tag:blogger.com,1999:blog-25691128822327785542024-03-11T22:48:45.546-07:00The Worden Report - Government & MarketsDr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comBlogger815125tag:blogger.com,1999:blog-2569112882232778554.post-56495223338113158962024-02-23T14:04:00.000-08:002024-02-23T14:04:16.520-08:00On the Role of Agribusiness in Global Warming<p class="MsoNoSpacing" style="text-align: justify;"><span style="font-family: times; font-size: large;">Agriculture is a major source of carbon and methane emissions, which in turn are responsible for the general trend of the warming of the planet’s atmosphere and oceans. In fact, agriculture emits more than all of the cars on the roads. 10 percent of the emissions carbon dioxide and methane in the U.S. come from the agricultural sector. Livestock is the biggest source of methane. Cows, for example, emit methane. Methane from a number or sources, including the thawing permafrost, accounted for 30 percent of global warming in 2023. As global population has grown exponentially since the early 1900s, herds of livestock at farms have expanded, at least in the U.S., due to the increasing demand.<span class="MsoEndnoteReference"><span class="MsoEndnoteReference"><span style="line-height: 25.68px;">[1]</span></span></span> We are biological animals, and we too must eat. More people means that more food is needed, and the agricultural lobby in the U.S. is not about to let the governments require every resident to become a vegetarian. Indeed, the economic and political power of the large agribusinesses in the U.S. have effectively staved off federal and state regulations regarding emissions. It comes down to population, capitalism, and plutocracy warping democracy.<o:p></o:p></span></p><div style="text-align: justify;"><span style="font-family: times; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;">The full essay is at "<a href="https://thewordenreportinternationalrelations.blogspot.com/2024/02/on-role-of-agribusiness-in-global.html"><span style="color: #783f04;">On the Role of Agribusiness in Global Warming</span></a>."</span><br clear="all" /><hr align="left" size="1" width="33%" /><div id="edn1"><p class="MsoNoSpacing"><span style="font-family: times;">1. Georgina Gustin, “Climate Change and Agriculture,” Yale University, February 22, 2024.</span></p></div></div>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-40325303108418853812024-01-08T21:11:00.000-08:002024-01-08T21:11:25.659-08:00Exfoliating a Hero: On Lincoln's Unconstitutional Overreaching<div class="MsoNormal" style="margin: 0in 0in 0pt;"><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">Lest we get carried away and inadvertantly enshrine our leaders with mythic laurals, it is worthwhile to peel back our societal "remembering" of past figures, such as Abraham Lincoln, who have become larger than life.</span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">Lincoln was a moderate, promising merely not to<em> spread</em> slavery. In his address after being sworn in, he promised not to go after slavery where it existed. Accordingly, radical abolitionists complained. Even so, the 1860 campaign had been viewed, at least in the south, as a referendum on the southern way of life. Lincoln received only 40% of the vote; he was not even on the ballot in ten states. <span style="mso-spacerun: yes;"> </span>There were just 33 states in the union at the time.<span style="mso-spacerun: yes;"> Lincoln's victory suffered from a deficit of legitimacy in some quarters. In fact,he was burned in effigy at a state capitol in the south. </span>With free Kansas becoming a state, the slave states felt that their respective abilities to defend their way of life in the general councils of the union would become even more truncated or dilute. Berift of a sense of influence on general matters that concerned themselves, the confederating republics felt they had no alternative other than secession.</span></div></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">On Feb 18, 1861, Jefferson Davis became President of the Confederate States of America. At his swearing in, Dixie, which had been composed by a northerner, was played.<span style="mso-spacerun: yes;"> The two sides in the continental dispute were closer than they perhaps realized. </span>Both Lincoln and Davis, for example, were from Kentucky originally. <span style="mso-spacerun: yes;"> </span>According to the Confederate constitution, Davis had a line item veto and would have had a six year term had the confederacy lasted that long. Astonishingly, international slave trading was outlawed. Even so, there were fundamental differences involved in the dispute. Ironically, had the southern states freed the slaves before firing on Fort Sumpter--depriving Lincoln of his motivational tactic midway through the way--perhaps something resembling the southern way of life in a loose confederacy would have prevailed. The United States would have been left to consolidate to its heart's content.</span></div></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">On the way to his inauguration, Lincoln declared that he would rather be assassinated than to see even one star removed from the flag. Such a stance reflects the "all or none" mentality that accompanies political consolidation.