Brown, 381 U.S. 437, 440 (1965).

"These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted.  A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial.  Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment." 
William H. Rehnquist, The Supreme Court, page 166.

* * *
A punishment tax is a Bill of Attainder, something specifically forbidden by the U.S. Constitution.  Understand this: someone who must pay the punishment tax approved by Chief Justice Roberts receives no benefit whatsoever for having paid the tax, because that tax is not the equivalent of an insurance premium — meaning: the person taxed is not eligible to receive Obamacare benefits until AFTER he/she begins paying insurance premiums.  The tax is a "punishment without a trial"— a "Bill of Attainder."

Chief Justice Roberts needs to spend some quality time pondering his oath of office.

Steven A. Sylwester

* * *

When I submitted the above as a comment to the second article linked above, I added:

Still, the U.S. health care problem urgently needs a solution.  My proposed solution is:

Steven A. Sylwester

* * *


If my assertion is correct, the recent ruling by the U.S. Supreme Court regarding Obamacare will go down in history as one of the biggest bonehead blunders ever.  Certainly, the Constitutional Law professors at Harvard Law School would be embarrassed to tears, for that fine school taught and graduated President Barack Obama (Harvard Law J.D. magna cum laude 1991); Chief Justice John G. Roberts, Jr. (Harvard Law J.D. magna cum laude 1979); Associate Justice Antonin Scalia (Harvard Law LL.B. magna cum laude 1960); Associate Justice Anthony M. Kennedy (Harvard Law LL.B. cum laude 1961); Associate Justice Stephen G. Breyer (Harvard Law LL.B. magna cum laude 1964); and Associate Justice Elena Kagan (Harvard Law J.D. magna cum laude 1986).

At the above link defining a "Bill of Attainder" as "a legislative act that singles out an individual or group for punishment without a trial," the following quote can be found: "Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. ... The sober people of America are weary of the fluctuating policy which has directed the public councils.  They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community." 
James Madison, Federalist Number 44, 1788.

Sounds ugly.  Also, sounds exactly like the punishment "tax" (ruled by Chief Justice Roberts) or "penalty" (claimed by President Obama) that makes Obamacare possible.  Understand this: whether you call it a tax or a penalty makes no difference, because the “punishment without a trial” aspect is what defines a bill of attainder law.  It is inevitable: someone will file a lawsuit claiming Obamacare is unconstitutional because it is a bill of attainder law that is strictly forbidden by the U.S. Constitution — and that someone will win!  Then what will happen?  Who will eat crow?  Who will fall on a sword?  What a pickle!

If I am correct in my assertion, the United States government is in a mess.  Plainly, the U.S. Supreme Court would have to admit to incompetence.  What then?  How would we go forward from there?

I would start with:

Next, I would ratify "Proposal #8: Definitions of Law, Religion, and Judicial Limits" found at:

God help us.

Steven A. Sylwester

Sunday, May 19, 2013

Oregon PERS Funding Violates the Fifth Amendment to the U.S. Constitution

On May 17, 2013, I personally hand-delivered the following 21-page petition to the United States District Court receptionist who then placed it in the in-box for the Honorable Chief District Judge Ann Aiken of the U.S. District Court of Oregon at:
5500 United States Courthouse
405 East Eighth Avenue
Eugene, Oregon 97401-2706

All Oregon citizens who are school-age children or who are the parents or grandparents of such children are welcome to join my petition.  My children are University of Oregon graduates, so I might lack standing according to the rules of the courts.  Therefore, the petition could need additional names with indisputable legal standing to go forward.

Steven A. Sylwester
May 19, 2013

* * *

My name is Steven A. Sylwester.  I live in Eugene, Oregon.  I was born in Portland, Oregon, in 1954, and I have lived in Oregon for 49 years.  I care about Oregon.

I was a union officer for more than 15 years.  I served as an at-the-table negotiator on my union’s Negotiating Committee through all of the negotiations for two labor contracts.

I wrote all of the following myself as a committee of one without the counsel of anyone else.  I have attempted to be thorough and complete in my arguments without being too long-winded.  However, the PERS problem is a big problem and its solution will hurt many people, including members of my own family and several of my friends.  Consequently, I have tried to be kind where it would have been easier to be brutal.

Unfortunately, the human impulse is often to blame the messenger when bad news is received.  I am the messenger in this case, so I expect to be on the receiving end of hatred from some.  But the true authors of the spirit and the intent of the truth that follows were those who authored the Constitution of the United States in 1787 and the Bill of Rights in 1791.  Why I have had the eyes to see what they wrote while others have not to this point is not something I can explain.  Nevertheless, what follows is undoubtedly true.

After much pondering, I have decided to post this on my blog so anyone and everyone can read it.  I am one who believes and confesses that Jesus is Lord, and Jesus instructed his disciples with these words: “Freely you have received, freely give.” (Matthew 10:8) My obligation is to do just that.

Many will want to thank me in some way, so I have created an opportunity for that to happen by making the following available as an e-book at a minimal cost.  If you choose to purchase a copy for yourself or a friend, thank you.

Steven A. Sylwester                                                                           
May 17, 2013

* * *

Jesus said, “See that you do not despise one of these little ones. For I tell you that their angels in heaven always see the face of my Father in heaven.  Matthew 18:10 (NIV)

I hereby petition the United States Government through its federal courts for a redress of grievances on behalf of the school-age children of the State of Oregon who are suffering an unfair dismantling of their public school education opportunities as a consequence of wrongful and illegal tax money mismanagement by adults within the state government.

Specifically, the State of Oregon’s Public Employees Retirement System (PERS) pension plan is unconstitutional because it violates the Fifth Amendment to the U.S. Constitution.  Therefore, all current PERS pension contracts that are in violation should be legally broken by being made null and void as soon as the violations are confirmed, and should thereafter be reestablished with any remaining funds in a fair manner according to all constitutional restrictions and limitations.


Statesman Journal state workforce reporter Dennis Thompson Jr. wrote:
The article begins:

“PERS tiers explained 

One of the recurring headaches of explaining Oregon PERS to others has to be describing the three tiers of the pension system. Understanding the tiers is fundamental to understanding the 2003 PERS reforms and the system's ongoing financial status. But it is crazy complicated.

So you can imagine my pleasure when I found that the City Club of Portland's recent report on PERS contained a really great explanation of the tiers and how benefits are calculated for each. I'm reprinting a big chunk of their explanation here, as a matter of public service:

The first category, known as “Tier 1,” consists of employees hired before January 1, 1996. The second, known as “Tier 2,” consists of employees hired between January 1, 1996 and August 28, 2003. The third, which functions like a “Tier 3,” is for employees hired on or after August 28, 2003. This third category is commonly referred to as “OPSRP,” which stands for the Oregon Public Service Retirement Plan. …”

(Read the entire “big chunk” from “the City Club of Portland’s … report on PERS” that is linked above for “a really great explanation” of how PERS is structured)

It is impossible to photograph a train wreck in a way that tells the whole story of what happened.  Even more impossible is the task of photographing a train wreck while the wreck is still happening — actually before much of the dust that will be blown from its place on the earth to eventually settle somewhere else has experienced anything other than an average day.  Such is my challenge here: the impossible task of adequately describing the PERS train wreck that is still happening in every community of any size in the whole state of Oregon — every town, every city, and every place in between.

