Crack Hills Have Eyes: The Clueless Panopticon
“More American police officers died during prohibition of alcohol than any other time in history. 300 died in 1930 alone. After prohibition ended, police deaths didn’t reach 200 a year again until the year Nixon declared war on drugs.”
As this person mentions interesting data on Prohibition, I have these also:
“By 1930, more than a third of the inmates in the nation’s federal prison system were persons convicted of violating the Volstead Act [Eighteenth Amendment’s implementing federal legislation]. That statistic demonstrates that a major effect of prohibition was the growth of federal prisons. As late as the 1890s, the federal government had no prisons at all ; the small number of persons jailed for committing federal crimes were held in state prisons.” (G. Edward White, American Legal History, 2014)
Nevertheless I regard Prohibition as a “noble experiment” (Herbert Hoover) and was even in touch with the Prohibition Party, which still exists. Please consider sending membership application:
As to the war on drugs, allow me to quote a previous lesson (Lesson 9):
“There’s been a crack pandemic in Paris, France, these last years, with an area now known as Crack Hill (la colline du crack) in the North-Eastern parts of the city. Neighbors talking of “hell,” “nightmare” and other such words has become commonplace. Authorities are pouring millions of taxpayer money in a so-called crack plan doing nothing but distributing under police surveillance new crack pipes every Thursday to the 1.500 crackheads (they know the numbers!) roaming on Crack Hill, and paying for 400 hotel rooms for crackheads. Thus the bureaucracy’s sole policy is to prevent the crackheads’ habit from turning them into blood felons, with the result that they will remain an endless source of unpunished misdemeanors, an everlasting nightmare for the neighborhood. – This in a country where the numbers of police officers per inhabitant are extremely high.”
That’s the “war on drugs” they’ve got there: distributing crack pipes like the Salvation Army bowls of soup and lodging crackheads in hotel rooms at taxpayer’s expense, while the very same taxpayers are living a daily hell.
Not only do they live a hell but also the governement is ruining them. You might say –maybe with French authorities– that people are free to take their things and leave if they don’t like the neighborhood, but wait a minute: If they own their house, they won’t be able to sell it at a fair price, they won’t get the price they would if the government had enforced the law instead of letting a Crack Hill sprout.
But the icing on the cake… as I said, they know everything, they know the numbers (1.500), they know how many rooms and how many pipes are needed, they know the names, I guess, and the records of everyone and who dates whom. They know everything and won’t do a thing. – Crack Hills Have Eyes: The Powerless Panopticon!
Now, when last weekend (first weekend of May 2021) and the next days neighbors were reported shooting firework mortars at crackheads, my, I can’t say I am surprised.
‘A Culture of Fear and Censorship‘
A Christian Finnish politician has been charged with multiple hate crimes, after she tweeted a Bible verse and criticised homosexuality, and could face up to 6 years in prison as a result. (National File)
“Paul Coleman, the Executive Director of ADF International, who is representing Päivi Räsänen: The Finnish Prosecutor General’s decision to bring these charges against Dr. Räsänen creates a culture of fear and censorship. It is sobering that such cases are becoming all too common throughout Europe. If committed civil servants like Päivi Räsänen are criminally charged for voicing their deeply held beliefs, it creates a chilling effect for everyone’s right to speak freely.”
When the laws are such, no one can be surprised that prosecuting authorities make use of them. What creates “a culture of fear and censorship” in Finland is not the charges but the very laws that trigger them. And make no mistake, grassroots movements for repealing hate speech laws do not exist in European countries where such laws exist.
First, you won’t hear a lawyer ask for a change in the law where judicial review is as good as non-existent, which I believe is the case in most European countries. As a matter of fact it is the case in France, where the judicial review of laws is the domain of a byzantine council where former members of the legislative and executive powers seat, that is, whose members are asked to review laws they passed in their former functions! Absent serious judicial review, no trial can be the occasion to revise legislation.
And there is and has been no support for repealing hate speech and other speech suppression laws among the public opinions of these countries, nor in the media nor from any group of which I know, probably because, among other things, people know they would go against a state-terror state that does not hesitate to deprive people of their freedom because of their speech. That is, where a state has hate speech and other such laws, asking to repeal these laws is a remarkably exigent demand on such a state, a demand for which one could easily be labeled an enemy of the state.
God Bless America.
