February 18, 2011

The Constitution


There are two complementary reasons for a Constitutional Convention. The first is that such an exercise in democratic participation is a value in itself which can help clarify our principles of resistance and self-liberation, and help develop an organizational framework for this resistance and self-liberation movement. The second is that it can possibly succeed in bringing democratic and anti-corporate amendments to the Constitution, which would be a step toward true federalism, true positive democracy.
My premise in proposing changes to the Constitution is that the 1788 Constitution betrays the ideals and spirit of the American Revolution. Some critical provisions run directly counter to federalism and democracy, while others have been severely perverted through long corruption of practice.
I find the right to critique and change the Constitution in the fact that the American Revolution’s ideology established the sovereign constitution to be prior to any written Constitution, and therefore according to sovereignty*, as explicated and practiced in the course of the Revolution, the Constitution is legitimate only to the extent that it’s faithful in principle to the sovereign constitution and useful in practice to empower the sovereign people. Where it is not so faithful and so useful, we may and must convene and change it.
[*For more on the fact that sovereignty is inalienable, cf. Rousseau’s Social Contract, Book 2 section 1. Consider also the usually abused idea, “the Constitution is not a suicide pact”. If we turn this right side up and take it as a severe restraint on aggressive government power and constitutional readings which would support that aggression, it puts something like Citizens United in the proper perspective even if it had been technically the “correct” decision, although for many reasons it was not.]
Are these ideological matters important? Historically, they have been. Movements have sustained themselves through time and travail where they squared things with themselves, philosophically and morally. Real activists need to be satisfied before the court of their conscience that they’re doing the right thing, and that they had the right to act in the first place. The Israelites’ ideal of the Promised Land, and the Greek classical theory of the right and obligation to resist usurpation and tyranny were perhaps the earliest examples of this in Western history. Fighters who understand exactly, in the deepest sense, not only what they’re doing but why they’re doing it, not only that they fight for freedom but the philosophical basis of this freedom and its fight, have always been the most successful activists. No doubt many think modern America is different, and that for once “exceptionalism” would be correct, but I sure don’t see any evidence for that. I think we need to rigorously work this stuff out.
So in a series of posts I propose to analyze critical points of the Constitution, in what ways it was anti-democratic in its inception (in particular its structural anti-federalism), how it’s been subverted in practice (in particular how jurisprudence has enshrined and empowered corporations) and discuss possible amendments to solve these problems.
Here’s a few amendment possibilities. Some of these already have one or more proposed drafts offered by various groups, which we’ll discuss in their turn. For now I’ll just list some basic ideas.
* The enshrinement of Food Sovereignty as a basic right. (This would certainly have been the First Amendment if anyone in 1788 could have contemplated a day when the federal government would explicitly deny we have a right to grow and eat the foods of our choice. But even the opponents of the centralized government who demanded the inclusion of a Bill of Rights, as suspicious as they were, never contemplated such an obscene assault on our liberty and dignity.)
* Corporations are not persons and have no constitutional rights. Only humans have rights.
* If corporations are to exist at all, an amendment could explicitly limit them to the purposes and constraints which would have been familiar in the 1780s.
* The Full Faith and Credit clause shall not be construed to include corporate charters. All corporate activity shall be subject to the chartering laws of the state, except as restricted by one or both of the two previous amendments.
The point of these would be to prevent races to the bottom (since e.g. Delaware’s not all that big a market, and outside Delaware a corporation chartered in Delaware would be subject to the provisions of those other states, not those of Delaware)
* The federal government power shall be strictly construed according to the explicit letter of the Articles.
* “Interstate commerce” is only commerce which within a discrete transaction crosses a state line.
* Some way to declare that globalization “treaties”, i.e. contracts of adhesion, are most definitely not “the Law of the Land”, overriding federal, state, and local law.
* Clarify Article 1, section 8, to specify that the government may not alienate the sovereign power to coin Money. That is, the Fed and all private bank money is unconstitutional and to be abolished.
Those are the examples that first come to mind. I’m sure there’s other good ideas. My way of reading the Constitution is that the central government described in the main body must have its power greatly diminished, while the real spirit of the document is to be found in the negative provisions of the Bill of Rights and the wide open, implicitly positive 9th and 10th Amendments. So I’d want to amend toward the structural goals of constraining everything in the regular Articles and confirming that the 9th and 10th more closely represent the spirit of the constitution.
Up till now, the debate over loose construction, or strict, or originalist, has been parochial and wrongly focused. The procedure must not be to apply one standard of interpretation (let’s leave aside that almost all such ideologues have been hypocrites who were lying about their constitutional jurisprudence) to the whole Constitution, but rather to apply the Constitution according to the logic and spirit of the American Revolution. So we must look to the ideals of the Revolution, where we find the basic ideology of power and liberty as necessarily, existentially engaged in a fierce struggle. We find that the Revolution recognized that:
1. Sovereignty reposes only in the people.
2. The constitution is the social embodiment of this sovereignty.
3. Any power which is concentrated in government form must be rigorously constrained.
So any Constitution worthy of the American Revolution would be, to put it in today’s interpretive terms, loose with regard to the people’s rights, strict where it comes to government power. This was the original intent of the American Revolution, so to any extent that the so-called “federalists” of 1787-88 violated this intent, their intent would be invalid, since the intent of the Revolution itself is the only intent which has authority.
So as part of our project to take back our country, let’s take back our Constitution. In these posts I’ll provide documentation for all the points of the Revolutionary ideology of the 1760s-70s, although Bernard Bailyn has already done the hard work in his Ideological Origins of the American Revolution, and I’ll mostly be drawing on his reportage. (I already documented the real nature of constitution here, and of liberty’s necessary struggle against power here.) From there I’d like to have a mock Convention on this blog, discussing possible amendments, drafting our own wording or adopting drafts already written by others. It should be a worthwhile and even fun exercise in figuring out exactly what we want out of a more democratic, humanistic Constitution.


