Yet Another Empty Comemoration

 

The BBC has run some weep-o-rama special on the Nuremberg Trials held 75 years ago...  The usual: "...crimes that defied the imagination..."  and "... established the principal..."

I donno.  Human beings have been committing crimes that defy the imagination since Cain killed Abel.  There is a level of horror, all too easily achieved, at which point it becomes pointless and even somewhat arrogant to argue over which moral obscenity and whose suffering is more "unique." Suffice to say that the full picture from 1919 to 1945 was not humanity's proudest moment.

As for "establishing principles" lemme offer not my opinion but that of Chief Justice Stone: 

"Chief US prosecutor Jackson is away conducting his high-grade lynching party in Nuremberg, I don't mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas." 

Justices Douglas, Murphy and Black agreed stating that he trials were "unconstitutional by American standards."    

And not only American.  Churchill, hardly a sentimentalist, was opposed to holding the trials at all.  He said that it would be better and more honest to shoot the bastards outright and upfront rather the degrade the majesty of the Common Law.

Some people may have heard (although not via the BBC) that convictions were based on ex post facto violations.  But that was just the tip of the iceberg. The tribunal, for example, decided for itself that it would “…not be bound by the technical rules of evidence.” The tribunal thus claimed for themselves the decision whether to admit evidence without any requirements establishing its validity.  Oh and they did... taking "judicial notice" of ultimate facts in issue, which the defendants therefore could not contest or argue against because once a fact is judicially noticed it is the "law of the case."  Yes... "lynching" was the appropriate word.

Worse even than that, the defendants were not allowed access to German government files (which were in the trusty hands of the Americans and Soviets).  They were only allowed to see those documents that the prosecution had selectively picked to bolster its case.   

So... did the trials at least establish "basic facts" even if the procedures were a little "twisty"?  No.  Absent access to all the files, which could contain defences, explanations, contextualizations and so on, there can be no adversarial testing.  Being confined to what the prosecution wants you to see is what is known as a Spanish Inquisition.

The trial even achieved the marvel of trying Germans for diplomatic crimes the Soviets had participated in while the Soviets sat as judges...

The trials established nothing of note except that the victor is always right...which is the one thing in  this world that Goering and Churchill agreed upon.

But does BBC note any of this?  No.  It uses the occasion to trek out yet another morose Auschwitz Special a week before Thanksgiving.  Not a real or even a light discussion of the "principles" of international law supposedly established or of how, in the manner of the making of sausages, the Tribunal at least set the stage for an International Criminal Court, which the U.S. still refuses to acknowledge... Zip.

The Satrap Punches Back

 

In 1911, Col. House, kitchen cabinet advisor to Woodrow Wilson, told the Mexican ambassador, "Your flag will be our flag."  That, pretty much, was the blunt of the matter.

But Mexicans had other ideas. The three-pronged popular revolt which is known as the "Mexican Revolution" was not directly a revolt against American imperialism.  The industrial laborer in the north of the country revolted against oppressive labor conditions and the government's blind eye toward corporate union busting. The peasants in the south revolted against the encroachment on their lands by large agri-business. The middle class in the national and provincial capitals revolted against an entrenched, closed and ossified political system.  But behind all these causes lay the first cause of the United States; for it was American hegemony that kept a perpetual president in power, that gave the economic raison d'etre for the large agricultural estates and that owned the mines in the north... in addition to the railroads everywhere. Despite their internecine and often murderous differences everyone in Mexico understood -- and have always understood -- that behind everything lurks the hand of the colossus to the North. Even boys of 12 understand this, although establishment savants in el Norte are typically clueless.

Back in 2003, I sat in on a working supper of sub-cabinet level officials who had got together to discuss some one or another problem.  After the work was done, and over pan dulces and chocolate, the talk turned to the upcoming election: who would be el tapado -- the Inner Cabal's choice.  As they went through a list of possibilities what struck me was how often someone countered with "... the Americans will never allow him...." They said this without a blush of embarrassment, as if they were talking of the weather.