The defence chosen by Räsänen’s lawyer is doomed. On the one hand he refuses to criticize the Finnish law, probably for the following reason: To criticize the law would be an argument for judicial review of the law, which is not available to the defendant (this is a mere conjecture, but if judicial review is available, clearly the lawyer ought to make use of it). On the other hand he criticizes the step taken by prosecuting authorities –that is, the charges– as contrary to a ‘cornerstone of democracy,’ freedom of speech, but as the charges are based on Finnish law the argument aims at the wrong target: Judges (it should be juries if you ask me but as I said we are dealing with a type of state devoid of refined conceptions of individual rights) will determine that the charges are conform to the law and condemn Räsänen. It is the law that is supposed to defend freedom of speech, so when the law requires to condemn someone for her speech, the judge, if not summoned to judicially review the law, will descry it as both defending speech and nonetheless instructing him or her to condemn someone for their speech because there are ‘necessary exceptions etc.’ Judges in their quality of ordinary judges are no judge of the law: They will examine the charges but they cannot, as ordinary judges, decide that the charges violate a fundamental guarantee when observing at the same time that the law commands the charges.
Political Cartel Persecution
In the parliamentary debates on the French bill against Muslim separatism the representative responsible for the bill (rapporteur général) said at some point that proselytism is forbidden, which is simply not true. Think of it, to claim religious freedom exists and at the same time declare that proselytism is forbidden! To be sure in recent years French authorities took measures to restrain proselytism in the surroundings of schools –I have no idea how such measures can even be applied, so stupid it looks: does it mean that people are forbidden to talk about religion in the surroundings of schools?– but of course proselytism is a fundamentam right. As if one had no right to proclaim their faith!
Then they say speech laws in France distinguish between criticizing a religion, which would be allowed, and derogatory speech against people because of their religion, which is hate speech. Such a distinction is meaningless; one would say, for instance, “Bahaism is a moronic religion” and that would be fine, but if they said “Bahaism is a religion of morons” that would be hate speech. On the one hand that means you can skirt the law by mere phrasing, by immaterial speech warps with no effect on the content. On the other hand, and this is the truth of this distinction, it means the whole thing is at the discretion of prosecuting authorities (and in France prosecutors are both at the orders of the government and from the same body as allegedly independent judges). There is no rule of law anymore, it’s government arbitrariness throughout.
Then, once they have told you that censorship does not exist in France, that only the judge can rule that such and such speech is illicit, they pass legislative bills allowing the government to shut down associations, close mosques, seize material etc based on alleged hate speech without prior intervention of a judge!
Recently, the head of a Muslim charity was under accusations linked with terrorism. For two years he was subjected to police surveillance restricting his freedom because of the judicial proceedings against him. At the end of two years the judge cleared him of all charges: He never had any connection with terrorism, the judge said. In response the administration shut down his organization and the government is now gloating over it. How do you call that, if not a police state?
Likely you won’t even find the word Islam or Muslim in the bill, it’s a catch-all text. The government says it’s against Muslim separatism, not Corsican separatism (an example given by a cabinet member), but a future government may use it against all separatists they want or all people they want to call separatists, and conversely instruct the administration and prosecutors to apply the law in no circumstance whatsoever to such and such other groups.
(When people who are the majority in the assembly of Corsica call themselves Corsican Nationalists, of course they are separatists because the ‘Nation’ is France, not Corsica. So the law can be aimed at them, no matter what the government says.)
But the truth of such catch-all bills is that they must be implemented discriminatorily. Short of being a catch-all text, the bill would be declared unconstitutional as a result of its discriminatory nature, so the intended discrimination is left to its application by the executive.
With the bill the government claims that restrictions on freedom of association are necessary to prevent foreign interference (Turkey was blamed several times in the public debate). When Iran and Venezuela did the same with the same arguments, this was described as dictatorial moves. I guess the same people will express no objection here, as the associations targeted are not the same and they pay lip service to principles, having only their narrow interests in mind.
Reading a U.S. conservative commentator describing the evils of Venezuela, I would like to call his attention on America’s French NATO ally.
This commentator tells how Venezuelan authorities stopped the airing of a TV soap about two sisters, Colombia and Venezuela, the latter, the bad one, having a dog called Little Hugo. Such a soap is not even imaginable in France, where recently private citizens have been held in police custody for mere jokes on the street (a placard reading Macronavirus) and others prosecuted for having beheaded an effigy of the president. After six months of police and judicial surveillance and a trial, these latter were not convicted. Still their ordeal was serious enough. And all this while a few months ago Kathy Griffin’s symbolic Trump beheading had been viral…
Satirical entertainment programs targeting the French president do not exist. In France the specific incrimination of insult to the head of state, actionable by prosecutors with no complaint filed and for which the principle “truth is no defense” obtained, was abolished in 2013 only.
The specific crime was abolished… so such speech is now regulated by the more general criminal law of insult to public officials, and in France insulting a public official is a more serious crime than insulting one’s neighbor.
Here there is no Western World but a New World and an Old World. (As long as antiterror laws in the U.S. do not blur the line – but still, as the same phenomenon leads legislators in Europe to push for even more repressive legislation, as both the old and the new world go on the same path of repression a span will remain somehow.)
