Give Us a People's Court!!! (Not)

Not content with circumventing the First Amendment or seeking to subvert the Second, a recent hit piece in the La Guardiana makes clear that the Demorats are out to turn the Supreme Court into a lackey of the Executive.

The shot across the bow: "There is no better symbol of the crisis of trust in American institutions than its highest court, pummeled by partisan appointments, divisive rulings and ethical scandals."

Say what? Since when have appointments to the Supreme Court not been partisan?

Since when have Supreme Court rulings not been divisive? It is in the nature of things legal that there will invariably be two sides in any case and the side that looses will be grumpy about it. When the case is of public interest, the public will be divided on the issue. This is new?

The Guardian article then positions itself for a broadside:

"Congressional Democrats ... believe that they have a solution: expand the court by adding four seats to counter a rightward tilt during the Donald Trump administration that, they say, put it out of step with mainstream public opinion."

This is nothing less than a call for insurrection against the Constitution. Permit me to explain why.

The Constitution does not prescribe any number of justices to sit on the Court and, originally, the number was set at seven. So then, there is nothing unconstitutional in seeking to increase the number of justices on the Court.

Furthermore, since the Constitution gives Congress the power to create such inferior courts as it deems fit, there is no bar to creating "sub-supreme" courts to respectively handle criminal or civil matters, leaving only the most rare and rarified cases for Supreme Court review. If it wanted, Congress could imitate a College of Lords model and provide that the Supreme Court be comprised by all Circuit Court judges assembled.

What makes the Demorat proposal insurrectionist is not the plan but the motive; namely, to bring the Court in step with mainstream public opinion.

That is definitely not what the Supreme Court is about. It is nothing the Court can be about. In our system, public opinion (la volonté général) expresses itself throught Congress not the courts. In contrast "it is emphatically the role of the courts to say what the law is." (Marbury v. Madison, Marshall,J.) Or, as Hamilton put it,

“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. ...

“[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. ...

“[T]hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that 'there is no liberty, if the power of judging be not separated from the legislative and executive powers.'' ... [L]iberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments...” (Federalist Paper No. 78.)

This means nothing to the Democrat Party or its hacks in the press. To speak of countering a "rightward tilt" during an Administration is to insinuate that the Court is nothing but an instrument of the executive; that it is a mere creature of political will that can and should reflect a dominant ideology by packing it with partisans who will toe the line. Broadside indeed!

Yes, the proposed means is constitutional but the aim and purpose is to destroy the independence of the judiciary; to make it as subservient to the Biden Administration as the Stuart judges were to James II.

For shame!

Cynics on both sides of the factional divide will say that the Court has always been "political" and that the notion of an a-political “interpretation” of the law is a fiction. I agree. But what the cynics omit is that there are different types of "politics."

Hamilton states that courts must exercise judgement and not will. But what does this mean? We can begin an answer by asking, what is "the law" if not a pile of words? After all, it is language, Aristotle says, that allows us to "decide between the just and the unjust, the expedient and inexpedient." (Politics, Bk.1, ch. 1.) And so deciding, what we call “law” is simply a prescription for the conduct of persons and the operation of institutions. Thus, the role judgement boils down to declaring the sense of words, in relation to themselves and in relation to yet other words which are used to describe what we call “reality.”

No one can seriously argue that making enforceable decisions about public or private controversies does not have a corresponding political implication. The entire course of Anglo-American law is infused with politics; and it is in the genius of our system that it extracts a universal principle from a particular case and that the wrangling between two parties can have implications for the nation.

Of course the courts are political institutions. But the "politics" of the courts is the politics of grammar whereas the politics of the legislature is the politics of number.

As Hamilton reviews in Federalist Paper No. 78, this political grammar operates at two levels, the lowest being ordinary statutory construction and the resolution of conflicts between two or more statutes. The next higher level involves judging the constitutionality of statutes and official acts or the interpretation of two or more conflicting constitutional provisions.

But in my view, there is yet a broader and deeper level at which the high court operates; namely, the historical assessment of our custom and usage -- how we, as a People, have been talking about things. Or, what is the grammar of our tradition?

The first two levels of judicial judgement are basically textual. A sola scriptura sort of thing where will is harnessed by the “plain meaning of words.” The third level is hinged to the textual but stretches into the finesse of our legal and political tradition.

At all levels there is a danger that judges will depart from exercising judgement and pass over into exercising will. The danger is greatest when the matter at hand devolves into "history and tradition." The reason is simple. Supposing for the sake of argument that a history or tradition is ascertainable with a reasonable degree of certainty, that being the case tradition only brings us up to the present. The question still remains which way the law points with respect to the future. Whither the next step, if even a step at all?

There are two possibilities: progression or stasis. The text in light of history and tradition either calls for a development or mandates constraint. This choice lies at the base of the argument over "activist" versus "conservative" justices. Neither is inherently better than the other. The whole history of the Common Law is one of development by analogy. At the same time, throughout that history, there are times when the brakes are applied in the name of received custom. At times, the pen writes in both directions. The American Revolution, which was steeped in legalisms, indubitably pointed forward while being grounded in an asserted vindication of long established rights.

This is not the civilian system in which justice is regarded as merely administrative. In our tradition, judges are not meant to be robots. It is understood that they bring to the bench a woolsack of ideas and notions on which they sit. What distinguishes their decisions from a mere exercise of will is a commitment to be led and restrained by the meaning and trajectory of words. In Congress there are no limits as to what can be proposed. In courts of law there are limits as to what can fairly and reasonably be deduced.

It is here that a further distinction between “liberal activism” and “conservative interpretation” arises; namely, what is “fair and reasonable.” Until, the end of the 19th century the name of the game was legal formalism. What this meant is that any ratio decidendi had had to abide basic canons of deductive reasoning.

"All wrong, all wrong — but no one can say why..." said governor John Randolph of Marbury v. Madison, the cornerstone of the Court's judicial power. And so the case has stood.

At the end of the 19th century there arose a sociological movement in the law which aimed to investigate and understand the social and economic causes out of which the law grew and which it was said to reflect. There was nothing especially egregious in this sort of exercise. Indeed the meaning of words themselves are socially contextual. But this “new jurisprudence” quickly got inverted into using law to effect social and economic outcomes. Throughout the 20th century law students were taught that “law is a tool of social engineering.” The game of this new “legal realism” was to select a desired outcome and then rustle up the rationale needed to make it fly. It was immediately apparent to any first year law student that this methodology reduced law to an exercise in advertising. What mattered only was that an appearance of law be lent to bringing about a result.

