15 SEPT 2023

Good-Faith Actors

It is a time of feeling one's way forward, but amid a welter of seeming contradictions, of deliberate trouble-making, propaganda, tests of one's own resolve, and casting about for signs of allegiance. It is not bewildering, but it is uncomfortable and full of real and unnecessary anxieties. The sides are taken, except there are huge numbers of citizens disoriented and unsure if they should wait a bit longer to get an idea who is going to win. Such is the nature of allegiance these days.

The media must be going out of their minds, knowing that the Trumpists are not good-faith players, but are demanding their rights as if they were. This central fact is the pivot point of most anxieties. On the political right there is a steady trickle of pale apologies for not risking life and limb and a lifetime of accumulated position, but instead forswearing oaths and sacred honor. Mitt Romney is the poster-boy for wearing historically Republican garb well into the Halloween witch's wardrobe time of Trumpism. The emperor's clothes metaphor extends as he bows out of the fray, nakely, still hoping not to be mugged and strangled by the supposed mob.

The Trumpist actors in Congress are 1) sure that the man will prevail and give over the gavel soon enough that they benefit and the 1890's are restored—that glorious Gilded Age of MAGA where White was the only Reality and Male was unopposed, or 2) are not so sure, but dare not risk their careers, given that so many others are silent, scared witless.

In the hustings, White Christians wonder whether their ascendency can be maintained, or whether the demographics are inevitably going to dispossess them of power—power to tell others "how it is gonna be." The wisest among them know that it is just a matter of time, the real question is how long. Those at the round top of the Gaussian Curve, the mean, having little enough control of their own lives anyway, are betting that History can be made now, just as those holding onto the Confederacy's "lost cause" hoped for vindication or retribution or revenge. Been to Atlanta recently, dude?

What makes this about "government" is that the far right and slightly-less-far right are both committed to abrogating the US Constitution, understanding fully that the democracy it creates is not their friend, that they are a distinct minority opinion under this system. Some are oligopolists, favoring a government of the "select few," maybe as many as there are White Christian Nationalists across the land, others are less sure of their fellow man and favor instead a tighter Fascism, evolving from the likes of the US Chamber of Commerce, the Federalist Society, and the ethos of Boss Tweed, Huey Long, Joseph and Kevin McCarthy, and the Godfather.

What is especially "preliminary" right now is the seeming complexity of the judicial system, especially Georgia's. The United States finally realized in middle years of the last century that criminal gangs and corrupt conspiracies had to be recognized as real and as threats to the entire nation (not just to big cities like Chicago and New York City). So they created judicial means, the RICO acts, like the federal one and like the one in Georgia. We don't see them in such vivid detail very often, and so they are more that slightly confounding. The only thing you need to do is trust in them to be managed by competent good-faith people and assailed and battered by criminal minds about to lose everything. Buckle up!



14 August 2023

Judicial Supremacy

The August 17th issue of The New York Review of Books contains a substantial essay by Lawrence Tribe of Harvard Law, who, as Lawrence O'Donnell of MSNBC always introduces him, says: "he taught constitutional law at Harvard for five decades." Professor Tribe's piece is titled "Constrain the Court—Without Crippling It." At one point near the middle, Tribe quotes one of the five authors he is reviewing:

... judicial supremacy—the idea that, beyond being responsible for reviewing and resolving the competing legal claims of the parties before it in any particular controversy, the federal judiciary in general and the Supreme Court in particular bear ultimate responsibility for authoritatively interpreting the Constitution and laws of the United States—has been incompatible with the advancement of individual rights.

And shortly thereafter quotes another of the books under review:

As a matter of historical practice, the Court has wielded an antidemocratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth and status.

Tribe's essay goes on to enumerate scores of cases, some well-known, others not, that were adjudicated under undemocratic principles and conceivably as part of a common understanding among the justices that whatever they do, it is also done as maneuvering for power within the frame of the Constitution, which they have arrogated to themselves the power to exposit (as Tribe writes), to interpret and define.

Tribe's essay is lengthy, so this introduction to it must be brief. It is clear that previous of my essays decrying the power of the Court to legislate under the pretext of "judicial review" (Marbury) are vindicated and that young lawyers, who think my position is a distinctly minority view, have not yet understood it well .

To be clear, judicial supremacy is neither woven into the Constitution's text and structure nor discoverable in the history of its creation—a reality that today's supposedly "textualist" or at times "originalist" Court conveniently ignores. (Tribe, ibid.)

With Justices Thomas and Alito and Kavanaugh and Gorsuch enjoying their perks of power and their freedom to cheat and revel in the wealth of others, we see that human nature is constant and that power corrupts. Without restraints it corrodes its purposes. But, it does provide us with an honorable and appropriate justification for dealing with it. And so we must! The election of 2024 is all about this constitutional issue.



14 June 2023

Options: Then and Now (slightly revised 15/6/23)
~1100 words

In the essay of May 26th (in this Government folder) we saw that at the time of the creation of the Constitution of the United States that the factions, each with its own primary concerns, were inexorably grouping into political parties, the Federalists and the Democratic-Republicans. "Grouping" was a difficult process of compromise until the members of the groups more clearly understood and agreed about their mutual underlying principles, axioms supporting their preferred pathways, especially toward resolving serious long-standing issues, among them the herd of elephants in the room: human slavery.

