The disappointment over President Obama's State of the Union Address was almost palpable. While the response of domestic commentators was, from a Just Third Way perspective, somewhat muffled, foreign news commentators had an unvarnished and un-spun reaction: what Mr. Obama called for was "from each according to his ability, to each according to his needs." From our perspective, it will be an easier "sell" than the Republicans' "Don't tax the rich" gambit. Of course, something along the lines of Capital Homesteading would beat it all hollow, so here's what we've been doing to move things forward:
• Due to the press of business, we've not been debriefed on the Economic Justice Summit in Hartford last week, other than to say that things went well. We hope to have a full report by next week.
• Norman Kurland has been interviewed on Rick Tormala's Tuesday With Tormala show, and is stirring up a great deal of interest in the ideas of the Just Third Way, especially their conformity with the essential principles of Chesterton and Belloc's "distributism."
• Universal Values Media, Inc., one of the companies dedicated to Justice Based Management and to spreading the word about the Just Third Way, has started a new program providing e-books in Kindle, [] each of which explores in fictional form some aspect of the Just Third Way, usually expanded capital ownership. These are planned to be short "novellas" of approximately 25-30 words each, and are priced to sell at the token price of 99¢. The first three are out now, and are in the "humorous science fiction" subgenre. If you want some "lite" entertainment to take a break from the in-depth material on the CESJ website and this blog, give the e-books a try. We think you'll enjoy them — and tell your friends about them. We may not have the "pitch" down right, but we're refining it. The books themselves are fine.
• Norman Kurland had a meeting with Rob, a restaurateur in Washington, DC on Thursday. The meeting went well, and was intrigued by what he heard.
• Monica in Ohio has been working hard to get a handle on the complex monetary and financial theory of the Just Third Way, and is looking forward to applying the concepts, both in CESJ and for EEI.
• Chris O. and Michael Greaney represented CESJ at the pre-March for Life reception of the Catholic Radio Association hosted by the Columbia School of Law at the Catholic University of America. A number of brochures were distributed for Supporting Life, and a number of people seemed interested in the idea of a Pro-Life economic agenda as a way of moving things forward. A CESJ representative may be invited to participate in the Catholic Radio Association's annual "Radiothon" in April to talk about these ideas and the application of principles of social justice to the movement.
• As of this morning, we have had visitors from 54 different countries and 49 states and provinces in the United States and Canada to this blog over the past two months. Most visitors are from the United States, the UK, Canada, Australia, and the Philippines. People in Croatia, Australia, the United States, the UK and the Netherlands spent the most average time on the blog. The most popular postings this past week were "It's the Academics v. the Politicians . . . v. Economic Reality, Part III: Finance," "Ron Paul and Creating Money," "Raw Judicial Power, Part I: The Assault of Legal Positivism," "Thomas Hobbes on Private Property" and "Raw Judicial Power, Part IX: Scott v. Sandford."
Those are the happenings for this week, at least that we know about. If you have an accomplishment that you think should be listed, send us a note about it at mgreaney [at] cesj [dot] org, and we'll see that it gets into the next "issue." If you have a short (250-400 word) comment on a specific posting, please enter your comments in the blog — do not send them to us to post for you. All comments are moderated anyway, so we'll see it before it goes up.
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Friday, January 27, 2012
Thursday, January 26, 2012
Raw Judicial Power XIII: The Effect of the Slaughterhouse Cases
As we saw in the previous postings in this series, the Supreme Court's attacks on liberty and property in Scott v. Sandford (1857) and the Slaughterhouse Cases (1873), respectively, laid the foundation for an entirely new conception of government, at least in the United States. Common as the authoritarian State was at times in Europe (although not as common as many modern pundits believe), the United States had been founded on the assumption of the sovereignty of the human person as the basis of the social order; "We, the People," was not construed as a statement of collectivism, but of an assembly representing sovereign individuals coming together as political animals to form a particular State that best served their needs in a manner compatible with essential human nature.
By undermining the natural right of liberty (freedom of association/contract), the Dred Scott case reinforced the denial of basic human rights to a specific group. The group was not simply black slaves, but all people of Sub-Saharan African birth or descent. This made the determination of whether any group could be "persons" (that is, have rights) under the Constitution no longer a matter of natural right, and thus inhering in every human being, but a matter of political expedience. Previously slavery had been admitted as an expedient, an abrogation of natural liberty for the good of the State and the economic survival of the nation. Slavery was now under Scott considered the natural order, with liberty being conferred as expedient.
Liberty — and, by implication, all other natural rights — was now dependent on the needs of the State or the desires of whoever had power. The Scott decision even expanded the concept of "slave" — legally a condition of being without rights — from those held in bondage, to all members of a class, whether slave or free: black Africans and their descendants. Man was no longer by nature to be considered free, and thus a "person," but depended on the say-so of the State.
This was directly contrary to the conception of the State and its power in the western tradition that gave birth to the United States, and, lacking the act of social justice or a more realistic framework to understand economic and social development, forced the country into civil war. It must certainly be acknowledged that the new country had integrated a fundamental flaw into its constitution by admitting, even defending chattel slavery. Some of the Founding Fathers, notably George Mason of Gunston Hall, recognized this contradiction, and worked (albeit unsuccessfully) to remove it. As Abraham Lincoln reminded everyone decades later, a nation cannot endure half-slave and half-free.
We can make the same comment today about the Welfare State that is half-capitalism and half-socialism, but with even more force. There is, after all, the possibility of a nation enduring that is all slave, and certainly all free, but no nation can survive being either capitalist or socialist, regardless of the immense efforts to make either work over the past two centuries — an effort for which we are now paying the price, with the paradox of enormous personal wealth side-by-side with immense poverty and insurmountable debt, both public and private.
The fact is, in the Dred Scott case, the Supreme Court effectively set itself up as the supreme power in creation, with the power to re-define the natural law and thus the basis of society itself. This is directly contrary both to the clear intent of the Founders, as William Crosskey demonstrated, and to the whole conception of the State in the western tradition. As the solidarist Wilhelm Schwer explained,
"As in its nature, so also in its activity the state is subject to laws that are above it. Although it is the highest power on earth, yet it is incorporated in a moral order that binds and limits it. Consequently state power finds its principal and insurmountable barrier in natural and divine law. It is also limited through the existence and realm of activity that natural law grants to the individual, the family, and, to a certain extent, to the free associations." (Wilhelm Schwer, S.T.D., Catholic Social Theory. St. Louis, Missouri: B. Herder Book Co., 1940, 270-271.)
In other words, man is not made for the State. The State is made for man. The decision of the Supreme Court in Scott v. Sandford, however, undermined, if not completely eliminated reference to the natural law from the consideration of constitutional issues. It thereby sowed the seeds of confusion that not only led to the Civil War, but to the great conflict between capitalism and socialism that continues to this day, the focus on which completely obviates consideration of a viable and just third way, to say nothing of a workable solution to the debate over legalized abortion.
Assuming that there is a necessary conflict between natural rights and the ability of the State to confer benefits on selected groups at the expense of others leads to taking positions that are both inherently contradictory and directly at odds with common sense. As one allegedly Pro-Life economist asserted in an effort to justify easing up on efforts to end legalized abortion to secure socialist welfare and redistribution without, evidently, considering what he was saying, "We need to recognize that there are Ten Commandments, not one or two. Along with the Fifth Commandment (murder of the innocent) and the Sixth Commandment (against sodomy) there is also the Seventh, about stealing (depriving the working man of his just wages), and the Eighth, about lying (a devastating war based on lying)." (Dr. Rupert J. Ederer, Letter to The Wanderer, 12/07/2006.)
Thus, in a startling paradox, the Supreme Court's decision in Scott took a "socialist" view of the State to defend the agrarian capitalism of the American South, against the industrial and commercial capitalism of the North. Perhaps even more surprising is that the South, by and large, accepted the defense. This is another paradox mirrored in the 20th century when, to defend his absolute exercise of private property over the Ford Motor Company, Henry Ford destroyed the property rights of minority owners (Dodge v. Ford Motor Company, 1919). The 14th Amendment attempted to reverse this descent into legal, social and moral positivism — which, as Heinrich Rommen commented, leads eventually into complete moral relativism and, finally, nihilism — but was in turn nullified by the Supreme Court's decision in the Slaughterhouse Cases.
To pile paradox upon paradox — all derived, evidently, from the perceived necessity of using only previously accumulated savings to finance new capital formation — both capitalism and socialism would use the new conception of the role of the State to justify their respective positions. Impartial observers could thus legitimately claim to see no real difference between the two systems, except for the critical recognition of the right to private property in capitalism — a right that socialism simply rejects outright, and that capitalism renders impossible to exercise for most people.
Thus we can justly say that where socialism is completely in the wrong, being ideologically committed to rejecting the natural law, capitalism is almost completely in the wrong, and being right in one small area for the wrong reasons!
To explain, by rejecting the natural law outright, socialism attempts to use the power of the State to coerce desired, even necessary ends. This is by the simple — if completely unworkable — expedient of changing definitions of essential rights, especially private property, but ultimately liberty and life as well. The State thereby arrogates to itself the power of God by using the principles of charity instead of justice to achieve desired ends. This, as Leo XIII reminded us, is "a duty not of justice (save in extreme cases), but of Christian charity — a duty not enforced by human law. But the laws and judgments of men must yield place to the laws and judgments of Christ the true God, who in many ways urges on His followers the practice of almsgiving." (Rerum Novarum, § 22.)
Obviously, the State's desire to "play God" and redefine basic natural rights is not something that the Catholic Church, or any other religious body adhering to the Aristotelian ideas of ethics and politics, can excuse or admit. We cannot let our frustrations overcome us and use either our own bullying or the coercive power of the State to force ends, however desirable, on others, either individually or as a group. The end result is always to use the power gained in less acceptable ways, such as to eliminate entire populations of presumed undesirables, such as the Jews, or to permit abortion for individual expedience.
Thus, Pope Pius XI could declare, "If Socialism, like all errors, contains some truth (which, moreover, the Supreme Pontiffs have never denied), it is based nevertheless on a theory of human society peculiar to itself and irreconcilable with true Christianity. Religious socialism, Christian socialism, are contradictory terms; no one can be at the same time a good Catholic and a true socialist." (Quadragesimo Anno, § 120.) The same is equally true of Judaism and Islam, as well as every other ethical or religious system based on the natural law.
Given Karl Marx's definition of socialism, "the abolition of private property," we can understand the solidarist position on ownership and the fundamental importance of the correct understanding of private property and its widespread participation for a just social order: "[A]ll theories of property that deny the justification of private ownership or try to limit it to certain categories of goods, are erroneous. Also the soil, upon which human existence and society are based, can be the rightfully and legally protected property of the individual. This view should be maintained against agrarian communism and nationalization of land and socialization of housing, and against Rousseau, who wished that a superman would destroy all boundaries." (Schwer, op. cit., 318.)
This does not, however, admit the capitalist theory that the exercise of property is to be considered as absolute as the right to be an owner, inherent in every human being, or that the exercise of property, even limited by the needs of the common good, is to be confined to a small elite. Everyone has the absolute right to be an owner, but no one has the right to exercise his or her property absolutely. As Schwer explained, "Ownership is dominion. As master of his property the individual is subordinate to God, who never renounces and never can renounce His divine right of possession. Therefore no property is without obligations and responsibilities, no power over earthly goods is absolute and unlimited." (Ibid., 319-320.)
Every human being consequently has the right by nature to be an owner, and is therefore a natural person, which status cannot be taken away or redefined by the State, however powerful, or however plausible the reason. The State, nevertheless, has the task, in accordance with the wants and needs of its citizens or for legitimate political expedience, to define in what manner property may be exercised (usually in such a way as not to harm other individuals, groups, or the common good as a whole), and even, in some cases, what may be owned.
Nevertheless, this power that the State has to define the exercise of rights necessarily falls within strict limits; the power of the State is not absolute. The State's power to define the exercise of rights must never turn into re-definition, thereby abrogating rights instead of limiting them for the optimal benefit of individuals and the functioning of the common good. As Pius XII commented in his encyclical Evangelii Praecones (1951), quoting from his Christmas Message of 1942,
"The dignity of the human person then, speaking generally, requires as a natural foundation of life the right to the use of the goods of the earth. To this right corresponds the fundamental obligation to grant private ownership of property, if possible, to all. Positive legislation, regulating private ownership may change and more or less restrict its use. But if legislation is to play its part in the pacification of the community, it must see to it that the worker, who is or will be the father of a family, is not condemned to an economic dependence and servitude which is irreconcilable with his rights as a person.
"'Whether this servitude arises from the exploitation of private capital or from state absolutism, the result is the same. Indeed, under the pressure of a State which dominates all and controls the whole field of public and private life, even going into the realm of personal opinions, projects and beliefs, the loss of liberty is so great that still more serious consequences can follow, as experience proves.'" (§§ 52-53)
In other words, while the State has a heavy responsibility to define the exercise of natural rights properly, it may never use its power to define them improperly, that is, in such a way as to nullify the underlying natural right, resulting in the loss of liberty.
The problem was that, with the Slaughterhouse Cases, the Supreme Court — as it did in Scott v. Sandford — did not simply single out an individual or group for denial of fundamental rights. That was bad enough, especially in the climate of legal positivism growing up, for it set a precedent that individuals and even entire groups could be deprived of rights without just cause, despite the due process carried out.
The real issue in the Slaughterhouse Cases, and what outraged William Crosskey, was that the Supreme Court managed to change the entire meaning and even nature of the U.S. Constitution. The effect of the Slaughterhouse Cases was to convert the Constitution from a written document embodying a clear political philosophy based on the natural law and intended to protect the rights of the individual within a social setting, to a means of seizing absolute power through the denial by redefinition of the very rights the Court was established to protect.
#30# Read more Entry>>
By undermining the natural right of liberty (freedom of association/contract), the Dred Scott case reinforced the denial of basic human rights to a specific group. The group was not simply black slaves, but all people of Sub-Saharan African birth or descent. This made the determination of whether any group could be "persons" (that is, have rights) under the Constitution no longer a matter of natural right, and thus inhering in every human being, but a matter of political expedience. Previously slavery had been admitted as an expedient, an abrogation of natural liberty for the good of the State and the economic survival of the nation. Slavery was now under Scott considered the natural order, with liberty being conferred as expedient.
Liberty — and, by implication, all other natural rights — was now dependent on the needs of the State or the desires of whoever had power. The Scott decision even expanded the concept of "slave" — legally a condition of being without rights — from those held in bondage, to all members of a class, whether slave or free: black Africans and their descendants. Man was no longer by nature to be considered free, and thus a "person," but depended on the say-so of the State.
This was directly contrary to the conception of the State and its power in the western tradition that gave birth to the United States, and, lacking the act of social justice or a more realistic framework to understand economic and social development, forced the country into civil war. It must certainly be acknowledged that the new country had integrated a fundamental flaw into its constitution by admitting, even defending chattel slavery. Some of the Founding Fathers, notably George Mason of Gunston Hall, recognized this contradiction, and worked (albeit unsuccessfully) to remove it. As Abraham Lincoln reminded everyone decades later, a nation cannot endure half-slave and half-free.
We can make the same comment today about the Welfare State that is half-capitalism and half-socialism, but with even more force. There is, after all, the possibility of a nation enduring that is all slave, and certainly all free, but no nation can survive being either capitalist or socialist, regardless of the immense efforts to make either work over the past two centuries — an effort for which we are now paying the price, with the paradox of enormous personal wealth side-by-side with immense poverty and insurmountable debt, both public and private.
The fact is, in the Dred Scott case, the Supreme Court effectively set itself up as the supreme power in creation, with the power to re-define the natural law and thus the basis of society itself. This is directly contrary both to the clear intent of the Founders, as William Crosskey demonstrated, and to the whole conception of the State in the western tradition. As the solidarist Wilhelm Schwer explained,
"As in its nature, so also in its activity the state is subject to laws that are above it. Although it is the highest power on earth, yet it is incorporated in a moral order that binds and limits it. Consequently state power finds its principal and insurmountable barrier in natural and divine law. It is also limited through the existence and realm of activity that natural law grants to the individual, the family, and, to a certain extent, to the free associations." (Wilhelm Schwer, S.T.D., Catholic Social Theory. St. Louis, Missouri: B. Herder Book Co., 1940, 270-271.)
In other words, man is not made for the State. The State is made for man. The decision of the Supreme Court in Scott v. Sandford, however, undermined, if not completely eliminated reference to the natural law from the consideration of constitutional issues. It thereby sowed the seeds of confusion that not only led to the Civil War, but to the great conflict between capitalism and socialism that continues to this day, the focus on which completely obviates consideration of a viable and just third way, to say nothing of a workable solution to the debate over legalized abortion.
Assuming that there is a necessary conflict between natural rights and the ability of the State to confer benefits on selected groups at the expense of others leads to taking positions that are both inherently contradictory and directly at odds with common sense. As one allegedly Pro-Life economist asserted in an effort to justify easing up on efforts to end legalized abortion to secure socialist welfare and redistribution without, evidently, considering what he was saying, "We need to recognize that there are Ten Commandments, not one or two. Along with the Fifth Commandment (murder of the innocent) and the Sixth Commandment (against sodomy) there is also the Seventh, about stealing (depriving the working man of his just wages), and the Eighth, about lying (a devastating war based on lying)." (Dr. Rupert J. Ederer, Letter to The Wanderer, 12/07/2006.)