Thirty years before the American Embassy hosted a luncheon with a gaggle of U.S. bankers, high officials and economists from Harvard.  A group of young up-and-coming Mexican officials were also invited.  At a given moment, the ambassador, got up, stood behind the then young Carlos Salinas Gotari and said, "Gentlemen, I introduce to you the future president of Mexico."

In fact, the Mexican Revolution began when Porfirio Diaz indicated that he sought to diversify investment in Mexico and Texas bankers quickly backed another one of their hitherto unknown Champions of Democracy, Francisco Madero whose sudden candidacy for the presidency was what tirggerd the decade long fiasco.  At the end of the debacle, Mexico reconstituted itself and reclaimed sovereignty over its railroads, mines, coastal waters, and ultimately oil.  Why it even enshrined worker co-ownership in the Constitution!

But, notwithstanding the hysterical reaction in the United States, there was always the fine print, the bottom line of which was to more than adequately recompense American investors and to riddle economic populism with loopholes.  More than that, the fine print allowed, indeed encouraged, foreign (read American) investment.  Mexico did not really want "independence" -- it could hardly afford it. It wanted respect.

Eventually, the ill mannered, bottom-line bone-heads up north figured it out.  It was like teaching basic manners to barbarians.  Just observe the niceties and all will be well.  F.D.R. got it.  J.F.K. got it fantabulously.

The Treaty of Guadalupe Hidalgo (1848) had specified the Rio Bravo ("Grande") as the border between the two countries.  Over the course of a century the river naturally changed its course with the result that 600 acres eventually found themselves on the American side.  Mexico wanted the acres returned.  American Super Patriots resisted the treasonous ceding of "so much as an inch" of sacred Murkan soil.  JFK pushed through a settlement that, in the spirit of things, returned the 600 acres to Mexico. He was awarded a hero's welcome such as no Mexican himself had ever received.

J.F.K. was also smart enough not to get unduly upset over Mexico's "independent" foreign policy; in particular its persistent recognition of Castro's Cuba and official opposition to any intervention (by anyone) in the hemisphere.  The fact was, Mexico was not a big player on the international geo-political scene, so who really cared?  Moreover, it helped the image of the "Free World's" democracies to have an upstart in the room.  It also helped when an ostensibly "independent" nation could act as a go-between or proxy for some initiative that was otherwise embarrassing.

But America's short brush with manners began to fade with the "election" of Salinas Gotari and they faded even more after the passage of NAFTA.  In the aftermath of 9/11, the fade was near total.  The United States demanded and got "cooperation" against terrorist and then against "drug lords."  This cooperation included having American agents working Mexican airports and the FBI and DEA working all but autonomously inside the country,  American officials learned to use the diplomatic "we" instead of the imperial "we" but the U.S. had achieved an effective penetration into the domestic operations of a sovereign state that no Mexican president prior to 1980 would ever have accepted.

Alas, pride always precipitates a fall... or at least a stumble.  The summary arrest of General Cienfuegos, Mexico's former Secretary of Defence, followed by dumping him intp one of the Empire's notorious isolation holes was too much for the Mexican political establishment.  It was too much that the U.S. saw fit to spy on them and not just on drug lords.  The U.S. was allowed "in" in order to combat criminals not to spy on government officials and government doings.  

Of course the American attitude is that a criminal is as a criminal does, regardless of rank and connections.  It would be wonderful if it applied that same standard to its own politicians.  But if the United States were to apply that same standard to its own officials, it would do on the basis that the Government is the Sovereign Power over all its citizens and over the country itslef.  The King is supreme in his own lands.

However, a King is not supreme in a sovereign land.  When his agents are invited in to help a fellow, foreign sovereign they become envasalled to their host. They operate at his “behest” and under his ultimate authority and control.  When they act outside their brief at their own instance, they are turning the tables. They become pro-consuls and, now, it is the foreign state who is rendered subject to the initiatives and directions of a foreign government's operatives.


So AMLO pulled out the stops.  One can only imagine; but the obvious truth of the matter is that he brought sufficient asymmetrical pressure on the U.S. to spring Cienfuegos from Metropolitical Correction Centre.

The New Cry of Mexican Sovereignty is: Our Generals are Our Business!

