America's New Manifest Destiny

It is truly amazing to watch the mainstream mudia and the U.S. imperial establishment jerk itself up into an hysteria of righteousness over the Ukraine. Simon Tisdall of the UK FemWoke Guardian, gives the issue the usual man-hate gender twist by calling Putin “a rogue male on the rampage, threaten[ing] to start a war no one wants.”

The actual rampage is the petard that Russia is threatening the “independence” of the Ukraine by massing 100,000 troops along its border with that country. Of course, it must be said in the name of equal petardism that Russian pieties about troops just engaging in pic-nic's and manoeuvres don't hold much vodka. Nor the claim that what it does within its borders is its own business. Mobilizations of troops tend to make everyone in the vicinity rather jittery as the “massing” of troops along various borders on 30 July 1914 rather proved.

But as usual, U.S.U.K. has a truly marvellous capacity for tunnel vision and forgetting anything over two days old. Russian troops area amassing!! Yes; does anyone ask why? Of course they do, but their answer (hostile intent! and male rage!) ignores everything that has preceded in the past 30 years. Is the cabal that runs USUK really that stupid? No, of course not. They are just hoping everyone else will be.

As a premise, it will be understood that all states have “spheres of interests” -- geographical locations which are deemed critical to either their economies and/or military defence. Mexico is unquestionably within the U.S. “sphere of interest.” Can anyone imagine what the reaction would be in Washington it Russia started funding paramilitary militias in Mexico, as the US has done in the Ukraine?

You would see Murka's political class swinging from the vines wildly shrieking like enraged chimpanzees.

The Ukraine is Russia's Mexico. Punto y Final.

Russia has always had an understood sphere of influence in Eastern and Southern Europe. No one in their right mind can doubt this. This sphere is grounded in ethnic affiliation (Pan Slavism), economic relations and military necessity. Russia is essentially landlocked and access to the Baltic Sea in the north and the Black Sea in the South have always been deemed existentially critical to Russia since the days of Peter the Great.

When the Bolsheviks seized power in 1917, there arose a fear in the West that Russia would use this sphere of influence as a politico-military springboard for “fomenting revolution” in the West. In other words, the fear was that Russia (now irreconcilably opposed to the liberal democratic money making way of life) would push its sphere of influence westward.

That fear was absolutely well grounded, especially after Stalin seized the reigns. Under the Treaty of Brest-Litovsk, Lenin had swallowed major territorial concessions as the price of getting some leeway to establish his New Communist Harmony in Russia proper. But the collapse of Imperial Germany, suddenly altered the equation. Where there had been a wall now their was an open path. Russia went to war against Poland. (It lost and if you ask any Pole he will tell you that Poland saved the West.)

(The Russian version is that it was only defending against subversive incursions by the West into its own territory, during the Red-White Civil War. This is true enough, but it also studiously ignores Comintern Doctrine calling for international revolution, next and most proximately in Europe.)

Once Poland had bought the West some Atmenraum (breathing room), the United Kingdom and France went to work building a cordon sanitaire against the Soviet Union. The idea was to put in place a string of authoritarian-fascio-monarchies from Finland to Romania. And it was done.

In British and French planning this was a (mirabilis dictu) a two-way cordon. As the saying went: to keep the Americans in, the Germans down and the Russians out. The French in particular were intent on squeezing Germany from both the east and west which is why France occupied the German Rhineland and had defence treaties with Czechoslovakia and Poland. What could be more ideal?

However, when the West's economic house of cards collapsed, the policy required revision. Thanks to the West's own economic stupidity (and the Depression was the result of stupidity), the West in general and Germany and Spain in particular were now fertile ground for proletarian revolution. Now the policy became: keeping the Americans in, the Russians out, and the German people down. This is what is today inappropriately called appeasement.

Why did England and the France “turn a blind eye” to the Nazis? Let's review. They had a policy of keeping Germany “down” -- i.e. indebted and militarily weak. Now they suddenly supported a man who vowed to repudiate the debt and vowed to make Germany militarily strong. So... Whitehall and the Quai d'Orsay suddenly said: “Oh yeah.... we were wrong. A strong, threatening Germany is what we really wanted all along.” Really?

I have a bridge to sell you in case you were interested.

Better to support an anti-communist dictatorship in Germany than let the Reds get a foothold in the very centre of Europe. From the Allies' point of view Germany now became the key link in the chain of containment against Russia and Revolution. But the strategy had major and obvious flaws. France had promised to “defend” Czechoslovakia if the latter were attacked. But in the days before air lifts the only way she could do this was by marching through Germany, repeating 1914 all over again. Ooops. Daladier woke up to this harsh reality at the Munich Conference. Similarly, no one in England was very bothered by Hitler's talk about lebensraum in the East. The Commies under the German boot didn't sound so terribly awful after all. The only difficulty here was that before reaching “room” in Russia, Germany would have to march through Poland. Ooops, again.

Germany always was and remains an astonishing, dynamic country. The calculation behind appeasement was that a strong Germany could be used as a bulwark against Russia but at the same time contain its strength 'more or less' within a sphere of influence somewhere in Central Europe -- that the revived giant could be kept within a box... or maybe a slightly enlarged box give or take a Czechoslovakia or two. Of course when the Giant-in-the-Box sprung out to help defeat the Commies in Spain, no one in England or France expressed much concern about that. Yeah... Spain wasn't central Europe but who cares about Spain anyways so long as it doesn't go commie.

No wonder Hitler called the Allied leaders “little worms”.

Well... we all know where all of this led to. The Western Allies got their cordon sanitaire against the Soviet Union, and then some. Hitler did exactly what he could have been expected to do when and, when he didn't do it in the way Britain preferred, she declared war on Germany and precipitated the Second World War. (Yes, you read that right.)

After Germany and Russia both lay in ruins, Stalin rather obviously vowed never to allow Western strangulation again. The Soviet Union moved into and occupied all of Eastern Europe and the eastern half of Germany to boot. From the Russian point of view, it made absolute sense both economically and militarily.

Once again the cry of “Containment!” went up in the West, with George F. Kennan being the town crier this time around. Only now the cordon sanitaire ran through France and the Low Countries plus Turkey, Greece and Spain. The idiocy of the Cold War is summed up in Churchill's famous “Iron Curtain” speech. Think about it. A curtain is not an instrument of aggression. It is a shield not a sword. So now we found ourselves building a chain of containment against Russia's shield of containment. Two sides buffering against one another. Poor France. Once a player now reduced to what was in effect America's Poland, a buffer state against Russia.

The United States and the Soviet Union, having each established their containment-buffer zones, as effectuated in the NATO and Warsaw Pact alliances, now went to work confronting one another along the periphery: Korea, Taiwan, Cuba, the Congo, and Vietnam. To a certain extent these peripheral confrontations were driven by access to resources but, for the most part, they were simply ideological. Each side believed they offered a better way of organizing society. Because capitalism is a system driven by the ideal of making money, Western “ideology” could never be entirely divorced from filthy lucre. Russia imposed a plunder economy on eastern Europe, but its support of Castro's Cuba was a net economic loss. Its aim was to undermine pro-U.S. regimes in Latin America and advance the communist revolution. Similarly there was no economic advantage to America's incursion into Vietnam. It was done merely to maintain “credibility.”

And so it went, until the Soviet Union seemingly collapsed over night. In actuality, its collapse began when Nixon and Khrushchev argued over a washing machine. In what was know as the “Kitchen Debate,” Nixon showed off the latest in consumer hardware to Khrushchev arguing that no one supplied the housewives of the world with better washers and kitchen appliances. Big Nikita had no ready answer. You could see it in his downcast face. When it came to providing its people with consumer junk, the Socialist Paradise failed. First to put a dog into space, yes! Last on the the spin cycle. Khrushchev returned to the Kremlin with new orders to beat the capitalist west at their own game. The Consumer Race was on.

At this point, the Soviet Union lost its raison d'etre and with it the cold war. Socialism was no longer an alternative way of life, an alternative vision for society, but merely an alternative way of achieving the same goals as the West. Within months the first Walmarts opened on Red Square only that it was called GUM -- Russian initials for Great Universal Merchandise Store, where everything -- literally everything from sausage to saws to skirts was offered under one roof. If the Russians expected to produce better crap than the Germans, the Japanese or the Americans, they were sorely mistaken. Russian consumer products became a lacklustre joke: imitative and poorly made. The point and shoot LOMO was so bad, that it has since become a speciality artifact in the camera world with its own brand of imaging known as Lomography. Now manufactured by venture capitalists of course.

The demise of the Soviet Union was inevitable. Simply put, socialism -- as a system -- is not designed to churn out an endless cycle of consumer goods for its own sake. It is typically said that socialism is not “as efficient” as capitalism. That is a canard. Capitalism is an incredibly wasteful and inefficient system. What capitalism is excellent at is shifting and hiding the costs. At this, socialism sucks. Cambodia's Pol Pot understood this which is why he made consumerism a capital crime.

Nevertheless from the late 50's to the late 80's the Party of Lenin struggled to produce Ozzie and Harriet on the Volga. It was a valiant effort, the way a hunchback trying to do ballet is a valiant effort. But what ultimately did the Soviet Union in was its inability to maintain an arms race and a consumer race going at the same time. Reagan set out to bankrupt the Soviet Union and because the Soviet system was lousy at shifting and hiding costs, Reagan succeeded.

In an effort to make socialism work more efficiently to better meet the needs of Soviet citizens the Soviet leadership began to adopt elements of liberal economics, by gradually unregulating the economy and, concomitantly, freeing up the political process. At the same time they sought a rapprochement with the West. It is difficult to imagine exactly what the leadership was thinking. Tolstoy would probably have said, that the leadership was simply following its own loosening grip. Certainly, one by one of the countries in Eastern Europe and one by one of the various Asian republics that had formed part of the Soviet Union, broke away and declared independence. Finally, the citizens of Russia themselves broke away.

