Good Riddance, Justice Antonin Scalia

Justice Scalia was a neo-fascist who tried to destroy America

Antonin Scalia (1936-2016) died yesterday, and good riddance. Our nation would have been better off if he had never been appointed to the Supreme Court. Scalia did his best to insert fascist ideology into the American legal system and Constitution. He was dishonest, manipulative, and unpatriotic. I only wish he had died sooner, preferably hanged like the Nuremberg criminals whose ideas he promoted.

Scalia was of Italian descent, and was the first-Italian American on the Supreme Court. Too bad, because there were many Italian-Americans with American values who would have made better Supreme Court judges. [disclaimer: I am of one-fourth Italian descent]

I do think being raised a Roman Catholic had a lot to do with his moral degeneracy. Roman Catholicism is at the root of fascism and other authoritarian political trends. But I should point out that many American Roman Catholics traded in their Dark Ages values for American rationalism during the very era that Scalia slimed his way through. [disclaimer: I was raised Roman Catholic and attended Catholic schools through the eighth grade. I have long been a atheist with a positive, nature-centric philosophy.]

Scalia became a committed ultra-conservative Catholic while attending a Jesuit-run school in New York City as a teenager. Depending on how you look at it, he either was smart or just spent a lot of time memorizing Jesuit nonsense. He then attended a Roman Catholic college, Georgetown University. By the time he reached Harvard Law School he was so deeply entrenched in lies and casuistry that he never emerged from the black pit. Instead, he worked hard all his life to suck American down into that pit.

I will leave it to others to try to analyze what was in Antonin's genes or childhood experiences that turned him to the dark side. Nor can I take on his opinions in thousands of Supreme Court cases in a short essay. What I want to convey to readers is his general method of attempting to destroy the Constitution. Contrary to his many eulogizers today, he did not invent these methods. They were conveyed to him. He simply reinvigorated them.

Suppose someone said to you: the right to bear arms, when the Second Amendment was added to the Constitution, meant only the right to own muzzle-loading weapons requiring those who wish to fire them to dump some gunpowder and a bullet into the barrel each time.

Scalia, when it was convenient, promoted "originalism" and "textualism" for interpreting the Constitution. In this theory the words of the Constitution mean exactly what they say and cannot be interpreted in modern terms. They have to be interpreted the way George Washington and crew interpreted them.

Except when originalism and textualism where inconvenient to right-wing agendas, as with gun control laws, which he consistently ruled against.

This enabled Scalia to deny that women have rights other than the right to vote. He denied that Congress could create good laws and programs, unless they were specifically listed by in the Constitution. He even ruled that Congress cannot regulate campaign donations as part of its duty to regulate elections, because that is trumped by the right of wealth individuals, corporations, and labor unions to spend all they want on an election.

But originalism and textualism were a phony agenda, a means to an end. Scalia did not rule that guns using technology more modern than that of 1780 could be used only the the U.S. military and police forces. No, he even voted to overturn parts of the Brady Bill.

Scalia's real agenda was to push the nation towards an authoritarian, right wing, Christian (and evenually Roman Catholic) government. Perhaps with slight variations from the Pope Pius, Mussolini, Hitler, General Franco model. But certainly in the direction of the fascist model.

Some people say Scalia could be charming in person. People said the same thing about Mussolini and Hitler.

Scalia denied the reality of the Evolution of Species. He tried to force religious theology to be taught in public schools.

Scalia denied the rights of people to affirmative action. Affirmative Action is Justice, because it makes up for past injustice. But Scalia wanted to steer the nation towards ever increasing injustice.

Scalia was un-american. He was against democracy and human rights, including the right to the pursuit of happiness, instead of misery under a Pope. He wanted to push America into a purposefully ignorant society of obedient religious nutters.

Scalia was a liar and a scumbag in a black robe, which is pretty much what his Jesuit teachers were aiming for.

Within the Catholic Church Scalia refused to accept the move away from fascism known as Vatican II. While we may be unfortunate that he was ever appointed to the Supreme Court, and to some point he did manage to persuade people to find ways to interpret our Constitution in a fascist manner, we are lucky he was just one of nine.

More on Antonin Scalia by William P. Meyers: Impeach Antonin Scalia [June 28, 2012]

Congress Should Fully Fund the U. S. Postal Service

Postal services are crucial to modern economies and cultures. Messenger and transport services of various kinds go back to the dawn of civilization. Benjamin Franklin realized the importance of postal services. With the other Founding Fathers he built the United States Postal Service (USPS) into the original U.S. Constitution:

Section 8. Congress shall have the Power To ... establish Post Offices and Post Roads.

The list of Powers actually granted to Congress is quite short. Since the adoption of the Constitution various Congresses have taken to authorizing (along with Presidents and Supreme Courts) many, many things that are not clearly intended by the Constitution.

But in the last two decades, what Congress has failed to do is to fully fund the Post Office. Pushed by lobbyists, ideologues, and government-haters, Congress has purposely made a shambles of the Post Office. Their actions come close to Treason against our Sacred Constitution. They have funded corrupt governments abroad, funded corrupt friends at home, but they have not funded the Post Office.

That hurts all of us, except perhaps the stockholders of Federal Express and United Parcel Service.

A strong, efficient and universal Postal Service is a keystone to modern economies. How bad has it become? It costs less to send a package from any city in China to Seattle than it costs to send the same package from Seattle to San Francisco.

Why? Because the Chinese government realizes the importance of postal service to business and economic prosperity. They fund their postal service. So if you go to eBay and are looking for the best price including shipping for anything (like an input into your own American business), the cost of shipping across the Pacific Ocean does not prohibit buying from Chinese merchants.

While electronic communications have had a revolutionary impact on the world, people are still physical and need physical things. Consumers need them and businesses need them. If a business needs a shipping container full of something, they don't need the USPS. But if they are in the business of breaking down that container and selling to individual consumers over the Internet, they need a reliable low-cost shipper.

By subsidizing the Post Office instead of (or even in addition to) oil companies, farming corporations, and road builders, Congress could help to restore the American economy to maximum efficiency. We need a system that delivers paper and parcels to every physical address in America every day. People should not have to wait in long lines at post offices to pick up packages, especially when the packages were sent via rival services and then dumped at post offices for final delivery.

Given that the Post Office charges for its services, it would not take much of a direct subsidy from Congress to get it to peak modern efficiency. Subsidized rates would be available to all shippers. That would encourage consumption and help all the mom-and-pop businesses that have emerged to ship what consumers want directly to their homes.

When you hear some doltish politician is against funding the Post Office, wave a copy of the U.S. Constitution in his face. Ask him to trample on it, because that is what he (or she) is doing when they vote to strangle the United States Post Office. Don't vote for the S.O.B. Vote for someone who honors the Constitution and has some business sense.

Make full funding of the United States Postal Service an issue in the 2016 elections. Demand that candidates take a position. And the only right position is that the USPS be fully funded so it can become the most economically effective Post Office in the world. Let's enable U.S. merchants to include the lure of "free shipping" when they sell to the Chinese, or anyone else in the world.

If the U.S. wants to be number 1 in the world, it needs the number 1 Postal Service in the world.

McCutcheon vs. Democracy, or Free Speech Gone Wild

According to the Supreme Court of the United States, Congress can't pass a law that sets overall limits on an individual's contributions to all federal candidates for office. The Supreme Court says that is unconstitutional because it violates your free speech rights, if you have over $48,600 to spend on free speech in a given election cycle. Leftists will say that this favors billionaires, but I can see millionaires being hit by the cap as well. They also struck down the limits on contributions to political party committees, which was $74,600.

The case is McCutcheon v. Federal Election Commission, No. 12-536.

Next up, is giving a Supreme Court judge a large gift of cash, as long as it is accompanied by free speech and not a tit-for-tat for a particular ruling, legal?

It is going to be hard for ordinary millionaires who don't follow legal disputes closely to get their heads around the new rules. Used to be, when some whiney politician held his hand out at a chicken dinner, you could say "Sorry boss, I'd like to help more but I already hit the $48,600 limit. Perhaps you'd like to accompany me on a trip to the whore houses, I mean ski slopes, of Switzerland?"

$48,600 to a billionaire, or even a $100 millionaire, is like pocket change to us. It isn't even pocket change, it is like fluff, it just accumulates in their pockets, they don't even know exactly how. Five minutes of interest, or the wife missing her spa appointment, or returning some designer boots and handbags, and there it is, the former 2-year cycle federal campaign contribution limit.

Me, I like free speech. Just as I can have a meal that is tasty and will keep me healthy for 1/10,000 of what the same would cost for a billionaire, I have some ideas about influencing politics with my $5 and $10 bills, and I'm sure the new, improved Supreme Court will rule in my favor, even if speechifying this way happens to be temporarily illegal under the unconstitutional laws written by Congress and those pesky State Legislatures.

First, let's review the two key passages from the Constitution.

