The Unsung Charter & Popular Economic Control

Carta de Foresta (1217)

A preceding woodchip discussed how the Bill of Rights presupposes a citizen’s direct, active participation in civic affairs and how the rights of free speech, bearing arms and trial by popular jury were fundamental bases in a construct of political activism.  Gun violence and police lawlessness, we argued, were co-equal symptoms of a chronic political alienation which afflicts American society.

In this follow-up article, we would like to discuss how the Bill of Rights also presupposes a citizen’s direct and active participation in economic affairs. When the Bill is comprehended in its totality, it embodies not simply a list of juridical rights but a whole and organic concept of participatory political-economy. 

It may seem obvious to some that the Bill of Rights, as an 18th century political document, reflects and presupposes the economic conditions prevailing at the time it was written; namely, classical, entrepreneurial capitalism.  But, as explained in the previous article, the Bill of Rights is not a product of the Enlightment. It embodies a medieval construct that was only restated by the Founding Fathers.  If the Bill of Rights  reflects a medieval a political-economy it makes sense to examine the economic conditions prevailing at the time of Magna Carta, just as in the preceding article we examined the political construct of those times.

Detail of Shearing from Trés Riches Heures

Caveat. The economies of bygone eras is a complex topic always in peril of yielding the wrong conclusions. The epic studies of Henri Pirenne and Ferdinand Braudel have demonstrated that what is today conveniently nut-shelled as “the Dark Ages” involved varied and contradictory economic currents.  The 1000 year history of Europe’s economy between A.D. 475 and 1453 is one of continuous adaptation and transformation.  When it comes to english feudalism in the 10th and 14th centuries, the situation is no simpler. There is no single tableau economique of feudal economic rights and obligations.

What can be said, at the risk of a cartoon, is that society was composed of four classes: a peasantry (which was relatively prosperous), a middle-class of tradesmen and merchants, a para-class of clerics and a warrior nobility.  To a substantial degree, the king was merely a preeminent member of the nobility although royal activists were always striving to turn themselves into all-embracing monarchs.

The peasantry, nobility and monarch were economically and politically connected by a hierarchy of mutual rights and obligations clustering around interests in land.

The tradesmen and merchants were basically exempt from this core feudal structure. They were free-roamers and free-traders with their own laws, guilds and associations.

Also exempt was the entire army of the Church which was a parallel and separate government providing non-tangible services and with jurisdiction over non-landed interests.

Zapotec Weaver,  Oaxaca, Mexico (1994)

It is a debateable how separated these classes were from one another.  England’s early parliaments, the Witengamot (600-1066), deriving from the still earlier folkmoots, was a unicameral body not divided into Lords and Commons but consisting simply of “prominent” men. It is fair to say, that although clear class distinctions arose out of status and function, localized economies and conditions brought these classes into a closer, more mutually dependent and in this sense democratic relationship.
.

Neverthless, in the slow but inexorable move toward capitalism, many peasants became dispossessed from their land and were reduced to sharecropping or vagabondage.

Members of the middle class moved both up and down. Most tradesmen became “industrial” laborers while many merchants metamorphosed into factory owners producing the goods they had previously simply bought from others and resold.

The nobility continued to live off the land, but (if they wanted to survive) adapted to changing circumstances by adding “businesses” to their armoury.

The para-class of clerics had included just about anyone who could write so that monks and clerics had acted as a kind of secretarial and administrative class which now came to include teachers, accountants and lawyers.

These changes occurred gradually over the same period that the charters and laws from which the Bill of Rights was drawn were enacted. Although the 13th century appears pivotal in retrospect, strong and vibrant elements of the feudal order persisted in both original and altered forms into the 18th century.

Among these medieval charters and laws, Magna Carta is the chieftest. It gets trucked out on Law Day, as some kind of sacred relic which is oft intoned and seldom read. But there was another document from that era which is equally significant even if it is not intoned at all: Carta de Foresta.

Pannage or Pig Grazing on Common Lands

The Forest Charter was in fact a 13th century Economic Bill of Rights.  It was first issued in 1217 as a complementary charter to Magna Carta from and provided in pertinent part that,

    "Henceforth every freeman, in his wood or on his land that he has in the forest, may with impunity make a mill, fish-preserve, pond, marl-pit, ditch, or arable in cultivated land outside coverts, provided that no injury is thereby given to any neighbour."

The “forest,” which included fields, moors, farms and common lands, comprised a resource which was essential for the peasants’ survival.  It provided wood for heating, cooking and smithing; it provided pasture for pigs and cattle; and it provided a direct source of captured or hunted food. Without access to “the forest” peasant farming was simply not economically viable.

By most definitions, “capital” includes any natural resource which is put into productive use (e.g. a forest used as resource for making paper). For this same reason King John and members of the upper nobility sought to monopolize these capital resources.  While the “foresta” were not entirely used by the peasantry as capital in a strict sense (e.g. to produce paper), they provided the common man with at least an indirect form of capital which was critical to his other productive activities.  In particular, wood as a source of energy was as important to industry then as oil is today.

Magna Carta and Carta de Foresta were thus the two pillars of England’s popular political-economy.   Just as Magna Carta protected political and juridical rights, Carta de Foresta aimed to protect and insure the common man’s economic survival.

Those familiar with pre-capitalist history would fairly point out that if this Golden Age of Peasantry ever existed it was short lived.  While that is true enough,it is also true that, throughout the subsequent class struggles of the 14th and 15th centuries, the working man’s claim is usually conservative -- seeking to retain ancient and traditional rights more striving to gain new ones.

And it was the retained tradition that the Bill of Rights presupposes. The cluster of legal and economic rights, which evolved over a 700 year period and from which the Bill of Rights was drawn, pressupposed not only active political participation in local affairs but also a viable and sustainable economic participation.  The role of the individual may have been small, but it was real and direct.

As noted in the previous article, the unique demographic conditions of the United States immediately upon independence, perpetuated or revived medieval living conditions.  As the isolated hearth on the heath was disappearing in England, it came to life again in the outbacks of Kentucky or the plains of Nebraska.  Similarly as the common lands and forests were  enclosed  and monopolized in England, the American yeoman had an open continent for his pasture and meadow. 

Accordingly, to assert that the Bill of Rights presupposed a "medievalist" political-economy is not to engage in a fantasmagorical appeal to a statu quo ante, because it was, in America, the prevailing statu quo hic et nunc.