Thus, in a startling paradox, the Supreme Court's decision in Scott took a "socialist" view of the State to defend the agrarian capitalism of the American South, against the industrial and commercial capitalism of the North. Perhaps even more surprising is that the South, by and large, accepted the defense. This is another paradox mirrored in the 20th century when, to defend his absolute exercise of private property over the Ford Motor Company, Henry Ford destroyed the property rights of minority owners (Dodge v. Ford Motor Company, 1919). The 14th Amendment attempted to reverse this descent into legal, social and moral positivism — which, as Heinrich Rommen commented, leads eventually into complete moral relativism and, finally, nihilism — but was in turn nullified by the Supreme Court's decision in the Slaughterhouse Cases.
To pile paradox upon paradox — all derived, evidently, from the perceived necessity of using only previously accumulated savings to finance new capital formation — both capitalism and socialism would use the new conception of the role of the State to justify their respective positions. Impartial observers could thus legitimately claim to see no real difference between the two systems, except for the critical recognition of the right to private property in capitalism — a right that socialism simply rejects outright, and that capitalism renders impossible to exercise for most people.
Thus we can justly say that where socialism is completely in the wrong, being ideologically committed to rejecting the natural law, capitalism is almost completely in the wrong, and being right in one small area for the wrong reasons!
To explain, by rejecting the natural law outright, socialism attempts to use the power of the State to coerce desired, even necessary ends. This is by the simple — if completely unworkable — expedient of changing definitions of essential rights, especially private property, but ultimately liberty and life as well. The State thereby arrogates to itself the power of God by using the principles of charity instead of justice to achieve desired ends. This, as Leo XIII reminded us, is "a duty not of justice (save in extreme cases), but of Christian charity — a duty not enforced by human law. But the laws and judgments of men must yield place to the laws and judgments of Christ the true God, who in many ways urges on His followers the practice of almsgiving." (Rerum Novarum, § 22.)
Obviously, the State's desire to "play God" and redefine basic natural rights is not something that the Catholic Church, or any other religious body adhering to the Aristotelian ideas of ethics and politics, can excuse or admit. We cannot let our frustrations overcome us and use either our own bullying or the coercive power of the State to force ends, however desirable, on others, either individually or as a group. The end result is always to use the power gained in less acceptable ways, such as to eliminate entire populations of presumed undesirables, such as the Jews, or to permit abortion for individual expedience.
Thus, Pope Pius XI could declare, "If Socialism, like all errors, contains some truth (which, moreover, the Supreme Pontiffs have never denied), it is based nevertheless on a theory of human society peculiar to itself and irreconcilable with true Christianity. Religious socialism, Christian socialism, are contradictory terms; no one can be at the same time a good Catholic and a true socialist." (Quadragesimo Anno, § 120.) The same is equally true of Judaism and Islam, as well as every other ethical or religious system based on the natural law.
Given Karl Marx's definition of socialism, "the abolition of private property," we can understand the solidarist position on ownership and the fundamental importance of the correct understanding of private property and its widespread participation for a just social order: "[A]ll theories of property that deny the justification of private ownership or try to limit it to certain categories of goods, are erroneous. Also the soil, upon which human existence and society are based, can be the rightfully and legally protected property of the individual. This view should be maintained against agrarian communism and nationalization of land and socialization of housing, and against Rousseau, who wished that a superman would destroy all boundaries." (Schwer, op. cit., 318.)
This does not, however, admit the capitalist theory that the exercise of property is to be considered as absolute as the right to be an owner, inherent in every human being, or that the exercise of property, even limited by the needs of the common good, is to be confined to a small elite. Everyone has the absolute right to be an owner, but no one has the right to exercise his or her property absolutely. As Schwer explained, "Ownership is dominion. As master of his property the individual is subordinate to God, who never renounces and never can renounce His divine right of possession. Therefore no property is without obligations and responsibilities, no power over earthly goods is absolute and unlimited." (Ibid., 319-320.)
Every human being consequently has the right by nature to be an owner, and is therefore a natural person, which status cannot be taken away or redefined by the State, however powerful, or however plausible the reason. The State, nevertheless, has the task, in accordance with the wants and needs of its citizens or for legitimate political expedience, to define in what manner property may be exercised (usually in such a way as not to harm other individuals, groups, or the common good as a whole), and even, in some cases, what may be owned.
Nevertheless, this power that the State has to define the exercise of rights necessarily falls within strict limits; the power of the State is not absolute. The State's power to define the exercise of rights must never turn into re-definition, thereby abrogating rights instead of limiting them for the optimal benefit of individuals and the functioning of the common good. As Pius XII commented in his encyclical Evangelii Praecones (1951), quoting from his Christmas Message of 1942,
"The dignity of the human person then, speaking generally, requires as a natural foundation of life the right to the use of the goods of the earth. To this right corresponds the fundamental obligation to grant private ownership of property, if possible, to all. Positive legislation, regulating private ownership may change and more or less restrict its use. But if legislation is to play its part in the pacification of the community, it must see to it that the worker, who is or will be the father of a family, is not condemned to an economic dependence and servitude which is irreconcilable with his rights as a person.
"'Whether this servitude arises from the exploitation of private capital or from state absolutism, the result is the same. Indeed, under the pressure of a State which dominates all and controls the whole field of public and private life, even going into the realm of personal opinions, projects and beliefs, the loss of liberty is so great that still more serious consequences can follow, as experience proves.'" (§§ 52-53)
In other words, while the State has a heavy responsibility to define the exercise of natural rights properly, it may never use its power to define them improperly, that is, in such a way as to nullify the underlying natural right, resulting in the loss of liberty.
The problem was that, with the Slaughterhouse Cases, the Supreme Court — as it did in Scott v. Sandford — did not simply single out an individual or group for denial of fundamental rights. That was bad enough, especially in the climate of legal positivism growing up, for it set a precedent that individuals and even entire groups could be deprived of rights without just cause, despite the due process carried out.
The real issue in the Slaughterhouse Cases, and what outraged William Crosskey, was that the Supreme Court managed to change the entire meaning and even nature of the U.S. Constitution. The effect of the Slaughterhouse Cases was to convert the Constitution from a written document embodying a clear political philosophy based on the natural law and intended to protect the rights of the individual within a social setting, to a means of seizing absolute power through the denial by redefinition of the very rights the Court was established to protect.
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Wednesday, January 25, 2012
Raw Judicial Power XII: The Slaughterhouse Cases, Aftermath
As we saw in yesterday's posting, the immediate effect of the Slaughterhouse Cases of 1873 was to undermine the institution of private property. This, from the position of America's Founders, was a disaster — but it was not the worst part of the situation. That was reserved for the cementing of the evident assumption of the Court, seen at its previous worst in Scott v. Sandford in 1857, that all rights come from the State, and that nothing, whether liberty (Scott), property (Slaughterhouse), or, eventually, life itself in Roe v. Wade, could truly be said to be an inalienable, natural (absolute) right if the Supreme Court of the United States chose to deny it.
Orestes Brownson had seen what was coming. In The American Republic (1865) he had foretold barely eight years before the Court's decision in the Slaughterhouse Cases that the basis of the conflict — the "culture war," if you will — would shift. Before the Civil War, as well as the war itself, the conflict had been between the industrial and commercial capitalism of the North, and the agrarian capitalism of the South (the former relying on wage slavery, the latter on chattel slavery). It now shifted to being between capitalism — whether industrial, commercial or agrarian — and socialism . . . the former relying on turning almost everyone into a wage slave, the latter on making everyone a welfare slave.
The Homestead Act of 1862 forestalled the total victory of either capitalism or socialism. By fostering widespread ownership of agricultural capital, and, even more, by preserving the idea of widespread ownership, a counter was set up to the concentration of industrial and commercial capital in fewer and fewer hands as the 19th century progressed. The momentum provided by the dynamic pre-war democratic culture, chronicled by Alexis de Tocqueville in Democracy in America (1835, 1840), also helped.
As ownership of commercial and industrial capital became increasingly concentrated and society consequently increasingly complex, however, and the opportunities for "ordinary" people to acquire capital in land faded as the "free" land under the Homestead Act was taken — the "closing of the American frontier" described by Frederick Jackson Turner in 1893 — capitalism and socialism came into direct conflict.
From the standpoint of political economy, especially binary economics, the basic problem was the fixed belief that new capital could only be financed out of existing accumulations of savings. This — and an unhealthy admixture of personality conflicts, especially between Andrew Jackson and Nicholas Biddle — had led to the "War Against the Bank" in the 1830s. Proponents of the banking principle and the currency principle, mirroring the struggle going on in England at the same time, fought to see which idea of money and credit (and, ultimately, of private property, even liberty and life) would prevail.
The currency principle, the idea that "money" is a peculiar creation of the State, won. The banking principle, that "money" is anything that can be accepted in settlement of a debt, lost. In Great Britain the new conception of money was embedded into public policy in the Bank Charter Act of 1844, while in the United States the National Bank Act of 1863 achieved the same end.
Evidently unrealized at the time was the fact that the understanding of money found in the currency principle restricted the direct benefits of economic development to those who controlled existing accumulations of savings (the rich under capitalism), or who were believed to have the exclusive power to create money, and thus redistribute wealth through inflation or deflation (the State under socialism). The wage or chattel slavery of capitalism, and the welfare slavery of socialism were natural, even necessary adjuncts to the perceived reliance on past savings to supply the financing for new capital formation.
Ironically, the entire conflict — and many of the problems that accompanied the rapid economic development that followed the Civil War — could have been avoided had people realized how that same development was really being financed. The problem was that money and credit for small agricultural, commercial, and industrial development was virtually unobtainable, thanks to the policy of deflation to restore parity of the paper currency and gold after the inflation during the war. Ownership for the non-rich was systemically linked to existing accumulations of savings, that which had been withheld from consumption in the past . . . and the non-rich, by definition, do not have savings!
Large development, however (especially the railroads), could obtain all the money and credit desired. This was by subsidy, grant, or — more usually — by drawing and discounting bills of exchange at the new National Banks or state banks, which, at the same time they served as banks of deposit for the non-rich, functioned as banks of issue (commercial banks) for the rich and for the federal government. Ownership for the rich was systemically linked to future savings, what the new capital could produce in the future, not what had been withheld from consumption in the past.
Consequently, the people best able to cut consumption and save for investment in new capital were those who didn't need to use past savings because they had access to future savings. This gave the rich a virtually unbreakable monopoly on the means of acquiring and possessing private property in capital. There were only two ways for those without access to either existing savings or "pure credit" (credit not dependent on existing savings) to become capital owners.
The first was to come up with some new product or service that was somehow self-financing — immediately and highly profitable — to a degree sufficient to make it financially feasible almost from the start, or to enable the entrepreneur to buy out those who provided the start-up financing, and still have sufficient profits left over for consumption purposes and future financing. The second was simply to take what already belonged to someone else, or which was there for the taking.
The Homestead Act was a combination of taking the land by force, but making it freely available to those who met certain conditions. Keynesian "forced savings" is a modern theory of how capitalists force the presumably necessary cuts in consumption by raising prices, and taking the benefits of saving for new investment.
The Court's decision in the Slaughterhouse Cases laid the groundwork for the socialist principle that all rights come from the State. Had not the economy already become oriented toward the presumed dependence on existing accumulations of savings to finance new capital investment, however, it is likely that the Supreme Court's power grab would have been ineffectual.
Unfortunately, coming at a time when capitalism and socialism were coming into conflict — and with the decision so vaguely worded as to mean anything anyone wanted to read into it — both the capitalists and the socialists were able to use the new conception of property to their advantage. Based on the implicit assumption in the decision in Slaughterhouse that all rights come from the State, and could thus no longer be construed as inalienable or inherent (absolute) in the human person, the capitalists were able to assert absolute exercise of private property, while the socialists could — consistently with the same line of reasoning! — claim that private property did not even exist.
The Slaughterhouse Cases, even more than Scott v. Sandford, were a watershed. The decision asserted the rights of the State over the individual, and the virtual negation or nullification of much of the Constitution. Development of this idea has been carried to the point where some Constitutional scholars could (as we have already seen) claim that the idea of the Constitution derived from the ideals expressed in the Declaration of Independence is a written document is a legal fiction!
Individual rights — the very thing the Constitution was expressly written and adopted to protect — were transformed from something inherent in each human being, to whatever the Court wanted them to mean. As Crosskey noted, the decision in Slaughterhouse was "written so as to enable the Court, with a good face, in future cases, to jump either way: to observe the intended meaning of the Privileges and Immunities Clause if that seemed unavoidable, or, in the alternative, to destroy the clause utterly if this seemed safe."
The way was thus paved for an entirely new conception of the role of the State, one directly at odds with the orientation of the Founders of the American republic, and the western tradition of humanity's status as a special creation of a deity with the unique character of a "political animal."
#30# Read more Entry>>
Orestes Brownson had seen what was coming. In The American Republic (1865) he had foretold barely eight years before the Court's decision in the Slaughterhouse Cases that the basis of the conflict — the "culture war," if you will — would shift. Before the Civil War, as well as the war itself, the conflict had been between the industrial and commercial capitalism of the North, and the agrarian capitalism of the South (the former relying on wage slavery, the latter on chattel slavery). It now shifted to being between capitalism — whether industrial, commercial or agrarian — and socialism . . . the former relying on turning almost everyone into a wage slave, the latter on making everyone a welfare slave.
The Homestead Act of 1862 forestalled the total victory of either capitalism or socialism. By fostering widespread ownership of agricultural capital, and, even more, by preserving the idea of widespread ownership, a counter was set up to the concentration of industrial and commercial capital in fewer and fewer hands as the 19th century progressed. The momentum provided by the dynamic pre-war democratic culture, chronicled by Alexis de Tocqueville in Democracy in America (1835, 1840), also helped.
As ownership of commercial and industrial capital became increasingly concentrated and society consequently increasingly complex, however, and the opportunities for "ordinary" people to acquire capital in land faded as the "free" land under the Homestead Act was taken — the "closing of the American frontier" described by Frederick Jackson Turner in 1893 — capitalism and socialism came into direct conflict.
From the standpoint of political economy, especially binary economics, the basic problem was the fixed belief that new capital could only be financed out of existing accumulations of savings. This — and an unhealthy admixture of personality conflicts, especially between Andrew Jackson and Nicholas Biddle — had led to the "War Against the Bank" in the 1830s. Proponents of the banking principle and the currency principle, mirroring the struggle going on in England at the same time, fought to see which idea of money and credit (and, ultimately, of private property, even liberty and life) would prevail.
The currency principle, the idea that "money" is a peculiar creation of the State, won. The banking principle, that "money" is anything that can be accepted in settlement of a debt, lost. In Great Britain the new conception of money was embedded into public policy in the Bank Charter Act of 1844, while in the United States the National Bank Act of 1863 achieved the same end.
Evidently unrealized at the time was the fact that the understanding of money found in the currency principle restricted the direct benefits of economic development to those who controlled existing accumulations of savings (the rich under capitalism), or who were believed to have the exclusive power to create money, and thus redistribute wealth through inflation or deflation (the State under socialism). The wage or chattel slavery of capitalism, and the welfare slavery of socialism were natural, even necessary adjuncts to the perceived reliance on past savings to supply the financing for new capital formation.
Ironically, the entire conflict — and many of the problems that accompanied the rapid economic development that followed the Civil War — could have been avoided had people realized how that same development was really being financed. The problem was that money and credit for small agricultural, commercial, and industrial development was virtually unobtainable, thanks to the policy of deflation to restore parity of the paper currency and gold after the inflation during the war. Ownership for the non-rich was systemically linked to existing accumulations of savings, that which had been withheld from consumption in the past . . . and the non-rich, by definition, do not have savings!
Large development, however (especially the railroads), could obtain all the money and credit desired. This was by subsidy, grant, or — more usually — by drawing and discounting bills of exchange at the new National Banks or state banks, which, at the same time they served as banks of deposit for the non-rich, functioned as banks of issue (commercial banks) for the rich and for the federal government. Ownership for the rich was systemically linked to future savings, what the new capital could produce in the future, not what had been withheld from consumption in the past.
Consequently, the people best able to cut consumption and save for investment in new capital were those who didn't need to use past savings because they had access to future savings. This gave the rich a virtually unbreakable monopoly on the means of acquiring and possessing private property in capital. There were only two ways for those without access to either existing savings or "pure credit" (credit not dependent on existing savings) to become capital owners.
The first was to come up with some new product or service that was somehow self-financing — immediately and highly profitable — to a degree sufficient to make it financially feasible almost from the start, or to enable the entrepreneur to buy out those who provided the start-up financing, and still have sufficient profits left over for consumption purposes and future financing. The second was simply to take what already belonged to someone else, or which was there for the taking.
The Homestead Act was a combination of taking the land by force, but making it freely available to those who met certain conditions. Keynesian "forced savings" is a modern theory of how capitalists force the presumably necessary cuts in consumption by raising prices, and taking the benefits of saving for new investment.
The Court's decision in the Slaughterhouse Cases laid the groundwork for the socialist principle that all rights come from the State. Had not the economy already become oriented toward the presumed dependence on existing accumulations of savings to finance new capital investment, however, it is likely that the Supreme Court's power grab would have been ineffectual.