The culmination of outcome-determinism came in 1942 in a case called Wickard v. Filburn. In that case, the question was whether an isolated, backwoods farmer who grew a few acres of wheat entirely and exclusively for his own consumption was “within interstate commerce” and therefore subject to federally imposed limits on wheat production. The answer was yes, because by being outside interstate commerce he affected the level of interstate commerce as much as if he had sold his wheat in interstate commerce and therefore by being out of interstate commerce he was “in” interstate commerce and subject to federal regulation. At this point rhetoric spilled over into sophistry of the most grotesque sort. FDR's newly constituted Court had declared that words would be used to decide what was expedient and that decisional law was an exercise of will.

Nor was Wickard a particularly exceptional case. To give an apropos example, in Kelo v. City of New London, 545 U.S. 469 (2005), the “liberals” on the Court headed by Justice Stevens held that the power of eminent domain allowed government to take one man's private property in order to sell it to private developers. Prior to Kelo, the rule was that property could be taken but only for “public use.” After Kelo that was still the rule only “public use” was redefined to include the general promotion of economic development, including creating new jobs and increasing tax revenues along with “other exercises in urban planning and development.” 

A more perfect example of the alliance between “the state and corporate power” (quoth) could hardly be imagined. Had Justice Thomas written the opinion, the pages of La Guardiana and the New York Slime would be overflowing with outrage at his cozy and corrupt relationship with billionaires. Well what did Justice Thomas write in his dissent?

“... extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.”

While one may perhaps sympathise with Thomas' more "populist" perspective, it was as much an expedient argument as that of majority. The matter was far simpler: the Fifth Amendment refers to taking property for "public use;" it does not refer to taking property for a "public benefit."

Another example of grotesque outcome determination was National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), which upheld Obamacare's insurance mandate. The difficulty was that the Constitution does not allow the federal government to force anyone to enter into a private contract. Justice Roberts avoided this inconvenience by ruling that the Constitution allows the government to levy taxes and the "mandate" was simply a non-tax tax. Liberals cheered!

The law could not survive without a degree of sophistry, and the best one can say is that there are simply limits.

The dichotomy between “liberal activism” and “conservative interpretation” is overdrawn to the point of triviality and demagoguery. The question is more aptly phrased in terms of a judge's resort to outcome determination; or, in Hamilton's terms by asking whether the outcome was the result of judgement or of will.

So-called conservative rulings tend to resort to legal formalism for the simple reason that our Liberal constitution imposes limits on government action. As such, constitutionalism becomes mostly a question of negation. When Justice McReynolds voted to strike the first Social Security law he stated "I can not find any authority in the Constitution for making the Federal Government the chief almoner of the nation," one has to admit that he was right.

With so called liberal rulings, the case is just the reverse. While any jurist can push the limits of what words will fairly bear, typically it is the so-called “liberals” who resort to outcome-determination because they are using the law to “engineer” a result. But in doing so they think and act exactly as legislature: they cite data and sociological studies; they “balance interests” and, after rustling up some nice sounding verbiage from somewhere, propose a solution.

This was precisely the problem with Roe v. Wade. As an act of legislation it made perfect sense in that the scheme it established was a reasonable choice among several. But it was simply not the sort of thing a court should be doing. It was within the compass of legitimacy to deduce an implicit “right of privacy” from the Constitution. Had the Court struck the Texas law as going too far, such a holding would have been completely unremarkable. But the Court did not so content itself.

The fundamental tenet of "legal realism," "sociological jurisprudence" or "outcome-determination" was candidly distilled by Justice Breyer in his dissent in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022)

“In my view, when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms.”

In my view, Justice Breyer's opinion is untenable; it is destructive of the very concept of law. What he was saying, in effect, is that the law will mean what he wants it to mean. Bryer's dictum ought to give us serious pause. In 1934, an influential German legal scholar postulated,

“We do not determine what National Socialism is according to a pre-existing concept of the constitutional state, but rather the reverse; the constitutional state is determined according to National Socialism. ... Every interpretation must be an interpretation according to [the demads of] National Socialism.” (Carl Schmidt, “Nationalsocialismus under Rechstaat,” Juristiche Wochenschaft 63 (1934), pp. 713, 716; cited in Ingo Müller, Hitler's Justice, Harvard University Press, (1991), p. 71.)

I have no interest in bandying about cheap and outrageous insults and to be very clear, Justice Bryer was not a "fascist" or "Nazi." But it is not amiss to point that, in terms of jurisprudential method, Breyer and Smith's approaches are too close for comfort. In either case where there is will words will follow rather than words implicating a judgement. That's great when you get what you want, but suppose the shoe is on the other foot, to what "law" will you appeal then?

Despite being excoriated by the New York Times' peanut gallery, Justice Scalia was entirely correct to ask whether we wanted, or can even tolerate, nine unelected judges acting as a super-legislature. The intolerable Democrat answer is that we can so long as the result is tolerable to us. In other words, to “judgement” and “will” we can now add “petulance.”

And it is precisely this petulance that drives a cabal of Demorat congressoids -- including Senators Ed Markey, Tina Smith and Elizabeth Warren, Jerrold Nadler, Cori Bush and Adam Schiff -- to announce the reintroduction of legislation that would create a 13-justice bench.

What is galling in all of this is that it is the utter bankruptcy of Congress which is the impetus for institutionally destroying the Court. It is hardly a secret that the Court has resorted to “judicial activism” precisely when Congress has been deadlocked by its own divisions and archaic procedures. Instead of blaming the Court the liberal congressional cabal would be better advised to look itself in the mirror.

If the abortion and gun control activists (for that is what it currently boils down to) succeed in their packing scheme, they will not only have undermined the Court as a court, they will have trashed the law itself making it as meaningless and vapid as steamy hortatory that vents from congressional mouths.

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Weaponizing Ignorance

Chipster has to confess that he backslid on his New Year's resolve to no longer pollute his mind with poisons from the pages of the New York Slime. But I couldn't resist.

Through the tube-vine, I heard that the Slime was proclaiming that Cleopatra was black (or as the Slime would have it "Black"). You kiddin me??? Nope.

Cleopatra was black because there is a possibility that maybe some slave or Persian [sic] got mixed into her bloodline somehow, sometimes, AND BESIDES "black" isn't a question of skin colour anyways but has to do with the experience of oppression. .... Cleopatra was "oppressed"???

And because culturally "oppressed" therefore it is legitimate to portray her skin tone as black (or "Black") or "black" or at any rate as a slimmer version of the later versions of Aunt Jemima....

What is really deplorable about all of this is that USA's cultural hegemenony has now turned into a Black Hole of Ignorance and Insanity which is sucking in the rest of the world.