Late Medieval Butcher

Nor is it contradictory to argue that the Bill of Rights presupposed a classical, burgess economy. Whether the Bill's political and juridical traditions are regarded as a reflection of medieval economies or as a manifestation of 18th century social circumstances in either case they presupposed a society in which the free citizen directly and responsibly participated in both his economy and his civic life. 


What is added by the longer historical perspective is the understanding that the Bill of Rights does not simply manifest a brief bourgeois “blip” in the historical trajectory but rather reflects an ongoing social tradition that over-arches specific economic systems.  In other words, in whatever specific form it may take -- feudal, classically capitalist or other --  the Bill of Rights assumes the existence of direct participatory popular control over political and economic life.

By way of pertinent example, the right to bear arms, carried over into the Second Amendment, is not only a political right in case of tyranny and subversion,  not only (as we have argued) a civic duty to participate in local policing it must be viewed as well in its utilitarian, economic context as insuring the means of primitive survival.    This is not to say that the Bill of Rights is, in the abstract, an economic document; but rather that it is a juridical document which implies a certain economic vitality.

What has occurred, then, over the past 200 years is a mutilation in which political rights have been severed from their economic correlatives and both have been vestigialized.

Contrary to the social construct envisioned by the Bill of Rights, ordinary Americans have become alienated from direct active political participation. The resort to indirect, representative democracy at the local level and the intervention of professional administrators, managers and police have disassociated the citizen from his “political work”.  By reducing civic participation to the occasional passive choice between options presented, man had become alienated from his citizenship.

A similar process has taken place in the economic sphere whereby the average worker has become alienated from his labor.  To see how this is so, it is necessary to step back an examine what it means to “work”.

In recent times, it was John Lock who expressed the idea that ownership over something derived from man’s labour put into it.  It was a simple proposition.  A craftsman who cuts, shapes and sands wood to turn out a carved table quite literally transfers his sweat and skill into the material worked on.

If there is an uneven surface or nick in the table’s leg, it reflects for all time the mis-angled thrust that, in a moment of time, was made by a man working. For better or worse, the worker reproduces himself in the object he creates. The object takes on the properties bestowed into it by its creator which is why it is called his property.

Of course, the craftsman takes his table and exchanges it for some product created by someone else. Because we ourselves have become so alienated from the process of production we tend to think of this exchange as a mere transfer of objects.  In fact, what takes place is a species of intercourse in which mens’ labours are shared and incorporated into eachother’s lives. I eat on another man’s back and walk in his hands. It was for this reason that Aristotle said commerce was the first level of friendship.

Bartering

However, when one man works for another, a  principle of alienation is introduced. What the worker sells in this case is not a product but the use of his labor. The object produced is taken away from the worker, given  another’s name and disposed of as is expedient for the authorized owner. This severance introduces a subtle sorrow and ultimately despair into work.  It is not as grievous as seeing one’s son or daughter being raised in another’s house but the fact of alienation is the same and its effects are evidenced in the well known phenomenon of worker indifference and carelessness.  

«Tu proverai sì come sa di sale
lo pane altrui, e come è duro calle
lo scendere e 'l salir per l'altrui scale . . .»

"You are to know the bitter taste
of others' bread, how salty it is, and know
how hard a path it is for one who goes
ascending and descending others' stairs . . ."
(Paradiso, Canto XVII (55-60).)

Those familiar with Marxist theory will also spot the inevitably ensuing alienation of economic value. But the focus of this article is on what might be called the psychology of economic activity.

As an historical and practical matter, the alienation of the worker from his product, took place primarily within the context of the division of labor; but this only rendered matters worse because the worker was not only alienated from the product but even from the act of creative paternity.   As noted by Adam Smith, in an oft forgotten passage,

    "The understandings of the greater part of men are necessarily formed by their ordinary employments. The man whose whole life is spent in performing a few simple operations, of which the effects are perhaps always the same, or very nearly the same, has no occasion to exert his understanding or to exercise his invention in finding out expedients for removing difficulties which never occur. He naturally loses, therefore, the habit of such exertion, and generally becomes as stupid and ignorant as it is possible for a human creature to become. The torpor of his mind renders him not only incapable of relishing or bearing a part in any rational conversation, but of conceiving any generous, noble, or tender sentiment, and consequently of forming any just judgment concerning many even of the ordinary duties of private life... But in every improved and civilized society this is the state into which the laboring poor, that is, the great body of the people, must necessarily fall, unless government takes some pains to prevent it." (Wealth of Nations (1776) Bk V, ch. 1.)

The 20th century saw various attempts at a solution.  The allure of National Socialism was that it appeared to many -- capitalists and progressives alike -- to have solved the problem of worker-drone anomie by calling upon Captial and Labor to work together for the Volk Gemeinschaft -- the People’s Community -- of which they were both a part.  All life became a National Wagnerian Gesamtkunst (all together art) in which everyone played an “organic” role.

Soviet Communism was similar, with the added difference that in theory at least, everyone, through the state, owned everything and all the profits.  If one looked at the picture of Soviet Life, everyone was as happily participatory in the great proletarian community as the Germans were in theirs.

America’s National Capitalism recognized the problem but ultimately sought a solution in promoting a National Community of Junk. 

Early progressives like Herbert Croley  (The Promise of American Life) and Theodore Roosevelt were inspired by the Bismarckian political-economy which ultimately evolved into National Socialism.  In fact, the progressive movement initially called itself the “New Nationalism.” 

"The New Nationalism puts the national need before sectional or personal advantage.”  Roosevelt said.  It will “regulate the use of wealth in the public interest” and “regulate the terms and conditions of labor”  bearing in mind that coporate profit should be allowed  “only so long as the gaining represents benefit to the community” and to the end that “the commonwealth will get from every citizen the highest service of which he is capable.” (Osawatomie, Kansas August 1910)

Less progressively, Woodrow Wilson put forward his “New Democracy” which aimed to promote and revive local entrepreneurship.  Although Bull Moose Progressives and the New Democrats moved in opposite directions both platforms were grappling with the same underlying problem: the uneven distribution of wealth coupled to political and economic alienation.

In the end, the United States adopted a model which was a watered down version of both plans. Corporations -- not the State -- were made responsible for providing health care and pensions while the Government took care of the absolutely destitute and provided some incentives for small businesses.  The problem of anomie was solved not with Wagnerian gesamtkitsch but with the narcosis of consumerism.

Despite their geo-political antagonisms, each of the three systems ended up looking and being very much alike; and they all suffered from the same fundamental defect: they  sought a solution in substitutions without reviving actual worker control of his economic life.

