Tagged: ex post facto laws

June 5, 2021

Law 14: The People in Arms

The People in Arms

(Completes the section Second Amendment of Law 13.)

When one reads in the Second Amendment that militias are necessary to a free state, these are strong words and one cannot read it as “a standing army is necessary to a free state,” especially because the Constitution also has measures about the army (Article I, Section 8, clause 12) and the amendment does not mention the army but militias.

In fact, one should read the Amendment thus: “Militias are necessary to a free state, even more so when there is a standing army in the state.” In other words, in “A well regulated militia, being necessary to the security of a free state” (letter of the amendment) the emphasis is on “necessary to a free state” rather than on “necessary to the security,” because if the emphasis were on the latter, then, yes, the army and the state-controlled police forces may be enough and there would be no need of militias, but the Framers intended to emphasize the role of militias as against a standing army, because standing armies were the arm of absolutism in Europe and they wanted to make a free country.

As the second amendment talks about militias and not the army, I do not understand it when a statute (Dick Act, National Defense Act…) calls the military reserve a militia, because the military reserve is the army and obviously the second amendment isn’t about the army (which is named elsewhere in the Constitution but not in the second amendment). This is a statutory misnomer with huge consequences because a lot of people look askance at citizen militias, which are the true second amendment militias contrary to the national guard or any other military reserve corps, which are the army_period.

An army may be “necessary” to the “security” of a “state” but according to the second amendment it is not “necessary to the security of a free state,” that is to say, again, the emphasis is on “free.” Without militias a free state would lack something necessary. And as it would not lack security if a standing army can provide it, it must be that said state would lack first and foremost being a free state.

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The idea of a “collective right within the context of a militia,” which was cogently discarded by the Supreme Court, is, I believe, partaken by many of those who also look askance at citizen militias. Not only can they not accept an individual right to bear arms, but also and perhaps even less can they accept a militia except in the muddled sense of a military reserve. In fact, they read the Second Amendment in light of the militia statutes (rather than the statutes in light of the amendment) and thus read it as meaning “an army being necessary to the security etc.”

But this is inane on two grounds beside the already said.

1/ If the amendment were about the army, it would literally name the annex (the reserve) rather than the main body as “necessary to the security” of the state. It would stress the necessity of the annex without even mentioning that of the main body, which is absurd.

2/ If the amendment were about the army, it would be a non sequitur: “An army being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” The Framers would have found it necessary to secure a right to bear arms because the state needs an army, but such a reasoning would be a puzzle to everybody, and indeed as about all countries in the world, even sh*thole countries, have standing armies and yet most of them deny their citizens the right to bear arms, the idea that a standing army necessitates a citizens’ right to bear arms is something unheard of, and it would have been great had the Framers explained their idea a little bit. Obviously, it’s absurd and the Framers of the second amendment are not talking of the army.

One simply cannot read the amendment in light of the statutes, and this makes the statutes’ constitutionality dubious.

I also object to the organized vs unorganized typology. Not only does it derive from said statutes (“organized” militias are organized by legislative acts) but also the amendment talks of “well regulated” militias and the typology gives the impression that “unorganized” militias must be outside the scope of “well regulated” militias, which is probably what most if not all half-informed Americans (those among Americans who are half-informed) think.

Oddly, if you read the opinions of the Justices of the Supreme Court (or their summaries), you’ll find that my viewpoint is closer to that of dissenting Justice Stevens than to the majority opinion by Justice Scalia. Although I had read the summary before, I wasn’t conscious of this while writing the previous lines. Here is J. Stevens’s dissenting opinion in J.R. Vile’s words: “The primary purpose of the Second Amendment was to underscore the Founders’ fear of standing armies. The amendment makes no mention of hunting or self-defense. … J. Stevens argues that the Second Amendment was designed to prevent Congress from disarming state militias: ‘When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia.’ The term bear arms was an idiom designed to refer to those who served in militias; to keep arms further described ‘the requirement that militia members store their arms at their homes, ready to be used for service when necessary.’” While I entirely agree with most of this, the only conclusion I find to suit it is that the Court was right to decide as it did, and I hardly understand how this opinion can be a dissent.

The Founders’ fear of standing armies is the crux, what does Justice Stevens make of it? The U.S. has a standing army now, so what then? Is everything lost, and we should abide by a reality contrary to the will of the Founders while everything we keep saying in the legal domain is informed by the Constitution they framed? What absurdity is this? Clearly the Founders’ vision was that of a people in arms rather than standing armies, the arm of absolutism in Europe and of Empires elsewhere. They knew their history books and the stories of great nations plagued by praetorian intrigues. Yet, probably out of pragmatism, they also made room for an army, but if the nation were to create such an army, then the Constitution documents that it is a necessary evil–not unlike the government itself, in fact, and in the same way that that necessary evil that is the government is made as innocuous as possible by checks and balances, so must a standing army be dealt with, and the checks and balances here are the people in arms, the militias.