  1. I agree that this exercise can be instructive and constructive. The scope you have set, that of a constitution for the entire existing US empire is too expansive. We should be working toward setting up smaller independent units that can be more effectively managed by the citizens within those units. As I commented to one of your earlier writings, I am working on a social contract for an independent California. Maybe not surprising, the concepts you listed above are quite similar to what those included in my draft. e.g.
    1. The People are and always shall be the sole sovereign. The government and all its officials, employees, departments and any other subgroup are subordinate to and merely agents of the People. All elected officials and government employees shall take an oath to defend this CONTRACT against all aggressors both foreign and domestic. The sole reason for the existence of the government or any official, employee, department or any other subgroup is to defend this CONTRACT and carry out its tenets.
    2. The People are free and independent human beings and have the absolute right to maximum freedom of action individually or collectively, except those actions that are expressly forbidden by this CONTRACT or laws enacted in strict conformity with this CONTRACT. This CONTRACT does not enumerate rights; all rights and freedoms are in the People; it defines those very few instances where a person’s or the People’s collective rights and freedoms are curtailed for the common good.
    3. The People’s government, at any level, has no inherent rights or authority. The only authority the various levels of government have are what the People allow it to have for as long as the People allow it.
    30. Only human beings are legal persons.
    31. Managers of corporations or any other type of organization, who make decisions for such organization, are responsible for any and all criminal, fraudulent or negligent actions of the organization, especially in cases where the organization comes to financial ruin or is the cause of pain or suffering to any legal person.
    This is just a smattering. I look forward the ideas that will be put forward by those that participate especially ideas of what the basic structure of the people’s govt should be. e.g. I can see from our current imperial presidency that the idea of having a president is not a winner.

    Comment by jm51 — February 18, 2011 @ 10:50 am

    • Yes, we’re on the same wavelength as far as the end goal – radical decentralization of power. So I’m not trying to conserve the imperial government. Nor do I expect it to significantly lose power until it actually starts collapsing.

      But the act of organizing around the amendment process, and of trying to get at least some amendments passed (in particular, the food sovereignty and the anti-corporate ones are those which are most important and perhaps realistically possible, with a lot of work), can help organize the political and economic civil disobedience we’re definitely going to need. (I picture this and other negative aspects of a political resistance movement as being complementary with the affirmative relocalization movement.)

      Those are some interesting provisions you have. So you just want to dispense with the existing Constitution completely.

      Comment by Russ — February 18, 2011 @ 2:09 pm

  2. This generation isn’t able to compose a fair and enduring constitution. The vast majority is unaware of the enlightenment ideals and political thought that the founders drew their inspiration from.

    Comment by par4 — February 18, 2011 @ 1:15 pm

    • par4: From your comment, it appears you will not be perticipating in this exercise.?

      Comment by jm51 — February 18, 2011 @ 1:29 pm

    • We don’t need everyone. To start with we need committed citizens in order to get the movement off the ground. For it to triumph, all we’ll need is critical mass.

      As the disaster becomes more generally evident, I expect far more people to become interested in alternatives to disaster. In the meantime we do whatever educational work we can and make sure our alternative is available.

      Like Milton Friedman said, when there’s a crisis, people grab something from the ideas which happen to be laying around. So the point is to make sure yours is one of the ideas laying around. Otherwise noxious ideas like his will continue to prevail by default.

      Comment by Russ — February 18, 2011 @ 2:15 pm

  3. Thanks for the link to Rousseau’s work. I’m especially interested in principles and underlying philosophies which aren’t specifically regional in nature. I look forward to the day when I can proudly claim to be a part of a confederation which includes people and organisations on both sides of our shared border. I think that I will need to work back from the American revolutionaries’ principles to the underlying philosophy in order to work forward to something which makes sense in the context of my, in some ways, very different nation. Thanks for the framework and the references, I hope that when I’ve digested it all I may have some regional insight applicable to your northern neighbours.

    Comment by paper mac — February 18, 2011 @ 9:45 pm

    • Thanks, paper mac. That sounds like a good plan. I don’t know too much about Canada’s history myself, although my understanding is the British learned a lesson from the American experience and adopted the commonwealth concept which, if they’d deployed it in America in the 1860s might have kept us within the “UK” as well. So Canada more gradually cut the ties.

      Nowadays, though, the two governments are doing all they can to unify the North American kleptocracy, with NAFTA, the SPP concept, and now this new integration assault I heard about but haven’t had a chance to read about yet.

      Comment by Russ — February 19, 2011 @ 3:09 am

      • Its interesting to see how TPTB operate in response to people’s demands.

        Obama and Hillary on Egypt as well as Wisconsin pretend to support the people with comments of support only after they are forced to respond. They’re forced to respond only when people organize and fight back in large numbers enough to get media coverage and debate on the issues going.

        Its hard to imagine Walker bringing out the National Guard or any armed show of force now that the Wisconsin demonstrations have the attention of the country.

        But, given the audacity of this bunch that has put itself in power, I shouldn’t be surprised by anything they do.

        Comment by LeeAnne — February 19, 2011 @ 9:25 am

      • Only today I’m starting to take Wisconsin semi-seriously. But I still find it hard to believe anybody in America is really going to stand up and fight in this way. I expect everyone to say at some point, “time to go home, the game’s on”.

        But think about it: Let’s say a critical mass among these demonstrators decided they weren’t going to go home after all, like those in Egypt. That they weren’t going anywhere. And let’s say they broadened their demands to a general demand on the system. And let’s say, seeing this, more people came out to join them. Including more and more people who aren’t members of these unions, but who want to join in making these democratic demands.

        And let’s say that people in other cities saw this and were inspired to start their own demonstrations. And this blossoming spread and sustained itself and fed on itself….Who knows where it could lead?

        And it really could happen like that, any day now.

        I still don’t expect it to, not yet. But wouldn’t that be a wonderful surprise.

