June 1, 2011

American Revolutionary Principles (2 of 3): Constitution and Rights


In part one I described how America’s idea of representation evolved over the course of the Revolution. The conclusion was that no representative form is a principle in itself, but is only valid insofar as it helps maximize democracy and freedom.
Similarly, America’s concept of constitution radically evolved and reached a similarly practical viewpoint where it came to written charters, while developing a more profound principle of what underlies any charter and code of law.
To summarize:
1. Sovereignty is the basis of legitimate power. This basis lies only in the people themselves. (I’ll discuss sovereignty in part 3.)
2. The sovereign constitution is the particular form a particular people’s sovereignty takes. It comprises the principles, traditions, and practices native to a people, as these evolve through history. It’s the sum of our natural rights as human beings and the way these rights manifest through our citizenship as part of a particular people. It is independent of and underlies our social morality.
By now this constitution can only have a democratic character, as other possible measures of sovereignty – theocracy, statism, elitism – are proven to have been temporary historical stages at best, fraudulent false paths at worst. Only the democratic ideal in its broadest sense – that the people are the source of all authority and must seek a way of life which maximizes their own well-being and autonomy – accurately depicts where history has been heading for thousands of years.
By now we know that democracy in the specific sense – direct political participation and control, and economic self-management – is in fact the aspiration of humanity as a whole. Nowhere has a people rejected these, and in most places they’ve fought for them if they saw a chance to do so. This true democracy is the deepest ideal of the sovereign constitution.
3. A written Constitution or charter is then supposed to be an adequate expression of this sovereign form. It’s an attempt on the part of the people’s sovereignty to formally codify the sovereign constitution. This written attempt can be legitimate only insofar and as long as it embodies the sovereign constitution in principle and practice. It’s the pre-written set of political, economic, and moral norms, not the written expression, which is truly authoritative.
Since all sovereignty and power resides in the people, while any written document is only the tool of our sovereign constitution, it follows that the written Constitution and any interpretations and laws which stem from it must tend to expand democracy and the democratic well-being of the people. Otherwise they are invalid and illegitimate and must be rejected.
The constitution in the sense of the formalized structure – charters, laws, governmental bodies – is subsequent to and contingent upon the sovereign constitution, which is the democratic imperative itself as a non-negotiable principle, our human right, and our citizen mandate. This sums up the constitutional innovation of the American Revolution. I recently discussed constitutionalism and positive democracy.
So to repeat: The sovereign constitution (the democratic imperative) precedes the written Constitution. The latter has authority only to the extent it’s in the spirit of the former.
(I’m not claiming that a polity which is achieving true democracy needs a written charter at all. But historically such charters have been steps in the democratic movement’s evolution, and they remain highly popular. So my attitude toward a written Constitution is practical: If continuing to express sovereignty in such a way looks like it would help democracy progress, I’m all for it. If it looks like we can dispense with such a document, I’d dispense with it.) 
I already wrote a post briefly describing the evolution of colonial thought on the constitution. I want to go over the chronology one more time in greater detail, to establish that my position is sound according to the principles of the Revolution, while the modern fetish of the written document (let alone the perversion of it by the kleptocracy, for example in the case of corporate “rights”, something rejected even by the 1788ers) is unhistorical and contrary to the spirit of America. Today’s SCOTUS, for example, is profoundly unamerican.
As in part one, I’m drawing on Bernard Bailyn’s guidebook for this chronology.
Going into the 1760s there was consensus in both Britain and the colonies that the constitution comprised the structures of government and written codes. Future loyalist Charles Inglis was to call it “that assemblage of laws, customs, and institutions which form the general system according to which the several powers of the state are distributed and their respective rights are secured to the different members of the community.” Similarly, in the mid-60s John Adams called it “a frame, a scheme, a system, a combination of powers.” So the mechanistic and non-principled view of it was the norm. Only rarely did a commentator suggest constitution might have anything to do with underlying principle. Unlike with representation, where the sea change in American attitudes took place over the span of two years in the mid-60s, the evolution of constitutional consciousness occurred gradually over the revolutionary era, from the early 60s to 1776.
James Otis first rang the change in the 1761 writs of assistance case, where he proclaimed that any act of Parliament “against the constitution is void”, and that the courts had the duty of “pass[ing] such acts into disuse.” At first this sounded unintelligible to conventional thinkers. Parliament was by definition an integral part of the constitution; how could its acts be against the constitution? Did this mean the conventional view was wrong, and that the constitution was really not the political body but the underlying principle it was supposed to exalt?
Otis himself soon got mixed up in his theorizing, as he was unwilling to follow through on his own logic. But other thinkers carried out the development. Given the new problems of the 1760s, the fact that Britain was trying to assert its power in aggressive new ways, the colonists needed new interpretations of the old terms and concepts if they were to effectively wage the war for democracy on the philosophical front. The new interpretation was the ideal of constitution as a set of principles preceding and superior to institutions. Once they crossed over this ridgeline in the mid 1760s, they made rapid progress.
In his 1768 letters on behalf the Massachusetts House of Representatives and his Massachusetts Circular Letter, Samuel Adams declared that “the constitution is fixed; it is from thence that the supreme legislative as well as the supreme executive derives its authority.” This means that these too have no inherent authority, but are only to exist at all so long as they democratically work; so long as they carry out the spirit of the constitution. Here too we see how the logic now leads us beyond where Adams himself would have wanted to go, to true democracy.
Others took up this idea, culminating in John Joachim Zubly’s 1769 declaration that Parliament “derives its authority and power from the constitution, and not the constitution from Parliament.” The constitution “is permanent and ever the same”, and a thing like Parliament is, in principle, merely contingent upon it. The idea was developed over the first half of the seventies, finding its full expression in the anonymous “Four Letters on Interesting Subjects”. Government is not the same thing as constitution, but is rather an outgrowth of it. Constitution, like Rousseau’s general will, must be grounded in a higher authority, “an act of all.” It could be encoded in a written charter, but this too is an appendage and not the core being. The written constitution lays out a technical framework for government. This is procedural, not essential. It’s to be judged by how well it works. The Letters propose conventions every seven years to assess this written expression of the underlying constitutional principle.
In calling for a Bill of Rights the Letters touched on the closely related issue of natural rights vs. encoded ones. Here too, there had been an evolution in colonial thought away from the idea of rights as granted from above (“matters of the mere favor and grace of the donor or founder”, for example Parliament) and written as an exhaustive list, toward the conception of rights as coming from “the law of nature and its author” (Otis).
[Otis also distinguished between corporate rights, which he interpreted as indeed being matters of favor and grace, and human rights, which are prior to all governmental grace and inalienable.]
Here it was John Dickinson in the mid 60s who achieved the conceptual breakthrough with his analysis of how rights were from god, while charters are “declarations but not gifts of liberties.” Charters are “founded on the acknowledged rights of human nature”, while the rights themselves:

We claim them from a higher source…They are not annexed to us by parchments and seals. They are created in us by the decrees of Providence, which establish the laws of our nature. They are born with us; exist with us; and cannot be taken from us by any human power without taking our lives. In short, they are founded on the immutable maxims of reason and justice.

Anything written, even the Magna Carta, “must be considered as only declaratory of our rights, and in affirmance of them.”
Alexander Hamilton of all people (but in 1775, still in his first act) cried out, “the sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of divinity itself, and can never be erased or obscured by mortal power.”
We can judge Hamilton’s later parchments according to his own measure as avowed here. We have the recognition that natural rights and the fundamental constitution are above and prior to charters (like that of 1788), legislatures/executives/courts and other institutions (let alone corporations and globalization cadres), written laws (let alone kleptocratically rigged laws). All these are to be judged, respected or disrespected, accepted or rejected, acclaimed or overthown, based solely on how faithfully and effectively they carry out their mission to further our democratic sovereignty and constitution. Wherever we the people judge that an institution has maliciously abrogated this mission (and is therefore a classical usurper), or at any rate has failed in its trust, we have the right and duty as citizens to do away with it. Exercising such right and duty is the proof of citizenship and humanity.

December 20, 2010

The Supremely Corrupt Court


The NYT had a piece by Adam Liptak detailing how the Roberts court takes more business cases than previous courts, and issues pro-business decisions a greater portion of the time. These trends already existed with the Rehnquist court, but the vector is accelerating.

The chamber’s success rate is but one indication of the Roberts court’s leanings on business issues. A new study, prepared for The New York Times by scholars at Northwestern University and the University of Chicago, analyzed some 1,450 decisions since 1953. It showed that the percentage of business cases on the Supreme Court docket has grown in the Roberts years, as has the percentage of cases won by business interests.

The Roberts court, which has completed five terms, ruled for business interests 61 percent of the time, compared with 46 percent in the last five years of the court led by Chief Justice William H. Rehnquist, who died in 2005, and 42 percent by all courts since 1953. Those differences are statistically significant, the study found…..

A study prepared by the Constitutional Accountability Center, a liberal group, examined the center’s success rate in the Supreme Court. It found that the positions supported by the chamber prevailed 68 percent of the time in the Roberts court, compared with 56 percent in the last 11 years of the Rehnquist court, a period without changes in the court’s membership….

Doug Kendall, president of the Constitutional Accountability Center, [said] the numbers proved that the Roberts court increasingly sided with corporate interests. He also said the study documented “a sharp ideological divide that did not exist before 2005.” In the last 11 terms of the Rehnquist court, the five more conservative justices voted for the chamber’s position 61 percent of the time, while the four more liberal justices voted for it 48 percent of the time.

In the first five terms of the Roberts court, the corresponding bloc of five more conservative justices voted for the chamber’s position 74 percent of the time, and the four more liberal justices 43 percent of the time.

This demonstrates the increasing corruption of the courts, their subversion from democracy and the original intent of the framers of the Constitution. I’ll detail each of these.
Three points stood out for me.
1. The piece places the corruption process in the context of the history of neoliberal corporatism over the last 40 years. Specifically, it cites the 1971 Lewis Powell corporatist strategy memo. As I said about this memo in a previous piece on systematic court corruption,

Lewis Powell, generally considered a “moderate” on the court, but at the time a corporate cadre, wrote a strategy memo encouraging corporations to argue systematically in the courts for free speech and other rights like any other “persons” (as part of the vast corporate assault on democracy he recommended). We see how this systematic perversion of the Bill of Rights was a strategy prescribed by the supreme court itself, as it were . The Citizens United case is just the latest and most visibly egregious of its toxic fruits.

Powell advised the corporate cabal to organize and fund a cell dedicated to pushing pro-corporate, anti-democratic ideology and arguments in the courts, and to recruit government personnel and judges to staff this cell. The corporations heeded the call, and the result was the Chamber of Commerce’s National Chamber Litigation Center.

The chamber now files briefs in most major business cases. The side it supported in the last term won 13 of 16 cases. Six of those were decided with a majority vote of five justices, and five of those decisions favored the chamber’s side. One of the them was Citizens United, in which the chamber successfully urged the court to guarantee what it called “free corporate speech” by lifting restrictions on campaign spending….

The Chamber of Commerce spent tens of millions of dollars in the recent midterm elections, mostly to help Republican candidates. It says that it has 300,000 members, businesses and organizations “of every size, sector and region,” and that its spending furthered the interests of some three million businesses, most of them small ones.