This was the starting point for all I wrote, which, to sum it up, is that an individual right to bear arms is enclosed in the prefatory clause about militias as the premise whence the right follows by necessity (provided one does not limit one’s understanding of militias to that of later, likely unconstitutional statutes). To rephrase it, you can’t have a collective right without an individual right. I believe in grassroots militias, bottom-up, so individuals must be armed if they want to form or join a militia. It’s not the governor or the Pentagon calls them and arm them, which is probably Stevens’s idea of a militia, but he’s right that the amendment underscores the Founders’ fear of standing armies, due to which fear–a fear not at all irrational–they wanted the people armed. The people must be armed and that means individuals must be armed.

Now when Scalia says (in the commentator’s words) “The Second Amendment was developed in reaction to fears that the government would disarm the people, and was patterned on state provisions that were designed to protect individual rights,” this is right also and I don’t see any contradiction between the two quotes because obviously if the government intended to disarm the people it would be because in the government’s idea a standing army would empty out a right to bear arms. A standing army makes militias useless (except as an annex or as local battalions of the army), so it makes the right to bear arms useless. But the Framers said–this is the very letter of the Constitution–that militias independent from the army are necessary even if the Union were to create a standing, permanent, professional army.

Then, when one reads (majority decision) “The Amendment is divided into a prefatory clause and an operative clause. There must be a link between the two, but ‘apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause’,” it smacks of taking liberties with the letter, which I disagree with in constitutional analysis (and Scalia has often blamed others for taking liberties). In my eyes there was no need to resort to such intricacies: the prefatory clause is the premise, the operative clause is the consequence, and the consequence is an individual right.

I wouldn’t insist too much on the English heritage, as today “In the United Kingdom, access by the general public to firearms is subject to some of the strictest control measures in the world” (first sentence of Wikipedia page Firearms Regulation in the U.K.), which means the U.S. would be more faithful to the heritage than the Britons themselves, and this after breaking with them. There is no justification to this: Why would or should the Americans be more faithful to the English heritage than the English?

Then Scalia goes on talking about the “pre-existing right,” which he calls a “‘natural right’ that encompassed that of protecting oneself against ‘both public and private violence’.” The majority in McDonald v. Chicago (2010) said Heller “recognized self-defense to be a basic right that applied to handguns.” To the best of my knowledge there is no country in the world where the laws say you must accept that someone kills you without trying to defend yourself, namely, a country that does not acknowledge exculpatory circumstances for homicide. This being said, the U.S. is rather unique with its constitutional right to bear arms. As a matter of fact, in other countries too you’ve got the right to use a gun in self-defense, only it turns out you don’t have a gun, because you had to ask for a license, justify your demand etc., so arguably, yes, these countries make fun of the basic right that is self-defense. If the letter of the second amendment stresses, as I claim, defense against “public violence” rather than against “private violence” (Scalia’s words), this is out of conciseness: there was no need to expatiate on an individual right to self-defense because it is, if you like, a “natural right” (Scalia again) and it goes without saying that, when, a militia being necessary, the right to keep and bear arms shall not be infringed, individuals may use in self-defense the weapons they have the right to keep and bear.

The reference by Scalia to public (vs private) violence is interesting. What does he have in mind? Is it not the possible use of the standing army against the citizenry? If this is so, then obviously the making of militias a something inside the army, dependent on the same organs, is an obstacle to the militias playing any role against public violence. So possibly Scalia has the same conception as that laid down here, but on the other hand I have doubts about it: I wonder whether, like others, he might not think that this talking about militias in the Constitution is antiquated and irrelevant in the times we’re living. That there be antiquated clauses in the Constitution is perhaps admissible, but that there be antiquated clauses in crucial matters is strictly impossible.

Immunity For Botch

South v. Maryland (1855) and the public duty doctrine say “there is no tort liability to an injured party resulting from the non-malicious failure of a law enforcement officer to enforce the law,” but also “It is a public duty for neglect of which an officer is amenable to the public, and punishable by indictment only.” Thus the absence of tort liability does not rule out all form of responsibility or I’m missing something.

You can charge an officer for failure to protect if you are feeling foolish, but the case will almost certainly get rejected by the judge, and even if it isn’t the appeal will side with the officer. … I don’t think threats of a frivolous indictment by an overzealous prosecutor can be interpreted as a duty for an officer to endanger their life. It is just legal politics and rhetoric designed to win the court of public opinion (the mob). (MrM)

For the sake of learning, I quote the definitions:

“Public duty rule: a doctrine in tort law: a government entity (as a state or municipality) cannot be held liable for the injuries of an individual resulting from a public officer’s or employee’s breach of a duty owed to the public as a whole as distinguished from a duty owed to the particular individual called also public duty rule. See also special duty doctrine.

Special duty doctrine: an exception to the public duty doctrine that imposes liability for injury on a government entity when there is a special duty owed to the plaintiff but not to the public at large called also special duty exception. NOTE: The special duty doctrine applies when the duty owed to the plaintiff arises by statute or when the plaintiff has justifiably come to rely on the government’s assumption of that duty.” (findlaw)

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Town of Castle Rock v. Gonzalez (2005) is a confirmation of DeShaney v. Winnebago County Department of Social Services (1989). It may be worth stressing that both involve children being victims of their father’s violence, so these rulings may be found to run into the parens patriae doctrine, actually.

Parens patriae “refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian, or informal caretaker, and to act as the parent of any child, individual or animal who is in need of protection. For example, some children, incapacitated individuals, and disabled individuals lack parents who are able and willing to render adequate care, thus requiring state intervention.”