Unfortunately, coming at a time when capitalism and socialism were coming into conflict — and with the decision so vaguely worded as to mean anything anyone wanted to read into it — both the capitalists and the socialists were able to use the new conception of property to their advantage. Based on the implicit assumption in the decision in Slaughterhouse that all rights come from the State, and could thus no longer be construed as inalienable or inherent (absolute) in the human person, the capitalists were able to assert absolute exercise of private property, while the socialists could — consistently with the same line of reasoning! — claim that private property did not even exist.
The Slaughterhouse Cases, even more than Scott v. Sandford, were a watershed. The decision asserted the rights of the State over the individual, and the virtual negation or nullification of much of the Constitution. Development of this idea has been carried to the point where some Constitutional scholars could (as we have already seen) claim that the idea of the Constitution derived from the ideals expressed in the Declaration of Independence is a written document is a legal fiction!
Individual rights — the very thing the Constitution was expressly written and adopted to protect — were transformed from something inherent in each human being, to whatever the Court wanted them to mean. As Crosskey noted, the decision in Slaughterhouse was "written so as to enable the Court, with a good face, in future cases, to jump either way: to observe the intended meaning of the Privileges and Immunities Clause if that seemed unavoidable, or, in the alternative, to destroy the clause utterly if this seemed safe."
The way was thus paved for an entirely new conception of the role of the State, one directly at odds with the orientation of the Founders of the American republic, and the western tradition of humanity's status as a special creation of a deity with the unique character of a "political animal."
#30# Read more Entry>>
Tuesday, January 24, 2012
Raw Judicial Power XI: The Slaughterhouse Cases (1873)
It should come as no surprise that following the Civil War Congress saw the necessity of overturning the Dred Scott decision. Language was carefully written into the 14th Amendment to preclude such an exercise of "raw judicial power" from ever again taking place.
What Congress did not take into account was the "the spirit of revolutionary change" that had "long been disturbing the nations of the world" noted a generation later by Pope Leo XIII. The abandonment of the absolutes of the natural law in favor of political expedience made the explicit statement of absolute principles in the Constitution something of a farce with the development of the concept of the "living Constitution." Orestes Brownson had noted this when he commented that the war had resulted in the abolition of slavery — and the ending of that disgrace was a very good thing — but on the grounds of political expedience, not the principles of natural law. One proponent of the expedient view of the Constitution went so far as to declare that,
". . . the theory that the Constitution is a written document is a legal fiction. The idea that it can be understood by a study of its language and the history of its past development is equally mythical. It is what the Government and the people who count in public affairs recognize and respect as such, what they think it is. More than this. It is not merely what it has been, or what it is today. It is always becoming something else and those who criticize it and the acts done under it, as well as those who praise, help to make it what it will be tomorrow." (Charles A. Beard and William Beard, The American Leviathan: The Republic in the Machine Age. New York: The Macmillan Company, 1930, 39.)
As far as Crosskey was concerned, the 14th Amendment was intended to counter such a view of the Constitution. The framers of the amendment, however, failed to take into account that the surrounding culture, the political goals of the Supreme Court, and the fact that the Supreme Court had managed to change its own role in a profound and significant manner ensured that the clear meaning of the amendment would not be how it was understood and applied. As soon as the opportunity presented itself, every effort would be made to nullify the 14th Amendment. This opportunity came with the "Slaughterhouse Cases," the decision on which also ensured that the "new things" noted by Leo XIII would pass "beyond the sphere of politics" and make their "influence felt in the cognate sphere of practical economics."
The effect of the 14th Amendment was to take away the powers the Supreme Court had managed to acquire since Marbury v. Madison (1803) — a correct decision that was later misused to expand "judicial review." The power of the Court, however obtained, reached its height with the Dred Scott case. It suffered a serious eclipse with the passage of the 14th Amendment. Consequently, as Crosskey saw it, the Court was not slow to act when the opportunity presented itself to nullify the 14th Amendment.
The opportunity came with what are collectively known as "the Slaughterhouse Cases." According to Crosskey, the Court used the Slaughterhouse Cases to bring about an effective abrogation of the 9th and 10th Amendments, and a partial abrogation of the 14th Amendment. This was to have serious consequences down to the present day, especially on the concept of private property and other individual natural rights, particularly life and liberty. As a result of the decision in the Slaughterhouse Cases, the Supreme Court gained immense power at the expense of both the Congress and the people. This is why the 14th Amendment is often cited in "landmark" cases such as Roe v. Wade.
The facts in the Slaughterhouse Cases are relatively straightforward. The slaughterhouses that served New Orleans were located about a mile and a half upstream of the city. Waste was simply dumped into the water. As a result, the city's drinking water was unfit for human consumption, and the city suffered from eleven cholera epidemics between 1832 and 1869. A New Orleans grand jury recommended that the slaughterhouses be moved downstream, but it lacked jurisdiction. Then, in 1869, the Louisiana legislature passed "An Act to Protect the Health of the City of New Orleans, to Locate the Stock Landings and Slaughter Houses, and to incorporate the Crescent City Livestock Landing and Slaughter-House Company."
This seems simple enough, and the story is so related in popular sources, e.g., the Wikipedia. For the public good, all butchers operating in and around New Orleans would be required to use the facilities provided by the new corporation, be subject to inspection, and no individual or company would face discrimination in access to the facilities. The subsequent lawsuits by various individual butchers, companies, and associations thus seem, on the surface, to be an example of typical 19th century laissez faire capitalist assertion of property rights over human rights. As Crosskey related the story, however, additional details come to light:
"The state act there under attack had been passed by the 'carpet-bag' legislature of Louisiana, under 'a shallow pretence,' as Justice Stephen J. Field, of California, put it in his dissenting opinion, of enacting 'sanitary regulations' for the protection of the meat supply of the city of New Orleans. In actual fact, the act was one to incorporate seventeen favored citizens as the Crescent City Live-Stock Landing and Slaughter-House Company and to grant to them, in the corporate capacity thus conferred, a twenty-five-year monopoly of the business of maintaining stock-landings, stock-yards, and slaughter-houses, within an area of some twelve hundred square miles in and around the city in question. The sanitary regulations consisted merely of a stock-inspection provision and certain restrictions as to the areas in which the new company's facilities might be erected; but if the company could conduct its business subject to these simple regulations with safety to the public health, there was, as Justice Field persuasively observed, no reason why the individual butchers compelled by the act to hire the facilities of the defendants could not, with safety to the public, do the same. So, the sanitary excuse was a pretty transparent cover for a state-created monopoly; and because every such monopoly consists essentially in a giving to the monopolist of a specific protection which is denied to others, the fact that the Louisiana act was in plain violation of the Equal Protection Clause of the new amendment, under anything like a literal and straightforward reading, cannot very well be denied. In that sense, then, the act 'abridged' an 'immunity' belonging to the whole class of 'citizens of the United States' and was, accordingly, in violation, technically, of the Privileges and Immunities Clause of the amendment, as well."
The clear intention of the 14th Amendment was to secure basic natural rights and the same civil rights enjoyed by all other citizens to people who had previously been denied protection for those rights. Further, there was to be no denial of these rights in the future. What the Court did, however, was shift the ground from whether or not someone's or some group's natural or civil rights had been violated, to the "non issue" as to whether rights conferred by a state, or those conferred by the federal government were superior. In the process, the basis on which the Dred Scott decision had been rendered was egregiously misstated.
The presumed conflict between state and federal governments as the source of rights is why the Slaughterhouse Cases are considered pivotal in civil rights law — and why the Court's decision didn't even address the civil rights — inherent in each person, not delegated from the State! — that were violated. The Court did not, in fact, address the issue whether anyone's rights were violated under the Equal Protection Clause. Instead, "What they did deny was that the Equal Protection Clause, or any other provision of the Constitution applying to the states, had been violated."
The fact that there were four dissenting opinions did not alter the basic decision of the Court, or its future interpretation. As Crosskey related, the four dissenting justices disagreed with the majority that the privileges and immunities of U.S. citizens should be limited to those specifically enumerated in the Constitution. This point, manifest in the Constitution, was brought forcefully home to the majority, the language being extraordinarily inflammatory, the minority going so far as to accuse the majority of an unlawful purpose in promoting such an obviously unjust reading of the language of the Amendment.
Unfortunately, the dissenting justices then undermined their own position by confusing the meanings of the terms used, and thus the natural right to be an owner, with the legitimate role the State plays in defining what an owner may do with what he or she owns. The dissenting justices claimed that limitation of a right, in the sense of defining the proper exercise thereof, was tantamount to "abridgment" of that right, and that, consequently, as Crosskey explained, "the Privileges and Immunities Clause forbade the states to 'abridge' any of an indeterminate number of vague and indefinite 'privileges and immunities which of right belong[ed],' so the minority said, 'to the citizens of all free governments."
Further, the evidence suggests (as Crosskey related) that the minority justices were absolutely convinced that they were defining basic rights accurately. The fact that their analyses were directly at odds with the natural law basis of the Constitution, and that they were actually assisting the majority in changing the nature of what it means for something to be "owned" does nothing to alter their deep sincerity. It is a testament to the inherent honesty of the minority in the face of what they saw as an exercise of what would a century hence in Roe v. Wade be termed "raw judicial power" that years later, in 1892, Justice Field repudiated his earlier stand that, effectively, gave the federal government in the person of the Supreme Court the power to grant and revoke natural rights. As Crosskey related,
"'After much reflection,' Justice Field confessed, in dissent from the Court's decision [in the matter of O'Neil v. Vermont], 'I think the definition given at one time before this court by a distinguished advocate — John Randolph Tucker, of Virginia — is correct, that the privileges and immunities of citizens of the United States are such as have their recognition in or guaranty from the Constitution of the United States'."
In other words, the State, whether in the person of local, state, or federal governments, does not grant rights. The State can only recognize or guarantee rights, not create them.
In light of this confusion, the majority justices in Slaughterhouse could, according to Crosskey, easily have dealt with this issue by explaining that they were using the term "abridge" in the sense of proper limitation, not "abridge" in the sense of violation. The majority did not do so, suggesting that they knew full well they were inserting an unacceptable degree of ambiguity into the interpretation of the law so as to increase the power of the Court, and render the 14th Amendment meaningless. As Crosskey concluded his discussion on this point, "And all this being true, the fact that the majority chose, as we shall see, rather to be ambiguous and evasive upon this point, strongly suggests that the minority Justices knew whereof they spoke; a conclusion well confirmed by other evidence." In summing up, Crosskey concluded,
"So, the Court's opinion in the Slaughter-House Cases was, undoubtedly, most craftily written; written so as to enable the Court, with a good face, in future cases, to jump either way: to observe the intended meaning of the Privileges and Immunities Clause if that seemed unavoidable, or, in the alternative, to destroy the clause utterly if this seemed safe. And the fact that this elaborate preparation was made also means that the majority Justices saw and fully comprehended the possibility of the intermediate, plain, and sensible meaning of the Privileges and Immunities Clause here expounded, to which, indeed, Justice Bradley called attention, in his dissenting opinion. So, the majority must, as the minority charged, already have determined, if they dared, to destroy this new provision of the Constitution completely."
Thus, in a baffling paradox, the Slaughterhouse Cases should have been a simple case of defining the legitimate exercise of private property within a system in which the underlying right itself (the right be an owner) remained untouched. Instead, the situation became a pawn in an effort to increase the power of the Court at the expense of basic human rights held by the people, and those delegated by the people to the other branches of government, culminating in 1973 with the decision in Roe v. Wade.
#30# Read more Entry>>
What Congress did not take into account was the "the spirit of revolutionary change" that had "long been disturbing the nations of the world" noted a generation later by Pope Leo XIII. The abandonment of the absolutes of the natural law in favor of political expedience made the explicit statement of absolute principles in the Constitution something of a farce with the development of the concept of the "living Constitution." Orestes Brownson had noted this when he commented that the war had resulted in the abolition of slavery — and the ending of that disgrace was a very good thing — but on the grounds of political expedience, not the principles of natural law. One proponent of the expedient view of the Constitution went so far as to declare that,
". . . the theory that the Constitution is a written document is a legal fiction. The idea that it can be understood by a study of its language and the history of its past development is equally mythical. It is what the Government and the people who count in public affairs recognize and respect as such, what they think it is. More than this. It is not merely what it has been, or what it is today. It is always becoming something else and those who criticize it and the acts done under it, as well as those who praise, help to make it what it will be tomorrow." (Charles A. Beard and William Beard, The American Leviathan: The Republic in the Machine Age. New York: The Macmillan Company, 1930, 39.)
As far as Crosskey was concerned, the 14th Amendment was intended to counter such a view of the Constitution. The framers of the amendment, however, failed to take into account that the surrounding culture, the political goals of the Supreme Court, and the fact that the Supreme Court had managed to change its own role in a profound and significant manner ensured that the clear meaning of the amendment would not be how it was understood and applied. As soon as the opportunity presented itself, every effort would be made to nullify the 14th Amendment. This opportunity came with the "Slaughterhouse Cases," the decision on which also ensured that the "new things" noted by Leo XIII would pass "beyond the sphere of politics" and make their "influence felt in the cognate sphere of practical economics."
The effect of the 14th Amendment was to take away the powers the Supreme Court had managed to acquire since Marbury v. Madison (1803) — a correct decision that was later misused to expand "judicial review." The power of the Court, however obtained, reached its height with the Dred Scott case. It suffered a serious eclipse with the passage of the 14th Amendment. Consequently, as Crosskey saw it, the Court was not slow to act when the opportunity presented itself to nullify the 14th Amendment.
The opportunity came with what are collectively known as "the Slaughterhouse Cases." According to Crosskey, the Court used the Slaughterhouse Cases to bring about an effective abrogation of the 9th and 10th Amendments, and a partial abrogation of the 14th Amendment. This was to have serious consequences down to the present day, especially on the concept of private property and other individual natural rights, particularly life and liberty. As a result of the decision in the Slaughterhouse Cases, the Supreme Court gained immense power at the expense of both the Congress and the people. This is why the 14th Amendment is often cited in "landmark" cases such as Roe v. Wade.
The facts in the Slaughterhouse Cases are relatively straightforward. The slaughterhouses that served New Orleans were located about a mile and a half upstream of the city. Waste was simply dumped into the water. As a result, the city's drinking water was unfit for human consumption, and the city suffered from eleven cholera epidemics between 1832 and 1869. A New Orleans grand jury recommended that the slaughterhouses be moved downstream, but it lacked jurisdiction. Then, in 1869, the Louisiana legislature passed "An Act to Protect the Health of the City of New Orleans, to Locate the Stock Landings and Slaughter Houses, and to incorporate the Crescent City Livestock Landing and Slaughter-House Company."
This seems simple enough, and the story is so related in popular sources, e.g., the Wikipedia. For the public good, all butchers operating in and around New Orleans would be required to use the facilities provided by the new corporation, be subject to inspection, and no individual or company would face discrimination in access to the facilities. The subsequent lawsuits by various individual butchers, companies, and associations thus seem, on the surface, to be an example of typical 19th century laissez faire capitalist assertion of property rights over human rights. As Crosskey related the story, however, additional details come to light:
"The state act there under attack had been passed by the 'carpet-bag' legislature of Louisiana, under 'a shallow pretence,' as Justice Stephen J. Field, of California, put it in his dissenting opinion, of enacting 'sanitary regulations' for the protection of the meat supply of the city of New Orleans. In actual fact, the act was one to incorporate seventeen favored citizens as the Crescent City Live-Stock Landing and Slaughter-House Company and to grant to them, in the corporate capacity thus conferred, a twenty-five-year monopoly of the business of maintaining stock-landings, stock-yards, and slaughter-houses, within an area of some twelve hundred square miles in and around the city in question. The sanitary regulations consisted merely of a stock-inspection provision and certain restrictions as to the areas in which the new company's facilities might be erected; but if the company could conduct its business subject to these simple regulations with safety to the public health, there was, as Justice Field persuasively observed, no reason why the individual butchers compelled by the act to hire the facilities of the defendants could not, with safety to the public, do the same. So, the sanitary excuse was a pretty transparent cover for a state-created monopoly; and because every such monopoly consists essentially in a giving to the monopolist of a specific protection which is denied to others, the fact that the Louisiana act was in plain violation of the Equal Protection Clause of the new amendment, under anything like a literal and straightforward reading, cannot very well be denied. In that sense, then, the act 'abridged' an 'immunity' belonging to the whole class of 'citizens of the United States' and was, accordingly, in violation, technically, of the Privileges and Immunities Clause of the amendment, as well."
The clear intention of the 14th Amendment was to secure basic natural rights and the same civil rights enjoyed by all other citizens to people who had previously been denied protection for those rights. Further, there was to be no denial of these rights in the future. What the Court did, however, was shift the ground from whether or not someone's or some group's natural or civil rights had been violated, to the "non issue" as to whether rights conferred by a state, or those conferred by the federal government were superior. In the process, the basis on which the Dred Scott decision had been rendered was egregiously misstated.
The presumed conflict between state and federal governments as the source of rights is why the Slaughterhouse Cases are considered pivotal in civil rights law — and why the Court's decision didn't even address the civil rights — inherent in each person, not delegated from the State! — that were violated. The Court did not, in fact, address the issue whether anyone's rights were violated under the Equal Protection Clause. Instead, "What they did deny was that the Equal Protection Clause, or any other provision of the Constitution applying to the states, had been violated."