If the Russian leadership was at a loss within circumstances beyond their control, the West most certainly was not. It played a long, multi-faceted game aimed at undermining the Soviet Union -- a game which took full advantage of a virulently anti-communist pope who all but acted as a one man Fifth Column in Poland. The countries within the Russian grip began to squirm and the more they squirmed, the more the grip loosened and the more it loosened the more they squirmed engaging in spontaneous emigration, labor agitation, political demonstrations and demanding economic liberalization. One would have to be a fool not to think that the U.S. was not covertly assisting these movements through the device of NGO's.

But Russia was not powerless. It still controlled the state apparatus, and there were those within the various governments, most notably East Germany, that demanded a more Stalinism, not less!! The Kremlin was stuck within a dilemma of alternatives.

The critical moment came in 1989 when the Deutsches Volkes demanded reunification. Autonomy for Azerbaijan or Poland was one thing, Germany was another for the simple reason that half of Germany belonged to NATO whereas no part of Azerbaijan or Poland did. Were Poland to leave the Warsaw Pact, it would become merely a militarily neutral buffer state. A united Germany within NATO meant the abandonment of the very foundation of Russian policy in Europe since the capture of Berlin in 1945

I have not read that Russia proposed the withdrawal of West Germany from NATO as the price of unification with East Germany. If it did make such a proposal it did not lift off ground. In the end, Russia simply agreed to German re-unification within NATO. Just as astonishingly it did so on the basis of a gentleman's assurance that “with this last demand” the West would not demand more. (Where oh where had that refrain been heard before?)

U.S. Secretary of State, James Baker's “not one inch eastward” assurance about NATO expansion in his meeting with Soviet leader Mikhail Gorbachev on February 9, 1990, was part of a cascade of assurances about Soviet security given by Western leaders to Gorbachev and other Soviet officials throughout the process of German unification. But nothing firm was put into writing.

It is hardly surprising that Gorbachev was almost assassinated by the hard liners. But the denouement that followed was swift. Without the cornerstone of Soviet post war “architecture” the structure fell like the proverbial dominoes. One by one, in swift successions, the Baltic and Balkan states declared their independence. In Russia itself a power struggle ensued between Stalinist hardliners, Gorbacheffian socialist liberalizers, and Yeltsin's neo-liberal capitalists. That, in gross, is the struggle that ensued in all of the territories of the former Soviet Union.

James Baker had not lied. The U.S. did not demand “one inch eastward” only a mile. Corporate operatives, NGO's and the CIA all went to work “investing” in Eastern Europe and carving up the Russian turkey for themselves. They introduced “shock treatment” market reforms in Poland, Russia and elsewhere. After all freedom is not without pain! Yeltsin, now a clueless alcoholic played the role of Herr Professor Ratt to Bill Clinton's Blue Angel. Half clown, half puppet, he allowed Russia to become the West's plaything. The loss of state control was so bad that the United States enacted legislation to assist in restoring government control over Russia's nuclear arsenal, lest Russian scientists, desperate to pay for living expenses, barter away plutonium to shady operatives.

By the end of the 1990's Russia was indeed reduced to playing the clown on stage, crowing like a cock while eggs were cracked on its pate. But whereas Herr Professor Ratt stumbled in shock and shame back to his classroom and died, a man called Vladimir Putin walked on stage to restore Russia's resolve and dignity.

The New York Slime can prattle all it wants, but Putin will go down in history as Russia's saviour. It is not easy to bring order out of chaos and Putin had his work cut out for him. First he had to stop the plundering of the country by capitalist wolves (foreign and domestic). Next he had to stabilize living standards and pensions (at least somewhat). Last but not least he had to restore Russia's military competence (the Russian fleet had literally been reduced to an assortment of rusting hulks in the Crimea). Most importantly, he had to forge a new national consensus out of the ideological cacophony.

In this latter respect, Putin was brilliant, in effect composing a Parsifal out of the themes of Russian history. He acknowledged the “mistakes” of the Communist era but did not disparage it. He paraded the glories of Imperial Russia, but made the Communist victory over Fascism the cornerstone of his new Russian nationalism. Lastly he restored the Orthodox Church to its former privileges and married it to a restored military. Communism as religion was dead. When it came to the economy, Putin adopted the Chinese model of state-directed laissez faire.

That marriage between government and corporate power is, in fact, the model pursued by all governments in this new global, neo-liberal world. The differences are those of mechanisms and degree. When Putin speaks of “our partners in the West” he is not being polite. Even as the New York Slime rails about Putin's authoritarianism, his alleged poisonings and his “interference” in the sanctity of Murkan elections, Exxon Mobil and Gazprom are happily co-venturing in the Arctic. Putin understands business.

But for all his accomplishments, Putin's Russia is in a weak position. It is not the economic power house that China became and it is nowhere equal to the United States in military power. Although Putin has taken steps to insulate his country from Western sanctions, Russia is not immune to them. Thus, Russia under Putin has been surprisingly acquiescent about the West's inching eastward. And inching eastward is Murka's New Manifest Destiny.

Actually not so new. General George C. Patton got the drift back in 1945. He understood quite clearly that Germany was not a systemic adversary. Noxious as its social and racial policies might have been (at least to some in the establishment), it was still a capitalist country within the capitalist orbit. The Soviets understood this. Even Churchill understood it. Most of Europe understood it which is why (if truth be told) the Nazis had significant anti-Bolshevik support throughout Europe, from Spain to Finland. If Patton was shit-canned six feet under, it was not because he harboured the wrong object of desire but because he was crazy enough to think that the U.S. could accomplish it.

Patton completely overestimated our capacities. The idea that Germany having shed its last blood amid a scene of utter devastation was in any way capable of suddenly rising up as a Phoenix and charging East was madness. The idea that the U.S. Army was capable of rolling back the Red Army was, to put it mildly, overweening pride.

In June 1944, 20 days after D-Day, the Russians launched Operation Bagration, their own final push against the Reich. The distance from Normandy to Berlin was 1,200 km/745 miles, which was the same as the distance from the Kiev longitude to the Oder River (60 km east of Berlin). But although both sides had a roughly equal distances to traverse, the Eastern Front was immensely broad. The distance from Riga in the north to Odessa in the south amounted to 1,500 km/ or 930 miles. The Russians amassed 2,3 million troops, the Allies 1.4 million, although this was later increased and does not count American forces in Italy. The Germans, with under half the men on either front, fought the advances for 10 months. Everyone was sick of war and the notion that the Americans could now somehow launch Operation Barbarossa II was, to put it mildly, lunacy.

But Patton, Himmler and like minds were right. The two systems were incompatible. That they were, for the moment, stalemated allies did not mean that, eventually, one would not have to give way to the other. Now in 1989, that the Soviet Union collapsed, the West (i.e. the U.S.) began where it left off in 1945. What are today called “Neocons” are really only the George Patton wing of the American Establishment.

The unification of Germany brought the NATO presence up to the Oder River and, with this much achieved, the Neocons went to work. First among them was the Russophobic Pole, Zbigniew Brzezinski whose geopolitical primer, The Grand Chessboard (1997), argued that the vast Eurasian land mass (from Portugal to the Bering Straights) was the field on which America's supremacy would be ratified and challenged in the years to come. Central to his thesis was the premise that no Eurasian challenger (read Russia) should emerge to dominate Eurasia and thus also challenge U.S. global pre-eminence.

The sorts of thing Brzezinski had in mind were evidence by the fact that it was he who convinced President Carter to give aid to the Taliban in order to suck the Russians into the Afghanistan trap. (They got sucked.)

Brzezinski's book was by no means the first to point to this game. Dick Cheney's 1993 “Defense Planning Guide” operated from the same premise of maintaining U.S. “pre-eminence” and advocated various strategic moves into Eastern Europe and the Baltic States, simultaneous with incursions into the Middle East. The mentality of the American military establishment was put on full display in the Neocon white paper Rebuilding America's Defenses (September 2000), published by the Project for the New American Century, a neocon think tank for the military-industrial complex.

"Retreat ... would call America’s status as the world’s leading power into question. As we have seen, even a small failure like that in Somalia or a halting and incomplete triumph as in the Balkans can cast doubt on American credibility. The failure to define a coherent global security and military strategy during the post-Cold-War period has invited challenges; states seeking to establish regional hegemony continue to probe for the limits of the American security perimeter.

“The pressing new problem of European security – instability in Southeastern Europe – will be best addressed by the continued stability operations in the Balkans by U.S. and NATO ground forces supported by land-based air forces. Likewise, the new opportunity for greater European stability offered by further NATO expansion will make demands first of all on Tomahawk cruise missiles have been the Navy weapon of choice in recent strike operations. ground and land-based air forces. As the American security perimeter in Europe is removed eastward, this pattern will endure, although naval forces will play an important role in the Baltic Sea, eastern Mediterranean and Black Sea, and will continue to support U.S. and NATO operations ashore.

The PNAC paper became wrapped into Bush's official National Security Policy of 2002. Could it be more clear in black and white? And that policy has been American doctrine for 20 years during which time the United States (and its Tag-along Allies) invaded Iraq (which had nothing to do with rooting out weapons of mass destruction), invaded Afghanistan (which had nothing to do with “smoking out” Al-Qaeda) and, one by one, incorporated the states of Eastern Europe into NATO and the global neoliberal economy.

Where was the “threat” justifying NATO expansion? At the time this enlargement of NATO took place there was no Soviet Army to speak of it. The army was a husk and the navy was rusting away. Russian infrastructure was being carved up and devoured by private investors with no allegiance to anything but their Swiss bank accounts. Ah!!! But in the inimitable language of the Neocon mavens, Russia was now a potential threat -- a possible harm that might possibly arise in the future.

One really has to wrap ones mind around the warped neocon mentality. The maintenance of American preeminence and credibility requires us to roam the world seeking to deter anything and anyone who might possibly present a threat to us at some future time. Preemptive deterrence. This is the “policy” of a school yard bully, plain and simple.

It is also important to recognize that current neocon full spectrum dominance includes everything from nuclear and conventional strategic was to secret black ops. And those black ops include ostensibly spontaneous “Orange Revolutions” organized at the grass roots by NGO's and the CIA. That is why Putin expelled Western NGO's. These subversive operations then get wrapped up in aspirational sentimentalities and peddled to a gullible public by the New York Slime.