<span style="mso-spacerun: yes;"> In spite of Lincoln's line in the sand, </span>the War between the Confederated States and the United States began at 4:30am on April 12, 1861. <span style="mso-spacerun: yes;"> Technically, it was a war between a federated alliance and a federal government. </span>The opening act was bloodless, even as the war to come was the bloodiest in American history. Siloh alone matched the casualties at Waterloo, and there would be 27 more to come. 51,000 men lost their lives in the three days at Gettysburg alone. The contest between the old and new federal forms exacted a heavy toll in human loss and suffering. Who would have thought that contending distinctions in political theory could be so bloody. Of course, might does not in itself make right, although the passion of the unjustly oppressed can bring about victories disproportionate to the relative lack in number. Furthermore, in this particular case, the respective populations in the federations and the industrialization of several of the union's states gave the forces of modern federalism an advantage not necessarily sourced in the nature of the type.</span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">At the time, the union states had a combined population of 21 million while the confederacy had only 9 million, 4 million of which were slaves and thus not in the fight. In spite of the fact that so many southerners volunteered to enlist that a third of them had to be sent back home, the confederacy was perhaps destined to lose the <em>bellum</em> given the tremendous disadvantage in terms of population. That the conflict lasted until 1865 may point to the extent of resentment that had been allowed to build up throughout the slave states against what was viewed there as an “intrusive” federal government. For example, the devisive tarriff that had nearly caused South Carolina to secede in 1832 was reimposed by the U.S. Government in 1858. As in 1832, the tax was to finance northern industrialization. The states producing cotton and/or rice were left not being able to defend their interests in Washington. Accordingly, that distant government was viewed as encroaching and increasingly foreign. The root of the festering dispute went far beyond the issue of slavery.</span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">To the confederate citizens, the cause involved the rights of their republics as well as their property rights. Slaves, being viewed as property by their "masters"--a decadent conception of slavery unknown to ancient understandings--were thus in play as part of the <em>wider</em> and <em>deeper</em> southern concern with self-determination, which the southerners identified with their respective countries and associated ways of life. Even Lincoln's Emancipation Proclamation, which took effect on January 1, 1863 (almost two years into the war), applied only to slaves in the states that had already left the union (rather than to the five slave states that had remained).</span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">The confederate states were not subject to U.S. law as long as they were part of the confederacy rather than the union. Lincoln's proclamation was thus extra-constitutional, and thus without immediate effect other than to motivate an increasingly weary northern citizenry and armed forces. To be sure, Sherman freed slaves as he blazed a trail to the sea. However, even without the proclamation, he would have deprived the confederates of their "property" along with their other means until they surrendered. Slavery was not outlawed in the United States until 1865, when the thirteenth amendment was ratified by the states (the <em>former</em> confederate states excluded even though they had been re-afixed to the union). There was some duplicity involved in, "Welcome back to the union! But unfortunately your vote doesn't count yet because you don't agree."</span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">Fundamentally, the "north" and "south" interpreted the United States differently. This is what the war was really about, and the issue went all the way back to the contentious debates in the constitutional convention in 1787. The delegates had hotly debated whether the proposed General Government would consolidate power via "general welfare" spending and the potentially unlimited taxation, irrespective of the question of slavery. The people who wanted to secede viewed the U.S. as more like a confederation than a modern federal government. That is, confederates viewed their states as countries and the U.S. more as an alliance having only strictly defined enumerated powers that a national government. Robert E. Lee, for example, was offered command of the union army. He refused and went with Virginia. He could not draw his sword, he said, against <em>his native country</em>.<span style="mso-spacerun: yes;"> Virginia had to come first; there was never any question about that. </span>Such a view of Virginia and the other republics was to fade even as they still retained residual sovereignty at least into the twenty-first century.</span></div></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">In general, the southerners feared that the federal government would usurp more and more power from their countries; as things turned out, the fear was not without foundation. Even then, Lincoln declared war against the confederated states even though the U.S. constitution clearly stipulates that <em>Congress</em> is the governmental body in the U.S. Government that declares war.<span style="mso-spacerun: yes;"> </span>As the president is the commander in chief, there is a conflict of interest in that office also declaring war.