        Comment by Russ — February 19, 2011 @ 11:00 am

  4. Henry Simons, who I call “the Excommunicated Neoliberal,” had a very interesting proposal regarding what to do about corporations (and it’s probably why he’s been excommunicated).

    Generally, Simons was concerned about too much concentration of power in any one place, whether in a goverrnment or a corporation. So, he put together a proposal that would limit the size and permissible activities of corporations, including provisions for socializing things if they proved to be natural monopolies (he didn’t want rents).

    This from the guy who brought Hayek to the University of Chicago.

    I’ll reproduce Simons’ proposal in its entirety over at my place and let you know when it’s available. A big departure from your bullet points is that Simons would abolish state charters of corporations and go to a federal system, but even if that proves unpalatable, Simons did have a complete vision with many worthy aspects.

    Comment by Tao Jonesing — February 19, 2011 @ 11:33 am

    • Thanks, Tao. I look forward to reading it.

      Limits on size and activities were among the many original restrictions on corporations.

      At the Constitutional Convention the delegates rejected plans for federal chartering offered by Madison and Franklin because they feared the federal government would empower some homegrown version of the British East India Company, resistance to which had played a major role in the Revolution. (The Boston Tea Party was a direct blow against corporate monopoly.)

      By now I want to abolish corporations completely, but if there was a major movement to amend in order to put them back in their pre-Dartmouth place, I could support that too.

      Comment by Russ — February 19, 2011 @ 11:55 am

      • Russ: This part of you comment “By now I want to abolish corporations completely, but if there was a major movement to amend in order to put them back in their pre-Dartmouth place, I could support that too.”

        The form of organization (corp, partnership, proprietorshi etc.)is really not relevent; what is important is to maximize freedom of action but ensure accountability and admit that some folks are just plain greedy and are sociopaths. As you and Tao both realize, it is the accumulation of wealth and its accompanying power that leads to suffering and injustice. Here are few recommendations:
        39. The three factors of production, land, labor and capital shall be treated equally at all times.
        50. No single business entity of any type shall be allowed to represent greater than .25% (one fourth of one percent) of total GDP.
        51. No private enterprise shall be prevented or saved from financial collapse, ruin or bankruptcy by use of the Peoples’ money. Upon financial collapse, the entity will be audited by the People’s regulators and if any improprieties are disclosed, the firm’s senior management and anyone else who was directly involved will be subject to immediate arrest and prosecution.
        53. There shall never be levied any tax on remuneration received directly for an individual’s labor whether it be in the form of a salary or wages paid by an employer or salary drawn by an individual from a sole proprietorship, partnership or any other type of commercial entity. There shall be levied a 98% tax on all non labor income including but not limited to real property rents, interest earned, any property inherited and intangible assets sold.

        Comment by jm51 — February 19, 2011 @ 2:21 pm

      • The form is extremely relevant, since partnerships and sole proprietorships are barely distinguishable from the human individuals involved, while corporations are powerful, durable, sociopathic, anti-sovereign entities which are the state-of-the-art structural form of totalitarianism, as well as history’s ultimate machines to empower sociopathy, greed, powerlust, hate, sadism, and every other bad hominid trait.

        Corporations are an affront to sovereignty, a clear and present danger to freedom and to every human value and trait, and the ultimate vector of evil.

        Comment by Russ — February 19, 2011 @ 3:34 pm

      • Russ: this reply is out of sequence because there is no REPLY after your 3:34pm reponse.
        A point of clarification please;
        a. your 3:34pm response strongly indicates that you want to abolish the corporate form of entity for reasons that describe accurately what exists today.
        b.In your 11:55am response you allude to a “pre-Dartmouth” corp form that may be acceptable or at least tolerable.
        I admit to not being familiar with the reference to a “pre-Dartmouth” era.
        I wonder if you would care about the corporate form if all the revenue had to be divided equally among all the employees regardless of title or position and items 50 and 30 in my previous responses were in play?
        I am not attempting to convince you of anything. If you want to rid the world of corps, it’s ok with me. Everyone has the abosolute right to believe whatever they want; the problem today is that too many folks confuse that with a non existent right to DO whatever they want.

        Comment by jm51 — February 19, 2011 @ 9:15 pm

      • jm51,

        “Dartmouth” refers to Dartmouth vs. Woodward, an early 19th century SCOTUS case which in a nutshell gave corporations some constitutional protections. The decision was narrow in itself, and Marshall explicitly called corporations artificial creations of the government, but still it opened the door a crack for the idea that corporations may (and ought) to have the same rights as people.

        So pre-Darmouth would mean the classic highly restricted corporation which has no Constitutional standing, but only whatever legal standing the restrictive state charters give it.

        (How ironic that Dartmouth turned on a 1760s-era decree of King George himself, which was now being argued to comprise a contract with constitutional standing. Too bad no one had ever undertaken a revolution to overthrow the idea of royal fiat as constituting anything legitimate. Oh, wait…)

        Your item #30 (abolish personhood) is certainly a minimum demand everyone must have, and #50 would restore old-style size restriction. (Although having the restriction as a % of even a real figure, let alone the fraudulent GDP number, isn’t the best way to do it. The old way was to have strict absolute size limits.)

        Comment by Russ — February 20, 2011 @ 6:03 am

      • Russ Re; your reply time stamped 6:03am.
        I agree with your view that GDP, as currently reported is fraudulent. But the concept of GDP is not the failure, it is the liars, thieves and murderers who are “calculating” and reporting GDP that is the problem. Using GDP as the mmeasure is not required but the absolute acceptable size must be determined somehow.The question then becomes, what is/are the measure(s) of acceptable absolute size, is it revenue, number of employees, number of customers, something else? It must be a measure that prevents the accumulation of excessive wealth/power, can be consistently applied with the minimum opportunity for manipulation, can be closely monitored and there must be sanctions serious enough to deter falsification by those doing the calculation and those doing the monitoring.
        If it was your decision, what would be your model?