The Federalists quickly understood that they, the existing leadership, were already in power at the national level and, therefore, were probably the most likely to get their way as the new one-of-a-kind nation was wobbling to its feet. Conversely, however, the slave-holding states, were aware that in the states that mattered to them, theirs and the those bordering them, they and their fellow slave-holders were in charge, so their interest was to hold onto those positions and to improve their grips on power.

As noted several times earlier, the single over-riding concern was protecting themselves from the well-established, prosperous, militarily strong European powers, particularly Britain and Spain, an idea which quickly led them to believe that binding the states together would better assure survival, but if divided, over time they would inevitably fail. This concept was also predicated on the immediate fact that twenty percent of the population were declared Tories, who might, if their states remained separate, choose to make alliances with Europe for commerce or protection. At this time the European sentiment against human slavery was still a generation (twenty years) away from anti-slavery legislation.

Federalists were the more centralist party, but laboring under the burden of what the "centralist" British Parliament had been and seemed to be evolving toward in the British monarchy. So, they earnestly wrote into the Constitution "checks" and "balances" to counter the explicit apprehension they had about how the negative aspects of human nature affects those in power. Many were particularly apprehensive about the relationships between civil government and religous authority over the hearts and minds within the proposed democracy. In other words, while framing the muscle and sinew of the central government they deliberately provided it with internal discord. The Democratic-Republicans took them another step.

Democratic-Republicans were "decentralists." They saw the principle of a functioning citizens' democracy applying to and only within each of the constituent states (miniature republics, if you will). Fearing the opinions of the unpropertied masses in their own states and even less the appetites of semi-literate and unpropertied citizens arising from alien and therefore untrustworthy cultures in other states, they insisted that the states be semi-"sovereign" with respect to the implementation of democracy. There was not to be (and there still is not) a direct democracy furnishing the central, national goverment with presidents, vice presidents, or until 1913 (Amendment 17) senators.

Six score and twenty-six years later, after 1913, the whole Congress was directly (popularly) elected, but entirely under the rules for elections established by each individual state, but the Executive remains indirectly elected via the Electoral "College" System provided for in Article II, Section 1, as amended by the 12th, 14th, 15th, 19th, 20th, 22nd, 23rd, 24th, 25th, and 26th Amendments!

What power the central government has to control elections carried out in the states rests precariously with Article IV, Section 4 of the Constitution: [Please read "The Meaning" of Article IV, Section 4 at the link.]

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature can-not be convened) against domestic Violence.

It is painfully obvious that the American Constitution has not yet found the way to elect the national Executive. Only Maine and Nebraska apportion their Electors in proportion to the percentage of the vote, rather than winner-take-all obtaining in all other jurisdictions. This effectively silences the minority vote—and is, therefore, literally undemocratic. Under more propitious circumstances Article IV, Section 4 would be invoked.

So the question is: How is this working for us now, here in the third decade of the twenty-first century within a handful of years of our 250th year, now the third largest nation in the world with the third largest population and far and away the largest and most dynamic economy in the world?

The answer is that it was working just fine for the corrupt, those who could control something as unwary, credulous, and unvigilant as a state, and who wanted to continue slavery, and then for those who wanted to overturn Reconstruction into Jim Crow, and those today who see themselves vastly outnumbered and unlikely to win elections as the complexion of the nation has changed dramatically and as women and descendants of slaves and ag-workers now vote their mutual interests, overwhelming the caste of white privilege doubled-down with the remnants of Christian humility. The answer also is that once again the hotter heads are headed toward major violence, the kind that make J6 look like one stone in the walls of Fort Sumpter.

Article IV, Section 4 is the Constitutional pathway to resolve all of this. I doubt President Biden sees it that way. The pathway is right there, along with the rules of engagement established already. You have to wonder why, specifically, that Article IV, Section 4 (containing the so-called "Guarantee Clause") has not been implemented. A moment's consideration brings us to the conclusion that those in power in states have done everything they can to perpetuate the notion that states are really little republics, "laboratories of Freedom (completely ironic)!"

And so, that legacy originating in the days of slavery must be overcome. It may take the likes of a Congress full of Jamie Raskins to accomplish anything. It would take a second term President with an avid Vice President to carry it out. There would be consternation and probably some violence, but remember: Eisenhower integrated Little Rock schools with the 101st Airborne Division! And Arkansas Governor Orville Faubus saw his whole life pass before his eyes.

The lesson is that the original Constitution deliberately organized the American nation as a slaveholding country with a weak central government run by states. To be sure, it has evolved since, preserving the privileges of the industrial and finance tycoons, and in the south, those who held and bred slaves with their own seed. It is on rational close inspection due for fresh start—no less often than every 19 years (by each succeeding generation), Jefferson said. The Democratic Party should dedicate itself for the remainder of this century to that purpose.



10 June 2023

~650 words

On Thursday, 8 June 2023, the US Department of Justice Special Counsel, Jack Smith, without objection or any necessity for public comment from the Attorney General, Merrick Garland, charged Donald J. Trump with crimes relating to the government documents he stole from the White House, retained, and obstructed the retrieval of which, well over three hundred of them bearing markings as highly classified national security information. Today, Friday, June 9, 2023, the Indictment has been unsealed and is available here from the Washington Post.