The fact that there were four dissenting opinions did not alter the basic decision of the Court, or its future interpretation. As Crosskey related, the four dissenting justices disagreed with the majority that the privileges and immunities of U.S. citizens should be limited to those specifically enumerated in the Constitution. This point, manifest in the Constitution, was brought forcefully home to the majority, the language being extraordinarily inflammatory, the minority going so far as to accuse the majority of an unlawful purpose in promoting such an obviously unjust reading of the language of the Amendment.
Unfortunately, the dissenting justices then undermined their own position by confusing the meanings of the terms used, and thus the natural right to be an owner, with the legitimate role the State plays in defining what an owner may do with what he or she owns. The dissenting justices claimed that limitation of a right, in the sense of defining the proper exercise thereof, was tantamount to "abridgment" of that right, and that, consequently, as Crosskey explained, "the Privileges and Immunities Clause forbade the states to 'abridge' any of an indeterminate number of vague and indefinite 'privileges and immunities which of right belong[ed],' so the minority said, 'to the citizens of all free governments."
Further, the evidence suggests (as Crosskey related) that the minority justices were absolutely convinced that they were defining basic rights accurately. The fact that their analyses were directly at odds with the natural law basis of the Constitution, and that they were actually assisting the majority in changing the nature of what it means for something to be "owned" does nothing to alter their deep sincerity. It is a testament to the inherent honesty of the minority in the face of what they saw as an exercise of what would a century hence in Roe v. Wade be termed "raw judicial power" that years later, in 1892, Justice Field repudiated his earlier stand that, effectively, gave the federal government in the person of the Supreme Court the power to grant and revoke natural rights. As Crosskey related,
"'After much reflection,' Justice Field confessed, in dissent from the Court's decision [in the matter of O'Neil v. Vermont], 'I think the definition given at one time before this court by a distinguished advocate — John Randolph Tucker, of Virginia — is correct, that the privileges and immunities of citizens of the United States are such as have their recognition in or guaranty from the Constitution of the United States'."
In other words, the State, whether in the person of local, state, or federal governments, does not grant rights. The State can only recognize or guarantee rights, not create them.
In light of this confusion, the majority justices in Slaughterhouse could, according to Crosskey, easily have dealt with this issue by explaining that they were using the term "abridge" in the sense of proper limitation, not "abridge" in the sense of violation. The majority did not do so, suggesting that they knew full well they were inserting an unacceptable degree of ambiguity into the interpretation of the law so as to increase the power of the Court, and render the 14th Amendment meaningless. As Crosskey concluded his discussion on this point, "And all this being true, the fact that the majority chose, as we shall see, rather to be ambiguous and evasive upon this point, strongly suggests that the minority Justices knew whereof they spoke; a conclusion well confirmed by other evidence." In summing up, Crosskey concluded,
"So, the Court's opinion in the Slaughter-House Cases was, undoubtedly, most craftily written; written so as to enable the Court, with a good face, in future cases, to jump either way: to observe the intended meaning of the Privileges and Immunities Clause if that seemed unavoidable, or, in the alternative, to destroy the clause utterly if this seemed safe. And the fact that this elaborate preparation was made also means that the majority Justices saw and fully comprehended the possibility of the intermediate, plain, and sensible meaning of the Privileges and Immunities Clause here expounded, to which, indeed, Justice Bradley called attention, in his dissenting opinion. So, the majority must, as the minority charged, already have determined, if they dared, to destroy this new provision of the Constitution completely."
Thus, in a baffling paradox, the Slaughterhouse Cases should have been a simple case of defining the legitimate exercise of private property within a system in which the underlying right itself (the right be an owner) remained untouched. Instead, the situation became a pawn in an effort to increase the power of the Court at the expense of basic human rights held by the people, and those delegated by the people to the other branches of government, culminating in 1973 with the decision in Roe v. Wade.
#30# Read more Entry>>
Monday, January 23, 2012
Raw Judicial Power X: The Fourteenth Amendment
In the previous posting in this series, we discovered that Scott v. Sandford, the infamous "Dred Scott decision," was even more sweeping in its implications than most of the history books today tell us. Not merely an injustice against a single individual, the case was the basis for what amounted to a new interpretation of the U.S. Constitution and a vastly expanded role for the Supreme Court of the United States. It should come as no surprise, then, that one of the first things that Congress did once the war was over was to adopt the "Reconstruction Amendments," the 13th and 14th Amendments to the Constitution.
The Dred Scott decision overturned the Missouri Compromise made the half-slave/half-free system unworkable by denying the basis of the system itself. Civil war became inevitable as slave owners, convinced that their economic survival depended on the slave cultivation of American agricultural products, especially cotton, saw their "peculiar institution" and cherished way of life threatened by increasing pressure for abolition.
The choice appeared to be clear. In order for the United States to be preserved as a unified system as the Founding Fathers envisioned, the contradiction of slavery would have to be removed. The alternative would be to invoke "the judgment of heaven" on the new country, as George Mason predicted. This meant that the country would have to be either all slave, or all free, just as Abraham Lincoln declared in his "House Divided" speech. There could not, at one and the same time, be a middle ground where natural rights to life, liberty, or property were both protected and denied.
During the period between the adoption of the Constitution and the Civil War, however, the operation of the federal government had been minimal, almost to the point of actual neglect. As de Tocqueville noted in the 1830s,
"In some countries a power exists which, though it is in a degree foreign to the social body, directs it, and forces it to pursue a certain track. In others the ruling force is divided, being partly within and partly without the ranks of the people. But nothing of the kind is to be seen in the United States; there society governs itself for itself. All power centers in its bosom; and scarcely an individual is to be meet with who would venture to conceive, or, still less, to express, the idea of seeking it elsewhere. The nation participates in the making of its laws by the choice of its legislators, and in the execution of them by the choice of the agents of the executive government; it may almost be said to govern itself, so feeble and so restricted is the share left to the administration, so little do the authorities forget their popular origin and the power from which they emanate." (Alexis de Tocqueville, "The Principle of Sovereignty of the People in America," Democracy in America, I.iv.)
This principle of subsidiarity came to be interpreted as proving that "states' rights" were superior over those of the federal government. The correct view is that each level of government, as well as the individual citizens, has its proper sphere of action within a uniform system of law.
During the Civil War, however, the thrust became to deemphasize the powers of the states and emphasize those of the federal government. This was not an improvement, as it, in effect, only substituted one error for another, with individual natural rights suffering in consequence. The strengthening of the executive at the expense of the legislative was largely through the efforts of a man with the unwieldy name of Oliver Hazard Perry Throck Morton, the 14th governor of Indiana, who justified what amounted to continual usurpation of the powers of the Indiana legislature on the grounds that the country was in a state of emergency. Morton's efforts were so effective that they were taken as a model for the federal government.
Following the Civil War, there was an effort to restore individual rights, ostensibly for the newly freed slaves, but applying to everyone. It was not a question of states' rights versus those of the central government, or vice versa, but of each person's natural rights against the government, whether local, state, or federal, and centers of entrenched economic and political power. As Crosskey's analysis showed, the careful wording of the 14th Amendment was an attempt to clarify the principle of subsidiarity and the proper role of both the state and federal governments. As adopted, the relevant portion of the 14th Amendment reads,
"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The careful wording was an effort to avoid the sort of linguistic and logical leaps applied by Justice Taney in rendering his opinion in Scott. Given his theory of constitutional law, Crosskey viewed the 14th Amendment (at least as far as § 1 was concerned) as somewhat redundant. The "privileges and immunities" protected by the Amendment were, according to Crosskey, already in the Constitution.
It was only the creative interpretations by justices like Taney, combined with decades of misinterpretation and the expedient actions taken during the war that made something like the 14th Amendment necessary. Even then the legal philosophy that was rapidly displacing Crosskey's evident natural law orientation would very quickly result in an effective negation of the 14th Amendment within five years of its adoption. As Crosskey explained, "It is a fact universally recognized that the opening clause of the foregoing section of the Fourteenth Amendment was intended to nullify, as a proposition of constitutional law, the central doctrine of the famous case of Dred Scott v. Sandford, decided by the Supreme Court, in 1857."
As Crosskey continued, "This fact was freely conceded by the Court itself, in the Slaughter-House Cases, of 1873, which were the first cases that came to it under this new amendment. The Court's decisions since that time have been consistent with this view; and to this limited extent, the true and intended meaning of the 14th Amendment has undoubtedly been observed by the Court."
That sounds all well and good, but Crosskey did not stop there. As he observed — and which constitutes the heart of the second volume of Politics and the Constitution — "The same, however, cannot be said of what that body [the Supreme Court] has done under the remaining parts of the above-quoted first section: the Equal Protection Clause, the Due Process Clause, and the clause — generally known as the Privileges and Immunities Clause of the amendment [emphasis in original] — which prohibits all state 'abridgments' of 'the privileges [and] immunities of citizens of the United States'."
This raises the question as to what, exactly, the framers meant by the 14th Amendment. It seems patently clear from a natural law orientation. That is, people have rights. Those rights emanate directly or immediately from the people (constitutionally, the ultimate or mediate source is irrelevant), and the federal government shall neither make nor enforce any law that takes away those rights. Crosskey declared that there is no other conceivable meaning that could be placed on the language in the 14th Amendment, or the 1st, 2nd, 4th, 15th, or 19th. Further, this simple fact was already in the Constitution in the Bill of Rights, and was (according to Crosskey) repeated yet again in the 10th Amendment.
Why, then, add an amendment that simply repeats what is already in the Constitution many times over? Evidently, for the same reason virtually every pope since Leo XIII has stressed the necessity for widespread direct ownership of the means of production. People either weren't listening, or were reinterpreting the Constitution to suit their own particular wants and needs — as Justice Taney had done for the somewhat dubious benefit of the South in the Dred Scott case, Congress had done in financing the Civil War, and the executive had done in strengthening its power at the expense of Congress. Further, Crosskey made the case that ambiguities had been forced on the understanding of the Constitution from the very beginning, starting with James Madison's "editorial ingenuity," in response to political expedience. We can speculate whether this was due to the perceived need to defend the institution of slavery at all costs, but (whatever the actual reason) Crosskey made an excellent case.
#30# Read more Entry>>
The Dred Scott decision overturned the Missouri Compromise made the half-slave/half-free system unworkable by denying the basis of the system itself. Civil war became inevitable as slave owners, convinced that their economic survival depended on the slave cultivation of American agricultural products, especially cotton, saw their "peculiar institution" and cherished way of life threatened by increasing pressure for abolition.
The choice appeared to be clear. In order for the United States to be preserved as a unified system as the Founding Fathers envisioned, the contradiction of slavery would have to be removed. The alternative would be to invoke "the judgment of heaven" on the new country, as George Mason predicted. This meant that the country would have to be either all slave, or all free, just as Abraham Lincoln declared in his "House Divided" speech. There could not, at one and the same time, be a middle ground where natural rights to life, liberty, or property were both protected and denied.
During the period between the adoption of the Constitution and the Civil War, however, the operation of the federal government had been minimal, almost to the point of actual neglect. As de Tocqueville noted in the 1830s,
"In some countries a power exists which, though it is in a degree foreign to the social body, directs it, and forces it to pursue a certain track. In others the ruling force is divided, being partly within and partly without the ranks of the people. But nothing of the kind is to be seen in the United States; there society governs itself for itself. All power centers in its bosom; and scarcely an individual is to be meet with who would venture to conceive, or, still less, to express, the idea of seeking it elsewhere. The nation participates in the making of its laws by the choice of its legislators, and in the execution of them by the choice of the agents of the executive government; it may almost be said to govern itself, so feeble and so restricted is the share left to the administration, so little do the authorities forget their popular origin and the power from which they emanate." (Alexis de Tocqueville, "The Principle of Sovereignty of the People in America," Democracy in America, I.iv.)
This principle of subsidiarity came to be interpreted as proving that "states' rights" were superior over those of the federal government. The correct view is that each level of government, as well as the individual citizens, has its proper sphere of action within a uniform system of law.
During the Civil War, however, the thrust became to deemphasize the powers of the states and emphasize those of the federal government. This was not an improvement, as it, in effect, only substituted one error for another, with individual natural rights suffering in consequence. The strengthening of the executive at the expense of the legislative was largely through the efforts of a man with the unwieldy name of Oliver Hazard Perry Throck Morton, the 14th governor of Indiana, who justified what amounted to continual usurpation of the powers of the Indiana legislature on the grounds that the country was in a state of emergency. Morton's efforts were so effective that they were taken as a model for the federal government.
Following the Civil War, there was an effort to restore individual rights, ostensibly for the newly freed slaves, but applying to everyone. It was not a question of states' rights versus those of the central government, or vice versa, but of each person's natural rights against the government, whether local, state, or federal, and centers of entrenched economic and political power. As Crosskey's analysis showed, the careful wording of the 14th Amendment was an attempt to clarify the principle of subsidiarity and the proper role of both the state and federal governments. As adopted, the relevant portion of the 14th Amendment reads,
"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The careful wording was an effort to avoid the sort of linguistic and logical leaps applied by Justice Taney in rendering his opinion in Scott. Given his theory of constitutional law, Crosskey viewed the 14th Amendment (at least as far as § 1 was concerned) as somewhat redundant. The "privileges and immunities" protected by the Amendment were, according to Crosskey, already in the Constitution.
It was only the creative interpretations by justices like Taney, combined with decades of misinterpretation and the expedient actions taken during the war that made something like the 14th Amendment necessary. Even then the legal philosophy that was rapidly displacing Crosskey's evident natural law orientation would very quickly result in an effective negation of the 14th Amendment within five years of its adoption. As Crosskey explained, "It is a fact universally recognized that the opening clause of the foregoing section of the Fourteenth Amendment was intended to nullify, as a proposition of constitutional law, the central doctrine of the famous case of Dred Scott v. Sandford, decided by the Supreme Court, in 1857."
As Crosskey continued, "This fact was freely conceded by the Court itself, in the Slaughter-House Cases, of 1873, which were the first cases that came to it under this new amendment. The Court's decisions since that time have been consistent with this view; and to this limited extent, the true and intended meaning of the 14th Amendment has undoubtedly been observed by the Court."
That sounds all well and good, but Crosskey did not stop there. As he observed — and which constitutes the heart of the second volume of Politics and the Constitution — "The same, however, cannot be said of what that body [the Supreme Court] has done under the remaining parts of the above-quoted first section: the Equal Protection Clause, the Due Process Clause, and the clause — generally known as the Privileges and Immunities Clause of the amendment [emphasis in original] — which prohibits all state 'abridgments' of 'the privileges [and] immunities of citizens of the United States'."
This raises the question as to what, exactly, the framers meant by the 14th Amendment. It seems patently clear from a natural law orientation. That is, people have rights. Those rights emanate directly or immediately from the people (constitutionally, the ultimate or mediate source is irrelevant), and the federal government shall neither make nor enforce any law that takes away those rights. Crosskey declared that there is no other conceivable meaning that could be placed on the language in the 14th Amendment, or the 1st, 2nd, 4th, 15th, or 19th. Further, this simple fact was already in the Constitution in the Bill of Rights, and was (according to Crosskey) repeated yet again in the 10th Amendment.
Why, then, add an amendment that simply repeats what is already in the Constitution many times over? Evidently, for the same reason virtually every pope since Leo XIII has stressed the necessity for widespread direct ownership of the means of production. People either weren't listening, or were reinterpreting the Constitution to suit their own particular wants and needs — as Justice Taney had done for the somewhat dubious benefit of the South in the Dred Scott case, Congress had done in financing the Civil War, and the executive had done in strengthening its power at the expense of Congress. Further, Crosskey made the case that ambiguities had been forced on the understanding of the Constitution from the very beginning, starting with James Madison's "editorial ingenuity," in response to political expedience. We can speculate whether this was due to the perceived need to defend the institution of slavery at all costs, but (whatever the actual reason) Crosskey made an excellent case.
#30# Read more Entry>>
Friday, January 20, 2012
News from the Network, Vol. 5, No. 3
Last week it was the Twinkies. This week it's the Brownies. Not the cookies or the girl's group, but the Kodak camera. It's been a bad year so far for companies with defined benefit pension plans. As today's Wall Street Journal stated, "Here's one way of understanding Eastman Kodak Co.'s problems: The company has twice as many retirees drawing benefits in the U.S. as it has active employees world-wide." ("Retirees' Benefits In the Cross Hairs," WSJ, 01/20/12, B1.) In other words, for every active Kodak employee in the entire world, there are two retired employees in the United States. Add to that the Kodak retirees outside the U.S., and it starts to get a little frightening.
All of this was predicted in the 1930s by Goetz Briefs, the labor economist and student of the solidarist philosopher, Father Heinrich Pesch, S.J., in Briefs's book, The Proletariat: A Challenge to Western Civilization (1937). As more and more people are without capital ownership, States either force private companies to start picking up the welfare tab, try to do it themselves, or both. We see the result around the world today, with massive government debts and private companies going headlong into bankruptcy, all floundering under a burden of debt based on anything except what can redeem the debt: production of marketable goods and services. To reverse this trend, here's what we've been doing this week:
• We don't have a report yet from the Economic Justice Summit that took place last week in Hartford, Connecticut. We expect to have details next week. Early verbal reports indicate that things went very well, and it was well worth the effort.