<span style="mso-spacerun: yes;"> </span>So technically speaking, the war was not constitutional, and thus legal.<span style="mso-spacerun: yes;"> </span>Lincoln also suspended habeus corpus, though the constitution allows for this in time of rebellion. <span style="mso-spacerun: yes;"> </span>To keep the Maryland from seceding, he locked up thirteen of the state's legislators without trial.<span style="mso-spacerun: yes;"> </span></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">Chief Justice Taney, who had four years earlier concurred with the Dred Scott decision, said that Lincoln had gone too far beyond the constitution in the powers he was exercising. Taney was on firm ground on the declaration of war. Even so, astonishingly, the president simply ignored the chief justice. From the standpoint of an independent judiciary with teeth, Lincoln was laying a precedent very dangerous to the republic.</span></div></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">Because the judiciary has no means of enforcing its decisions by force, the branch depends on the other branches, and, indeed, the people, resisting the temptation to contravene a judicial decision. The basis of the resisted temptation rests on the court's legitimacy, for the judiciary has no troops of its own. In fact, Bickel refers to the court as the “least dangerous branch” for this reason. Lincoln’s precedent in simply ignoring the court put at risk the system of checks and balances that resides in the separation of powers in the federal government. Fortunately for us, Lincoln’s treatment of the Chief Justice's effort to hold the executive branch within its proper constitutional sphere, as though Taney were a mere bystander, has largely been forgotten.<span style="mso-spacerun: yes;"> </span>Yet the expediency of an imperial presidency has indeed been on display since Lincoln as Congress has gradually lost power to the commander in chief.<span style="mso-spacerun: yes;"> The danger is real, and Lincoln's precedent could yet be used by an ambitious commander in chief who has his or her eye on another country to invade. </span></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">Ironically, Lincoln’s unconstitutional actions at the beginning of the war ironically to save the union could be viewed as confirming the charges made by the confederates against the encroaching nature of the federal government.<span style="mso-spacerun: yes;"> </span>Lest we miss the lesson as we remember the bloody war 150 years later in 2011-2015 from the standpoint of the victors, we might take note of the susceptibility of power itself to consolidate, ultimately in one person—indeed, even in a hero. The consolidating proclivity is as much a danger in the modern American empire today as it was in ancient Rome. <span style="mso-spacerun: yes;"> </span></span></div></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><br /></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><br /></div><div class="MsoNormal" style="margin: 0in 0in 0pt;">Source: Ken Burns’ <i style="mso-bidi-font-style: normal;">The Civil War</i> (PBS)</div>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-8322135933039180842024-01-08T20:40:00.000-08:002024-01-08T20:44:42.977-08:00Legislation of the U.S. Government during the Civil War: A Case of Unconstitutional Governance?<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: center;"><span style="color: black; font-family: times; font-size: large;">Lest history be forgotten, it may come around again to bite us when we least expect it.</span></div><div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;"><span style="font-family: times; font-size: large;"><br /></span></div><div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;"><span style="font-size: large;"><span style="color: black; font-family: times;">During the war between the Confederate States and the United States of America, The Legal Tender Act required debtors to accept “greenbacks,” the U.S. Government’s paper currency. The National Bank Act barred state banks from issuing notes, giving the U.S. Government a monopoly on paper currency. Finally, The Internal Revenue Act imposed a federal income tax and other levies. Henry </span><span style="font-family: times;">Brands asks, however, whether “greenbacks” fall under the U.S. Constitution’s wording that the federal government can “coin” money. If money was in coin specie when the constitution was written, the meaning could be widened to include new means without necessarily extending the power of that government beyond what was intended.</span></span></div><div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;"><span style="font-family: times; font-size: large;"><br /></span></div><div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;"><span style="color: black; font-family: times; font-size: large;">Brands also asks, “Did the proscription against state bank notes follow from the [interstate] commerce clause, from the elastic clause, or from Treasury secretary Salmon P. Chase’s imagination?” The fact that state banks had been issuing notes even as the U.S. Government was minting silver and gold coins points to, or illustrates, the dual sovereignty element in the American federal system. Ironically, for nearly the first hundred years of the United States (as alliance, confederation and finally a modern federal system), the states had more currency power than do the state governments that use the euro in the E.U.