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations. [Article I, Section 4]

That seems pretty clear. "Manner" seems to cover a lot of ground, including prohibiting horse whipping candidates you don't like, buying votes, requiring Jewish candidates to wear yellow stars. Until yesterday "Manner" included regulating the amount of legal tender non-candidates can donate to the campaigns of candidates.

Opposed to that we have:

Congress shall make no law respecting an establishment of religion, or prohibiting the exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble. [Amendment I]

Free speech is important, but is a law regulating election contributions an infringement of free speech?

If it is, then I think a lot of other laws are infringing free speech. For instance, punching someone in the nose could be free speech, if your fist is acting as an extension of your mouth or pen, as opposed to merely assaulting someone for ordinary aggressive or criminal reasons. Maybe this would only be true if the punched person holds office, or is running for office, or going door to door soliciting votes for someone who is running for office.

Courts have consistently ruled that workers forming a picket line that interferes with commerce (that is, the business they are working for) is not a form of free speech. Maybe that is what we are not getting about Chief Justice Roberts and crew: the campaign limits interfere with commerce. What about a picket line than prevents a candidate from reaching a debate? What about two powerful political parties that exclude third party candidates from debates?

What about blowing Robert's head off with a shotgun? That is probably going too far. What about advocating that someone should blow Robert's head off with a shotgun? As Robert's said, that sounds "repugnant," and neither Gandhi nor your average citizen who thinks we should all obey all of the laws no matter how stupid they are unless they are personally inconvenient would want to split that hair too finely. What about a billionaire paying an assassin more than $48,600 to blow off Robert's head? Well, as best I can tell from Robert's reasoning in McCutcheon, that would be just fine, now. That is just free speech. Of course, billionaires are selective in whom they send their free speech implementers after.

I'm not sure why smoking marijuana is not free speech. Perhaps because not even a billionaire can smoke up over $48,600 in two years, not without help from the wife and kids?

Why isn't stealing from campaign funds (including candidate's using campaign funds for non-political purposes) not free speech? Isn't speaking negatively about something okay? If not, why can campaigns run attack ads?

Why not just abolish the charade of Congress and let the Supreme Court decide everything?

Let's just hope that one or more of the five rich people's whores on the court dies soon, no matter which way. As much as I don't trust President Obama's judgment, I would expect him to appoint at least slightly better replacements.

What can a true patriot do in this situation to prevent the Rule of Money? I would say there are a number of options, but the Homeland Security Apparatus and the current Supreme Court might consider it conspiracy, not protected speech, if I were to mention certain of them.

Second Amendment Needs Amending

When the first ten amendments, or Bill of Rights, was added to the U.S. Constitution in 1791, there were more slaves in the United States of America than there were white male voters (most states required men to own a substantial amount of property to qualify for the franchise).

The Second (II) Amendment stated: "A well regulated Militia, being necessary to the security of the State, the right of the people to keep and bear Arms shall not be infringed."

In 1791 arms were all muzzle-loaded. Pistols, rifles, and cannon required a lengthy procedure to reload and fire. Troops often fired by thirds, so that two-thirds could be reloading and preparing to fire at any one time. Massacres were a team effort: a single man could not reload fast enough to overcome a determined group of defenders.

Much has been made over the centuries of the combining of the phrase about militia with the strong phrase "the right of the people to keep and bear Arms shall not be infringed." Remembering the Revolutionary War, men who emphasized the importance of freedom and democracy worried that a central government controlling centrally-stored militia weapons might more easily establish a tyranny. If citizens held their own weapons, they would be better able to respond to an attempt to establish a monarchy or other dictatorship. A militia itself might be used to establish a dictatorship, as had happened with Cromwell in England only a bit over a century before our own revolution.

I believe "the right of the people to keep and bear Arms," was about personal protection and economic security, not just trying to ensure a republican form of government. A muzzle-loading firearm was a family treasure, especially in rural and frontier areas.

Times have changed. Every adult citizen has had the right to vote since the mid 1960s. We have 220 years of continuous operation of our democratic-republic. It has been 150 years since our only full-scale Civil War. The 4 million inhabitants of 1790 have become 330 million. Guns and rifles are mass produced in factories and even semi-automatic weapons can fire many rounds in a single minute. Automatic weapons can mow down crowds in less than a minute.

We need to ask ourselves, what do we really need out of the 2nd Amendment? And we need to write a new one.

I don't buy the hunting argument against gun control. While a tiny minority of Americans still hunt for food, most hunting is a sport. A game, in which any food production is secondary. I see no reason that hunters should not go back to muzzle-loading rifles and even bows and arrows. I don't see how blasting a squirrel, deer, or wolf with a semi-automatic weapon is much sport. Load your muzzle, tramp throught the wild, try aiming instead of pointing, and if you miss your shot, you have an opportunity to do more hiking.

The same for target practice. Shoot once and reload should be fine.

People have a right to self-defense, but even if you carry a concealed semi-automatic weapon someone can put a bullet in your head before you can pull it out. With semi-automatic weapons eliminated, each of us has a far better chance of surviving an attack. Carrying a one-shot pistol should be adequate for almost all self-defense needs. Having a well-trained, effective police force is a better idea.

That leaves the police, the National Guard, and the federal military forces. They will have modern weapons. That means they will be in a position to abuse their power. But the real power to oppose corrupt police has never been in shooting back. It has always been political. Corrupt police cannot exist without corrupt politicians.

When we say "the security of the State" we mean not just its physical security, but that the government functions in the interest of the people. Preserving the rights of minorities while promoting the general welfare no longer relies on winning a revolutionary war or a civil war. Citizen participation in government is the key to good governance in our modern world.

My candidate for a replacement for the Second Amendment is simple: "The right of the people to self-defense shall not be infringed. The right of the people to democratic control of police, militia, and other armed forces shall not be infringed."

Conservatives, who are more likely to be pro-gun than Moderns, in many other cases have argued for the Original Constitution. They argue that the powers of government should be limited to what was written in the Constitution in 1789. Moderns typically believe the phrases of the Constitution should flex to deal with the real situation on the ground. In this case watch the arguments go into reverse.

I believe it is fair to use the Original Constitution style argument to conclude that the Second Amendment only gives the people the right to keep and bear arms that were available when the amendment was passed in 1791. That should be the standard of the Supreme Court and state courts while we are in the amendment process.

Conservatives will argue the contrary, thereby undercutting their whole bundle of doctrines based on refusing to see that times have simply changed. Technology has changed, commerce has changed, knowledge has changed, culture has changed, and people themselves have changed. So too must government change and the Constitution interpreted in light of developments.

If we try to enact more gun control without amending the Second Amendment, we bring the very nature of the Constitution itself into question because the wording of the amendment is so clear. Amending the Constitution is difficult, but it is the right way to proceed in a nation that uses a Constitution as the basis of law.

Let's amend the Second Amendment. It should have been done long ago.

[This essay first appeared as a Mendoday editorial]

Impeach Antonin Scalia

Antonin Scalia's partly concurring and partly dissenting opinion in Arizona v. United States is not a simple prejudiced, racist misreading of the laws of the United States. It is as close to treason as one can get in the United States of America without actually, as the Constitution defines treason, "levying war against them, or in adhering to their enemies."

Justice Scalia begins his argument by asserting "The United States is an indivisible 'Union of sovereign States.' Highlander v. La Plata River & Cherry Creek Ditch Co. 305 U.S. 92, 104 (1938)." That individual States are not sovereign is obvious from hundreds of Supreme Court Decisions, even infamous ones like Dred Scott. Scalia's argument is totally dependent on presenting careful selections from U.S. history as if they were strong precedents.

In fact the cases and historic examples he uses have been discredited, or have only minor significance. Given his attitude, it is surprising that Scalia did not cite the declarations of independence of the States that joined the Confederacy, and then forget to remind us that the Confederate States lost the Civil War and had no Supreme Court ever ruled that they had a right to declare independence.

Scalia even cites the (pre-Constitution) Articles of Confederation, neglecting that they were superceded by our Constitution, which created a nation with a federal system in which the national government, including its Supreme Court, are the supreme law of the land.

My opposition to Scalia's opinion is not meant to detract from the rights of States, and of the People, and of the limitations of the power of the central government outlined in the Constitution. It is not a problem for me when Scalia or any American argues for states rights when they actually exist. Scalia goes much further: he joins the rebels of the Confederacy, using their very arguments, and asserting boldly each individual State is sovereign.

Justice Scalia cites the Kentucky and Virginia Resolutions to support his views, as did the rebels of the Confederacy. These Resolutions are part of our history, but they amount to an opinion that was not ultimately supported by our people or government. Not by most individual states most of the time, not by any Congress, never by a President (not even by their authors, Jefferson and Madison, once they became Presidents), and not by any Supreme Court justice except the rebel Scalia. States cannot judge laws passed by Congress (and signed by a President) to be unconstitutional. That judgment is a duty of the Supreme Court.