The “enlightened West” is a myth here. There is only one “enlightened” country as far as I can see and it is the United States of America, all others being sh*thole countries (to speak like a former Potus). Hence my motto: Hate speech is a crime in sh*thole countries. (That is, all countries but the U.S.)
Contemporary Western lèse-majesté laws
Let’s make a short trip through these countries, via Wikipedia pages on lèse-majesté (interesting that the English word for this is a French word precisely).
In Belgium derogatory comments on the King or the royal family are punished with three years imprisonment.
In Denmark (where there exists a legal Nazi Party) penalties for libel are twice when targets are the monarch or a member of the royal family (eight months imprisonment).
In Spain, two years.
In the Netherlands, “In April 2018, the maximum punishment for lèse-majesté was reduced to four months, making it similar to that for insulting police officers and emergency workers.” (Before that date it was 5 years.)
The British monarchy seems to be more enlightened but this is according to Wikipedia and I keep some doubts about it.
In France, the specific incrimination as to the head of state (the president, endorsed with significant executive powers) was punished with 1 year imprisonment until 2000, when the law was changed and only a fine remained, before the law was eventually repealed in 2013 as I said in iv. The irony is that now the president is treated like other public officials and the penalty can be 6 months imprisonment, so between 2000 and 2013 the president was less “protected” than he is today… and the 2013 repeal was not even a progress in the sense of more freedom of speech!
In Italy, “impinging on the honour or prestige of the president is punishable with one to five years in jail.” But the Italian president has more symbolic than executive power, so the incrimination is not as political a tool as it is in France, where the president is the person who actually governs (in most situations).
In Germany, “insulting the federal president is still illegal, but prosecution requires the authorisation of the president.” Same remark as for Italy: the German head of state has only symbolic powers.
These lèse-majesté laws are not the relevant issue in fact, one should look at libel law and how it protects public officials (like presidents when they are an executive power, as in France, U.S., and Iraq under Saddam Hussein) compared to other persons. Because then these officials who are heads of state are political actors, so political criticism can be prosecuted as libel and political freedoms gagged.
Regarding other countries, in Morocco, it’s 1-5 years imprisonment; in Brunei, up to 3 years. No major difference with the above, as you can see. – In comparison, in Thailand it’s 3 to 15 years imprisonment (and in Cambodia since 2018, 1 to 5 years). In all these countries the monarch is a real executive power (no matter what the Constitution says in the last two).
Immigration and Consociationalism
Jus naturaliter speaking, legal migrants are under no compulsion to relinquish their worldviews: the moral contract with the host society is that they would be free in these societies just as the natives, and if the condition was that they had to denounce their views and living style, then they would eo ipso be second-rate citizens deprived of some fundamental freedoms.
Then, the truth about illegal immigrants is that they are wanted by the capitalists. In ancient democracies everybody was free and equal, “everybody,” that is, a handful of citizens surrounded by masses of slaves and helots. Same in the U.S. in Tocqueville’s time, all equal and free, but of course not the Negroes and not… the paupers (who had no voting and such rights, who knows how many people that made?) And it is the same today, we are all equal and free, but of course that doesn’t include the “illegal immigrants” who have been toiling in our sweating system for decades and without whom the system would crash overnight.
In this context, the Ottoman model is not a far-fetched idea. In modern political theory what’s known as consociationalism, or consociational democracy, may not be much remote from the functioning of the Ottoman polity or of any multiethnic empire of the past like the Austro-Hungarian empire also. What other alternative can there be, as Western societies have made the choice to accommodate masses of immigrants from other cultures, except complete suppression of cultures, a totalitarian mould raising the required conformity to levels so far unknown, even for the native populations?
Has this choice been forced on Western populations by so-called globalist elites? But then it means middle classes really had no grip on their polities, so what exactly are they defending? their own alienation?
An alternative to consociationalism may be the American constitutional theory as exposed by Supreme Court judges. Quoth:
“We are not an assimilative, homogeneous society, but a facilitative, pluralistic one, in which we must be willing to abide someone else’s unfamiliar or even repellant practice because the same tolerant impulse protects our own idiosyncracies. … In a community such as ours, ‘liberty’ must include the freedom not to conform. ” (Justice Brennan, on Michael H. v. Gerald D. )
That may make America look sound very liberal but I still perceive it as more conservative than continental Europe (it is no accident, by the way, that of all European countries the U.K. left the European Union), where we’ve got authoritarian liberalism whereas in the States it remains PC liberalism (enforced by political correctness, not police and tribunals).
Home Affairs Colonial Policy
The main French social-democratic student union (UNEF) is under fire, some politicians calling for no less than its disbandment. In cause two things.
1/ A local branch of the union dared denounce on their website two professors, quoting their words as “Islamophobic.”