<span style="mso-spacerun: yes;"> </span></span></div><div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;"><span style="font-family: times; font-size: large;"><br /></span></div><div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;"><span style="color: black; font-family: times; font-size: large;">In terms of the interstate commerce justification of barring state banks from issuing notes, that justification does not reach such notes being used within a state’s borders. In terms of interstate commerce, mandating a common currency can be covered by the clause. As per the example of the E.U., it is possible to have both a common currency and currencies particular to certain states. In fact, it is possible, as per the European case, to have the particular currencies displace the common currency in the state of the particular currency. However, if, for example, the euro cannot be used in Britain, this restriction of the common currency in a state would detract from the common market (i.e., out-of-states would be discriminated against).<span style="mso-spacerun: yes;"> </span>So while the U.S. commerce clause could be interpreted as allowing for state currencies, any such currencies could not be mutually exclusive with the common currency.</span></div><div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;"><span style="font-family: times; font-size: large;"><br /></span></div><div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;"><span style="color: black; font-family: times; font-size: large;">As for the income tax, Brands avers that it “seemed a patent violation of the constitutional ban on ‘direct’ taxes not proportioned to population.”<span style="mso-spacerun: yes;"> </span>Indeed, a constitutional amendment was deemed necessary for the purpose in the twentieth century. The unlimited potential of the U.S. Government to raise revenue by taxation was not missed on some of the delegates at the constitutional convention in 1787. They worried that that government would crowd out the governments of the states, which would also depend on revenue. These fears were not without foundation. By the twenty-first century, state governments were under popular pressure not to increase taxes in large part because of the taxes already being taken by the federal government.</span></div><div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;"><span style="font-family: times; font-size: large;"><br /></span></div><div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;"><span style="color: black; font-family: times; font-size: large;">In general terms, these federal laws enacted during the Civil War can be interpreted as evincing various degrees of encroachment of the U.S. Government. It was such expansion of power that had been in mind when the confederated states seceded from the United States. Even though Lincoln’s 1860 platform affirmed protecting slavery where it existed at the time, southerners feared that the reach of the federal government would continue unabated. The result, they feared, would be the eventual loss of their self-determination and way of life.<span style="mso-spacerun: yes;"> </span>This concern transcended the issue of slavery. Accordingly, the states would have perhaps been wiser to free the slaves then fire on Fort Sumpter—the underlying issue would have been made more transparent thusly. Even in the twenty-first century, the trajectory of the U.S. Government in going beyond its enumerated powers is an issue even if other issues tend to get first play.</span></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><br /></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><span style="font-size: large;"><br /></span></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><span style="font-size: large;">Source: Henry W. Brands, <i style="mso-bidi-font-style: normal;"><a href="https://www.amazon.com/American-Colossus-Triumph-Capitalism-1865-1900/dp/0385523335"><span style="color: #783f04;">American Colossus: The Triumph of Capitalism 1865-1900</span></a> </i>(New York: Doubleday, 2010), p. 13.</span></div>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-2160453084380190762024-01-03T16:39:00.000-08:002024-01-03T22:07:46.463-08:00We the People: Invigorating Popular Sovereignty by Referendi<div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">A republic is characterized by the citizenry electing representatives, who in turn legislate (i.e., make law). As an alternative, the citizenry itself could vote directly on legislative proposals. The latter is called direct democracy. Ancient Athens, for example, practiced it. In the United States, the republic form is the prevalent form of government. In spite of Wilson’s comment made in the constitutional convention that representation “is made necessary only because it is impossible for the people to act collectively,”[1] direct democracy has typically limited to an occasional “referendum” question even though more vital questions could be put to the body politic directly. </span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">Typically, referendums have tended to do with elections (and thus with representative rather than direct democracy) or with general taxing or spending limits for a government. The rationale for putting general taxing or spending limits up for referendum is that they apply to a government as a whole—this perspective being from that of popular