That is what happened in the Ukraine. Anyone who swallows the New York Slime's version of the Maidan Revolution (Young Millenials singing “Love, Love, Love” -- I kid you not) should pursue a career in deep throating.

To say that the Ukraine had always been within the Russian sphere of influence would be a major understatement. As stated, the two countries have been tied together in much the same sort of way the United States and Mexico are bound together by geography, history and economics. Suffice to say that as of 2010, Russia was the Ukraine's principal trading partner. In that year, Victor Yanukovych was elected president of the Ukraine. The Great Obambi even hailed his free and fair election. This was the sweet talk the precedes a seduction. Previous governments in Kiev had been making overtures to the E.U., and Yanukovych was no exception. However, a comprehensive trade agreement with the EU would have impacted Ukraine's trade agreements with Russia and Yanukovych began treading water.

The situation was complicated by the fact that although the Ukraine might have been the bread basket of the East but it was a financial basket case. It needed loans; or more accurately said more loans. In 2013 the Ukraine asked for €20 billion (US$27 billion) in loans and aid from the EU. The EU counter offered €610 million ($838 million). Russia was willing to offer $15 billion, as well as cheaper gas prices. In addition, the EU demanded major changes to Ukraine's regulations and laws, but Russia did not.

When it was perceived that Yanukovych was inclining to accept the Russian offer, protests erupted in an early Spring. When the government suppressed the protests, the West imposed sanctions and things spiralled down from there. The West wanted Ukraine on the cheap and was prepared to use subversion to get it.

As Tolstoy observed, it is impossible to strategize history. There is never any one single motive or cause for a particular event or development. Rather history is an ineffable calculus of millions of individual impulses arising from their own reasons and coalescing or diverging in time. Although Ukrainians are part of the greater Slavic family of peoples, the nation itself is polyglot being formed by myriad migrations into the country. Over time it has been part of the Polish-Lithuanian Commonwealth, the Russian Empire, independent, and part of the Soviet Union. It is religiously divided between western and eastern rite Christians. With such an amazingly complex and convoluted history it is no surprise that everyone can cite precedents back to 890 A.D. for whatever position they want to hold. That said, its principal division today is between Russophone Ukrainians in the east and Ukrainian speakers in the west.

In 2013, there certainly were peaceful protests, in the nature of public assemblies, on the part of western Ukrainians preferring affiliation with the E.U. But generally “overlooked” (i.e. suppressed) in the Western mudia was the fact that the strongest and most vocal among these pro West protestors were those Ukrainians who were so militantly nationalistic as to be easily confused with neo-Nazis. (And that's being as diplomatic as possible.) Chief among these were the Svoboda party, the descendant of WW2 collaborators with the Germans, Pravdi Sektor and, most recently, the Azov Brigade, the latter two being open and active militias, with a strong anti-semitic accent. (Unfortunately, in its crusade to sanitize reality, Youtube has taken down many of these “offensive” and “distressing” videos, meaning that one is forced to rely on official media slime for his dosage of “truth.”)

The European remembers of the EU and NATO were reluctant to push things too hard but the United States was not. “Fuck EU” said Undersecretary of State, Virginia Nuland, who funnelled support to anyone willing to take on Yanukovych by whatever means. Guess whom.

Once the “militants” physically toppled the government, Western technocrats and advisors came in to tidy up the situation by installing more “acceptable” puppets. No doubt western agents pulled some of the militants aside and strongly advised them not to flash 14-88 signs from within Parliament..... jeezus!

To anyone sitting in Moscow, the end-game of all this was clear. Ukraine was being dragged by force and violence into the EU/NATO sphere of influence, and with the dragging would come Crimea, home port of the Russian southern fleet. The Kremlin knew all about The Grand Chessboard and “pushing America's security eastward”. Putin reacted swiftly and unequivocally, as he should have. No leader anywhere can allow his country to deprived of its major naval installation.

Needless to say, the western mudia, particularly in the United States, went into paroxysms of hysteria about yet another Hitler threatening peace and democracy world wide. If anyone was threatening peace in the region it was the United States which managed to get people to forget that Yanukovych had been legitimately elected and now had been run out office in what was a violent coup spear-headed by neo-nazis who thereupon marched into Eastern Ukraine and burned down a building full of union leaders. Nice.

The United States (with its Euro Puppies wagging their tails in line) then proceeded to work on a soft-integration into NATO by supplying Ukraine with western technology and arms. One of the recipients of back-channel US funding was the Azov Brigade, which was told in so many words that needed to tone down its Nazi rhetoric (as in “if you want money from 'the Jews in Washington' you better be nice to the Jews in the Ukraine”.) Azov complied but no one in the Ukraine is fooled.

Ukraine is clearly in the sights of the neocons in Washington, as well as their puppies in Brussels. Incorporation of the country into the NATO “defence structure” is the next “inch eastward.” It is the next step toward amassing troops and missiles on Russia's border. Is it any surprise that Putin has amassed troops of his own?

According to USUK, Putin has a lot of cheek demanding assurances that Ukraine will not join NATO. Secretary Blinken piously states that as an independent and sovereign nation, the Ukraine is free to join or not join whomever and whatever it wants. Far be it for us to tell them what to do! That is true. Ukraine can apply to whomever it wants, but that does not mean that the application has to be accepted. NATO has its own “sovereign” right to decide who it wants to accept into its club and whose acceptance might be more trouble that it is worth.

People in the West, particularly in the United States, are very skilled at not putting two and two together. Just this past August, America withdrew from another one of its victories in a foreign land. No doubt the librul readers of the New York Slime heaved a sight of relief. “Ahh... at last we've learned to love peace and stay at home.” But what was it Biden said in announcing the withdrawal?

"And here’s a critical thing to understand: The world is changing.  We’re engaged in a serious competition with China.  We’re dealing with the challenges on multiple fronts with Russia.  We’re confronted with cyberattacks and nuclear proliferation. 

We have to shore up America’s competitive[ness] to meet these new challenges in the competition for the 21st century.  And we can do both: fight terrorism and take on new threats that are here now and will continue to be here in the future.

  New? Ha ha. He just paraphrased Dick Cheney's Defence Planning Guide and ZBig's Chessboard. There is nothing new in this. The Ukraine is a pivotal flank in this new upcoming contest for Eurasia.

None of this is necessary. It is the result of a nation that, drunk on power, has publicly proclaimed that it will brook no compromises to its preeminence. Restoration of sanity lies with the German government, which alone has the clout to put an end to the insanity and which, if it will only overcome its historical masochism, has every interest in promoting cooperation and not conflict with Russia.

©woodchipgazette 2022

Maps as per fair use and courtesy B.B.C. 

It's All Arlo's Fault

America's New Civil War is the latest hot issue to bubble up in the info-stew of the murkan mainstream media. Gasping for air, pontificati -- mostly on the librul left -- bandy about words like divide and gap and violence or divorce. Of course, from an historical perspective -- that is, a perspective longer than the past two years -- it is a lot of stuff and nonsense. No surprise there.

America has always been divided. It's very inception only promised a “more perfect” Union. The nation has never enjoyed that shared cultural rootedness that obtains in countries like France, Germany, Sweden or Russia. That sense nous sommes chez nous that softens and ultimately neutralizes ideological and economic divisions.

This is not to say that these other countries have not experienced searing political conflicts. We would not be guilty of misinforming. But when the political framework has broken apart there yet remained a shared space to return to. Nous sommes Asterix! When America's constitutional container breaks there is nothing left but cultural incoherence.

The Second World War, by its very military-industrial nature, required a great “national effort” as the saying went. When the war was over, the people who ran the country realized that some national sense of Americanism had to be brought about if the country were to live up to its new imperial role, sub nom “leader of the free world.” Simply put, a shared sense of unity required a shared piece of the pie.

It was hardly rocket science. Even stone and bronze age societies understood that it was the God-King's duty to insure that everyone got fed from his royal graineries. Bismarck understood this, Teddy Roosevelt understood this and France, Germany and Sweden had each put in place the basics of the social (aka welfare) state even before the outbreak of war. When the war was over America finally brought up its rear.

However, America being the sort of place that it is, implementation of the welfare state was devolved onto the private sector. In other words, you can't have welfare unless somebody can make some money off of it! And so it was that providing economic security and social well-being was largely left to large corporations counterbalanced by equally large unions. The hard “charity” cases were left to the government.

For all its obvious defects, the system worked. The immediate post war period could well be called the Great Equalization. Jobs, housing, education, and health care were all broadly accessible. America provided something fairly unique in the world: freedom of movement and affordability which in turn gave rise to opportunity which is another way of saying that the future was nothing to fear.

This is not to say that there were no class differences. But these were not so pronounced as to be unbridgeable. In most states public education was as good as private and the very systemization of admissions and hiring (adopted from the military) tended to equalize opportunity.

The 50's and early 60's may have been culturally insipid, even sterile; but, for what it was worth, just about everyone participated in the new (and fun) mass consumer culture. Jack and Dick may have loathed one another, but if they were locked in a room together they would have ended up talking about football.

The Great Equalization excluded certain groups; religious nuts in Appalachia and Negroes just about everywhere. Otherwise, all modular Presbyterians drove to MacDonalds after Sunday services. All things considered, Truman and Eisenhower's fascism-lite was a great achievement which reached its apogee when the torch was passed to a new generation in 1960.

However, the achievement was not just about benefits. It was understood by all that the American Way of Life entailed obligations as well; and chief among these was universal military service. In fact, Saint Jack promised to extend the idea of service by creating the Peace Corps and, following the German model, initiated national fitness programs to make sure that youth were physically capable of serving. “Ask not what your country can do for you ....” was not cribbed from the Libertarian playbook.

If there remained a division in the country, it was between those in the North who felt military service was irksome and those in the South who were all yeehaw to enlist. But no one expected to evade the draft. It was fact of life and a common defining obligation shared by all men. Then came Robert McNamara.