        Comment by jm51 — February 20, 2011 @ 2:57 pm

      • I’d have to think about it. But to give examples of how it used to be done, this chapter of Ted Nace’s Gangs of America


        contains a chart showing limits on capital invested which used to be used for classic corporations. (It’s “Change #8”.)

        So if that was the preferred way to restrict size back then, then I guess that’s what we should go with today.

        Comment by Russ — February 20, 2011 @ 6:56 pm

      • NOt to derail the conversation on the Constitution, jm51, but the concept of GDP is absolutely a failure (perhaps intentionally so).

        $10 of bullets is valued as equivalent to $10 of books; $10 of Cheetos or ringtones is the same as a $10 table. Spending money on garbage, garbage dumps, garbage trucks and gas for garbage trucks… on wars, bombs and Homeland Insecurity… all registers as positive, instead of the negative it should be.

        GDP is a measure of spending, not of true prosperity.

        Comment by Lidia — February 22, 2011 @ 7:00 pm

      • Lidia:You conclude your comment “GDP is a measure of spending, not of true prosperity.”
        The first part of your comment is exactly the point.
        The objective of the back and forth was to find some measure by which the size of corporations could be rationally measured and determined to be too large for the safety of society. My contention is that spending (GDP) when properly calculated is one possible measure. Others on the string had their own views, some of which dovetailed and some not quite so much.
        As far as GDP being a measure “not of true prosperity”…while I agree that “wars, bombs and Homeland Insecurity” are huge negatives, within the very narrow scope of this discussion…it is best left for another thread.
        How would you control corporations or any economic entity from amassing sufficient wealth and power to cause harm to a society?

        Comment by jm51 — February 22, 2011 @ 8:07 pm

      • jm51, well, I think they started out being limited in time, for one thing, and also limited in the scope of their activities. I would first try going back to that: giving every corporation the chance to adhere to a strict state charter, or disband.

        Comment by Lidia — February 23, 2011 @ 9:25 pm

  5. Russ,

    Thanks for this post, and I also appreciated your latest comments at NC regarding UK squatters and Bahrain.

    As for Wisconsin, compared to the uprising in the Middle East, I’m also having trouble to take this protest seriously, but of course I hope I’m wrong, as I’d like to believe this is the start of something that will spread over the entire country.

    Not sure your opinion of Chomsky but over at Zcommunications, he has some interesting comments related to what’s happening in Wisconsin:

    “The reason why you can’t get Democratic leaders to join is because they agree. They are also trying to destroy the unions…..”

    He’s go on to point out what is obvious to anyone paying attention: that the MSM is trying to shift blame away from the banksters and the finance sector and to make public union workers into the new scapegoats:

    “And there’s been a wave of propaganda over the last couple of months, which is pretty impressive to watch, trying to deflect attention away from those who actually created the economic crisis, like Goldman Sachs, Citigroup, JPMorgan Chase, their associates in the government who—Federal Reserve and others— …..(and direct anger towards)..
    teachers, police, firefighters, sanitation workers, etc


    It’s incredible that so many Americans are still falling for this vicious anti working class propaganda but it seems they are, and so for this reason, my view of the Wisconsin protests could best be described, in Gramsci’s words, as “pessimism of the intellect, optimism of the will”.

    Maybe this will be the start of something that spreads, but I don’t think we’re quite there yet…

    Comment by Frank Lavarre — February 19, 2011 @ 1:16 pm

    • Thanks for the kind words, Frank, and for the link. Chomsky’s right, about the misdirection and about the Dems being fully involved, whether it be active “austerity”-mongering or complicity with the Reps.

      One point of similarity between Wisconsin and Egypt is Obama’s tongue-tied inability to arrive at a clear position and stick to it. He seems to get dumber and less functional by the month. He’s fully as malevolent in intent as anyone, but perhaps lacks the guts for it. Having to see the destruction he’s already wrought, and face the hatred he’s justifiably brought upon himself, he seems to be deteriorating.

      As for Wisconsin, I just saw a headline saying today’s the biggest protest yet. And I know at least some people there are doing their best to get others into the mindset, “this can be our Egypt”.

      Comment by Russ — February 19, 2011 @ 3:27 pm

  6. I’m with you on that, Russ. It’s possible, and yes, it would be wonderful.

    With a man like former Wyoming Senator Russ Feingold coming out swinging for the demonstrators, things could get more interesting.

    Now the people of Wyoming can see clearly what their voting carelessness has wrought. The contrast between a man as decent and devoted to public service as Feingold in contrast to a man like Walker is so stark that it could get the people to wake up and notice they’ve been had and how; against their own interests by money and false advertising.

    Russ Feingold on Scott Walker’s union proposal: “one of the least Wisconsin-like things I’ve ever seen anyone do.”
    By Craig Gilbert of the Journal Sentinel Feb. 17, 2011 Journal Sentinel
    and a NYTimes article today on Feingold here

    I’m a fan and was looking forward to his soon to be published book, but here he is back in action to fight the good fight. We share a common cause. An article on his
    new political organization aimed at countering the impact of corporate money in politics.

    Comment by LeeAnne — February 19, 2011 @ 5:45 pm

  7. And they’re talking your language here

    “We’ve seen what happens when Scott Walker and the Republicans have total control: You get dictatorial power,” said Hulsey. “The tyranny of the majority, as [James] Madison spoke of in the Federalist Papers.”

    In an interview with The Huffington Post on Saturday, freshmen Democratic Assembly Member Brett Hulsey said that until the legislation passes, they’re trying to put as much grassroots pressure as possible on Republicans.

    “What we’re telling people is to call people you know in Republican districts,” said Hulsey. “Tell them to call their senators and Republican members at home. When you see them at church and at the grocery store, tell them to kill the bill.”