• Lydia Fisher, a blogger for the Huffington Post and author of Cinderella of Wall Street, wrote an interesting piece this week, and even mentioned CESJ and the Just Third Way. Here's a link to the article, so pass it on to your network.
• Michael Greaney was able to place a notice about A Plea for Peasant Proprietors in the e-mail version of Notre Dame's Class of 1977 Class Notes, and the editor of University of Evansville magazine said a notice will appear there as well in the next issue.
• We sent an e-mail to the "Orestes Brownson Council," a student group at the University of Notre Dame formed to discuss the classics of Catholic thought, giving them links to the recent blog series on "Orestes Brownson and Socialism."
• We also sent an e-mail with the same information to "Calvert House" at the University of Chicago, a group that started in 1903 as the Brownson Club, then merged with the Newman Club to become the Calvert Club. At least, we think we got that straight. We didn't send anything to the Orestes Brownson Study Club No. 3 in Fargo, North Dakota, a club for women interested in the Catholic intellectual tradition founded in 1923. As far as we can tell, the club folded in 1977. (If you're a member of the club and the club is still in existence, let us know and we'll correct that. And then try and get you interested in the Just Third Way.)
• As of this morning, we have had visitors from 53 different countries and 47 states and provinces in the United States and Canada to this blog over the past two months. Most visitors are from the United States, the UK, Canada, Australia, and the Philippines. People in Croatia, Germany, Australia, the United States, and the UK spent the most average time on the blog. The most popular postings this past week were "It's the Academics v. the Politicians . . . v. Economic Reality, Part III: Finance," "Raw Judicial Power, Part I: The Assault of Legal Positivism," "Ron Paul and Creating Money," "News from the Network," and "Thomas Hobbes on Private Property."
Those are the happenings for this week, at least that we know about. If you have an accomplishment that you think should be listed, send us a note about it at mgreaney [at] cesj [dot] org, and we'll see that it gets into the next "issue." If you have a short (250-400 word) comment on a specific posting, please enter your comments in the blog — do not send them to us to post for you. All comments are moderated anyway, so we'll see it before it goes up.
#30# Read more Entry>>
All of this was predicted in the 1930s by Goetz Briefs, the labor economist and student of the solidarist philosopher, Father Heinrich Pesch, S.J., in Briefs's book, The Proletariat: A Challenge to Western Civilization (1937). As more and more people are without capital ownership, States either force private companies to start picking up the welfare tab, try to do it themselves, or both. We see the result around the world today, with massive government debts and private companies going headlong into bankruptcy, all floundering under a burden of debt based on anything except what can redeem the debt: production of marketable goods and services. To reverse this trend, here's what we've been doing this week:
• We don't have a report yet from the Economic Justice Summit that took place last week in Hartford, Connecticut. We expect to have details next week. Early verbal reports indicate that things went very well, and it was well worth the effort.
• Lydia Fisher, a blogger for the Huffington Post and author of Cinderella of Wall Street, wrote an interesting piece this week, and even mentioned CESJ and the Just Third Way. Here's a link to the article, so pass it on to your network.
• Michael Greaney was able to place a notice about A Plea for Peasant Proprietors in the e-mail version of Notre Dame's Class of 1977 Class Notes, and the editor of University of Evansville magazine said a notice will appear there as well in the next issue.
• We sent an e-mail to the "Orestes Brownson Council," a student group at the University of Notre Dame formed to discuss the classics of Catholic thought, giving them links to the recent blog series on "Orestes Brownson and Socialism."
• We also sent an e-mail with the same information to "Calvert House" at the University of Chicago, a group that started in 1903 as the Brownson Club, then merged with the Newman Club to become the Calvert Club. At least, we think we got that straight. We didn't send anything to the Orestes Brownson Study Club No. 3 in Fargo, North Dakota, a club for women interested in the Catholic intellectual tradition founded in 1923. As far as we can tell, the club folded in 1977. (If you're a member of the club and the club is still in existence, let us know and we'll correct that. And then try and get you interested in the Just Third Way.)
• As of this morning, we have had visitors from 53 different countries and 47 states and provinces in the United States and Canada to this blog over the past two months. Most visitors are from the United States, the UK, Canada, Australia, and the Philippines. People in Croatia, Germany, Australia, the United States, and the UK spent the most average time on the blog. The most popular postings this past week were "It's the Academics v. the Politicians . . . v. Economic Reality, Part III: Finance," "Raw Judicial Power, Part I: The Assault of Legal Positivism," "Ron Paul and Creating Money," "News from the Network," and "Thomas Hobbes on Private Property."
Those are the happenings for this week, at least that we know about. If you have an accomplishment that you think should be listed, send us a note about it at mgreaney [at] cesj [dot] org, and we'll see that it gets into the next "issue." If you have a short (250-400 word) comment on a specific posting, please enter your comments in the blog — do not send them to us to post for you. All comments are moderated anyway, so we'll see it before it goes up.
#30# Read more Entry>>
Thursday, January 19, 2012
Foreword to W. T. Thornton's "A Plea for Peasant Proprietors" (3)
We got so interested today in hearing from all the people who are phoning and e-mailing in comments about the “Raw Judicial Power” series that we forgot to finish writing today’s installment! Still, today’s “substitute” posting, the third in the "Thornton foreword series," does relate to the Raw Judicial Power series.
This is because the Great Famine in Ireland seemed to confirm Malthusian theory. Population had, evidently, outstripped existing food supplies. The Four Horseman of the Apocalypse — Famine, Disease, War, and Death — had consequently put in their expected appearance.
The irony is that Ireland was one of the few food exporting countries in Europe. The land provided more than enough to feed the Irish and the propertyless workers of England. Even in 1847, the worst year of the Great Famine, there were massive exports of food from Ireland. (Christine Kinealy, This Great Calamity: The Irish Famine, 1845-1852. Dublin: Gill and Macmillan, 1995, 354.)
To Thornton, the Great Famine represented not a confirmation of Malthusian theory, but its refutation. As he had argued in 1846, "over-population" is caused by systemic poverty and lack of widespread ownership of capital, not the other way around. In Europe, the potato blight caused hardship, as small landowners who depended on the potato for their basic subsistence had to shift to more expensive foodstuffs.
In Ireland, with virtually no small landowning class and afflicted with "tenancy-at-will" (which meant that landlords could evict a tenant for any reason or none at all), the blight was a disaster of unprecedented magnitude. More than enough food was grown in Ireland to stave off the Great Famine, but it did not belong to the common people. They died by the hundreds of thousands as food was shipped out of the country.
Unfortunately, the British government paid no attention to Thornton's proposal for Ireland. As he complained in 1874 in his revision of the Plea, "The time for creating a numerous peasant proprietary in the summary mode suggested has, however, long gone by, and is not now to be recovered. How seldom, alas, does England, in respect of Irish reforms, take time by the forelock!" (William T. Thornton, A Plea for Peasant Proprietors. London: Macmillan and Company, 1874, 261.)
This might be something to keep in mind during the March for Life on Monday of next week.
#30# Read more Entry>>
This is because the Great Famine in Ireland seemed to confirm Malthusian theory. Population had, evidently, outstripped existing food supplies. The Four Horseman of the Apocalypse — Famine, Disease, War, and Death — had consequently put in their expected appearance.
The irony is that Ireland was one of the few food exporting countries in Europe. The land provided more than enough to feed the Irish and the propertyless workers of England. Even in 1847, the worst year of the Great Famine, there were massive exports of food from Ireland. (Christine Kinealy, This Great Calamity: The Irish Famine, 1845-1852. Dublin: Gill and Macmillan, 1995, 354.)
To Thornton, the Great Famine represented not a confirmation of Malthusian theory, but its refutation. As he had argued in 1846, "over-population" is caused by systemic poverty and lack of widespread ownership of capital, not the other way around. In Europe, the potato blight caused hardship, as small landowners who depended on the potato for their basic subsistence had to shift to more expensive foodstuffs.
In Ireland, with virtually no small landowning class and afflicted with "tenancy-at-will" (which meant that landlords could evict a tenant for any reason or none at all), the blight was a disaster of unprecedented magnitude. More than enough food was grown in Ireland to stave off the Great Famine, but it did not belong to the common people. They died by the hundreds of thousands as food was shipped out of the country.
Unfortunately, the British government paid no attention to Thornton's proposal for Ireland. As he complained in 1874 in his revision of the Plea, "The time for creating a numerous peasant proprietary in the summary mode suggested has, however, long gone by, and is not now to be recovered. How seldom, alas, does England, in respect of Irish reforms, take time by the forelock!" (William T. Thornton, A Plea for Peasant Proprietors. London: Macmillan and Company, 1874, 261.)
This might be something to keep in mind during the March for Life on Monday of next week.
#30# Read more Entry>>
Wednesday, January 18, 2012
Raw Judicial Power IX: "Scott v. Sandford"
Despite Thomas Dixon and Margaret Mitchell, authors of The Clansman (1905) and Gone With the Wind (1936), respectively, the period before the Civil War in the American South was anything but halcyon. This was due principally to the abomination of chattel slavery. (We're ignoring, for the sake of the argument, the condition of factory workers in the North as being, except for the fact of political liberty itself, anything to brag about.)
William Crosskey contended that the power grab by the Supreme Court that resulted in the decision in Scott v. Sandford in 1857 (the Dred Scott case) was the culmination of a decades-long effort to defend and extend slavery. To accomplish this, the theory of "states rights" had been invented, and judicial review expanded far beyond what the Founders had ever intended.
Economically, Scott v. Sandford was a triumph of southern agrarian capitalism over northern industrial, commercial and financial capitalism. The struggle between the two forms of capitalism undermined the natural law basis of the Constitution, and fostered the belief that socialism was the only alternative — viable or otherwise — to capitalism. It can be said that the southern agrarian capitalists found their position justified by the economic arguments best presented in David Christy's Cotton is King (1855). At the same time, the emotional presentation in Harriet Beecher Stowe's Uncle Tom's Cabin (1852) inspired the northern "socialist" humanitarians in their abolitionist crusade.
Thus we can say that while opposition to slavery shifted from reason to humanitarianism, support for slavery shifted from reason to economic necessity. Neither Christy nor Stowe really addressed the essential natural right of liberty that was being violated. Cotton is King did give a distorted concept of natural law, but it was clearly twisted to justify the presumed economic necessity.
All of this led directly into the Dred Scott case, Scott v. Sandford, in 1857, which overturned the Missouri Compromise, and set the stage for the Civil War as a conflict between two forms of capitalism. It was, as one Confederate soldier remarked, a "rich man's war, poor man's fight."
Like most legal cases that manage to get all the way to the Supreme Court, the facts are not as clear-cut as the history books have them. Of course, it's not the job of elementary and high school history texts to give an in-depth treatment of every issue. It's enough in most cases to get the facts straight and be consistent with the orientation of the historian(s) writing the text. And, no, there is no such thing as "objective history." All historical writing necessarily takes a point of view, or it becomes incomprehensible.
The "trick" is often trying to find out the point of view of the author so that the reader can weigh the interpretation, even the selection of facts, judiciously, and reach a reasonable conclusion. This becomes problematical when the authors themselves don't realize what their points of view are, or the implications of their unconscious assumptions. The reader's critical faculties have to shift into high gear, as Mortimer Adler made clear in How to Read a Book (1940).
For example, most people who write about such things as the rapid industrial and commercial growth that took place throughout the world in the latter half of the 19th century assume as a given that all of it was financed by cutting consumption, accumulating money savings, then investing. Comparing the "wealth of nations" at the beginning of the century with that at the end of it, however, reveals a phenomenal increase that cannot be accounted for by reductions in consumption. This was combined with vast fortunes of a very few people, and dire poverty of a great number.
The socialists claimed that, since no one could possibly accumulate such vast wealth honestly, it could only have come by stealing surplus value from workers and consumers. The capitalists claimed that those who accumulated vast wealth were of a special breed, and the wealth accumulation reflected the value of the entrepreneurship that made them special and put them above the average, especially the ability to out-produce everybody and everything at a level previously unheard-of.
Neither group considered the possibility that the true state of affairs might be that the vast increase hadn't been financed by cutting consumption at all, but by increasing production. The rich had financed the new capital by promising to pay for it out of future increases in production, rather than past reductions in consumption.
Paradoxically, those who financed new capital in this way were often unaware of the technique they were using. Like the driver of an automobile who knows how to drive expertly but not how to so much as change a flat tire, they took advantage of the system without really knowing how it worked, or why (or what to do when things went wrong).
Similarly, the U.S. Supreme Court in Roe v. Wade used a line of reasoning and a legal philosophy of which they seem to have been in ignorance. Surprisingly, the Pro-Life movement has done the same thing. The Pro-Life movement has focused on overturning Roe v. Wade, either through direct court action, or through a constitutional amendment, ignoring or even silencing potentially effective measures, tactics, and even strategies that differ from the unconsciously accepted parameters.
What leaders in the Pro-Life movement fail to realize is that there is already a constitutional amendment — more than one, in fact — that would, if interpreted correctly, render the decision in Roe v. Wade unconstitutional, that is, illegal. By accepting the current system of constitutional interpretation as a given, and attempting to work within the existing system instead of reform the system at its most basic level by working for a Pro-Life economic agenda consistent with the natural law foundations of the Just Third Way, the Pro-Life movement has, in effect, played right into the hands of the Culture of Death, and has managed to arrive at an unbreakable impasse.
As we have seen in the previous postings in this series, the legal reasoning in Roe v. Wade has a long and dishonorable history stretching back to the founding of the United States. Unfortunately for Dred Scott, the self-interest of the Supreme Court, the toadying of Chief Justice Roger Taney, and the political and economic power of the South combined to deprive not only Scott, but every member of any class not favored by the Supreme Court of allegedly unalienable natural rights, in Scott's case, liberty, which encompasses freedom of association and contract.
To summarize, the effect of Scott v. Sandford [sic — the Court misspelled the defendant's, John Sanford's, name] was to make slavery legal in all U.S. territories. Scott was a slave whose master, a U.S. Army officer, had taken him from Missouri, a slave state, to a series of free states in the course of his career, and then back to Missouri. Scott sued for his freedom in Missouri in 1846, claiming his residence in a free state and a free territory had made him free. He had also attempted a number of times to purchase his freedom, and the offer had been refused.
The opinion of Chief Justice Roger B. Taney was that Scott was not entitled to rights as a U.S. citizen and, in fact, had "no rights which any white man was bound to respect." Taney and six other justices struck down the Missouri Compromise of 1820 as unconstitutional. The Court maintained that, under the alleged doctrine of "states' rights," Congress had no power to prohibit slavery in the territories.
This was exactly the position the politically powerful southern states had been pushing for years. All they needed was an acquiescent Court willing to bend to political pressure instead of the clear sense of the Constitution. They found their man in Justice Taney, who was already notorious as a political hack willing to do anything to curry favor with the powerful.
Taney had first come into prominence as the only Secretary of the Treasury willing to follow Andrew Jackson's ill-advised orders to shut down the Second Bank of the United States. Taney's actions in the 1830s led to "Hard Times," the depression of the 1830s. In 1857, they led directly to the Civil War by making the system unworkable by denying the basis of the system itself. Civil war became inevitable as slave owners, convinced that their economic survival depended on the slave cultivation of American agricultural products, especially cotton, saw their "peculiar institution" and cherished way of life threatened by increasing pressure for abolition.
As Crosskey analyzed the Dred Scott case, the question decided had been whether any "'man of African descent, whether a slave or not,' could enjoy, under the Constitution of the United States, any right or protection whatsoever. All such men were left, by the principles of the Dred Scott case, to the absolute, unrestrained power of the separate states."
In other words, as far as the Court was concerned, a black man, slave or free, was not a "person" as that term was used in the Constitution — the possession of rights being the defining characteristic of a "person." The determination as to whether an individual of African birth or descent, slave or free, was a "person" was an issue to be decided by the various states, not the federal government.
Keep that point in mind, for it is absolutely critical to understanding what Crosskey called the "craftiness" of the Supreme Court, and we will return to it when we get to Roe v. Wade. Whether anyone is a person was an issue to be decided by the individual states, not the federal government.
As Crosskey concluded, the full import of Scott was not that human beings of African descent were to be permanently deprived of citizenship, but that such individuals were not persons as the term is used in the Constitution. Black Americans, slave or free, therefore had no rights under the Constitution, and were, in fact, "to be bereft thereafter of all rights and protection, under the Constitution of the United States, whatsoever." [Emphasis in Crosskey.]
As Crosskey commented, "This, to the present-day mind, seems an unbelievable decision; but to those familiar with the political demands of the South of the time when the decision was rendered, such a tenor in the Court's holding will not be difficult to credit. For it was exactly what the South, for a long time, had been demanding."
What, apparently, was "gone with the wind" was any semblance of a jurisprudence based on anything other than raw judicial power, or "might makes right" — the philosophy of "legal realism."
#30# Read more Entry>>
William Crosskey contended that the power grab by the Supreme Court that resulted in the decision in Scott v. Sandford in 1857 (the Dred Scott case) was the culmination of a decades-long effort to defend and extend slavery. To accomplish this, the theory of "states rights" had been invented, and judicial review expanded far beyond what the Founders had ever intended.