As of 1948, all men 18 or older were eligible for a service commitment of 21 months. In 1951, as the Korean War got underway, the commitment was extended to two years, but exemptions were granted to full time students. A Universal Military Training provision which would have required 12 months military service for all males was never passed. In 1967 the Select Service Act was amended so as to end student deferments after four years of undergraduate study, leaving four years of draft exposure assuming a college graduation at age 22. In 1969, a yearly lottery system was introduced and student deferments were ended. If a man's number did not come up the first year, he was thereafter exempt forever. In 1973, the draft was abolished altogether.

What this brief summary of draft law shows is that the great principle of equal obligation was honoured mostly in the breach. At all relevant times, college students were exempt from the draft. In 1950 only 6.6% of the white population attended college. In 1960 that number had risen to 8.1% and, in 1970, it stood at 11.6% What these percents clearly signified is that the onus of military service fell mostly on the working and lower middle class. It is interesting to note that in 1940, the percent of whites in college stood at 4.9%. What this means is that the so-called great middle class achievement of the 50's only bumped up 1.7% of males into the “college class.” The other side of this same coin is that the majority of middle class men, and under, remained subject to the draft, while a ten percent upper and upper middle class could exempt themselves by affording to go to college. In other words, throughout the supposed socio-economic unity of the 50's and 60's there lay an insidious principle of division.

This divisive poison did not reveal its full effects until the Vietnam War began in earnest in 1965. As troop levels increased from year to year, so too the number of men actually drafted and so too the “importance” to privileged kids of their staying in school. I am convinced that Saint Jack would not have allowed this poison to seep. At least rhetorically (and rhetoric is important), he would have made the war an “all-together” sort of thing. He was an all-together type of guy and would have at least rallied all of us to ask what we could do for our country.

But McNamara, was a nuts and bolts kinda guy, for whom the country was a machine made of component parts. Machine America required engineers and doctors, ergo student deferments. While it also required mechanics and assembly line workers, these were more fungible. Worse yet, McNamara felt that the draft could be used to give the “disadvantaged” --- i.e., minorities and the poor -- the “training they needed” for life after wounding and death. He thus lowered the standards for draftees in order to catch more fish. McNamara's Morons they were called.

It is somewhat of a simplification to state that college kids were exempted from the draft whereas non-college kids were not. The military has a plethora of enlistment programs, most notably R.O.T.C.; and, as stated, there was still a draft liability after four years of college. Nevertheless, what it all boiled down to is that those in the upper end socio-economic strata could either avoid the draft altogether or delay-enlist as officers or flyboys, whereas those at the lower end of the spectrum got to be grunts. Whereas Kennedy might have created a contrary illusion, McNamara all but reveled in the division.

If you were 18-20 in 1966, you understood the matter very clearly. You could either stay in college or get drafted. If college didn't work out, you purchased a pyscho-medical deferment or simply ran away to Sweden or Canada.

Had the Vietnam War been a righteous war, the matter would have been simple enough: either you were a studious coward or you were not. But Vietnam was not a righteous war. Fully on the contrary, it was illegal, stupidly conceived and even more stupidly waged. If ever there were a war worth not participating in Vietnam was it.

This fact provided a certain moral cover for those who simply did not want to get drafted or have their lives “interrupted” as the complaint went. Of course, who in their right mind would want to get drafted into a war waged by incompetents like Westmoreland, from whose face stupidity all but oozed? Who would want to go get shot up in a war which the government assured us over and over and over again we were winning and that victory was just around the next rice paddy. Quite frankly, no one in their right mind.

But while this stance might have been politically or morally correct in the abstract, it covered a more troubling psychological issue: how could any man be sure that all his moral protestations were not simply cowardice disguised? He could not. Never. A conflict of interest undermined all protestations howsoever valid they may have been in the abstract. Those who went, not wanting to go, were on firmer ground.

It is probably fair to say that most men who think of enlisting do so out of universal desire to self-prove and be accepted as a man among men. In form or another this emulation of our fathers has obtained in all societies. The initial trials weathered, success brings individual confidence and social camaraderie.

But there is another, converse motivation as well, illustrated by a Boomer I knew who dropped out of school in order to enlist as a conscientious objector in a war he completely opposed. When I asked why he had done it, he answered very simply that he began 1965 with the conviction that II-S student deferments shouldn't exist during wartime. In other words, it was not right that some men of his generation should be marched off to war and others not. My friend accepted himself into the ranks of men in order to share their hardships.

These two motivations, neither of which is better than the other, flesh out what it means to be a fellow citizen, a social animal. Both motivations entail effort and endurance. Although each approaches the center from different sides both meet up in a sense of social solidarity born of sharing obligations within a common fate.

The sharing of obligations is more than “social construct;” it is embedded in our bio-psychic construct. Several years back, animal behaviorists at Emory University conducted an experiment with capuchin monkeys, in which the monkeys were had to do some sort of work, at the end of which they each got paid a cucumber. One day, with no lead up or explanation, at the end of the work-day, the scientists only paid cucumbers to half the crew. The monkeys went nuts. All of them were quite upset and even the capuchins that had been paid refused to work. The male instinct to join in to shoulder and to share, to equalize up and to equalize with is no different.

Everyone has his own story unique to his own circumstances, but what the Boomer Generation faced as a whole was a very simple choice: are we, Americans, in this together, or not? Do I, as a young healthy male, say “Not, I” as I watch another man, of my kind and age, being marched off to war? And if so, what does that say to all my protestations about brotherhood and country, and, of course, “doing the right thing” ?

The phrase My Country Right or Wrong, embraces an awful ambiguity. By those who protested the war it meant: my country whether it does right or wrong which of course embraced the supposed rightness of doing wrong. But to those who submitted to the draft it meant: right or wrong, my country. In other words, we don't have that thing we call country unless -- for better and for worse -- we all stand together among ourselves as one of a country.

This latter interpretation is nothing to be taken lightly. It means that one is willing to get one's self shot up for nothing good, for nothing noble except that of living the ideal of solidarity with one's fellow countrymen. I enlist, because my brother enlists and I cannot let him go alone.

Thus viewed, it can be seen that McNamara struck a terrible, divisive wedge into the feeble fabric of the American Gemeinschaft. And, the more privileged half of the Boomer Generation was more than happy to strike the wedge in even deeper. “Hell no! We won't go!” The depth of their moral commitment was cynically put to the test by Richard Nixon. Protests against the war fizzled into insignificance once the heat of the draft was removed.

In the decades that ensued, these Boomers, now become the Clinton Class, continued their pursuit of Me, Myself and Mine further perpetuating this country's economic divides and making a shambles of the Great Equalization of the 50's and early 60's. Smoking dope and rutting in the mud at Woodstock gave way to the pursuit of real estate under cover of religiosity or Aquarian spirituality. This was not a change of course, it was a continuation of that course which was implicit in turning one's backs on “those who were unlucky enough to get drafted.” Beneath all the lovey-dovey peace & kumbaya chanting, beneath “growing up at last and getting a job” lay the quiet little sin of turning one's back on one's own generation.

An estimated 400,000 attended Woodstock

 

The rationalization that one was helping those drafted by seeking to end the war they were drafted into was, like virtually all other liberal protestations, a canard. If you are your brother's keeper you share his fate with yourself and your wealth with his poverty. It's as plain and as simple as that. No circumlocutions needed.

In short, today's economic divide is no accident. It flows from a principle of societal division -- of voluntary civic alienation -- which was embraced by the privileged half of the country.

Sadly, the other half of this equation retained none of the higher ground it might have, as they fell into resentment, racism and retaliation that was exploited and engineered by the Republican Party which, we must never forget, is simply the other half of the privileged class.

First came Nixon who cunningly wove together disaffected Southerners resentful of integration with working class whites resentful of having been integrated into the military in a cause which was increasingly disparaged. Those who opposed the war never quite got the effect that protests in the rear have on those “at the front.” There is nothing like a bullet flying in your direction to distill things to the starkest of realities. You are either with me or you are not. There are no midway choices.

Then came Reagan who exploited these resentments further by injecting the working class with a narcotic, flashy, jingoistic militarism while at the same time destroying its unions. The barrage of militaristic and aggressive movies that hit the big screens in the 80's was the military industrial complex's answer to the hippy strobe light n' acid shows of the late 60's. They worked equally well.

Finally, came Clinton who, simply put, finished off the work of destroying the working class as such and then went on to push the lowest rung of all into the dirt of a lumpen sub-proletariat. Where was the New York Slime while all of this was going on? Somewhere in the Berkshires or the Hampton's one supposes.

What Reagan and Clinton in fact accomplished was to translate what was left of the working class into a volunteer/veteran class. Most of the old working class was left to rot away working in service jobs, shopping at Dollar Stores and dulling the pain with Oxycontyn. The luckier sergment got to avail themselves of enlistment opportunities. The military ...now highly technocratized... became the new working man's employer of first resort.

This achievement was itself the worst type of fascism possible. The Old Fascism had quaintly presupposed a universal militarization of society in which everyone classlessly was willing to make the ultimate sacrifice. This style of fascism is still seen in places like Israel. America's New Fascism (Not-So-Lite) created a new military working class. Historically speaking, the development makes perfect sense once it is born in mind that the term “military industrial complex” refers to a marriage or partnership between the government and private industry or finance as expressed through military presence and power.

It stands to reason that this complex will create the class it needs. At the same time, this complex will shunt aside and ignore whatever human mass it does not need. This is a repeat of what happened in the later Roman Empire when, as it was said, the democracy of the forum was replaced with the democracy of the legionnaire's camp. At this point, however, the observation of one politician comes appropriately to mind.

“The ditch which separates [the lower middle] class, which is by no means economically well-off; from the manual labouring class is often deeper than people think. The reason for this division, which we may almost call enmity, lies in the fear that dominates a social group which has only just risen above the level of the manual labourer - a fear lest it may fall back into its old condition or at least be classed with the labourers.”

Thus, no one despises the poor and disadvantaged more than the new military working class which has rescued itself from the sub-proletariate swamp by donning a uniform. At the same time, it continues to loathe the college educated Clinton Class which continues to indulge itself with investments and pieties while engaging in various forms of sneering, naysaying and reproving of others. America is reduced to hierarchies of loathing, disparagement and resentment, each of course appealing to moral certainties au gout.