Trump is the first, hopefully the last, US President to be chiesrged with criminal conduct felonies under the US Code. Media voices reported the event with relief after years and months of wondering whether DoJ had the fortitude to do this, and some media voices said it was the beginning of a new day in America after 49 years of living with the embarrassing mistake of letting former President Nixon off the hook for his crimes—for which Haldeman, Erlichman, John Dean, and many others did time.

One voice said, in the context of the overwhelming long-term historical and current public evidence, including confessory outbursts on television by citizen Trump, that the problem in America is that he was ever raised to the highest officalin the land, certainly the most forboding evolution of politics in a very long time. This is the problem the best minds in our country must face and solve.

Special Counsel Jack Smith spoke briefly about the Indictment, stressing that (1) it is a NATIONAL SECURITY matter, and (2) that everyone should read the indictment to see what kinds of evidence DoJ has and the extent of the criminal behavior of the former President. Click on the boldface, underlined word "here" in the first paragraph to print out the indictment document, or if your printer is low on toner, bookmark the link to the document and read it online.

As Rachel Maddow and Brandon Van Grack and several others at MSNBC said in their coverage today, Friday: "the damage is already done." And, indeed, the reliability of the United States among our allies and friends regarding the security of classified materiel is now in SERIOUS question. You will read about where Trump had put stored classified documents during the period from roughly February 2021 (as he left office) to the present day (as there are still missing documents for which DoJ has no precise explanation), such as next to a toilet that certainly must have been used by some among the thousands of guests to Mar-a-Lago during this period.

The national security is also in peril now from supporters of the former President. At this writing at least two members of the US House of Representatives have issued military-style orders to the general MAGA public and one declaring that "this is war." It remains to be seen whether the response will be like that after the Manhattan indictment, that is, very minor and certainly very, very embarrassing to Mr. Trump. There will be violence, to be sure, but it may be restricted to lone gunmen or small groups acting locally. In south Florida, the matter is extremely serious, and you should avoid the area if you can.

No one among us knows how the MAGA extremist domestic terrorists will act. No one knows how long it will take to clean up this entire situation, best guesses are at least a generation, maybe more. There are people whose actions have contributed to the situation who will be very difficult to bring to formal justice, people like Mr. Jim Jorden, et al, who it is alleged in the media had active roles in the events of January 6, 2021, and who will probably squirm free, but maybe not. The thing to remember is that pardoning Richard M. Nixon was a huge mistake, and letting the Jordans and Greens and their like off scot free or simply defeated at the next election will populate the country with the same kind of people who overturned Reconstruction into Jim Crow extending White Christia Nationalist Dominion to various degree all across the country for a century!



26 May 2023

If Not Annexation, Protective Custody
~1100 words

Article IV, Section 3 of the United States Constitution is about the formation and inclusion of states and territories into the nation.

Section 3 (in toto)

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. [Emphasis added]

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

We shall see, shortly, that a new state was formed, but not by the consent of the relevant legislature.

To understand these two Constitutional paragraphs it is enlightening to first realize that the people writing the Constitution were (or would soon become) Federalists (more centralist) or Democratic-Republicans (who saw the democracy applying to and only within each of the constituent republics/states, hence the Electoral College). These Framers were land and business enterprise owners; they were against human slavery or they were slaveholders themselves; and they were jockeying to create rules for being included in what from the outside would certainly appear to be a slaveholding nation, and from the inside the Union that would protect the personal investments of people like themselves, considering especially, as the value of all slaves seventy-four years later in 1861 is now estimated to have been $2,400,000,000 or $4 billion if each slave person was valued at $1,000. The value of all factories, railroads, and banks in the US at the time is estimated to be less than either of those slave value numbers.

As stakeholders in the creation of the first independent and hopefully viable new country in the New World, the Founders had just one all-important consideration, and that was to avoid further fragmenting the British-born colonies, and rather to create a binding union of them wherein the economic and ethical issues of the day would be peacefully resolved while presenting to Atlantic Europe a large and united and thriving nation not to be misunderstood as prey for monarchs or merchantry.

Clearly, the ability of the nation to resolve its ethical differences over human slavery was lacking and, yet, this continuously unresolved point of contention factored into many decisions made by the government of the United States and its citizens, culminating in the decision in the slave states to fight for the right to hold one's preferred moral code, as if it were not dictated by one's economic system. So Fort Sumpter was fired upon, anticipating the federal government under President Lincoln would emancipate the human beings enslaved. Six hundred thousand Americans died in the fight. And in the midst of the war a new state was born, West (by God!) Virginia.

As the southern states seceded from the Union to form the Confederacy in what the US Government called The Rebellion—rebellion, as if declared sovereignty over the rebel territories did not hang on whose military forces were actually in control,— both the Confederacy and the Unionists maintained "governments" of the territories, neither of which had complete control of the territories they claimed, and what was lawful was a matter of exigent choice. According to the U.S. Archives statement about West Virginia statehood, the following decisions were made :

1861 April 17 Virginia legislature passes the Order of Secession

1861 May 23 Virginians ratify secession

1861 June 17 Pro-union Virginians voted to form a second government, the Restored Government of Virginia (which attempted to control the NW part of the Commonwealth, but also to "govern" the state as a whole, which it did not physically control for the Union)

1861 August The Restored Government of Virginia voted to approve the creation of a new state, West Virginia, per Article IV, Section 3 (above).