sovereignty (i.e., the citizenry, whose electoral power transcends their government). Rarely, an “issue” is put up to be decided directly by the voters. By 2024, several of the member-states in the U.S. had had referendi on legalizing marijuana. I contend that many more matters of policy could be decided directly by the voters. </span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">Since the elected representatives represent the citizenry, the former should not be presumed as having the definitive right of such decision. Deciding on matters of general policy are primarily value-judgements, rather than requiring expertise. Issues such as abortion, gay marriage, the Bush tax cuts, and the Iraq and Afghanistan wars could—and I would argue should—be decided by the voters directly. Beyond issues, the voters could decide more general governance questions, such as whether federalism should be continued. Such a question could lead to more specific proposals at the next election. </span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">For example, if the majority of American voters want the US to be of federalism, representatives could work on not only constitutional amendments, but also proposals for the voters on which broad areas of power would be transferred back to the states (or the voters could be asked—assuming a majority still want federalism—whether X or Y areas of power should be transferred back to the States). Should elected representatives counter that we should not trust the people to make such decisions, I would argue that it is nonsensical for an agent to contend that his principal is somehow inferior to himself. In a representative democracy, the representatives are the agents of the people; it is not the other way around.</span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">In short, I contend that popular sovereignty ought to be strengthened rather than vitiated. Elected representatives are best suited to working out the technical details rather than deciding broad questions of policy. An election campaign is a bricollage of factors; it is rare for a victor to be able to claim a mandate on a particular issue. In fact, a representative may be elected for reasons having nothing to do with his or her positions on “the issues.” </span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">The midterm election of 2010, for example, could have been informed by a mix of factors; it was not even clear whether people voting Republican, for example, were saying yes to that party’s platform or no to the previous two years of legislation (which was informed by both Democratic and Republican law-makers—neither party being able to enact its platform as given). Even voters blaming the Democratic Party for the resulting legislation is not strictly speaking accurate, as compromises had to be made with Republicans. So an election of representatives is a broad brush that cannot be divined as a mandate on particular issues. </span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">Regarding particular policies—even foreign policy, such as whether the US Government should continue to support Israel—the only way to know if there is a mandate is to put the matters up for decision by the voters. Political parties could have a say on how the questions are worded so they are objective (or two versions could be provided). Courts would still be able to declare the resulting law unconstitutional, but even here constitutional amendment is possible. Even in terms of amendments, the voters, rather than their constitutional delegates or state or federal representatives, could decide directly. </span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">For example, the voters could decide whether US Senators should continue to be elected, or whether they should be appointed by the state governments or be the governors themselves (the US Senate being like the European Council of the E.U.). The voters could also decide whether abortion should be decided by the state or U.S. courts, or directly by the voters—by state or US—as an amendment.</span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">At the very least, basic decisions would be made that have been mired in disputes between governmental institutions and/or government officials. We are depending much too much on elected and appointed government officials to “make” policy. Ultimately, the will of the people should be freed up and exercised beyond the confines of simply electing representatives—being subject only to the judiciary protecting individual rights (which can be overruled by constitutional amendment, which can be of the people). Sadly, those in power—the elected representatives—will naturally and ironically resist efforts to expand the will of the people. </span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">Because the election of a representative involves many elements, an elected representative could easily get around interpreting his or her victory as a mandate to expand the will of the people. This is precisely part of the problem, and it maintains the monopoly of power that our elected representatives enjoy. I suspect this is no accident. Hence I am not optimistic on any expansion of popular sovereignty any time soon. Even so, I hope my thoughts here are thought-provoking. </span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">Although not the best person to quote, Richard Nixon pointed in one of his books to the need for political development: “In terms of material progress, the twentieth century has been the best in history, but in terms of political progress the record has been disappointing.”