There is only one way out: a sharing of obligations .... of universal military service, of universal and equally burdensome taxation and uniform distribution of the basic benefits of state provided education, health care, housing, state guaranteed job opportunity and universal single payer pensions.

No democracy can ever exist without raucous and usually stupid factional frictions. But no democracy has ever existed without a broad, stable middle class and only a moderate disparity of wealth. Any other argument -- be it trans-rights, gun-rights, racism.... you name it... is a distraction. A distraction which the upper 10% be they Republicans or Democrats are very happy to indulge it, because it distracts everyone else from the one issue of supreme importance to them: the 401(k) Issue.

Do I really blame all of this on poor Arlo Guthrie? No, of course not. He was just a kid with a guitar. But his album Alice's Restaurant, was symptomatic of the irresponsible me-ism of his generation, and that turning away from a sense of shared national obligation has had the consequences I have described. No one side can escape its fault but, in my opinion, the greater fault lies with that part of the Boomer generation that renounced the drawbacks of being an American while making use of the benefits in pursuit of their own happiness.

A country cannot be founded on equality of rights, because rights are individual and centrifugal. It can only be founded on an equality of obligations because it is these alone which pull all together toward the core. Until Americans of all classes are willing to recongize that fact and to take real concret measures to bring them about, the country will continue to not exist in actual fact. “America” will continue to be simply the cauldron for mutual loathing and hateful slogans.

Hope, Blame and Incompleteness at Christmas

This is one of my favourite Advent hymns; and not just mine but also within the Anglican communion of saints. (cough.) It is a hymn whose rising and descending cadences reflect the penitential joy that are at the heart of this awaiting season. It begins with a joyful declaration of Messianic Victory.

Thousands, thousands, saints attending
Swell the triumph of his train
God appears on earth to reign!

But it ends with a wrenching and desperate plea for deliverance.

Saviour, take the power and the glory
Claim the kindgom for thine own.
O come quickly! O come quickly! O come quickly!
Alleluya! Come, Lord, come!

Both stanzas crack me up to tell the truth. But they sing to a contradiction that anyone can quickly spot. If God appears on earth to reign, why are we telling him, in panicked desperation to come quickly, for God's sake come! ?

It seems to me that when Bible verses say “God shall do this” or “God shall do that” -- as in deposuit potentes de sedes, et dispersit superbos in mente cordis sui (he shall depose the mighty from their seats and disperse the proud of heart) -- what is really meant is that God wants to do it. But since, in this physical world, God only acts in and through the flesh, this means that we ought to do it. After all, if God intends it how can we refuse to do it? With this in mind, the first stanza is an invocation to all of us to “attend the train” of our deepest and highest hopes.

The last stanza, however, speaks the sad reality that we have failed and, in our failure, God remains absent from earth. This is a terrible state of affairs and leaves us crying in a near failed hope for God to fulfill himself, once and for all, by rendering complete our incompleteness.

For these reasons, I think it is a beautiful hymn that reflects the paradox of an existence that leaves us waiting.

Anyone can see that this sentiment has its roots in Jewish messianic longing and atonement; and one can ask why the coming of the Messiah, in 753 AUC, left things so up in the air, as it were.

But that said, the hymn then turns to a hideous Calvinistic us/them escathology.

First is the phrase “favoured sinner.” Who are these like favoured sinners shinning? Why should God favour one sinner over another? In he not an equal protection saviour?

“What shall I be pleading
When the just are mercy needing?
-- Dies Irae

If it is true that all our sins are like a drop in the ocean of God's mercy; if he will hurl all our iniquities into the sea (Micah 7:19), where does anyone get off saying that some but not all sinners will be forgiven? The Nicene Creed states that “for us men and our salvation, he came down from Heaven.” It does not say “for us favoured men....” So that line in the hymn is clearly inconsistent with the cornerstone of orthodox Christianity.

Suffice to say that I am impatient with priests and prattlers who try to walk back the ocean so as to make room for their moral (and money making) sand castles on the beach. The force of joy that underlies the universe either overcomes man or man overcomes it.

The next line isn't as bad but is still problematic.

Those who set at naught and sold him
Pierced and nailed him to the tree

is clearly cribbed from Matthew 27-54, which recounts that

The the chief priests and elders persuaded the multitudes that they should ask for Barabbas and destroy Jesus. .... Pilate said to them, “What then shall I do with Jesus who is called Christ?” They all said to him, “Let Him be crucified”
“Then the soldiers of the governor took Jesus into the Praetorium a ...They put [a crown of thorns] on His head, and a reed in His right hand....[and struck and spat upon him] Then they crucified Him, and divided His garments ... And those who passed by blasphemed Him, wagging their heads and saying, 'You who destroy the temple and build it in three days, save Yourself! If You are the Son of God, come down from the cross.' Even the robbers who were crucified with Him reviled Him with the same thing."

As is well known, the problem concerns “they all.” In Matthews's text, it is unmistakably a multitude gathered in Jerusalem whom the religious establishment had stirred up. (Sort of like Fox News goading Trumptards). But because Mark writes that “Then answered all the people, and said, His blood be on us, and on our children” later religious establishments used the narrative to stir up multitudes of Christians against the Jews in general.

There are endless wrangles over these passages, all of which strike me as moot nonsense. Clearly the historical situation involved particular actors (Jewish and Roman) in a theological drama. But in the end, the guy who was spat upon, nailed and crucified said from the Cross, “Forgive them father for they know not what they do.”

Now, I think it is pretty damn special to be able to forgive someone at the very moment he is torturing you to death, and to forgive those who got you to that point. But he did and that settles that.

The crucifixion scene ends with Jesus' death and miraculous occurences that point to Judgement Day: “the veil of the temple was rent in twain from the top to the bottom; and the earth did quake, and the rocks rent; And the graves were opened; and many bodies of the saints which slept arose ...” Can anyone argue with a straight face that come the Second Coming, Jesus is going to change his mind and not forgive people he already forgave in favour of only favoured sinners? Who might those “favoured” sinners be? If precedent stands for anything they would be those who called for him to be crucified and who drove nails into his hands. If he, who was “very God of very God,” was willing to favour his actual killers with forgiveness, he must certainly be expected to forgive those who merely transgress some portion of God's Manual for Better Living.

For me, personally, the refrains derived from Matthew are not problematic. They only become so from the force they take on in later historical context and from the allusion to “favoured” sinners. Charles Wesley (who wrote the lyrics) is unapologetically indulging in the divisive dichotomy of us the ransomed righteous / versus them the unransomed. I think this contrary to the spirit of Christmas. The promise of that event is not that some will be left Deeply wailing, Deeply wailing.

Given these concerns, there are several alternative lyrics. In some, “favoured” is replaced by “ev'ry.” In others the “those” is replaced by “we;” but this latter substitution doesn't make much sense since most of us don't go around piercing and nailing Jesus. I can't see anyway around this defect. The hymn certainly tries to convey the penitential sense of incompleteness and need for redemption, which I think is entirely appropriate to the season, but it flubs the issue by nailing the need onto others.

Too bad. Better to can the whole thing. :)

Rats on Board Empty Vessels

 
The latest buzz around the Beltway is about all the staffers leaving the USS Karamela. “Rats leaving a sinking ship,” according to one commentator. What the scurrying reveals is how utterly craven the whole damn lot of them are.

We can begin with Karamela herself. How could anyone be taken in by this sack of nothing save craven ambition? Karamela herself revealed her true emptiness when asked how she could run on the same ticket with a man whom she had called a racist during the televised debates. Emitting her trademark giggle, Karamela replied, “[giggle] It was just a debate! [giggle] just a debate! [giggle].”

In other words: It was just politics. What I say doesn't matter at all, because it's just politics. Politics is meaningless. Vote for me, I am an empty vessel! A weather vane in the wind. NOTHING I SAY MEANS ANYTHING.

What kind of person would self-advertise in that way? Someone who is in fact nothing but a sack full of lust so shameless that her ego swallows even her self-respect.

Now, I am not a babe in the woods. I know that diplomats lie and politicians bullshit. But there was a general acknowledgement among the lot of them that one must at least appear to be principled. That acknowledgement was at least an echoing recognition of the importance of the real thing, a vague remembrance of a standard of conduct that ought to obtain even if it (alas!) it doesn't. The point about Karamela, is that she sinks lower than even that.

But if the vessel was a rotten hulk, the rats leaving it are even worse. Most of the buzz among the chatterati swarmed around Symone Sanders, Karamela's senior advisor and spokeswoman. Sanders was uniformly praised as smart, brilliant and savvy. A real “asset” in Washington. She was Bernie's national press secretary in 2016 and then...

Whoooa! How does someone go from working for Bernie to working for the DNCC and from there to working as a senior advisor to Biden in 2020 and thence for Karamela? Well listen to Symone herself

"I'm very proud of the work we have done [with Bernie] and am now looking forward to helping elect down-ballot Democrats and do all I can to ensure a Democrat is the 45th president of the United States."

In other words, whom I work for doesn't matter! They're all just clients and it's all just politics.

Let's be clear. Biden and Bernie do not stand for the same things. To give one glaring example: Bernie believes in universal health care for all Americans; Biden believes in financial care for the insurance industry. I could go on, but I will assume that the reader has a passing awareness of the difference between Bernie and a neo-liberal, corporate steppinfechit.

What this means is that Symone, and the other rats like her, are willing to jump from ship to ship as long as they think the ship is going somewhere -- “has trajectory” as they like to say. For their own professional advacement, they hook themselves to whatver rudderless vessel without compass seems to be going somewhere. Principle means nothing. Honor means nothing. Direction means nothing! The only expedient that matters is to “make it” among the crowd of those who are also “making it” under the flag of their own self-importance.

You've heard of junk bonds? This is junk politics. It will end in a political crash. It can't come soon enough. To mix metaphors, our government is a rotten husk swarming with maggots. The sooner it is cut down and turned into mulch the better the prospects for this forlorn, plundered and forsaken country.

©

Before and After Roe

To understand Roe v Wade, one has to go back to Jim Crow.

A Court! A Court! My Kingdom for a Court!