Economically, Scott v. Sandford was a triumph of southern agrarian capitalism over northern industrial, commercial and financial capitalism. The struggle between the two forms of capitalism undermined the natural law basis of the Constitution, and fostered the belief that socialism was the only alternative — viable or otherwise — to capitalism. It can be said that the southern agrarian capitalists found their position justified by the economic arguments best presented in David Christy's Cotton is King (1855). At the same time, the emotional presentation in Harriet Beecher Stowe's Uncle Tom's Cabin (1852) inspired the northern "socialist" humanitarians in their abolitionist crusade.
Thus we can say that while opposition to slavery shifted from reason to humanitarianism, support for slavery shifted from reason to economic necessity. Neither Christy nor Stowe really addressed the essential natural right of liberty that was being violated. Cotton is King did give a distorted concept of natural law, but it was clearly twisted to justify the presumed economic necessity.
All of this led directly into the Dred Scott case, Scott v. Sandford, in 1857, which overturned the Missouri Compromise, and set the stage for the Civil War as a conflict between two forms of capitalism. It was, as one Confederate soldier remarked, a "rich man's war, poor man's fight."
Like most legal cases that manage to get all the way to the Supreme Court, the facts are not as clear-cut as the history books have them. Of course, it's not the job of elementary and high school history texts to give an in-depth treatment of every issue. It's enough in most cases to get the facts straight and be consistent with the orientation of the historian(s) writing the text. And, no, there is no such thing as "objective history." All historical writing necessarily takes a point of view, or it becomes incomprehensible.
The "trick" is often trying to find out the point of view of the author so that the reader can weigh the interpretation, even the selection of facts, judiciously, and reach a reasonable conclusion. This becomes problematical when the authors themselves don't realize what their points of view are, or the implications of their unconscious assumptions. The reader's critical faculties have to shift into high gear, as Mortimer Adler made clear in How to Read a Book (1940).
For example, most people who write about such things as the rapid industrial and commercial growth that took place throughout the world in the latter half of the 19th century assume as a given that all of it was financed by cutting consumption, accumulating money savings, then investing. Comparing the "wealth of nations" at the beginning of the century with that at the end of it, however, reveals a phenomenal increase that cannot be accounted for by reductions in consumption. This was combined with vast fortunes of a very few people, and dire poverty of a great number.
The socialists claimed that, since no one could possibly accumulate such vast wealth honestly, it could only have come by stealing surplus value from workers and consumers. The capitalists claimed that those who accumulated vast wealth were of a special breed, and the wealth accumulation reflected the value of the entrepreneurship that made them special and put them above the average, especially the ability to out-produce everybody and everything at a level previously unheard-of.
Neither group considered the possibility that the true state of affairs might be that the vast increase hadn't been financed by cutting consumption at all, but by increasing production. The rich had financed the new capital by promising to pay for it out of future increases in production, rather than past reductions in consumption.
Paradoxically, those who financed new capital in this way were often unaware of the technique they were using. Like the driver of an automobile who knows how to drive expertly but not how to so much as change a flat tire, they took advantage of the system without really knowing how it worked, or why (or what to do when things went wrong).
Similarly, the U.S. Supreme Court in Roe v. Wade used a line of reasoning and a legal philosophy of which they seem to have been in ignorance. Surprisingly, the Pro-Life movement has done the same thing. The Pro-Life movement has focused on overturning Roe v. Wade, either through direct court action, or through a constitutional amendment, ignoring or even silencing potentially effective measures, tactics, and even strategies that differ from the unconsciously accepted parameters.
What leaders in the Pro-Life movement fail to realize is that there is already a constitutional amendment — more than one, in fact — that would, if interpreted correctly, render the decision in Roe v. Wade unconstitutional, that is, illegal. By accepting the current system of constitutional interpretation as a given, and attempting to work within the existing system instead of reform the system at its most basic level by working for a Pro-Life economic agenda consistent with the natural law foundations of the Just Third Way, the Pro-Life movement has, in effect, played right into the hands of the Culture of Death, and has managed to arrive at an unbreakable impasse.
As we have seen in the previous postings in this series, the legal reasoning in Roe v. Wade has a long and dishonorable history stretching back to the founding of the United States. Unfortunately for Dred Scott, the self-interest of the Supreme Court, the toadying of Chief Justice Roger Taney, and the political and economic power of the South combined to deprive not only Scott, but every member of any class not favored by the Supreme Court of allegedly unalienable natural rights, in Scott's case, liberty, which encompasses freedom of association and contract.
To summarize, the effect of Scott v. Sandford [sic — the Court misspelled the defendant's, John Sanford's, name] was to make slavery legal in all U.S. territories. Scott was a slave whose master, a U.S. Army officer, had taken him from Missouri, a slave state, to a series of free states in the course of his career, and then back to Missouri. Scott sued for his freedom in Missouri in 1846, claiming his residence in a free state and a free territory had made him free. He had also attempted a number of times to purchase his freedom, and the offer had been refused.
The opinion of Chief Justice Roger B. Taney was that Scott was not entitled to rights as a U.S. citizen and, in fact, had "no rights which any white man was bound to respect." Taney and six other justices struck down the Missouri Compromise of 1820 as unconstitutional. The Court maintained that, under the alleged doctrine of "states' rights," Congress had no power to prohibit slavery in the territories.
This was exactly the position the politically powerful southern states had been pushing for years. All they needed was an acquiescent Court willing to bend to political pressure instead of the clear sense of the Constitution. They found their man in Justice Taney, who was already notorious as a political hack willing to do anything to curry favor with the powerful.
Taney had first come into prominence as the only Secretary of the Treasury willing to follow Andrew Jackson's ill-advised orders to shut down the Second Bank of the United States. Taney's actions in the 1830s led to "Hard Times," the depression of the 1830s. In 1857, they led directly to the Civil War by making the system unworkable by denying the basis of the system itself. Civil war became inevitable as slave owners, convinced that their economic survival depended on the slave cultivation of American agricultural products, especially cotton, saw their "peculiar institution" and cherished way of life threatened by increasing pressure for abolition.
As Crosskey analyzed the Dred Scott case, the question decided had been whether any "'man of African descent, whether a slave or not,' could enjoy, under the Constitution of the United States, any right or protection whatsoever. All such men were left, by the principles of the Dred Scott case, to the absolute, unrestrained power of the separate states."
In other words, as far as the Court was concerned, a black man, slave or free, was not a "person" as that term was used in the Constitution — the possession of rights being the defining characteristic of a "person." The determination as to whether an individual of African birth or descent, slave or free, was a "person" was an issue to be decided by the various states, not the federal government.
Keep that point in mind, for it is absolutely critical to understanding what Crosskey called the "craftiness" of the Supreme Court, and we will return to it when we get to Roe v. Wade. Whether anyone is a person was an issue to be decided by the individual states, not the federal government.
As Crosskey concluded, the full import of Scott was not that human beings of African descent were to be permanently deprived of citizenship, but that such individuals were not persons as the term is used in the Constitution. Black Americans, slave or free, therefore had no rights under the Constitution, and were, in fact, "to be bereft thereafter of all rights and protection, under the Constitution of the United States, whatsoever." [Emphasis in Crosskey.]
As Crosskey commented, "This, to the present-day mind, seems an unbelievable decision; but to those familiar with the political demands of the South of the time when the decision was rendered, such a tenor in the Court's holding will not be difficult to credit. For it was exactly what the South, for a long time, had been demanding."
What, apparently, was "gone with the wind" was any semblance of a jurisprudence based on anything other than raw judicial power, or "might makes right" — the philosophy of "legal realism."
#30# Read more Entry>>
Tuesday, January 17, 2012
Raw Judicial Power VIII: Cotton is King
In the previous posting in this series we saw that, as a result of the perceived necessity of preserving chattel slavery, a conflict was built into the new country. Following the Civil War, in his study of the United States, The American Republic (1865) Orestes Brownson would characterize this conflict as being between the rising industrial capitalism of the North, and the agrarian capitalism of the South.
Economically speaking, the 19th century was characterized by a shift toward capital-intensive production, and away from labor-intensive production. There were some anomalies, such as the invention of the cotton gin. The cotton gin made human chattel slavery economically viable by increasing dramatically the speed at which cotton could be processed. This removed a bottleneck in production. (Parke Pierson. "Seeds of conflict," America's Civil War, September 2009, Vol. 22, No. 4, 25.) As David Christy argued in Cotton is King (1855), this increased the demand for slave-cultivated cotton. It gave the illusion that the economic wellbeing of the United States and the British Empire depended on the continuance of slavery, just as today the widespread illusion is that prosperity depends on the wage system and massive government debt.
Usually, however, advancing technology results in elimination of direct human labor in the production process. This phenomenon accelerated in the 20th century, and is a virtual pandemic in the 21st. Even as productivity is measured in terms of labor hours, human labor has become more important as the basis for justifying the redistribution of purchasing power than as a factor of production.
As technology advances, jobs begin to disappear at a rate faster than new ones are created. Exacerbating the problem is the shift away from small, widely distributed ownership, to highly concentrated ownership. As capital instruments increase in cost, the assumption that only existing accumulations of savings can be used to finance new capital formation causes ownership of the capital to become increasingly concentrated at an accelerating rate.
Within the past savings paradigm, "capital breeds capital." While valid only within the rigidly applied if fallacious principles of the Currency School of finance that rely on income from capital being diverted to reinvestment, this causes increasing concentrations of wealth. Locked into the past savings assumption, and absent State redistribution through inflation or the tax system, the great mass of people will be forced into destitution and dependency as their labor becomes less valuable in the production process relative to capital.
Crosskey's thesis in Politics and the Constitution was that the new Constitution of 1789 set up not a federal or federated system, per se, but a unified system of law binding on the individual states and all "commerce" (a term not restricted to mere business in the 18th century, but extending to all gainful activity.) between them, with the end of protecting each person's natural rights. In accordance with the principle of subsidiarity, states kept autonomy in local matters, but (to oversimplify somewhat) no state could pass a law that contradicted the unified system established by the Constitution.
Slavery, of course, was an exception to this general principle. Thus slavery was to a large degree responsible for undermining the system that Crosskey saw the Founding Fathers envision — hence the importance of measures that come across to us today as equivocations, such as the "Missouri Compromise" of 1820. These were efforts to make a system containing an inherent contradiction work, much like the "just wage" based on need is an inherently contradictory expedient to make a system based on past savings operable within marginally acceptable parameters. The contradiction of slavery, like the wage system, was a denial of natural rights, explicit and tacit, within a system based on a declaration of universal applicability and inalienable character of natural rights.
The choice appeared to be clear. In order for the United States to be preserved as a unified system as the Founding Fathers envisioned, the contradiction would have to be removed. The alternative would be to invoke "the judgment of heaven" on the new country, as George Mason predicted. (Robert A. Rutland, George Mason: Reluctant Statesman. Baton Rouge, Louisiana: Louisiana State University Press, 1961, 86-89.) This meant that the country would have to be either all slave, or all free, just as Abraham Lincoln declared in his "House Divided" speech. (Republican State Convention, Springfield, Illinois, June 16, 1858.) There could not, at one and the same time, be a middle ground where natural rights to life, liberty, or property were both protected and denied.
During the period between the adoption of the Constitution and the Civil War, however, the operation of the federal government had been minimal, almost to the point of actual neglect. As de Tocqueville noted in the 1830s,
"In some countries a power exists which, though it is in a degree foreign to the social body, directs it, and forces it to pursue a certain track. In others the ruling force is divided, being partly within and partly without the ranks of the people. But nothing of the kind is to be seen in the United States; there society governs itself for itself. All power centers in its bosom; and scarcely an individual is to be meet with who would venture to conceive, or, still less, to express, the idea of seeking it elsewhere. The nation participates in the making of its laws by the choice of its legislators, and in the execution of them by the choice of the agents of the executive government; it may almost be said to govern itself, so feeble and so restricted is the share left to the administration, so little do the authorities forget their popular origin and the power from which they emanate." (Alexis de Tocqueville, "The Principle of Sovereignty of the People in America," Democracy in America, I.iv.)
This principle of subsidiarity came to be interpreted as proving that "states' rights" were superior over those of the federal government. The correct view is that each level of government, as well as the individual citizens, has its proper sphere of action within a uniform system of law.
The Constitution of the United States was being grossly misinterpreted in order to maintain an egregiously unjust system. It could not last, and matters were about to come to a head in one of the three most infamous cases in the history of the United States Supreme Court: Scott v. Sandford, the "Dred Scott case."
#30# Read more Entry>>
Economically speaking, the 19th century was characterized by a shift toward capital-intensive production, and away from labor-intensive production. There were some anomalies, such as the invention of the cotton gin. The cotton gin made human chattel slavery economically viable by increasing dramatically the speed at which cotton could be processed. This removed a bottleneck in production. (Parke Pierson. "Seeds of conflict," America's Civil War, September 2009, Vol. 22, No. 4, 25.) As David Christy argued in Cotton is King (1855), this increased the demand for slave-cultivated cotton. It gave the illusion that the economic wellbeing of the United States and the British Empire depended on the continuance of slavery, just as today the widespread illusion is that prosperity depends on the wage system and massive government debt.
Usually, however, advancing technology results in elimination of direct human labor in the production process. This phenomenon accelerated in the 20th century, and is a virtual pandemic in the 21st. Even as productivity is measured in terms of labor hours, human labor has become more important as the basis for justifying the redistribution of purchasing power than as a factor of production.
As technology advances, jobs begin to disappear at a rate faster than new ones are created. Exacerbating the problem is the shift away from small, widely distributed ownership, to highly concentrated ownership. As capital instruments increase in cost, the assumption that only existing accumulations of savings can be used to finance new capital formation causes ownership of the capital to become increasingly concentrated at an accelerating rate.
Within the past savings paradigm, "capital breeds capital." While valid only within the rigidly applied if fallacious principles of the Currency School of finance that rely on income from capital being diverted to reinvestment, this causes increasing concentrations of wealth. Locked into the past savings assumption, and absent State redistribution through inflation or the tax system, the great mass of people will be forced into destitution and dependency as their labor becomes less valuable in the production process relative to capital.
Crosskey's thesis in Politics and the Constitution was that the new Constitution of 1789 set up not a federal or federated system, per se, but a unified system of law binding on the individual states and all "commerce" (a term not restricted to mere business in the 18th century, but extending to all gainful activity.) between them, with the end of protecting each person's natural rights. In accordance with the principle of subsidiarity, states kept autonomy in local matters, but (to oversimplify somewhat) no state could pass a law that contradicted the unified system established by the Constitution.
Slavery, of course, was an exception to this general principle. Thus slavery was to a large degree responsible for undermining the system that Crosskey saw the Founding Fathers envision — hence the importance of measures that come across to us today as equivocations, such as the "Missouri Compromise" of 1820. These were efforts to make a system containing an inherent contradiction work, much like the "just wage" based on need is an inherently contradictory expedient to make a system based on past savings operable within marginally acceptable parameters. The contradiction of slavery, like the wage system, was a denial of natural rights, explicit and tacit, within a system based on a declaration of universal applicability and inalienable character of natural rights.
The choice appeared to be clear. In order for the United States to be preserved as a unified system as the Founding Fathers envisioned, the contradiction would have to be removed. The alternative would be to invoke "the judgment of heaven" on the new country, as George Mason predicted. (Robert A. Rutland, George Mason: Reluctant Statesman. Baton Rouge, Louisiana: Louisiana State University Press, 1961, 86-89.) This meant that the country would have to be either all slave, or all free, just as Abraham Lincoln declared in his "House Divided" speech. (Republican State Convention, Springfield, Illinois, June 16, 1858.) There could not, at one and the same time, be a middle ground where natural rights to life, liberty, or property were both protected and denied.
During the period between the adoption of the Constitution and the Civil War, however, the operation of the federal government had been minimal, almost to the point of actual neglect. As de Tocqueville noted in the 1830s,
"In some countries a power exists which, though it is in a degree foreign to the social body, directs it, and forces it to pursue a certain track. In others the ruling force is divided, being partly within and partly without the ranks of the people. But nothing of the kind is to be seen in the United States; there society governs itself for itself. All power centers in its bosom; and scarcely an individual is to be meet with who would venture to conceive, or, still less, to express, the idea of seeking it elsewhere. The nation participates in the making of its laws by the choice of its legislators, and in the execution of them by the choice of the agents of the executive government; it may almost be said to govern itself, so feeble and so restricted is the share left to the administration, so little do the authorities forget their popular origin and the power from which they emanate." (Alexis de Tocqueville, "The Principle of Sovereignty of the People in America," Democracy in America, I.iv.)
This principle of subsidiarity came to be interpreted as proving that "states' rights" were superior over those of the federal government. The correct view is that each level of government, as well as the individual citizens, has its proper sphere of action within a uniform system of law.
The Constitution of the United States was being grossly misinterpreted in order to maintain an egregiously unjust system. It could not last, and matters were about to come to a head in one of the three most infamous cases in the history of the United States Supreme Court: Scott v. Sandford, the "Dred Scott case."
#30# Read more Entry>>
Monday, January 16, 2012
Raw Judicial Power VII: "All Men are Created Equal"
On July 4, 1776 the Continental Congress of the United Colonies declared to the world that all men are created equal, and are endowed by their Creator with certain inalienable rights, among them life, liberty, and the pursuit of happiness. The language of the Declaration of Independence was clearly inspired by the Virginia Declaration of Rights adopted nearly a month before on June 12.