I can’t find the words in question with a quick search, the media seem more interested in telling the public that the national board of the union apologized for what the local branch did. The media will simply not buy that the professors might have made Islamophobic, that is hate speech.
To be precise, the blame has to do with the fact that the union posted words and photographs of the two professors. Such a blame is quite harmful because with a recent bill French authorities created a new crime, that of publishing personal data with malicious intent. The context being the beheading of a teacher by a Muslim boy after data of the victim were published on the Web. So now the union, which has always been a leading student union in the country, is basically accused –on a subliminal level– of being calling for physical assassinations.
The character assassination they intended is perhaps objectionable enough in itself, but then it certainly is not the first time, in fact character assassination is the daily bread of political life, and it is also telling that the razzmatazz takes place when the accusation is that of Islamophobia. The crime, actually, for the powers that be, is to raise that cry: Islamophobia!
Please note that this comes a couple of weeks after the government ordered a report on “islamogauchisme” (“islamo-leftism”) in academia.
2/ Moreover, the union dared organize meetings without male and white people present, in order for colored women to talk freely about racism and sexism as they see and/or live it.
The establishment calls this “racism.” Thus we see how antidiscrimination laws or the antidiscrimination animus is used: in today’s France it means that colored people are not allowed to do anything without whites being present. You would think yourself in the colonies of old.
(Added March 20, 2021) the PDF:
In American law original understanding is the doctrine according to which judicial review should abide by the constituant’s original intent. This may sound pretty much like common sense, yet it is a minority opinion, which, as such, takes the name of ‘originalism,’ and the originals who defend it are ‘originalists.’
A major exponent of original understanding is Robert H. Bork, President Reagan’s failed nominee for the position of Justice of the United States Supreme Court in 1987. His book The Tempting of America: The Political Seduction of the Law (1990) shall serve as a guideline to the present lesson.
Although there is much to be commended in Bork’s book, in the present lesson we are mainly concerned with laying down our disagreement with some of his interpretations.
‘‘The abandonment of original understanding in modern times means the transportation into the Constitution of the principles of a liberal culture that cannot achieve those results democratically.’’ (Bork, p. 9 of First Touchstone Edition, 1991)
Leaving aside the content part of the sentence, it sums up Bork’s technical opinion on judicial review as practiced in ‘modern times,’ namely, by judges who, feeling unconstrained by the constituant’s original intent, inject their own political views into judicial decisions. In the context with which he is concerned, this approach has served, according to him, to carry out a liberal agenda. And ‘democratically,’ here, means by elected legislatures (although, in a broader sense, nominated judges are as much part of the democratic life of a nation as elected legislatures, we’ll come back to this later).
The claim is that a judge cannot disregard original understanding without relinquishing neutrality. To stick to the original intent is the only way not to force one’s own political views upon the body politic in one’s judicial decisions.
Thus, according to Bork, a substantive due process clause of the 5th amendment (No person shall be deprived of life, liberty, or property, without due process of law) was invented by Chief Justice Taney in the Dred Scott decision of 1857, whereas the amendment only contains a procedural due process clause.
As a matter of fact, Bork denies that a right to own slaves was in the Constitution. However, in the Court’s decision, Chief Justice Taney refers to the rights of property, which are obviously in the Constitution. A slaveholder had a property right on his slaves and, as the right of property is protected, the right to hold slaves was to the same degree.
A few years after Dred Scott and during the Civil War, the 13th amendment was adopted, excluding slaveholding as a form of constitutional right of property (Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States). Was, because of Dred Scott, a constitutional amendment necessary? I might even doubt it (see below), and yet it does not affect Dred Scott, inasmuch as, back then, slaveholding was as constitutional as any other holding of property. The clause struck down by the Court was an unconstitutional abridgement of the right to property; it does not mean that slaveholding was protected as such by the Constitution, that is, that the legislator could not decide to exclude slaveholding from the right of property, but as long as it was included in the latter right, it was protected accordingly, and according to existing statutes compatible with the Constitution.
This fallacy, that the Court would have introduced in the Constitution a right to hold slaves that was not in it, is Bork’s departing point. According to him, the substantive due process clause is the essence of later judicial activism, of ‘judicial legislation.’ He quotes Justice Black saying deprecatorily that the substantive clause is not the ‘law of the land’ but the ‘law of the judges’ (In re Winship, 1970).
To refuse to see slavery in the Constitution before the 13th amendment and to claim that the Court introduced it itself, amounts to giving slavery a definition it has never had, which makes it heterogeneous per se to the right of property. However, the freedom to own slaves, in a Constitution the letter of which knows of slavery (Art. I, Section 2, clause 3; Art. I, Section 9, clause 9; Art. IV, Section 2, clause 3), is the same thing as the right of property.