In 1945, the United States stood astride the world like Atlas himself. The United States had everything and everyone else was either a pile of rubble or a primitive jungle. The United States held itself out as the beacon of democracy, liberty and plenty. And yet 10 percent of its population of 150 million were excluded from the paradise of the American Way of Life.

Negroes were not excluded by happenstance but by explicit laws (in the South) or through legal technicalities of one sort of another (in the North). It was no coincidence that civil rights activists (many of whom were Jews) began referring to Negro shanty-towns and slums as ghettos -- in an obvious allusion to the apartheid policies of certain foreign governments.

Segregation, if it was not morally reprehensible, was geo-politically untenable. We could hardly win the propaganda war against the Soviet Union when all Pravda had to do was print a “colored's only” water fountain on its front page. And truth it was too. Moreover, segregation was economically unfeasible as well. The United States won the war by becoming a well-synchronized engine of production and consumption, each phase in the cycle pumping and driving the other. Any society can tolerate a certain percentage of “dead wood” but there comes a point at which unproductive dross simply clogs the machine, which not only depends on but embodies the principle of circulation -- circulation of goods, services, labor and capital. If the pot isn't stirring it stagnates. The exclusion of 15 million people from economic activity of the nation was an impediment to commerce; and it was this very rationale that the Supreme Court relied upon in Katzenback v. McClure to strike down lunch counter segregation.

In short, the turn-of-the-century attempt to create a national American identity and the post-war attempt to created a uniform standard of living was stymied by the peculiar habits of the South. And yet the very Constitution which accorded equal justice to all was also designed to fail-safe the prerogatives of the minority which in this matter were represented by the Dixiecrats. Their choke-hold on the system was illustrated by the fact that in order to garner votes for his New Deal, Roosevelt agreed that New Deal programs would not necessitate racial integration. Now, twenty years, Congress was as incapable as ever of incorporating Africans into America.

To chip away at the impasse, the Supreme Court handed down its decision in Brown v. Board of Education (1954) which outlawed racial segregation in public, primary and secondary schools. The structure of the Court's argument was a straightforward application of the Equal Protection Clause which forbids state entities from treating persons unequally, and which had always been interpreted by the Court as forbidding unequal protection of the law on account of race.

The difficulty with the decision was its factual premise that separate was inherently unequal. In Plessy v. Ferguson (1896), the Court had held that separate was not legally “unequal.” As a geometric and logical conclusion, that holding was unassailable. Now, the Court ruled just the reverse on the basis of a handful of rather patently agenda-driven sociological studies. If indeed, separate schools are inherently unequal and represent a badge of inferiority, what are we to do with all those prep schools in New England? According to the Court's analysis, the denizens of those separated enclaves east of the Housatonic River were being deprived of an equal education. “You're damned right, we are; and proud of it,” might well come the derisive reply, snickered in segregated privacy.

Of course, on an intuitive level, the Court was completely right. Everyone knew the score. Even supposing that Black schools were truly funded equally, the whole apparatus was a denigrating construct that said: you are not part of us; you are strangers in our midsts. But it was a very dubious proposition that the law should seek to engineer social changes on the basis of select “studies” chosen by an extremely select few.

No one can argue that the Court had not taken sides on social and economic issues before. In fact, the law usually does. However, here, the context and manner in which it does so is significant. In the Middle Ages and through the Reformation, the law was frankly sectarian; it legislated customs, habits and beliefs. The French and American liberal revolutions swept that away and relegated the law to maintaining order in a laissez-faire economy. There were many more or less small breaches of this supposed neutrality but in the main the courts assumed that their role was that of a neutral umpire.

De libertate pistorum (On the Liberty of Bakers)

To be sure, “judicial neutrality” as much as a “free market” is a canard. There is no such thing as a market left on its own. The Constitution itself contains numerous provisions allowing for government stimulation and regulation of, science, the arts and so on. There was nothing free about massive grants of lands to railroads in the 19th century, except of course, that they were free. Nor was there anything very neutral about the Supreme Court's outlawing of labor “combines” (unions) while merrily protecting capital “combines” (corporations).

In Lochner v. New York (1896), the Court let the cat out of the bag by invalidating a state law limiting bakers' working hours on health grounds. The Court's ruling had a factual and a legal basis. Factually, the Court found that baking was hardly hazardous to one's health. Why grandma Peckham bakes every day! Factually this was totally incorrect, baking long hours daily is extremely hazardous to lung and musculo-skeletal health. Justice Peckham, who wrote the Court's opinion, simply pulled a fact from his ass. Legally, the Court's ruling was based on reading a non-enumerated right into the Constitution; in this case, the right of an “employee or employer” to freely contract his own hours. On what basis could the Court do that?

The Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This sentence plainly pre-supposes that rights can exist without their being listed in the Constitution or, for that matter, enacted by the legislatures. This, (in my opinion) is the singular feature that distinguishes French from Anglo-American liberalism.

In the French system, the State -- as interface for the Sovereign People -- is the originator of all rights. If it gives you a right, you have it; if it doesn't, you don't. In the American system, it is just the reverse. Rights are inherent in the natural condition of Man. Whatever they may be, you had them at birth. The phrase “God-given rights” is not merely a rhetorical embellishment, and when certain fundamentalists say that the country is founded on a belief in God they are not totally off-target. When you try to explain this to a European (that is, a person acculturated to the Civil Law tradition) they look at you as if you are completely out of your mind. “Right” is a social construct; it does not exist “in Nature” or at all except it be created and acknowledged by men. That is as obvious to them as “certain self-evident, inalienable truths” are evident to the Flawless Obambi, who never tired of quoting that cherished document, signed, 12.25 score years ago.... But I digress.

With this difference in mind, it can be understood that the Bill of Rights is not a declaration of right but a reservation of rights; and it will be noted that the rights are invariably phrase in the negative as something the Government cannot infringe upon. Thus, in Federalist Paper No. 84, Hamilton wrote,

“It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgements of [royal] prerogative in favor of privilege, reservations of rights not surrendered to the prince.”

The structure of the Bill of Rights (or Limitations on Government) is itself interesting. It begins by alluding to the rights of conscience, speech and assembly. It then reserves the right of armed personal and popular self-defence, before going on to protect the sanctity of the home, “except in time of war.” It then lists, in the Fourth, Fifth, Sixth, Seventh and Eighth articles the delimited ways in which the State can encroach upon and ultimately deprive a person of those rights.

Although these rights are often referred to as enumerated rights, it would be more accurate to refer to them as alluded rights. But either way, as any European would point out, the Ninth Amendment contains a massive principle of anarchy. If, indeed, each one of us has and reserves unto ourselves an infinitude of “other” rights, why can't anyone of us assert, as a self-conceived right against the State, the right to fetus flush at will, for example?

Avoiding anarchy, throughout most of the 19th century, the courts of the land interpreted “constitutional rights” as those mentioned by name in the Constitution (whether by enumeration or allusion) and that was that. In practice, however (putting aside the now irrelevant issue of whether the Bill of Rights applied to the States at all), these rights boiled down to two: the right to shoot your mouth off and the right keep and bear arms. In addition you had “half a right” to privacy in your person and home except in exigent or exceptional circumstances. No one questioned the power of the states to regulate all sorts of commercial and personal activity and behaviour, including laws against unmarried cohabitation.

Then came Lochner which discovered a “liberty right” against having your contract interfered with. Article One, section 10 of the Constitution forbids the states from passing any law “impairing the Obligation of Contracts.” This clause was intended to prevent the then prevalent practice of powerful kingfish in the several states using their legislative powers to repudiate their debts. (Yes, indeed, only in Murka, debtors' revolts of the rich!) Instead of prohibiting just that, our Infallibly Wise Framers,used an incredibly over-broad phraseology which no one in their right mind could take literally.... until Lochner.

Seizing on this clause, the Lochner court read into the Constitution a substantive right of “freedom of contract” akin to freedom of speech. The Court did not hold that contractual relations could never be curtailed or limited. It simply held that the right to contract was an alluded to right and that the State had the burden of justifying any curtailment or regulation of that right. The “and” part was significant because prior to Lochner it was sufficient for the State to duly and regularly enact whatever regulatory law it wanted. Now, in addition to enacting its laws with due process the State could also be called on to justify, in substantive terms, the reason for its legislation. Hence the term “substantive due process.”

Lochner was a perfect example of how a legal scintilla produces massive changes or a perfect storm. The case did not announce a corporate free for all. Its ruling ostentatiously protected the rights of “employee or [psst] employer.” And it “merely” called upon the State to justify it's intrusion to an “obvious” liberty. (“Merely” is probably the most favourite word in Anglo-American caselaw, and whenever you come across it in an opinion, you best run for the hills.) What the Court merely did was declare itself the arbiter of any and all contracts in the land.

On what basis was it to decide these contractual disputes? Without going into all the wrinkles, the “test” it used was to ask whether there was a “rational basis” for the law or regulation. And what did that mean? Casting into the flames reams of judicial prose, it meant simply whatever the Court wanted it to mean.

It has been said that Lochner was overruled in Westcoast Hotel v. Parrish (1937), but that is an oversimplification verging on plain wrong. Lochner did not prohibit regulation and Westcoast did not suddenly allow it. To this day, the Court continues to recognize a “liberty interest” or “freedom” under the Contracts Clause. The difference is that under Lochner the state had to justify its regulation whereas after Westcoast there is a presumption that the state legislature made a proper judgement that the regulation was expedient for the public interest. Basically, under Lochner and interference in the economic free-for-all was suspect; now, it is virtually the reverse.

The step-back from Lochner had huge economic implications. Whereas, under Lockner, the federal government had favored free market capitalism, it now favored regulation of the economy in the name of the general welfare. However, as important as this policy change was, it was also significant that it was the political branches of government that were making it. The Supreme Court itself, as an institution, stepped back from the fray. Whereas before it had stepped in in order to issue rulings in favor of corporate “liberty,” now it stepped out altogether and deferred to whatever policy choice Congress and the States came up with.

This change did not mean that the Court approved of everything and anything Congress and the States did. The Court still retained the prerogative of declaring a law unconstitutional. But this was a judicial veto as opposed to a policy choice made by judges.