But the chamber’s mission is by no means limited to the elected branches of government. “A central function of the chamber,” it told the Supreme Court in a recent brief, “is to represent the interests of its members in important matters before the courts.”

The vehicle for that is the litigation unit that was envisioned by Mr. Powell, the National Chamber Litigation Center, which says it is “the voice of business in the courts on issues of national concern to the business community.

As the studies cited above show, this strategy is paying off. The numbers may differ, but all agree on the trend. This litigation center is a war room dedicated to corrupting the judicial branch and subverting it from a constitutional, democratic role, to an anti-constitutional, anti-democratic one.
We should be clear on the difference between this kind of NGO and any other. Public interest NGOs in principle seek the public good. That remains true even if, rarely, any of them betrays that trust. Such an example would in fact be a bad apple, an abuse.
But pro-corporate groups are in principle conspiracies against the public interest, the citizenry, democracy, and sovereignty. They are by definition anti-social in the same way a corporation is a clinical sociopath, by legal definition and circumscription of its “responsibilities”. By now we have sufficient empirical evidence that large corporations only harm society and the economy. They produce nothing which wouldn’t be produced far more effectively without them. And meanwhile the destruction they cause is incalculable. The balance is clear. They are purely destructive, enemies of America. So it follows that the Chamber of Commerce and any group like it is by definition anti-American.
2. Liptak cites the obscene revolving door of solicitors general in modern times.

From 1952 to 1981….former solicitors general usually became judges, joined law schools or worked as public servants. In the next 15 years, they split their time between academic and legal work, often consulting with law firms with specialized Supreme Court practices.

Starting in 1996, every former solicitor general, with one exception, has gone on to supervise a Supreme Court practice at a major law firm, earning as much as $5 million a year. The exception is Justice Elena Kagan, who joined the court in August.

These specialists make their livings representing business interests, and they have used the skills they honed in government service to achieve notable successes in the Supreme Court.

Yeah, “skills”. That’s what they also call “talent”. (Kagan may be an exception that proves the rule, if she turns out to be the corporate lackey we fear. From the point of view of the corporate cabal, it’s better if someone goes right onto the court than if she goes to work arguing before it on their behalf. Especially since she was incompetent as a litigator; her elevation to the court is a classic case of wingnut welfare.)
By now the solicitor general position is institutionalized corruption. It seems to be a given that as a government cadre before the SCOTUS one is auditioning for a subsequent corporate role before one’s friends and colleagues on the court. The court knows this from the outset and tacitly approves it. The incest must be suffocating at times, if anyone involved has even a shred of conscience left. But I doubt that’s often a problem. By now the institutionalized sociopathy of the system selects for such traits in the first place in its staffers, and systematically inculcates and reinforces them over decades of training and acculturation.
This runs directly counter to the assumptions and prescriptions of even Alexander Hamilton, the most pro-business of the Founders. Hamilton took it for granted that a revolving door between the courts and powerful private interests would, on its face, render the judiciary illegitimate.
As he wrote in Federalist #78:

Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity.

This was his core argument for giving judges tenure for life with guaranteed salaries, that it would greatly lessen the chance of the hated revolving door starting to spin. So by the pro-business Hamilton’s own contention, today’s revolving door is corruption on its face. (I don’t agree with his elitism, of course. Any intelligent person of integrity is far more qualified to be a judge than a corrupt savant.) Strict corruption, we can call it. No civilized society would allow it.
This part of Liptak’s discussion also touches on the Robert’s court’s increasing judicial activist corporatism.
3. Here’s a metric of the intensifying corruption:

David L. Franklin, a law professor at DePaul University, wrote in another article in The Santa Clara Law Review last year that the chamber had been quite successful in the Roberts court in four of what he considered five main categories of cases — punitive damages, arbitration of consumer and other disputes, the standards for early dismissal of lawsuits, and federal pre-emption of state laws governing injury and other suits. The “conspicuous exception,” he said, was employment discrimination…….

Even in employment discrimination cases, however, the available numbers are subject to two interpretations. True, the Roberts court’s 16 decisions have been evenly divided, according to an analysis by Professor Epstein at Northwestern. But the Rehnquist court ruled in favor of people claiming discrimination more often — 64 percent of the time.

Three of the five are structural. Two of those involve setting up barriers between the citizen and access to the law, the other is anti-federalist. The other two are more political. It’s interesting that the one which seems to have been relatively neglected, employment discrimination, is a typical corporate liberal issue, and therefore pretending to be anti-discrimination is part of neoliberal tactics.
So perhaps that caveat about how even the court’s commitment to anti-discrimination is eroding is a metric of the eroding position of corporate liberals themselves. The more the SCOTUS openly says it no longer cares about discrimination (the Walmart case is the most important pending example, although it also involves citizen access), the more we can take it that corporatism is abandoning the liberal scam and moving toward fascism.
So in conclusion, this Liptak piece, though containing some typical NYT bias, gives a good rundown. It demonstrates how, in the words of a typical criminal:

A prominent Supreme Court advocate who often represents businesses, Maureen E. Mahoney, chose her words carefully when asked at a chamber news briefing in September whether the Roberts court was especially receptive to the kinds of arguments pressed by corporations.

“The best court for getting a fair hearing on those issues,” she said, “is the Supreme Court.”

And that in turn is an inverse metric of the court’s legitimacy.

December 10, 2010

Wikileaks, Secrecy, Federalism, and Globalization (1 of 2)


The question of what the American Revolution was primarily about – ideals or governmental forms, politics or economics – was temporarily settled by the framers themselves in 1788 when they imposed it as a fact that the revolution had been fought to establish a strong central government which embodied in many details the exact details the revolution had claimed to find odious, and flouted in many ideals the exact ideals the revolution had claimed to embody.
Here at least there’s no question – the emphasis was on a form of government, a republic. They called it (and themselves) “federalist”, but even then that was clearly just a successful Orwellian terminological inversion. It was actually the framers and adherents of the new Constitution who were anti-federalist in normal terms, according to the standard usage of the time, while their opponents whom they successfully smeared as “anti-federalist” were at least arguing on behalf of something closer to true federalism, power much closer to its true source in the people. (I won’t claim they were all sincere.)
I think it’s moot to ponder how sincere the “federalists” were as champions of this central government. If the rise of the fossil fuel age and the industrial revolution really necessitated strong central governments, then perhaps this Constitution was one of the better (I don’t say “good”) attempts to harmonize that need with protecting the people’s rights and freedoms. At the same time, Hamilton and others seemed ardent to maximize power for its own sake, and displayed the standard elitist contempt right from the start. It’s beyond dispute that a major purpose for this power concentration was to use it aggressively for continental imperialism. The Federalist repeatedly cites this goal as a reason to concentrate federal power. What later came to be called “Manifest Destiny” was already a core element of the Founders’ ideology.
So what’s the specific link between imperialism and the republic form of government? In On Revolution (chapter 2, section 4) Hannah Arendt emphasizes how Founders of various stripes agreed that a desired goal was to encourage faction among the people in domestic matters while seeking a united front where it comes to foreign policy. She quotes Jefferson as wanting “to make us one nation as to foreign concerns, and keep us distinct in domestic ones”, and cites Madison’s Federalist #10, with its celebration of “the spirit of party and faction”, which of course was to be kept within the limits of representative government.
This formula would allegedly generate the maximum political freedom within the country compatible with a sufficiently strong projection in foreign policy. While this was already dubious in the 18th century, in modern times it appears in a sinister light. We see what it means today: The elites encourage and foment discord among the non-elites, while we must all submit to the astroturfed united front for whatever foreign policy our betters assure us is necessary, no matter how wasteful, deranged, and destructive to the very domestic freedom and prosperity for which the policy allegedly exists in the first place.
This puts in a different light Arendt’s contention, no doubt literally true, that ” the direction of the American Revolution remained committed to the foundation of freedom and the establishment of lasting institutions.” The question is begged more starkly than ever, Freedom for whom? To do what?
But this question was already being begged when Madison wrote numbers 10 and 51. It’s here that he notoriously posited that the greatest threat to social stability would be the rancor of the people, who to him were inherently a kind of proto-mob ready to realize their full mob potential at any moment, against the elites. It was explicit in Madison’s concept that political elites need to exist at all (only they, as elected representatives, know how to organize power and run a government). Implicit were such propositions as that economic elites need to exist at all; that their wealth and property concentrations are justified; that their own aggressive actions, which from the outside and from the receiving end look like depredations, are the natural way of the world and can’t be held accountable in any way (therefore if the people react with anger it’s really they who are the aggressors); that a foreign policy designed and dictated by those elites is to the benefit of “the country” as a whole. All this, so viciously and tiresomely familiar to us today, adds up to compel the strong presumption that another implication of Madison’s scheme was that the very “faction” celebrated by Madison and Hamilton and even Jefferson was always intended to be a tool of divide and rule.
However it was with the original intent, we now know it represents the essence of misdirection. For America, the rule has long been (if it wasn’t always) aggression against others and hijacking of public resources, which is always for the benefit of the elites only, and could only ever accidentally coincide with the interests of the people. The misdirection is meant to distract from this and help trump up the tawdry “united front”.
It’s this fraudulent pretension to a unified America in its foreign policy which Wikileaks has directly attacked with this latest document delivery. The leaks demonstrate in the clearest detail how the specially designated foreign policy elites are the same petty, incompetent crooks we’re so familiar with everywhere else, and how their concerns are the exact same combination of crime and meanness as we see everywhere else. But most importantly in assaulting their pseudo-monarchical secrecy prerogative, a key trapping in their very claim to authority and power, Wikileaks has dealt a blow to their ability to pseudo-legitimately maintain this prerogative. Once the people understand once and for all what a sham “foreign policy” is, in the same way they’ve come to understand the central “federal” government as a fraud and a parasite in domestic policy, we’ll finally be ready to relinquish it completely, all at once or in stages.
Here’s just a few things the leaks have proven:
Each leak is something which should never have been classified in the first place. It proves how promiscuously they’ve abused the classification privilege, as a matter of normal practice. We citizens already knew under Bush that this privilege needed to be rescinded. (Of course, we now know that most of the liberals were lying when they said that at the time.)
Each leak is proof that there’s no real “national security” at stake. Each proves further that the only secrets regard the power and crimes of the elites.
Every document is further proof they have no valid secrets. Each act of secrecy is an affront to democracy and a violation of the social contract.
As has already been proven with previous deliveries, the leaks don’t endanger the American people or our interests. On the contrary, to whatever extent the leaks hinder the corporate agenda, they serve the American interest. The empire itself, and the stateless corporations themselves, are contrary to the American interest, as history has proven over and over, every time. Empire serves no one but imperial elites, and harms everyone else. In 2008 that became brazen here in America.
We saw the NYT and the WaPo suppress leaked information which lessens the case for war with Iran, at the request of the administration. (We got it through the Guardian.) So there we see the scurrying cockroaches exposed in broad daylight – your leaders, your elites, your government, and your media, suppressing evidence against war.
Wikileaks has proven that elite secrecy has no right or reason to exist at all, and that transparency is a citizen right and imperative. With the evidence of the leaks, no one can any longer argue for secrecy other than as a brazen celebrant of domination for its own sake. No one can any longer cite “reasons of state”, or that the elites know pertinent facts at all, let alone pertinent facts which can’t safely be shared with the public. No one can any longer argue with a straight face that foreign policy has anything to do with “American interests”, or anything other than the same ugly, paltry elite interests.
We’ve now seen it all, and we know there’s no there there. From here on, we know secrecy is nothing but an anti-democratic ritual. We must be all the more relentless in asserting sunlight as a democratic ritual. No one can see the American flag when its hidden away in the dank and dark. Only the sun shining upon it renders it visible at all. So there’s the real essence of the symbol. Not the mere dyed fabric, but the light upon it. Darkness, secrecy, is the true mortal insult to the symbol, and to the essence.
We should also recognize how this bogus “foreign policy” astroturf, which we can trace to the original framing of the system, is by now completely entwined and indistinguishable from globalization. The slow but steady progress of over two hundred years has been for these elites, and their government, to extract the wealth of the land they did nothing to work for, abscond upward in power and “law” with it, and eventually detach government and law themselves from the land. The anti-sovereign globalization entities and agreements represent the full logic of the entire process. The WTO is a kind of one world super-constitution. All of this is rule by pure administrative decree, intended to extract all wealth and power from the land but leave behind the dead husk of government, law, and civil society. This husk is now meant to be just a weapon against the people, but nothing in itself. It’s a world-historical secession of the elites.
The neoliberal franchise is a sick joke. It’s the symbol and ritual of nothingness. And then this stateless, anti-sovereign body is to rule the disenfranchised people by direct bureaucratic tyranny, as the direct private agent of the corporations. That’s the goal of globalization.
When “federalism” was redefined and centralized upward in 1888, and organized to be focused on a false unified foreign policy, this secession process was set in motion. From there it’s been the same vector and the same logic which have advanced through every trial. Since the end of the Cold War, in the face of imminent Peak Oil, this false federalism is attempting its final upward redefinition. But this depends upon keeping the people gazing spellbound up into the fog, instead of seeing clearly how every truth is right there in front of us, easy to understand, and always at our own level, except where it’s actually below us.
There’s no reason at all for wealth and power to concentrate upward. The people are understanding this intuitively. We’ve always known to be suspicious of globalization, and now we know to reject it completely. This means we must also reject the globalizing elites. We should see their “foreignness” for what it is and reject it. They chose to abstract themselves from our land and wage war upon it and us. So while we reject their foreign policy front, we can accept that framing against themselves.
A good place to start is to actually see them for what they are, and insist upon this clarity at all times. We know they mean us nothing but harm. If we didn’t know before that every secret is kept not on our behalf but against us, we know it for a fact now. We can thank Wikileaks for the documentary proof of the illegitimacy of the elites’ foreign policy pretensions and alleged prerogatives.
And since the false federalism which has led us so far astray was already based upon this false foreign policy emphasis in its inception, we must take our hard-won knowledge and apply it back as we reconceive our democracy. This has been a case study in the falseness of representative pseudo-democracy itself, and proof of the need for and unique legitimacy of positive democracy.