1861 November 26 West Virginia Constitution ratified by voters

1862 May Senator Waitman T. Willey (Unionist VA of the Restored Government of Virginia submitted bill to Senate for admission to the Union of West Virginia with an amendment that provided for emancipation of slaves in the state

1862 July 14 The US Senate approved admission of West Virginia to the Union

1862 December the House of Representatives approved the admission of West Virginia to the Union

1862 December 31 Lincoln signed he Bill admitting West Virginia

1863 February 4 Citizens of Berkeley and Jefferson, the two most eastern, counties voted to join West Virginia, which was also approved by the Restored Government of Virginia

1863 June 20 Lincoln announced official recognition of West Virginia statehood

1865 December 5 reunited with the Union, the Virginia Assembly repealed the legislation (of the wartime Restored Government!) ceding the counties to West Virginia

1866 March the US Congress officially recognized the transfer of counties to West Virginia

1871 in Virginia v. West Virginia, the US Supreme Court affirmed that the counties were part of West Virginia.

And now to the real point of my vexation, what does the uncertainly legal West Virginia statehood tell us about the plausibility of

transfer of Harris County, TX, to California?


Well, it tells us that if enough people, especially those already elected to or willing to declare themselves the rightful legislatures at the county, state, and federal levels want to do something like this during mass civil uprising, they can! And will! The audacious inconsistencies of the West Virginia process, now a matter of legal "precedent," open wide the opportunity to rescue counties being confined by their state legislatures against their wills, their fundamental rights taken from them, and otherwise not being protected by the Constitution and the federal government.

The 4th largest city in America is Houston, TX, which is in Harris County where our NASA has planted immense resources that cannot remain subject to the "benevolent auspices" of the Texas government that is now considering peremptory removal of Harris County election officials and the protections of democracy there. It is time for The United States to exercise its Article IV, Section 4 obligations.

Clearly, the current Texas legislature will not be ceding Harris County to any other state, but the Texas government must deal with the overwhelmingly Blue Harris County, respecting the rights of Harris county voters to disagree with the 18th and 19th century politics out in the rural and White Christian Dominion hills and prairies of that state.

The US Constitution says "The United States shall guarantee to every State a Republican Form of Government ...." (Article IV, Section 4) Messing with Houston is unconstitutional and is like attacking a human population (4.728 million) equal to the total population of Wyoming, Vermont, Alaska, North Dakota, South Dakota, and Delaware represented by over 10% of the US Senate, in other words, an act of war! We went to war with Spain for a single Navy ship!



16 April 2023

What Does "Good Behavior" Mean?
~850 words

I have asserted here many times that the terms of service of the US Constitution's Article III judges aee justices does not literally or figuratively or by some sort of "default" mean "for life."

It manifestly means something having to do with the behavior of judges and justices. Behavior is "what a person does" as premeditated by a person or unpremeditated. When a parent says to their child that their behavior must improve for them to be given a bicycle, for instance, the term "behavior" takes on two meanings: 1) as described above premeditated or unpremeditated, or 2) what the person appears to do (have been doing) by an observer, like the parent. The concept in the US government has been interpreted variously. Congress, we are told, thinks it means "indefinitely," and "for life" is the reasonable clarification of that word. Obviously, Congress is wrong again! But why?

Behavior, as what one actually does, has cultural and legal boundaries. Improving one's own behavior to achieve the respect necessary to be given or pehhhrmission to buy a bicycle means doing things that are inside the boundaries as understood. Parents instruct as to the boundaries, persons learn about them from the other people around them, from news, literature, teachers in school, and from friends. Consciences develop within people based on the understanding of why it is bad, wrong, illegal, or otherwise prohibited to steal, kill, and all the other things society agrees are pernicious to the culture. The culture embodies these boundaries.

An important point at stake currently is the doctrine of "separation of powers" intrinsic to the organization of our political culture, indeed, our government within respectful terms of the Constitution of 1787 as amended. There is a notion that each of the three branches of government are independent and sovereign. They are NOT. Sovereignty is like virginity; either you are sovereign or you are not. Sovereignty in the United States of America rests with the People and exercised through representative bodies like the Congress and the Executive. The national Judiciary is not directly representative, however, so we may posit that whatever sovereignty is exercised by the representative bodies is not exercised by the members of the Judiciary.

Separation of Powers is moderated and effectively diluted by the facts that a) the Executive Branch nominates all federal judges and justices, and the Senate approves or disapproves these nominations, both conceived as representative bodies of the People. Importantly, each step considers the nominee's past and likely future behavior. It is the essential fact of each step that behavior is the key concept, and not to be swept into the underbrush by either branch, (but apparently has been by the Congress.)