[2] </span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">What I am suggesting is that our political system is so antiquated that were it to develop as technology has, our use of elections could make quite a leap forward. In spite of all the technological change, we tend to hold very rigidly to the way things have “always been done” in politics. It is time for politics to catch up. In fact, the technological progress could facilitate the expansion of popular sovereignty. For example, voters could surf the internet for information before voting on general policy areas. The challenge may well be in how to enable illiterate voters to be able to take part. As one possibility, voters could vote at desks (as in a classroom) while a reader reads through the questions on the ballot. My point is that we can begin to think outside the box and shake loose our assumptions.</span></div><div style="text-align: justify;"><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div><p style="text-align: justify;"></p><p><span style="text-align: left;">1. James Madison, </span><em style="text-align: left;">Notes in the Federal Convention of 1787</em><span style="text-align: left;">. New York: Norton, 1987, p. 74.<br /></span>2. <span style="font-family: Times, "Times New Roman", serif; text-align: justify;">Richard Nixon, </span><em style="font-family: Times, "Times New Roman", serif; text-align: justify;">1999 Victory Without War</em><span style="font-family: Times, "Times New Roman", serif; text-align: justify;">, New York: Simon and Schuster, 1988, p. 16.</span></p><p></p>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-51082509916986755292024-01-03T12:07:00.000-08:002024-01-03T15:57:50.393-08:00The Israeli Supreme Court’s Conflict of Interest as Unreasonable<p style="text-align: justify;"></p><p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">Ironically, in making the ruling on
New Year’s Day of 2024 striking down Prime Minister Netanyahu’s amendment to the
country’s basic law that would have removed the judiciary’s authority of judicial
review of laws based on their reasonableness, Israel’s Supreme Court <i>too</i> unreasonably
exploited a conflict of interest. Basic Law, which is
essentially constitutional law, includes the basic architecture of a
government, such as how the executive, legislative, and judicial functions are
related. Self-interest being a salient feature of human nature, we can assume
that the governmental functionaries in each of those functions naturally seek
to expand their respective jurisdictions relative to those of the other two. I
contend that to give one or two of those areas the last word in altering the
division of authority involves a conflict of interest. This applies to a
constitutional court. Therefore, even though democracy is served by a judicial
decision striking down an attempt by the executive and/or legislature to eviscerate the authority of the judiciary to act as a check, giving the latter the last word is fraught with
entanglements. </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">By eight to seven justices, the
court ruled “that a government amendment to the so-called reasonableness law
should not stand. The bill had stripped the Supreme Court of the power to
declare government decisions unreasonable.”<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span face="Calibri, sans-serif" style="line-height: 107%;">[1]</span></span><!--[endif]--></span></span>
That very officials who make government decisions in the Knesset passed the
basic law can be seen as problematic. It was essentially a power-grab by the
executive/legislative domains at the expense of the judiciary. Although the
court “rejected the amendment because it would deal a ‘severe and unprecedented
blow to the core characteristics of the State of Israel as a democratic state,’”<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span face="Calibri, sans-serif" style="line-height: 107%;">[2]</span></span><!--[endif]--></span></span>
the naked power-grab could itself be viewed as unreasonable, even taking for
granted the element of power-aggrandizing in governing. The court could also
have ruled on the basis of there being an institutional and personal conflict
of interest, but the court itself could be charged with the same offense in
deciding the matter. It is just this conflict of interest that flew below the
media’s radar (and got me to writing). <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">Even though the ruling did not
expand the court’s authority, the decision arrested a <i>decrease</i>, and was
thus in the personal and institutional interest of the judiciary in terms of
power. Just as the majority in the Knesset had acted in its interests, the
majority on the court did as well. The matter was thus a power struggle, and
thus giving one side the final, definitive say is unfair. The ruling cites the
importance of judicial review of laws passed by the Knesset as being in the broader
interest of democracy in Israel, but the relatively narrow personal and institutional
interests of the justices and their court could be expected to be exploited,
and this may be the real reason for the ruling. To be sure, an independent judiciary
is indispensable for the executive and legislative functionaries to be held accountable.