You’ll note the phrasing “requiring state intervention.” The conclusion “We are all responsible for our own personal safety, whether we like it or not” (Barnes Law) sounds odd when applied to the situation of a little child vis-à-vis his father, especially when the state knows the child’s helplessness, so much so that it adopted a parens patriae doctrine.

So I can’t agree with DeShaney v. Winnebago Social Services.

The mother was let down by the social services. In the books I find “this clause [the due process clause] was designed ‘to protect the people from the State, not to ensure that the State protected them from each other.’” This is not true as far as the parens patriae doctrine and the situation of a helpless child is concerned, but I fear to understand that it is no constitutional guarantee and instead a castle in the air. People demanded foster homes, same as they demanded a 911 line for help, and states provided the services, as it was not found unconstitutional, but only for the people to be told then that whether the services are provided in a satisfactory or botched fashion is none of the courts’ business. In other words, the Supreme Court is telling people they rely on the state at their own risk, and in reality they cannot rely on it at all.

“The fact that the state at times took temporary custody of Joshua [DeShaney] did not make the state his personal guardian after it released him.” No but the fact that it released him to an abusive father several times shows a clear misunderstanding of the situation, all the while the mother was thinking the child was in good, prudent hands.

“If the state has a financial obligation to Joshua, it must be democratically ascertained through protection of state tort (personal injury) law rather than through the due process clause.” Not true with regard to the public duty doctrine. Thus, while South v. Maryland barred a tort suit leaving indictment open, DeShaney v. Winnebago Social Services bars a due process clause suit claiming to leave open a tort suit that is not open. Of course in both cases the courts felt the need to leave some recourse open, as otherwise the notion arises of duty without responsibility, which is, to say the least, hard to chew.

“Justice Sonia Sotomayor has noted a “disturbing trend” of siding with police officers using excessive force with qualified immunity, describing it as “sanctioning a ‘shoot first, think later’ approach to policing.” She stated: “We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force…But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases.”” (Wikipedia page Qualified Immunity)

This is the topic of qualified immunity, with which I wish I were more familiar because I guess that’s part of what is knowing one’s rights…

THE NASA Psychic

How many Americans know Apollo was a psychic program? “Jonsson is most notable for his long-distance telepathy experiment during the Apollo 14 mission in 1971. Four psychics on earth were chosen to receive telepathic signals from astronaut Edgar Mitchell in space.” (Wikipedia page Olof Jonsson)

Are we supposed then, according to NASA, a federal agency, to believe in extrasensory perception (ESP)? Obviously yes because one does not fund a “long-distance telepathy experiment” if one does not believe in short-distance telepathy. Think of it: a federal agency funding a long-distance telepathy experiment between space and the earth while it was not convinced that telepathy occurs here on earth. Does it make any sense?

Likewise, the fact that the experiment was, as the Wikipedia page adds, a “complete failure” cannot by itself disprove ESP but only, if anything, “long-distance” ESP. Therefore, without an express statement to the contrary by NASA, the agency must be said to endorse ESP.

NASA picture of Apollo 14 manned moon landing, with the same kind of lunar breeze effect flag as in 1969 (see Law 12).

Canada: Conservatives’ attempts to protect platform users’ speech online is blocked. A bad result for free speech in Canada.

Let’s face it: Canada never was a free-speech country. U.S. envoys never pressed it to become one and how would they when their bosses at home had rather have the same anti-free speech policy at home too? I told you already, for that it takes independent judges tenured for life. Among politicians it’s always the opposition that defends free speech, but when it gets to government there’s no more of that, it’s censorship bills one after the other, all of them.

Given the basic fact that Twitter and Facebook censor all opponents of the Democratic Party, this censorship is state action in all states and localities governed by Democrats, and the platforms are amenable to courts for abridgment of First Amendment rights by the inhabitants of these states and localities. The ideological nexus is obvious. The U.S. federal government being currently under a president of the Democratic Party, these platforms’ censorship is now state action in all the territory of the Union.

The Botched Law of Racially Restrictive Covenants

In what is perhaps an unprecedented instance in the history of American legislation, a statute, the Fair Housing Act of 1968, was needed twenty years after the Supreme Court intended the same as the Act, in its notorious decision Shelley v. Kraemer of 1948 which eviscerated the enforcement by courts of private restrictive covenants barring blacks from buying real estate.

In the 6-0 decision Chief Justice Vinson explained that “restrictive covenants drawn up by private individuals do not in themselves violate the Fourteenth Amendment. As long as they are completely private and voluntary, they are within the law. Here, however, there was more. Through their courts, the states aided in the enforcement of the covenants. Indeed, if it were not for the courts, the purpose of the agreements would not be fulfilled.” (Vile, 2018)

Thus we were to learn, en creux, from the Supreme Court that covenants whose purpose would not be fulfilled by courts are a legal object–a legal UFO to this very day. Commentator Vile adds, for those who could not believe what they had just been reading: “Shelley dit not invalidate private restrictive covenants but only state enforcement.” State enforcement rings a bell to those familiar with constitutional law: one reads state action. That judicial action is state action is perhaps not to be denied but then, as courts, one or the other, are competent about everything, the decision means that state action is everywhere (and everybody could be sued for “discrimination”: you could be sued for failing to invite blacks at your wedding, for instance)–and at the same time whites who refused to sell estate to blacks through restrictive covenants would maintain the practice undisturbed, as long, that is, as blacks did not trick them and acquired the estate anyway, or perhaps as long as black squatters did not occupy the premises, and if a black (or, for that matter, any) squatter occupied a house belonging to a white owner to which house a restrictive covenant was attached, perhaps the owner had no legal recourse against the squatter?