Even in the hypothetical case where slavery were absent from the letter of the Constitution, it is not permitted to interpret the right as not including slaveholding, for three reasons:
1/Slavery existed in the states at the time of the ratification of the Constitution;
2/The Constitution did not abolish slavery;
3/The Constitution does not enumerate the goods that it is legitimate to own as property, so the right includes all kinds of goods that the law held as permissible at the time of the ratification, which included slaves.
The Supreme Court in Dred Scott said that to deprive a slaveholder of his property when entering a state where that property was banned by statute (like Illinois, by state statute, and Louisiana, by the Missouri Compromise of 1821, the states involved in the case) is violating the right of property without due process of law. This is not the same, I believe, as saying that to vote a statute excluding some kinds of goods, here slaves, from legitimate property is unconstitutional. It is true that Chief Justice Taney went further toward ‘substance.’ However, had the Court made it clear that it was striking down, in the Missouri Compromise, not the statutory exclusion itself but the proceeding attached to the statute, depriving citizens from other states of their property as soon as entering the territory of the state that passed the statute, it would have injected no ‘substance’ at all in the due process clause. (That the consequence might follow that it is also unconstitutional to confiscate illicit drugs, for instance, is not unlikely; that would not shock me, and those aware of recent debates about forfeiture will show no surprise either.)
According to the Constitution, ‘‘No State shall pass any law impairing the obligation of contracts.’’ This clause is held by Bork, contrary to the Supreme Court in Hepburn v. Griswold (1870), to apply to the States and not the Union.
However, what could be the meaning of such a limitation, when federal law is as binding as state laws in the respective states? What would be the aim of placing such a constraint on the states, which would have few if any effects on individuals (as the federal law could still impair individuals’ contractual obligations), and that in a domain which has little bearing on the relationships between the states and the federal government? No, one must accept that a written Constitution leaves many things implicit, if only because the constituant cannot foresee all situations in the future, and also because too strict a litteral approach favors bad faith maneuvers that seek the flaws in the letter to the detriment of the original intent.
In the constitutional passage here, one fails to see what the constituant’s intent would be aimed at if he had intended to limit the states’ power to impair obligations of private contracts and not the Union’s, whereas, when both the states and the Union are held in check, one understands that the intent is to ensure the binding force of private contracts throughout the territory of the Union.
Here is a case where Bork asks the courts to adopt a litteral approach. Yet, in one major instance, a very important one in this thought, he asks them to do precisely the opposite.
Bork approves the Supreme Court’s ruling on the Slaughterhouse Cases (1873) involving the 14th amendment. The Court said the amendment applies to the newly freed slaves only. Yet the letter of the amendment (No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States) cannot lead to the conclusion that the amendment stops at racial questions. Indeed, in said cases dissident Justice Bradley asserted that the amendment was ‘embracing all citizens,’ and this would later become the line of the Court after it reversed its position†.
†Footnote: [On this particular clause of the 14th amendment, the Court is actually said to have maintained its position: ‘’The Court’s narrow restriction of the privileges and immunities clause continues to this day.’’ (J.R. Vile, on Slaugtherhouse Cases, in Essential Supreme Court Decisions, 2018) (Bork, for his part, says of this clause: ‘’The privileges and immunities clause, whose intended meaning remains largely unknown, was given a limited construction by the Supreme Court and has since remained dormant.’’ ) At the same time, as Bork emphasizes it time and again, another clause of the same amendment, the equal protection clause (No State shall deny to any person within its jurisdiction the equal protection of the laws), has been interpreted as ‘embracing all citizens’, for instance: ‘’It is clear that the ratifiers of the fourteenth amendment did not think they were treating women as an oppressed class similar in legal disadvantages to the newly freed slaves. That is an entirely modern notion and written into our jurisprudence only recently by the Supreme Court.’’ (Bork, 329) Therefore, as a result of the Supreme Court’s stare decisis, in the same sentence of the same amendment, in one part of this sentence (the privileges and immunities clause) the word ‘citizens’ is understood in a restrictive sense as meaning Blacks, and in the other part (the equal protection clause) the word ‘person’ is understood as embracing all citizens. This is certainly peculiar and unlikely to enhance American citizens’ knowledgeability in their own law.]
Bork agrees that the 14th amendment was specifically framed for Black people, the newly freed slaves. He acknowledges that its redaction is more general, more ‘embracing,’ to speak like Justice Bradley, and his argument here (pp. 65-6) is that some other general dispositions are applied by courts in a limited fashion consistent with the intent of the legislator. (As if he were not warning us throughout his book that courts could take militant positions.)