And more than just "spring."  AMLO made Murka eat grass.  The official communiqué had it that Cienfuegos was being released into the custody of the Mexican Justice Department to be investigated and prosecuted "as appropriate."  Did the United States now feel that Mexico was up to doing what the United States had felt it had not been up to doing before? Or did it simply admit that it had, once again, acted like a total, despotic boor?  

One can imagine AMLO saying: "You will not treat us like Iraq." The fact is that the U.S. treats everyone like Iraq but every once and a while someone has just enough of what the U.S. needs to make it observe the goddamn decencies.

Hurray! The Result is In.

Politics

 A house divided cannot stand

  Political Economy

The election results are in! California Proposition 22 won by an overwhelming margin. The status quo perdures!

 Background. The Republican Party was founded (1854) as the party of "Free Labor." What this meant was that workers should be free to freely enter into such contracts of employment as were offered to them by employers. In other words, it meant an un-regulated labor market which, as it just so happens, suited employers just fine.

The country then fought a war to get rid of slave labor.

With the Republican Party in ascendance, the country entered the era of unregulated capitalism which culminated in Lochner v. New York (1905) in which the Supreme Court held that the right of contractual liberty was constitutionally sacrosanct. This meant that it was unconstitutional for government to pass health and safety laws regulating work conditions; i.e. "dictating" the terms of a contract of employment.

If a child contracted to work 14 hours a day for a pittance far be it from us to infringe on his constitutional rights to freely contract his labor!

If a woman lost her hand in a machine loom she had, after all, "assumed the risk" entailed in the work. If she was worried about her hands she ought to have freely contracted another type of employment.

If "workers's syndicates" attempted to collectively bargain for wages and working conditions that was not only unconstitutional but an "illegal combine" as well!

Our Supreme Court at work.

And so, when it came to social safety nets and economic regulation the United States lagged behind the Second Reich, the Weimar Republic and even the Nazis until, at last, Roosevelt decided to do something about it, beginning with a federal statute aimed at preventing sick chickens from being sold as wholesome fryers. As a side dish, the statute also regulated hours and working conditions. In what became known as the Sick Chicken Case, the Supreme Court struck the statute. "Tell the president," liberal Justice Brandeis said, "that we're not going to let the government centralize everything."

To the sacrosanctness of contract, the high court now added the sacrosanctness of states rights and separation of powers. Two years later, after threats from the president, the Supreme Court made the "switch in time that saved nine." In NLRB v. Jones etc. (1937) it upheld the right of unions to organize and collectively bargain for wages and working conditions. "That," the Court now intoned" "is a fundamental right."

That same year the Court upheld the Social Security Act, and with that, America's era of pseudo-social democracy began. "Pseudo," because New Deal and post-war social legislation was never as comprehensive or as fundamentally grounded as systems in Europe. It has, for example, never been held in this country that health care is a basic human right integral to the social contract itself. Health care for All Seniors has only been upheld as a matter of statutory policy. Medicare could be repealed tomorrow if the party of Savage Capital put their minds to it.

But they have put their minds to destroying as much of the New Deal as possible, beginning in 1980 with Reagan's crusade gainst unions and with the initiation of what is known as the Gig Economy.

The Gig Economy is nothing less than the return to Free Labor (1854) and Lochner (1905). Only the labels have changed. "Illegal combines" are now replaced with a so-called "Right to Work." What was called a free laborer is now called an independent contractor. An employer can (in the exercises of its constitutional right of contract) choose to employ someone as an employee in which case the latter will be entitled to all the employer-paid benefits the law requires (thanks to Roosevelt and his dead chickens). On the other hand, the employer can, if he, she or it so wants, chose to have his work done by independent contractors in which case they are owed nothing except the "fee" freely negotiated. The result was predictable.

Both government and capital chose the better bottom line meaning that millions in the work force lost unemployment health and retirement benefts. Fuck em! Let em scramble. It's the Murkan Way.