Such niceties and others resulting from the unanimous decision were so strange that eventually the legislator, twenty years later, passed the Fair Housing Act that prohibits racially restrictive covenants.

To this day no court dared link state action to the possibility of judicial litigation again, Shelley was dead on arrival, and discriminatory private ventures that are not specifically covered by antidiscrimination legislative acts are permissible. A restaurant can (absent a state or local statute to the contrary) cater to whites only, for instance, in the United States of America, that is, since other countries have bogus notions of freedom.

But restrictive covenants run with the land: “Just because these old covenants are now unenforceable, they never simply disappeared. Many continue to be passed on from owner to owner through property deeds to this day, and though real estate professionals and lawmakers alike have made efforts toward having them removed, bureaucratic red tape and legal expenses often hinder progress. Some argue that it would be too cost-prohibitive to remove the racist language from every real estate deed in the country today.” (Homelight, Sep 14, 2020)

To have made covenants which pre-existed the Fair Housing Act unenforceable was ex post facto lawmaking: “An ex post facto law is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law.”

Ex post facto laws are prohibited by the American Constitution (clause 3 of Article I, Section 9). In its purity the principle holds in criminal law only but such a construction may be argued to be unconstitutional: “Thomas Jefferson described them [ex post facto laws] as ‘equally unjust in civil as in criminal cases.’ Over the years, however, when deciding ex post facto cases, the United States Supreme Court has referred repeatedly to its ruling in Calder v. Bull, in which Justice Samuel Chase held that the prohibition applied only to criminal matters, not civil matters.” (Wikipedia) Like Jefferson I see no reason why the principle should be limited to criminal law, because 1/ the letter of the Constitution makes no such distinction as that introduced by Justice Chase (the clause reads: “No bill of attainder or ex post facto law shall be passed” and 2/ even if ignoring the principle must be particularly dramatic in criminal law such neglect is not benign either in the other legal domains.

Anti-BDS Laws

Georgia anti-BDS law is unconstitutional: “A federal court ruled in favor of journalist Abby Martin, who was barred from speaking at Georgia Southern University after she refused to pledge she would not boycott Israel.” (shadowproof, May 24, 2021)

It’s only the fifth or sixth anti-BDS law that is declared unconstitutional by a U.S. federal court, there remain a dozen ones in other states. Apparently, none of the humiliated states dare appeal the evisceration of their shameful bills to the Supreme Court?

There is that politician, Rubio, I don’t know what he’s saying about all this but he wanted an anti-BDS federal bill. And how did he “sell” it? By exposing his total, complete and irremediable lack of constitutional knowledge. He said: What? (¿Cómo?) BDS supporters could boycott Israel but the government couldn’t boycott BDS supporters? I believe he was convinced, while tweeting this, he had found the ultimate ironclad argument to his bill’s opponents. He’s got no clue, he doesn’t know that a state boycott (by any government, federal, state, or local) is state action against which boycott is protected as free speech, whereas BDS is a grassroots boycott protected by the First Amendment. Even if both were called boycotts, one infringes on free speech and the other is free speech. This is basic constitutional law.

Political Police

I’m reading “the FBI just put X and Y (movements) on the same threat level as ISIS.” Is this leaked information? Is it (1) a leak or (2) state intimidation against legally constituted associations? If (2), how, besides, is this not libelous? There can be no governmental immunity when a police bureau slanders and libels law-abiding citizens.

Neoconservatism: Jacobinism or Napoleonism?

According to Claes G. Ryn (America the Virtuous: The Crisis of Democracy and the Quest for Empire, 2003), the “neoconservative” influence on the American right is turning it into a new form of Jacobinism (doctrine of the French Revolution), and I’m not sure whether one should not call it Napoleonism instead, but both, blended in the doctrine of the current French state, are based on centralization, bureaucracy, flawed separation of powers (the judicial is controled by the executive), militarism (military parade on National Day: Trump wanted the same for July 4!), police state, no free speech…

April 12, 2021

Lessons in Law 9: Crack Hill

English language and a pinch of French.

Crack Hill

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 a “hell,” a “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!) who roam 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 and lower-key felonies, an everlasting nightmare for the neighborhood. – This in a country where the numbers of police officers per inhabitant are extremely high (340 for 10,000 inhabitants, that is, one officer for 294 people, according to Wikipedia).

« Le Gilet jaune Jérôme Rodrigues relaxé » (Le Parisien 7/3/21) : une bonne nouvelle, bien que je ne comprenne pas le jugement. Rodrigues avait traité de « bande de nazis » des membres d’un syndicat policier et le ministre de l’intérieur avait saisi la justice pour injures. Le juge dit que les propos « visaient non l’ensemble des policiers mais les méthodes de certains d’entre eux » et que le syndicat « ne se confond pas avec l’administration publique qu’est la police nationale ». Oui et alors ? Rodrigues était poursuivi pour injures et non pour diffamation envers un corps constitué (la police nationale), donc le fait que les propos ne visaient pas le corps mais certains membres de ce corps ne disculpe pas en soi de l’injure.