I renew my resolve.

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UPDATE - Democrats Trying to Smear Thomas off the Court

In writing Friday's article on the Demorats' “gunning” for Justice Thomas, we we cited a letter from Rosylnn R. Mauskopf, Director of the Administrative Office of the United States Court's to Senator Sheldon Whitehouse, explaining the “personal hospitality exception” to 5 U.S.C. ¶ 7573.

Response to Senator Whitehouse

We thought it suspiciously curious that Mauskopf's letter referred to an inquiry from Senator Whitehouse, dated 21 February 2023, concerning the same “personal hospitality” exception. That inquiry meant that prior to the “bombshell” Pro Publica report on Thomas' vacations, somebody on Capital Hill was nosing about the Supreme Court's regulations concerning “gifts”.

In our mind, the inference was plain: the Democrats on the Hill and their scribblings in the media were out to get Thomas and, once he fell, Alito. The only problem was that two dots do not a connection make.

What I mean by this is simple. Two dots make a correlation, but something more is needed to flesh out either a cause or a conspiracy. In my case, that “cause” was my general historical knowledge of how humans behave in the political arean. Simply put, read enough and you get good a smelling shit.

But convincing others requires more than bragging “I am good at this stuff.” Well, as fate would have it the third point was published just this weekend, Truthout, a progressive on line source, which ran a headline entitled:

Lawmakers Urge Chief Justice Roberts to Probe Clarence Thomas’s Secret Trips

calls mount for Thomas to be investigated after accepting millions in undisclosed gifts from billionaire Harlan Crow.

HERE

Ho, ho, ho, ho ho-ooh. And who might those “lawmakers” be perchance?

“In a letter led by Sen. Sheldon Whitehouse (...)

Breathlessly, Truthout reports that: “In a letter led [sic] by” Whitehouse... the Democrts ... cited Thrusday's BOMBSHELL REPORT by Pro Publica....” etc.

Cunningly omitted was the fact that Whitehouse had been sniffing at the base of this bomb, at least, since February. The utterly fake narrative thus presented was that intrepid journalists from Pro Publica had uncovered a scandal, and now, the stunned and surprised Democrats were indignantly calling for an investigation.

Not, not and NOT. Not only does the letter “led” by Whitehouse confirm that he was looking for indignation back in February, it reveals without doubt that the Demorats and their scribblings in the media began circling their prey in June of 2011 (see links on page 2 of the letter.)

In that month Think Progress ran a story entitled:

Second Harlan Crow Connected Group Has a Perfect Litigation Record Before Justice Thomas

Ah yes... the ubiquitous “linked to” so favoured by cops lying in their search warrant affidavits.... The essence of this scurrilous report was:

Harlan Crow ... donates the American Enterprise Institute.

The American Enterprise Institute filed briefs in the Supreme Court.

Crow gave gifts to Thomas.

Q.E.D.

It was worse. What Think Progress actually wrote was: “AEI filed at least three briefs in the Supreme Court after giving Thomas this very expensive gift.”

Other than this flagrant misstatement of fact, nothing in the article supports an inference that the American Enterprise Institute gave anything of value to Thomas.

Then, after falsely stating that it had, Think Progress back pedaled, with “To be clear, there is no direct evidence that Crow lavished gifts on Thomas in order to switch his vote in any of these cases. “

What Think Progess can't stand is that think-alike conservatives associate with one another and, in doing so, inform and support one another's outlooks. That is true but exactly the same might be said of the Democrats, of any one, and even of Marxists!!!

What it all boils down and stacks up to is that the Demorats are now embarked on a contrived and coordinated campaign to smear Thomas off the bench.

We have never argued that the Supreme Court should be “above politics.” The Supreme Court is eminently a political institution. To think or argue otherwise is just plain stupid. But it is a politics grounded in the constraints of grammar and logic as distinct from that other politics which is grounded in number and power.

The Democrats are degrading both. In consistently, resorting to trumped up scandals and repeated calls for the impeachment of their opponents, the Democrats are turning the politics of compromise and consensus into political bloodletting. They will rue the day; and, if they don't, then we will.



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Anti-Gunners Gunning for Thomas

Anti-Gun Fanatics know that their efforts to erradicate guns from American society are ultimately doomed to failure when the measures they have undertaken finally reach the Supreme Court. Accordingly, they are determined to unpack the Court by running Justice Thomas from the bench by means of a vicious, vile smear campaign based on false charges and innuendo.

Legal Backgound

Thomas wrote the majority opinion in New York Rifle and Pistol Assoc. v. Bruen, which insulated the Second Amendment from so-called “balancing tests” designed to weasle around and readjust inconvenient legal provisions that are considered outmoded or inexpedient. These “tests” -- which are not “tests” in any scientific way -- are simply a form of rhetorical triangulation through which a law's alleged “social purpose” (given as point “C”) is used to move the law from point “A” to point “B”.

For example, the Sixth Amendment affirms the right to confront and cross-examine witnesses, in the flesh. Alas, a certain key witness may have died. Can the prosecution introduce a hearsay statement the witness gave to a neighbour shortly after the incident in question? Not unless a corpse can be cross-examined. But no problem, the requiremet can be “balanced” away. The real purpose of the right to cross-examination is to insure the “reliability” of testimony. But that's not the only way to insure “reliability.” The “trustworthiness” of a statement can be ascertained by other means; namely, by judges taking into account various factors and the totality of the circumstances in which the hearsay statement was made. Voilá. No need to cross-examine the corpse. Justices Scalia and Thomas debunked this “test” for what it was, and restored the right of cross-examination to its constitutional prominence.

Liberals have hated Scalia and Thomas ever since. Liberals don't much care about cross-examination; what really exercises them is taking away a “test” that allows them to read rights into and out of the Constitution, au gout. The debate on how to “interpret” law has been going on since the very beginning of the Court and it is interesting to see which justices fall on which side of the issue in any given case. But, as for the present, Liberals hate the fact that Scalia and Thomas opposed reading gay rights into the Constitution and prevented reading gun rights out of it.

Let's be clear about one thing. The majority of gun-control legislation being enacted by liberal bastion states is patently unconstitutional under Bruen and the liberal democrats know it. They don't care; they are throwing down the gauntlet. This was made abundantly -- indeed flagrantly -- clear by Governor Hochul who took to the podium to denounce the Bruen decision and then vowed to re-enact the very same law that the Court had just declared unconstitutional. The only changes Hochul made was to make the “new” law even more flagarantly unconstitutional.