Sadly, there is no way to stop a train wreck that is already happening.  At best, one can only hope that the inevitable damage can be somewhat diminished or maybe controlled by a thoughtful intervention.  But certainly there will be victims no matter what is done or not done; terrible sadness for some cannot possibly be removed from the eventual outcome, but a joy and a future can still be accomplished for most.

Oregon is a place where such a thing as the PERS debacle could happen.  The state is significantly populated by the offspring of: 1) many who would have gone farther west if only the Pacific Ocean were not there to stop them; 2) solo brave adventurers who were (and are) not afraid to be foolish in the eyes of others; 3) people who abandoned the conventions of where they were from — even heritage, even religion, even God; 4) those who are still hippies and ‘60s dreamers; and 5) cussed people who just will not endure being told what to do by others.  Many (probably most) Oregonians are fiercely independent people who are willing to let their neighbors be, and that comfortable distance between each other is what is now on the verge of destroying the workings of our state.  We can no longer stay out of each other’s business because that option is now gone.  PERS is forcing every adult amongst us to now stand up and be accountable to everyone else, especially to our fellow Oregonians who are our children.  God help us.

Enough of the PERS train wreck is visible in the following linked articles.  Read them.

April 8, 2013: Local Opinion: Oregonians pay price for deeply flawed PERS
By William Gary, an attorney shareholder in Harrang Long Gary Rudnick PC in Eugene

April 24, 2013: Oregon State Legislature: Lawmakers have strong ties to PERS system:
The House will vote today on a Democratic plan to cut pension inflation adjustments
By Jonathan Cooper, The Associated Press

April 25, 2013: Oregon State Legislature: Democratic tax plan scuttled:
The House defeats a bill increasing taxes on the wealthy, but it does pass modest cost savings for PERS
By Saul Hubbard, The Register-Guard

April 25, 2013: Editorial: Where the money is: PERS:
Bolder pension reform needed after tax bill fails

May 4, 2013: Guest Viewpoint: PERS’ payoff depends on workers’ investment decisions
By Clint Brumitt, retiree who worked in public schools in Southern Oregon for 34 years

Official State-generated PERS reports can be read at:
An independent wiki page with very scary information can be read at:
QUOTE: Funding levels
   PERS states that it is 86% funded, with an unfunded actuarial liability, including side accounts, of $8.1 billion.[1]
   The state's pension liabilities can be calculated in a variety of ways, which yield different numbers. Below are the numbers as calculated by to the Pew Center on the States,[9] the American Enterprise Institute[10] and Professors Robert Novy-Marx of the University of Chicago and Joshua Rauh of Northwestern University, Kellogg Graduate School of Management.[11]

In Thousands

PEW (2008)             AEI (2008)             Kellogg (2009)
$10,739,000             $42,203,565             $37,800,000

Other information from the Pew Center on the States 
Feb. 2010 publication "The Trillion Dollar Gap":
State Pension Funding Levels 2008 
(figures are in thousands)[9]
 Latest liability                       $54,260,000   
 Latest unfunded liability    $10,739,000    
 Annual required contribution   $707,400       
 Latest actual contribution       $707,400

>> COMMENT: Translated, the above quote reveals that PERS calculates according to its own economic and demographic assumptions an unfunded actuarial liability (UAL) of $8.1 billion, but that three other reputable and noteworthy sources have calculated the UAL for PERS according to their own economic and demographic assumptions with startlingly different results: PEW calculates a $10.7 billion UAL, Kellogg calculates a $37.8 billion UAL, and AEI calculates a $42.2 billion UAL.  Obviously, a prudent observer would conservatively conclude that PERS is vastly underestimating its UAL.  Indeed, a simple average of the four UAL numbers results in a $24.7 billion UAL — a number that is more than three times the PERS-stated UAL of $8.1 billion! 

QUOTE: “Oregon presumes a 8.00% return rate on its pension investments.[9] Oregon's public pensions achieved a 14% return in fiscal year 2012. Its five year return is just 3%, however, due largely to poor returns in 2008.[13]”

>> COMMENT: Anyone who knows anything at all about at-risk investments knows that only a fool would ever presume “a 8.00% return rate on its pension investments” — Oregon is a fool!  Consider: “Its five year return is just 3%.”  Screaming ouch!  The pension money burn rate that was suffered over the recent five-year 3% return time-span might have alone made any future recovery simply impossible outside of PERS scoring very big on the most risky of high-risk gambling bets, which is not how pension funds are supposed to manage their fiduciary obligations to retirees.  But the bond market is dead, and the share price of longtime high-flying Apple Computer stock (AAPL) recently dropped from a September 2012 High of $705.07 to a April 2013 Low of $385.10 — and the bottom might be a lot lower before the stock price stabilizes.  The truth is: the stock market is a high-stakes casino where very shrewd people play a very wicked game in which the winners are very happy to take the losers’ money.  The 1990s Bull Market is not coming back anytime soon if ever at all in the next 30 years.  PERS cannot afford to ramp up its tolerance for risk out of a desperate fear of not being able to reach its presumed annual 8.00% return rate.  The investment game has to be played calmly and prudently, especially when the markets are as difficult as they are now.

Other states have similar problems.  Read: 
QUOTE: Key Findings
Retirement benefits provide a reliable source of post-employment income for government workers, and they help public employers retain qualified personnel. For states that have not been disciplined about fulfilling their obligations, the financial pressure builds each year.

    * In 2000, just over half the states had fully funded pension systems. By 2006, that number had shrunk to six states. By 2008, only four—Florida, New York, Washington and Wisconsin—could make that claim.
    * In eight states—Connecticut, Illinois, Kansas, Kentucky, Massachusetts, Oklahoma, Rhode Island and West Virginia—more than one-third of the total pension liability was unfunded. Two states—Illinois and Kansas—had less than 60 percent of the necessary assets on hand.

>> COMMENT: The above quote is dated 2008.  At the above “” source link, a linked updated report dated 2010 is titled “Widening Gap.”  Plainly, the unfunded pension liability problem is nationwide, is significant, and is worsening.  Therefore, though this petition is “for a redress of grievances on behalf of the school-age children of the State of Oregon,” any action taken by the federal courts in response to this petition will have very significant national repercussions.

The following analysis was written by Oregon State Representative Dennis Richardson as part of his March 1, 2013, newsletter article: “PERS Crisis: OSBA Introduces Substantial PERS Reform Bill.”  Richardson has been the representative for Oregon’s Fourth District in the Oregon State Legislature since 2003.  He serves on the House Committee on PERS Reform.  He has been a practicing attorney in Central Point, Oregon, since earning his law degree at the J. Reuben Clark Law School at B.Y.U. in 1979. 
Notice that Rep. Richardson now pegs the UAL for PERS at “more than $14 billion” — a $6 billion increase from the PERS-stated UAL mentioned above.  The hole is deepening.