August 4, 2010

ACLU Civil Liberties Report


The ACLU has released a report on civil liberties under Obama as they relate to “national security” issues. The report gives a mixed verdict, concluding “that the administration has taken positive steps and made genuine progress in some areas”, but that:

Regrettably, in a pattern that has repeated itself throughout the administration’s first eighteen months, a significant achievement was followed by a step back: the administration reversed its decision to comply with a court decision ordering the release of photos depicting the abuse of prisoners in Iraq and Afghanistan, and it supported legislation granting the Secretary of Defense unprecedented authority to conceal evidence
of misconduct.(p.2)

Actually the report doesn’t support this “some good, some bad” conclusion. Rather, it depicts the administration as having started out well but then having taken nothing but “steps back” since then.

On January 22, 2009—his second full day in office —President Obama signed a series of executive orders that squarely repudiated some of the most egregious abuses of the Bush administration. The new orders categorically prohibited torture and limited all interrogations, including those conducted by the CIA, to techniques authorized by the Army Field Manual. They outlawed the CIA’s practice of secret detention and shut down the CIA’s overseas prisons. And they mandated the closure of the Guantánamo prison within one year. These auspicious first steps towards fulfilling candidate Obama’s promise of change were more than symbolic gestures: they carried the force of law, they placed the power and prestige of the presidency behind restoration of the rule of law, and they gave weight to the President’s oft-stated view that adherence to our nation’s fundamental principles makes us safer, not less safe.

There’s the good words at the outset, and indeed, since I can’t imagine why Obama would have signed those orders at all if he meant to trample their spirit later on, I guess here’s one place where I can believe he started out meaning well. But that doesn’t make any difference. Nobody should care about good intentions even where they do fleetingly exist, if one has the power to follow through but refuses to do so. As the report details, Obama not only hasn’t followed through, he’s flipped to a reactionary position, as he seeks to entrench and normalize Bush policy across the board.
(The report itself admits that its anodyne conclusion is more of a political olive branch than a firm belief:

The ACLU will continue to monitor the impact of the administration’s national security policies on fundamental civil liberties and human rights. We hope that this report, published less than halfway
through the President’s first term, will serve as a vehicle for reflection and further dialogue; we hope that the administration will renew its commitment to the principle that the nation’s fundamental values are the very foundation of its strength and security.


The report is divided into seven subjects.
1. Transparency:
In seeming accord with his campaign promises, Obama started out ordering all federal agencies to maintain a “presumption in favor of disclosure”. This seemed to directly reverse the “Ashcroft Rule” which demanded a presumption of secrecy. There were some lesser cosmetic improvements.
The most important action was the release of the Bush torture memos.
But “the administration’s commitment to transparency has been inconsistent, and it has waned over time.”  Obama continues to flout court orders to release torture photos from Iraq and Afghanistan.

Since its change of heart on the abuse photographs, the administration has fought to keep secret hundreds of records relating to the Bush administration’s rendition, detention, and interrogation policies. To take just a few of many possible examples, it has fought to keep secret a directive in which President Bush authorized the CIA to establish secret prisons overseas; the Combatant Status Review Transcripts in which former CIA prisoners describe the abuse they suffered in the CIA’s secret prisons; records relating to the CIA’s destruction of videotapes that depicted some prisoners being waterboarded; and cables containing communications between the CIA’s secret prisons and officials at CIA headquarters. It has argued that the CIA’s authority to withhold information concerning “intelligence sources and methods” extends even to methods that are illegal. The administration has also fought to withhold information about prisoners held at Bagram Air Base in Afghanistan. Indeed, the Obama administration has released less information about prisoners held at Bagram Air Base than the Bush administration released about prisoners held at Guantánamo.

Although the existence of Obama’s illegal and unconstitutional assassination program has been publicized and acknowledged, he refuses to release any details. Meanwhile, even as he refuses to investigate Bush-era crimes (for the obvious reason that he and his thugs are committing the same crimes), Obama, contradicting another campaign promise, has been aggressively pursuing and indicting whistleblowers. Thomas Drake and Bradley Manning are the two most prominent citizen activists who are being persecuted by the man who during his campaign promised to “make sure those folks [whistleblowers] get protection.”
I guess like so many other things he said, that statement had an Orwellian connotation as well.
2. Torture and Accountability:
Here’s where Obama’s initial declarations were at their best. He released the torture memos and ordered that all prisoners be afforded the protections of the Geneva Convention. He ordered the close of secret CIA dungeons and Red Cross notification regarding all prisoners.
But unlike most other countries involved in the torture crimes – the UK, Germany, Canada, and Spain – this administration has curtly rejected all calls for accountability for these crimes under Bush.

The truth is that the Obama administration has gradually become an obstacle to accountability for torture. It is not simply that, as discussed above, the administration has fought to keep secret some of the documents that would allow the public to better understand how the torture program was conceived, developed, and implemented. It has also sought to extinguish lawsuits brought by torture survivors—denying them recognition as victims, compensation for their injuries, and even the opportunity to present their cases.
(p. 8 )

Obama has thrown up a welter of pseudo-legal barricades to legal accountability which would make Bush envious. He has sought to expand the noxious “state secrets doctrine” (Mohammed vs. Jeppesen Dataplan), lied about the law (Rasul vs. Rumsfeld), invented Kafkaesque conundrums and pseudo-federalistic mumbo-jumbo (Arar vs. Ashcroft), all in order to keep the cases out of the courts completely. (Never mind that this is exactly the situation the federal courts are for according to arch-federalist Hamilton himself.)
Another Catch-22 has been the administration’s bogus arguments that civil suits aren’t necessary because the Justice Department’s own investigations are sufficient. This is a twofold lie: first, the DoJ, even if it were undertaking good faith investigations, represents the community, not the victim himself; and second, it’s a lie that any such investigations are taking place anyway.
All the DoJ has done is announce a lame “preliminary review”, which they explicitly proclaimed a priori will seek to establish only the “abuses” committed by bad apples. They ideologically ruled out of consideration any indictment of systemic, top-down policy. (This is a standard corporate liberal trick, one of many places they join hands with the real fascists. As detailed in Naomi Klein’s Shock Doctrine, everyone from Amnesty International to the South African Reconciliation Commission has agreed to go along with the bad apple Big Lie wherever the real torturer was the neoliberal power structure.)
Of course throughout Obama’s notorious watchword has been “look forward, not back.” The slogan of criminals down through history. As the report says,

In fact the choice between “looking forward” and “looking back” is a false one. While it’s crucial that the Obama administration adopt new policies for the future, we cannot ignore the abuses of the past. And while President Obama has disavowed torture, a strong democracy rests not on the goodwill of its leaders but on the impartial enforcement of the laws. Sanctioning impunity for government officials who authorized torture
sends a problematic message to the world, invites abuses by future administrations, and further undermines the rule of law that is the basis of any democracy.
(p. 9)

“The impartial enforcement of the laws” is in fact precisely what Obama, his supporters, the MSM, and the establishment in general do not want. Where it comes to Obama hacks, we’ve seen plenty of examples (Krugman defending Obama on the Gruber flap; Sunstein advocating illegal subversion of Internet democracy) of how, as long as the Democrats are in power, we shouldn’t have the rule of law or the rule of principle or the rule of anything other than our faith in their benevolence. (Of course, Republicans are the same way with their own criminals.)
(Of course I don’t assume that torture has actually ended or that the dungeons have all been closed. Obama says lots of things he doesn’t do.)
3. Detention:
During the campaign Obama promised to close Gitmo. Coming into office he set a one year deadline for that goal and ordered the secret CIA prisons closed.
Since then he has flouted his own deadline, pretending that trumped up Congressional resistance is stopping him. (Before I became convinced that Obama is secretly a Republican in his mind, this was another of my examples of what I thought was his basic political incompetence and how he can’t get the spoils system right. I asked, There’s no federal prison in a safely Republican district where he can dump these prisoners?)
He has consistently resisted judicial review of the status of prisoners, achieving a hideous “supreme” court ruling against habeas corpus, one of the most basic indivisible elements of the Constitution. (The juxtaposition of this anti-constitutional and anti-human ruling with the Citizens United decision a few weeks later is perhaps the most stark proof that America no longer has a constitutional judiciary, but a rogue, hijacked structure which has abdicated all sovereignty. This is definitely true at least of the SCOTUS.)
The basic position is hostile to the rule of law; the administration will review or not and keep or release prisoners at its pleasure, but they deny any law or constitution compels them to. In May 2009 Obama went farther than Bush ever did, proclaiming in principle that the government has the right to detain anyone it defines as a terrorist indefinitely, without trial, no matter where and under what circumstances the suspect was grabbed. The government of course has no such right, no such authority, no such prerogative. This is a stark declaration of lawlessness, of anti-constitutional contempt, of autocratic tyranny.
And what if Obama ever did decide to close Gitmo after all? He’s already covered himself, simply setting up Bagram as the same thing Gitmo used to be. So Gitmo has already been cloned, and closing the one would no longer make any substantive difference. It would be a political fraud. “What I give with one hand I take away with the other.”