With this guideline of looking for the intent, Bork argues that the Court could have, with the same result, been ‘originalist’ in Brown v. Board of Education, for ‘’the real principle was that government may not employ race as a classification’’ (79) (as the equal protection clause is nothing less and nothing more than a prohibition on racial classification, according to him), but that the unanimous Justices chose another, ‘un-originalist’ way of reasoning, to reach their conclusion. Bork’s point, contrary to the mainstream interpretation of the case, is that the decision itself is consistent with the original intent of the framers of the 14th amendment, no matter how the Court got there.
Leaving aside that (1) a Black-White racial classification is not the only possible racial classification and (2) one fails to see how the will to abolish a slave-master relationship, even when this relationship overlapped with a Black-White classification, must imply an absolute mandate to relinquish every kind of racial classification (an altogether different subject –slavery needs not function on racial dividing lines– and the Chinese Exclusion Act subsequent to the 14th amendment surely pays no heed to the amendment being a racial classification prohibition clause), one entirely fails to see why, if by the 14th amendment they wanted to strike at racial classifications only, the legislators would not say so explicitly and would use the word ‘citizens’ and ‘person’ instead.
Many will find my essays on Brown v. Board of Education, in the previous Lessons of this blog (Lessons 4-6), naive, as I seem to believe that the Court’s aim was to end not only legal but also de facto segregation. I admit I have difficulties with the notion that the undoing of legal segregation and the policy of busing (not to mention affirmative action) had nothing to do with contemplating the end of de facto segregation. Especially because, as the Court claimed that legal segregation was an obstacle to Blacks feeling equal, I fail to see how the obstacle to feeling equal is removed when Blacks cannot put the blame for their marginality in the American society on the states any longer but have to put it on themselves, as they are told that the obstacle to their integration has been withdrawn. Current de facto segregation is of a center-margin structure, no doubt about it. (At the relevant level, which is the reverse of the topographic level, where white suburbia is the periphery.)
As the Court from the outset has refused to address the question of de facto segregation (the dead-on-arrival decision Shelley v. Kraemer, striking racially exclusive covenants, notwithstanding), if the aim was to put an end to a psychological feeling of inferiority, the truth is that Brown was not addressing the issue even remotely.
It remains that the Court could not prove that legal segregation was necessarily causing a feeling of inferiority among Blacks, although the apodixis was formally required to order the ending of legal segregation rather than its reform on new grounds.
Bork blames the Court, in Griswold v. Connecticut (1965) by which the Court struck down an anticontraception law, to have invented a tool for expanding ‘moral relativism in sexual matters’ but he has just explained in the previous pages that the anticontraception statute in question was not enforced (except in the present case, which was brought about as a test case, that is, intentionally by the claimants), and this means that moral relativism was already ensconced in legal affairs and that the Court, therefore, only affirmed it, not as an invention of the Justices, but as the current state of the law. It would have been different if the law had been enforced.
Justice Stewart called the anticontraception bill ‘an uncommonly silly law,’ yet it is a perfectly Christian law. The first and foremost deterrent to promiscuity is the possible consequence of unwanted pregnancy, and Christianity is ‘that religion precisely which extols the single state’ (Kierkegaard, The Instant N° 7). Obviously, for such a religion promiscuity must be a major evil. Had, on the other hand, Justice Stewart had STDs (sexually transmitted diseases) and the preventative necessity to curb their spread in mind, he would have called the law dangerous, not silly, so he had not STDs in mind while making his comment, and so it is hard to know what he meant if not that Christianity is an uncommonly silly thing.
In Griswold the Court found especial fault in the fact that the law applied (or purported to apply, as it was not enforced, according to Bork) to married people and what they were doing in their bedrooms. Yet two spouses can be promiscuous with each other (the number of sexual partners is immaterial to the true definition of the word), so laws against promiscuity cannot leave spousal relationships out of their scope.
It is the same with antiabortion laws. As the best trammel to promiscuity is the risk of unwanted pregnancy, women must be compelled to bear the consequences of their sexual conduct in terms of pregnancy, in order for unwanted pregnancies to remain a deterrent. In the past, several, not all, antiabortion legislations made exceptions in case of rape, the result of which must be, however, that some women will want to terminate unwanted pregnancies by accusing the father, or any man, of rape, and such accusations, though baseless, may be hard to dismiss. (I believe many rape cases are decided mainly on the basis of conventional presumptions, such as, if the two individuals did not know each other before, rape, when alleged, is assumed, etc.)
And it is the same with antisodomy laws.
On Brandenburg v. Ohio (1969), Bork makes the relevant following remark: ‘‘That rule [that only incitement to ‘imminent lawless action likely to produce such action’ falls outside the protection of the first amendment] … would not protect one who advocated a sit-in in a segregated lunch counter if the segregation was lawful and the advocacy produced a sit-in’’ (335).