    The second strategy will come only if Republicans decide to stick with Walker. … voters can recall any elected official in the state, as long as they’ve been in office for at least a year.

    Comment by LeeAnne — February 19, 2011 @ 5:59 pm

    • I sure hope something comes of it all. This isn’t much yet, but it’s the most of this kind of fight we’ve seen out of anyone in America for a long time. The piece on Feingold’s group didn’t have details on what they plan to do. I wonder if he’s learned a lesson from the failure of his previous strategy.

      Comment by Russ — February 19, 2011 @ 6:04 pm

  8. @jm51,

    To me, a major reason the corporate form is objectionable is that it is subject to limited liability while all other forms of business enterprise is not. Query whether limited liability makes sense for every action a corporation undertakes. I’d argue that it doesn’t, that certain actions should be subject to full liability and other actions should result in the loss of limited liability (one strike and you’re out). Also, certain kinds of businesses should never be allowed to incorporate (e.g., banks and other financial institutions).

    I do think limited liability makes sense in limited circumstances.

    No matter what, though, corporations are not people and should be stripped of personhood.

    Incorporation is the orginal moral hazard.

    Comment by Tao Jonesing — February 19, 2011 @ 9:41 pm

    • Originally, some states had unlimited liability for shareholders, others had “double liability”, i.e. you could be liable for double your investment. I suppose that figure is arbitrary in itself (as opposed to 150%, or triple), but was trying to find a middle ground.

      Many states agreed with you about banks, and made their charters renewable at 3 or 5 year intervals. The goal was to keep them on a short leash.

      By now we know that it was just ignorance that ever caused anyone to think society needs private banks for money creation at all, and you’re definitely right that we don’t need incorporated banks for anything.

      On that note, many states also restricted incorporation to sectors where there was ample evidence that non-corporate forms weren’t sufficient. The existence in a sector of non-corporate going concerns would be sufficient to defeat requests for corporate charters.

      Comment by Russ — February 20, 2011 @ 6:13 am

    • Tao: Your commnent seems to bring up a distinction that should be made. Limited liability (in an economic realm) and accountability (non-economic realm). My item 31 (way up in response #1 above) addresses the accountability aspect. I completely agree that corps are not and never should be considered legal persons in any manner whatsoever (item #30 in response #1 above).
      In what limited circumstances do you envision limited liability making sense? Were you thinking limited economic liability or limited accountability for harmfull actions or some of both?

      Comment by jm51 — February 21, 2011 @ 3:07 pm

      • I’m not sure how to differentiate between the two. After all, under capitalism the prospect of paying fines or tort judgements is envisioned as just another cost of doing business.

        Part of the purpose of the corporate form is to allow the individual criminal to evade as many of these costs of crime as possible.

        That’s why I’d impose the same unlimited personal liability on all business actors. If this is to be a democracy (and a “free” market), then how and why can anyone have any special privilege?

        But just as “corporate rights” are really nothing but a doubling of individual rights for corporate management and big shareholders, so “limited liability” is nothing but absolution of individual responsibility for those privileged individuals.

        (And if anyone’s thinking that the owners of a small corporation don’t tend to see much in the way of such benefits, the answer is clearly to level the playing field by doing away with all corporations. For Mom and Pop Inc. to identify with Walmart is, to say the least, not in Mom’s and Pop’s best interest. But it’s exactly what Walmart wants them to do. That’s the whole “small business” scam among corporatists.)

        Comment by Russ — February 23, 2011 @ 6:29 am

      • Russ in response to your 6:29am comment:
        To me the distinction between the two is decision makers vs non-decision makers(as specified in item #31 way up in the very first comment to this article).
        If management(regardless of business form) commits crimes,fraud or negligent acts that cause harm to others and/or the company, some employee working in shipping and receiving or accounts payable, who has no decision making authority and was more than likely unaware of what was done, until after the fact, shouldn’t be held personally liable. They will likely pay a steep economic price by losing their job.
        It is not clear to me if you meant non-decision makers when you stated “That’s why I’d impose the same unlimited personal liability on all business actors.”
        Lastly, “unlimited personal liability”, how does incarceration at hard labor for life without the possibility of release AND forfeiture of all personal monetary and non-monetary posessions, sound? War criminals and avariciuos sociopaths must be presented with the proper disincentives.

        Comment by jm51 — February 23, 2011 @ 3:21 pm

      • Ok, I wasn’t completely understanding you. I was thinking just in terms of financial liability for fines and court judgements as opposed to normal business debts.

        As for criminal liability for criminal actions, that should be the same as with any other kind of crime. And where it comes to people higher or lower on the totem pole, the normal laws of criminal conspiracy would apply.

        (You get rid of the corporate form, and many of these problems go away.)

        I agree that a mere employee who has nothing to do with the crimes has no liability, just like the maid in a gangster’s mansion (as long as all she does is clean).

        I like your idea of the most rigorous penalties.

        Comment by Russ — February 23, 2011 @ 4:13 pm

  9. Russ/All,

    Found a pretty good video (IMHO) where someone from the World Socialist Web Site interviews protesting workers in Wisconsin. (If you’d like to watch it just go to the link below, then scroll down to the second article entitled “The Power of a Bad Example” and the video is there, around 6 min) It’s encouraging that every worker interviewed clearly seems to understand that what’s going on in this country is class warfare from above, the rich against the middle class, and the rich against the poor:


    Comment by Frank Lavarre — February 19, 2011 @ 11:03 pm

    • It’s music to my ears to hear that people are coming to understand that, and even more important are willing to publicly say it.

      Comment by Russ — February 20, 2011 @ 6:14 am

  10. A moral Constitution would have nothing like the 16th Amendment. Instead, federal revenue would come only from privileges granted by the federal government, such as patents, copyrights, mineral rights. The definition of “privilege” here is “the government will aid the holder in preventing others from doing what the holder is permitted to do.”