The day the Bruen decision was handed down, Hochul took to the podium to denounce this “shocking absolutely shocking decision” that had “ taken away our rights to have resonable restrictions” on guns. [Watch]

Hochul was followed by a parade of activists:

“With this action, New York has sent a message to the rest of the country that we will not stand idly by and let the Supreme Court reverse years of sensible gun regulations." (Lt. Gov. Antonio Delgado.)

What the Supreme Court didn’t take into account when they ruled on Bruen is that New Yorkers are tough, and this fight is far from over, (Mom's for Action)

“If NRA leaders thought New Yorkers would roll over when the Supreme Court recklessly struck down a portion of a hundred-year-old gun safety law, they don’t know New Yorkers very well,” (Everytown for Gun Safety)

Our elected leaders in New York have accomplished a remarkable feat today — fixing, in just a few days, a problem the Court has created with their dangerous decision-making, (Mom's for Action)

“The Bruen decision made by extremist, unelected judges was wrong and dangerous, and now our grassroots army is working with our elected officials to make it right. (Mom's for Action.)

Not only was the “revised” legislation cast in the teeth of the Court. Hochul knows it is unconstitutional. Under the “balancing test,” she said, the question was “do the means justify the infringement” And it is precisely that infringement that New York and copy cat legislation in Illinois, California and Washington seeks to effect.

The Smear

But it cannot be effected so long as Thomas, the hated lynchpin, remains on the Court, and so the Liberals have now raised a new storm of outrage over what they say is Thomas' “corruption.” As is always the case with these sorts of smears, the proof lies in the salaciousness. Pro Publica's hit piece starts off with the allegation

“For more than two decades, Thomas has accepted luxury trips virtually every year from the Dallas businessman [Harlan Crow] without disclosing them. ... The extent and frequency of Crow’s apparent gifts to Thomas have no known precedent in the modern history of the U.S. Supreme Court.”

Apparent? That one word betrays the shabbiness of the work. Ah... but there was not one betrayal but two.

"[Thomas'] failure to report the flights appears to violate a law passed after Watergate that requires justices, judges, members of Congress and federal officials to disclose most gifts, two ethics law experts said. He also should have disclosed his trips on the yacht, these experts said."

Needless to say, Pro Publica did not bother to mention which law Thomas “apparently” violated. 28 U.S.C. § 455 requires a judge to disqualify himself if he has a financial interest in the case or previously represented a party in the case or had personal knowledge of facts in dispute. That was not within the gist of Pro Publica's allegations.

More to the point was 5 U.S.C § 7353 which prohibits “gifts” to federal employees. Under the act, no person “shall solicit or accept anything of value from a person— whose interests may be substantially affected by the performance or nonperformance of the individual’s official duties.” However, a supervising ethics office “is authorized to issue rules or regulations implementing the provisions of this section and providing for such reasonable exceptions as may be appropriate.”

As regards the Supreme Court, the supervision ethics office is the Judicial Conference of the United States Committee on Financial Disclosure. That committee previously carved out an exception for personal hospitality extended for a non business purpose. In other words, having dinner at a friend's house, or spending an afternoon on his yacht, or vacationing with him at a dude ranch he owns, is not considered a “gift” under Section 7353.

From that empty point of departure, Pro Publica went on to list all the non gifts Thomas had received from Harlan Crow. Crow, we are told:

is an influential figure in pro-business conservative politics, [!]

was an early patron of the powerful anti-tax group Club for Growth and has been on the board of AEI for over 25 years. [!]

sits on the board of the Hoover Institution, another conservative think tank. [!]

has donated to the Federalist Society and given millions of dollars to groups dedicated to tort reform and conservative jurisprudence. AEI and the Hoover Institution publish scholarship advancing conservative legal theories [!]

Thomas

boarded a large private jet headed to Indonesia. If he had hired a private jet it would have cost $500,000.00 [!]

Thomas typically spends about a week every summer at Crow’s private resort in the Adirondacks. [!]

gone with Crow to the Bohemian Grove, [!]

and so on...]

And this proves, what exactly?

Through his largesse, Crow has gained a unique form of access, spending days in private with one of the most powerful people in the country.

The extent and frequency of Crow’s apparent gifts to Thomas have no known precedent in the modern history of the U.S. Supreme Court.

Nothing in this crescendo of indecencies shows that Crow or Thomas did anything illegal. Pro Publica admits that “[t]he pair have become genuine friends, according to people who know both men.” What outrages the liberal rag is that two conservatives meet, socialize and talk about stuff. Oh the corruption!!!

Oh the Bullshit

In case Pro Publica hasn't heard, the United States is an oligarchy. It is ruled by a numerically small caste of ultra-wealthy individuals and families, who are interconnected by school ties, business ties, political orientation, cultural interests, inter-marriages and inter-divorces. Take any prominent person, go Wiki and follow the links on who their parents were, who their spouses are, whom they clerked for, campaigned for, worked for and were recommended by.... Within clicks you will enter into the vast incestuous network that is the United States' ruling class.

This network divides into sub-networks according to region (East, West, South, Midwest...) and nature of activity (defence, finance, health, environment, law, social causes). But they are all networks nonetheless and this means that they involve people meeting one another, talking to one another, scratching each other's backs and sucking each other off... literally and metaphorically. If this were to stop, the country would cease to function.

What about George Soros or Bill Gates? Do they not meet up with their acolytes and fund their causes? The billionaire Pritzker family has been actively funding trans-gender causes (in tandem with vested medical interests). Governor Pritzker made two half million dollar donations to the successful campaigns of two sitting state Supreme Court justices. Does Pritzker not have business before the court? What does Pro Publica have to say about that? Nothing, because Pro Publica likes Pritzker's political orientation and is offended by Thomas's.

Bribe versus Gift

Ruling caste networks are noting unique to the United States. All countries at all times are so ruled, and this caste, by whatever name it may be known, always operates on the basis of unwritten (“secret”) understandings and favours. 18 U.S.C. § 201 outlaws bribery -- the giving or offering of anything of value for the purpose of influencing an official act. This is colloquially known as the quid pro quo statute, and it outlaws the tip of the iceberg.

Section 7353 slides down a little further. It prohibits federal employees from accepting “anything of value” from a person “doing business with, or conducting activities regulated by, the [recipient's] employing entity.” Thus, even if there is no express or even tacitly understood qui pro quo, if you have business before the E.P.A you cannot make a gift to an employee of the E.P.A. On its face, this is a form of strict liability.

However, subdivision (a)(2) goes further. It prohibits gifts from a person “whose interests may be substantially affected by the performance or nonperformance of the individual’s official duties.” On its face, this provision would make it impossible for any Supreme Court justice to accept anything of value from anyone, because the very nature of the Supreme Court is to issue rulings which substantially affect either all of our interests or those of large chunks of people.