The distinction is perhaps clarified by remembering that the key to Lochner was Justice Peckham's determination that baking did not present a serious health problem such as required regulation. Whether or not baking is a health risk, whether or not physical labor stunts a child's growth, whether or not women are capable of the demands of commerce, whether or not the education of Negro children is adversely affected by segregation are all socio-factual questions and not legal ones. The answers to these questions may affect what policies are enacted and, once enacted, these policies have legal implications (by which is meant that they have to be consistent and compatible with other laws), but the questions themselves are not “legal” or “judicial.” The judicial question is, as just stated, how an enacted law squares up with other laws and whether it is compatible or inconsistent with them. Go beyond that brief is what is meant by the overused adage that the courts' business is to “not to make policy but to interpret the law.”

This view clashed sharply with the rise of the New Jurisprudence (my term). In the last quarter of the 19th century, and in reaction to the triumph of liberal capitalism, there arose in Germany, France and the United States what is today called the Progressive Movement. In the United States, it was originally known as the New Nationalism, typified by Teddy Roosevelt's Osawatomie Speech which called for a national redistribution of wealth.

SOCIOLOGICAL JURISPRUDENCE

In tandem with this political movement there arose in Germany a new approach to law called Teleological Jurisprudence the aim of which was both to interpret law and to make judicial decisions in light to social and economic realities. In the United States, this approach to law was cribbed by Harvard dean, Roscoe Pound, and is called Sociological Jurisprudence. As an academic matter, Pound's approach to law stressed examining the actual social effects of legal doctrines and practices and, conversely, the influence of social phenomena on the substantive and procedural aspects of law. As a practical matter, sociological jurisprudence meant tailoring the law to achieve socially desirable ends. In an equally well-worn phrase, law became viewed as a “tool of social engineering.”

And who is to be the engineer? Me! Me! Me! said then attorney Lewis Brandeis. It is the irony of ironies that at the height to the “Lochner Era” the Court adopted as its own the famous Brandeis Brief which was quite literally 98% sociology and 2% law. In Muller v. Oregon (1908) the Court upheld state laws restricting the number of hours women could contract to work for. And on what basis was this denial of Lochnerian Liberty upheld? I shall let the Court's majority opinion speak for itself.

"It is undoubtedly true, as more than once declared by this Court, that the general right to contract in relation to one's business is part of the liberty of the individual, protected by the Fourteenth Amendment to the Federal Constitution; yet it is equally well settled that this liberty is not absolute ... ,

"In the struggle for subsistence [a woman] is not an equal competitor with her brother."

"Her physical structure and a proper discharge of her maternal functions — having in view not merely her own health, but the well-being of the race — justify legislation to protect her from the greed as well as the passion of man.

"Woman has always been dependent upon man.”

“The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all.”

. . .

“For these reasons, and without questioning in any respect the decision in Lochner v. New York, we are of the opinion that it cannot be adjudged that the act in question is in conflict with the Federal Constitution so far as it respects the work of a female in a laundry, and the judgment of the Supreme Court of Oregon is affirmed.

“For these reasons” was just a short spoupçon of the massive compendium of sociological facts, figures, studies, and comparisons of legislation in the several states and foreign countries, scrambled up by Brandeis.

Muller was not, in principle, entirely inconsistent with Lochner. In Muller the Court found no more than that the protective legislation was a reasonable curtailment of contractual liberty in light of all the studies advanced. But these studies had been adopted by a plethora of state legislatures and foreign countries. In Lochner the court invalidated a law based on its view of what was “common knowledge” about the health risks of baking.

In fact, Muller was rather consistent with Westcoast to the extent that it could be assumed that the Oregon legislature had examined at least some, if not many, of the studies Brandeis had cited and had, on that basis, arrived at a legislative findings that women needed workplace protections. What both pre Lochner jurisprudence and Westcoast disavowed was the Court making those sociological and policy determinations for itself.

Thus when we come (or return) to Brown v. Board of Education, it can be seen that in that case the Court actually returned to a Lochnerian methodology: it based its rulings on sociological findings it was making. (They certainly had not been made by the Southern school districts!) Instead of “Baking is Not Unhealthy” we got “Separate is not Equal.” It was permissible, for Brandeis as an attorney to cite studies the Oregon legislature could be presumed to have relied on, it was not by the same token proper for Warren, as a judge, to strike down laws as unconstitutional based on his own sociological view of the matter. When the uproar went up that the Court was doing the sort of things that ought to be left to legislatures, the uproar was right.

Ten years after Brown, the Court handed down its decision in Heart of Atlanta Hotel v. United States, in which the Court invalidated segregation in hotel accommodations. In the companion case Katzenbach v. McClure, the Court also invalidated lunch counter segregation. But, although those cases advanced the cause of integration, they did not apply or extend the principle of Brown because they were both based on the Civil Rights Act of 1964. It was Congress who had done all the social studies and who had made all the policy decisions. It was only up to the Court to decide if that “squared with the Constitution” -- more particularly, if it was a legitimate exercise of constitutionally authorized congressional power under the Commerce Clause. Atlanta Hotel and Katzenbach were as much “traditional law” as Dixiecrats might holler' at having their toes stepped on.

PENUMBRAL PRIVACIES

Nevertheless, the idea arose that if law was a tool of social engineering, the Supreme Court could be used as the engine. This idea arose because it was so impossibly difficult to get anything through Congress on account of the fact that system itself was designed to choke legislation as much as to enact it. To be blunt: it would be easier to convince nine men, who were at least supposedly “reasonable” than convincing 480 men who were impossibly corrupt.

The Court itself encouraged this notion by handing down decisions like Miranda, which was based on social studies “finding” that in custody interrogation was “inherently coercive” and Mapp v. Ohio which extended the exclusionary rule to States on the Court-found finding that requiring states to exclude illegally seized evidence would “teach” cops to be better citizens. Both of these cases fell within the traditional ambit of what kind of evidence a court will allow in its forum. They nevertheless did nothing to dampen the idea that Court could be used to effect social change.

Spearheading the change was the cry of My Penis my Choice! The state of Connecticut had outlawed condoms -- “any drug, medicinal article or instrument for the purpose of preventing conception.” Criminally convicted, the petitioners appealed. They might have argued that there had been no proof of an intent to prevent contraception at the time of usage; that, even with one's wife, a condom could be used for purely sanitary reasons. Instead, petitioners appealed on the ground that their “right of marital privacy” had been infringed in contravention of the Due Process Clause of the Fourteenth Amendment. Alas, nowhere in the Constitution is a “right of marital privacy” explicitly reserved. I will let the opinion speak for itself,

“Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment. Overtones of some arguments  suggest that Lochner v. New York, 198 U.S. 45, should be our guide. But we decline that invitation as we did in West Coast Hotel Co. . . . We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation.”

[The Court then reviewed a string of cases upholding the right to educate one's children au goût, the right to study German, the right to receive such literature as one desires, and so on.]

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. 

[The Court then reviewed how the idea of privacy was implicit in Third, Fourth, and Fifth Amendments. Then too, there was always the Ninth.]

“The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a "governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.”

Justices Brennan, Goldberg and Warren concurred in the result but would have preferred to root the decision unequivocally in the Ninth Amendment which, they said, was intended to “protect[] those liberties that are 'so rooted in the traditions and conscience of our people as to be ranked as fundamental.' "

If the majority shied away from that stance it was because they feared becoming Super Framers as much as they shied from being Super Legislators.

That said, the concurring justices went on to state that “it should be said of the Court's holding today that it in no way interferes with a State's proper regulation  of sexual promiscuity or misconduct. . . .

"Adultery, homosexuality and the like are sexual intimacies which the State forbids . . . but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, ... It is one thing when the State exerts its power either to forbid extra-marital sexuality . . . or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy."

In other words, when we say “privacy” we mean this kind of privacy not that kind of privacy. It was a completely untenable inconsistency given that the Court had just previously cited the right of free association as one of enumerated emanators of the concept of privacy.

Nevertheless, having accorded constitutional protection to sheaths, the stage was set for the dealing with the issue of fetus flushing. As is well known by now, in 1973, the Court handed down Roe v. Wade which held that Texas could not restrict abortions to situations in which the mother's life was imperilled, because the Due Process Clause of the Fourteenth Amendment “protects protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy.”

The Court began, you guessed it, with Lochner. “We bear in mind, too, Mr. Justice Holmes' admonition in his now-vindicated dissent in Lochner v. New York... ' [The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.' “

Having disavowed Lochner, the Court went on to examine whether either the penumbral right to privacy or the Ninth Amendment reservation of rights included the prerogative of a woman to abort her pregnancy. After a lengthy historical review of state and foreign legislation , the Court concluded that it did, at least prior to the “quickening” of the fetus. “This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”

One might have left it at that. After all, Griswold did not set out a complicated scheme for evaluating when and when not a condom could be used. Similarly if one has a free speech/privacy right to read books of one's choosing, does the Court delve into which books you can read at which time of your life?

This is not to argue that privacy rights are absolute. It is accepted that no right actually is. It is simply to say that for purposes of deciding the case at hand it was sufficient for the Court to say that a woman had a constitutional privacy right to abort her fetus, prior to “quickening” and for reasons other than the medical necessity to save her own life. This italicized portion tailored the holding to the facts of the case, which is what a well turned holding should do. Instead, the Court went on to open a can of worms.

It began by listing the psychological, social, financial and professional harms, stigmas and detriment that “may” ensue from infringing on a woman's right to terminate her pregnancy. In this curious passage, the Court subtly shifted from affirming a penumbral right already found to exist as a matter of legal interpretation to justifying why the right should exist. If indeed, at the time of the Constitution's ratification, courts in England and the United States allowed abortion, in a woman's discretion, prior to quickening, then fetus flushing was a reserved right under Constitution, and that was that. Similarly, if indeed, the lengthy historical review showed that abortion was deemed by the vast majority of legislatures to be an “implicit” fundamental privacy right, then that too was that. Delving into the whole mushy sociology of why the right should be declared to exist is the sort of thing legislatures, not courts, do.

Rejecting the petitioners' claim that the right was unrestricted and absolute, the Court stated “As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.” It then went on to decide when that some point arose and what “weighing of factors” had to be evaluated at each stage of pregnancy. As summarized by the Court itself,

"A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. (At pp. 164-5.)