    State constitutions should have similar restrictions, with the major privilege granted by states being private ownership of land. Such an arrangement might give the states far more revenue than the feds, and the states might agree to contribute in some equitable way to federal expenses if necessary.

    Comment by taxpayer — February 20, 2011 @ 10:18 am

    • Your way of defining “privilege” is precisely the same as the original defintion of monopoly, a government charter to exercise a right denied to others. This in turn was the forerunner of corporate charters.

      That’s part of why the American revolutionaries were so leery of federalized corporate chartering power, and of corporations in general. They experienced at first hand the aggressive monopoly nature of the British East India Company. They saw Thomas Hutchinson try to make his sons and cronies the monopoly distributors of price-dumped tea.

      So they physically dumped it instead, and then kept corporations out of the Constitution.

      The federal taxation power has certainly been abused beyond tolerability. It was originally supposed to apply only to the rich.

      By now I think the people must reject all taxes on the non-rich. Certainly an excellent way to do that would be to end income taxation and shift all taxation to property and capital, to government-created privilege, as you say. That’s what Michael Hudson advocates in piece after piece.

      Comment by Russ — February 20, 2011 @ 1:15 pm

      • Rus;
        You are hunting squirrels while being stalked by a grizzly.
        Like him or hate him this is worth 10 min of your time.

        Comment by Paul Repstock — February 21, 2011 @ 4:52 pm

      • I’m familiar with the government’s attitude toward the Internet. I’ve written about it enough times.

        Do you have a good plan for frontally fighting the grizzly? I’m trying to simultaneously starve it and set snares for it.

        Comment by Russ — February 22, 2011 @ 5:30 am

      • “Reject all taxes on the non-rich.” Good principle, but in practice I don’t want the gov’t to have to define “rich.” Really, why should gov’t be entitled to look into our individual private affairs to know our income?

        Better to consider which taxes are morally right (such as a charge for the privilege of a monopoly), and which morally wrong (such as a tax on a person producing something of value which would not exist absent their labor.)

        I think the rich in general get most of their income from monopoly, and the non-rich from actual production, so the effect would be pretty near to what you seek.

        Comment by taxpayer — February 22, 2011 @ 10:27 pm

      • You misunderstand me. I’m not calling for government to make the tax code more progressive within its existing structure.

        I’m saying we the productive people should rage against any and all tax increases or new taxes which would fall on us. I’m saying this should be one of the core movement planks. We should absolutely refuse to even discuss one cent in taxes or austerity for we who have already “sacrificed”, i.e. had stolen from us, so much.

        (Contrast the craven union leadership in Wisconsin, who keep whining about all their “concessions” How’d those concessions work out for ya? Liberals remain the last ones who never got the news from 1938 Munich – appeasement doesn’t work, and only emboldens the aggressor.)

        Here’s two posts that discuss this further.



        I agree in principle on the structural reform of shifting taxes from labor to rents. If reformers would stick to that demand and ONLY that demand (where it came to taxation), it might do some good.

        Comment by Russ — February 23, 2011 @ 6:39 am

  11. Hello,

    I have enjoyed reading and learning more about the systemic failures of modern society in North America.

    Your website has been instrumental in my learning process.

    I am going to be organizing a similar exercise here in Canada that I hope can be effective in raising the awareness of individuals towards the structure of their government.

    Thank you for your continued vigilance.

    Comment by Transcent — February 22, 2011 @ 12:13 pm

    • You’re welcome, and I look forward to seeing what you do.

      Comment by Russ — February 22, 2011 @ 12:21 pm

  12. Russ, haven’t you heard? Blotting is out. 🙂 I like this idea of a mock convention. If I have anything to add, I will. I most certainly, as always, will be reading.

    On a side note, could you mail me? My Incredimail took an incredadump.

    Comment by Johnny D. — February 22, 2011 @ 2:49 pm

    • Hi JD, glad to hear you like the idea.

      Did you mean blogging is out? I saw something about that – “long form” blogging, no less. I said oh well, I guess I’ll have to pack it in.

      It’s like the reason Homer Simpson’s Be-Sharps broke up, when they saw how they rated in some magazine’s Who’s Hot/Who’s Not list.

      “Are we hot?”

      “We are Not.”

      And that was it. So you can’t argue with fate like that.

      Comment by Russ — February 22, 2011 @ 3:49 pm

  13. Oh crikey. Stupid phone. It corrected “blogging” and gave me “blotting.” Good grief. Thanks for the mail. Answer coming soon – got some errands to run first.

    Comment by Johnny D. — February 22, 2011 @ 4:14 pm

  14. I watched the vid that Paul posted above. I never know what to think of Alex.

    Anyhow, to this day my favorite TV show ever was/is Babylon 5. In fact, I hadn’t seen the show in years, but I’m currently in the middle of rewatching it on DVD. Watching the Alex Jones vid above and comparing with what I’m seeing on B5 is just weird and somewhat stunning. The show’s fictional earth government launched a “Ministry of Peace.” Its leaders and personnel did all of the things that Alex says our government is currently doing. The “See Something Say Something” campaign is almost verbatim “Ministry of Peace” material. Straczynski wrote B5 two decades ago. I’d sure love to hear his opinion on current issues. In the end, I guess it means absolutely nothing, but I’m really just struck by how the fictional earth gov. is doing all the same things as our real gov. seems to be in the process of doing.

    Comment by Johnny D. — February 22, 2011 @ 9:00 pm

    • I’ve never seen it, but it seems like science “fiction”, like satire, must be getting harder and harder to write these days, as reality keeps outrunning it.