Bork’s solution, however, is not acceptable: The right to advocacy of illegal conduct is a pillar of American freedom, the tenet that distinguishes it from all other nations in the world, which are police states and political caste (see below) states.
The solution must be, therefore, that incitement through speech is never a crime. How, anyway, does one reconcile criminalizing verbal incitement with the individualistic postulate of democracy? One is responsible for one’s actions; the law that criminalizes verbal incitement derives from another, archaic, opposite and incompatible postulate. While you criminalize verbal incitement, why do you not criminalize social conditions, systemic incitement? – Would you like to make an exception for crowds on the ground that crowds are irrational? Be aware that the social scientists who developed such theses, like the French Gustave Le Bon, also said that assemblies are crowds, legislative bodies are crowds.
Bork’s solution is the following: Advocacy of illegal conduct is not to be tolerated unless the conduct advocated is… lawful.
In his example above, he argues that, segregation being unconstitutional due to the equal protection clause of the fourteenth amendment, speech advocating a sit-in in a segregated lunch counter would be protected by the first amendment. The persons prosecuted for their speech could therefore invoke the unconstitutionality of segregation to demonstrate that, since segregation was unconstitutional, their speech was no advocacy of illegal conduct and was therefore protected by the first amendment.
To begin with, as executive authorities are no judge of the constitutionality of the laws they must enforce, if Bork’s solution were adopted prosecution would be unavoidable, and this in itself is repressive of speech, is bound to function as a form of censorship.
Then, the Constitution can be amended just as legislative statutes can be repealed, so there is no justification in allowing speech that incites conduct contrary to statutes (provided the statutes are proven unconstitutional) but not speech that incites conduct contrary to the Constitution.
This is why we suggest the rule of making unconstitutional all criminalization of verbal incitement.
One important thing omitted by Bork is that, in the separation of powers, irremovable judges must be a check to a political caste. But we are not really dealing with constitutional theory here, as the Constitution does not even know of political parties.
The lesser of two evils: ‘Judicial policymaking’ by irremovable judges is necessary to counter the underhand actions of a political caste, that is, to prevent the political class to become a political caste in the first place, and this is called for by the separation of powers itself, as a political caste cannot serve its vested interests without maintaining and increasing executive discretion and arbitrariness.
Bork is convinced that legislative policymaking is the result of a democratic tradeoff between political forces and that this tradeoff does not obtain in ‘judicial policymaking,’ but he ignores the common interest of a political caste in the absence of a sufficiently strong judicial counterpower. This common interest results, in questions bearing upon it, not in a political tradeoff but in caste unanimity against all other interests in the society. (Among other things, the caste suppresses speech, to prevent criticism.)
By caste we do not mean the traditional group structure based on the principle of heredity; we were only looking for a word that would make clear that in those democracies where the judiciary is weak the political class (and it is undeniable that there is a political class in the United States) degenerates into something else much more obnoxious.
The ‘liberal culture’ that Bork claims has been forced upon Americans by the US Supreme Court was on the other hand forced by their own legislators on European people. While reading the book, we hypothesized that the US Supreme Court may have set the precedent for legislations abroad, and that European legislators perhaps would not have passed such reforms as legalization of abortion, had not a great Western nation taken the lead, not by politicians but by nine judges. (In the media and political doxa, those European politicians are still held as ‘courageous,’ which implies that they went against the grain, against the mainstream, against the majority of the people.) The hypothesis is not historically supported as far as abortion is concerned. A chronology that would go from totalitarian legislation –Bolshevik rule in Russia (1920-1936, then 1955) and National-Socialist power in Germany (in the thirties)– to the US Supreme Court’s decision Roe v. Wade (1973) to European democratic legislations like France’s (1975), would leave aside a couple of legislative reforms in other countries (Mexico, Poland, Iceland in the thirties, etc).
For a common law judge, the legislator’s intent is not binding. The following quotation on the situation in Nordic countries will serve as an illustration, by the contrast it offers:
‘‘Such preparatory works [so-called travaux préparatoires to the adoption of legislative statutes] are therefore used extensively by the courts in Nordic countries as interpretive tools when facing legal uncertainties. The fact that judges both participate in the making of new laws and as the practical users of those laws can to some degree explain the willingness of courts to follow such interpretive sources without feeling unduly influenced by politics. (As a contrast, see Pepper v. Hurt , in which the British House of Lords –nowadays the Supreme Court– allowed for a rare consultation of political statements regarding the purpose of a law.) It might be said as a general observation that the courts in the Nordic countries try to stay loyal to legislative intent.’’
(Thomas Bull, in The Nordic Constitutions: A Comparative and Contextual Study, Krunke & Thorarensen ed., 2018)
Common law: the phrase is not to be found in the index of Bork’s book. Yet American judges are common law judges; Bork ignores it completely. His argument, in a nutshell, is that since the US has a written federal Constitution it is a regime of civil law (Roman law), but this is not the case, and one needs no modern constitutional theory, however liberal, to affirm that this is not.