QUOTE: “… Suffice it to say Oregon’s Tier 1 PERS plan is one of the most generous retirement plans available anywhere.  The PERS system currently has an unfunded liability of more than $14 billion and state and local public employers must pay the PERS cost increases from their budgets like they do all other debts.  In the current two year budget (2011-13 biennium), our State, local governments and schools were required to pay $1.1 billion over and above their normal PERS costs; in the next two-year budgets (2013-15), the PERS costs are set to increase by another $906 million, and then an additional $678 million in the following biennium. (Click here)

What do these PERS increases mean to our schools, communities and State in 2013-15? 

To our schools, without PERS reforms $330 million will be paid from school district budgets for additional PERS payments. Paying this amount will cost school districts nearly 27 cents for every dollar of payroll.

Think of what this means for our children. If a school needs five teachers, a 27% PERS payment for four of them would more than consume the money needed to pay the fifth.

Specifically, consider the following realities:

The Beaverton School District’s PERS payments increased by $24 million in 2011-13. After using reserves and making efficiencies in the 2011-12 school year, the additional PERS costs and other revenue shortfalls in the 2012-13 school year resulted in 344 teacher positions being cut, the school year was shortened by 5 class days, and class sizes were increased by 3 - 4 students.  Looking ahead to 2013-15, the Beaverton School District will be assessed an additional $29.5 million in PERS payments.

For Salem-Keizer Public Schools, in 2011-13 its PERS payments increased by $32 million.  PERS and other revenue shortfalls required Salem-Keizer to cut 426 staff positions.  Looking ahead to 2013-15, Salem-Keizer PERS costs will increase by an additional $32 million.

The list goes on.  The much smaller Medford School District’s PERS payments increased by $6 million in 2011-13 and it adjusted by using reserves and cutting 70 positions, cutting 8 non-instructional school days, and Medford’s staff agreed to assume their 6% employee contribution to PERS and teachers agreed to assume 7% of their health insurance costs. In 2013-15 Medford is being assessed an additional $6 million of PERS payments. …”


One might ask, “What were they smoking when they wrote PERS and made it law?”  It is loony.  It is preposterous.  It stands outside of all normal reality.  It defies any logic based in, on, or even remotely nearby what rightly could be called “reasonable expectations.”  It is fairy dust, pure and simple — the stuff of childhood make-believe. 

Yet, in Oregon, PERS is law — indeed, a labor contract legally recognized as law that obligates the State very specifically until the last covered person dies maybe 50 years from now.  Its proponents staunchly claim that PERS is an inviolable contract that is wholly unbreakable short of the State of Oregon legally filing for bankruptcy protections, and the Oregon State Supreme Court has thus far agreed with that claim.  I have actually heard an ardent PERS proponent say with firm conviction that the State of Oregon should be made to sell its public lands to raise the revenues needed to fund PERS, which means: sell the Oregon Coast beaches from the Washington border to the California border and all State-owned forests, waterways, and rangelands.  No kidding.  Unbelievable.

In its thinking and ruling, the Oregon State Supreme Court cites Article. I. Section. 10. [1] of the U.S. Constitution, which states: “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.” — the key clause being: “No State shall …  pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, …”  Simple logic: if “No State shall …  pass any … Law impairing the Obligation of Contracts,” then any made contract must continue to exist and be enforced by the courts until that contract naturally ends or otherwise completes according to the dictates of that contract.  Any first grader who can read could understand that straightforward simplicity. 

But a huge herd of elephants is being overlooked — in plain sight, but overlooked — that is: nowhere in the U.S. Constitution and its amendments is the Congress or the United States of America as a federal government forbidden to impair “the Obligation of Contracts.”  That means the federal courts, including the Supreme Court of the United States, can and must impair “the Obligation of Contracts” whenever a contract violates the U.S. Constitution, which is “the supreme Law of the Land.”  Indeed, Article. VI. [2] of the U.S. Constitution states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”  Oops.  The elephants are about to stampede.

The Fifth Amendment is one sentence long.  It states:
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.

According to Webster’s Dictionary, the word “sentence” is defined as: “a grammatically self-contained speech unit consisting of a word or a syntactically related group of words that expresses an assertion, a question, a command, a wish, or an exclamation, that in writing usually begins with a capital letter and concludes with appropriate end punctuation, …” Therefore, the Fifth Amendment is a “speech unit … that expresses … a command” enforced four separate times by the word “shall” within the context of one “related group of words.” Furthermore, the whole of it is as defining as any part of it.

The whole of it describes an abiding fairness that citizens are entitled to receive, even if they are accused of crimes, even if they are guilty of crimes.  In America, a person is presumed innocent until proven guilty.  Furthermore, the government is not given license to be careless, lazy, or sloppy about its work; indeed, it is required to be precise, accurate, and correct the first time and every time when a citizen’s “life, liberty, or property” is at stake.  To be blunt: the government is not granted forgiveness for its mistakes.

Within that whole is found the clause that pertains to PERS money mismanagement: “nor shall private property be taken for public use, without just compensation.”   The authors of the amendment could have stated precise limitations such as private land property (that is: acreage), private real estate property (that is: land, buildings, and improvements), and/or private material property (that is: cars, boats, appliances, artworks, electronic devices, and other objects), but they chose to state “private property” as an all-inclusive description, meaning: “something owned or possessed; the exclusive right to possess, enjoy, and dispose of a thing: OWNERSHIP;” and/or “something to which a person has a legal title,” according to Webster’s Dictionary.  Certainly, “something owned or possessed” that comes with “the exclusive right to possess, enjoy, and dispose of a thing” has to include the most basic of all property, which is money.  Every citizen who has even just one penny to his name should be recognized as a citizen who has one penny of property — one penny that can be possessed, enjoyed, and disposed of according to that citizen’s own exclusive right.

Indeed, in Goldberg v. Kelly, 397 U.S. 254 (1970), the U.S. Supreme Court ruling stated: Held: 1. Welfare benefits are a matter of statutory entitlement for persons qualified to receive them, and procedural due process is applicable to their termination. Pp. 397 U. S. 261-263 ( and  In other words, welfare checks constitute “property” under the Fourteenth Amendment language: “… nor shall any State deprive any person of life, liberty, or property, without due process of law …” — a direct and applicable parallel to the Fifth Amendment language: “… nor shall private property be taken …” Specifically, Justice William J. Brennan Jr. wrote in the Goldberg v. Kelly opinion, “It may be realistic today to regard welfare entitlements as more like ‘property’ than a ‘gratuity.’ Much of the existing wealth in this country takes the form of rights that do not fall within traditional common-law concepts of property.” Certainly, if a welfare check is legally defined as “property,” an earned paycheck should share the same legal definition, as should any other legal income from any source.

Therefore, the clause “nor shall private property be taken for public use, without just compensation” takes on the full weight of requiring “just compensation” for taxations that fund “public use,” whatever that “public use” might be.  Certainly, it requires that taxations actually fund “public use” of some sort, that no taxation of any sort would ever fund anything rightly described as private use, and that one citizen’s property (money) would never be ceded by the government to become another citizen’s property (money) unless a plainly justifiable “public use” was self-evident and was by itself a “just compensation” to the citizen who had his/her “private property … taken for public use.”