La question est de savoir si traiter les gens de « nazis » est une injure. Or comment cela ne serait-il pas une injure alors que la loi française condamne pénalement l’idéologie nazie et que donc un nazi est un hors-la-loi ; si traiter quelqu’un de voleur est une injure, traiter quelqu’un de nazi est forcément une injure, qui doit être condamnée en tant que telle. Il est donc évident que le ministère public ou le ministre auteur de la plainte va faire appel et a bien des chances de gagner, suite à un jugement sans queue ni tête (du moins tel que rapporté par le journal). Le calvaire de Jérôme Rodrigues est loin d’être fini. « Allez en dictature »…

The ‘shield’ for ‘extremist’ views is the First Amendment

The Wikipedia page ‘Gab’ (an internet platform) says: “Gab claims that it promotes free speech and individual liberty, though these statements have been criticized as being a shield for its alt-right and extremist ecosystem.” Under American law an “alt-right ecosystem” has no need of a shield, its shield is the law (First Amendment), so the critics alluded to are irrelevant unless the problem is the very shield American law offers alt-right ideas, that is, the problem is free speech.

The construction “Gab claims… though” is objectionable; there can be no “though” here, free speech is indeed what it is all about. When one creates a business for money laundering, as money laundering is illegal, then the business is a “shield.” Therefore, as alt-right views are shielded by the First Amendment, describing Gab as a “shield” is libelous.

It strikes one as odd, given First Amendment law, that some Americans, like the author(s) of this Wikipedia page, seem to have been raised in a European legal environment where freedom of speech exists only for what the powers that be allow and everything they label extremist is doomed to endless persecution.

Finnish minister says sexist online comments about female politicians is a “threat to democracy.”

The utterance is even more ominous when one thinks that under Finnish democratic law derogatory comments on public figures such as elected officials might be prosecutable and severely punished. I am not saying this is the case, as I don’t know Finnish law, but that wouldn’t surprise me given the state of the law in my and several other continental European countries that I know.

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Pro-liberty Skidmore students blocked from creating a club after “cancel mob” organized against them.

Before cancel culture there’s the heckler’s veto, a cancel mob is a heckling mob. I don’t know how a “Student Government Association,” which blocked the club’s creation under pressure of a heckling mob, relates to government, if at all, in free speech law (any form of government support would suffice) but the doctrine about heckling is: “the core concern … is that allowing the suppression of speech because of the discontent of the opponents provides the perverse incentive for opponents to threaten violence rather than to meet ideas with more speech.” (mtsu.edu) Link

Instagram deletes post of President Biden falling up the stairs under its “violence and incitement” policy.

MSNBC analyst says Biden falling meme could incite violence.

They expect him to fall a lot. Joe Biden has been would-be candidate for POTUS for 35 YEARS. Here’s what Robert H. Bork wrote for year 1987: “Senator Biden’s presidential aspirations came to a sudden end, probably for all time. The campaign staff of Governor Michael Dukakis gave the press videotapes demonstrating that Biden had plagiarized speeches by other politicians such as Britain’s Neal Kinnock. In addition, the press learned that Biden had misrepresented his law school record. As the damaging facts began to pile up, Biden at first tried to explain and finally had to hold a press conference at which he withdrew as a candidate for his party’s nomination.” (The Tempting of America, 1990)

For a discussion of Robert Bork’s ideas, see Lesson 8.

‘It started with words,’ so free speech is not okay?

Biden appointee Timothy Wu once questioned whether the First Amendment was “obsolete,” has questionable free speech views.

A fair statement would be that all elected officials and their appointees have questionable free speech views, because a political class will always want to mutate into a political cartel, which requires speech control and suppression, so the condition for free speech is a truly independent judicial power and irremovable judges, something that apparently does not exist in this world except the USA. Do not make as if Republican majorities had unquestionable free speech views: the many anti-BDS laws, which will be struck down one after the other, and the sooner the better, are a recent example of the tendency.

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Force is the one thing we’re not allowed to advocate.

The First Amendment does allow one to advocate force. “Advocacy of illegal conduct” is protected speech, what is not protected is “incitement to imminent lawless action” (Brandenburg v. Ohio), the word to emphasize here being “imminent.” Case law explains that, for speech to be unprotected, the lawless action it advocates must not only be imminent but also likely to follow from speech. I argue that there is an intrinsic impossibility for online speech to be incitement to imminent action; the law is aimed at speech “brigaded with action,” that is, speech to and from among a mob prone to act, or, in the classic example, shouting fire in a crowded theater.

I am surprised that a former shareowner of a platform, namely Parler, is raising funds for his legal counsel in view of a Congress hearing about the platform’s responsibility for the Capitol storming. It looks like rogue intimidation. I question the legality of any step by the legislator that compels private citizens to legal counsel expenses. The judiciary, not the legislative, is the power that examines particular responsibilities.