Why would Congress do such a thing? Well, Congress knows very well that the judges and justices can be impeached, so in the simplest sense they see impeachment as the only proper mechanism for checking the power of judges and justices. At the same time they also know that impeachment is not a judicial process. It is a political process in reality, meaning that as Congress is political, what it does is political, which in turn means that "good behavior" is automatically addressed politically, rather than on the face of the facts of that behavior as would be discerned in a judicial proceding. By reading "good behavior" politically, Congress grants to itself powers not stated or intended in the Constitution. Good behavior then means Congress determines the lifetime of judges and justices, not one word of which is in the Constitution, which was written when disagreements emerged from factions and political parties did not exist.

Meanwhile at the Supreme Court centuries of behavior have taken place without reference to any written agreement among the justices of how to behave ethically or how to deal with infractions of rules governing all federal employees, particularly rules about gifts and financial benefits received. And, over time several justices have reasoned very poorly, taken the point of view of slaveholders and corporations, for instance. And, only rarely did SCOTUS contain liberal majorities, this fact being the result of political shenanigans, the most recent of which was demonstrated by then Majority Leader in the Senate, Sen.(R) from Kentucky, Mitch McConnell, by refusing to "hear" the nomination of Merrick Garland to the Supreme Court, or by the body itself to hear obvious confirmation lies and prevarications about their judicial points of view as if they were truths.

Good behavior is the sum of what parents and the law require and of what the overall culture of the Republic expects of each of us. Culture is an organic concept and evolves. Giving terms of office longer than the pace of evolutionary change is self-destructive. Harboring a person like Clarence Thomas who is up to his eyebrows in actual conflicts of interest and the fact and vivid appearance of unethical behavior and is alleged to have said that he hopes to be on the Court for 40 some years, to get back at the fucking liberals who tormented him, goes beyond stupidity to something approaching treason.



16 April 2023

CT Scan
~650 words

The media, especially the political journals like Bulwark, Politico, and several others have done good work scanning the finances of CT, also known as Clarence Thomas, the lone Black male Associate Justice on the US Supreme Court, whose confirmation hearings years ago became a whitewash of his sexual harassment of Anita Hill and a deliberate misogynous humiliation of her at the hands of Senator Joe Biden, Chair of the Senate Judiciary Committee and his fellow Senator Arlen Spector, dismissively discounting the allegation that Thomas had referred laciviously to her large breasts, among other things. It was an inauspicious beginning to Thomas's tenure, decided in advance apparently that it was time to have a Black man on the Court, and how much bad trouble could conservative Black man cause, anyway?

The televised history of the confirmation makes obvious that the Senate erred grievously in its process and its judgment. Thomas apparently is a rogue Justice, oblivious to and neglectful of the simplest forms of ethical behavior, even those prescribed for ALL government appointees, and a written code of ethics for all of the Judiciary, except the Supreme Court.

Thomas should be impeached. He probably will not be, because the case against him would have to arise in the GOP's slim majority in the House of Representatives where insult to the Democrats, the government in general, and especially to Joe Biden trump all else. Since it is significantly unlikely, he must be removed from office by other means.

President Biden must talk to Chief Justice Roberts about the Court's ethics and specifically about Thomas. His message must include the fact that if Thomas resigns more or less quietly, the imposition of an Ethics Code on the Court can be achieved with fewer sharp elbows. If not, and if Roberts remains on his high horse about it all, then he should be asked to resign as well. Biden should indicate that the chances of the GOP holding a majority in the House after the 2024 Presidential and General Election are vanishingly small, likewise the chance of any contender to Biden winning is equally unlikely. The upshot is that a Democratic government will at last enlarge the court to perhaps 15 members and provide it with Ethics and, perhaps, some internal organizational principles to which they are expected to attend. The reasons for doing so are independent of the disproportionate number of conservative justices currently in place. The Court does not function swiftly enough to insure actual justice. The Court does not have a systematic way of reviewing and guiding and chastening the jurisprudence of the federal circuit courts of appeal or the federal district courts. It needs more members!

As this process unfolds it must be made plain by the Speaker of the House, the Majority Leader in the Senate and the President that the Supreme Court does not have the right, privilege, or any other conceivable power to grant to itself the power of judicial review of the constitutionality of any law, statute, or ruling by any part of the federal or any state's government. Marbury v. Madison was wrongfully and arrogantly decided. In fact, declaring anything unconstitutional by anything less than a unanimous decision is an embarrassing oxymoron, in addition to being unconstitutional, since it is DELIBERATELY not provided for by the Constitution. Biden and the Congress must tell the Court and the nation that until a process for referring legislative matters back to the Congress for legitimate legislative review, or to the Executive for legitimate review of rules and procedures, the Unanimity Rule will prevail and so failing unanimity the Court's decisions will be considered entirely relevant to only the case at hand. The Chief Justice will, pro forma, inform the Speaker of the House and Majority Leader in the Senate of the decision taken, if a majority of the Court believes constitutionality is questionable.

Legislation by the Court is intolerable in a democracy!



9 April 2023

"Checks" and "Balances"
~1100 words

In my last short essay on "Tennessee" I introduced very quietly a concept that may turn out to be revolutionary. Here is Article IV, Section 4 of the US Constitution again in toto

The United States ntee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or the Executive (when the Legislature cannot be convened), against domestic violence.