Among professional historians the substitution is known as “false embourgeoisement” -- a tongue twisting term meaning to make labor drones feel like they are “middle class” by giving them the trappings of the bourgeoisie.

The defect did not go unnoticed.  In Germany, Otto Ohlendorf, an S.S. economist, collaborated with the later post-war chancellor, Ludwig Erhardt, in drafting an economic model based upon revival of a craft ethic, leaving “mass production” to the United States and Japan. In Ohlendorf's opinion, (cribbing straight from Adam Smith), only skilled, craftwork was compatible with fomenting politically conscious human qualities. 

In the United States, Walther Reuther, made worker participation in management one of the demands of his 1946  strike againt General Motors.  Reuther, a socialist who had been impressed by soviet worker-councils,  wanted American labour to regain some measure of control over its economic life.  In exchange for "co-determination" in management, workers' pay would be indexed to company profits.  In the end, however, Reuther was bought off with a basket of goodies that was too good to pass up, with the dismal result that the American labour movement ceased ot have any economic ideology other than “Gimme”.

Reuther had been on the right track.  In terms of goodies alone, there is no difference between false embourgoisement and plain decent living conditions.   What makes the single family dwelling, the Volkswagen, the washing machine, the radio "false" is divorcing the possessing of these goods  from involvement in the process of their production.   Herbert Croley had been very clear that his "New Nationalism" had to take its shape and impetus from democratic initiatives arising "from below".

But if the economic system renders the worker “as stupid and ignorant as it is possible for a human creature to become”  it is pointless to hope for a vibrant, democratic political life. 

Homo politicus and homo economicus are two sides of the same coin. A mere labourer is not an “economic man” but simply an economic resource which is precisely why corporations and governments speak of “human resources”.  But an economic resource cannot be and will not even conceive of itself as a political being.   As an ultimate result, the United States has come to epitomize Adam Smith’s predictive warning. It has simply added giggles to the stupidity and torpor by showering the common man with goodies .... and no longer even that. 

The reduction of the Bill of Rights to a catalogue of merely personal rights was a necessary part of the economic and political dispossession of the common man.  In this respect both so-called liberals and so-called conservatives have got it entirely wrong.  The bill of rights does not “enshrine” merely individual rights, but rather the social rights of individuals in their economic and political being.

If the promise of the Bill of Rights is to be realized, it is not enough to demand this or that “right” and it is not enough to demand this or that economic “entitlement.”   Without falling into antiquarian or luddite nostalgias, means must be found to reactivate real and substantive political and economic participation and responsibility by all citizens.

Butcher Tables, Zachila, Oaxaca

Gun Control, Cop Control and Self Control under the Bill of Rights

      

In the past months a spate of shootings once again focused public attention on armed violence in the United States.  Most of the attention focused on the group shootings in Illinois and Wisconsin.

Strangely enough, the liberal-progressive media gave scant attention to two other shootings which occurred at the same time.  In Anaheim, California, the police carried out a curbside execution, in plain view, of a suspect who was lying helplessly on the ground.  Not covered at all, was a story reported in the U.K.’s Guardian,

“Friday 3 August 2012 13.21 EDT. The FBI says it is "monitoring" the case of a police suspect who officers claim fatally shot himself in the head despite having his hands cuffed behind his back in the rear of a patrol car.  • • • The incident has raised questions, not least over how officers apparently failed to find the gun on Carter during an initial search. It has also been said that the suspect died as a result to a gunshot wound to the right temple. Carter was left-handed ....” [ Full Article ]

The police executions triggered predictable protests from the minorities involved but were mostly ignored by middle class liberals who continued to tear their hair out over the Second Amendment.  Once again, political discourse suffered from curious disconnects, an ignorance of history and an undue focus on one’s own immediate wants -- or as increasingly the case  -  on one’s private injuries and fears.

Gun control and cop control are two sides of the same political coin. The solution to both aspects of the problem is greater citizen training and participation in the policing of communities. This solution is not just a choice among policy options.  The necessity for individual civic participation is a constitutional assumption.  Keeping and bearing arms is correlative with the right to bear witness and render jury verdicts.  These two rights are cornerstones of civic duty and implicate direct popular involvement and control over the essentials of public life.  

This legal conclusion begins with a sociological question.

On reading about the Aurora killings, we wondered if such armed insanity occurred when people were habituated to living with and using arms on a daily basis. It did not seem to us that it did.  Certainly crime and lunacy have always existed; but gun advocates are right when they insist that it is people -- not guns -- who commit crimes.

Liberals can dance around this fact all they want, but the sum and substance of their arguments is that since we can’t trust people to be mature and law abiding it is best to keep arms out of their hands.  At bottom, this argument tacitly accepts a society of belligerent, lumpen morons as an unalterable reality. The argument is all the more curious coming from that same political faction which in the next breath talks about cultural sensitivity, liberal education and bringing back the philosopher-peasant.

The socio-historical fact is that the Second Amendment presupposes a mature and responsible citizenry.  The Amendment serves as a barometer of social equity and health.  The kind of society America ought to be is one in which citizens can be trusted to keep and bear arms.  If that is not the case, then we are not the kind of society we ought to be.

The argument between gun control and gun rights creates an historically false dialectic which disconnects what was originally viewed as one and the same thing. Put another way, a political philosophy which espouses freedom necessarily presupposes personal self-control. Conversely, self-control presupposes the existence of things in relation to which control is exercised.

It is thus that the Second Amendment has its rude genesis in the right of freemen to participate in the defence of the realm. In medieval times, the distinction between a right and a duty did not exist in its modern anti-podal form; rather, the capacity for self-defence and for self rule were two sides of free-born status.

Upon assuming the throne (such as it was) in A.D. 872,  King Alfred the Great issued an edict that all who could afford to do so should assemble to repel the pagan Danes who had seized London.  His contemporaneous organization of towns into fyrds of a hundred families reflected a loose socio-military structure akin to the Krumper System or what might be called an army-on-call. [ FN-1 ]

A little over a century later, as the emergencies of war gave way to the routines of peace, Alfred’s system coalesced. Under the laws of Edward the Confessor (1042-1060), “the inhabitants of each Township regulated their own local police. They were bound to keep watch and ward. If any crime was committed in their district, they were to raise the hue and cry and to pursue and apprehend the offender. ...  Even the poorest or almost propertyless Churl, was personally free. He was law-worthy.  The Churl had the right of bearing arms. He was a legal witness. He had political rights with regard to the magistracies of his township, ...  both as an elector, and as himself eligible to office.”  (British Common Law,  Francis NigelLee, DCL., Part VI, Ch. 23  (1993).)