Of course, the courts cannot possibly judge whether each and every individual citizen received “just compensation” in return for their taxes paid, for the benefits to society granted by the “public use” of government funding varies in its impact from citizen to citizen, sometimes widely.  Even so, the courts can and must judge when it cannot be denied that the government has egregiously failed to use taxations for “public use” while also egregiously failing to grant any “just compensation” at all to those taxed.  Such is the case with PERS — undeniably so!

PERS is simply this: the State of Oregon robbing Peter to pay Paul through a death spiral mix of 1) higher taxation and 2) the stopping of “public use” benefits previously funded by lower taxation, with “Peter” being Oregon’s tax-paying citizens and “Paul” being Oregon’s retired public employees.   If #1 is not fully accomplished, then #2 is increased to compensate while the death spiral continues unabated.  PERS is a Ponzi-like scheme wrapped in contract law that has succeeded by means of an open collusion throughout the state government.  It is outrageous.  It is criminal.  Worse: it is unconstitutional.

The Fifth Amendment clause “nor shall private property be taken for public use, without just compensation” must be rightly defined in its whole and in its parts.  But the U.S. Constitution does not have an official glossary.  So I will here reference common definitions that are available to every American citizen in Webster’s Dictionary, and not uncommon definitions that are available to only those lawyers who know how and where to dig deep into countless court rulings to find subtle nuances glued together in layers of precedents written in legalese.  For surely Webster’s can hold its own ground where the English language is concerned, even when lawyers are involved.

In its whole, the definition of the clause must and does reiterate the above stated definition of the whole Fifth Amendment: “… it describes an abiding fairness that citizens are entitled to receive, even if they are accused of crimes, even if they are guilty of crimes.  … Furthermore, the government is not given license to be careless, lazy, or sloppy about its work; indeed, it is required to be precise, accurate, and correct the first time and every time when a citizen’s life, liberty, or property is at stake.  To be blunt: the government is not granted forgiveness for its mistakes.” 

As a basic and fundamental Rule of Understanding, the U.S. Constitution must have internal consistency within its sentences, its sections, its articles, and its whole, including within its amendments, and that consistency must be both intellectual and moral in its basis and both honorable and patriotic in its fibers, for it is what defines America.  And that internal consistency — and only that internal consistency — is what makes possible the hope and the actuality of an external consistency that can and will manifest in the ideals and the behaviors of American society.  We are, in the final analysis, words on paper that inspire The American Dream in our own people and in other people from throughout the world who want to join with us.  Unless those words are true, unless we honor them in our own generation “with a firm Reliance on the Protection of divine Providence” and a mutual pledge to each other of “our Lives, our Fortunes, and our sacred Honor” in an unshakeable bond with those who signed The Declaration of Independence on July 4, 1776, nothing about our actions can be true.  So we must believe; we must insist on a consistency in our Constitution that holds its truth both internally and externally; and we must live The American Dream as an imperative, a right, an obligation, and a duty to our forebears, to ourselves, and to each other.

The term “private property” is defined to include all private property, including money.

The term “public use” is defined to not include private use when “one citizen’s property (money) would … be ceded by the government to become another citizen’s property (money).”  The term “public use” must include some kind of actual public use — something available to at least a general group of citizens in a direct-benefit way, like public schools for schoolchildren.  Furthermore, the “actual public use” must be something that is happening real time in the present, not something that happened years ago or something that is planned to happen years in the future — “actual public use” must be something happening now within the current fiscal year that directly benefits “all the people or the whole area of a … state” or a “community” within the state in a way “relating to business or community interests as opposed to private affairs,” according to the Webster’s Dictionary adjective definition of the word “public.” 

Webster’s Dictionary defines the noun word “use” as: “the act or practice of employing something” and/or “the privilege or benefit of using something” and/or “the legal enjoyment of property that consists in its employment, occupation, exercise, or practice.”  Also, “the benefit in law of one or more persons; specifically: the benefit or profit of property established in one other than the legal possessor” and “a legal arrangement by which such benefits and profits are so established.”

Therefore, “public use” in this case is the shared privilege of legal enjoyment of the benefit of property (tax money) in its employment, occupation, exercise, or practice among all the people of Oregon in a way “relating to business or community interests as opposed to private affairs.”  “Shared” is my word, but it is the correct word.  At the nexus between the two separate words “public” and “use” where the term “public use” is created and where it finds its meaning there swirls a concept that is inescapably present and ever dominating, and that concept is of something shared — something “to partake of, use, experience, or enjoy with others” according to Webster’s Dictionary.  It cannot be otherwise.  The very idea of “public use” demands that something is being shared “with others,” which means: every individual person and the all-inclusive “others” that are the “public” — by definition: “all the people” of Oregon.  Certainly, “public use” is not being accomplished when no sharing is taking place, for “something shared” is what forms the very essence of “public use.”

It is indisputably true that PERS funding in Oregon cannot be rightly called a “public use” of “private property … taken for public use,” because the tax money spent is not “something shared” among all the people of Oregon in a way “relating to business or community interests as opposed to private affairs.”  Without question and without exception, the tax money spent to fund PERS obligations only relates to the “private affairs” of PERS recipients; it does not relate in any way to anything else.

The preamble of the U.S. Constitution states:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

To “establish Justice” is the shout-out that is echoed in the concluding clause of the Fifth Amendment: “… nor shall private property be taken for public use, without just compensation.”  Webster’s Dictionary defines “justice” as: “2 a : the quality of being just, impartial, or fair  b (1) : the principle or ideal of just dealing or right action  (2) : conformity to this principle or ideal : RIGHTEOUSNESS  c : the quality of conforming to law.”  Understanding the term “just compensation” is key to understanding the Fifth Amendment, for justice — indeed, righteousness — must be the outcome.

And the Lord said to Moses, “You shall do no injustice in judgment; you shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbor.”   Leviticus 19:1, 15 (RSV)

The Bill of Rights, which includes the Fifth Amendment, became part of the U.S. Constitution effective December 15, 1791 — almost 222 years ago, but just 4 years after the U.S. Constitution was signed on September 17, 1787.  The first ten Amendments, which together constitute the Bill of Rights, were written at a time when every adult citizen still had a fresh memory of the American Revolutionary War, which began on April 19, 1775, and ended on September 3, 1783.  The horrors of war are bad enough when the battles are fought in a distant foreign country, but are excruciating when the battles are fought at your own front door and the collateral damages include the destruction of your own property and the civilian casualties include the wounding and death of your own innocent loved ones.  War is searing and visceral when it is experienced at such close range, especially the cold-hearted injustice and unfairness of it all.  Read the Bill of Rights through the eyes of a Revolutionary War survivor and you will see plainly the truths and the rights that were fully intended in its words.  

It is telling to look at both sides of a coin.  Webster’s Dictionary defines “injustice” as: “1 : absence of justice : violation of right or of the rights of another : UNFAIRNESS  2 : an unjust act — syn  INJURY, WRONG, GRIEVANCE:  INJUSTICE is the general term applying to any act that involves unfairness to another or violation of his rights.” 