Congress was aware of the fact that it had legislated overbroadly and for that very reason Section (b)(1) set up a “supervising ethics office...to issue rules or regulations implementing the provisions of this section and providing for such reasonable exceptions as may be appropriate.” In other words, let some committee figure it out.

Not surprisingly the Judicial Conference on [ ] Financial Disclosure, determined that accepting a trip on a billionaire oil-man's yacht was not a prohibited type of gift. This is known as the “personal hospitality” exception to Section 7353. Judge Thomas states that he asked the committee for its advice ands followed its advice on whether his trips and visits with Crowe were required to be reported.

In March of this year, the Judicial Conference revised its rule so as to disallow the “personal hospitality” exception for anything more than being taken out to dinner or visiting a person's home for “non business” purposes. The Conference explicitly affirmed the “substantially affected” clause of subdivision (a)(2). How, the justices of the Supreme Court will abide this rule, remains to be seen. Perhaps they will all have to follow the example of Justice Van Devanter (loathed by liberals because he struck most the New Deal) who lived alone in a hotel room for the entirety of his tenure on the Court and associated with no one except his Presbyterian church and a childrens charity.

But whatever the case, Justice Thomas did nothing wrong and as for appearances, they were no different than those of any other justice on the Court, none of whom have the decency to follow Van Devanter's monkish example.

What is truly choice in all of this is that Ruth Bader Ginzburg, icon and idol of the left, got her position on the Court of Appeal and then on the Supreme Court only on account of intense “personal hospitality” efforts of her husband, a major donor to the Democratic Party. Not a peep from the left on that.

As for the liberal base of Pro Publica, the FemGuardian and the New York Slime , they will live to rue the vicious and vile smear game they have begun with such feigned outrage and fake tears of piety.

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The Rights of Recruits to be issued Arms...

As viewable on Colion Noire's blog,  some Anti-Gun Jihadist was constitution thumping and declaiming (in an angry tone of voice to be sure) that “The Congress shall have Power. . . To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; . . . “ and “to provide for organizing, arming and disciplining the militia. “ (Art. I, § 8.) This supposedly proved that there was no such thing as an individual right to possess arms but rather that the Second Amendment did no more than refer to various enumerated powers in Section 8. Barking straight into the camera: “that means you get your militia arms from the government. You don't get to buy them by yourself.”

In other words, the Bill of Rights guarantees the "right" of a recruit to be issued arms upon being drafted. Brilliant!

If emphasis won arguments, this crusader certainly won the day. But informed reason and logic are seldom found in noise. What this anti-gunner, who goes by the name of Adrian Fontes, seems to have forgot is that the Militia Act of 1792, which provided for the enrollment of “every free able-bodied white male citizen” between the ages of 18 and 45 into a militia company...." Section 1 of the Act specified,

“That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.”

So yes, Instructor Fontes, you do get to buy them by yourself. In fact, you were required to.

You also don't get to understand things simply by pounding the literal text of a document. Sola Scriptura may work in mathematics and certain branches of abstract philosophy but in literature and law the meaning of words has to be derived from their social and historical context. Americans have a strong tradition of pounding the plain meaning of words from a sorely-beaten text. Alas, the true meaning of something tends to be more nuanced; and, in our present case, nuance originates in medieval England.

  The Assize of Arms - Hen. 2 (1181)

Whoever possesses one knight's fee shall have a shirt of mail, a helmet, a shield, and a lance; and every knight shall have as many shirts of mail, helmets, shields, and lances as he possesses knight's fees in demesne.

Moreover, every free layman who possesses chattels or rents to the value of 16m. shall have a shirt of mail, a helmet, a shield, and a lance; and every free layman possessing chattels or rents to the value of 10 marks shall have a hauberk, an iron cap, and a lance.

Item. All burgesses and the whole community of freemen shall have a gambeson, [padded doublet] an iron cap and a lance;

If anyone having these arms die, his arms shall remain to his heir. If, however, the heir is not of age to use arms in time of need, that person who has wardship over him shall also have custody of the arms and shall find a man who can use the arms in the service of the lord king until the heir is of age to bear arms, and then he shall have them

Item, no Jew shall keep in his possession a shirt of mail or a hauberk, but he shall sell it or give it away or alienate it in some other way so that it shall remain in the king's service.

In early Anglo-Saxon days, common defence was based on the fyrd -- an army mobilised from freemen to defend the local area or to join in a royal expedition. The idea was simple: a freeman was expected to be armed and to respond to a summons with whatever he had of use in the cause. King Henry's statute was designed to impose some regularity as to what kind of arms a free man should possess. And it might be noted that they were all weapons of war! designed to kill!!!!

(And lest anyone think that a sword was just a silly pokey type of thing. Not. It was a highly crafted very lethal, forged steel razor blade that could clear cut through a limb as through butter. )

The straight line from statute of 1181 to the act of 1792 ran through the entire course of English history. That history shows that the English were an armed people and that collective defence, whether local or national, depended on calling forth men who were armed and trained in arms.

A decree of Edward III in 1363 provided that:

“Whereas the people of our realm, rich and poor alike, were accustomed formerly in their games to practise archery – whence by God's help, it is well known that high honour and profit came to our realm, and no small advantage to ourselves in our warlike enterprises...[be it decreed] that every man in the same country, if he be able-bodied, shall, upon holidays, make use, in his games, of bows and arrows... and so learn and practise archery.” (Morgan, R.B., ed. Readings in English Social History: From Pre-Roman Days to AD 1837. Cambridge University Press. (2014) [1st pub. 1923] p. 150.)

Likewise, a decree of Henry VIII ordered that every village was to maintain targets on its green on which local men were to practice shooting “in holy days and other times convenient.”

This long-standing tradition of the fyrd was accepted as a matter of course by the Colonists. They hardly needed to legislate on the matter for it was simply the custom and usage of the land.

There is a deleterious tendency among Americans to think that upon crossing the pond, the Colonists started a “new” society and forgot the old. On the contrary, the baggage they brought over as much included English law as it did English.

That said, a kind of reverse historical dynamic arose. As one might imagine, medieval England was something of a wild place. There were multiple invasions by or battles with Danes, Normans, Scots and Irish. There were vast solitary areas of forest, heath and bog. As of the early 17th century, England became more settled and urbanized. Even the protracted Civil War from 1649, (when Charles I was beheaded) to 1688 (when James II was run out of town), had more of a modern than medieval quality.