A Supreme Court judge is not supposed to cite the losing sides of arguments as precedents. True, the Supreme Court occasionally overrules precedent, as when Brown v. Board of Education began correcting prior decisions that had limited the human rights of non-white citizens. Scalia, in Arizona v. United States, is not simply re-interpreting the Constitution, straightening out some flaw in its prior application. He is attempting to re-write history, law, and the Constitution, and to break up the United States into 50 separate nations.

At the beginning of Section II Scalia writes "One would conclude from the foregoing that after the adoption of the Constitution there was some doubt about the power of the Federal Government to control immigration, but no doubt about the power of the States to do so." But one's conclusion would be based on Scalia's editing of history to distort the whole cloth of law.

Scalia only reluctantly accepts that the federal government can control immigration "not because of the Naturalization Clause but because it is an inherent attribute of sovereignty no less for the United States than for the States."

So we see the rebel's reasoning clearly: Sovereignty is Supreme, and Scalia and his gang of right-wind legal thugs are to be the interpreters of the meaning of Sovereignty. Does Sovereignty mean trampling on human rights? To Scalia it does. Does it mean trampling on the U.S. Constitution? That is apparent from Scalia's opinion.

After falsely declaring each individual state to be Sovereign (in which case there is no real need for a United States) Scalia claims the case was "about a federal law going to the core of state sovereignty: the power to exclude."

Scalia would exclude illegal immigrants from Arizona. That is not a radical opinion. The problem is the basis of his opinion. Scalia earlier stated who can be removed by a sovereign State: "certain persons, or for certain particular purposes, according as he may think it to the advantage of the state," "obnoxious aliens" (even perhaps bearing Green Cards), "paupers, vagabonds," "persons with contagious diseases," and "freed blacks."

In other words, Scalia would exile anyone Scalia did not like. And a State could exile anyone it did not like. Perhaps Jews, Arabs, Blacks, Hispanics, homosexuals, atheists and agnostics, or the unemployed. Perhaps a state ruled by the Republican Party would exile Democratic Party members. The sick and disabled might be cast out. It all depends on who controls a State.

This is madness. Preaching this poison, which is done all too much within the United States of America, is protected by our rights to freedom of speech and freedom of the press. Sitting on the Supreme Court trying to rule based on this poison is not protected.

Antonin Scalia has exceeded the bounds of his appointment. He should resign. If he does not resign, he should be impeached. If Congress fails to impeach him, human rights in this nation will be gravely in danger of disappearing.

Corporations Are Alcohol, Not Persons

There is a bit of a movement about these days to abolish corporate personhood. The modern version of corporate personhood in the United States is not that old, dating just from 1886. The contemporary movement to abolish corporate personhood can be said to date from 2000. [See Santa Clara Blues: Corporate Personhood versus Democracy, 2000]

Suppose corporate personhood is abolished. What then are corporations? I have argued in the past that they are property: "Slavery is the fiction that a person is property. Corporate Personhood is the fiction that property is a person." [quoting myself circa 2001]

But it is never that simple. What kind of property are corporations? Under the original U.S. constitution, slaves were property, but a peculiar kind of property that could be tried as criminals if they broke the law.

The Constitution does not mention corporations at all. For practical purposes business corporations (as opposed to say a city or non-business organization considered as a corporation) were left to the individual states to create and regulate.

What does the Constitution say about property? One interpretation of the creation of the Constitution is that it was all about protecting private property. Certainly that was an important consideration for the rich white men who wrote the original Constitution, but property is protected mainly by protecting the political power of the colonial elite. Looking to the Constitution itself:

The Preamble does not mention property, but then it was clearly meant as rhetoric.

Congress can give "Authors and Inventors" exclusive rights to their works for a limited period of time. We now call this intellectual property; I don't see corporations as a form of intellectual property.

So not only are corporations left out of the original Constitution; property, specifically as property, was also left out. That people have property and that laws affect property was an assumption so common that no one felt it necessary to make specific reference to property. We must look to the Amendments to see anything about property.

The original Constitution does not mention alcohol either, but it does (in Article I, Section 8) give Congress "Power to lay and collect Taxes, Duties, Imposts and Excises." This was soon shown to include the power to lay an excise tax on alcohol.

In the Bill of Rights, in Amendment III, the government is forbidden to house soldiers in private houses without the consent of the owners. Houses, of course, are a particular type of property, usually personal property but sometimes belonging to the government or corporations.

In Amendment IV the government is forbidden to search houses and "effects" without a search warrant, which provides a certain type of protection for property, and makes certain properties, houses, a shield for persons.

In Amendment V the government cannot "deprive" a person of "property" without due process of law. "Nor shall private property be taken for public use without just compensation." Of course, taxes (including excise taxes) are assumed to be the exception to this.

That is it. It is assumed that people, including judges and Congress, know what private property is, and what boundaries it may present to federal power.

Alcohol comes up twice in Amendments: in XVIII "intoxicating liquors" are made illegal. That's Prohibition. In Amendment XXI this prohibition is repealed, although individual states may continue with their own Prohibitions.

So why do I want Corporations to be treated as Alcohol? They have many of the attributes of alcohol. They can let people get out of control in a destructive manner, unleashing greed that is destructive to the ethics and economy of the American people. They can do some good in certain situations. I believe, for instance, that the beer (one bottle) I drank last night helped me to relax, and was good for my health. In other words, judgment is involved.

That alcohol is a form of private property that can be regulated and taxed was made really clear, really early under the new Constitution. Alexander Hamilton, the first Secretary of the Treasury, proposed the first excise tax on alcohol, which Congress passed in 1790. Western farmers (back then western Pennsylvania was the West) produced whiskey from their crops because it retained the value of the crop but was easier to transport and sell to the fun loving early Americans of the east coast. They started protesting the tax in 1791. As is typically case, protest got nothing done, so they essentially rebelled. George Washington road at the head of an army to suppress the Whiskey Rebellion.

Only a handful of rebels were killed, but the ability of the Feds to tax and regulate whiskey was firmly established.

I think that corporations need oversight. They are too important to our society to let them run around willy-nilly like a bunch of anarchists or hippies. Of course some corporations need more oversight than others. Mom & Pop corporations probably need no federal regulation except in extreme circumstance. Goldman Sacks probably needs two federal officials looking over the shoulder of every employee to keep it in line.

If you want to help abolish corporate personhood, check the MoveToAmend site to find an organization you can join. In the meantime, think about my Corporations are Alcohol idea.

Supreme Court on Healthcare Mandate: What Else Would Go Down?

The conservative judges on the United States Supreme Court would very much like to find that requiring Americans to buy health insurance is unconstitutional. Their problem, if they rule that way, is that it could endanger the legal basis of much of the corporate security state and its control over the economy.

In Department of Health and Human Services v. Florida (No. 11-398), it is being argued by the State of Florida and opponents of the Patient Protection and Affordable Care Act that the federal government, in this Act of Congress, exceeded the powers granted to it by the Constitution. Supporters of the Act will want to rule that it is constitutional, in line with many prior findings, over the course of two centuries, that the Commerce Clause effectively allows for national laws telling citizens what to do or not do about all manner of things.

At the mass media story line level, this case is about whether the federal government can tell a citizen to buy medical insurance, and fine any citizen who does not do so (just $95 per year in 2014, but rising to $695 per year by 2016). Or, and this is important, to put it in the negative: citizens may not walk around without having some sort of medical insurance.

If you think about it for a moment, the federal government tells us we cannot do many things, even if we don't need to cross state lines to do them. We cannot grow, harvest, consume or smoke marijuana, for instance. We may not own heavy armaments. We can't manufacture a fleet of cars that only gets an average of 12 miles to the gallon, nor can we use American Eagles for target practice.

If the Supreme Court says that we cannot be required to buy health insurance, the entire house of cards may collapse. There are a lot of cards that conservatives like, and a lot of cards that liberals like, and probably some cards that both teams like.

The liberal position has consistently been that the federal government has all the power it wants as long as it does not violate certain key sections of the Constitution. The building of this position began in Gibbons v. Ogden, [22 U.S. 1 (1824)], where the Supreme Court decided that individual states could not grant monopolies to steamboat lines that prevented competing companies from offering interstate service. It made a big leap forward when railroads and other trans-state corporations began to be regulated in the late 1800's.

During the New Deal, in the 1930's, the Supreme Court at first resisted, and then admitted (after some changes of personnel), that the power of the federal government to regulate commerce, and anything related to commerce, was virtually unlimited. Famously, in Farmer Filburn (Wickard v. Filburn, 317 U.S. 111 (1942)), the Court ruled that the Department of Agriculture could tell Roscoe Filburn how much wheat he could grow on his private property, even if the wheat itself was not sold, but was used to raise chickens.