All of this is an admirably logical scheme. The only problem with it was that it was not the brainchild of any legislature but was the Court's own fetus.

It bears repeating that when the high court declares a right to be “fundamental” it is not (avowedly) making that decision for itself. It is, rather, taking the soundings of what other courts, other countries, and other legislatures have themselves considered fundamental. There was a protracted debate within the Court throughout the late 19th and early 20th centuries over how to determine what is “fundamental” under the Fourteenth Amendment. A similar analysis presumably applied to determining what was “reserved” under the Ninth. If the analysis is conducted honestly and with restraint it comes squarely within the ambit of “legal analysis and interpretation.” The Court is simply deciding what the evidence demonstrates has been our legal custom and usage. If there are inconsistencies, that too is a legal matter which the Court exist to iron out. What is not legal is mapping out executive and managerial expediencies; i.e. on how, best to carry out an objective within the limits set by law.

Roe was a very muddy decision. For the most part, it adhered to a non-sociological fundamental rights analysis. But it muddied these waters by dragging in medical and theological (Catholic, Jewish, Protestant) opinion as to when human life began. It further confused matters by not drawing a distinction between human life and legal personhood. At that point, it then became the Super Legislature it foreswore being by prescribing the contours of permissible legislation.

It might be said that the Court was simply trying to save itself a forseeably long trail of case-by-case adjudications; to “speed things up” as it were. But the Court does not exist to forestall cases and controversies but rather to resolve them. The Court knew it was staring into a hornet's nest and it walked right in.

Equally to blame were agenda driven hot-heads who brought the case in the first place. In a sense, both Griswold and Roe were not “honest” controversies. They were controversies engineered by activist reproductive rights groups. Both cases were bogged down by a number of questionable procedural and standing issues. The all too transparent aim was to use the high court as a “tool of social engineering.” In allowing itself to be used in that manner, the Court politicized itself.

The petitioners can also be faulted for pushing their radical and extremist position that women had an absolute, categorical right to fetus flush. As lawyers they ought to have known that no court ever accepts a right as truly absolute. They ought to have known that the legal history they cited did not support such a stance. They were simply angling for a legislative touch-down. In my view, they can hardly complain that their advocacy triggered the inevitable and foreseeable push-back. In the end, the Court never avoided the parade of litigation it had hoped to avoid. Now the piper has to be paid.

In my view Brown and Roe represent the high court at its most sociological and political. In all the other cases, including Lochner and despite foreseeable political repercussions, the Court could always plausibly stand behind the artifice of interpreting and harmonizing law. That might sound like a narrow brief, but it has a rather wide compass, as the history of New Deal legislation showed. The Court is of course “political.” It is, after all, an institution of government which as as polis-like as you can get. But, as we have said before, it is the difference between the politics of desire and number (legislative) and the politics of “what the words will allow” (judicial).

It does not strike me as coincidental that the cases which have had the least actual impact were Brown and Roe. Roe because is settled nothing and Brown because it solved nothing. What could be more absurd than demanding integrated education in a segregated society? What was the point to created islands of integration (called “schools”) in a sea “Coloreds Not Allowed”? What were the equally and better educated Blacks to do with their degrees. Using the Court as the avant guard of reform strikes is highly dubious.

MISH-MASHED MUMBO JUMBO

After "settling" the abortion question, the Court decided to swing a blow for gay rights. In doing so, it revived Lochner as Judicial Opera. In Lawrence v. Texas, the Court invalidated a statute making it a crime for two persons of the same sex to engage in sodomy (as in anal intercourse) on the grounds that the law violated the fundamental liberties provision of the Due Process Clause. Why? Because “[l]iberty protects the person from unwarranted government intrusions into a dwelling or other private places. . . . Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

And what precedent of custom, or statutory or common law supported this supposedly acknowledged fundamental right? Why “[i]n Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counselling or aiding and abetting the use of contraceptive”  The opinion in Griswold was “part of the background for the decision in Roe v. Wade” and so too "Roe and Casey  show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.

This grand mish mash was trenchantly debunked by Justice Scalia who pointed out that Griswold had been decided on a theory of inferred rights emanating from enumerated ones; and that it hardly made sense to invoke a theory of acknowledged fundamental customs and usages, and at the same time to speak of an “emerging awareness” and of the Court's “own failure to appreciate the extent of the liberty at stake.”

Justice O'Connor would have struck the statute on the far simpler ground that it violated Equal Protection to criminalize homosexual as distinct from heterosexual sodomy. O'Connor was correct. Supposing for the sake of argument that the state had a legitimate interest and rational basis for outlawing sodomy, there was no reason to criminalize only sodomy between men; the act was the same, the injury of damage to the sphincter was the same, the filth was the same and the non-reproductive purpose was the same. Far simpler and to the point to state those facts than to launch one's self into an airborne flight of hot air.

Rather than return to prose, in Obergefell v. Hodges, the Court launched itself into a sequel judicial aria, holding that the withholding of a marriage certificate from homosexual couples who applied for one violated both the Due Process and Equal Protection clauses.

As for the latter, “[t]he fundamental liberties protected by this Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. ... The right to personal choice regarding marriage is inherent in the concept of individual autonomy. Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make.” Fiat lux! Ipse dixit!

Okay, but, as we have seen, fundamental rights analysis under the Due Process Clause requires a showing that these rights have been acknowledged, either by legislation or by a moral consensus or in a near universal accord among humankind. As for this, the Court informs us that “[t]he nature of injustice is that we may not always see it in our own times. ” In other words, there wasn't so much as a hot air basket to float in when it came to legal custom and the usages of a rather homophobic mankind. “The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” Outdoing even Lochner, the Court simply read its “better understanding” into the concept of ordered liberty.

When it came to the Equal Protection Clause, the majority was on much firmer grounds. The family is the bedrock of all societies and the right to form a family union the most fundamental of human rights and, indeed, necessities. In Loving v. Virginia, (1967), the Court had held that outlawing inter-racial unions violated the Equal Protection. It followed necessarily that, given the social utility and personal benefits of marriage, outlawing same-sex unions did not serve a rational purpose. There was no need for the Obergefel majority to palaver about the “synergy” between the Due Process and Equal Protection clauses... or what might snarkily be called their “mutual penumbras.” Reading rights out of the shadows is not clear law.

Justice Roberts conceded the essence of the equal protection argument but argued that the real issue was the State's right to define “marriage.” No it wasn't; at least no more than there was a state right to define “human being” as excluding Negroes. Marriage at its most basic is the committed partnering of two human beings. The socio-economic utility, the societal stability, and the personal benefits are the same whether the couple is young and fertile, old and sterile, mixed nationality or mixed race or mixed religion. That is the end of the matter from the point of view of a secular state's interest. All the rest is religion. Justice Scalia actually did not have much to outrage over when it came to Equal Protection, but his dissent was a tour de force when it came to the fundamental liberties of the Due Process Clause,

"The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion's showy profundities are often profoundly incoherent. "The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality." (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can "rise ... from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era." (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, "[i]n any particular case," either the Equal Protection or Due Process Clause "may be thought to capture the essence of [a] right in a more accurate and comprehensive way," than the other, "even as the two Clauses may converge in the identification and definition of the right." (What say? What possible "essence" does substantive due process "capture" in an "accurate and comprehensive way"? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses "converge in the identification and definition of [a] right," that is only because the majority's likes and dislikes are predictably compatible. I could go on. The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today's opinion has to diminish this Court's reputation for clear thinking and sober analysis. Hubris is sometimes defined as o'erweening pride; and pride, we know, goeth before a fall. The Judiciary is the "least dangerous" of the federal branches because it has "neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm" and the States, "even for the efficacy of its judgments." With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the "reasoned judgment" of a bare majority of this Court—we move one step closer to being reminded of our impotence."

Scalia was perfectly right. We have seen how the Court has gone from inserting a personal belief about bakers' health into the Constitution, to palavering sociological mumbo jumbo about the inequality of segregation, to writing medical-psychological fault-lines and factors into the Due Process and/or “Penumbral Clause” and finally to a full descent into Jurisprudence as Mumbo Jumbo. Like pornography, the average Joe on the street might not understand why it is mumbo jumbo, but he certainly knows it when he hears it. The phrases skewered by Scalia just sound like bullshit, and they do so because they are. The Court had descended into using words as a kind of advertising flash-bang. Sound and flurry signifying nothing.

Nor was this new propensity limited to the area of personal autonomies. In upholding the Affordable Care Act, Justice Roberts, who so worried about respecting the definition of marriage, had no compunction styling the insurance mandate as a “non-tax tax.” One might have thought the the Lochnerian liberty right of contract at least included the freedom not to contract with some one not of one's own choosing. But never mind.

So, we come at last to last weeks oral argument on the Texas (yet again Texas) abortion law. Justice Sotomayor worried aloud and darkly about the Court's loosing credibility. The New York Slime, sagely and sternly repeated her warning. Fear not, good people; the Court has already lost all credibility. It only retained credibility among gentrified liberals who applauded Roe, Obergefell and Obambi-care. It certainly did not retain any credibility among those who didn't. And, if you don't retain credibility along at least most of the spectrum you don't have the kind credibility the Court needs to sustain itself as an institution.

In a highly regulated, technological mass consumer society, it is very difficult for the Court to avoid decisions that will have immediate and broad consequences and which therefore will appear to be and come close to being “political.” But, if anything, this reality makes it more necessary than ever for the Court to appear to be and in fact to strive to be detatched from making expedient policy decisions.

I have no doubt that Scalia was a neo-liberal apologist who thought fags were abominable and who would allow abortion only prior to conception. But his point of fighting for what you believe in the political arena is something that leftists and progressives should have taken to heart way before last week. The whole idea that the judiciary could be used an expedient “tool of social reform” without hard work in the political trenches was misbegotten from the outset. Had leftists and progressives put their hearts and minds to winning battles in the streets we might today be at the point where we need to be: scrapping the invidious oligarchical canard that is our “republican system of government” in favour of a real, popular democracy.


©wcg, 2021