What is interesting about this particular statement is the grammatical subject of the sentence. It does not say "the Congress," "the President," "the Supremea Court", or any other agency of the our government headquartered in Washington, DC; it says "The United States"! Think about that for just a second, why did the drafters of the document choose to express their design this way?

It is clear that in the 1770's and '80's the appeals of the Enlightenment were fully in the minds of the formal and informal leaders of the 13 colonies. Historians have shown that the works of the Frenchman we now know as Baron Charles de Montesquieu (1689-1755) author of he Spirit of Law, was the central person and author of what we now call classical liberalism. Among his thoughts were that governments should separate the powers given to them by the people so that one man or group could not dominate the whole, that human slavery was wrong, and that political institutions reflect local conditions, local society, local geography, local economy, and so forth. As you read this you instantly see how influential he was here in Philadelphia in 1776 and 1787.

The Framers of the US Constitution incorporated "separation of powers" in the first three Articles of the document creating the Legislative first, the Executive second, and the Judicial third. The framers drew from Montesquieu and Rousseau and Locke and Burke and several others the sad truth that men would try to accumulate as much power as available, because of hubris, arrogance, greed, and other unpleasant aspects of Human Nature. Accordingly, they wrote into their document checks and balances whereby one branch of government could be called to account by another branch. In the case of the Legislative they took the additional measure to separate the legislature into two bodies, each checking the other. They did not include Judicial Review of the Constitutionality of Laws for the Judicial Branch, but John Marshall, finding himself in a good position to do so, did, hubris and arrogance not aside. My first question about this came many years ago, but as inchoate as my mind and concepts were I did not have the words to express it back then. I can now say "How is all this working for you now?"

(pauses to consider that back then he would have lit another cigarette and further damaged his chances of getting all the way to 2023)

In animal anatomy, including ours, musculature is arranged to compete with other musculature. So we have the triceps checking and balancing the bicepts on the upper arm. Similarly, all over the body skeletal muscles are arranged in opposition to one another, but smooth muscles like those in the gut and uterus and arteries act alone, contracting or not, same with the cardial muscle which contracts automatically whether it is in a human being or a petri dish. As Man is the Measure of All Things, the Framers adopted the Montesquevian idea, understanding it to be natural, probably invented by God.

To recap for a second: we began with the idea that guarantees of constitutional, democratic representation refers that responsibility to all of the US not simply its central government or parts of it. We have just noticed that the root metaphor for the Constitution is primarily about establishing opposing forces, given perhaps that no one believe(s) that human nature will change, which notion, however, is precisely the foundational notion in the predominant religion of the nation, by the way! What both of these ideas suggest compellingly is that oppositional structures need to have a higher imperative: COOPERATION. (That single word is usually the cue for some veal-faced jerk in the back of the classroom to mutter "commie" to himself.)

Article IV, Section 4 is that sort of statement, but did you know there was such a statement there and what it means? Probably not. The history of the founding of the nation begins with the 16th century beginnings of the modern world in England and Scotland and Italy, France, and parts of what later became Germany, and parts of Spain (although the rapine conquest of the Aztecs, Maya, and Inca of the new world provided Spain with a glut of gold and all of the bad parts of human nature for several more hundreds of years.) The Renaissance and Reformation and Enlightment periods in Europe did not affect everyone or anyone all at once, except at Oxford, Cambridge, Padua, etc. But, if you had been there with what we euphemistically call a high school education, you would have been thrilled and frightened.

For their part the Framers, some of them in the New World for four generations in the previous and then four more in the 18th centuries, were settled in locally, but not at all pleased with the significant world view differences among and within (some) colonies. Rhode Island was New England's "naughty" piece, but nothing compared to Maryland's large Catholic Pope-facing majority, and slavery there and on industrial scales further to the south. Cooperation among the colonies was a daunting concept, yet, in Philadelphia the conclusion was easily reached that, given a hostile frontier to the west and British north and more distantly the Spanish south (except that Florida was Spanish, but mostly swamp), agreeing to be one country together was imperative. If they tried it as two countries N & S there were sufficient reasons to believe they would be at one another's throats in no time. The decision for Union was along the lines of the world-wise "Keep your friends close; keep your enemies closer!" You will not get this interpretation in high school in Florida, by the way.

I believe that the young learn much from their parents and their friends and enemies without being formally taught, although clearly there are points made and principles enunuciated. If you grow up in a God-given regime of checks and balances and the imperatives to cooperate are only softly spoken, what will you become? You will be instinctively hesitant about cooperation, lest you be made a fool.

It turns out that the reverse is also true. If you cannot buy into cooperation as the mainstream of community and national life and governance you will always wonder why things are so continuously dishearteneing and often so hideously wrong.



23 February 2023

While We Have the Senate (rev.)
~600 words

Although more Democratic Senate seats than Republican are up for re-election in 2024 the chances are pro!bably good that Democrats can hold the Senate and retake the House, especially if "Speaker" McCarthy (what's in a name, "Charlie" or Joe) continues to "follow" his lemmings over the cliff. Americans are generally not stupid, but they are human and when overcome with grief and grievance are more susceptable to propaganda. Fox Noise has been outed as a fountain of falsity and the outflow from that will ripple outward for years. Rupert will die and the big three propagandists will convert their stock into resignation letters.