      Comment by Russ — February 23, 2011 @ 6:43 am

  15. Global order stems from local rules.
    I am questioning a very basic assumption and myth we have long ago adopted in principle and codified: individuals are sovereign unto themselves and endowed with inalienable rights. Yes I know, we can lie, cheat, steal and worse. But all of us are motivated by some underlying principle. I am putting out there the thought that such a myth leads us to choose and act as if we are independent of our social and physical environment. We like to think we are at liberty to choose and act freely without interference. We have been taught to desire such freedom. We have swallowed hook line and sinker the myth of “freedom”. My thought is that we have never been but marginally free. Every human is born into social conventions, and by extension is restrained by history, myth, religion, stories we tell ourselves, language we use. I should advocate for a new story, one for our future, one more important than individual sovereignty. We are born embedded within a larger order living system. We might not yet understand it, but that constitution has already been written; it is adapting to the times continually, it is flexible, resilient, forgiving and all-inclusive. Yet we, via our constructs, we have opted out; we will go it alone. We have removed ourselves both ideologically and physically. Still, at any and every level of existence we are bound by constraints; our degrees of freedom are already limited by natural law and social convention. By accepting this myth of individual sovereignty we have set ourselves up with the false choice between sovereignty and subjugation. I fear we will pay for such hubris. We want our cake and eat it to. I am advocating something different in principle. I don’t know what it is exactly; we have no choice but to live as one with everything else on this small blue marble.
    what I am trying to say is: question first principles.

    Comment by iy9g86 — February 27, 2011 @ 7:30 pm

    • The myth of freedom? Is it useful to talk is such terms?

      We are born with the capacity to be free. We are born with the ability to choose. To become self aware.

      As we explore what it means to be free, it is natural that we start to seek something to guide our choices: values. We choose what to value and base our actions on those choices.

      Now we can value harmony. We can value beauty. And indeed I would propose that most who seek truth end up aligning themselves with those values.

      I fear that if you tell a story with an absence of free will you end up with a deterministic outlook on life that is more damaging to human development than the recognition of free will. Rather I think you would be better served by suggesting people should re-evaluate what they value.

      Comment by Transcent — February 27, 2011 @ 7:40 pm

      • Transcent,
        Thanks for the reality check. I appreciate your critique. I think my using “myth of freedom” was too clever by half. Like it or not, what I have said is out there never to be taken back, no matter. To backpedal, let me respond first to your statement, “I fear that if you tell a story with an absence of free will you end up with a deterministic outlook on life that is more damaging to human development than the recognition of free will”.
        I recognize “free will”. I understand we humans are, after all, agents of change. Our very existence is characterized by a series of choices “freely” exercised. We anticipate, expect, and predict our choices have a good chance of satisfying our intentions. I understand. And yet, as society presses against immutable boundaries I mean to suggest, as you say, “we explore what it means to be free”. In the name of freedom we built wings from feathers and wax, and ignored warnings not to fly too close to the sun.
        And, you are spot on in saying “you would be better served by suggesting people should re-evaluate what they value.” This is what I meant by “question first principles”. By suggesting we review first principles I had hoped to stimulate conversation with regard to the very fundamentals on which we hang a constitution, the framework of myths that give such constitution legitimacy. This is what I was expecting.
        When I use “Myth”, I’m thinking of that constellation of stories that a people accept as being an integral and valued part of their culture. The development of a society is encouraged, supported, and applauded by mythology. Myths are like navigational aids we use when charting a course into the obscure future. And, as Joseph Campbell recognized long ago, modern western society is going through a transition, giddy to move from the old mythologies and traditions to the new. One such myth that I find pernicious, changing, yet still practiced by many, is the one that says we will survive by managing risk, innovating and manipulating the material world, that we can lord over the physical world, that we can dominate and bend to our will anything standing in our way, that it is possible to defy the established physical order with impunity. Such myths fail us in part, because we do not question their veracity. And what emerging myths will replace those that have failed us? The modern paradigm in western society with an increased materialism and emphasis on technology, has led us to abstraction. We have become abstractions of Homo sapiens the animal. We consider ourselves as somehow independent of our vital associations, attributes, and due proportions. Much of society has become alienated from the natural world and invented its own morality.

        The organization of humans, more, all primates, feral cats and wild dogs, even further, all territorial animals, all have evolved a strategy for survival by establishing a hierarchy with the dominant few ruling the many and has maintained the order through force. It is common in the wild. The dynamic involved seems to be hardwired in our biology. Our instinct is to fight all that stands opposed to our choices. That worked well in the past when resources were abundant. On the other hand, one could choose instead to take flight, cross an ocean and feel once again as king of the castle. For millennia, as our numbers grew, this dynamic has evolved ever larger and more complex social structures, with more complex rules of engagement. Through history this system has maintained the same principle strategy. We fight each other for dominance. Even today, to maintain this societal ordering, the dominator hierarchy, we see the repeated use of the same tool that served us in the past: violence. And the looters carry their spoils away.
        Many have tried in the past, and many to come will attempt to modify our organizational structures, economic and political, expecting some thing more “just”. We always end up with a global order emerging from this innate aspect of human nature. Our predicament reminds me of the fable “The scorpion and the frog”. When asked why he stung the frog, the scorpion explains, “I’m a scorpion; it’s my nature.”
        It leads me to question: should we organize our selves opposed to our own nature? We value the fiction that we can dominate natural law by force of will, through our ingenuity and innovation; but can we see the value of our dear Nemesis? If we did so, we would recognize our behavior would surely perturb her, the implacable one from whom there is no escape, the avenger of crime and the punisher of hubris. Her sense of justice could not allow our arrogance to pass unpunished. She will distribute fortune, neither good nor bad, simply in due proportion to each according to what was deserved.

        Comment by iy9g86 — March 6, 2011 @ 9:38 am

    • I didn’t say anything about individual sovereignty or free will. I discuss political and economic sovereignty, and there I think the answer is the same regardless of one’s point of view on questions of individual free will.

      We’re naturally social beings, and our social existence has mostly freed us of acute state-of-nature problems (although our current path wants to restore those as well). But it created a whole new set of social problems, and these are overwhelmingly the problems we face today.