Is there rationality in the affirmation that as blacks make a disproportionate part of prison inmates in America the American society is racist? Looking at the figures of wealth beside the figures of prison inmates, one finds consistence across the two sets, that is, the less wealthy group is also the group with disproportionate numbers of prison inmates, which makes perfect sense on the merely economic and sociological level as poverty is ridden with deprivation and incentives to illegal conduct. As it is to be sociologically expected that crime be more rampant in poor neighborhoods than in wealthy ones, it is also to be expected that blacks have more prison inmates, as the figures show they are poorer in the main.

Therefore, although the affirmation according to which the society is racist can be inferred from prison inmates figures is hardly challenged because of the fear the challenge could be construed as a claim that blacks are intrinsically (like genetically) more criminal as a race, in fact there exists an entirely economic cause for penal figures.

This shifts attention to the cause of economic inequalities, as one might then ask if there is something intrinsic to racial groups that some thrive more and some thrive less in the economy? If inequalities in prison figures can be inferred from wealth group status, the latter cannot be inferred away, so to speak.

The anti-racist idea is that, given equal opportunities, all racial groups must and would equally thrive in the economy. So, as there are economic differences between racial groups, it must be that the society does not give equal opportunities to all and this because it is racist. Thus the American society is to be called racist as long as each racial group does not have the same proportions of wealth and poverty as the global average, that is, as long as they are not all the same in terms of wealth.

That this can and will result from the free market is, I am sure, what no one among Americans believes, so the fact that Americans keep talking of their economy as a free-market economy, having at the same time an anti-racist agenda, is questionable.

As you know, ex-post-facto legislation is expressly prohibited by the US constitution.

(On the eve of the sesquicentennial of Ohio’s Statehood in 1953 it was discovered that while the Ohio constitution had been ratified, the territory of Ohio was never formally admitted to the union. President Eisenhower made a joke about Ohio state officials drawing salaries under false pretenses and then had congress RETROACTIVELY ratify Ohio’s statehood.)

In its purity the principle holds in criminal law only, but such a construction may be argued to be unconstitutional indeed:

“Thomas Jefferson described them [ex post facto laws] as ‘equally unjust in civil as in criminal cases.’ Over the years, however, when deciding ex post facto cases, the United States Supreme Court has referred repeatedly to its ruling in Calder v. Bull, in which Justice Samuel Chase held that the prohibition applied only to criminal matters, not civil matters, and established four categories of unconstitutional ex post facto laws.” (Wikipedia)

Like Jefferson I see no reason why the principle should be limited to criminal law, because even if ignoring the principle must be particularly dramatic in criminal law it doesn’t mean such neglect is benign in other legal domains.

Multipartyism is a corrupt form of people’s government

Multipartyism is a corrupt form of people’s government. The point is to bring not more than two platforms to the electorate’s choice because that’s the only way to ensure that the elected majority will apply the electoral platform rather than coalition pacts bargained behind closed doors between various elected parties. The platform itself is the result of primaries so what Perot and others do as third parties could well be done in the frame of one or the other party.

In multipartyism parties run for platforms they know they will amend behind closed doors the very day after election day!

That is, if no party gets absolute majority (50 percent or more of the votes, that is, of the seats). With two parties competing one will get absolute majority, but with more than two parties competing absolute majorities are exceptional and coalition pacts must be reached between parties to form majority governments. Where absolute majorities are not exceptional one may talk of a de facto bipartisan system.

La différence entre un Français et un Américain, c’est que l’un chante « Aux armes » et que l’autre a le droit de porter des armes. « Vous chantiez, j’en suis fort aise… »

On Legalizing Polygamy

Polygamy is as good as nonexistent in the Arab Gulf states: “Today, because of higher standards of education and additional leisure time to spend, compatible spouses are more desired. This issue also contributed to the almost complete eradication of polygamy in Gulf. Although permitted under Islam, the custom even in the past was rarely practiced. Often women include specific paragraphs in their marriage contract prohibiting the husband from taking a second wife.” (Article Marriage, in Saudi Arabia and the Gulf Arab States Today: An Encyclopedia of Life in the Arab States, Maisel & Shoup ed., 2009)

The phrasing is ambiguous. “Eradication” would not make one expect the following sentence: “the custom even in the past was rarely practiced.” Because if it was rarely practiced in the past, then it was already “eradicated,” in the sense that it was rare already, and the conclusion is that the custom is as uncommon today as it was in the past, so there has been no change, and certainly no eradication. The situation was and is that only the wealthiest men, typically of ruling families, had and have multiple wives. Besides, this “monopoly” must by necessity be consolidated by the rent economy, as one fails to see how individual males depending on the state for their income would be allowed several wives without the state correspondingly increasing their income, which would be perceived as unwarranted by the rest of males, whereas coming from the free market this kind of perception does not obtain.

So, one point for allowing polygamy is that it would remain uncommon anyway, as it was and is in the Gulf states.

In an online summary of Edward Dutton’s book Why Islam Makes You Stupid… But Also Means You’ll Conquer the World (2020), I find Dutton includes among the reasons why Islam makes one stupid… and likely to conquer the world… polygamy. But on this he’s wanting on the side of sociological data, as polygamy is hardly more practiced by Muslims than by others. I have already written on the issue on this blog (here), warning against assuming that the legality of polygamy translates into high degrees of polygyny, as the figures in fact show that polygyny is high in sub-Saharan countries (not all Muslim) and the Caribbeans (where polygamy is illegal).