Recently I filled out a Biden-Poll and listed the Supreme Court as my most urgent item, ahead even of Climate Change and the Ukraine War. The facts on the ground are quite clear. The Judiciary in the US is in trouble. Courts from top to bottom are overburdened, maladministered, and given that they are in service to and by human beings an unacceptable crap-shoot. It is not reasonable to expect the nation to progress or even hold its own if one of the three branches of government is malfunctioning

Having said that: the Legislative Branch was and is thought to be the most likely to malfunction, and it is, but not completely. Trumpist and other forms of fascism have manifested there before, and moreover, bicameralism is one of the major checks on corruption. (Unicameral Nebraska does not prove the opposite. It is a rock solid conservative oligarchy.) And, lest we fall into a coma of some kind, the Executive Branch was malfunctioning for four seemingly endless years recently. It is a tribute to honest men and women that our government survives. It is not guaranteed, though.

The US Supreme Court should be the leadership of the Judiciary in the nation, but it is not. Until the second half of the 20th c. it was indistiguishable from an old men's club—with notable exceptions. The current Court is corrupt and the Chief Justice inept. The worse part of it is that the Court sees itself as a Jedi Star Chamber, but act like so many Ayatollahs above the rest of us intellectually and morally. Nothing could be further from the truth!

President Biden must screw up his political courage and appoint six new members to the Court. Each member should be encouraged to understand that the appointment requires them to accept the following:

(1) publically, they are accepting the nomination and consent of the Senate for 15 year terms of office during and clarifying the Constitution's term "good behavior," that is to expose the flaw in "for life" notions, no member shall be required to serve until deceased, rather, as 15 years as the longest term of Senatorially approved tenure, thus achieving the practical essence of detachment from the passions of politics;

(2) publically, they are accepting the code of ethics governing every other level of the federal judiciary; and

(3) publically, they are taking under consideration the fact that "judicial review," as we have known it since Marbury v. Madison is actually a legislative function, specifically and deliberately excluded from (not included in) the Constitution, and so, that any case thought to be "unConstitutional" would require UNANIMITY in support of that decision. In all cases where there is an opinion about constitutionality, the case and opinions shall be referred initially to the US Senate for consideration as regular legislation.

The SCOTUS currently hears somewhat fewer than 200 of the 7000+ cases it is asked to review. The expanded Court shall continuously monitor the lower courts of the federal judiciary for signs of maladministration, bottle-necks, and lapses of integrity. The US Senate and President shall make this clear to all Justices.



19 January 2023

Unicorns and Cover-Ups
~900 words

Today on MSNBC's "Deadline White House" with Nicolle Wallace we heard that the Supreme Court's investigation of itself did not uever the source of the leak of Justice Alito's draft of his decision to overturn Roe v. Wade. The panel on this subject were four persons, so with Nicolle five. The NBC Judiciary Reporter explained in earnest detail what the Marshall of the Supreme Court did to uncover the source. The urgency of discovering it was seemingly racheted upwards by Justice Alito stating that the leak very well could lead to assassination of Justices—presumably thest conservatives who would in a few weeks actually vote to over-turn Roe. The reporter bought that imperative and so did Nicolle.

Frank Figliuzzi, former Deputy Director of Counter Intelligence at the FBI, quickly said that, if the Court had really intended to find out, they would have asked someone with training in investigations to do it and certainly not a person who is an employee of the Court. Former RNC Chairman Michael Steele agreed with Frank and pointed out the political side of the situation as a Court with a 25% public approval rating declining to show any more of its internal laundry. Then Dahlia Lithwick, who is sort of the dean of judicial journalists cleverly observed, as she already had in her recent book, that the Court is depending on its reputation as nine persons of unquestionable integrity who fly into work on unicorns and hope that that mythology holds tight. It was a telling moment, because Dahlia's bread and butter is the Court and she had just "impeached" the very essence of it.

Everyone was polite, with Nicolle and the NBC reporter still believing that there would be further investigations, mainly because Alito had exclaimed how dangerous it—the leak—was for the security of the Justices. So, there are a couple of things that need to be pointed out about that. The draft opinion leaked was essentially unchanged when Alito presented his "final" opinion weeks later. Therefore, if the draft contained information that would incite assassins, then the actual opinion would do the same. Yes? At this point my pledge to myself to respect the intelligence of Justices racheted downward.

Why did Alito assert that his (and others' of the conservatives') lives were now in danger. It seems at least possible, and in certain kinds of deception psychology, probable, that he was deflecting suspicion from himself. It is hard to say for sure, but the whole fracus today sort of hangs on the problems that no transparency in the Court creates, such that "leaks" are so "devastatingly" problematic. And, while you are thinking about that and knowing that only 25% of the public think the Court is doing an accepable job, and hearing over the past few days about how much rancor and distemper exists between the Justices, the "stench" described by Justice Sotomayor begins to suggest that we must do something about this Court and the Court as a reliable component of our government generally.