The situation remained much the same after the Norman Conquest. King Henry II’s Assize of Arms (1181) prohibited ownership of weapons by Jews and, of all others, required ownership of arms according to wealth and status, viz  “...every free layman who possesses chattels or rents to the value of 16m. shall have a shirt of mail, a helmet, a shield, and a lance....”   The Assize of Arms of 1252 required all males between 15 and 60 to keep specified arms and to quell breaches of peace when summoned by nominated local constables.

Hue & Cry

There can be no question that, under these laws, the possession of arms was “regulated” and that the bearing of arms was connected to a feudal military obligation.  However, proponents of present day gun-control overwork the military connection by ignoring the political context which was one in which the individual was directly and immediately connected to exercising attributes of sovereignty: not only answering a call to arms, but policing the town, bearing witness and giving judgement.

It is a canard of 18th century liberal propagandists that the Middle Ages were an undemocratic time.  On the contrary, both in England as on the Continent, feudalism entailed a high degree of rough but real freeborn political participation by fee-holders of arms-bearing age.  To say that the “right to bear arms” was subsidiary to the existence of a “well regulated knighthood” ignores the more predicate reality that the militia in those days was “self-regulating” and that its self-regulation fit within a scheme of immediate, local self-governance.

This concept of local self-governance is at the core of the Bill of Rights which, today, is too often thought of as enshrining merely individual rights as if these existed in isolation from their social context.  A brief and summary over-view will illustrate the encompassing medieval roots of the Bill of Rights. 

A century after Edward the Confessor, the Constitutions of Clarendon  (1164) affirmed that no layman could be accused except that twelve lawful men from the neighboring ‘hundred’ were summoned, placed on Christian oath by the Sheriff, and thereupon returned a true-finding or veredictum on the matter. (Const. Art. 6.)

The procedure was amplified in Articles 17 and 39 of Magna Carta (1215) which declared that ordinary lawsuits should be tried locally and that “[n]o Freeman shall be taken or imprisoned or dispossessed or outlawed or banished or in any way destroyed; .... except by the legal judgement of his peers or by the law of the land.”

Magna Carta also provided the germ of the Fifth Amendment by specifying that “no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it” (id., Art. 38) and that “no constable or royal official shall take corn or other movable goods from any man without immediate payment ....” (id, Art. 28).

The laws of King Canute (A.D. 995-1035) had provided that “merciful punishments shall be determined upon for the public good; and the handiwork of God and the purchase which He made at a great price, shall not be destroyed for trivial offences” (II Cnut 1-4).   Magna Carta confirmed that, “For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. (Carta, Art. 20.) 

Most famously, of course, the first article of Magna Carta -- providing that “the English Church shall be free, and shall have... its liberties unimpaired” -- protected the freedom of the Church from subordination to Royal power and, through historical adaptations, became the First Amendment’s freedom of conscience and expression from government infringement.

This brief sketch illustrates that the Bill of Rights is an organic whole which incorporates a medieval political philosophy of chartered liberties for districts and so called “free cities.”

The salient character of medieval English law is that while it allowed a common law throughout the realm, it also sought to restrain royal encroachments and safeguard local control over local affairs.  Within this context the right to bear arms, the right to a local jury trial by one’s equals upon corroborated evidence were of the same weave which preserved citizen participation in his own safety and justice.

What is astonishing is the consistency with which these medieval rights were maintained as England progressed through the revolutionary upheavals giving birth to the modern era.

In 1688, King James II, as King John before him, sought to extend Royal Prerogative at the expense of individuals and the Church of England hoping, it was feared, to reimpose Catholic (and French) hegemony over Britain.  He was overthrown by an armed populace in the “Glorious Revolution” of 1688 which re-instituted England’s by then established concept of constitutional monarchy. 

In the revolution’s aftermath, Parliament enacted the 1689 Bill of Rights which became the most immediate predecessor of the American Bill of Rights. 

In pertinent parts, the 1689 Bill prohibited: “the raising or keeping a standing Army within the Kingdome in time of Peace...” (which became the Third Amendment’s prohibition against quartering of soldiers)  [2] “that  the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law” (which became the Second Amendment)  [3] “that  Jurors ought to be duely impannelled and returned...” (which became the Sixth Amendment) and [4] “that excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.” (which became the Eighth). [ FN-2 ]

(The one modern addition to this medieval cluster of rights was the Fourth Amendment’s prohibition against unreasonable searches and seizures which arose from the 18th century trans-Atlantic uproar over the rummaging and seizure of the North Briton’s presses which had published nasty things about the King’s minister. (Wilkes v. Wood, (1763) 98 Eng. Rep. 489 (C.P.); Entick v. Carrington, (1765) 95 Eng. Rep. 807 (K.B.).)  [ FN-3 ]

One of the idiocies of the Received Standard Version of American Education in the 20th century is that the Constitution and Bill of Rights were, if not inventions of the quasi-divine genius of the Founding Fathers, at least products of Enlightenment liberalism. 

Another idiocy is the utterly upside down notion that the Stuarts based their rule on obscurantist medieval ideas about the Divine Right of Kings.  In fact, James II, as King John and the Tudors before him and as the Borbons, Frederick, Bonaparte, Hitler and Stalin after, were all believers in the modern concept of the centralized, unaccountable, supreme state.  The idea was not so much l’etat c’est Moi as it was l’Etat c’est tout.

The English legal historian, Theodore Plucknett, put it this way:

    “Out of all the confusion and disaster of the middle ages, there arose a uniform cry for law, which should be divine in its origin, supreme in its authority, rendering justly to every man his due. ... When we come to Machiavelli we reach the spirit of the Renaissance... A double standard between public and private morality introduces a sort of polytheism utterly repugnant to medieval thought.  The issue of this conflict is perhaps still uncertain, but medieval thought is today fighting hard for the cause of law against the amoral, irresponsible State.  It was the medievalists in England ... who ended Stuart statecraft, and the Constitution of the United States was written by men who had Magna Carta and Coke before their eyes. Could anything be more medieval than the idea of due process or the insertion into an instrument of government of a contract clause?"  (Concise History of the Common Law (1928) Cambridge. Univ. Press.)

Could anything be more medieval than the idea of jury trial and nullification?