Finally, the Obama administration has advocated for the transfer of some Guantánamo prisoners to a prison in Thomson, Illinois, where they would be detained by the military without charge or trial. The ACLU will continue to oppose this effort to transfer the Guantánamo detention regime to the heartland of America; we fear that if a precedent is established that terrorism suspects can be held without trial within the United States, this administration and future administrations will be tempted to bypass routinely the constitutional restraints of the criminal justice system in favor of indefinite military detention. This is a danger that far exceeds the disappointment of seeing the Guantánamo prison stay open past the one-year deadline. To be sure, Guantánamo should be closed, but not at the cost of enshrining the principle of indefinite detention in a global war without end.
(p. 12)

This is perhaps the most ominous part of it. We already see all the worst depredations of neoliberal economic and paramilitary assaults coming home to us. The totalitarians would love to bring this kind of prison regime to the home soil. That would be quite a precedent. We must oppose all new terror war prisons everywhere, but especially on home soil. If shutting down Gitmo would mean simply moving the spirit of Gitmo stateside, then it’s much better to physically leave Gitmo where it is.
Closing Gitmo is not primarily a physical concept, it’s a legal, political, and moral concept. Bagram already means Gitmo won’t close, and a domestic Gitmo will be even worse.
4. Assassination:
This is a radical extension of Bush policy. Here there’s no doubt at all that Obama’s actions are illegal by international law and unconstitutional at least as applied to US citizens. We know of at least one citizen targeted for death, and the administration has hinted that there are more.
5. Military Commissions:
Candidate Obama rejected the Military Commissions Act and proclaimed his “faith in America’s courts”.
Here there was no initial promising action as a way station between the promise and its betrayal – president Obama moved without transition to actively seeking to enshrine the commissions. While Obama hacks and cultists mysteriously claim he can’t influence Congress where it comes to public interest legislation, he had no problem at all aggressively pushing for legislation clarifying and entrenching military commission power.
These kangaroo courts flout every American principle of justice, from allowing “evidence” extracted under torture* to refusing the defendant’s right to confront witnesses against him. I don’t know if they display the Ten Commandments in these dank little anti-judicial pits, but they sure must not display the Bill of Rights.
(*Maimonides thought even voluntary confessions shouldn’t be admissible in criminal trials, as even that ran too much of a risk of violating of the defendant’s soul. Oh well…)
6. Speech and Surveillance:

With limited exceptions, the Obama administration’s positions on national security issues relating
to speech and surveillance have mirrored those taken by the Bush administration in its second term.
(p. 16)

Early in the campaign Obama spoke out against Bush’s wiretapping crimes. Here he didn’t wait until after the election to betray what he said, voting for telecom immunity and other pernicious features of the FISA Amendments Act.
Since taking office the administration has argued that the FISA act, like everything else related to alleged “national security”, should be beyond judicial review. As many of us predicted from very early in the Bush years, a Democrat in office has embraced all the Bush surveillance and search arrogations and sought to extend and normalize them. Obama has pushed for the intensification of the Patriot Act’s assaults on freedom.
Obama also collaborated with the SCOTUS to shred the 1st Amendment with their “material support” doctrine, which declares in principle that anything the government declares is communication which “supports terrorism” is beyond the bounds of free speech. Needless to say, anything you want can be so defined. I’ve always said and believed SUV commercials support terrorism. That’s just one example. Is conspiracy to attack the currency a terrorist act? If Al-Qaida did it, it would be. So that means when Wall Street does it, it is. So according to Obama and the supreme court themselves, defending the big banks is providing material support to terrorism and is not legitimate free speech. I guess I’ll take their word for it on that one….
7. Watch Lists:
Letting dubious characters slip through while wrongly flagging hundreds, perhaps thousands of innocent people, the no-fly list has been an ongoing embarrassment for the government and a major problem for those wrongly listed. The administration is unrepentant. It refuses accountability, refuses to divulge its methods for listing, refuses to institute a procedure for the redress of wrongs and delisting of the innocent.
Obama has sought to expand the list regime while rejecting even the slightest semblance of due process. A low level police state hack chirped, “the entire federal government is leaning very far forward on putting people on lists.” (p.18)
While the ACLU doesn’t go so far in this publication, it sounds to me like the watch list is more of an exercise in police statism for its own sake than anything meant to actually have utility or to function rationalistically. From that point of view, a chronic process of “erroneously” victimizing the innocent is a feature of state terror, not a bug.
The government has also extended privateering and constitution-shredding tactics from the “drug war” to the “war on terror”, arrogating the power to seize the assets of charities on alleged suspicion of terrorist connections. Needless to say, here too there’s no transparency regarding the procedure of suspicion or the evidence in any particular case, and the administration claims that these as well must lie beyond the reach of the courts.
So just as with the watch list, here’s strong evidence that, as many of us have argued for years, the point of the drug war was to pioneer totalitarian tactics to be more broadly applied as soon as the pretext was available. 9/11 provided that pretext.
So here’s my basic summary.
This report demonstrates Obama’s contempt for the rule of law and democracy (p.10). Rather, at every turn he has the attitude of a despot. He and his hacks (and the media) want the cult of personality over the rule of law (p.9). Taking off where Bush left off he has developed a veritable ideology of detention, which is bot ha pseudo-principle and a weapon to assail all true American principles (p.11).
He has systematically sought to set up Kafkaesque catch-22s: Gutting the FOIA as he nominally expands it (p.5); winding down Gitmo while revving up Bagram (11), using the typical antidemocratic “standing” ploy against accountability in the courts, e.g. where it comes to FISA (16); keeping the watch list in the darkest closet of culpable secrecy (18).
He has perverted federalism with his attacks on judicial oversight (pages 9, 11, 16, and other examples). He has denied that there was ever a system problem under Bush, but rather continued to propagate the Bush Big Lie that incidents like Abu Ghraib were the “abuses” of “abd apples”, when all torture and atrocities were in fact the result of systematic top down policy.
This paper also enumerates several major Obama campaign lies: The promise of transparency as a value and a practice (p. 4); encouragement of whistleblowers (6); that he’s close Gitmo (in spirit as well as physically) and end detention without trial (10); that he opposed military commissions.
The result is a devastating condemnation of Obama as an enemy of American values and a traitor to the mandate of his election. It establishes that he briefly may have intended to roll back some aspects of the Bush assault on civil liberties, but quickly changed his mind. Since then he has continued the Bush assault on a broad front. So we cannot endorse this from the ACLU’s conclusion:

There can be no doubt that the Obama administration inherited a legal and moral morass, and that in important respects it has endeavored to restore the nation’s historic commitment to the rule of law. But if the Obama administration does not effect a fundamental break with the Bush administration’s policies on detention, accountability, and other issues, but instead creates a lasting legal architecture in support of those policies, then it will have ratified, rather than rejected, the dangerous notion that America is in a permanent state of emergency and that core liberties must be surrendered forever.(p.20)

Obama has clearly endeavored to do the opposite. The most he did was fake in one direction for a few weeks and then reverse course. And the “inheritance” meme, so beloved of Obama’s desperate hacks and cultists, is beneath contempt. (Something doesn’t count as a bad inheritance if you have the power to disavow and reject it but instead seize full ownership of it with great gusto. In that case it’s not your “inheritance”, but something you morally own going back to its inception. That applies to Obama/Bush’s Second Great Depression, Obama/Bush’s Bailout, Obama/Bush’s war, Obama/Bush’s offshore drilling, and it applies to Obama/Bush’s assault on civil liberties.)
So what is to be done? I’m not sure. Along with net neutrality, civil liberties is an issue where we do seem to need “reform within the system”. (Although the problem’s not quite as bad. The Internet democracy is far more vulnerable and requires positive reform action by the government for its preservation, while however degraded the civil liberties regime becomes in principle, the government would still have to actively assault us to make good on its threats, and we have many other routes of resistance besides system reform. Nevertheless, the problem is critical.)
I suppose at this point my prescription would be that, to whatever extent we do still try to seek reform within the system (which I normally think is pointless and argue against), we should focus on these two issues.

August 3, 2010

We Need A New American Energy (Madison’s Federalist #37)


IN REVIEWING the defects of the existing Confederation, and showing that they cannot be supplied by a government of less energy than that before the public, several of the most important principles of the latter fell of course under consideration.

Madison opens Federalist #37 pronouncing how in his estimation the Confederacy lacked the energy necessary for an effective government. Here he begs the question of what he thinks government should be doing, but we know from his and Hamilton’s other numbers that he’s writing of Empire. Today we who know how the American Empire turned out are bound to read this with a different eye. But we can agree that a new energy is needed. Today’s kleptocracy has all too much energy where it comes to the aggrandizement of the corporations, including using hijacked public resources (the military) to launch private wars to further this looting. Meanwhile the citizenry must deplore the complete enervation of the public power where it comes to moderating the ravages of corporate psychopaths and gangsters. Here there is no government to speak of. We see only the void left behind by the abdication of the public realm. As Hobbes would say we are cast back into the state of nature, and it is now our right and prerogative to defend ourselves.
So some of us write and think, trying to figure out what to do. We are resuming the position and mission of the Americans of Madison’s time, and his words in justification can help with ours today. Madison salutes the convention and describes the mission of those seeking a new energy for a freedom-loving community.

It is but just to remark in favor of the latter description, that as our situation is universally admitted to be peculiarly critical, and to require indispensably that something should be done for our relief, the predetermined patron of what has been actually done may have taken his bias from the weight of these considerations, as well as from considerations of a sinister nature. The predetermined adversary, on the other hand, can have been governed by no venial motive whatever. The intentions of the first may be upright, as they may on the contrary be culpable. The views of the last cannot be upright, and must be culpable. But the truth is, that these papers are not addressed to persons falling under either of these characters. They solicit the attention of those only, who add to a sincere zeal for the happiness of their country, a temper favorable to a just estimate of the means of promoting it.

That’s the way it is today. We have reached such a critical time. Madison’s warning here is reminiscent of that in Hamilton’s #1. He acknowledges the potential moral and spiritual pitfalls besetting the intrepid path. It’s an admonition for the ages. But even more clear is the malevolence of those who oppose what history and the spirit decree as necessary. Out of greed, out of sadism, out of cowardice, from wherever their will to crush the human soul springs, they “cannot be upright, and must be culpable”, as Madison says.
Who is the fated audience?