The current case is not about States Rights, but has a similar feel to it. Conservatives want federal laws when that helps them get their way, with states rights allowed to stop federal laws they don't like. For once Liberals are completely in agreement: they want federal laws when that helps them get their way, with states rights allowed to stop federal laws they don't like. For instance, when slavery was federal law, liberals wanted states rights to apply so that they could have slavery-free states. Later, when trying to enforce civil rights legislation in the 1960's, liberals were against those very same ideas of states rights, proposed by Democratic Party leaders in the South as a means of preventing segregation.

What we are likely to see is the conservative members of the Court trying to distinguish the Affordable Care Act from other laws that they wish to keep in place, like the marijuana laws and the laws against various tactics that unions would like to use.

We might, in fact, be about to see the Gruel of Law cooked up before our eyes. We may see the pure power of having 5 like-thinking judges on a Supreme Court. They are likely to try to find a way to disembowel the Affordable Care Act while protecting their favorite federal no-nos, like the war on recreational drugs.

I particularly hope that Justice Clarence Thomas writes an opinion. In the liberal-to-left spectrum Thomas is often derided as not just plain wrong, but as beneath the intellectual level as other members of the court. I tend to disagree with Judge Thomas on issues, but I have read a number of his opinions, and found they were well-argued, and illustrate lively intelligence. Thomas dissented in Gonzales v. Raich, in which the majority ruled that the Commerce Clause gives the feds the power to criminalize patients who grow their own medical marijuana. So if he votes against the mandate in the current case, at least he could claim consistency. Ginsburg, Stevens, Kennedy, Souter and Breyer all voted to persecute sick people who use the herb. If any of them (of those still on the court) vote against the Affordable Care Act, they have a lot of explaining to do.

Defend Democracy from Republic Advocates

Most Americans assume that Democracy is still a central American ideal. It may not work as well as we might like, but one of our jobs as citizens and as a nation is to perfect Democracy.

A dangerous movement exists in our nation to take away voting rights from most citizens so as to turn back the clock and return America to being a Republic run by a limited set of people having full citizenship. They are able to confuse many honest citizens because the terms Democracy and Republic are not necessarily opposites. A Republic in which every adult person has recognized rights, including the right to equal treatment and the right to vote for elected officials, is called a Representative Democracy. The history of the United States of America, under the U.S. Constitution, is largely a history of moving from a corrupt Republic to a shining Democracy. [See America: Republic or Democracy?]

This anti-democracy movement started on the fringes of the far right, but in the last few years has gained traction among the Tea Party and even among some mainstream conservative Republican Party members. To make headway it lies about the differences between Democracies and Republics. It purposefully conflates the Democratic Party with democracy and the Republican Party with republicanism (of the type it espouses). It revises American history to deceive the American people about the genesis of our nation, our liberties, and the creation of our Constitution.

The Republican Party was not named for the idea that only rich white men should vote, as was the case when our Constitution was written. It was called the Republican Party because the best name, Democratic Party, was already taken. There is nothing wrong, or inherently bad, in the concept of a Republic. If anything, a key concept of the Republican Party when it formed in the 1850's was that the Democratic Party was not democratic enough. The Democratic Party was the party of slavery.

The Democratic Party arose when property requirements to qualify for the franchise were being reduced and eliminated in the early 18th century, allowing all white male citizens to vote for elected officials. This was a critical turn in U.S. history, and within the racialist and sexist thinking of that era meant that our republic was becoming more democratic. Andrew Jackson and his cronies saw the potential in becoming leaders of these newly enfranchised voters [See Internet Biography of Andrew Jackson] and so created the Democratic Party.

The Republicans did not advocate taking away rights from poor white males. They advocated eliminating slavery and extending the right to vote (and other rights) to non-white ethnic groups, notably African-Americans. Thus, in their early history, Republicans also helped to forge our democracy out of the entirety of our citizenry.

Both Republicans and Democrats later supported the right of women to vote, extending our democracy further with the 19th Amendment. In the 20th century the Republican Party championed the right of African-Americans living in the old south to vote. In the 1960's the Democratic Party finally overruled its segregationist wing and joined in making our nation one where every adult could vote and was equal in the eyes of the law.

Two Big Lies are being told right now by the anti-democracy demagogues. One is that only Republics protect human rights. They claim democracies mean majority rule and the ability of majority to take away rights (and private property) from individuals. Yet we have a democracy that protects individual rights better than most real Republics ever have. Republics typically are run by minorities that trample on the rights of majorities. Communist Party leadership of Soviet Republics is one recent historic example. More commonly in Republics voters and rulers have been limited to a small class of rich people. In American history our early republic was run by slave masters who refused to treat slaves (and American Indians, and even middle class white men) as having the rights listed in our Bill of Rights.

The other big lie is that God, through our Founding Fathers, embodied in our Constitution, mandated that the United States would be a republic with a limited franchise. They point to where the Constitution ensures that state governments are to have "a republican form of government." They conveniently forget that a Republic can be democratic or undemocratic, and still have a Republican form (elected officials instead of a monarch). They failed to note that the most powerful branch of government in the new Federal constitution was the House of Representatives, which was constituted according to democratic, not merely republican, ideals. The House may exhibit all the imperfections of humans and politics, but it successfully accomodated the extension of voting rights to all adults.

Don't think this issue will go away. There is money behind it and forceful evil intent. Advocating disenfranchising American citizens may be protected speech, but it verges on treason.

These people need to be stopped. Their ideas must be soundly refuted. Help create a body of public opinion that will reject their poisoned mind set. Forward this essay, speak out, or write your own commentary on this critical issue.

Legal Basis for the Separation of States

Suppose the citizens of one of the states constituting the United States, for whatever reason, wanted to separate from the United States. How could they do that?

So far in U.S. history there is only one precedent. The states of South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, Texas, Virginia, Arkansas, Tennessee and North Carolina, by the end of 1861, withdrew from the United States of America by votes within their states. President Abraham Lincoln, supported by a Republican Party-controlled Congress, simply made war (the Civil War) on the untied states, and the federal government won that war.

Since then the predominant thinking in the re-United States has been that a state cannot separate from the Union because military force will be used by the federal government to overcome any such manifestation of local democracy. Kind of like when Czechoslovakia tried to opt out of the Soviet Block. Because the issue of slavery was entangled with the issue of separation of states during the Civil War, it is still hard to have a rational discussion of the topic.

Clearly the U.S. Constitution allows for an amendment that would either allow a particular set of states to separate, or would set rules for separation in general. In fact, one could dissolve the entire Union with a Constitutional amendment. However, before writing such an amendment, we should look at the Constitution as it now stands.

Reading the Constitution, you will not find a single phrase that says that a state cannot withdraw from the union. Nor does it say that a state can withdraw. This is not that different from many issues of federal powers. How broad the specific powers granted the the Federal government are to be in practice has been a constant source of argument and litigation since the ink was dry on the original Constitution.

A majority of Americans opposed the Constitution as written at the time. To get it passed by the nine required states a great deal of bribery and intimidation was used. Also, it was promised that a number of amendments would be appended to the Constitution, to make the package more attractive.

Regarding the separation of states, clearly Amendment X, the Tenth Amendment, has the greatest bearing. Many people voted for the new Constitution with the idea that their state could withdraw from the Constitution if the whole experiment did not work out. They feared a central government that could become as tyrannical as the British Empire had been. Hence the amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

I don't think you can get more clear than that without illegally declaring war on your neighbors, as Abraham Lincoln did. No where in the Constitution did it say that the Federal government could prevent a state government from withdrawing. The power to decide whether to be part of the United States was clearly a power "reserved to the States."

To force people to be governed against their will by any government, including the Federal government of the United States, is against the natural right of the people to govern themselves. That was recognized by the architects of the American revolution, or at least was prominent in their rhetoric.

If citizens of a state should ever decide they want to separate from the United States, I suggest they go about it with more care than the State of South Carolina did in 1860.

First, the government of the State in question should write a state law saying that it has they right to separate and is indeed separating. Then this should be the basis of trying a case in the Supreme Court of the United States.

The Supreme Court is most likely, in fact certain, to rule that the State cannot secede by virtue of its own legislation. The point is not to expect an honest verdict, but to get a statement of why they cannot rule themselves, and of the construction of the Constitution the court uses to rationalize this un-democratic ruling.

Then, having been ruled to still be part of the United States, the state needs to introduce legislation in the U.S. Congress allowing it to leave. Its leaders should also try to pass a U.S. constitutional amendment making it clear what the rules are for leaving.

Of course, this whole path could be cut off by a Constitutional Amendment saying, roughly, "no State shall be allowed to separate from the United States, and the President and Congress shall have the power to use the military to enforce this provision."

The United States went to a great deal of trouble to break up the former nation of Yugoslavia just a couple of decades ago. We broke Vietnam in half in the 1950's when we did not like the projected outcome of elections there. I don't see why U.S. states should not be granted the same rights of divorce that the U.S. empire has so gladly imposed on weaker nations.