But as of 1607 and 1619, the situation in America went backward, toward a more primitive wildness. The only difference was that Danes, Normans, Scots and Irish got replaced with Iroquois, Mohicans, Cherokee and so on. Of necessity, the tradition of the fyrd acquired a new vitality. Thus, it is hardly surprising then that Connecticut, Maryland, Virginia South Carolina, and Georgia all required men to carry arms at church.

No man able to bear arms to go to church or Chappell ... without fixed gun and 1 charge at least of powder and shot."(Maryland)

AND

"All persons whatsoever upon the Sabaoth daye [who] frequente divine service and sermons ... [to] beare armes [and] bring their pieces swordes, poulder and shot (Virginia)

At least two colonies required carrying arms to other public public gatherings. For example a ordinance in Rhode Island provided: "It is ordered, that no man ... shall come to any public Meeting without his weapon." Virginia, Massachusetts, Rhode Island, and Maryland all enacted some requirements for travellers to carry arms.

Doubtless, as things settled down, some of these expedients fell into disuse. Nevertheless, the fyrd now called a militia remained the principal way in which the Colonists provided for their defence, and no one questioned the right and the duty of able-bodied men to keep arms.

What was open to question, both in England and in the newly independent United States was the relationship between a “militia” and a regular “army;” between local authority (whether called a state, a “county,” “duchy,” or “baronage” ) and the central authority (whether called the “king” or the “federal government.”)

At this point, we have to mention that at no time did the King not maintain a core army. In fact, the whole purpose of “knights” was to serve as a professional “officer” corps, which freemen would support and by whom they would be directed.

When freemen were actively enrolled in the King's army for a campaign, they undoubtedly fell under what we would call military discipline. It could hardly be otherwise. But they were not a standing army.

As of the 17th century, with Cromwell's establishment of a “Model Army” the concept of a true standing army began to gain hold. But precisely because England was at war with itself at the time who controlled the army and “what about the militia?” became unclear. When the monarchy was restored, Charles II's first concern was to disband the army which was almost exclusively Protestant. When these rebanded as “militia,” he went after those. Thus, after James II was exiled, the 1688 Bill of Rights guaranteed the right of Protestants to keep arms for their defence (while at the same time the Crown went about disarming the Irish and taking their horses, to boot).

Things were a little more harmonious in the colonies, but equally ambiguous. Each colony had its own militia system. But, very nicely and free of charge, the Crown also provided regular army contingents to defend the colonies as a whole against the French, Indians and Spanish. The colonists were very happy with this arrangement... perhaps precisely because it provided the flexibility of ambiguity. They only became displeased with the regular army when it was used to confiscate illegal rum, enforce limitations on commerce or -- horror of horrors -- actually protect the Indians!!!

(Oh yes! If Americans actually read beyond the preamble of the Declaration of Independence, which the likes of Obama never tired of reciting ad nauseam, they might discover a thing of two.)

This ambiguous colonial situation replicated itself in the Constitutional Convention of 1787-1789. As is well known, the core tug of war at the convention was the power-relationship between sovereign states and the new national government. This was a repeat, under modern labels, of the old medieval tug-of-war between the barons and the king; at any rate: central authority versus local autonomy. This tugging and its fudging are at the heart of American Liberalism (as opposed to the French varietal which is much more logical but, in my view, less satisfactory).

As respects the army and the militia, there were basically three viewpoints: (1) that of the “radical Whigs” who wanted nothing but State run, popular, local militias and were hostile to any standing army; (2) that of the “moderate Whigs” who agreed but saw the necessity for some kind of standing army or core of trained professionals, and (3) Hamiltonians, who admired the French model, wanted a strong national Army and Navy and (by the way) saw no need for a Bill of Rights, on the ground that since “the People” were now sovereign how could they possibly reserve rights against themselves. (Logique, n'est ce pas?)

In true British fashion, the newly minted Americans fudged. The First Fudge was found in Enumerated Powers of Section 8, which granted Congress the power to:

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

(b) To provide and maintain a Navy [note: no two year limitation];

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

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

Clearly, these enumerations were a balancing act. It must be asked, if Congress has the power to “raise and support” an Army and to “provide and maintain” a Navy, why bother with militias at all? Just raise such armies and navies as Congress sees fit. That's the way Frederick the Great did it! But ...oh no... something called “the Militia” is distinctly preserved. If you didn't know the history you might be excused from wondering what the difference between and “army” and a “militia” was. The text itself doesn't tell you.

But what historical tradition tells us is that those state-based popular armies, based on an armed citizenry, were implicitly preserved. What the Constitution granted was the power “to provide for the calling forth” of them. Huh?

Why the pussy-footing? If Congress has the power to raise an army why doesn't it simply have the power to “call forth” the militia? Clearly, the Framers were ill-at-ease here, so they gave Congress the power to make preparations for that day when Congress might call forth the militias. The last clause gave some indication as to what this might entail; namely, to provide for arming and disciplining the Militia and governing that part of them as may be employed in national service. In other words, actual “active duty” federal control over the Militia only applied when and to the extent the militia were called forth and employed in federal service. Otherwise, what Congress has the power to do is to provide uniformity of regulations and, if desired, funding. In other words, the state militias were preserved, but since the Framers didn't want this to end up as a useless hodgepodge of different arms and regulations, Section 8 allowed Congress to provide uniform standards for such time as they might be employed by the federal government. (Think of the effort to “coordinate” the national armies within NATO.) However, none of this gave Congress the power to take over the militia or even to issue arms to the militia, as a general propostion.

As is well known, Madison and others remained ill-at-ease with the powers accorded to the federal government, and in order to counter-balance Section 8's grant of powers, they insisted on a Bill of Rights making explicit what powers were not granted. It is within this context that the Second Amendment must be understood.

That Amendment killed two birds with one stone. It made clear, albeit obliquely, that the militias of a “free state” were preserved. But it also made clear that the fyrd too is preserved. The medieval and colonial system of a militia that is drawn from a pre-existing armed population was expressly confirmed by “the right to keep and bear arms.”

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I have never been hostile to the argument that “to bear arms” might refer to bearing them “in service.” I think it clearly has that meaning. But within the thousand year arc of English and Colonial history, it also meant to bear them as individuals for general purposes. Issuing from and calling upon English tradition, the Framers expected men to render military service but that did not mean that they were otherwise unarmed; on the contrary, they were armed in expectation of military service and for other purposes. Nothing in legal text or history or social conditions supports such a contrary contention.

Adrian Fontes makes the anachronistic mistake of thinking that Section 8 modifies the Second Amendment. Nope. The Second Amendment was designed to clarify Section 8.