As you know the Framers of the Constitution intended that the Supreme Court NOT be the body that considers the Constitutionality of legislation. Rather, it was to be the so-called court-of-last-resort, a place and composed of learned jurists, who would say "yay or nay" to how the lower courts handled themselves in carrying out Justice. It could happen that a majority of the Justices would agree that a statute might be so poorly written—and we already know that some are written by exceedingly partisan people who are not members of Congress,—that they would say so, without arrogating to themselves what the Framers deliberately denied them, the power of Judicial Review, the right to declare anything unConstitutional. If the Court believed that some law was in conflict with a provision of the Constitution OR that some law went beyond what the Framers intended, they could say so to the Congress, and Congress as the Legislative body could consider it.

We learned in high school that there are "elastic clauses" that have been used to legislate things the nation needs: like an Air Force, which was clearly unimagined in 1789, like a National Institute of Health, like the National Science Foundation, like an FBI, like a Korean "police action," like nuclear weapons, like NASA, the Federal Reserve, and on and on. What powerful people in and out of government did not want: legislation prohibiting slavery. John Marshall was born in Virginia and held office in the Virginia House of Delegates before being selected to the Court.

Overturning Roe was not like how Brown v. Board of Education of Topeka, Kansas overturned Plessey v. Ferguson, which in 1896 declared that state-mandated segregation laws did not violate the equal protection clause of the 14th Amendment. Overturning Marbury v. Madison will not be like either of those overturnings. Marbury v. Madison (1803) was Chief Justice John Marshall's opportunity to invent and insert Judicial Review, as one of the checks and balances of our form of government. Yes, but the Framers specifically—and after considerable debate—rejected the idea. Let the so-called "originalists" chew on that for while. It is totally absurd to have the fate of deliberations of the two houses of Congress and the consideration of the President of the United States overturned by a simple or any other kind of majority of nine persons. It is ludicrous, and into the bargain the current Court no longer has the respect of the People.



10 January 2023

The US Department of Justice
~800 words

It is possible that the news today, or at most these past seven days, will not be absorbed by the majority of those normally reading about or watching on television the distillation of what's-going-on by coexmporary journalists and opinion-makers who are not actually journalists. By absorbed we mean comprehend—to mentally grasp the complete nature or meaning of the news. To say "complete" is to exaggerate how well anyone does it, but most people take in the constellation of facts and assertions together with the logic customarily accorded those kinds of information, and whether they muse about the news or not, they generally file the pieces in memory morless correctly. Sometimes we encounter stuff for which we have no experience, so the comprehension is de novo, from scratch.

One of the things we "news comprehenders" are experiencing nowadays is the deluge of information available by technical means that were not available 100 years ago: television and the internet. The question is: does this mean we actually comprehend less, because every news story competes with every other and so we triage our inputs. And, crucially, is this true of government, too. Particularly, it is obvious that the US Department of Justice was swamped by the insurrection of January 6, 2021 and had to hire on a lot more help.

It may not be apparent, though, that the FBI or the equally far flung prosecutorial wing, the United States Attorneys—those who actually prosecute those who according to the evidence have broken the law—may well be victims of the onslaught of too much information. It should be said, first, that the FBI and the US Attorneys are generally more conservative than the nation as a whole. Members like Agent Peter Strzok, formerly of the FBI, has advised panels of discussants on various MSNBC news analysis shows of the inherent personal and possible political conservatism of the FBI and the US Attorneys. Yesterday, Representative Jim Jordon, (R-Ohio) said that the Left was trying to get rid of conservatives in the FBI. This comment suggests a certain political hypochondria on his and his fellow insurrectionists' parts. It also suggests a connection from DoJ to the politicals on the Hill.

So, yesterday, in response to a query online about Merrick Garland, asking whether I approve or disapprove of him, I answered "no." I am in the good company of millions, but not a number sufficient to have forced Garland to have taken up the really tough questions about the January Sixth event and ALL its perps. We do not know what goes on inside DoJ, but the consensus is that they were pursuing only the foot soldiers of the Insurrection, not the politicals, the leaders, many of whom are members of the Legislative Branch of our government, to say nothing of the sympathizers everywhere. The reason I voted against Garland is that we need to hold all accountable for their parts in the Insurrection, include every part of it. And two years later, we have nothing, except a new layer of insulation for AG Garland in the person of Special Counsel Frank Smith, who may have relieved Garland of a job he is personally unable to carry out, or who may be simply a firewall person when it comes time for DoJ to take the "tepid" route and not charge Donald J. Trump with sedition for inciting and aiding an Insurrection.

The thing the news shows do not say very often is what is behind the last 30 years of Republican incendiary behavior and their new insurrection-wielding behaviors. The "fact" is that the kind of people who traditonally, for 150 years supported the GOP are now a hard minority of American voters. Conclusion: Republicans will increasingly lose elections and then fade out of existence. Scratch Jim Jordon or Kevin McCarthy or Mark Meadows and you will hear that directly or enthymemetically, because it is so galling to them, and, more obviously, because they do not know how to change their program enough to inveigle voters to take their side.

The situation is reaching a boil. How long does it take to boil a political agenda? It does not take two years. The policy of the Jim Jordans and MTGreens and scores and scores of others, say 175 in the House alone, is to disrupt and compromise as many Demcratic people and programs as possible. They will continue with alacrity until the guilty among them are brought to account for their sedition, and that hangs on Frank Smith and Merrick Garland. Last year I gave Garland a few months to get it together. He is now very much overdrawn at my bank.



July-December 2022 Essays