On the other hand, no one should want a messy divorce. Any such separation should be mutual and amicable.

But, given sufficient unaddressed grievances, a Declaration of Independence, backed by the right to self-defense, may be worth a try.

Richard Grossman, Compost in Peace

Richard Grossman, a noted political activist in the United States of America, died this November 22, 2011. Richard was known for his criticism of for-profit corporate control of the American (and global) political system, economy, and culture. Richard had no issues with criticizing other dissidents who did not agree with him on strategy and tactics. To honor his memory, I will not refrain from criticism (as is typical in a requiem) while I share my personal experiences about Richard.

Richard tried to influence the discourse of American environmental and pro-democracy dissidents, with varying degrees of success. I had never heard of him until my wife, Jan Edwards, began working with Alliance for Democracy and made herself the first modern crusader against the legal doctrine of corporate personhood (c. 1999). I could not say exactly when Richard came into the mix, as I was never "wowed" by him or his organization, POCLAD (Program on Corporations, Law and Democracy).

But at some point, when Jan was determined to get the City of Point Arena to pass a law against corporate personhood, I became aware that she was talking on the telephone to one Richard Grossman, among others. Richard never really adapted to computers (he was born on August 10, 1943), but large packages of xeroxed copies of old articles about corporate power began arriving at our house.

Jan had a fixed idea that corporate personhood was the central evil of the modern era. Richard did not agree with that; he tried to expand her attention to other issues of corporate power. But he did provide us with a lot of material about corporate personhood, notably Personalizing the Impersonal: Corporations and the Bill of Rights by Carl J. Mayer [Hastings Law Journal, Vol. 4, March 1990] and a series of articles from the 1950's by Howard Jay Graham. These were fine, but too much, too fast to serve as introductory material.

No one at POCLAD had written anything substantial about corporate personhood. Jan, assigning duties to our small local team of activists, decided I should write the first modern introduction to the topic. This resulted in Santa Clara Blues: Corporate Personhood versus Democracy.

With a million things going wrong in the world, do-gooders argue among themselves about priorities, strategies and tactics. Richard stated, strongly, that he thought the environmental and social justice movements were taking the wrong approaches. He believed that because of corporate power activists might win an occasional point (the Clean Air Act, or temporarily protecting an individual habitat) but were regularly losing ground on the whole.

Richard Grossman wanted to challenge fundamental legal doctrines that (with money) are the foundations of corporate power. These include, but are not limited to, corporate charters being treated as contracts, the commerce clause of the U.S. Constitution, limited liability, and the ability of corporate money to influence elections.

The question activists asked, in return, was how was that to be done? What was to be sacrificed (streams, mountaintops, oceans, human beings) in the meantime if activists stopped what they were doing and all ran to law libraries and spent a half-century arguing for legal reform?

Richard's point was not to train more environmental or social justice lawyers. They are plentiful enough, so much so that many can't earn a living, or even end up being employed by corporations. He did not want to fight corporations within the law. He wanted to change the law.

Changing the law really happens in only one of three ways. You can win Supreme Court cases. You can change the law with legislation. Or you can have a revolution and write the law anew.

The Revolution never came in Richard Grossman's lifetime. This is the sad fate of most revolutionaries. I cannot fault Richard for trying, and for thinking outside the usual boxes.

Knowing a little history, however, makes one wonder if Richard ever deserved to be the intellectual leader of American dissidents, as was clearly his wish. Richard moved from being the executive director of Greenpeace in the 1980's to a messenger of the nature of corporate power.

It was not a new message. You probably did not know old-time American Communist Party members, but they talked a lot about corporate power. It tied in well with their strategy of radicalizing labor unions so that the working class (or at least its authoritarian vanguard) could come to power in this bastion of capitalism. Anarchists, too, long pre-dated Grossman in their analysis of the System, but did not care to try to change obscure doctrines like corporate personhood. They wanted, and want, to go straight to building a new society out of the ashes of the old.

Without the legal framework of corporate power we would most likely just have private ownership of large businesses, much as is the case in the Soviet Union today.

How do you de-power the ruling class when they can buy politicians and courts and, yes, can even divert activist organizations simply by strategic donations of money? Richard could never answer that question. Perhaps simply raising taxes on the rich, in particular with estate taxes, would do the trick. Taxes could break up the growing "title of nobility" that the Constitution warns against in Article I, Section 9.

Perhaps with a third party. Perhaps with the tactics being practiced by CELDF or MoveToAmend (both groups spawned by Grossman). Perhaps by anarchists, or communists, or social democrats, or revolutionary environmentalists. Why, it is not absolutely impossible that reforms could come from the progressive wing of the Democratic Party.

No one knows. Richard Grossman's greatest trait was his willingness to revise his views. He kept revising them until the day he died. Maybe if more people did more thinking outside their usual boxes, we might collectively find a solution that can transition us to an environmentally sound, ecologically sustainable, and culturally rich world.

Occupy Political Offices

"Good authors too who once knew better words
Now only use four-letter words
Writing prose.
Anything goes."

When Herman Cain can put his hands upon
Any skirt that he should chance upon
Heaven knows,
Anything goes.

I chanced upon yet another ancient surprise this weekend, the Child Labor Amendment, proposed in 1924. Mostly child labor has since become illegal or highly regulated, but in 1924 children were still working under appalling conditions in a variety of industries. Not only was there not a federal law prohibiting child labor, but the Supreme Court had struck down, over the years, a number of state laws prohibiting or regulating child labor (just as they had struck down other labor laws.). For instance, in 1923 the Supreme Court ruled that even in the federal district of Washington, D.C., a minimum wage law for women and children was unconstitutional, in Adkins v. Children's Hospital.

The Amendment was opposed not just by the crueler members of the business community, but by the Catholic Bishops. In their wisdom they felt the amendment would lead, eventually, to government control of child rearing. In Catholic Countries they took a different attitude. There the Church used the Government to force Catholicism upon all children. That would be a central dogma of fascism in the next two decades, and in Spain until the death of General Franco.

Text of this amendment, worth considering (for style, not content) by those who are moving to amend the U.S. Constitution:

Section 1. The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age. Section 2. The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress.

28 states passed the amendment before the drive petered out.

At least they needed laborers in the 1920s. The U.S. people had made out like bandits in World War I. In fact, the U.S. people acted exactly like bandits in World War I. We sold our excess products to the warring parties and loaned Britain and France vast sums of money. Then we entered the war at the last minute and helped Britain and France to loot Germany. Holding most of the world's money at the end of the war, and reaping interest and principal on the loans, enough trickled down from the big New York banks to allow the entire nation to have a party that included a real estate boom and a stock market anyone could get rich playing.

Then things fell apart. Capitalism fell apart without any help from government regulations. Don't forget that.

Occupy Wall Street and its spawn continues to evolve and exchange DNA with labor unions and political ideas and trends of all kinds. Can Occupy, or some related organization-like substance, do what the Tea Party did in 2010? Which is to say, convert ideas into practice.
That would take something the Left is very bad at: winning political offices. Winning here meaning elected our own people, and ones with backbone, rather than allowing career politicians to slightly change their election rhetoric and appear to be aligned with us.

We have a big disadvantage compared to the Tea Party: a lack of billionaires willing to fund our campaigns in the way necessary to actually win political elections. But we also have some serious cultural issues of our own holding us back. First, like the Tea Party, we mostly don't really like government. But, like the Tea Party, we should not let that stop us. We should capture the government that is there now and make it smaller. We should cut Pentagon spending and eliminate an entire branch of the armed services, the Marine Corps. We should minimize the DEA. We should abolish the system of farm subsidies. We should kill federal transportation dollars and allow the states to take care of their own highways.

We should also close all tax loopholes used by the rich. All capital gains in liquid assets (stocks, bonds, and other financial instruments) should be taxed at the regular income tax rates, with capital gains taxed the year they accrue (not waiting until an instrument is sold, as is currently the practice). The oil and gas industry should lose its subsidies and tax breaks. Once we start paying down the deficit run up by the Pentagon and oil companies, we can adjust tax rates to optimize happiness for the rest of us.

But to do all that, we need our own people in office. We need the kind of backbone in the state legislatures and Congress that the Tea Party has now. And that means pissing off the Democratic Party establishment. Pissing on them until they go away and we can occupy their old offices. Face up to reality: in the short run we can't occupy many offices held by Republicans. But we could occupy a significant number of offices held by establishment Democrats.

That means taking risks, just like the Tea Party took risks in trying to win offices from the Republican Party. The mainstream and Wall Street Republicans told the Tea Party that if they ran their own candidates in primaries, even if they won the primaries they would just lose the general elections and put more Democrats in office.

For decades I have heard the same argument from establishment Democrats: run your own candidates in the primaries, and even if they win, they would just lose the general elections and put more Republicans into office. We wouldn't want that, would we?