Since, in such a system, wages sink to the lowest possible level, the "independent contractor" simply has no wherewithal to save for rainy days, to pay market rate insurance premiums, to accumulate down payments, or to save for retirement. Let us take a very simple example. An independent contractor must pay 14% of his income toward social security. That's a hefty amount. An employee will pay 7% of his wages toward social security and his employer will pay a matching 7%. The employee now has an extra 7% of income which he can use to buy a home or to invest in a 401k. He gets the present value of 21% without even taking into account the appreciation of assets. If the value of group medical insurance as against individual free market insurance is factored in he comes out further ahead just as the independent contractor is even more fucked.

The ultimate social cost is also predictable: more and more independent contractors are simply unable to withstand the viscitudes of the market place and fall through the proverbial "cracks" and into the sadomasochist world of "welfare." Just as civil law aims to oppress the poor, welfare aims to humiliate them -- to see just much abject compliance and denigration can be extracted at minimum cost.

Much to anyone's surprise, the California Supreme Court -- a sadistic and reactionary institution if ever there was one -- ruled last year that if an independent contractor was to all intents and purposes an employee he had to be given the full basket of benefits to which an employees were entitled. This ruling was then codified into law (2019) by the Legislature.

This is what Franklin Roosevelt called "stepping on toes" and the usual howl of pain and anguish pierced the skies. App-based companies DoorDash, InstaCart, Lyft, and Uber, initiated Proposition 22 aimed at overturning the law. Together they spent $202 million dollars to back the proposition, making it the most money ever spent on an initiative.

And with success. Prop. 22 was passed by almost 60% of the votes. At the same time, Biden garnered 65% of the vote.

So what does that tell you? It tells me that this wonderful "Blue State" -- firmly in the grip of the liberal Demorat Party is about as progressive as 1840 and 1905 Republicans Biden or no Biden.

Gentrified Liberals will raise their usual sanctimonious prattle. Oh but we believe in Freedom of Fetus Flushing! We support Queer Cakes! Black lives Matter to Us as much as our own (almost)! And of course we believe in equal access to this and that. A level multi-cultural playing field for all! Anyone can get into Stanford if they just put their mind to it, like we did!

But none of these cultural and access issues are worth a damn unless they are predicated on a fair and sustainable economic social contract. That is, unless everyone commits to paying his share of another's wellbeing. Yes -- his share of another's. That's the real meaning of community. That's the real meaning of social democracy. But just as much as Republicans, liberal, blue Democrats fail to put any money where their mouth is and the passage of Proposition 22 proves it.

In favor of the proposition, the usual excuses are blathered. A free-wage market will incentivize investment, yield increased productivity and happiness all around. But "productivity" is just happy talk for "profit" since the whole point of a product is to sell it and make a profit from it. So what the blather boils down to is: the independent contractor's loss will be the "non-employer's" gain.

 California is a solid "blue" state. It is also bellweather state. The passage of Prop. 22 tells me one thing: there will be no economic justice under Democrat rule than under Republican. It's all just a lot of stuff and nonsense for the comfortable to anguish over.

Politics 

(again)

Yes, a house divided cannot stand and, as appears likely, the intractable division between Red and Blue will remain reflected in an utterly deadlocked government. This acutally suits the wealthy just fine because the less government can do, the less it regulates and the more Liberty of Contract there will be. Hurray for Lochner!

 But the house remains divided in a more fundamental and ultimately disastrous way. It remains divided between the haves and the have-nots. Between upper middle class, who are the happy vasssala of a system which coddles and provides for them and the truly independent poor who are left to sink on their own. Vive la Liberté. 

 © 2020

Footnote on Lochner

Lochner illustrates how caselaw works. The issue in the case was whether New York could regulate work conditions for bakers on health and safety grounds. Lochner never said that it could not. What it said was that baking was a piece of cake that did not involve any health risks at all. Thus, to interfere with contracts (aka regulate working conditions) for no good reason was obnoxious to the constitution. Why, it was just gub'mint as busybody.

As the dissent pointed out in gruesome detail, baking is a highly health endangering condition, particularly to the lungs. The average life span of a baker was 45 to 50 years. There was a more than enough health and safety regulation to warrant to "interference" with contract.

But, by ignoring a fact, the Court was able to set an abstract principle and then, in subsequent cases, use that abstract princple to dismiss the facts in the cases as constitutionally irrelevant or insignificant. "As we said in Lochner..." etc.