The term “just compensation” finds its definition where the two words “just” and “compensation” become an inseparable oneness.  Webster’s Dictionary defines the adjective word “just” as: “1 a : having a basis in or conforming to fact or reason : REASONABLE    b archaic : faithful to an original  c : conforming to a standard of correctness : PROPER  <~ proportions>  2 a (1) : morally right or good : RIGHTEOUS    (2) : MERITED, DESERVED  <~ punishment>  b : legally right    — as a synonym of the word “FAIR,” JUST implies an exact following of a standard of what is right and proper; and as a synonym of the word “UPRIGHT,” JUST is archaic for UPRIGHT and HONEST.”  Webster’s Dictionary defines the word “compensation” in this case as: “2 a : something that constitutes an equivalent or recompense; specif : payment to an unemployed or injured worker or his dependents  b : PAYMENT, WAGES.”  Following the thread, Webster’s Dictionary defines the verb word “recompense” as: “1 a : to give compensation to : REPAY  b : to pay for  2 : to return in kind : REQUITE — as a synonym of “PAY,” RECOMPENSE suggests due return in amends, friendly repayment, or reward.”  Webster’s Dictionary defines the noun word “recompense” as: an equivalent or a return for something done, suffered, or given : COMPENSATION.”   

Again, the violated Fifth Amendment clause of the U.S. Constitution states: “nor shall private property be taken for public use, without just compensation.”   Like as regarding the term “private property,” the authors of the amendment could have stated precise limitations regarding the term “just compensation,” such as partial just compensation or eventual just compensation, but they did not.  The term “just compensation” in the clause must then be inclusive of something full and complete and something now.

Therefore, the term “just compensation” in the clause is defined as a full and immediate equivalent in government services that are made available and provided to everyone equally as a reasonable, proper, deserved, and legally right payment in return for taxes paid by all.  The term “just compensation” in this case would never describe money being given to a select few who provided government services in the past but who are not now providing government services in the present, that is: government retirees.

The U.S. Constitution has descriptions within it that must certainly be both literal and figurative, that is: the basis for moral equivalents.  For example, Article. I. Section. 9. [8] states: “No Title of Nobility shall be granted by the United States: …” What is a “Title of Nobility” if it is not the creation of a special entitlement that requires an ongoing funding of some sort by the tax-paying public?  How far is that removed from the reality of PERS funding in Oregon?  I submit: it is a moral equivalent.  Another example is the Third Amendment, which states: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”  That amendment is from the Bill of Rights (as is the Fifth Amendment), so the thinking of American Revolutionary War survivors must be considered when interpreting its intent.  Two words suffice in giving it meaning: requisition and commandeer.  Webster’s Dictionary defines the word “requisition” as: “… 2 a : the act of formally requiring or calling upon someone to perform an action  … 3 a : the act of requiring something to be furnished  b : a demand or application made usu. with authority: as (1) : a demand made by military authorities upon civilians for supplies or other needs  (2) : a written request for something authorized but not made available automatically …”  Webster’s Dictionary defines the word “commandeer” as: “1 a : to compel to perform military service  b : to seize for military purposes  2 : to take arbitrary or forcible possession of.”  “Houses” (read: people’s homes, barns, farms, crops, livestock, and horses — their livelihoods and their very beings) were requisitioned and commandeered at will by both the British military and the American military during the Revolutionary War, and “We the People” were still so mad about it more than eight years after the war ended that an insistent demand for justice resulted in the Third Amendment.  That is no small thing; indeed, it is a very big thing.  What is the difference between having a “house” requisitioned or commandeered by the military and having tax money requisitioned or commandeered by the State of Oregon to fund PERS?  Nothing.  Both are blatant acts of confiscation that violate the U.S. Constitution.  I submit: PERS funding in Oregon is the moral equivalent of what is forbidden by the Third Amendment.

The point of the two exampled moral equivalents reiterates the “basic and fundamental Rule of Understanding” stated above, which is: “the U.S. Constitution must have internal consistency within its sentences, its sections, its articles, and its whole, including within its amendments, and that consistency must be both intellectual and moral in its basis and both honorable and patriotic in its fibers, for it is what defines America.”  Any moral equivalents found in the U.S. Constitution will serve to illuminate, validate, and confirm the correct understanding of the intent of the rights granted throughout the document, for truth is truth is truth or it is not true at all.

The simple truth is: PERS funding in Oregon is violating certain rights that are granted to every American citizen by the U.S. Constitution, and those rights cannot be denied to anyone, including children.  Though the language — “nor shall private property be taken for public use, without just compensation” — suggests that only actual taxpayers have an entitlement to any compensation, I argue that the Constitution is not only a private contract between each citizen individually and the government, but is also a public contract between all citizens collectively and the government.  Truly, the United States of America is one for all and all for one in its Constitution, and that is an inseparable oneness in every respect.

The spirit, the soul, the mind, and the heart of the public contract made by the Constitution of the United States of America for its citizens are found in the great words of The Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  In those words are lost something that must be found here, that is: the Rights to “Liberty and the pursuit of Happiness” do not guarantee accomplishments, achievements, or material success of any sort; they only guarantee the freedom to do what you want to do — to take risks, that is: to win and to lose.  It is essential to understand that here and now because PERS does not understand that at all.

PERS has a profound lie as its foundational assumption, which is: there is no risk in risk-taking if you simply declare that assumption in a contract, that you will somehow still have your shirt to wear even if you lose it in a gamble, that a participant ribbon of any color has the same value as the blue ribbon given to the winner.  A lie is still a lie no matter how you might restate it.  The truth is: the stock markets of Wall Street are not the Special Olympics, nor are they games in which no one keeps score and everyone wins; they are ruthless, mean places where fortunes are made and fortunes are lost.  PERS lost.

Sorting out responsibility starts by identifying the fiduciary — the “one that holds a fiduciary relation or acts in a fiduciary capacity” according to Webster’s Dictionary.  Fiduciary obligations are the legal obligations of trust or confidence placed upon those individuals who manage other people’s money — in this case, those individuals who actually make portfolio investment decisions for the PERS pension fund.  If money is handled improperly, recklessly, or foolishly by established legal standards, the fiduciary can be held personally responsible if losses occur, even to the point of having to cover the losses according to the requirements of fiduciary laws.

One thing is for certain, the citizens of Oregon are not the PERS pension fund fiduciary and do not therefore have fiduciary obligations of any sort that would legally require them to cover the fund’s losses.  The citizens of Oregon could choose by their own choosing to cover the fund’s losses out of the goodness of their collective hearts, but they cannot be legally compelled to do so under any circumstance.  Indeed, the citizens of Oregon have every right to stand clear of the train wreck as PERS suffers through whatever losses eventually happen, even if it is a complete loss of all funds. 

A labor contract must limit itself to the agreed dispersing of real and actual money, and not in any way ever rely on imaginary money — wished-for money — that might or might not appear at some later date.  There can be no play money involved in a final agreement; the money on the table must really exist and be fully accessible to be moved and spent according to the signed contract’s specifications.  It is unthinkable to even imagine otherwise, to be utterly daft and wholly irresponsible.  Yet the PERS contract must have been contrived in a place where unthinkable thoughts were acceptable and commonplace, for those who made the contract somehow agreed to spend money that they did not have and could not have except through robbery. 