      That’s why I’m most concerned with the issue of political and economic sovereignty. Issues of the individual may technically be prior to that (although I’m not sure that that’s the case), but I think they’re largely irrelevant to the crisis and my project.

      It’s enough for me to know:

      1. Humans are naturally social.
      That’s agreed upon by science and by all political philosophers.

      2. Humans are naturally cooperative. This has been greatly disputed among philosophers, but the observed evidence always supported the cooperative view, and in recent decades science has added more proof.

      Armed with those two facts, I’m satisfied that all the essential conditioning occurs at the social level (as you yourself say). So the most important thing is to organize society to bring about the most cooperative experience for everyone. History and science prove that this will provide the greatest range for the human spirit to develop and pursue happiness, it will bring about the greatest social stability, and it will also be the most economically rational and productive.

      So there’s where my first principles begin, and I think it’s fruitless to inquire much into some abstract pre-social concept of “the individual”.

      Maybe I misunderstand your comment, because you’re misunderstanding me. Everything I write about the constitution (small-“c”) tries to express the same thing you said, and I’m trying to tell the story which is effective because it’s true.

      But it’ll take time to work all this stuff out.

      No one’s trying to “opt out”. It’s the kleptocracy which wants to opt out, to secede and abscond, as I’ve put it before and will soon explain again at greater length (in one of my upcoming corporatism posts).

      I’m trying to find the way for us to resume the American Revolution where it left off, redeem the constitution, redeem our political and economic sovereignty, redeem our collective humanity, and once again inhabit and exemplify the core spirit of humanism itself.

      Comment by Russ — February 28, 2011 @ 5:36 am

      • Russ, I think I hear you.
        What!? Nemesis will rise with our disturbance of her just and right proportions?
        How, if at all, does this contribute to your project?
        Russ, I don’t know; I’m just putting it out there, two cents worth of grist for the mill.
        I have been known to loose the forest to the trees.
        Some times it serves me well other times if hurts me; the knife cuts both ways.


        Comment by iy9g86 — March 6, 2011 @ 9:39 am

      • Now I understand you more clearly. From your comment above:

        By suggesting we review first principles I had hoped to stimulate conversation with regard to the very fundamentals on which we hang a constitution, the framework of myths that give such constitution legitimacy. This is what I was expecting.
        When I use “Myth”, I’m thinking of that constellation of stories that a people accept as being an integral and valued part of their culture.

        I’m very interested in this question, which is one that seems to have caused the original French constitution-framers to have stumbled. (Resulting in Robespierre’s grotesque “cult of reason and the supreme being”.)

        Hannah Arendt thought the American framers were initially able to dodge this question because they so self-evidently derived founders’ legitimacy status from the local and/or state assemblies from which they rose.

        But much like their pretense that their good revolutionary fortune wasn’t based primarily upon the natural abundance of the land (which is why they didn’t have to face the same issue of mass poverty which France had to deal with), so they also took their wellspring in the local polity for granted and failed to base constitutional federalism upon it, or even mention local government in the Constitution at all. Arendt considered that a kind of original sin of American constitutionalism.

        In later years Jefferson lamented this lost opportunity for a permanent democratic participation through a truly ground-level federalism.

        So if I could get a new constitutional movement going, I’d like to fix this betrayal of federalism and this misdirection away from the real source of sovereignty. As part of a general movement for political and economic relocalization, I’d like to explicitly affirm, as the basic principle of the Constitution, the local polity as the basic unit of federalism.

        Regarding social myths, it’s obvious to me that the Myth must be nothing but the first phase of the American Revolution itself, including the Constitution. The people already have a mindset primed for the promulgation of a new legend: Reverential yet vague.

        Whatever issues of foundation legitimacy the original Founders may have had, today we would clearly claim the right by taking up the fallen torch.

        Here’s a piece I wrote on where things stand today with the logic and principles of the original revolution:


        Comment by Russ — March 6, 2011 @ 11:12 am

  16. Right now, humans are trying desperately to master our evolutionary heritage. Some big choices are ahead.
    Science and Technology revolutionize our lives, but memory, tradition and myth frame our response.
    Arthur M. Schlesinger, Jr
    The Drake equation
    We have never had to act as a single global culture before. We have never had to act as single global species before. So perhaps the fraction of misses and mastery which determine Drake’s final factor (for us at least) may be our ability to re-imagine ourselves as that global entity, a species tied inextricably to the living world from which we emerged. In the end, what may matter most is our ability to change our vision and values by creating a new culture with a new set of memories and myths to go along with it.
    Adam Frank
    University of Rochester

    Comment by iy9g86 — March 12, 2011 @ 8:24 pm

    • Like Nietzsche wrote, “the goal for mankind has been lacking”.

      I don’t know if there can be such a thing as a de facto global species, and history has already proven that no such species-consciousness can be imposed in any top-down way. The kind of power necessary to do that can never concentrate that much without devolving into the most vicious tyranny. Globalized capitalism is the ultimate proof of that, since it’s the ideology and practice of tyranny which has come closest to achieving world domination. That’s the final conflict humanity now faces, for the continued existence of its soul.

      In the end polities and economies must decentralize. All the hideous world domination ideologies will recede into history. The only question is whether we revert to an economically more degraded version of the old slave empires (more degraded because the quality of natural resources like metals have been permanently degraded), or whether we hold onto our democratic heritage, the one worthwhile thing to come out of the industrialist nightmare, preserve it against the onslaught, and carry it through the fire to a truly democratic, cooperative future.

      If peoples everywhere can learn that lesson and keep that faith, then even as we relocalize, in a more profound sense we will have become a common humanity.

      Comment by Russ — March 13, 2011 @ 3:09 am

  17. […] on an ad hoc basis, speculating about how this or that sounds good. That’s sort of what I did in this post, proposing a list of possible amendments. Let’s review: * The enshrinement of Food Sovereignty […]

    Pingback by If food sovereignty was a basic right… | The Bovine — May 10, 2011 @ 11:45 am

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