From the perspective of French or Continental liberalism, such medievalisms are an absurdity.  In their view all rights derive from the Social Contract and it is an oxymoron for the State to guarantee rights against itself. This was precisely Hamilton’s argument as to why there was no need for a Bill of Rights to be appended to the Constitution. (Fed. Pap. # )  The State being established to promulgate the General Welfare what could be more absurd than allowing ad hoc groups of citizens to hobble and oppose its operations?

But Madison was English, and when the American Colonists sought their independence from royal authority they did so “as Englishmen” in the same tradition and manner as the Barons at Runneymede. And it is certain that when the barons forced King John to sign Magna Carta, they were not leaning on their quills.

The right to bear arms against the state was at the core of the Supreme’s Court decision in District of Columbia v. Heller (2008) 554 U.S. 570.  In his majority opinion, Justice Scalia emphasized the Second Amendment’s role in providing a safeguard against tyranny. He noted that,

    “Under the auspices of the 1671 Game Act, for example, the Catholic Charles II had ordered general disarmaments of regions home to his Protestant enemies [at p. 593] ... and  of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760's and 1770's, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. [at p. 598].”

Charles II and James II were the legitimate sovereign authority and as such had every prerogative to punish or execute those who violated duly promulgated laws. But what of the situation when the lawful authority is itself subverting constitutional underpinnings?  To appeal to “the law” in its official manifestation would be to spit in the wind.  As in 1215, so in  1688 and so too in 1776, the right to bear arms was the right to resist, to compel, to overthrow.  No one thought otherwise.

While bearing arms against the Crown might be the most primary and the ultimate act of popular nullification, it is not the only one provided for by the Constitution. The Second Amendment is properly viewed in conjunction with the Sixth Amendments’s guarantee of a jury trial.

The State has always eyed the popular jury with suspicion. Just as the Stuarts sought to disarm Protestants, the Crown sought to bend juries to its will.  Medievalists thought otherwise. In Bushel’s Case (1670) 124 E.R. 1006, Chief Justice Vaughan forbade punishing jurors for returning verdicts the Crown disagreed with.  Once empaneled, the jury was absolute and its verdict once given was unimpeachable.  As explained by the Supreme Court,

    “[T]he very reason the Framers put a jury-trial guarantee in the Constitution is that they were unwilling to trust government to mark out the role of the jury. ...¶¶... Our Constitution and the common-law traditions it entrenches, however, do not admit the contention that facts are better discovered by judicial inquisition than by adversarial testing before a jury.  (Blakely v Washington (2003) 542 US 296, 308, 313, [Maj. Opn., Steven, J.].)

    “[Justice Bryer] sketches an admirably fair and efficient scheme of criminal justice designed for a society that is prepared to leave criminal justice to the State. (Judges, it is sometimes necessary to remind ourselves, are part of the State — and an increasingly bureaucratic part of it, at that.) The founders of the American Republic were not prepared to leave it to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free.”  (Apprendi v New Jersey (2000) 430 U.S. 466, 498  [Conc. Opn., Scalia, J.].)

Thus, whereas the Second Amendment reserves the right of physical resistance, the Sixth preserves the right of political impedance.  Neither contemplates purely individual obstruction; both enable the raw sentiment of the community to make itself felt.

As the power of the centralized State grew, the politically negative role of the two rights came to be emphasized.  However, that was never their only function.  Tracing roots back to the days of Edward the Confessor, it can be seen that raising the hue and cry, bearing witness and giving judgements marked out an ambit of positive, daily participation in local civic life.

While this ambit may have shrunk as England became more industrialized and urban, by an accident of history, it found new life in the United States where a sparse population living in isolated settlements hearkened back to medieval demographic conditions.

American Jury Trial (1849)

It was not until the 20th century, when the United States itself became urbanized, that direct citizen responsibility and control over his immediate civic circumstances slowly gave way to management by professionals and supervision by a standing police.  Unfortunately, the Supreme Court has not been zealous in protecting the right to be safe from police.

The English and Colonial opposition to standing armies was not based solely on the policies they enforced as much as on what they intrinsically represented.  Any standing force by its very nature introduces a principle of alienation into society, because any line, whether red, green, grey or blue, of necessity creates two sides.

In the inevitable conflict between authority and autonomy, the English answer was predictable.  William Pitt, on the occasion of a debate in Parliament on the searches incident to the enforcement of an tax on cider, eloquently expressed the principle:

   

    “The poorest man may in his cottage bid defiance to all the forces of the Crown.  It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter -- all his force dares not cross the threshold of the ruined tenement!”  (Miller v. United States (1958) 357 U.S. 301, 307 [maj. opn., Brennan, J.].)

   
Of course, Pitt did not mean that the King’s Men could not enter at all, but rather than they could do so only upon warrant, after knock and notice and in a reasonable and restricted manner.

In the first half of the 20th century, a growing recognition by the Supreme Court of the importance of the Fourth Amendment led it to review and restrict the license with which police were allowed to act.  Critical to the restrictions was the judicial rule that refused to give any legal effect to illegally seized evidence.

Unfortunatley, one of the more inane and destructive idiocies ever uttered by a judge was the quip by “liberal” Justice Cardozo that the exclusionary rule meant the “criminal is to go free because the constable blundered.”  Waving the banner of innocent blundering, an organized cry against “shackling” the police and against “criminal” rights, was used by the police, ardent prosecutors, pandering politicians and supine judges to turn the Fourth Amendment into a meaningless piety riddled with exceptions.

    “The Court's rhetoric cannot disguise the fact that when it not only tolerates but also provides an affirmative incentive for warrantless and plainly unreasonable and unnecessary intrusions ....”  (Segura v United States (1984) 468 U.S. 796, 840  [Diss. Stevens, J.].)

Taking their cue, trial court judges routinely play deaf dumb and stupid to police excuses and evasions on the  stand.  The police themselves jokingly refer to their bearing witness as “testilying.”  Such habits, now entrenched after 50 years of habituated indifference, have created a culture of impunity among the police. 

This culture of impunity is built upon a subtle but fundamental alienation of police from society which is reflected in their self-differentiation from so-called “civilians” and in their opposition to “civilian review boards.”  In legal fact, police are themselves civilians but the accepted nomenclature has allowed them to become viewed as and to act as a de facto para-military force which, being free from “civilian” oversight, is an actual army of occupation.  

To say that the Founding Fathers would be scandalized is an understatement.

In the Common Law tradition of which it forms a part, the Bill of Rights is not merely a catalogue of enumerated me rights but rather a reservation of us-rights in a presumed social context. It marks out an ambit of reserved activity and self-governance not as mere options but as commitments.