Unfortunately, because of the wrong-headed notion that a labor contract between public employees and the State of Oregon somehow supersedes the Constitution of the United States of America and because of collusion in that notion all the way up through the Oregon Legislature (whose representatives and senators can be and mostly are PERS recipients) and the Oregon Supreme Court (whose justices are PERS recipients), an ongoing so-far-successful robbery of Oregon taxpayers has been going on for many years now, and it is safe to say that multiple billions of dollars have been stolen to date — yes, billions!  In the SYLLABUS, a recent article written by Oregon State Representative Dennis Richardson included the following: “…The PERS system currently has an unfunded liability of more than $14 billion and state and local public employers must pay the PERS cost increases from their budgets like they do all other debts.  In the current two year budget (2011-13 biennium), our State, local governments and schools were required to pay $1.1 billion over and above their normal PERS costs; in the next two-year budgets (2013-15), the PERS costs are set to increase by another $906 million, and then an additional $678 million in the following biennium. …”  By my reading, that means: (2011-13 biennium) $1.1 billion + (2013-15 biennium) $2.0 billion + (2015-17 biennium) $2.7 billion = $5.8 billion over and above their normal PERS costs (read: money that needs to be stolen from Oregon taxpayers).  Understand: the PERS problem has been a big and growing problem for at least ten years, so the already stolen money must easily exceed $3 billion by now.

(Then the LORD said to Moses, “These are the laws you are to set before them:)
   Whoever steals an ox or a sheep and slaughters it or sells it must pay back five head of cattle for the ox and four sheep for the sheep.
   If a thief is caught breaking in at night and is struck a fatal blow, the defender is not guilty of bloodshed; but if it happens after sunrise, the defender is guilty of bloodshed.
   Anyone who steals must certainly make restitution, but if they have nothing, they must be sold to pay for their theft. If the stolen animal is found alive in their possession —whether ox or donkey or sheep— they must pay back double.
   If anyone grazes their livestock in a field or vineyard and lets them stray and they graze in someone else’s field, the offender must make restitution from the best of their own field or vineyard.
   If a fire breaks out and spreads into thornbushes so that it burns shocks of grain or standing grain or the whole field, the one who started the fire must make restitution.
   If anyone gives a neighbor silver or goods for safekeeping and they are stolen from the neighbor’s house, the thief, if caught, must pay back double. But if the thief is not found, the owner of the house must appear before the judges, and they must determine whether the owner of the house has laid hands on the other person’s property. In all cases of illegal possession of an ox, a donkey, a sheep, a garment, or any other lost property about which somebody says, ‘This is mine,’ both parties are to bring their cases before the judges. The one whom the judges declare guilty must pay back double to the other.
   If anyone gives a donkey, an ox, a sheep or any other animal to their neighbor for safekeeping and it dies or is injured or is taken away while no one is looking, the issue between them will be settled by the taking of an oath before the Lord that the neighbor did not lay hands on the other person’s property. The owner is to accept this, and no restitution is required. But if the animal was stolen from the neighbor, restitution must be made to the owner. If it was torn to pieces by a wild animal, the neighbor shall bring in the remains as evidence and shall not be required to pay for the torn animal.
   If anyone borrows an animal from their neighbor and it is injured or dies while the owner is not present, they must make restitution. But if the owner is with the animal, the borrower will not have to pay. If the animal was hired, the money paid for the hire covers the loss.”  Exodus 22:1-15 NIV

The Lord said to Moses: “If anyone sins and is unfaithful to the Lord by deceiving a neighbor about something entrusted to them or left in their care or about something stolen, or if they cheat their neighbor, or if they find lost property and lie about it, or if they swear falsely about any such sin that people may commit— when they sin in any of these ways and realize their guilt, they must return what they have stolen or taken by extortion, or what was entrusted to them, or the lost property they found, or whatever it was they swore falsely about. They must make restitution in full, add a fifth of the value to it and give it all to the owner on the day they present their guilt offering.”
 Leviticus 6:1-5 NIV

(Jesus said) “It is easier for heaven and earth to disappear than for the least stroke of a pen to drop out of the Law.”   Luke 16:17 NIV

The laws of restitution are ancient; indeed, they have been part of Western Civilization since the Exodus led by Moses more than 3,400 years ago.  The law of the United States differs from God’s Law in many ways, which is very well explained at:  But whatever differences might exist between different legal systems, a constant is nonetheless always present, that is: the victim wants justice — to have his/her stolen property returned and then also to receive compensation for trouble and distress.  Until the victim is satisfied, order and goodwill will never be restored.

In current times, restitution looks like this:
American gets back Nazi-looted art: Tom Selldorff, 84, given back piece of his late grandfather's memory as France returns six of his stolen family masterpieces
Associated Press — Published: 03.20.13
Oregon Law: § 137.106 Restitution to victims
Copyright Infringement Penalties
The legal penalties for copyright infringement are:
   1. Infringer pays the actual dollar amount of damages and profits.
   2. The law provides a range from $200 to $150,000 for each work infringed.
   3. Infringer pays for all attorneys fees and court costs.
   4. The Court can issue an injunction to stop the infringing acts.
   5. The Court can impound the illegal works.
   6. The infringer can go to jail.

The more than $3 billion already stolen from Oregon taxpayers by PERS is a lot of money.  Add to that the hundreds (perhaps thousands) of job layoffs that have occurred and the countless careers that have been permanently derailed as a result of the ongoing robbery and what you have is a whole lot of buried rage that will certainly surface now.  Forgiveness is not a reasonable expectation, especially in a state that is known for not being religious.  So some sort of satisfactory restoration must happen as an effective restitution for all.

But understand this: when Representative Richardson wrote: “In the current two year budget (2011-13 biennium), our State, local governments and schools were required to pay $1.1 billion over and above their normal PERS costs,” he was describing money that was cobbled together mostly by redirecting existing tax revenues, thereby causing job layoffs (read: fewer teachers), tuition increases, user fee increases, government services reductions, park closures, shorter school years, and so forth — generally: doing significantly less of everything that government does at the local, county, and state levels, including public education from K-12 through the community colleges and through the universities.  In other words, a $1.1 billion squeeze was done that pinched everybody in some way.  For example, the first grader who had to share her teacher with more fellow students in a more crowded classroom and therefore did not learn how to read because her teacher did not have time to give her special attention.  For example, the 20-year-old young man who had to drop out of the university after his sophomore year because he could not afford the last tuition increase.  For example, the crime victim who suffered an attack because someone was released from jail early and who then lost his job due to his injuries.  The many plausible examples fall far short of the countless true stories that undoubtedly happened in every community in Oregon.  Of course, increased taxes also helped “pay $1.1 billion over and above their normal PERS costs,” but only as necessary after draconian cuts in government services were done first.

Satisfactory restoration is therefore not an easy fix.  The right thing to do should include full refunds to all current and former college and university students of the tuition increase amounts they paid that were necessary to fund PERS, and also an immediate rollback of tuition to a level that only includes “normal PERS costs” should happen.   Additionally, any tax increases that were ever implemented by any level of government to cover costs “over and above their normal PERS costs” should be immediately cancelled and full rollbacks should occur. 