Persons of this character will proceed to an examination of the plan submitted by the convention, not only without a disposition to find or to magnify faults; but will see the propriety of reflecting, that a faultless plan was not to be expected. Nor will they barely make allowances for the errors which may be chargeable on the fallibility to which the convention, as a body of men, were liable; but will keep in mind, that they themselves also are but men, and ought not to assume an infallibility in rejudging the fallible opinions of others.

With equal readiness will it be perceived, that besides these inducements to candor, many allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to the convention.

Just as the original convention’s job was difficult and often obscure to the masses at first, so must ours be.

The novelty of the undertaking immediately strikes us. It has been shown in the course of these papers, that the existing [consolidated] Confederation is founded on principles which are fallacious; that we must consequently change this first foundation, and with it the superstructure resting upon it. It has been shown, that the other confederacies which could be consulted as precedents have been vitiated by the same erroneous principles [The European citizenry is being liquidated even more quickly than we in America; how long can Scandinavia hold out?], and can therefore furnish no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued [Ireland, Latvia, Estonia, Hungary, now Greece, Germany, the UK, soon Spain, Portugal, Italy, Belgium]. The most that the convention could do in such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experiences may unfold them.

What are we to avoid? Exactly what our anti-federalist forerunners warned us against: consolidation of power at the top, concentration of wealth, the imperial impulse, the deliverance of the economy into the hands of banksters and corporations. All this must be swept away in the ethical whirlwind.
Having exalted the potential energy of a federalist government, Madison contemplates the difficulty of harmonizing energy with stability and liberty. These comprise an inescapable trilemma. Even where the people agree as one general will, the three can never be simultaneously maximized. There must always be trade-offs. But as Madison and Hamilton have demonstrated so elaborately in these pieces, there are also harmonies which blend at different levels of government. I advocate maximizing liberty and stability by investing the vast majority of government energy at the community level. I expect that as more people realize how the oil-driven debt kleptocracy has reached its dead end, more will come back around to this wholesome primal view of community.
This could be the answer to the original sin of all consolidated, centralized politics and economy, a sour note Madison and Hamilton fail to elaborate, how the depredation of greed and wealth must always upend the trilemma. It’s a law of history that where elites monopolize society’s wealth, and hijack and maximize the energy of government to wage class war from above, there can exist neither liberty nor stability. In that case all these words and concepts are turned upside down, shaken and rent apart.
Now the beleaguered fugitive citizen cries out, “Liberty? For whom! I’m whipped and riven and enclosed. What hideous Satan has hijacked justice to tell me that because I had the misfortune to be born too late and not be born rich, that I must bow before another? That I must “work for” another, when my human right calls out for the wholesome work of the land? The homestead! Who says I must perish in my soul in order not to perish of sickness and hunger, and that I must live sick and hungry anyway, that I must die of disease and starvation anyway? Is that the “liberty” you dangle before me? It’s a mirage and a fraud, and I renounce it. Where liberty has been raped and killed, I’ll seek the vengeance of justice…..
“Whose stability? Do I rampage across the countryside as a vandal, kicking down towns, scattering polities, pimping laws, prostituting education, corrupting truth, smothering all of freedom’s space for action and movement, all peace and time for thought? I wanted nothing but to live in peace but have been chased and nettled as by a swarm of hornets. So if I cannot have peace, if I’m doomed to eternal war. I’ll wage it back at those who have so relentlessly assaulted me, with all the hate and viciousness they first mustered against us…..
“So there’s the only energy left in this world of war. There’s no specific energy of government; there’s only the kinetic rage of feudal war. For the moment in most places its physical violence is at a lull, while it rages all the more ferociously in every sublimated realm, of politics, of administration, the media, academia, the law, the culture. If there’s ever again to be a community of energy, stability, liberty, the people will have to recreate and win these out of their own feral power, for we are once again naked men scrabbling over the primeval rocks. The enemies of humanity have dragged us back to that barbarism. To once again rise to civilization, we must smash the barbarians of post-civilization. That’s the energy the peril of the time must summon.”
One way or another, the energy is now completely outside the law. All its visible manifestations are on the side of the criminals who have exiled all stability and liberty to the death zone of commodification, where all human values go to be strangled.
Would Madison recognize this world? I hope not. I hope he’d recoil in horror and say, “That’s not what I had in mind at all.” At any rate, we who know this horror must take all necessary action. So we tread the path, resume the lost American Revolution, find our way to resume the Convention.

July 23, 2010

Federal, that is Corporate, Usurpation (Hamilton’s Federalist #17)


We continue our critique of The Federalist with Hamilton’s #17.
He starts by claiming the federal government would never want to usurp what are properly State powers. However, his depiction already sounds dubious even given when he wrote it.

Allowing the utmost latitude to the love of power which any reasonable man can require, I confess I am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository.

“Commerce, finance, negotiation, and war”. Oh, that’s all. (He even concedes that this federal government is likely to be filled with those minds are “charmed” and “allured” and “governed” by the lust for power. He just blithely claims that these greedy officials will somehow restrain themselves from what he’d consider usurpation. So even with Hamilton we see the extreme naivete of the “reformer”, assuming he really believes what he writes.) In other words, why would a body which is already such a massive depository of power want to usurp what meager powers it leaves to the states?

The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government.

Since when have such drawbacks ever stopped anyone? Even in the 18th century, let alone today, those seeking power tended to care little for dignity or splendor if those got in the way.
In any event, we know that this prognostication has been proven false. The basic reason is that the powers Hamilton says are proper for the central government, if they’re exercised in a tyrannical way, are more than sufficient to subsume the powers of the states. So why would they ever need to directly usurp these?
As we’ve seen, the BP administrative zone, surrendered and enforced by the federal government, also subsumes all state powers under the general tyranny, which I imagine would be defended under the Commerce clause if they had to constitutionally defend it. (I haven’t actually seen anyone trying to defend the constitutionality of it; then again who other than a few Internet radicals are even asking the question? Certainly not the corporate media. My Internet search for “BP constitutionality” turned up endless squawking about the constitutionality of the $20 billion escrow fund. But looking through the first several pages, and some others selected at random, I found not one entry about the constitutionality of the government’s abdication of sovereignty in the Gulf. That’s quite a piece of data on our state of corporate tyranny right there.)
It’s unfortunate for Hamilton’s thesis that he singles out agriculture among “other concerns” as something which is definitely within the states’ authority, since the agriculture is one of the sectors which has seen corporate tyranny advance the furthest.
How is it within the federal purview according to Hamilton that the federal government is raiding small food producers? The answer of course is that it’s not. But then, neither was the central government’s policy of massive subsidies for industrial agriculture. But the assault on small producers is implicit in the support for massive corporate producers. Federal agriculture policy makes no sense from the point of view of the public interest and none from the federalist point of view. Indeed, as we just saw the arch-federalist Hamilton expressly rejects it.
Yet it makes perfect sense if the federal government has actually become a corporatist tyranny.
The three basic elements of corporatism are:
1. The government, in the American case mostly the federal government, relinquishes authority and thereby abdicates sovereignty. It abrogates all responsibility to restrain corporate rackets from larcenous and destructive behavior. Criminal behavior is either legalized de jure through the rigging of the law, or de facto through regulators and police refusing to enforce the law and the corruption of the courts.
2. The government steals public property by privatizing it for pennies on the dollar (or even letting corporations destroy it and then forcing taxpayers to pay for cleaning up the mess) and conveying taxpayer money to the gangsters in the form of corporate welfare.
3. The federal government as goon assaults any lower level of government, and any other group or individual, who acts in any way contrary to corporate aggrandizement.
If you look at what the federal government has done, I doubt you’ll find any example in recent decades which doesn’t embody one or more of these. I couldn’t think of any.
On the other hand, the features which aren’t corporatized, like Social Security, are older and are precisely the targets of the “austerity” assault.
So there again we see the progress of corporate tyranny, as I laid out in my recent series (parts one, two, three, and four). The Bailout, for example, is a fully corporatist policy, representing the basic logic and an escalation along the lines of the logic. Meanwhile the system must also purge whatever’s left of pre-corporatist policy. That’s a main goal of “austerity”, besides just moving on to the next stage of robbery.
But no, Hamilton thinks the State governments can restrain this federal monster. Indeed, he continues with his conceit that the real danger is to the federal government from the states.

It will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities…..

The superiority of influence in favor of the particular governments would result partly from the diffusive construction of the national government, but chiefly from the nature of the objects to which the attention of the State administrations would be directed.

It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State would be apt to feel a stronger bias towards their local governments than towards the government of the Union; unless the force of that principle should be destroyed by a much better administration of the latter.

Or simply that the force of the latter destroys the power of the former.
(I should also mention how the states have become dependent upon federal largess. So the feds have not only bullied and usurped the state power but bought it as well. Hamilton doesn’t seem to anticipate this either.)
Although it’s secondary to the discussion at hand, within the course of claiming State power will be sufficient to restrain and even to overcome federal power, Hamilton gives another creepy paean to government power as such which I’d like to quote.

There is one transcendant advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light, — I mean the ordinary administration of criminal and civil justice. This, of all others, is the most powerful, most universal, and most attractive source of popular obedience and attachment. It is that which, being the immediate and visible guardian of life and property, having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, contributes, more than any other circumstance, to impressing upon the minds of the people, affection, esteem, and reverence towards the government. This great cement of society, which will diffuse itself almost wholly through the channels of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the Union.

Even aside from how we know that this proved to be false, which is the subject of our discussion, this provides an insight into the statist, imperial intent of Hamilton in everything he advocated. Democracy was repugnant to him not primarily because it allegedly couldn’t provide a stable, peaceful society, but because it couldn’t sustain and wouldn’t countenance his imperial lusts. To this day that remains the main reason for opposition to true, decentralized, positive, participatory democracy: Because it would reject empire and tyranny.

July 22, 2010

Hamilton’s Statism (Federalist #16)


The Federalist #16 reads like Alexander Hamilton’s statist manifesto. It contains dire speculations on what might happen under a loose confederacy.
After saluting the Lycian and Achaean Leagues as examples of loose confederacies which did work, Hamilton moves on to a lurid account of the death of confederacies. Having already discussed the vice of disobedience and lawlessness among the subordinate levels of a confederacy, but having left corporations out of account, he now moves to discuss the violent consequence of this disobedience.
It seems much of the violence is to come from the top down.

It remains to inquire how far so odious an engine of government, in its application to us, would even be capable of answering its end. If there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority.

The powerful states would combine to defy the center and oppress the weaker. They’d engage in demagogy and rig elections. They’d bring in foreign powers to assist them against the center. The civil war would ensue. “The first war of this kind would probably terminate in a dissolution of the Union. This may be considered the violent death of the Confederacy.”
Hamilton considered more likely, because he considered it already at hand, the confederacy’s non-violent, “natural” death.

Its more natural death is what we now seem to be on the point of experiencing, if the federal system be not speedily renovated in a more substantial form. It is not probable, considering the genius of this country, that the complying States would often be inclined to support the authority of the Union by engaging in a war against the non-complying States. They would always be more ready to pursue the milder course of putting themselves upon an equal footing with the delinquent members by an imitation of their example. And the guilt of all would thus become the security of all. Our past experience has exhibited the operation of this spirit in its full light. There would, in fact, be an insuperable difficulty in ascertaining when force could with propriety be employed. In the article of pecuniary contribution, which would be the most usual source of delinquency, it would often be impossible to decide whether it had proceeded from disinclination or inability. The pretense of the latter would always be at hand. And the case must be very flagrant in which its fallacy could be detected with sufficient certainty to justify the harsh expedient of compulsion. It is easy to see that this problem alone, as often as it should occur, would open a wide field for the exercise of factious views, of partiality, and of oppression.