Further clarification was provided by the Militia Act of 1792 which, as stated, went the other way, giving Congress general oversight of the militia. In the original act, the president's power to “call forth” (or “activate” in modern usage) the militia was made contingent on his obtaining a judicial warrant for that purpose. In light of “disturbances” in the West which required swift action, this embarrassment was removed in 1795; henceforth, the president had summary authority to call forth the militia as needed for federal purposes.

Unfortunately, the propensity to use words carelessly confuses things. Many summaries on Google state that the Militia Act (1792) provided for the "conscription" of adult age males. The word conscription implies a standing militia of men on active duty. That was not the case. The Act required the enrollment of males aged 18 to 45. What this meant, in modern language, was that men were registered for the militia, akin in modern times to registering for the draft. The States might prescribe when the militias were “called out to exercise” and/or what discipline should be followed when called “into service;” but otherwise men were free to go about their business.

The popular and haphazard nature of the militias in the early nineteenth century cannot be stressed enough. The language of the statutes are much more “imposing” than the reality. When Abraham Lincoln was a young man, the militia in his district was called forth by the governor to suppress some disturbance up-river. The men gathered together on the green with whatever guns and knives they had and wondered what to do. Well... first thing was they needed a leader and so they elected Lincoln (who was the tallest of the bunch and good at wrestling) to be their captain. Lincoln himself had little idea of what to do and so he ordered his men to march up-river. After marching up and around, pitching camp, and telling stories around the campfire, they marched around and back down, and then disbanded. Mission accomplished. Doubtless, there were other better regulated militias, but what I wish to stress is the popular nature of the militia as free men assembled with arms.

In my opinion, the core theme of the Bill of Rights is to preserve three main popular assemblies of citizens: (1) assembling to peaceably petition; (2) assembling with arms and (3) assembling as juries. In the Hamiltonian scheme there is no need for any of these. Once legislators are duly elected by free citizens, there is no need for the demos to meet and petition (i.e. raise a ruckus). Write to your congressman or vote him out. As for trials, what an absurdity to allow a bunch of untrained and probably half literate yahoos to investigate the facts and apply the law! Law is a matter for professionally trained judges, as in France. As for assembling with arms, if you want to do that enlist in the King of Prussia's army. But this was not the English or the American way. If anyone thinks that juries were much different from Lincoln's militia band, think again.

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A jury of peers

But as Justice Scalia wrote, the jury was preserved as a circuit breaker against judges too much in the employ of the Government. So too the other two rights.

No government can provide for its own dissolution; and, indeed, one of the impetuses for calling the constitutional convention was the need to put down rebellions that had broken out. Government must oppress, otherwise anarchy prevails. At the same, time the Framers did not want it to have unlimited powers of oppression. The original Constitution established a system of split sovereignty coupled with republican "checks and balances." The Bill of Rights added specific limitations coupled to the further bullwark of popular circuit breakers.

Make no mistake, the jury has the power to “return a verdict in the teeth of the law and the facts.” We don't encourage them to do so, but they retain the power so to do. Similarly, the Framers retained to the people the power of popular protest and the power to resist tyranny. In Federalist Paper 10, Madison discussed the risks and dangers of free speech; and yet to abolish it, he wrote, would make as little sense as abolishing air simply because oxygen imparts force to fire. Again, in Federalist Paper 78, Madison specifically notes that the popular retention of arms is a bulwark against tyranny. Is there any child that does not understand that "tyranny" as often as not operates under colour of law and is imposed by those who legitimately acquired power?

To some, the constitutional edifice may seem a ridiculous muddle and hodgepodge. But as Justice Holmes famously said, “the life of the law is not logic but experience.” (N'est ce pas?)

The experience of the colonists was such that while establishing a stronger central government, they nevertheless retained the limited sovereignty of the states, popular powers and the autonomy of the individual as both a responsible and participating member of society. Unlike Justice Breyer's “bureaucratic world of perfect equity” and safety, the system may be theoretically muddled but it preserves the ability to remain free.

In the nineteenth century numerous issues arose concerning what was a “federal purpose” and in what manners concurrent state-federal jurisdiction operated with respect to the militias. 

What can be said briefly, is that over the course of a century, the militias gradually metamorphosed into the National Guard and the Army, which started out in 1790 as a regiment of 700, grew into a standing, professional military, the very thing the Founders had feared. Worse, during reconstruction and industrialization, the Army itself was used to put down “insurrections,” “disturbances” and labour strikes, culminating in General MacArthur's outrageous suppression of the veteran Bonus Marchers.

But all of this is policy. The principle of the matter remains the Second Amendment which stands before and above all else. Attempts to reduce the Bill of Rights to a mere iteration of expediencies reflects a profoundly subversive misunderstanding of the American political concept.


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More Medicine! More Medicine!

Another shooting and another storm of hysterical outrage from all the usual suspects, resorting to all the usual rhetorical tricks and traps. "Yet another ...!", "How long Oh Lord....?" and "Give us more gun control! Give us more gun control!"

What I find contemptible is that the facts of the case are barely known and yet the cry goes up for more gun control. Don't we at least need a diagnosis based on facts before we know what medicine to prescribe? Or will any medicine do so long as it is in a big enough dose?

What is known as of this writing is that the assailant, a 28 year old woman, was armed with two "assault style rifles" and a handgun, or so it is reported. It is important to the copy writers at the New York Times to work in assault style rifles in some manner; but were they actually used to do the shooting?

Has anyone paused their scribbling long enough to ask how in hell one walks about with two rifles and a pistol? It seems rather cumbersome to me and leads directly to the question of: how was what handled when?

Was the woman actually carrying all three weapons? Often in these reports the word "armed" is used to describe the fact that guns were located in the trunk of a car or some such. So, was she armed in this (misleading) sense or was she actually carrying?

My suspicion is that the shooting was done with the pistol which was probably a semi-automatic. But I don't know and I can't draw any conclusions about anything until I do know.

What I do know is that the facts are irrelevant to the usual suspects. The anti-gun hysterics are shedding crocodile tears and pumping "yet another shooting" of innocent children for all it is worth in their crusade to nullify the Second Amendment.

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Throwing Tulips at Tigers

(or the Right to a Return on one's Labor)

This week Senator Sanders crossed examined Norfolk R.R. CEO, Alan Shaw about future company policies in the wake of the East Palestine disaster. Sanders asked: (1) if the company would commit to ending so-called "precision scheduling" which involved laying off 40,000 railroad workers as a result of which safety standards had plumeted; (2) if the company would commit to giving all of its workers paid sick leave in line with the rest of the country; and (3) if the company would commit to paying "all" of East Palestine's health care needs resulting from the accident.