Certainly, no public school district in Oregon should be allowed to spend even one penny “over and above their normal PERS costs” under any circumstance, not even if the teachers and administrators want it.   It must be permanently established that the money spent in a labor contract is only for services rendered during the duration of that contract, that nothing at all carries forward as a continuing obligation, and that what is agreed upon in a contract represents and actually is sufficient and full payment for all services that will be rendered during the time of that contract, no matter what.  Furthermore, deferred payments of any sort should be forbidden in individual employment contracts with high-paid executives, administrators, and coaches who are PERS-eligible unless the entire deferred amount is fully funded at the time of the contract signing.  The State of Oregon should never be allowed to spend money that it does not have by somehow contractually establishing an unfunded financial obligation for a future generation.    

The PERS defined benefit pension cannot receive funding from the State of Oregon more than the normal funding agreed to by the current contract.  It must be understood that the citizens of Oregon are paying for current services only, and not for any services that were rendered years (even decades) ago.  What happened in the past is this: at each contract, a portion of the then available actual money was placed into a pension fund by agreement, and none of that actual money was a promissory note of any sort — it was real money.  That money was invested, and the increase or decrease of the pension fund’s value thereafter was due to investment returns, the ongoing addition of normal PERS contributions by the State of Oregon, and pension withdrawals by PERS retirees.  It can only be that way.  If the State of Oregon ever withheld normal contributions to PERS because the fund’s value surpassed minimum funding requirements at the time, the State of Oregon should rightly now pay into the fund any and all previously withheld amounts, but not one penny more.  The PERS contract payout scheme is wholly irrelevant if it does not now have 100% funding to meet its obligations.  At the very least, the citizens of Oregon are in no way responsible for the current shortfall in funding, and have no obligation whatsoever to restore any lost funding by any extraordinary means.

Simply, the taxpayers of the State of Oregon are entitled to receive full, ongoing, and immediate “just compensation” in “public use” government services for every penny of their “private property” taken through taxations and government fees, and that without any interference at all from PERS.  That simple declaration is a constitutional right guaranteed by the Fifth Amendment to the Constitution of the United States in conjunction with Article. VI. [2].

Critics will undoubtedly try to link PERS with Social Security in some way, but there is no link between the two.  Social Security exists as a retirement system in which everyone pays in and everyone is benefited.  But PERS exists as a private pension fund for public employees, a group that includes maybe ten percent (10%) of Oregon’s population.  It is unreasonable to think that 90% of Oregon’s population is in any way responsible for guaranteeing the performance of a pension fund that benefit’s only the other 10%, even if that 10% are retired public employees.  Certainly, PERS recipients would never agree to personally contribute their own money to guarantee the performance of failing pension funds that benefit workers in any of Oregon’s many private industries, yet they have the temerity to demand that the citizens of Oregon guarantee the performance of their own pension fund simply because they put that obligation into the language of their contract.

One should not make a mess of things unless one is willing to clean up, too.  Others will determine the final outcome of this matter, but I can here offer my solution.

If PERS recipients want to fight amongst themselves until they solve their own problem of how to equitably share what remains in their pension fund, let them fight.

If PERS recipients dare to ask the citizens of Oregon for help of any sort, offer them help conditionally as long as the conditions are strict, unbending, and harsh enough to solve the problem.  Understand this: if PERS recipients ask for help, they should have no leverage whatsoever in determining the outcome.  By all accounts, they deserve nothing more than what they have already received, and they already now owe their fellow Oregonians a debt that they can never repay — literally billions of dollars.

DO THIS: List every PERS recipient now receiving a retirement income from top (highest PERS income) to bottom (lowest PERS income).  Establish the exact median income level and then go up the list one spot, that is: median + 1.  Drop the income of everyone listed above “median + 1” to exactly the income of the PERS recipient at “median + 1” and establish that drop in income as a permanent change.  Everyone at or below “median + 1” would suffer no loss in income.  All PERS recipients would have their income frozen at either “median + 1” or their current income below “median + 1” until … maybe forever, and no new Tier 1 or Tier 2 PERS recipient retirees would receive a higher income than “median + 1.” No cost of living adjustment (COLA) would be granted until it was firmly established that the pension fund could afford it with available money.  If the pension fund is still in financial trouble after three years, make another top to bottom adjustment by establishing what the average PERS income is at that time and then dropping everyone above that average income to exactly that average income as a permanent change and as a cap income for all new Tier 1 or Tier 2 PERS recipient retirees.  Everyone below the average income level would suffer no loss in income.  Repeat the “average income” adjustment after another three years if the pension fund is still in financial trouble and keep repeating the same adjustment at the same time interval until either the pension fund is fully funded and able to support itself or until the repeated drops have placed all PERS recipients at the same income level.  If it happens that all PERS incomes are the same after repeated adjustments, permanently freeze the retirement incomes at that level.  Thereafter, if the pension fund ever returns to good financial health, the State of Oregon should recoup its losses by taking possession of any excess funds as they become available.

The “median + 1” solution guarantees that a majority of PERS recipients should be satisfied because they would suffer no loss in income.  Of course, some PERS recipients from above “median + 1” will be furious, but that cannot be helped.  Any effort on their part to make proportional adjustments or percentage adjustments should be flatly rejected outright, because any such adjustments would be catastrophically ruinous to those with the lowest PERS incomes.

The only possible complication I would tolerate would be to honor length of service by making seven different top-to-bottom listings instead of just the one described above.  Those seven listings would be: 1) less than 10 years service, 2) 10-14 years service, 3) 15-19 years service, 4) 20-24 years service, 5) 25-29 years service, 6) 30-34 years service, and 7) 35 or more years service.  If doing the complication benefited those PERS retirees whose public careers lasted 20 years or longer, then I would do it.  Otherwise, I would stick to the simplicity of one listing.

Those who object should consider what happened after Bernie Madoff’s Ponzi scheme collapsed.  Consider:
Many smart people — experienced investors — got whacked pretty hard.  Some individuals were completely wiped out. 

To reiterate from the SYLLABUS, I wrote:
>> COMMENT: Translated, the above quote reveals that PERS calculates according to its own economic and demographic assumptions an unfunded actuarial liability (UAL) of $8.1 billion, but that three other reputable and noteworthy sources have calculated the UAL for PERS according to their own economic and demographic assumptions with startlingly different results: PEW calculates a $10.7 billion UAL, Kellogg calculates a $37.8 billion UAL, and AEI calculates a $42.2 billion UAL.  Obviously, a prudent observer would conservatively conclude that PERS is vastly underestimating its UAL.  Indeed, a simple average of the four UAL numbers results in a $24.7 billion UAL — a number that is more than three times the PERS-stated UAL of $8.1 billion!   
I then quote Oregon State Representative Dennis Richardson who wrote:
The PERS system currently has an unfunded liability of more than $14 billion and state and local public employers must pay the PERS cost increases from their budgets like they do all other debts.  In the current two year budget (2011-13 biennium), our State, local governments and schools were required to pay $1.1 billion over and above their normal PERS costs; in the next two-year budgets (2013-15), the PERS costs are set to increase by another $906 million, and then an additional $678 million in the following biennium.