When the Bill of Rights is understood as an organic whole it can be seen how far we have fallen from the social and political reality it presupposes.  In lieu of direct and personal involvement in his immediate economic and social affairs, the average American is alienated from both his labor and his franchise.

The result confirms the grimmest prophecies of both Durkheim and Marx. The vast majority of Americans do not work for themselves but for hire; they are not directly involved in the management, cultivation and protection of their own communities but hire out civic services;  they do not create their own culture but passively accept the entertainments and recreations provided to them by purveyors of inanity and junk. The picture of Americans in their Third Century is one of slothful political obesity.

Police violence, drug violence, domestic violence, and deranged violence are equally symptoms of the underlying economic and political anomie which afflicts American society.  To call for gun control without addressing the toxicity of police culture, to call for police control without addressing the toxicity of ghetto culture to call for control in lieu of civic participation only serves to perpetuate the underlying alienation.

Alas, the wasteland of American society is so de-educated, fragmented, degraded and impoverished that it falls into the category of a Quixotic fantasy to call for the restoration of civic chivalry.

Nevertheless, there’s always hope and prayer. As with physical fitness, people gain in responsibility the more they are given responsibility. Out of the chaos and disaster of American urban life there should arise a unanimous cry for a re-communalizing of the metropolis in such ways that citizens directly and actively participate as a matter of duty and right in the policing of their communities. 

Civic participation does not require a degree. It is based on animated involvement guided by common sense. Those of us who have worked with (or on) juries are left with an abiding wonderment at how well the system works even when we disagree with the result and even when the result is the occasional outrage. Communities have experimented  with “youth juries” for juvenile offenders with promising initial results.  Jury trials should be encouraged rather than discouraged and jury service should be compensated according to financial need on a progressive scale so that a broad spectrum of citizens can look forward to serving.

Similarly, mandatory firearm education should be part of  secondary education so that all youths are taught how to use weapons with an abiding respect for their lethal consequences.  Both youths and adults should work with a smaller core of professional police in patrolling neighborhoods and in supervising and setting standards for their patrolling. 

It follows, almost without saying, that a broad spectrum of national services should be established.  But these services need not be drawn on lines requiring two or three year full time commitments. They should be administered locally and can be calibrated to dovetail with a variety of individual circumstances at different stages in life. 

Until the global capitalist economy collapses, it is not possible to return to the days of truly local agrarian economies.  But as Herbert Croley, the founder of the American Progressive movement, understood, even in an industrial and national context it is possible and desirable to stimulate civic and economic participation “from below.”

Until the Bill of Rights is taken as a charter for political participation, the country will continue to be victimized by its own failings.

©Woodchip Gazette, 2012

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Of Jokers and Cheshire Cats

“Words had lost their ordinary meaning... and Athenians had lost the capacity for simplicity of speech which is the mark of a noble man.”  -- Thucydides, Peloponnesian War.

The Supreme Court has upheld the core provisions of Obamacare.  The predictable result will be a lot of crowing and scrambling from the usual quarters; but whether the cause of constitutionalism has much to crow about is another matter.

As heard by the Court, National Federation of Independent Business v. Sebelius   involved two substantive questions: (1) whether Congress could require people to buy medical health insurance and penalize them if they failed to do so, and (2) whether the Federal Government could force the states to participate in the expanded provisions of the Medicaid program by taking away their existing funding if they failed to do so.  In a fragmented decision, the Court upheld the law, more or less five to four on the first question and 3+2-4 on the second.

Since most people are swayed by the objects of their desires, there is bound to be a storm of blustering outrage from the right met with vindictive exultation from the “leftish” media over Justice Scalia’s supposed defeat.  Without doubt the providing of health care is one of the most pressing social and economic issues of the day and the arguments on how to do so are well delineated by now. But as important as any result is how the Court gets there and, in this light, the Court’s opinion is yet another step onward in its ongoing destruction of language and hence what we call “the rule of law.”

This article is not so much about health care as about jurisprudence and about how a thicket of evasions, equivocations and idiomatic devices have hollowed out guided discourse.

Artifice all but reeks and drips from the very first sentence of the opinion. A preliminary question the Court had to face was whether it could hear the case at all.  The Government had urged, as one of its arguments, that the individual mandate was really just a kind-of tax that should be upheld under Congress’s indisputable power to levy taxes.  The problem with this argument was the long standing and equally indisputable rule that a tax cannot be challenged in court until it is actually imposed.  Since the individual mandate does not take effect until 2014 there was nothing to hear, yet. 

The Court’s majority opinion, written by Chief Justice Roberts, neatly killed two birds with one stone: the mandate was a lawful tax under the Constitution’s Tax & Spend Clause but it was not a tax for purposes of contesting the matter in court.  Such a two-faced argument, however it is turned, is simply too clever for honesty. 

But even with respect to the substantive question of whether the mandate was a tax the majority’s argument was specious. In sustaining the individual mandate on its merits, Chief Justice Roberts framed the issue thus:

    “The most straightforward reading of the mandate is that it commands individuals to purchase insurance. .... After all, it states that individuals “shall” maintain health insurance. ....   Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. .... That, according to the Government, means the mandate can be regarded as establishing a condition —- not owning health insurance -— that triggers a tax -— the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.  (Opn. pp. 31-32 [emph. added].)

The Court smiled upon the theory and in support of this cleverness cited Crowell v. Benson, (1932) 285 U. S. 22, for the proposition that  “[t]he question is not whether that is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.” (Id., at p. 62.)  Among lawyers this is known as the “laugh test”  -- can you say it with a straight face?  Apparently so, since the Chief Justice did not dissolve into convulsions of uncontrollable mirth when he read his opinion from the bench.

The attentive reader might notice the broken analogy between “buying gasoline or earning income” and “not buying insurance.”  The reader might wonder if this means that the government could tax “not earning income.”  The question can be asked with a straight face given that for many years England did in fact penalize poverty (Vagabonds and Beggars Act 1495) and such legislation survived in the United States until 1972.

Could not the Court have come up with a better theory, one that did not put such a strain on facial muscles? After all most everyone thought that the decision would hang on  a straight up or down reading of the Commerce Clause.

The jurisprudence of the Commerce Clause is nothing less than the domestic history of the United States in legal form.  The clause grants Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”  As it applied to the “several States” it was most likely intended to prevent the states from enacting protective tariffs against one another as they sought to become economically autarchic to the detriment of general prosperity.  But it very quickly became evident that a country which was half pluribus and half unum was embroiled in numerous and varying inter state contacts. As the nation became more and more economically developed and entangled so too did the Commerce Clause which, through a variety of jurisprudential “theories,” sought to accommodate economic necessities.