People are mad at incumbents, but they need some outside agitation to make offices actually change hands. This is the opportunity of a lifetime. Now is the time to start organizing campaigns for 2012. It is not easy. The banks have robbed us, and the law allows them to give themselves bonuses. We are not allowed to rob banks to finance our campaigns; that would be against the gruel of law. But ways and means must be found, or America will become increasingly like a capitalist gulag for the vast majority of American citizens.

Federal Education, Cordell Hull, and States Rights

I am reading Cordell Hull's Memoirs. This is the last major work I plan to take notes on before starting on the final draft of The U.S. War Against Asia. I knew little about Cordell Hull except that he was Secretary of State under President Franklin D. Roosevelt, which meant he played a major part in the events leading up to the Battle of Pearl Harbor. This just illustrates how even history buffs like myself tend to think in terms of Presidents, when actually Congress is the body that is entrusted to govern our nation. Problem is, there is a lot of history, so it is a lot easier to remember the names and actions of a few Presidents, rather than the tens of thousands of citizens who have been elected to Congress since 1776.

Cordell Hull was from a Confederate family in the hills of eastern Tennessee, and he took an interest in politics from an early age. He reports:

"It was at that age, and at Celina, that I saw my first daily newspaper. This was the Nashville American. In that year, 1886, a Senator from New Hampshire, Henry W. Blair, introduced a bill for Federal aid to State education. That was the major issue in the 1886 campaign. I read about it avidly in the newspaper, and we discussed it among ourselves. The bill was considered to be an attempt to infringe on State rights and to give the Federal Government power to go down into the States and interfere with their education systems. The amount of Federal aid the Senator proposed was only nominal at the time, but the incident is illustrative of how serious such issues could be in those days." [Memoirs of Cordell Hull, New York, The Macmillan Company, 1948, p. 17-19]

The U.S. Constitution says nothing about education. It is a fair argument that for a very long time education was a matter reserved to states and localities. On the other hand, the Constitution says nothing about education. It does not explicitly say that Congress can't spend money on education.

I don't know the full history of federal funding of education. Aside from research grants to universities, I believe Head Start and the School Lunch program were among the earliest large scale programs. Head Start was authorized in 1964. But the School Lunch program was initiated much earlier, in 1946. Federal money for school lunches for children from poor families would not, in itself, have any effect on how local schools were run, like the curriculum or teaching methods. It was not even used as a wedge to desegregate (black and white) schools.

I was on a local school board for 7 years, and I can only describe federal funding of public schools as a mixed blessing. The amount of "paperwork" involved, mostly computer work now, was staggering. The federal money was not just targeted, in the sense that it could only be spent on one type of thing (hence the paperwork to prove that). It often brought rules with it that were really unrelated to the cause for which the money was given. This included the school lunch program. Do this, don't do that, or we will take the school lunch money away.

I'm not sure how effective the federal rules are, including No Child Left Behind. Intentions, I think, were good. It just is not possible to legislate good behavior of students, parents, or teachers (or school boards, for that matter). I used to joke that my School Board should just pass a resolution that "All children in the district shall behave all the time." Like that would put an end to our discipline problems. Behave, Suzy, or we'll send you to detention at the White House Oval Office. Fail to read at grade level, and the First Lady will read with you at night when you would rather be playing video games.

I believe that, on the whole, schools would be better off if they were governed by local school boards using local (including statewide) funds. Sure, some districts would be poorly governed, but most would not, and none of them would be stuck with federal paperwork and misguided guidelines. The main problem with the all-state and local solution is that not all states and localities have healthy economies that can easily support good schools. You can see how a collapsing rust belt city, or a poor rural area, would be unable to provide good schools with local funding. Worse, anti-tax states and localities might refuse to raise taxes needed to fund good schools, even though their economies were strong enough to support the additional taxation.
Leaving this educator, on the whole, feeling that we need a more pragmatic approach to funding.

Those who believe in the wisdom of a national education system should work for an amendment to the Constitution that would give Congress the power to run or at least oversee the public schools of the entire nation, using a federal tax base. Those who want a states-only education system should try to pass an amendment to forbid the federal government from interfering with state education systems.

The rest of us should aim for excellence and hope to muddle through. Send federal money, not a complex set of rules and regulations that take up too much teacher and administration time. Increase the local tax base for public education. Focus, district by district and school by school, on what (and who) works. Some things may work in every district in America, but a lot of actions need to be district specific, school specific, even child specific. Large bureaucracies can have their beneficial moments, but they are notoriously bad at dealing with rapidly changing specific situations.

Our Socialist Constitution Framers

The Tea Party clan has been infused with the idea that there is a Fundamentalist Constitution. They say this is the U.S. Constitution as understood when it was written, plus the Bill of Rights, which is its first ten Amendments. Tea Party types like certain of the amendments, like the part about citizens being able to own automatic weapons (and, arguably, artillery), and the one about powers being given to the federal government not being meant to infringe on the powers left to the States. To reinforce this position with metaphysics, most of them insist the Constitution (but not the later income tax or civil rights amendments) was written by God Himself, though apparently he forgot to sign the document.

Aside from having to ignore much of what was written about the Constitution when "the people" (rich white males, mostly) were thinking about whether to vote for it (a majority probably voted against it, but that is another story), there is a big problem with the Fundamentalist Constitution:

SOCIALISM

Yes, it seems our Founders wrote socialism right into the Constitution, and it has been a specter haunting America ever since it was sent out for ratification on September 17, 1787.

The Framers of the Constitution actually thought government, including the federal government, could do some things better than private industry.

Let us enumerate them (mostly from Article I, Section 8):
"Provide for the common Defense" and "raise and support armies" and "a navy" [rather than hire out the job to mercenary private businesses]
"Establish Post Offices and Post Roads" [rather than contract out the job]
"the erection of Forts, Magazines, Arsenals, dock-Yards and other needful buildings," in the various States.

Let us call these things what they are: socialism. The government owning and running large organizations that are not essential to government itself. Anybody that thinks that our military is not a socialist organization has got a mental blind spot. Modern socialism of the authoritarian sort (Marxism Leninism) is largely modeled on military organizations.

But then, the real founding fathers had experienced and even studied reality, including the reality of mercenary armies. They were influenced by ideology (Thomas Jefferson more than others), but they were mostly powerful men, from powerful families, with plenty of school-of-hard-knocks experience. Think back to the Boston Tea Party itself. That gang of ruffians was not just protesting a consumption tax of the exact kind that Tea Party politicos like Herman Cain are proposing to burden us with. They were protesting against a private company, the East India Company. The tax was necessary, according to the British government, to pay off war debts. And what is our current vast national debt but a war debt?

Even in 1787 some things just made more sense to do through government, rather than through private industry. There are forms of Socialism that say a lot more should be owned and operated by the people through their government, and even forms of socialism that would have no government at all, but worker ownership of all businesses. I'm not saying any Framer was in that camp. They were, I repeat, pragmatic men.

Our Framers furiously debated the articles of the Constitution. Then the voters in each state debated whether to adopt the document. Socialism is not mentioned in the Constitution, but neither is Capitalism or the theory of free markets.

If some people, despite all the evidence of history, are against having a government that does its best to help its people cope with the difficulties inherent in reality, that is fine, we can debate that view.

Nothing they can do, however, can undo the fact that the postal system was a business specifically selected by George Washington and crew to be run by the government, for the people. That is not an all-encompassing system of socialism, but it is socialism as a pragmatic response to solving a particular human problem, the need for a postal system.

Free Amina Farah Ali

Amina Farah Ali is an American citizen living in Minnesota currently being tried for allegedly sending aid to al-Shabaab, a political group in Somalia that has been fighting (like pretty much everyone in Somalia) with the corrupt, cruel, unpopular U.S. sponsored puppet government there.

She refused to stand for the judge, one Chief U.S. District Judge Michael Davis. He has banned her from the courtroom. Apparently he thinks the traditional show of respect for the court is more important than following the U.S. Constitution, which states in the Sixth Amendment, part of the Bill of Rights: "the accused shall enjoy the right ... to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have assistance of counsel for his offense."

The Constitution lies in shreds on the floor of Judge Davis's federal court, in more ways than this. While that has always been the way of our national government, while that is simply part of the gruel of law, it is always instructive to look at the details.

I don't see how any honest interpretation of the Constitution allows for Ms. Ali and people like her to be accused of any crime at all. The laws she is being prosecuted under are devoid of any basis in the Constitution. They violate international law and all all reasonable standards of ethical behavior.

In this supposed land of the free this law makes it illegal to send funds or supplies to foreign political groups the U.S. government does not like. You can, conversely, send funds and supplies to foreign political groups the U.S. does like. Even accepting, as I do, that Congress has broad power to do what is "necessary and proper" to carry out its Constitutional duties, this law makes a mockery of several sections of the Constitution.

It is also yet another instance of the U.S. government claiming jurisdiction beyond its own borders, a policy that has always infuriated the various nations we have interfered with and made war upon.