How can Muslim polygamy, i.e., the legal acceptance or toleration of it can be a factor of stupidity if it does not translate into major differences with countries where it is prohibited? That’s the same as saying that I would become dumber by tolerating my neighbor’s using intoxicants, without using them myself, as the dumbing effect (if there’s any) of intoxicants is limited to the user and does not extend to the one who tolerates it.

Therefore, when in the recent French bill against ‘separatism,’ commentators and, in the travaux préparatoires and debates, the legislators themselves conflate Islam with issues that are in fact connected with the culture of sub-Saharan migrants, be them from Muslim communities or not, namely polygamy and female genital cutting (same as with polygamy female circumcision predates Islam and has been maintained in whole communities, Islamic or not), they are mistaken or prejudiced, because in Africa said practices are no more Islamic than, say, animistic.

iii

Of course, it does not make sense to speak of an Islamic tolerance for polygamy, as the Prophet of Islam had several wives. Another word must be used to convey the idea that it is a good thing that at least some men have multiple wives even though almost all of them will have only one, as it probably turned out to be the case throughout the history of Islam in its main centers.

Polygyny can take many forms. No one really has to relinquish it in a state where polygamy is not allowed and only the legal institution of it does not exist; a polygynous man can adapt to any legal system, find arrangements within the law, for instance as to heirloom etc., and I fail to see what obstacles there are to de facto polygyny in the West. The French legislator thinks he has adopted measures just now (the bill I have been briefly discussing in ii) to prevent de facto polygyny in France but this will only serve to make the bureaucracy still more intolerably intrusive in people’s lives. They can never think out of that box, it’s always more bureaucratic control, as readers of Tocqueville know.

The classic work of sociological literature, The Children of Sanchez, may be described as a case depiction of polygyny in Mexico. Sanchez, a restaurant waiter (I wouldn’t call that high status– and Lewis’s book is about the “culture of poverty” –, although evolutionary psychology, EP, tends to associate polygyny with high status), had several wives and children in various barrios of Mexico City, sharing his earnings between all of them, and all of them living in misery. – Polygyny is not legal in Mexico. Would Mexican authorities make it legal, they would adjust the legal system to the reality of their country. A migrant to Mexico from a country where polygyny is legal, would still think polygyny is permissible there, albeit not legal. By practicing it, he would conform to a Mexican reality and couldn’t be accused to be a cause of disruption. (In the U.S., what would be disruptive is the same migrant’s will to live in a nucleus family of single wife and children, as the de facto model is communal child-rearing under Amazons’ control. Wait and see.)

An alternative to the form of consociationalism here advocated for the Western world may be the American constitutional theory as exposed by Supreme Court judges: “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 idiosyncrasies. … In a community such as ours, ‘liberty’ must include the freedom not to conform. ” Justice Brennan, on Michael H. v. Gerald D. 1989. That may make America sound pretty much liberal, but I still perceive it is more conservative than continental Europe (it is no accident, by the way, that of all European countries the UK left the EU), where they have got authoritarian liberalism whereas in the States it remains PC (political correctness) liberalism.

Kierkegaard Against ‘Christendom’

Isn’t it astonishing that one would need a “school of intelligence,” Epicureanism, to “contend” that we ought to look for pleasure? Is it something people need be told or rather they needn’t be told that they like and want pleasure more than displeasure? Kierkegaard is talking through me right now: He strongly objected to Christianity turning into a form of Epicureanism, with the indicting question: What is the point of making eternal bliss dependent upon what people want in this life? If the good life that leads to eternal bliss is what everybody wants without being told, namely a comfy pleasurable existence, then there was no need to warn them of eternal damnation. ‘Christendom,’ that is, Christianity as Epicureanism, is nonsense.

A call to a pleasurable life has no meaning except as opposition to the thought of an afterlife or a supernatural order of things, as ‘superstitious beliefs’ (in Epicurus’s words) can hinder one’s correct conduct on the way to a pleasurable life, leaving aside the question that the obstacles are also in the very craving for pleasure as it is more often than not self-contradictory and requires a method, a guidance which Epicurus proposed to delineate (with what success?). – Precisely because of Epicureanism’s rejection of superstition, the grounds are lacking for Christianity to be an Epicureanism, that is, to be of this world. This life is ultimately about winning the afterlife, not about making life comfy. For the latter one needs Epicureanism but for one who heeds the warning from beyond Epicureanism is miserable blindness. One cannot reconcile both views, and this is the reason Christendom is anti-Christian. The idea that the routine observance of sacraments, received from priests, moreover, who are in nothing different from their herd except that they have a MORE pleasurable life than most of them (in terms of wealth –being high functionaries of the state in the Scandinavian Lutheran churches– and good name and family life and leisure and so on), is what a Christian life is about, is appalling when one thinks, like Kierkegaard, about it.