If we consider that a government’s purpose is to preserve and enhance the liberty and prosperity of the people in the face of all threats, including all forms of organized crime, then we can see how today’s government, having been hijacked by the corporations, now in most ways languishes in desuetude as Hamilton describes here, even as in other ways it menaces us with tyranny on behalf of those same criminals.
Hamilton contemplates how the central government in a loosely structured confederacy would need the dread standing army to enforce its policy upon the recalcitrant states.

It seems to require no pains to prove that the States ought not to prefer a national Constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions or decrees of the government. And yet this is the plain alternative involved by those who wish to deny it the power of extending its operations to individuals. Such a scheme, if practicable at all, would instantly degenerate into a military despotism; but it will be found in every light impracticable. The resources of the Union would not be equal to the maintenance of an army considerable enough to confine the larger States within the limits of their duty; nor would the means ever be furnished of forming such an army in the first instance.

In American history the prospect of a standing army was rightly viewed as a stark milestone of tyranny. This healthy aversion retained some vigor well into the 20th century, and it’s a mark of abdication and enervation that in the latter half of that century America threw away this totem of freedom and embraced the militaristic taboo. Of course, at the moment Hamilton was writing the Constitution he exalted provided explicitly for a standing army, although no doubt neither he nor anyone else contemplated the monstrosity of the modern military-industrial complex, existential tyranny and corporate welfare bloat to a monumental extent. Few intuitions throughout history have been as well confirmed by bitter experience than the traditional revulsion at the very thought of a standing army. “We may indeed with propriety be said to have reached almost the last stage of national humiliation”, as Hamilton wrote in #15.
What Hamilton describes here is again what we have today. This army is implicitly oppressive. Recent years have seen the Constitution’s own posse comitatus protections under assault. And while Hamilton is correct that maintaining this military complex is impracticable physically and financially, nevertheless it is being propped up by the simple expedient of theft from the people.
(Then there’s the horror of the death and destruction these private wars wreak abroad, but I suppose the imperialist Hamilton wouldn’t care so much about that.)
So Hamilton tries to establish what a nightmare would ensue if the states continued as a loose confederacy, though as we know federalism did not spare us this same nightmare. Part of the reason why is found right in the midst of his paean to “the majesty of the national authority”.

The result of these observations to an intelligent mind must be clearly this, that if it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice. The government of the Union, like that of each State, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. It must, in short, possess all the means, and have aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular States.

So the federal government must be empowered to directly “carry its agency to the persons of the citizens”, because in this way it can “address itself immediately to the hopes and fears or individuals”. All of this is predicated on the “common concerns” of the people. But all this rings false in the age of corporate kleptocracy because these common concerns, if they ever did exist, no longer do.
Today the federal government either itself blasts away all barriers between the naked individual citizen and the massed corporate power, as in refusing to enforce anti-monopoly policy or anti-pollution laws, or it removes any impediments to the corporations’ smashing these safeguards themselves, as in the way the activist “supreme” court has been removing impediments to the direct buying of elections by throwing out campaign finance laws. In many cases it acts as the violent thug arm, as a glorified goon, as it intends to do in the case of the health racket mandate. US history going back to the 19th century is replete with examples.
In this shooting gallery, what “common concern” could the government be said to uphold? On the contrary, the federal government is a completely corrupted agent of corporate anarchy. If Hamilton opposed all forms of “anarchy”, meaning chaos, then he’d have to lament the failure of his great project. At any rate his federalist argument is now obsolete.
But Hamilton keeps focusing on refractory state legislatures, even though he concedes these may be acting on behalf of the people. Look at this bizarre sentence:

If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest.

Maybe I have an unusual view of these things, but I think if the state legislature and the people agree then it’s probably more likely it’s the legislature which is “tainted with the spirit” of the people, and not the other way around. Which may be what Hamilton really means.
He does make a concession:

Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority.

So Hamilton does concede the possible tyranny of the federal government (in which case it would no longer possess authority) and the right of the people to make attempts to resist and overcome it, as indeed he must having been a revolutionary soldier himself.
So that’s what we the people must strive to do, in the form of political and economic relocalization, striving to recover economic resiliency and political self-respect, at the individual, family, group, community, movement levels. Hamilton wraps it up writing of what he once knew, when he too fought as a revolutionary against monstrous tyranny.

And as to those mortal feuds which, in certain conjunctures, spread a conflagration through a whole nation, or through a very large proportion of it, proceeding either from weighty causes of discontent given by the government or from the contagion of some violent popular paroxysm, they do not fall within any ordinary rules of calculation. When they happen, they commonly amount to revolutions and dismemberments of empire. No form of government can always either avoid or control them. It is in vain to hope to guard against events too mighty for human foresight or precaution, and it would be idle to object to a government because it could not perform impossibilities.

Revolution is a sort of political singularity where all the pre-existing “good government” arguments break down. That’s because such upheaval is forced into being by the extremes of tyranny and criminally imposed poverty. These nefarious forces corrupt and abuse every part of the life of the country, including its political forms and ideas. So the people must rise to the fray seeking their leading ideas and images elsewhere. They must look to the horizons of hopes for the future and cherished treasures of the past. At this singularity future and past no longer separate, but simply embody the ideal of the great change from the noxious present. That’s where we have to go searching with our tattered treasure maps.

July 19, 2010

Critique: Hamilton’s Federalist #15


H/T Barry Ritholz
Alexander Hamilton commences Federalist #15 with a contemplation of the intellectual path which is beset by “sophistry” but which also potentially encompasses the “spacious field” of creative political thought and action.

If the road over which you will still have to pass should in some places appear to you tedious or irksome, you will recollect that you are in quest of information on a subject the most momentous which can engage the attention of a free people, that the field through which you have to travel is in itself spacious, and that the difficulties of the journey have been unnecessarily increased by the mazes with which sophistry has beset the way. It will be my aim to remove the obstacles from your progress in as compendious a manner as it can be done, without sacrificing utility to despatch.

Of course the sophistry in question is that of the anti-federalists, those who deny “the insufficiency of the present Confederacy to the preservation of the Union.” For Hamilton, a word like “preservation” always refers to empire, and given that premise his argument is unassailable.

It may perhaps be asked what need there is of reasoning or proof to illustrate a position which is not either controverted or doubted, to which the understandings and feelings of all classes of men assent, and which in substance is admitted by the opponents as well as by the friends of the new Constitution.

And so we today, amid the desolation of this republic, ask the same question and make the same incontrovertible argument. We too must range over the spacious field while rejecting reactionary sophistry. We’re in Hamilton’s same position, we face the same imperative, we make the same argument, and he would have to assent.
He launches into a jeremiad which reads today like a bizarre inversion of our day, now that we live according to the full logic of his empire.

We may indeed with propriety be said to have reached almost the last stage of national humiliation. There is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience. Are there engagements to the performance of which we are held by every tie respectable among men? These are the subjects of constant and unblushing violation.

I feel the need to update some of his questions, and modify some, though not all, of his answers.
Are we being reduced from citizens to debt slaves, and our government to an embezzling wastrel, and all to serve the extractions of gangsters?

These remain without any proper or satisfactory provision for their discharge.

Has this government hijacked our military and, in conjunction with corporate mercenaries, waged private wars in order to seize territory and wealth for the benefit of these gangsters?

These are still retained, to the prejudice of our interests, not less than of our rights.

Are we in a condition to resent or to repel the aggression? We have neither troops, nor treasury, nor government.

Are we even in a condition to remonstrate with dignity? The just imputations on our own faith, in respect to the same treaty, ought first to be removed.

“Are we entitled by nature and compact to a free participation in the navigation of the Mississippi [and the Gulf of Mexico]?”
BP “excludes us from it”, with Obama’s government as its hired goon.

Is public credit an indispensable resource in time of public danger?

It has been run up by government embezzlers in order to increase the danger.

Is commerce of importance to national wealth?

No, only to the rent-looting of corporate interests.

Is respectability in the eyes of foreign powers a safeguard against foreign encroachments?

Everywhere the worthless war increases hostility, creates enemies, while China, Russia, Iran, North Korea and others gather all the fruits.
“Is a violent and unnatural [increase] in the [price] of land a symptom of national distress”?

Is private credit the friend and patron of industry?

No answer needed.

To shorten an enumeration of particulars which can afford neither pleasure nor instruction, it may in general be demanded, what indication is there of national disorder, poverty, and insignificance that could befall a community so peculiarly blessed with natural advantages as we are, which does not form a part of the dark catalogue of our public misfortunes?

Yes, all that we read and write compiles and discusses this dark catalogue.

This is the melancholy situation to which we have been brought by those very maxims and councils which would now deter us from adopting the proposed Constitution; and which, not content with having conducted us to the brink of a precipice, seem resolved to plunge us into the abyss that awaits us below. Here, my countrymen, impelled by every motive that ought to influence an enlightened people, let us make a firm stand for our safety, our tranquillity, our dignity, our reputation. Let us at last break the fatal charm which has too long seduced us from the paths of felicity and prosperity.

Our situation is the same, except that we’ve not yet done the work of proposing the new Constitution.
I could continue to rewrite the next few sentences.

It is true, as has been before observed that facts, too stubborn to be resisted, have produced a species of general assent to the abstract proposition that there exist material defects in our national system; but the usefulness of the concession, on the part of the old adversaries of [democratic] measures, is destroyed by a strenuous opposition to a remedy, upon the only principles that can give it a chance of success. While they admit that the government of the United States is destitute of energy, they contend against conferring upon it those powers which are requisite to supply that energy. They seem still to aim at things repugnant and irreconcilable; at an augmentation [or diminution; either way, depending upon whether one’s a liberal or rightist blade of astroturf] of federal [power], without a diminution of [corporate power]; at [the abdication of] sovereignty in the Union, and complete independence [for the corporations]. They still, in fine, seem to cherish with blind devotion the political monster of an imperium in imperio. This renders a full display of the principal defects of the [kleptocratic federal system] necessary, in order to show that the evils we experience do not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which cannot be amended otherwise than by an alteration in the first principles and main pillars of the fabric.

This is striking:

Except as to the rule of appointment, the United States has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of America.

Hamilton’s complaint is how under the Articles of Confederation, the federal government has no power to requisition men or taxes. But today, in what must strike Hamilton as a paradox, the federal government has largely renounced both, specifically for the purposes of enabling corporations to amass greater loot while both they and government shed all responsibility.
In his Ancien Regime and the French Revolution Tocqueville discusses how under the Ancien Regime all economic and political power was centralized while all elite responsibility was dissolved. This enraged the people, who remained subject to the obligations of the system while seeing every day how worthless and reckless the elites were; but it also concentrated enough workers in Paris, the manufacturing center, that once their discontent reached critical mass it was an almost effortless motion to topple the monarchy.
Today’s kleptocracy has followed but refined the model. Today’s elites are every bit as worthless and privileged and predatory; but even as economic power has been centralized, the infrastructure itself has been completely disintegrated. Where are “the workers”? Overseas, mostly. What’s still here is mostly a castrated “service” class of flunkeys which is physically dispersed anyway. What’s more important, government has released the “citizen” from all the old obligations. Ending the draft, replacing the citizen army with a professional volunteer force, and rolling back most taxes, replacing them with the more insidious indirect tax of borrow-and-spend, and all the while encouraging debt consumerism as the new model of civilization itself: In these ways the corporatist system has been able to prepare most of its crimes without directly annoying or even alerting the people at all.
So I’d be very interested to see Hamilton’s reaction to this state of affairs, after his impassioned cry that the Articles don’t allow for the federal government to raise money and men the way a responsible imperial government would.
He follows with much talk of coercion. He seems to think the only options all involve rigorous top-down action.

Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms. The first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or States.

I of course add “corporations”. But this federal government has, since the 19th century, systematically allowed corporations to exist more and more outside the law (except where empowering them to use the law as a weapon of aggression), while using its “coercion of arms” to defend them from the rightful consequences of their actions, to drive peace and justice out of the world.

There was a time when we were told that breaches, by the [corporations], of the regulations of the federal authority were not to be expected; that a sense of common interest would preside over the conduct of the respective members, and would beget a full compliance with all the constitutional requisitions of the Union. This language, at the present day, would appear as wild as a great part of what we now hear from the same quarter will be thought, when we shall have received further lessons from that best oracle of wisdom, experience. It at all times betrayed an ignorance of the true springs by which [corporate] conduct is actuated, and belied the original inducements to the establishment of civil power.

I made substitutions for the words “States” and “human”, which updates the passage.
Here Hamilton gets to the core of things:

Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint. Has it been found that bodies of men act with more rectitude or greater disinterestedness than individuals? The contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. Regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number than when it is to fall singly upon one. A spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed into improprieties and excesses, for which they would blush in a private capacity.

What we have today is the equivalent of the Article of Confederation (in terms of failure) as a free-fire zone for corporate gangs.
He goes on to lament a centrifugal force he considers inherent to the Articles, how those at the lower levels of that Confederation must always want to “fly off from the common center” if not held in the central government’s firm grip.
However true this may have been then, and however desirable this firm grip was from the federalists’ point of view, what strikes us today in reading the passage is how it’s precisely today’s corporations who fly off from the center in terms of having any responsibilities, accountability, or obligations at all, even as the government continues to allow them to aggressively press privilege, prerogative, and simple brute force, all of it fraudulently dignified with the term “rights”.
Today we have the worst combination of the Ancien Regime, aggressive privilege and “right” completely divorced from any responsibility or restraint whatsoever, and the Articles of Confederation, a central government weak by design in the face of these “eccentric orbs” as Hamilton calls them. And we can throw in the modern police state, ever more aggressive in blocking (e.g. BP) and trouncing (e.g. the Toronto G20) all attempts of the people to demand accountability. The next step can only be kick-in-the-door fascism.
All of this represents the complete and irrevocable corruption of the federalists’ “republic” by and for the corporations. What Hamilton says here of the constituent States under the Articles applies most of all to this federal government.

Each State, yielding to the persuasive voice of immediate interest or convenience, has successively withdrawn its support, till the frail and tottering edifice seems ready to fall upon our heads, and to crush us beneath its ruins.

This is no passive collapse, but a corporate-wired demolition. The enemy’s goal is to erect barbed wire and guard towers around the ruins. The time to get out of the doomed edifice is now. 

June 8, 2010

The New Constitutional Convention


Looks like we’ve been along this way before:

AFTER an unequivocal experience of the inefficacy of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America.

Thus Hamilton opens The Federalist #1, kicking off the most influential series of pamphlets advocating the new written Constitution as a necessary and worthy improvement on the Articles of Confederation, which by then had proven a failure, if the point was to build a country that works.
Today when we reread this, and look at around at our current state of affairs, we have to consider that the existing system, the kleptocracy, is rotten beyond redemption. The issue is to ascertain how much this is the fault of the existing government having run rogue of the Constitution, and to what extent the Constitution itself is no longer adequate to the challenges liberty faces.
That’s the core question for the new constitutional convention we must undertake, at least first in discussion, whether or not we the people can ever sufficiently organize to later in real practice. Specifically, the great evil which afflicts us is the rise of the corporation and of corporate power. The kleptocracy is in brief a government and a system of practices, mores, and memes which have been completely hijacked by corporate organized crime and turned to the exclusive aims of gangsters: to aggrandize their wealth and power.
The framers of the Constitution were aware enough of the potential threat to not enshrine corporations in the document, thereby implicitly endorsing the well-delineated, limited existence such corporations could have and the role they could play. (Why don’t the alleged “originalist” ideologues apply this ideology to corporate power?)
But they weren’t prescient enough to impose specific limits on them, the way they did on the state with the Bill of Rights. So there’s two suggestions for the primary order of business at any new constitutional convention: Explicitly delineate the original, rational, equitable limits on corporate existence (in brief, that they were allowed to exist only for specific purposes, to engage in specific activities, for a limited period of time, and with their shareholders and officers retaining much of the legal responsibilities they’ve today cast off; that’s just to name a few); and draw up a new Bill of Rights to protect the people against corporate power. In many cases, it would be a matter of explicitly applying the existing Bill of Rights to corporations – that they can’t abridge freedom of speech (e.g. with SLAPP suits or by monopolizing media outlets), freedom of assembly (by privatizing public spaces), that they can’t “take” without due process (the way they currently have almost infinite prerogative to do, via their externalizations of every kind of cost, risk, and harm), and many others.
So there’s some ideas I’ve tossed out. When I call for a new convention I don’t propose a break with the chain of the heritage. On the contrary I want to resume the path of freedom and humanity our forefathers first traversed as they embarked upon the American Revolution. This revolution and this heritage have long since lapsed into desuetude. They need new life, new resolve, or else freedom must truly perish out of the world. It makes no difference what a written Constitution says if the underlying people’s constitution and sovereignty no longer exists because the people themselves have dissolved into atoms.
Corporations and tyrannical governments can of course never exercise sovereignty, but they can enter the void left behind where sovereignty has withered and died. Here the measure of life or death is simply whether or not the people still fight for freedom as a people. The existence of that fight or not proves whether or not a people any longer exists.
So let’s recall some of the words of Hamilton and his colleagues. (I cite this as specifically relevant to the American heritage, though I hope the underlying principles are universal even if the specific content wouldn’t always be. So I don’t mean to reprise the tired old idea that America has a mission to save the world, or to imply any spiritual imperialism. We’ve all had enough of that from the pseudo-patriots, neocons and chickenhawks. I hope other peoples look to their own inheritances to find parallel visions, although wherever the universal freedom principle rings forth all people of good will can find it familiar, however exotic some of the trappings may be.)

It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made.

Hamilton was only the latest of a long line of freedom activists to see America as having a special mission to establish liberty and political wisdom. This mission was clearly felt and lived going back to the eraliy days of the Pilgrims and their City on a Hill. This ideal was long the common currency of both colonists and thinkers like Locke back in the home country. Nor was it a mere commonplace, but a deeply felt promise and imperative. (Back then “mandate” wasn’t just an empty, sloppy word; the concept very strongly promised a right and imposed a responsibility. Rights are meaningless and indeed pernicious where not preceded and encompassed by responsibilities.)
It impressed itself with all the greater force as the struggle with tyranny was felt to intensify. In the Stamp Act year of 1765 John Adams felt it as he wrote in his diary.

The liberties of mankind and the glory of human nature is in [our] keeping. America was designed by Providence for the theatre on which man was to make his true figure, on which science, virtue, liberty, happiness, and glory were to exist in peace.

America was now coming of age. The great struggle with King and Parliament was not just over an attempt to tax but over the deepest principles of freedom and sovereignty. (Indeed the British soon realized the effort to collect any tax, even if successful, would always cost more than any revenue it could bring in. But they too continued the struggle out of principle.)
As Adams wrote in his Dissertation on the Canon and Feudal Law:

It was this great struggle that peopled America…a love of universal liberty, and a hatred, a dread, a horror, of the infernal confederacy [of temporal and spiritual tyranny] projected, conducted, and accomplished the settlement of America.

By the 1760’s the colonists had long felt the irretrievable rot and decadence, spiritual and political corruption, of the old country. It’s a feeling that must be familiar to us today. For just one example, when in the 1730s Lewis Morris had to travel to England to try to attain redress for a fleecing at the hands of the colonial governor of New York, only to find himself further insulted by the arrogance of corruption, he exorcised his disgust in a long poem, “The Dream and Riddle”. While not great literature, the poem’s an excellent cultural and political source document expressing all the themes of old world decadence and incipient tyranny contrasted with the spiritual and material promise of the new world. After much complaint, Morris finds resolve in looking to the new continent. Here’s a short, characteristic quote:

If bound unto that land of liberty
I just described, then know it is not nigh,
But lies far distant from this place somewhere
Not in this, but some other hemisphere.

In 1775, as the crisis was reaching its climax, everyone knew that the time was at hand for the freedom activist to exercise his responsibility, embark upon the ultimate fight, in order to redeem freedom’s promise, the promise as embodied in the ideal of America.
Samuel Williams said it well in 1775.

To our own country must we look for the biggest part of that liberty and freedom that yet remains, or is to be expected….For while the greatest part of the nations of the earth are held together under the yoke of slavery, the North American provinces yet remain the country of free men: the asylum, and the last, to which such may yet flee from the common deluge.

Today the new hemisphere can arise at first only from our minds and souls. It’s true that we must reprise the American frontier, the vision of freedom’s salvation, and so we must look again and recreate our frontier from within. We start by planting the seeds of freedom in our souls.
The path has many travails and pitfalls. Hamilton start by warning us to be vigilant toward ourselves:

Happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. But this is a thing more ardently to be wished than seriously to be expected.

And then moves on to warn of the passions and hostilities of political strife.

So numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. This circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy. And a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that those who advocate the truth are influenced by purer principles than their antagonists. Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question. Were there not even these inducements to moderation, nothing could be more ill-judged than that intolerant spirit which has, at all times, characterized political parties. For in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution.
And yet, however just these sentiments will be allowed to be, we have already sufficient indications that it will happen in this as in all former cases of great national discussion. A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives.

That reads like a less intense, more moderate version of Thucydides’ famous description in his History of the Peloponnesian War, which I assume Hamilton read, but some searching on my part couldn’t uncover whether he had the passage in mind when he was writing. At any rate, we can consider ourselves warned.
And thus, if we wish to redeem America’s promise of liberty and justice, we must embark upon the perilous path our forefathers traveled. Hamilton and his allies were well-advanced along this path and had already braved its worst dangers when he arrived at the point where he was writing these lines:

I propose, in a series of papers, to discuss the following interesting particulars: — The utility of the UNION to your political prosperity — The insufficiency of the present Confederation to preserve that Union — The necessity of a government at least equally energetic with the one proposed, to the attainment of this object — The conformity of the proposed Constitution to the true principles of republican government — Its analogy to your own state constitution — and lastly, The additional security which its adoption will afford to the preservation of that species of government, to liberty, and to property.

In the progress of this discussion I shall endeavor to give a satisfactory answer to all the objections which shall have made their appearance, that may seem to have any claim to your attention.