Did Ali, in raising $2,100 in pledges to send to Somalia to fight against a gang of thugs flooded with tens of millions of dollars of U.S. taxpayer provided "support", commit treason? This is the main question that needs to be asked. If she did not commit treason, then the law and the prosecution, in fact all the acts of Congress, President Obama, and their court system, are simply overreach.

The U.S. Constitution is very clear about treason (the Funding Fathers having just escaped with their lives from being treasonable to King George): "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." [Article III, Section 3] Note the word only. It colors the entire section.

Ms. Ali has certainly not levied war against the United States of America. Perhaps she gave aid and comfort to al-Shabaab, but al-Shabaab is the de facto government of Somalia, not the "transitional" U.S. paid puppet government. According to many treaties we have signed the U.S. is supposed to recognize de facto governments. Not hire thugs to set up puppet regimes.

Al-Shabab is certainly an enemy of the U.S.-made inflatable-doll "government" of Somalia, but anyone in their right mind in Somalia would be. Who wants to be bossed around by a government that you can't even vote for or against. By that, I mean the U.S. government. If Somalia is U.S. territory, shouldn't they get at least two U.S. Senators, a proportional number of Representatives, food stamps, and Social Security? I've noticed food stamps really cut down on opposition to the government.

Suppose I were elected President. No, I'm not running. But I would recognize the de facto government, maybe governments, of Somalia. That is the right thing to do. And suddenly Ms. Ali there is no longer aiding an alleged enemy of the U.S., but an ally.

Making list of enemies in foreign civil wars might seem necessary. I wish General Franco had been declared an enemy of the U.S. in 1936, then we probably could have skipped that entire World War II thing, and the Holocaust, and the occupation of Palestine by Israel. But the Catholic Church loved Franco and its adherents mostly voted Democratic in the U.S., so President Franklin Roosevelt maintained neutrality. So I admit there is a pragmatic argument to be made, but there is also a Constitution to try to keep out of the shredding machine.

Treason is a serious thing. Spying for a foreign nation might amount to treason, even if we were not at war with the nation spied for. But American citizens also have the right of free speech. The Supreme Court, in its wisdom, has declared that money is speech, at least when rich people and corporations corrupt the electoral process with it. If money is speech, then it seems to me Ms. Ali was engaging in speech, not treason. Of course you can expect the jackals of our Supreme Court to say that money is speech when they want it to be, and not when they don't want it to be.

We Americans are supposed to have a right to disagree with our government. They call that free speech. We also have a right to assemble with people who agree with us; that is the right to assembly.

If liking or not liking some political group in a foreign nation becomes treason, then free speech goes out the window. If Congress can declare foreign groups to be enemies for purpose of treason, what would prevent it from declaring domestic groups to be enemies for purpose of treason, except for decency, which is not something you want to rely on from politicians?

As far as treason goes, I think the only reasonable interpretation of the word "Enemy" is a nation with which we are at war. If the U.S. Congress had recognized al-Shabaab as the government of Somalia and then declared war on Somalia, I might not agree with them, but I could agree that once war is declared, the U.S. has a clear enemy, and it could be treason to aid them.

If al-Shabaab made an attack on or within U.S. territory, the Federal Government would have clear cause to deal with the crime, and with any American citizens aiding in the crime. You don't need to invoke the treason clause.

Neither of those situations fits the facts of Ms. Ali's case. She likes a particular "faction," really the de facto government, of Somalia. She sends them some help. Her actions are political, and do not constitute treason. American history is full of cases where our citizens, of their own initiative, have given verbal or material support to political factions outside the U.S. It is our right as human beings, and I believe it is a right covered by the Ninth Amendment (which is too little asserted):

"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

Note: my defense of Ms. Ali's rights in no way is meant to endorse or support al-Shabaab or any other armed faction in Somalia. I think they should all declare a peace and organize their society in a peaceful, humane manner.

States Rights and the Federal Reserve

"Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common that to use words in a figurative sense."

—John Marshall in McCulloch vs. Maryland, 1819

If your knowledge of American history is shallow enough, you might think that the question of states' rights was answered by the Civil War. The Republican Party opined that for a state to secede from the Union was an act of treason. A lot of people died to make the point. Yet states did not become mere administrators of Federal law. They retained important rights and duties.

Before considering how the Federal Reserve fits into our system of governance, it is worth a bit of review about the Bank of the United States. America had no banks at all in 1776, which at least proves it is possible to get along without them. Great Britain had a number of banks, including the Bank of England, which had been created by the British government, but which had not branches in the American colonies.

The first Bank of the United States was chartered by the first Congress under the new Constitution in 1791 for twenty years, based on a proposal from Alexander Hamilton, the Secretary of the Treasury under President George Washington. Like the Bank of England, it was set up as a private company that would hold federal funds, but act as a bank to commercial enterprises. From the beginning some political figures (anti-federalists) opposed it and believed that its creation was not a power granted to Congress by the Constitution. In 1811 Congress refused to recharter the bank (by a vote of 64 to 65). The War of 1812 created such financial chaos in the United States that the bank was issue a new charter in 1816.

In 1818, to prevent the Bank of the United States from competing with local banks, the State of Maryland passed a tax on all banks not chartered by the State. The Bank cashier, McCulloch, refused to pay the tax. The Bank lost in the Maryland courts, but appealed to the Supreme Court of the United States. By a vote of 8 to 1 the Supreme Court found the Maryland law to be unconstitutional. [See McCulloch vs. Maryland, 17 US 316 (1819)]

In the ruling John Marshall discusses the nature of the federal system at some length. He discusses how sovereignty can be shared or split by states and the federal government. He discusses the phrase "necessary and proper" at some length. He also splits the hair of the 10th Amendment by noting that it differs by one important word from the wording of its predecessor in the Articles of Confederation.

Even Marshall, the federalist, noted that the Constitution gives the Congress some responsibilities, and prohibits certain types of legislation, while reserving others to the states. Two basic problems remain, even if you are convinced by Marshall's reading of the Constitution. You may not agree with how the Constitution divides up responsibilities between the states and federal government. That could be fixed by amendments, although amending the Constitution is difficult, and what is already in place is favored.

The more difficult question arises when specific situations cross multiple issues, or when there are shades of gray within a single issue. The Supreme Court itself has often made differing rulings on the same subject during different periods of American history.

President Andrew Jackson did not like the Bank of the United States; he thought its powers exceeded those grantable under the Constitution. Jackson, like most Americans, wanted states' rights when he agreed with the states, and was against states' rights when he wanted to impose his ideas on the entire nation. When the people of South Carolina nullified an oppressive tariff (import customers duty), Jackson threatened to use military force. But when George asserted states' rights to evict the Cherokee nation, and the Supreme Court backed the Cherokee in Worcester v. Georgia (31 US 515), Jackson (and later President Van Buren) refused to use federal troops to enforce the Supreme Court's decision. In 1833 President Jackson took federal money out of the Bank of the United States, and its charter was allowed to expire in 1836.

The Federal Reserve was controversial when it was created in 1913 it was no less controversial than the Bank of the United States. However, it did not compete directly with private commercial banks, instead using its function as a reserve bank to maintain a money supply consistent with economic health. Recently the Tea Party and Republican presidential candidates have been attacking the Federal Reserve. Partly the attacks are pragmatic, partly they raise yet again the ancient question of what are the powers of the federal government under the Constitution.

Anyone can criticize the Fed on pragmatic grounds. Take your choice: the Fed created too much money, or the Fed created too little money. Heck, the Fed insiders debate that question among themselves.

Questioning the Federal Reserve's constitutionality is wacky, except perhaps as an academic exercise. The Tea Party has no good answers for the reasoning in McCulloch vs. Maryland. Congress has the power to regulate interstate commerce and to establish a system of currency, both of which it chooses to do through the Federal Reserve. Congress has the power to change the Federal Reserve, to replace it with something different, or to abolish it outright.

Many in the Tea Party now hold there is an Original Constitution, written by God himself, and easily interpreted by anyone with a rudimentary knowledge of English and the Ten Commandments, the amount you would get from their home schooling program. For them it is simple: the Constitution does not mention the Federal Reserve, so having one cannot be constitutional.

The first Congress (admittedly a rogue's gallery of corrupt men) chartered the Bank of the United States, and it was signed into law by George Washington. Who do you think is in a better position to opine on the meaning of the U.S. Constitution, the village idiots of the Tea Party, or the first Congress? The men who knew the men, sometimes even were the men, who wrote the Constitution, or Michele Bachmann?

We do not need to return to some mythic original Constitution. We need to amend the Constitution to bring it into line with what we, the people, have learned in the past 200 years. The problem with Congress is not that it has exceeded the power granted to it, though it probably has at times. The problem with Congress is that it has not done everything necessary and proper to "promote the general Welfare." Neither, for that matter, have the various state legislatures.