At first the clause was held to authorize regulation of commerce that directly inter-coursed between two states, such as ferryboats and railways. (Gibbons v. Ogden (1824) 22 U.S. 1.)  It was then held to authorize legislation over indirect impacts on inter-state trade, as for example price fixing among meatpackers in stockyards which, the Court said, "are but a throat through which the current [of commerce] flows.” (Stafford v. Wallace (1922) 258 U.S. 495; also Swift v. United States (1905) 196 U.S. 375.) Lastly it was held to authorize regulations over local activities which had an indirect effect on the flow of commerce.

The high water mark of federal commerce clause regulation came in 1942 with the decision in  Wickard v. Filburn, 317 U. S. 111 which Justice Scalia’s dissent called “the ne plus ultra of expansive Commerce Clause jurisprudence.” (Opn. p. 3.)  It was also the ne plus ultra of judicial sophistry.

There is no dispute as to what Wickard held.  Roscoe Filburn was back-country Ohio farmer who grew some wheat for his own consumption.  He asserted that, as a purely local and non-commercial grower, he was exempt from federal regulation.  Nope.  The Court held that by not participating in interstate commerce Filburn affected interstate commerce as much as if he had participated in interstate commerce and was therefore subject to federal regulation.  

In holding that “out” means “in” the Court announced a rule that could be used to justify anything. Indeed, those who favored federal intervention and regulation regarded Wickard’s Joker as an all purpose rationale  -- one merely had to string together a series of potential “impacts” on commerce.

It was no surprise that the Administration and those in favor of Obamacare, argued that the individual mandate was lawful under Congress’s power to regulate interstate commerce.  If government can destroy gallons of milk to support the price, why can’t it require the purchase of milk to drive the price down?  Liberal commentators excoriated Justice Scalia’s evil simple-mindedness when he asked during oral arguments whether the government could force a person to buy broccoli.

However, in the denouement, except for Justices Ginzburg and Sotomayor, the Court agreed with Scalia. As Chief Justice Roberts wrote,

“Congress thought it could enact such a [mandate] under the Commerce Clause, and the Government primarily defended the law on that basis. But, ... the Commerce Clause does not give Congress that power.” (Opn. pg. 32.)

In so holding, the Roberts-Scalia opinions continued a tepid retreat from Wickard that began under Chief Justice Rhenquist, when the Court held that the rule in Wickard did not apply to purely social or anti-social activities but required at least a true economic nexus. (Printz v. United States, (1997) 521 U. S. 898, 933-935.) 

In the present case, both the majority and the dissenting conservatives sought a further limitation on Wickard’s reach. They agreed that the Commerce Clause authorized regulation over existing economic activity but could not be used to compel an activity.

 “Our precedents recognize Congress’s power to regulate “class[es] of activities,” .... [W]e have never permitted Congress to anticipate that activity itself in order to regulate individuals not currently engaged in commerce. Each one of our cases,....involved pre-existing economic activity.” (Opn. pp. 25-26.)

Given this part of the majority opinion, most of Scalia’s opinion could be described as “dissenting to the choir.”    The true dissent came from Ginzburg’s concurring opinion scolding the choir. 

Justice Ginzburg argued that Congressional power under the Commerce Clause was “plenary” and “practical” (Conc. p. 14). Even before Wickard its “capacious power extend[ed] even to local activities” (p. 15) and certainly since Wickard cultivators had been ordered to curtail or cease production (p. 22).  As to how “ceasing” included “starting” -- and to Roberts'  incredulous impatience -- Ginzburg cited an antiquated, albeit possible, 18th century definition that “to ‘regulate’ meant,” among other things, “to require action.” (Conc. p. 23.)

Her opinion included a lengthy recapitulation of all the medical and economic needs and defects involved in the U.S. health care system, at the end of which she concluded that Congress had “acted reasonably in requiring uninsured individuals to purchase insurance” and that the Court could not gainsay a “regulatory scheme” that had a “rational basis.” (Conc. pp. 17-18.)

In so arguing, Ginzburg incorporated equal protection concepts into the Commerce Clause.  Under the Equal Protection Clause, when a law treats similarly situated persons in unequal ways, the court asks whether there is a “rational basis” for the discrimination; for example, is it reasonable to exclude old people from military service. 

The defect in Ginzburg’s argument was that the rational basis “test” looks to see if the law has unconsitutional effect but it presupposes that the law flows from a constitutionally authorized source.  The Constitution itself is a subset of all reasonable alternatives.   Something may be reasonable and still not constitutional which is why justices of yore spoke of “constitutional reasonableness” -- that is, logic and common sense within the parameters of the Constitution.   Rational Basis as a test of constitutional authority is a simply a maleable device which adds another Joker to the deck.

The same might be said of the Necessary & Proper Clause.   Needless to say, Justice Ginzburg was of the view that, in addition to doing anything “reasonable” Congress also had the power to do anything it might deem “necessary.”   Certainly, if Congress has jurisdiction over an enumerated subject matter (e.g., “commerce,” “taxes” or “defense”) its jurisdiction includes a subsidiary power to use any necessary and proper means to implement the authority given. But, as Roberts reaffirmed, the clause does not allow Congress to do anything it thinks is necessary and proper for the general welfare.  If it did, there would have been no point in enumerating the specific powers granted to Congress. 

Thus far, the battle lines were rather clearly drawn. The Ginzburg faction was of the view that the Commerce Clause (as interpreted in Wickard) granted Congress a plenary power “to bind and to loosen” on Earth if not in Heaven. The only limitation was a measure of reasonable expediency in choice of legistated policy. In contrast, the Roberts Scalia faction was determined either to limit or at least not to extend Wickard so as to include a mandate to engage in commerce. 

But between the two lines, lay a field of question marks.  As Ginzburg put it: Why should Roberts “strive so  mightily” to limit congressional power under the Commerce Clause only to uphold the law as a non-tax tax under the Tax & Spend Clause?  She found this “puzzling” and confessed, “I find no satisfying response to that question in his opinion.” (Conc. p. 37.)  

An answer may be perhaps be puzzled out by focusing on what Roberts and Scalia actually did, which was to make explicit a limitation on Wickard which had hitherto never been expressly articulated.