For Bork, judicial policymaking must be interstitial, it must fill in the interstices of statutes, but in the philosophy of common law statutes fill the interstices of common law. – Coming from the very land hailed as the craddle of modern parliamentarism.
Bork’s concept of original understanding must by necessity make an entirely residual, insignificant power of the judiciary (like in France and other continental European countries) with the mere passage of time, for the simple and good reason that as time passes by the number and scope of situations that it is not possible to link satisfactorily to an original intent of the constituant must increase, so much so that the judge of 100 years from now will have to concede more power to the legislator than today’s judge, and the judge of 200 years from now more than the judge of 100 years from now. To prevent it, to maintain a balance of powers, the judiciary therefore must not approach the Constitution too literally, too narrowly, and this not in order to obtain new prerogatives but in order to avoid falling into insignificance, which would unavoidably lead to a despotic republic as warned about by Tocqueville (whom neither Bork nor his coauthors seem to have read).
To be sure, the Constitution can be amended to respond to evolutions. This power of constitutional amendment proves us right in the analysis of the passage of time. One must admit that its very existence shows that the original constituants have asked the posterity not to rely too much on their intent. Bork has little to say about this power of constitutional amendment that contradicts his claim that decisions of the Supreme Court are final. The fact that the legislator does not use this power more often against the decisions of the Court indicates that these decisions are not the will of ‘nine judges’ only. Bork advocates leaving many issues which the Supreme Court have dealt with recently to the legislative bodies, but the legislator has not used its constitutional power to oppose the Court’s decisions. To be sure, there exists an asymmetry between the decision procedure by the Court and the amendment procedure, the latter allowing for a minority veto, and that would confirm Bork that the will of the majority can be held in check. On the other hand, the Court’s decisions are allowed to be countermajoritarian only to a small degree, because if it were to a higher degree its decisions would be defeated by amendment more often than not.
To conclude, the following comparative law study will illustrate the tendencies of the political caste in continental Europe. (It is no accident that the United Kingdom of all European countries left the European Union: Common law is incompatible with this bureaucratic mess.)
In the US, the ACLU (American Civil Liberties Union) defended the American Nazi party, in National Socialist Party of America v. Village of Skokie (1977), and Nazi organizations are protected by freedom of association and freedom of speech. Needless to say, this is not the case in France, where civil liberties organizations would be on the frontline, and vociferously so, to oppose the legal existence of such parties. We know of a legal Nazi party in Denmark too, with swastikas and like paraphernalia, and we are trying to find more on the legal issues involved, as Denmark belongs to the EU and the Council of Europe, which have guidelines to fight ‘extremism’ so it should be easy to terminate these national protective laws but still the Danish Nazi party exists and is legal.
The position of some American Conservatives on free speech is disappointing, they tend to ask for a European model, like Justice Thomas on libel (US libel law is much more protective of speech than France’s) or Robert Bork on flag burning (constitutionally protected in the US whereas it is a criminal offense in France, where one may get six months jail time).
I agree with the latter, however, that pornography does not deserve the same protection. The US still makes a distinction between pornography and obscenity (which includes some pornography), allowing to prosecute the latter, which difference, of course, does not exist in France, where pornography is more protected than political speech.
The first amendment is good protection against state encroachments, but the issue is rising as to how one deals with private encroachments by internet platforms, Twitter, Facebook, etc. Their lobbyists argue that Section 230 protects platforms’ free speech as private actors. Their moderation and censorship is the platforms’ free speech, so the platforms would attack the repeal of S230 on first amendment grounds (cf previous Lessons). Yet they fail to see that the 1964 Civil Rights Act was needed because the Constitution does not protect minorities (ethnic, religious, etc) from private discrimination. As the 1964 Act stands in conformity with the Constitution, a bill that would prevent platforms to discriminate based on speech would equally be constitutionally unobjectionable. In the present state of the law, Twitter or Facebook could ban people based on the color of their skin and that would be legal and constitutional. The Supreme Court’s already named decision striking down racially exclusive private covenants (Shelley v. Kraemer) was dead on arrival, it has never been followed by other decisions, on the contrary the Court has ruled several times in the opposite direction, like in Evans v. Abney (1970) and Moose Lodge N° 107 v. Irvis (1972). Where the Civil Rights Act or Acts are silent, private discrimination is perfectly legal and constitutional in America. French legislators and courts have never granted private actors such room.
The European political caste, challenged by no judicial power worthy of the name, has forced the ‘liberal culture’ Bork is talking about on their people much more rabidly than the US Supreme Court on Americans.