Both documents obviously espoused an Aristotelian understanding of the natural law as refined by the Medieval scholastic philosophers, notably Thomas Aquinas. Robert Bellarmine, a 17th century Italian Catholic Cardinal, translated this into the idiom of modern political science. This was a result of his struggle against proponents of the divine right of kings, and transmitted to the revolutionaries largely through the work of John Locke and Algernon Sidney.
The basis for the new government was thus clearly derived from "Catholic" political theory: the natural law based on God's Nature and reflected in human nature, not someone's opinion about something that might or might not be an expression of God's Will. There was, however, a serious problem thrown into the mix: chattel slavery.
Defenders of slavery were quick to point out that slavery is not contrary to the natural law. That is absolutely correct. The problem was that, to be in conformity with the natural law, the enslaved individual has to be personally guilty of some crime for which slavery is imposed as punishment and a means of rehabilitation. To impose or maintain slavery based on the alleged inability of a single individual, much less an entire group, to function as free people, absent actual crimes of which they are personally and individually guilty, is directly contrary to natural law. You cannot punish people for something they might do. You can only punish someone for what he or she has actually done — and for which you have demonstrable proof.
Thus you had a conflict built into the constitution of the new country from the very beginning. Everything in the new Constitution except slavery was clearly established on a solid foundation of the natural law as found in Aristotelian philosophy corrected by Aquinas. In order to protect slavery, however, distortions and even contradictions became the order of the day. This caused problems that have lasted down to the present day, reaching what many regard as their epitome in Roe v. Wade.
According to William Crosskey, the perceived need to preserve slavery was behind the development of the theory of "state's rights" and the expansion of "judicial review" far beyond the intent of the framers of the Constitution. This promoted an encroachment by the Supreme Court on the powers of Congress before the Civil War in an effort to placate the politically powerful South, and after the war in opposition to the growth of the power of the Executive and the diminution of the power of Congress.
#30# Read more Entry>>
Both documents obviously espoused an Aristotelian understanding of the natural law as refined by the Medieval scholastic philosophers, notably Thomas Aquinas. Robert Bellarmine, a 17th century Italian Catholic Cardinal, translated this into the idiom of modern political science. This was a result of his struggle against proponents of the divine right of kings, and transmitted to the revolutionaries largely through the work of John Locke and Algernon Sidney.
The basis for the new government was thus clearly derived from "Catholic" political theory: the natural law based on God's Nature and reflected in human nature, not someone's opinion about something that might or might not be an expression of God's Will. There was, however, a serious problem thrown into the mix: chattel slavery.
Defenders of slavery were quick to point out that slavery is not contrary to the natural law. That is absolutely correct. The problem was that, to be in conformity with the natural law, the enslaved individual has to be personally guilty of some crime for which slavery is imposed as punishment and a means of rehabilitation. To impose or maintain slavery based on the alleged inability of a single individual, much less an entire group, to function as free people, absent actual crimes of which they are personally and individually guilty, is directly contrary to natural law. You cannot punish people for something they might do. You can only punish someone for what he or she has actually done — and for which you have demonstrable proof.
Thus you had a conflict built into the constitution of the new country from the very beginning. Everything in the new Constitution except slavery was clearly established on a solid foundation of the natural law as found in Aristotelian philosophy corrected by Aquinas. In order to protect slavery, however, distortions and even contradictions became the order of the day. This caused problems that have lasted down to the present day, reaching what many regard as their epitome in Roe v. Wade.
According to William Crosskey, the perceived need to preserve slavery was behind the development of the theory of "state's rights" and the expansion of "judicial review" far beyond the intent of the framers of the Constitution. This promoted an encroachment by the Supreme Court on the powers of Congress before the Civil War in an effort to placate the politically powerful South, and after the war in opposition to the growth of the power of the Executive and the diminution of the power of Congress.
#30# Read more Entry>>
Friday, January 13, 2012
News from the Network, Vol. 5, No. 2
Possibly the most earth-shaking event this week is the bankruptcy of the company that makes Hostess Twinkies, to say nothing of Ding Dongs, Sno-Balls, cream-filled cupcakes with twisty little icing squiggles on top, HoHos and other snacks, as well as Wonderbread (and no jokes about it being called that because you wonder why it's called bread).
While the public has been assured that the Twinkie Train will not be derailed, the relevant news to Just Third Way adherents is that the rather large bale of straw that broke the Twinkie's back and left it a little yellow and white smear on the floor of the Quik-E Mart is the nearly $1 billion in unfunded defined benefit pension plan liabilities the company has accrued and owes to the union's pension trust.
Depending on your addiction to brightly colored and tasty — if empty — calories, the Twinkie meltdown may dwarf the negligible problem of the nearly $7 trillion in unfunded defined benefit pension plan liabilities incurred by federal, state, and local governments. After all, the federal government can always just print more money by emitting bills of credit to bail itself or state and local governments out, but they can't bake Twinkies. Or produce anything else to generate income to meet its obligations. Senator Orrin Hatch is just an alarmist, especially when he says that the defined benefit plan is unsustainable. The bulwark of union power a dinosaur? Oh, yeah? Well . . . Mr. Hatch, you're another. So there!
Of course, if Senator Hatch is right, we're up the proverbial creek, and the only way out is a Capital Homestead Act as soon as possible, say, next week. So here's what we're doing to try and bring this about:
• Russell Williams, a Hartford activist and former President of the Greater Hartford NAACP who serves as one of the National Field Directors for the Center For Economic and Social Justice, has organized a Martin Luther King Jr. Economic Justice & Empowerment Summit to be held in Hartford on Saturday, January 14, 2012, from 10:00 am to 2:00 pm at the Bushnell Center for the Performing Arts on 166 Capital Avenue in the city. Admission is free and the public is invited. The auditorium will open at 9:00 am. The Connecticut Coalition for Capital Homesteading, the Connecticut State Baptist Convention, and Service for Peace are hosting the event. Norman Kurland, president of CESJ and managing director of Equity Expansion International, Inc., is the principal speaker.
• More interest is being generated in CESJ's new annotated edition of William Thomas Thornton's A Plea for Peasant Proprietors. Everyone is encouraged to visit the book's website and download a free copy of the e-text for reviews, comments, and endorsements.
• Dr. Scott H. initiated an interesting discussion by locating a poll on the internet that found most people think having a wage system job is the single most important issue today. Dr. H. pointed out that few people seem to be aware of the importance of widespread capital ownership, or are willing to compromise in order to obtain the immediate — if ephemeral — benefits of the Servile State and a guaranteed fixed wage and benefits package over their long-term self-interest in becoming capital owners.
• We were able to respond to Karl D., who asked a question some time ago regarding the possibility that the monetary reforms under Capital Homesteading might lead to unwise uses of credit for unsound capital projects, speculation, or consumption. We explained the additional checks and balances added into the system by using capital credit insurance and limiting the allocation that goes to each person.
• We responded to John McC., a long-time supporter of expanded ownership who, nevertheless, appeared not to understand the Kelso-Adler principles of economic justice, the social doctrine of Pope Pius XI, the need for economic democracy to support political democracy, or the role of the Federal Reserve (or any other central bank) in breaking the "slavery of past savings" and creating money to finance widespread capital ownership instead of government deficits.
• As of this morning, we have had visitors from 60 different countries and 44 states and provinces in the United States and Canada to this blog over the past two months. Most visitors are from the United States, the UK, Canada, Ireland, and Australia. People in Croatia, Germany, Argentina, and Venezuela spent the most average time on the blog. The most popular postings this past week were "Thomas Hobbes on Private Property," "It's the Academics v. the Politicians . . . v. Economic Reality, Part III: Finance," "Ron Paul and Creating Money," "'The Market Must Never Neglect Solidarity'," and "It's the Academics v. the Politicians . . . v. Economic Reality, Part I: Accounting."
Those are the happenings for this week, at least that we know about. If you have an accomplishment that you think should be listed, send us a note about it at mgreaney [at] cesj [dot] org, and we'll see that it gets into the next "issue." If you have a short (250-400 word) comment on a specific posting, please enter your comments in the blog — do not send them to us to post for you. All comments are moderated anyway, so we'll see it before it goes up.
#30# Read more Entry>>
While the public has been assured that the Twinkie Train will not be derailed, the relevant news to Just Third Way adherents is that the rather large bale of straw that broke the Twinkie's back and left it a little yellow and white smear on the floor of the Quik-E Mart is the nearly $1 billion in unfunded defined benefit pension plan liabilities the company has accrued and owes to the union's pension trust.
Depending on your addiction to brightly colored and tasty — if empty — calories, the Twinkie meltdown may dwarf the negligible problem of the nearly $7 trillion in unfunded defined benefit pension plan liabilities incurred by federal, state, and local governments. After all, the federal government can always just print more money by emitting bills of credit to bail itself or state and local governments out, but they can't bake Twinkies. Or produce anything else to generate income to meet its obligations. Senator Orrin Hatch is just an alarmist, especially when he says that the defined benefit plan is unsustainable. The bulwark of union power a dinosaur? Oh, yeah? Well . . . Mr. Hatch, you're another. So there!
Of course, if Senator Hatch is right, we're up the proverbial creek, and the only way out is a Capital Homestead Act as soon as possible, say, next week. So here's what we're doing to try and bring this about:
• Russell Williams, a Hartford activist and former President of the Greater Hartford NAACP who serves as one of the National Field Directors for the Center For Economic and Social Justice, has organized a Martin Luther King Jr. Economic Justice & Empowerment Summit to be held in Hartford on Saturday, January 14, 2012, from 10:00 am to 2:00 pm at the Bushnell Center for the Performing Arts on 166 Capital Avenue in the city. Admission is free and the public is invited. The auditorium will open at 9:00 am. The Connecticut Coalition for Capital Homesteading, the Connecticut State Baptist Convention, and Service for Peace are hosting the event. Norman Kurland, president of CESJ and managing director of Equity Expansion International, Inc., is the principal speaker.
• More interest is being generated in CESJ's new annotated edition of William Thomas Thornton's A Plea for Peasant Proprietors. Everyone is encouraged to visit the book's website and download a free copy of the e-text for reviews, comments, and endorsements.
• Dr. Scott H. initiated an interesting discussion by locating a poll on the internet that found most people think having a wage system job is the single most important issue today. Dr. H. pointed out that few people seem to be aware of the importance of widespread capital ownership, or are willing to compromise in order to obtain the immediate — if ephemeral — benefits of the Servile State and a guaranteed fixed wage and benefits package over their long-term self-interest in becoming capital owners.
• We were able to respond to Karl D., who asked a question some time ago regarding the possibility that the monetary reforms under Capital Homesteading might lead to unwise uses of credit for unsound capital projects, speculation, or consumption. We explained the additional checks and balances added into the system by using capital credit insurance and limiting the allocation that goes to each person.
• We responded to John McC., a long-time supporter of expanded ownership who, nevertheless, appeared not to understand the Kelso-Adler principles of economic justice, the social doctrine of Pope Pius XI, the need for economic democracy to support political democracy, or the role of the Federal Reserve (or any other central bank) in breaking the "slavery of past savings" and creating money to finance widespread capital ownership instead of government deficits.
• As of this morning, we have had visitors from 60 different countries and 44 states and provinces in the United States and Canada to this blog over the past two months. Most visitors are from the United States, the UK, Canada, Ireland, and Australia. People in Croatia, Germany, Argentina, and Venezuela spent the most average time on the blog. The most popular postings this past week were "Thomas Hobbes on Private Property," "It's the Academics v. the Politicians . . . v. Economic Reality, Part III: Finance," "Ron Paul and Creating Money," "'The Market Must Never Neglect Solidarity'," and "It's the Academics v. the Politicians . . . v. Economic Reality, Part I: Accounting."
Those are the happenings for this week, at least that we know about. If you have an accomplishment that you think should be listed, send us a note about it at mgreaney [at] cesj [dot] org, and we'll see that it gets into the next "issue." If you have a short (250-400 word) comment on a specific posting, please enter your comments in the blog — do not send them to us to post for you. All comments are moderated anyway, so we'll see it before it goes up.
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Thursday, January 12, 2012
Foreword to W. T. Thornton's "A Plea for Peasant Proprietors" (2)
In order to make life easier for us (at least today), we’re having a short break in our series on “Raw Judicial Power” and posting the second of three parts of our foreword to William Thomas Thornton’s A Plea for Peasant Proprietors. Our new annotated edition is starting to generate a little interest in some quarters. Take advantage of the free download on the “Plea” website and (if the spirit moves you) you can get a 20% discount on purchases in bulk (10 or more copies) . . . plus shipping. Or you can just go to Amazon or Barnes and Noble and get an individual copy.
So why all the fuss? Especially at this time of year when “everybody” is focused on the March for Life or the Republican shenanigans in trying to pick someone who can defeat President Obama when they’d be better off trying to find somebody who can do the job better instead of no worse.
Thornton's proposal was a logical development of an analysis he had published two years before. In his first major work in 1846, Over-Population and Its Remedy, (William Thomas Thornton, London: Longman, Brown, Green, and Longmans, 1846.) Thornton refuted Thomas Malthus's scarcity-based theories. Thornton's analysis in A Plea for Peasant Proprietors countered an idea implicit in Malthus's Essay: that ownership of capital must be concentrated if the rich are to accumulate sufficient savings to finance new capital and provide jobs for workers who own nothing except consumer goods and their own labor. Like other philosophers and political scientists through the ages, (A brief list includes Aristotle, the Gracchi (noted by Thornton), Plutarch, the 6th century Byzantine "Farmers' Law," John Locke, George Mason, William Cobbett, Benjamin Watkins Leigh, and Daniel Webster.) Thornton made clear that a program of widespread capital ownership has the potential to make people politically as well as economically free.
Nor did Thornton ignore the rights or concerns of propertyless non-agricultural workers. In fact, Thornton's proposal bears a striking resemblance to that of Louis Kelso and Mortimer Adler published in the late 1950s and early 1960s. (See Louis O. Kelso and Mortimer Adler, The Capitalist Manifesto. New York: Random House, 1958; The New Capitalists. New York: Random House, 1961) In 1869, Thornton published A Treatise On Labour: Its Wrongful Claims and Rightful Dues, Its Actual Present and Possible Future, (London: Macmillan and Company, 1869) revising it in 1870. This work strengthened his point that the only solution to the conflict between "labor" and "capital" is for workers and owners to form an alliance, with workers becoming owners with defined rights to profits and control. As he summarized the benefits of such an alliance,
"For mistrust and dislike or indifference on the one side, and for envy and jealousy on the other, would be substituted something of that fellow-feeling which can scarcely help growing up between those who, in serving themselves, are helping each other. With those laborers who had taken shares, some sympathy with capital would tincture the old headlong passion in favor of labor. With those who had not yet become shareholders the possibility of their becoming so subsequently would have a like effect." (William Thomas Thornton, On Labour: Its Wrongful Claims and Rightful Dues, Its Actual Present and Possible Future, Second Edition. London: Macmillan and Company, 1870, 394.)
Not surprisingly, this had also been the contention of Charles Morrison in his pivotal An Essay on the Relations Between Labour and Capital (London: Longman, Brown, Green, and Longmans, 1854. Morrison's book was influential in the reform of the Law of Partnerships and adoption of the Limited Liability Act of 1855 (18 & 19 Vict c 133), his goal being to lift one of the chief barriers preventing or inhibiting worker ownership.) published in 1854 — and would be repeated by Pope Leo XIII in the epochal Rerum Novarum in 1891, usually regarded as the first social encyclical, "On Capital and Labor": (Pope Leo XIII, Rerum Novarum ("On Capital and Labor"), 1891. N.B.: "On Capital and Labor" is the current official title in English. Many other titles have been used.)
"We have seen that this great labor question cannot be solved save by assuming as a principle that private ownership must be held sacred and inviolable. The law, therefore, should favor ownership, and its policy should be to induce as many as possible of the people to become owners." (Rerum Novarum, § 46.)
#30# Read more Entry>>
So why all the fuss? Especially at this time of year when “everybody” is focused on the March for Life or the Republican shenanigans in trying to pick someone who can defeat President Obama when they’d be better off trying to find somebody who can do the job better instead of no worse.
Thornton's proposal was a logical development of an analysis he had published two years before. In his first major work in 1846, Over-Population and Its Remedy, (William Thomas Thornton, London: Longman, Brown, Green, and Longmans, 1846.) Thornton refuted Thomas Malthus's scarcity-based theories. Thornton's analysis in A Plea for Peasant Proprietors countered an idea implicit in Malthus's Essay: that ownership of capital must be concentrated if the rich are to accumulate sufficient savings to finance new capital and provide jobs for workers who own nothing except consumer goods and their own labor. Like other philosophers and political scientists through the ages, (A brief list includes Aristotle, the Gracchi (noted by Thornton), Plutarch, the 6th century Byzantine "Farmers' Law," John Locke, George Mason, William Cobbett, Benjamin Watkins Leigh, and Daniel Webster.) Thornton made clear that a program of widespread capital ownership has the potential to make people politically as well as economically free.