If no one knows what the PERS unfunded liability is and the estimates vary dramatically and are increasing by multiple billions of dollars as time passes, then stop the bus and get out if you can.  If you have to, jump out!  But PERS is a train wreck that is already happening, and the damage that is plainly inevitable will be crushing.  The choice is to let the State of Oregon go bankrupt and then take that opportunity to disconnect from PERS or to now lay claim to the rights and protections of the Constitution of the United States as I have done above.  Oregonians are citizens of the United States, so we should demand the rights and protections that we are entitled to as citizens — and that right now!

Finally, some lawyer or judge or Justice will foolishly say that the Fifth Amendment clause “nor shall private property be taken for public use, without just compensation” is about “eminent domain,” and he/she will then smugly trot out what you can read at as if they won the war in doing so.  Well, read the U.S. Constitution front-to-back and then back-to-front as many times as you want and you will never find the term “eminent domain” used anywhere.  The Bill of Rights, which includes the Fifth Amendment, was written and ratified in 1791.  The wikipedia article linked above includes this excerpt: The term "eminent domain" was taken from the legal treatise De Jure Belli et Pacis, written by the Dutch jurist Hugo Grotius in 1625, which used the term dominium eminens (Latin for supreme lordship) and described the power as follows: "... The property of subjects is under the eminent domain of the state, so that the state or he who acts for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But it is to be added that when this is done the state is bound to make good the loss to those who lose their property."

What do we now know?  The term “eminent domain” was coined in 1625 as a legal term, and the Bill of Rights was written in 1791 — 166 years later — by educated gentlemen who were thoroughly schooled in the law.  Without a doubt, if the authors had intended to limit their intent to the then already long-established legal concept of “eminent domain,” they would have certainly used the term “eminent domain” to make their intent crystal clear and indisputable.  But they deliberately chose to not do that.  Instead, they used specific language to open a door that is now finally being fully opened in May 2013 by this petition “for a redress of grievances on behalf of the school-age children of the State of Oregon who are suffering an unfair dismantling of their public school education opportunities as a consequence of wrongful and illegal tax money mismanagement by adults within the state government.” 

But a surprise might be waiting.  The wikipedia article linked above also includes this excerpt: The exercise of eminent domain is not limited to real property. Governments may also condemn personal property. Governments can even condemn intangible property such as contract rights, patents, trade secrets, and copyrights. Even the taking of professional sports team's franchise has been held by the California Supreme Court to be within the purview of the "public use" constitutional limitation, although eventually, that taking was not permitted because it was deemed to violate the interstate commerce clause of the U.S. Constitution.  Maybe others are already through the door.  Maybe the doings of this petition will not be difficult after all. God be praised.  Hallelujah!

Finally, I believe in full disclosure if any self-interest is involved.  My self-interest regarding PERS has to do with two amendments to the U.S. Constitution that I proposed on December 12, 2011.   Those two amendments together would permanently restore to America the blessings of full-employment economic vitality and best-in-the-world public school funding.  PERS is a job killer of the first rank, and I will not allow it to ever suck even one penny out of the potential of my two proposed amendments, which are:

Proposed Amendment XXVIII
Re: Article I Section 8. [3]
All multinational corporations or enterprises, international corporations, transnational corporations, and micro-multinational corporations with management headquarters located in a home country outside of the United States shall be recognized as foreign Nations, and shall be required to contract an Agreement with the United States Congress before selling their goods and services in the United States or its territories.

Proposed Amendment XXIX
Re: Article I Section 8. [8]
The United States shall have one percent (1%) ownership of each and every copyright and patent issued and registered by the United States government. The ownership shall be limited to the pre-tax gross revenues generated by any and all uses of that which is protected by U.S. copyright and patent law, and all such ownership shall be without exception. All revenues earned from such ownership shall be used to fund the free public education guaranteed to citizens by law, with all revenues from patents supporting Science, Technology, Engineering, and Mathematics education exclusively and all revenues from copyrights supporting either Arts and Humanities education or Physical Education and Health education exclusively according to the general categories that create the revenues (i.e. computer-related patents support computer science education, music copyrights support music arts education, sporting event copyrights support physical education, and so forth).

My commentary regarding my two proposed amendments can be read at:

Steven A. Sylwester
May 17, 2013

I used Webster’s Seventh New Collegiate Dictionary (Copyright 1976) throughout.

* * *


Today is Pentecost, May 19, 2013, two days after I personally hand-delivered the above petition to the District Court of Oregon offices at the United States Courthouse in Eugene, Oregon.  I am happy about what I did and am confident about what the outcome will be.  However, it dawns on me: there was something I intended to include in my argument that I did not include that is suitable for mention here.

Then Jesus said to the Jews who had believed in him, “If you continue in my word, you are truly my disciples; and you will know the truth, and the truth will make you free.” John 8:31-32 NRSV

Truth can make a person free if the person can simply know the truth and believe it.  In the United States of America, what started out in 1787 as a constitution so concise that it fits on 17 pages of a pocket-sized booklet in its entirety has now ballooned — exploded — into a mass of laws so numerous, so complicated, and so impenetrable that a whole good-sized multi-room library cannot easily contain all of it.  Plainly, normal people — the common citizens — are no longer able to understand the laws that govern them without having to pay an attorney more than $100 per hour for guidance.  That is no way to run a country, especially when nearly all of the attorneys agree about nearly all of the basics of the law — meaning: they all share the same blind spots.

What that speaks to is the existence of monsters within the U.S. judicial system and its laws.  Monsters are not new.  In fact, they are everywhere.  Each of us has one or two monsters lurking about in our private lives in the forms of obsessive/compulsive behaviors, bad habits, and/or strange superstitions that we will not violate no matter what.  Every organized group has its monsters, and every hierarchy of any sort has a multitude of monsters, especially every workplace and office.  Monsters are all of those things that matter even though they do not matter at all to anyone except those who feed them.  They are the policies, procedures, norms, understandings, expectations, and goals that are truly nothing more than self-oppressions of one sort or another.  Yet we believe in them and feed them as if they were real, and we are surprised when we discover the truth that they are not real at all, that they are actually imaginary in every respect.

What happens when you stop feeding a monster is that the monster goes away; it simply vanishes.  Poof!  Just like that: gone.

PERS is a monster — a great big monster!  We feed it because we think we must feed it.  We fear some bad consequence, so we feed it more, as if the dragon might attack us if it is not pacified.  We have gone to the judges in the past and have asked, “Can we stop feeding the monster?” and they have answered “No.”  So here we are gutless and scared, and still feeding PERS, Oregon’s imaginary monster.

I say: forget about even trying to make sense out of whatever might be buried somewhere in a law library.  Instead, go back to where the truth can be found, and then continue in that particular word — that scripture known as the Constitution of the United States, including its amendments.  Believe.  Be a patriot.  Get a Webster’s Dictionary and find the truth you seek — the truth that will make you free.  That truth — the truth that will forever kill the monster known as PERS — can be found in the Fifth Amendment. 

If there is a secret to the how and why of my thinking, it can be found in reading my comment (the eighth comment) after the article at the following link.  That comment reveals the story of how I came to write the two proposed amendments to the U.S. Constitution that I included in the self-interest disclosure at the end of my petition.

God be praised!  Amen  

Steven A. Sylwester
May 19, 2013