When asked how to live the good life, the clergyman in Christendom might answer: “Be in my shoes.” Hinting not as much as to what is to be done as a Christian, as to a collective situation where the good life is partly inherited (the bishop is the bishop’s son) and partly the result of worldly shrewdness that has nothing to do with Christian teachings and everything with an Epicurean quest for pleasure, including the pleasure to slit others’ throats (metaphorically speaking, at least, that is, as there are in the state church x or y bishop tenures then you’ll get x or y incumbents and the other candidates will be failures). Ultimately, the guidance for Epicureanism is how to make this school of intelligence compatible with a state of things where people are not at each other’s throats all the time. We all know we want our pleasure and we all have some notions of how to get it (although our pleasures conflict with each other too), and yet it happens more often than not that our pleasure must depend on an object that we don’t own.

Last but not least, Epicurus wrote for a leisure class that doesn’t exist any longer. His thinking must be thus qualified that it answers the question of how to be happy with so much time on our hands, surrounded by slaves working for us, whereas in many cases we are not even able to secure the least bit of free time in our existence nowadays. So, talking of Epicureanism to today’s public is like telling them “there were better days, you know.” Carpe diem, pluck the day, usually summarizes Epicureanism in a nutshell. Carpe diem makes sense if I can say the day is mine, if I am no flotsam, floating with the stream or winds of the workday from morning till night, with no direction but that of the steady flow. Floating is not what the vessel but its wreck does.

A few quotes from Kierkegaard’s Articles to The Fatherland and The Instant (from Attack Upon ‘Christendom’, translator Walter Lowrie, Princeton University Press, Tenth Printing 1991)

Articles in The Fatherland

28 the impudent fudge about Christianity being perfectible

35 in Protestantism, especially in Denmark, Christianity marches to a different melody, to the tune of «Merrily we roll along, roll along, roll along» – Christianity is enjoyment of life, tranquillized, as neither the Jew nor the pagan was, by the assurance that the thing about eternity is settled, settled precisely in order that we might find pleasure in enjoying this life, as well as any pagan or Jew.

37 I am not a Christian severity as opposed to a Christian leniency. By no means. I am neither leniency nor severity: I am… a human honesty.

38 as soon as the Christian requirement of poverty is brought to bear, family is a luxury

–

The Instant

110 Imagine that a man with a loaded pistol stepped up to a person and said to him, «I’ll shoot you dead,» or imagine something still more terrible, that he were to say, «I’ll seize upon your person and torture you to death in the most dreadful manner, if you do not (now be on the watch, for here it comes)…make your own life here on earth as profitable and enjoyable as you possibly can.» This surely is the most comical speech; for to bring that about one really does not need to threaten with a loaded pistol and the most amazing kind of death; perhaps neither the loaded pistol nor the most agonizing kind of death would avail to prevent it. And so it is here: by the dread of eternal punishment (frightful menace!), by the hope of an eternal blessedness, to want to bring about…yes, to bring about what we are (…) that we may live as we most like to live–for to refrain from civil crimes is nothing but plain shrewdness.

165 If in the natural man there is any instinct so strong as the instinct of self-preservation, it is the instinct for the propagation of the race, which therefore Christianity tried to cool off, teaching that it is better not to marry, yet, if worse comes to worst, it is better to marry than to burn. But in «Christendom» the propagation of the race has become the serious business of life, together with Christianity; and the priest (this epitome of nonsense enveloped in long robes), the priest, the teacher of Christianity, of the Christianity of the New Testament, has even got his income fixed in proportion to his activity in promoting the propagation of the race, getting a definite amount for each child.

183 So there is a difference as wide as the earth, as wide as heaven, between the Mynsterish [Bishop Mynster’s] life-view (which properly is Epicureanism, enjoyment of life and the lust for life, belonging to this world) and the Christian view, which is that of suffering, of enthusiasm for death, belonging to the other world; yea, there is such a difference between these two life-views that the latter (if it were taken seriously, and not at the very most expressed rarely in a quiet hour) must appear to Bishop Mynster as a kind of madness.

185 By indifferentism one commonly understands having no religion at all. But resolutely and definitely to have no religion at all is something passionate, and so is not the most dangerous sort of indifferentism. Hence too it occurs rather rarely.

189 I am unable to endure this thought [«The situation is this: the more thou hast to do with God, and the more He loves thee, the more thou wilt become, humanly speaking, unhappy for this life, the more thou wilt have to suffer in this life»], and therefore merely investigate this true definition of what it is to become a Christian, whereas for my part I help myself to endure sufferings by a much easier thought, one which is Jewish, not in the highest sense Christian, the recognition that I suffer for my sins.

190 And only by the help of this canst thou see that the Christianity of the New Testament does not exist, that the little religiousness there is in the land is at the very most…Judaism.

205 [Christianity] that religion precisely which extols the single state.

215 man is reduced to insignificance by marriage

223 Christianly it is egoism in the highest degree that because a man and a woman cannot control their lust another being must therefore sigh, perhaps for seventy years, in this prisonhouse and vale of tears, and perhaps be lost eternally.

263 And inflexibly as the human race stands up for its will to punish, to punish even by death, those who are not willing to be like the others, just so firmly does eternity stick to its purpose of punishing with eternal perdition those who are tranquillized by being like the others.

281 Worldly shrewdness is eternally excluded, despised and abhorred, as things are in heaven, more than all vices and crimes, because in its nature it of all things most belongs to this wretched world, and most of all is remote from having anything to do with heaven and the eternal. [Shrewdness=Klugheit (Kant)]