Today, on the other hand, if we start with a similar inquiry, we do so only at the threshhold of the burning house from which we rush, carrying what we can. And dodging those flames is only prelude to setting out on a dangerous road at night, heading toward the new homestead.
But we can do so armed with the alliance of those who did so once before and came through it all stronger and happier than before, having fought a righteous fight and won.
The colonists faced the Intolerable Acts with courage and vigor, knowing the final conflict was at hand.
If we substitute today’s kleptocracy and corporate tyranny for England, and the new colonies for the old, we can recite the words of Rokeby.

[A]ll the spirit of patriotism or of liberty now left in England [is as] the last snuff of an expiring lamp [while] the same sacred flame…which once showed forth such wonders in Greece and in Rome…burns brightly and strongly in America.

And those of William Hooper in 1774.

[America] will build…upon the ruins of Great Britain; will adopt it constitution purged of its impurities, and from an experience of its defects will guard against those evils which have wasted its vigor and brought it to an untimely end…[In America God himself was] now giving a new epocha to the history of the world.

These weren’t just the words of colonial rebels in a particular place and time. They’re the words and values of all true Americans at all times, if such still exist. And if we remove the specific American details they’re the words and values of all freedom vitalists at all times. (One thing in particular is universal: All people, of any culture, tradition, or creed, face as one the totalitarian tyranny of corporatism. This is universal.)
So let this be a flier for the next constitutional convention, which has already begun wherever Americans have begun to recognize how our wealth, our democracy, our country, our freedom, has been and is being stolen, and wherever we resolve to fight back to reclaim all that’s rightfully ours.

June 4, 2010

Kagan and the Corporate Court (2 of 2)


In part 1 of my post on the impending installation of Elena Kagan on the supreme court, I discussed how in The Federalist #78 Alexander Hamilton defended the lifetime tenure “during good behavior” for federal judges on the ground that he expected the courts, more than the other two branches, to come reasonably close to working purely in the public interest.
Hamilton’s conception was premised on the courts and especially the “supreme” court maintaining it independence of the executive and of other forces in the polity. As we know, by now the SCOTUS has been corrupted by corporatism and is a rogue institution. As I briefly discussed in part 1, this isn’t a new development which could be viewed as an aberration or the result of Bush extremism. On the contrary, the corporate struggle in the courts goes back to the 19th century, and the definitive victory march commenced in the 1970s. The process was only stepped up under Bush, the broad acceptance of the imperial presidency, and now Obama’s embrace of all Bush concepts. The Citizens United decision was more of a formal consummation than a practical change.
(We can say that Obama’s embrace thus formally embraces all Bush/Cheneyism as not extreme or aberrational but as within the mainstream of today’s polity. So if Bush policies were anti-constitutional, and they all were, then it follows that the polity as such is anti-constitutional. The system is a parasitic kleptocracy and is not sovereign. This goes for both kleptocratic parties and most existing pressure groups, which are really corporate astroturfs. I’ll discuss this further in an upcoming post.)
Obama’s alleged opposition to that decision is belied by his consistently pro-corporate actions. So it’s an accident at best, and more likely a cheap political lie. And there’s no reason to believe that Kagan on the court would’ve voted differently. Indeed, the ineptitude of her argument as solicitor general may have stemmed from her lack of enthusiasm for the position she had to argue.
Obama’s record as a corporatist and fanatic regarding executive power is bad, and we have to bet that he intends for Kagan on the court to be pro-corporate and pro-imperial presidency. That brings us to Kagan’s record, such as it is, on civil liberties and the “unitary executive”.
Just as on everything else, Kagan’s record here is remarkably barren, given the limitless opportunities she’s had to speak out on anything she wishes. (By contrast, I’m an obscure blogger with few opportunities, yet I’ve already left a record vastly more copious than that of this considerably older elite legal cadre.)
We see that at her core she’s a sociopathic careerist, as I discussed in the first post.
However, we can piece together a skeletal record. The most important structural point is that Kagan affirms the Bush/Cheney policy frame for the “war on terror”, i.e. permanent war and a society which is always supposed to feel it is “at war” and conform accordingly to whatever the power structure commands. This war is of course a complete fraud, but one of the hallmarks of a kleptocratic, and therefore anti-constitutional, cadre is her support for the Global War on Terror and shilling for the general Permanent War social frame, a Big Lie. (Another hallmark is continued support for the Bailout and telling the Big Lie that the Bailout was “necessary” and accomplished necessary and worthwhile aims. I’ll get to this too in an upcoming post.)
Kagan has also, as solicitor general, happily argued Obama’s anti-American positions on detainees (here she seemed more comfortable than in the CU case). Her “progressive” defenders claim that as a DoJ cadre it’s her job to argue Obama’s position, and that doesn’t necessarily mean she agrees with it or will decide that way once on the court.
(Notice any logical flaws in that argument? Even leaving aside the question of why Obama would’ve wanted a solicitor general who didn’t agree with his positions, we can certainly assume he wouldn’t want to put anyone on the supreme court who isn’t in full accord with him on the things most important to him.
As for the CU case, as I said I think Obama’s political dissent is just for political show, and that it’s not an accident that the administration’s, i.e. Kagan’s, argument was haphazard.
Also, aren’t all these liberals who say Kagan secretly disagrees with Obama on civil liberties and presidential arrogation the same ones who moronically say Obama himself really doesn’t agree with all the things he somehow keeps doing? Oh well, I’ll leave it to others to further plumb the cesspool of the corporate liberal mindset.)
At any rate, even if Kagan isn’t truly an anti-freedom ideologue but just a sociopathic careerist, how is that any better? Her partisans themselves are saying she’s the kind of person who’s content to “follow orders” and “do her job” even where it comes to assaulting civil liberties; that’s vile. Civil liberties like habeas corpus are too much core American values to be subject to the vagaries of careerism. By definition if you can be so cavalier about something like this, you either don’t care about American values or hold them in contempt.
Not that anyone will ask the still-too-few vigilant people of America, but do we want someone on the court who holds these values in contempt? Or is it that the SCOTUS already holds them in contempt, and Kagan will reinforce this?
One thing which looks clear enough from the record is that Kagan exalts the imperial presidency. As early as the Clinton administration she argued for broad discretionary executive authority. (We should recall that although Bush escalated the use of “signing statements”, it was Clinton’s DoJ which formalized the concept.) Then throughout the Bush years of ever more extreme assertions of the authority of the president to not only freely interpret the law (which assertions Kagan already explicitly agreed with) but to disregard it altogether, Kagan remained in her sociopathic careerist silence mode. From a cadre at her level, who had spoken out on the issue previously, we can take that as implicit consent.
And of course since becoming Obama’s head litigator she’s aggressively argued on behalf of Obama’s aggressive continuation of the entire Bush/Cheney imperial-presidency agenda.
This leads us back to Hamilton and his Federalist #78. Hamilton thought the judiciary would be the “least dangerous” branch because it was the least powerful. (The executive enforced the laws and commanded the armies, the legislature wrote the laws and had the power of the purse.)

It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Hamilton believed the best safeguard against the courts becoming tyrannical on their own was the simple fact that the judiciary was reliant upon the executive to enforce its judgements, and therefore wouldn’t be able to run too far rogue. The courts would either reflect the agenda of the executive or at any rate couldn’t be completely antithetical to the executive. Of course, this assumes the executive itself hasn’t become a kleptocratic rogue, and that the court isn’t simply following the lead of this rogue executive.
In fact, the pro-corporate, imperialistic agenda of the last several administrations adds up to decades of subversion of the constitution and betrayal of the public interest. Obama’s own corporatist, imperialist pretensions are just the latest, terminal escalation of the historical trend. We now have a full-fledged, entrenched kleptocracy. It has abdicated sovereignty.
Although judicial review isn’t an issue we’re discussing here, Hamilton’s discussion of it leads to some observations on sovereignty which are highly relevant to us.
In an extended discussion Hamilton derives the authority for judicial review from the constitutional facts that the legislature is representative of the people while the written Constitution, embodying the will of the people, is superior to the legislature and its written laws. So for the polity to have any integrity, it follows that some authority has to be the arbiter where the legislature is alleged to have run rogue of the Constitution and the people.

A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

I add to this that the sovereignty of the people, also known as the constitution, is always implicitly superior to the written Constitution as interpreted by the courts if the courts themselves have run rogue. (It’s the same logic as Hamilton gives for enshrined judicial review.)
So we have the implicit order of rank. The people/sovereignty/constitution is prior to the written Constitution, which is prior to the legislature and the written laws, and the courts are to arbitrate between the Constitution and the legislature, while the people’s constitution is also prior to the courts themselves.
I’ve written at length on the corporate hijacking of the law, from the way it’s written in the corrupt legislature to the way it’s enforced by the corrupt executive to the way it’s adjudicated in the corrupt courts (indeed, how access to the courts themselves is increasingly rationed by wealth).
Since we’re talking about the law and the courts, I’ll just give a few links which focus on that aspect. I hope with these and other pieces I’ve done a passable job of making my case that this a rogue system.
The corporatist subversion of law, smuggling in the fraudulent anti-constitutional concept of “corporate personhood”;
Access to the law: Parts one, two, and three.
On the supreme court itself as a rogue, with special reference to the Citizens United case: Judicial Activism and Judicial Abdication.
Hamilton says the supreme court can never endanger liberty “so long as the judiciary remains truly distinct from both the executive and the legislature.” The condition of it losing this distinction has been met. It turns out that Hamilton’s confidence in the institution of permanency in office for federal judges only worked partially well at its best, and has by now ceased working.
Today the supreme court (like the Senate) is among the most discredited institutions. By now permanency in office is a detriment to liberty. The court best represents the inertia of the status quo (which is why it’s lagged behind the Reagan revolution in the other two branches). Much as the Senate is more structurally conservative (i.e. beholden to the status quo inertia) than the House, so the courts are the most conservative – how difficult it is to be placed, the slow rate of turnover, the permanent tenure.
So now that the SCOTUS has become a tool of corporatism, it will remain most intractably such a tool for the longest tenure, if left to itself. Therefore we should clearly recognize and teach its illegitimacy and the unlikelihood that any hope for change can be fulfilled through the courts. From here on the best we might get from the corporate courts are increasingly infrequent pro-public accidents.
So that’s the answer to the questions I asked above about the SCOTUS. It no longer embodies the constitution nor is it a faithful arbiter of the Constitution. It no longer lives up to the principles Hamilton laid out. Since Obama is a hardened corporatist, and since Kagan’s record is clear on the fact that she’s either a sociopathic careerist or a corporate ideologue herself, we can be sure that she’ll act to further carry the court along the logic of the kleptocratic status quo. That’s definitely Obama’s intention for her.
Of course there’s nothing freedom activists can do about this for now. Kleptocracy will traverse the suicidal path of its logic for as long as it can muster the power to do so.
All we can do for now is realize the fact that the supreme court is irremediably corrupt, that it’s hopeless to expect anything good from the courts in general, that the court has zero authority but only the power still invested in it by the kleptocracy. It’s not a part of the people’s sovereignty.
We must recognize this and where possible be teachers of it. Since the nomination of a new member to the supreme court is always a “teachable moment” regarding the judiciary, I wrote these posts. 
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