To each of the questions, Shaw begged off with some evasive burble which, said Sanders, made him "sound like a politician."

"With all due respect" Bernie sounded like a dog barking up the wrong tree.

This issue was settled a century ago, when Henry Ford wanted to "plow back" company profits into building more factories and employing more people instead of paying dividends to shareholders. The shareholders filed suit, demanding their dividends. In Dodge v. Ford Motor Company, 204 Mich. 459, 170 N.W. 668 (Mich. 1919), the Michigan Supreme Court ruled that Ford's desire to use profits for some social and economic benefit took a back seat to the stockholders' right to those profits. In other words; the business of America is profit. No Shakespeare here.

The court's ruling became America's law which is founded on the principle that officers of a corporation owe a "fiduciary duty" to the stockholders. After all when someone lends you something you have a duty to do your best to return it in as good or better condition than when you got it. Company officers have a duty to use the money with which they have been entrusted wisely and for the benefit of the the investors. As a result the profit that money generates also belongs to the investors.

Bernie certainly knew or should have known, that the Prime Directive binding Shaw was his fiduciary duty to the company's shareholders. As such he could not possibly commit to doing anything that would prima facie detract from this shareholders' profits.

It may be that in the course of business a CEO or manager must, as a result of some necessity, undertake measures which diminish profits; but that does not equate to making a commitment to do so out of the blue and in the abstract. If Shaw had answered "yes" to any of Bernie's question he would be committing himself to malfeasance of office. Surely Bernie understood this.

It almost made one feel sorry for Shaw. It certainly made me feel sympathy towards Lenin.

Lenin hated social democrats. Why? Because underlying social democracy is a Fatal Compromise -- one which accepts the capitalist engine while hoping to make it run, not just more efficiently, but more fairly. However, the business of America is not "fairness" but business. We don't ask tigers to become vegetarians. Why should we expect a thing (in this case "capitalism") to be other than what it is. Bernie's questions to Shaw were like God asking the Devil if he promises to be good.

When Social Democrats promised to be good Germans, Lenin was furious. In a curiously prophetic phrase, he denounced them as "social chauvinists" who -- he said -- would in the end march off gloriously to war for the sake of German Big Business. In Lenin's view, there could be no compromises. Either one supported the system economically, politically and geo-politically or one did not.

To be fair, intellectual purity is the enemy of practical good. Even Marx understood that it was hard and sort of unfeeling to chastise social democrats for negotiating an eight hour day, safer working conditions, sick leave and pensions -- in short for negotiating for capitalist-conferred benefits. These do help people and that is nothing trivial, especially if you are one of the people needing help.

But one should not forget that they are capitalist conferred. They are not just "benefits" but benefits provided by a system in antagonism with itself.

This was the meaning of Reagan's joke about "Hello, I'm from the Government, and I'm here to help." Reagan and Thatcher were keenly aware of the inherent antagonism. They promised to do away with it. They did do away with 90% of it and le voila. Half the country lives in working poverty, without "benefits," owning 3% of the total wealth, while the upper ten percent own 70% of all wealth.

Yes for a while the tiger will behave, but he never ceases to be a wild animal and at any point the wildness can erupt, as it did in Norfolk's "precision scheduling" program and as it did, just the other day, in a Republocum's proposal to do away with laws against child labor.

Personally, I do not trust in absolutist solutions. Things always work better when they are a little bit fudged... like the "well tempered" musical scale. Perfection is grating on all things natural.

But one cannot walk down the road obliviously, the way liberals do, expecting tulips to fall from the sky, which is precisely the performance Bernie put on at the hearing.

What was needed was not a "commitment" from the tiger to do other than what tigers do. What was and is needed are binding laws that will force the tiger to behave with restraint. In theory, fascists actually understood this.

The principle of Dodge v. Ford Motor Company, needs to be uprooted and repudiated. For good measure, the opinion should be burned in public squares around the nation.

The Book of Genesis makes no mention of corporations. Corporations are not individuals with god-given rights to property. They are creatures of the State and it is the state which can create them to work as the State wants them to work with such immunities, rights and duties as the state shall grant and impose. This has apparently been forgotten in the United States and certainly in the murky well of the Senate

It is simply a no brainer, that if the State wants to it can impose limits on returns and dividends. It can require corporations to limit their financial growth in order to promote the public good. It can restrict what they do and how they do it. It can require them, for the sake of the workers and, by extension, for the sake of a happy society in which all have a purpose and place, to fork over money for safe working conditions, health care, pensions and so on. It is this principle that made France, Germany and the Nordic countries so successful both as societies and as "economic engines."

The United States also understood this from about 1945 to 1970, at which point capitalism's savage wildness began to reassert itself.

The principle of "imposing" socio-economic duties on corporations is hardly untoward or unnatural. The canard underlying so-called "fiduciary" duty is a dodge that assumes, without questioning, that the profits a corporation earns  is "its" own money.

Say an investor invests $10.00 in a company, as a result of which he owns 10 shares at a dollar a share. Let us suppose that all of that money is used to produce better mousetraps as a result of which, all costs deducted, the company earns takes in $100.00. Suppose that the company has a total of five investors and (to make it simple) each of whom bought 10 shares. A total of $50.00 went in and a total of $100.00 returned. Each investor as doubled his investment.

But by what slight of hand is it said that the $50.00 in extra inflows "is" the investor's money? If we were to mark the bills with initials, $50.00 of the $100.00 woulds be initialed "A," "B," "C," "D," and "E". THAT money which was invested, which went out in costs, and which came back a part of returns, could properly and rightly be called "the investor's money."

But the other $50.00 was not the "investor's" money. That's the whole point. If it were the investor's money then the investor would have gained nothing. He would simply have gotten back all that he put in. But the whole point of the exercise is to get back more than you put it.

So whose money is the additional $50.00. The Capitalist says: "It is obviously mine." Why? Because without the "trigger" of $50.00 invested there would no "return" at all. This is absolutely true. There is no pregnancy without an egg.

But the worker says: The additional $50.00 is obviously mine because without my work there would also be no "return." If the reader has jumped ahead; yes, there is also no pregnancy without a fuck.

Operating within the capitalist system both are right. But since both are right, both have a just claim to the company's profits. Our law, disgracefully only recognizes one party's rights. This is a grotesque violation of Equality Under Law.

Instead begging for commitments, Sanders should introduce and Congress should pass, legislation which recognizes the workers right to a "return on his labour" and the company's fiduciary duty to its workers as well as its stockholders. Anything less is throwing tulips at tigers.


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