In reaching its conclusion that Obamacare could not be justified under the Commerce Clause, both the majority and the dissents stepped lightly over some singular precedents. Asserting that commerce clause regulation only applied to a pre-existing activity,  Chief Justice Roberts cited Heart of Atlanta Motel, Inc. v. United States (1964)  379 U. S. 241 (prohibiting discrimination by hotel operators) and Katzenbach v. McClung (1964) 379 U. S. 294 (prohibiting discrimination by restaurant owners).

In point of law, both the Roberts majority and the Scalia dissenters were wrong.  What Roberts omitted to note was that both those landmark civil rights cases required hotel and restaurant owners to enter into contracts with persons they preferred not to have economic activity with.  The whole and sole basis of both decisions was that not serving African-Americans diminished the overall level interstate commerce.  In  Ollie’s Barbecue Case (Katzenbach) the court went so far as to detail the number of pounds of interstate hamburger meat at stake. It was a pure Wickard “analysis” applied to engineer a result.

It did not hold water to distinguish Katzenbach and Heart of Atlanta on the grounds that they only regulated “pre-existing” economic activity.  Indeed both the frying of burgers and the providing of beds pre-existed as much as the “selling of medical insurance” pre-exists.  What does not pre-exist in all three instances is a particular contract between two parties. Of course, by virtue of traveling, African-American customers were not themselves engaged in a "pre-existing business activity" but neither was farmer Filburne.  The whole point of his case was that he was not engaged in commercial activity pre-existing or otherwise; and the whole point of Wickard was that it did not matter.   Had the majority wanted to uphold the ACA under the Commerce Clause it could have.

Although Ginzburg refrained from pointing out these non-distinctions, she was correct to note that Katzenbach had already imported the rational basis test into Commerce Clause law.  Ginzburg’s opinion was far too overly larded with practical, legislative considerations but her reading of precedents was correct and it would have sufficed to argue for the mandate under them.

On the other hand, what Roberts managed was to uphold the mandate while imposing an explicit limitation on the Commerce Clause without calling into question two of the most important civil rights cases of the last century.

Whether or not one agrees with the outcome, the jurisprudential result is that we now have a ne plus ultra plus one.  In addition to Wickard’s Joker of outs which are in, we now have the Cheshire Cat of non-tax taxes which may be enforced by the Internal Revenue Service turned into policing agency. 

Like Wickard before it, National v. Sebelius is a brutal example of what is known in legal parlance as “outcome determination” -- the sum and substance of which is the view that jurisprudence consists in rustling up whatever congeries of words provides a “rationale” for the result. 

For most of the 20th century, outcome determination was the standard official doctrine of American jurisprudence. It derived from dean Roscoe Pound’s theory of “sociological jurisprudence” which redefined law as a “tool of social engineering.”  In his view, the law itself did not inherently lead to any result but was rather an array of so-called functions, rationales and tests aimed at achieving any desired purpose. 
 
In Germany, outcome determination was known as “teleological jurisprudence.”  Although the “method” was not developed by the Nazis, it was enthusiastically embraced by them.  In the Third Reich, the function of law was to “legalize” the chosen policies of the state. Law would mean what it needed to mean in order to promote the health and safety of Volk Gemeinschaft or Folk Community, as determined by the Fuhrer and the Party. 

Result-oriented jurisprudence is the dirty little secret of American caselaw.  Justice Ginzburg let it slip when she criticized Justice Roberts’ mighty labors stating that she saw “no reason to undertake a Commerce Clause analysis that is not [sic] outcome determinative.”  (Conc. p. 37, fn. 14.)  Roberts’ decision was outcome-determinative, it just wasn’t outcome-determinative in the way Ginzburg wanted. 

Ginzburg’s Footnote provides a glimpse into the methodological habits of the Court. As we have shown, Ginzburg had precedent on her side.  Put another way, Katzenbach and Heart of Atlanta had already done the outcome-determinative dirty work.  All Ginzburg had to do was invoke stare decisis -- the rule that, whatever disputes preceded it, a precedent, once decided, stands. Instead, rather than conforming themselves to precedent, both sides engaged in choosing their desired result and arguing over  how to rustle up the words to “legalize” it.

There are those, both in academe and the press, who are fond of sagely and cynically intoning that Supreme Court decisions are “just politics.”   Of course they are politics; the Court has no jurisdiction in Heaven.  The more salient question is: what kind of politics? The traditional answer has been: that kind of political decision which is guided by the sound and sense of words.

“Law” has no physical reality apart from the shape of words. In the tradition of the Common Law, rule of law or due process de loi  referred to “custom and usage” in the way we talk about things. In England, law students “read law” in order to familiarize themselves with the conversation that has taken place over two thousand years. In this light, jurisprudence becomes a qualitative politics which achieves consistency by adhering to the plain meaning of words while accommodating change through adaptive analogy and nuance. 

Of course, there is no one way to read words which, after all, are not numbers.  Words have a range of “values” depending on context and interpretation, which is why the Supreme Court has nine judges instead of just one. The idea was that a filtration of words which was agreed upon by all was apt to be the better reading of our custom and usage.  The better reading depends on conforming one's self to the gentle constraints of language.  The near permanent division of the Court into 5-4 splits is simply an reflection of the bankruptcy of sociological jurisprudence which has, indeed, reduced the court to the most vulgar sort of politics... the kind which is guided solely by expedience.

None of this matters to those who simply want to achieve a result.  But the reason the court upheld Obamacare had almost nothing to do with anything it said and this, in itself, has serious political consequences. 

A rule of law based on objects of desire is no law at all but simply heteronomy of will. Instead of an unfolding from a consistency of speech, we are left with Jokers and Cheshire Cats. Instead of an instructive discourse between the Court and the public, people are left to speculate as to the private motivations justices might have had for choosing a result which they propped up with a heap of meaningless “rationales.”  [FN 1]

It is true that the genius of the American system is that  it prefers to chop logic instead of heads.  That is nothing to sniff at and the Roosevelt Court’s “switch in time” saved more than just nine.   The rhetorical devices of analogy, metaphor and equivocation are the means by which the law adapts and innovates.   But to say that judges live on the slippery slope of analogy doesn’t mean they have to ski to the bottom.  Too much slipping and chopping confuses thought and reduces discourse to nothing more than articulated howls -- words which mean nothing except for their emotive content. At that point uniquely human society ceases to exist. (Aristotle,  Politics, Bk. II.)  In my opinion, the Court’s decision dis-served the rule of law which first and last  presupposes a spirit of candor and simplicity in the use of speech.

©Woodchip Gazette, 2012.

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