Nor did Thornton ignore the rights or concerns of propertyless non-agricultural workers. In fact, Thornton's proposal bears a striking resemblance to that of Louis Kelso and Mortimer Adler published in the late 1950s and early 1960s. (See Louis O. Kelso and Mortimer Adler, The Capitalist Manifesto. New York: Random House, 1958; The New Capitalists. New York: Random House, 1961) In 1869, Thornton published A Treatise On Labour: Its Wrongful Claims and Rightful Dues, Its Actual Present and Possible Future, (London: Macmillan and Company, 1869) revising it in 1870. This work strengthened his point that the only solution to the conflict between "labor" and "capital" is for workers and owners to form an alliance, with workers becoming owners with defined rights to profits and control. As he summarized the benefits of such an alliance,
"For mistrust and dislike or indifference on the one side, and for envy and jealousy on the other, would be substituted something of that fellow-feeling which can scarcely help growing up between those who, in serving themselves, are helping each other. With those laborers who had taken shares, some sympathy with capital would tincture the old headlong passion in favor of labor. With those who had not yet become shareholders the possibility of their becoming so subsequently would have a like effect." (William Thomas Thornton, On Labour: Its Wrongful Claims and Rightful Dues, Its Actual Present and Possible Future, Second Edition. London: Macmillan and Company, 1870, 394.)
Not surprisingly, this had also been the contention of Charles Morrison in his pivotal An Essay on the Relations Between Labour and Capital (London: Longman, Brown, Green, and Longmans, 1854. Morrison's book was influential in the reform of the Law of Partnerships and adoption of the Limited Liability Act of 1855 (18 & 19 Vict c 133), his goal being to lift one of the chief barriers preventing or inhibiting worker ownership.) published in 1854 — and would be repeated by Pope Leo XIII in the epochal Rerum Novarum in 1891, usually regarded as the first social encyclical, "On Capital and Labor": (Pope Leo XIII, Rerum Novarum ("On Capital and Labor"), 1891. N.B.: "On Capital and Labor" is the current official title in English. Many other titles have been used.)
"We have seen that this great labor question cannot be solved save by assuming as a principle that private ownership must be held sacred and inviolable. The law, therefore, should favor ownership, and its policy should be to induce as many as possible of the people to become owners." (Rerum Novarum, § 46.)
#30# Read more Entry>>
Wednesday, January 11, 2012
Raw Judicial Power VI: "Crosskey's Once and Future Constitution"
As we saw in the previous posting in this series, to understand what happened in the Roe v. Wade decision, we first have to understand the basis of law assumed by the framers of the U.S. Constitution. We then have a task much harder than most people are willing to undertake. That is to realize that Roe v. Wade was not an isolated instance. It was, rather, the result of the development of a line of thought that has plagued humanity from the beginning of the idea, even the nature of law itself.
If we study the analysis of William Winslow Crosskey (1894-1968) in his uncompleted magnum opus, Politics and the Constitution in the History of the United States (Chicago, Illinois: University of Chicago Press, 1953), we might conclude that the United States Supreme Court has been engaged in what amounts to a power-grab almost from the moment of its establishment. This has resulted in the United States government operating in a manner never intended by the Founding Fathers of the American Republic. The inevitable consequence has been a usurpation of individual sovereignty and the undermining of the natural law on which the government of the United States is based.
Legislation by judiciary has been responsible for the effective emasculation not only of the individual natural rights protected by the 9th and 10th Amendments to the Constitution, but of the powers of Congress itself. Congress, while intended as the direct representative of the people to be the chief governing body of the country, has seen its role diminish. In response there has been a growth of overreaching executive power.
With the inability of the Congress to act in many cases as a result of the restriction of its powers by the expansion of the concept of judicial review beyond all bounds, the more general powers of the executive, being less amenable to judicial review, have necessarily stepped in to fill the void. Nature abhors a vacuum, and nowhere is this more true than when power is the issue.
This is, according to Crosskey, directly contrary to what the Founders intended. As one commentator on Crosskey's work summarized Crosskey's analysis (page references are to Politics and the Constitution, op. cit.),
"The separation of powers was to be complete enough that each branch, including the dominant legislative branch, would interpret its own powers (pp. 1008-1035). There were certain checks and balances, to be sure, but judicial review by the Supreme Court of acts of Congress was not among them, except to the limited extent of protecting judicial prerogatives (pp. 1002-1007)." (Laurin A. Wollan, Jr., "Crosskey's Once and Future Constitution," The Political Science Reviewer, Volume 5, No. 1, Fall 1975, 131.)
As matters have developed, however, the only check on the growth of the power of the United States Supreme Court is that the Court can only act in response to specific legislation; it is necessarily passive, and cannot take an active role. The Court can only act when a case is brought before it. As the history of the Court has amply demonstrated, however, this check has been far from adequate.
In order to understand how to counter this state of affairs and restore the natural law to its primacy of place in the United States, we have to know how the situation developed. As far as we have been able to determine, the decision in Roe v. Wade was the culmination of a long process that began even before the adoption of the U.S. Constitution.
The attack on the natural right to life was preceded by attacks on liberty in Scott v. Sandford in 1857, and on property in the Slaughterhouse Cases in 1873. The mindset that led to the pro-slavery decision in the Dred Scott case and the anti-property decision in the Slaughterhouse Cases is the same that led to the anti-life decision in Roe v. Wade.
#30# Read more Entry>>
If we study the analysis of William Winslow Crosskey (1894-1968) in his uncompleted magnum opus, Politics and the Constitution in the History of the United States (Chicago, Illinois: University of Chicago Press, 1953), we might conclude that the United States Supreme Court has been engaged in what amounts to a power-grab almost from the moment of its establishment. This has resulted in the United States government operating in a manner never intended by the Founding Fathers of the American Republic. The inevitable consequence has been a usurpation of individual sovereignty and the undermining of the natural law on which the government of the United States is based.
Legislation by judiciary has been responsible for the effective emasculation not only of the individual natural rights protected by the 9th and 10th Amendments to the Constitution, but of the powers of Congress itself. Congress, while intended as the direct representative of the people to be the chief governing body of the country, has seen its role diminish. In response there has been a growth of overreaching executive power.
With the inability of the Congress to act in many cases as a result of the restriction of its powers by the expansion of the concept of judicial review beyond all bounds, the more general powers of the executive, being less amenable to judicial review, have necessarily stepped in to fill the void. Nature abhors a vacuum, and nowhere is this more true than when power is the issue.
This is, according to Crosskey, directly contrary to what the Founders intended. As one commentator on Crosskey's work summarized Crosskey's analysis (page references are to Politics and the Constitution, op. cit.),
"The separation of powers was to be complete enough that each branch, including the dominant legislative branch, would interpret its own powers (pp. 1008-1035). There were certain checks and balances, to be sure, but judicial review by the Supreme Court of acts of Congress was not among them, except to the limited extent of protecting judicial prerogatives (pp. 1002-1007)." (Laurin A. Wollan, Jr., "Crosskey's Once and Future Constitution," The Political Science Reviewer, Volume 5, No. 1, Fall 1975, 131.)
As matters have developed, however, the only check on the growth of the power of the United States Supreme Court is that the Court can only act in response to specific legislation; it is necessarily passive, and cannot take an active role. The Court can only act when a case is brought before it. As the history of the Court has amply demonstrated, however, this check has been far from adequate.
In order to understand how to counter this state of affairs and restore the natural law to its primacy of place in the United States, we have to know how the situation developed. As far as we have been able to determine, the decision in Roe v. Wade was the culmination of a long process that began even before the adoption of the U.S. Constitution.
The attack on the natural right to life was preceded by attacks on liberty in Scott v. Sandford in 1857, and on property in the Slaughterhouse Cases in 1873. The mindset that led to the pro-slavery decision in the Dred Scott case and the anti-property decision in the Slaughterhouse Cases is the same that led to the anti-life decision in Roe v. Wade.
#30# Read more Entry>>
Tuesday, January 10, 2012
Raw Judicial Power V: The Nature of Law
The fixed idea today is that passing a law or handing down a court decision makes it so. Supporters of abortion endlessly chant the mantra, "It's perfectly legal," even though that declaration and the orientation behind it are flawed on many levels. The problem is that the orientation that the judiciary can somehow create law instead of being restricted to interpreting and applying the law is legal positivism at its finest — or worst, depending on your orientation.
This surfaces another problem, one with which the Pro-Life movement has failed — in some cases refused — to deal with. A proper understanding of the decision in Roe v. Wade reveals the "soft underbelly" of the Pro-Choice position: the idea that the State in the person of the Supreme Court, the Congress or the President can decide on basic issues of right and wrong, that is, the natural law, and thus what comprises a law or court decision that is consistent with the Constitution of the United States, a document based on the natural law.
This shifts power away from both individuals as themselves and organized into groups in an exercise of personal sovereignty and freedom of association, to what is effectively an all-powerful State. Inalienable rights become alienable by the simple expedient of redefining basic terms, and are viewed as bestowed by the State as expedient or prudent, and not because they inhere absolutely in each human being.
Nevertheless, as we saw in the previous posting in this series, human positive law — if it is to be considered just — is necessarily grounded in what our study of human nature and our reason reveal to be right or wrong: the natural law. The chief precept of the natural law is that good is to be done, and evil avoided. Aristotle defines "good" as that which is in conformity with nature. Thus, anything that goes contrary to nature, especially if it violates humanity's natural rights to life, liberty (freedom of association/contract), property and the pursuit of happiness, must be construed as wrong, regardless how many or how strong the proponents advocating the change. Might does not make right.
As Harry V. Jaffa pointed out in his book on the Constitution (Original Intent and the Framers of the Constitution. New York: Regnery Publishing Company, 1994), and as William Winslow Crosskey took as his thesis in his monumental Politics and the Constitution in the History of the United States (Chicago, Illinois: University of Chicago Press, 1953), no one, including the U.S. Supreme Court, can interpret the Constitution — constantly cited as "the law of the land" by supporters of Roe v. Wade — without knowing what the words mean . . . and, especially, what the framers of the Constitution meant by those words. In spite of that, as Crosskey related, the constitutional history of the United States has been a long chronicle of ongoing efforts to subvert the original intent and accepted definitions of terms in the U.S. Constitution from the system envisioned by the Founders, to what is politically expedient or desirable to advance special interests.
The subversion of the U.S. Constitution by the very body established as its chief defender has been an absolute disaster. The whole idea of the proper role of the State and man's place in the State is turned on its head. Rather than the government existing for the benefit of the people and by the consent of the governed, each human being becomes "a mere creature of the State." Each human being has only such rights as the State chooses to recognize (and is thus a person only to that extent), and even, as Hilaire Belloc pointed out in The Servile State (1912), is permitted to exist — when permitted to exist — only on such terms as the State dictates.
Rather than work for the restoration of the U.S. Constitution on terms that would effectively overturn Roe v. Wade by making it obviously in violation of our natural right to life, the Pro-Life movement has allowed itself to be diverted into using the same legal philosophy, even the same judicial weapons as the Pro-Choice movement. If one court decision can take away the right to life (so they appear to reason), then another court decision can give it back.
On the contrary — overturning Roe v. Wade would do absolutely nothing if the Supreme Court of the United States continues to abrogate the natural law basis of the Constitution and assert its alleged power to decide what a person is. In natural law, all human beings are de facto persons as a result of the inalienable rights possessed by each human being. It is the possession of rights — not a court decision or even a constitutional amendment — that makes someone or something a person.
Neither the courts nor the legislature, nor even a presidential decree creates a natural person — and all human beings are automatically natural persons by the mere fact of their humanity. The natural personality of each human being is a fact established by definition, and cannot be taken away by redefinition, even though totalitarian political philosophy would have it so. Nor can personality be subject to a popular vote.
Thus, the tactic that the Pro-Life movement should be pursuing (not that there should be any diminution in the protests and demonstrations), is to prove that, in Roe v. Wade and other court decisions, the U.S. Supreme Court has violated the chief precept of the natural law: good is to be done. Given that the reason for life is to acquire and develop virtue and so develop more fully as human beings, this necessarily bases law on morality, that is, that which is good. The natural law written in the hearts of all men dictates what is good, thus the basic precept of the natural law is good is to be done, evil avoided.
Man being by nature a political animal, the State is made for man as an assist to the acquisition and development of virtue. Man is not made for the State. Therefore, anything that subordinates a natural right to political or economic expedience is a direct attack on the natural law, and thus undermines the very justification for having the State in the first place.
Consistent with the laws and characteristics of social justice (William J. Ferree, S.M., Ph.D., Introduction to Social Justice. New York: Paulist Press, 1948), the way to overturn Roe v. Wade is not to work directly on the decision itself, but on the "environment" — the legal philosophy — that made the decision possible. Restoring the original intent of the Constitution is more than merely passing laws or handing down court decisions. It is a matter of our whole approach to life and politics. If that remains unchanged, and the natural law continues to be rejected as the basis for society and government, all the court decisions, laws, or even constitutional amendments will not do one bit of good.
#30# Read more Entry>>
This surfaces another problem, one with which the Pro-Life movement has failed — in some cases refused — to deal with. A proper understanding of the decision in Roe v. Wade reveals the "soft underbelly" of the Pro-Choice position: the idea that the State in the person of the Supreme Court, the Congress or the President can decide on basic issues of right and wrong, that is, the natural law, and thus what comprises a law or court decision that is consistent with the Constitution of the United States, a document based on the natural law.
This shifts power away from both individuals as themselves and organized into groups in an exercise of personal sovereignty and freedom of association, to what is effectively an all-powerful State. Inalienable rights become alienable by the simple expedient of redefining basic terms, and are viewed as bestowed by the State as expedient or prudent, and not because they inhere absolutely in each human being.
Nevertheless, as we saw in the previous posting in this series, human positive law — if it is to be considered just — is necessarily grounded in what our study of human nature and our reason reveal to be right or wrong: the natural law. The chief precept of the natural law is that good is to be done, and evil avoided. Aristotle defines "good" as that which is in conformity with nature. Thus, anything that goes contrary to nature, especially if it violates humanity's natural rights to life, liberty (freedom of association/contract), property and the pursuit of happiness, must be construed as wrong, regardless how many or how strong the proponents advocating the change. Might does not make right.
As Harry V. Jaffa pointed out in his book on the Constitution (Original Intent and the Framers of the Constitution. New York: Regnery Publishing Company, 1994), and as William Winslow Crosskey took as his thesis in his monumental Politics and the Constitution in the History of the United States (Chicago, Illinois: University of Chicago Press, 1953), no one, including the U.S. Supreme Court, can interpret the Constitution — constantly cited as "the law of the land" by supporters of Roe v. Wade — without knowing what the words mean . . . and, especially, what the framers of the Constitution meant by those words. In spite of that, as Crosskey related, the constitutional history of the United States has been a long chronicle of ongoing efforts to subvert the original intent and accepted definitions of terms in the U.S. Constitution from the system envisioned by the Founders, to what is politically expedient or desirable to advance special interests.
The subversion of the U.S. Constitution by the very body established as its chief defender has been an absolute disaster. The whole idea of the proper role of the State and man's place in the State is turned on its head. Rather than the government existing for the benefit of the people and by the consent of the governed, each human being becomes "a mere creature of the State." Each human being has only such rights as the State chooses to recognize (and is thus a person only to that extent), and even, as Hilaire Belloc pointed out in The Servile State (1912), is permitted to exist — when permitted to exist — only on such terms as the State dictates.
Rather than work for the restoration of the U.S. Constitution on terms that would effectively overturn Roe v. Wade by making it obviously in violation of our natural right to life, the Pro-Life movement has allowed itself to be diverted into using the same legal philosophy, even the same judicial weapons as the Pro-Choice movement. If one court decision can take away the right to life (so they appear to reason), then another court decision can give it back.
On the contrary — overturning Roe v. Wade would do absolutely nothing if the Supreme Court of the United States continues to abrogate the natural law basis of the Constitution and assert its alleged power to decide what a person is. In natural law, all human beings are de facto persons as a result of the inalienable rights possessed by each human being. It is the possession of rights — not a court decision or even a constitutional amendment — that makes someone or something a person.
Neither the courts nor the legislature, nor even a presidential decree creates a natural person — and all human beings are automatically natural persons by the mere fact of their humanity. The natural personality of each human being is a fact established by definition, and cannot be taken away by redefinition, even though totalitarian political philosophy would have it so. Nor can personality be subject to a popular vote.
Thus, the tactic that the Pro-Life movement should be pursuing (not that there should be any diminution in the protests and demonstrations), is to prove that, in Roe v. Wade and other court decisions, the U.S. Supreme Court has violated the chief precept of the natural law: good is to be done. Given that the reason for life is to acquire and develop virtue and so develop more fully as human beings, this necessarily bases law on morality, that is, that which is good. The natural law written in the hearts of all men dictates what is good, thus the basic precept of the natural law is good is to be done, evil avoided.
Man being by nature a political animal, the State is made for man as an assist to the acquisition and development of virtue. Man is not made for the State. Therefore, anything that subordinates a natural right to political or economic expedience is a direct attack on the natural law, and thus undermines the very justification for having the State in the first place.
Consistent with the laws and characteristics of social justice (William J. Ferree, S.M., Ph.D., Introduction to Social Justice. New York: Paulist Press, 1948), the way to overturn Roe v. Wade is not to work directly on the decision itself, but on the "environment" — the legal philosophy — that made the decision possible. Restoring the original intent of the Constitution is more than merely passing laws or handing down court decisions. It is a matter of our whole approach to life and politics. If that remains unchanged, and the natural law continues to be rejected as the basis for society and government, all the court decisions, laws, or even constitutional amendments will not do one bit of good.
#30# Read more Entry>>
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