Andrew Jackson, The Fundamentalist Constitution, and the Balanced Budget Amendment

The idea of the Fundamentalist Constitution predates the Tea Party. In fact, it was one of the streams that swelled into the Tea Party a few years back. The basic idea is that the U.S. Constitution was written by God, is a continuation of the Hebrew Ten Commandments, and should be interpreted in a manner consistent with 18th century American religious thought. Those who subscribe to this view are also related to or known as "originalists" for the Original Constitution, or "tenthers" because they love the 10th Amendment, which of course was not even part of the original Constitution.

That view is easy to critique, yet is becoming increasingly popular because it fits well with the latter day fundamentalist Christian, free-market Money worshipping, God pits every woman against all approach to society beloved by Sarah Palin, Michele Bachmann and other patriarchs of the anti-federal movement.

I already wrote in The Fundamentalist Constitution, The Tea Party, and Federalist 62, that documentation from that era provides no support for the fundamentalist viewpoint. If anything, originalism in its current state makes a mockery of strict construction of the Constitution, which has always had its advocates and is supported, somewhat, in both the Federalist Papers and the Anti-Federalist Papers.

Reading President Andrew Jackson's first State of the Union address to Congress of December 1829, I found some compelling commentary. I am not a fan of Andrew Jackson.

I am writing my Internet Biography of Andrew Jackson mainly to show how unethical the man was, and how that lack of basic human decency has always been at the core of the Democratic Party. Yet politics makes strange bedfellows. Given enough political issues, I am sure to agree with almost everyone on a thing or two. Jackson told Congress:

"I consider it one of the most urgent of my duties to bring to your attention the propriety of amending that part of the Constitution which relates to the election of President and Vice-President. Our system of government was by its framers deemed an experiment, and they therefore consistently provided a mode of remedying its defects."

God, we are told by Creationists, always gets things right the first time. One creation, no experimenting with evolution. If President Jackson was correct that the framers deemed the Constitution, the blueprint for our system of government, an experiment, then the Fundamentalists have two choices. They can say that God foresaw the need for Amendments, as that would give politicians something wholesome to do. Or they could back off the God Wrote It stuff and argue from the traditional, conservative Strict Construction viewpoint, and so not reveal themselves to be lunatics.

Or they could argue that Jackson was wrong. But then they would have to explain why God let Jackson win the Battle of New Orleans and go on to become President.

While I frequently argue that Jackson was wrong on many issues (and a murderer, adulterer, thief, and yes, a man who made money pitting dogs in fights against one another), I would like to point out that, as a child soldier, Jackson fought in the American Revolution. It is what bent him so out of shape as a youth. When the Constitution was ratified in September 1788, young Andrew Jackson was twenty-one years old. He heard the controversy about whether or not to replace the Articles of Confederation with the new Constitution. He became a lawyer, and he came to know several of the Founding Fathers. Unless he had some reason for lying about it, he genuinely believed that Our system of government was by its framers deemed an experiment.

The experimental method has led to some improvements over time. I certainly don't agree with everything the federal government has done or is doing, but I think that abolishing slavery and giving women the vote were experiments that have gone well. As Jackson wished, after President for Life Franklin D. Roosevelt made a mockery of precedent, now Presidents are limited in how long they can hold office.

So I'm not against amendments. I am against a Balanced Budget amendment. Strangely, the originalists in the Tea Party, and most Republican politicians in the House of Representatives, don't like the fact that the Original Constitution does not call for a balanced budget. I guess God forgot to send a Hebrew accountant to the Constitutional Convention to explain the issue.

Instead, Alexander Hamilton got his foot in the door. The man understood high finance the way Ms. Palin understands sled dogs. The way the Bachmann family understands how to shake down the government for money to house orphans. He actually studied how the British banking system and government finance worked. Imagine that. He engineered a starting off national debt by getting the Revolutionary War debts of the States assumed by the Federal Government. They (the States, or at least their politicians) were happy not to have to pay those debts. They were happy to let the Federal Government impose customs duties and taxes on alcohol and tobacco to pay off those debts.

Nevertheless, Andrew Jackson wanted to pay off the national debt that existed when he assumed the Presidency, which was largely a legacy of the War of 1812 and the intervening recession. Fortunately, an earlier Congress had passed a tariff or duty on imports, providing plenty of tax revenue. The debt was under $50 million (that's right, not billion or trillion) at the time, and about $12 million was paid off in 1829.

When the economy is strong, the federal government should spend less than it takes in and pay down the national debt. During recessions the government should spend more than it collects in taxes. That helps balance the business cycles that result from free market capitalism, and yes, it provides pensions for old people and aid to the sick and disabled. Make that into an amendment, and you can have my support.

Taxes, the Tea Party, and the English Civil War

The Boston Tea Party of 1773 is celebrated by American historians, and more recently stamped into our minds by the cavorting of our contemporary Tea Party. While certain citizens of Boston in 1773 believed that they could be taxed only by their local representatives, our Tea Party believes, essentially, that all taxes are bad. In effect the Tea Party is a group of right-wing anarchists, for without taxes it is hard to maintain any sort of government whatsoever.

Of the multiple causes of the American Revolution, taxes were important but probably not paramount. National sentiment and desire for self-government were large factors. But there was a fundamental shift in the attitudes of America's elite between 1770 and 1776. Naturally conservative, in 1770 they mainly wanted to be represented in the British Parliament and perhaps even to be blessed by a knighthood. By 1776 the slave masters of the southern colonies did not want their colonies to be on British soil because slavery had been recognized as a fundamental violation of human rights in the ex parte Somersett ruling in English courts. The New England elite, involved in trade and manufacturing, did not like the limits the British Empire set on their business activities.

Whenever there has been taxation, there has been anti-tax sentiment. Many ancient historical texts mention taxes as a cause of rebellions. In the New Testament the Pharisees speak against Roman taxes, but Jesus refutes them. In English history the Peasant Rebellion of 1381 started when a man refused to pay the head tax. Even in Marxism one of the main talking points is that the Capitalist system has an inherent tax on labor (capitalists expropriate the value added by laborers) that can be eliminated by the proletarian revolution.

As precedents for the Tea Party revolt I would submit the events of the English Civil War of 1642 to 1651, which, along with the Glorious Revolution of 1688, was also the main precedent for the American Revolution. I do not mean to imply that the Tea Party will use violence to achieve its ends, though I cannot rule that out.

The English Civil War is often cast as a battle between the mainstream Anglicans, backed up by Roman Catholics, and the Puritans. Leaving that aside, it is cast as king and nobility versus the House of Commons, shortened to Parliament (which also includes the House of Lords). It also is used as an example of a people's revolt turning into a dictatorship, that of Oliver Cromwell.

Consider how all that reflects the changing economics of the 1600s. The hereditary nobility had prospered and become corrupted with greed and gluttony. Attracted to the Puritans were "the soberer part of the nobility ... with the merchant class and the smaller landowners." [1] Their early embrace of thrift and free market economics was reflected in their Presbyterian disdain for religious authorities, Catholic Pope and Anglican bishops alike. Despite the wealth and power of the nobility, many had mismanaged their inheritances, and tended to live on credit. King James I hated both Presbyterian doctrines and the idea that money could be earned by a man's actions, rather than simply inherited.

James I and his son King Charles I asserted the old Catholic idea of the Divine Right of Kings. This was not just a religious idea, but a rational for absolute power. He handed out monopolies in a variety of goods to the king's friends, causing the goods to cost far beyond what they would have been in a free market. Thus the hard work and thrift of the people was eaten up by the monopolies, taxes, and debauchery of the King and Lords. King Charles had originally called the Long Parliament in 1640 specifically to raise more taxes.

When this civil war began, after a long, complex political struggle, all thought it would be decided in a single battle. The first real battle of the war was Edgehill on October 23, 1642. The forces of Parliament did not win a final military victory until 1651. Even then, the Monarchy was restored in 1661.

Every new government finds itself in the position of needing to collect taxes, if only to pay the police and military needed to exert its own authority. Any money the Tea Party saves by dismantling Social Security, food stamps, and other forms of welfare would simply be replaced by the need to pay an army to suppress the hungry and impoverished population.

Even the creation of the U.S. Constitution was primarily about giving the emerging national ruling class the power to collect taxes. To the extent the Tea Party is not just recycled robber baron rhetoric, they should be attacking the Constitution, not waving it like a flag. The Articles of Confederation are much more anti-tax than the Constitution.

To some extent the Tea Party is a political awakening that has been partially diverted to support the corporate security state program. I am glad that Americans are reading our Constitution. It is a short document, more easily read than the Federalist Papers or Anti-Federalist Papers that provide so much context. At the same time, we are no longer a rural nation governed by an aristocracy of slave owners. If anything, we need to amend the Constitution to align it with our modern reality.

1. Locke, J. Courtenay, "Cromwell and the Puritans", chapter 130 of Universal World History, Wm. H. Wise Co., 1937, page 2153.