Although they could argue that the voters could perform that function at election-time,
elections do not include sending corrupt officials to jail, and the sitting
Prime Minister was charged with corruption judicially at the time that he was
steering the bill to passage (which counts as a personal conflict of interest).
Even if the court’s democracy argument is solid, the personal and institutional
conflicts of interest in the justices resisting a restriction on the purview of
their judicial authority are <a href="https://www.amazon.com/Institutional-Conflicts-Interest-Business-Public/dp/1521969523/ref=sr_1_1?keywords=Skip+Worden+institutional+conflicts+of+interest&qid=1556641241&s=books&sr=1-1-spell"><span style="color: #783f04;">inherently unethical</span></a> and thus should be obviated
if possible. </span></p><p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">The <i>inherency </i>is explained by just how inherent the
self-interest to exploit a conflict of interest, whether personal or
institutional, is in human nature.[3] Without doubt a conflict of interest that
actually has been exploited is unethical because a private or relatively narrow
benefit is put before a public or relatively broad benefit or duty. <span style="mso-spacerun: yes;"> </span><o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">In judicial language, strict
scrutiny should therefore be applied to unilateral decisions by legislative,
executive, or judicial functionaries or “branches,” of government that
self-aggrandize authority at the expense of one or two of the other “branches.”
I recommend that such conflicts of interest be obviated by putting such matters
to the electorate. So this is not merely a rubber-stamp of the majority
parties, a 2/3 majority should be required to change Basic Law. Otherwise, we
are left with the unsavory alternative of having the contending governmental
interests play out their internecine power-struggles on the constitutional
stage with one such interest having to have the final word, which is unfair to
the other interests. In a democracy, after all, popular sovereignty is more
fundamental than governmental sovereignty.</span></p><div style="mso-element: endnote-list;">
<hr align="left" size="1" width="33%" />
<!--[endif]-->
<div id="edn1" style="mso-element: endnote;">
<div>1. Rob Picheta, Amir Tal, and Lauren Izso, “<a href="https://www.cnn.com/2024/01/01/middleeast/israel-court-judicial-overhaul-intl/index.html">I<span style="color: #783f04;">srael’s
Top Court Strikes Down Key Part of Judicial Overhaul, Reigniting Divisions as
War Rages</span></a>,” CNN.com, January 2, 2024.<br />2.
Ibid.</div><div>3. Skip Worden, <a href="https://www.amazon.com/Institutional-Conflicts-Interest-Business-Public/dp/1521969523/ref=sr_1_1?keywords=Skip+Worden+institutional+conflicts+of+interest&qid=1556641241&s=books&sr=1-1-spell"><i><span style="color: #783f04;">Institutional Conflicts of Interest</span></i>,</a> available on Amazon.</div><p class="MsoEndnoteText"><o:p></o:p></p>
</div>
<div id="edn2" style="mso-element: endnote;">
<p class="MsoEndnoteText"><o:p></o:p></p>
</div>
</div><br /><p></p>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-90401271058889413182023-12-22T14:01:00.000-08:002023-12-22T14:08:48.448-08:00The Colorado Supreme Court Bars Insurrectionist Trump: Who Should Ultimately Decide?<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">On December 19, 2023, Colorado’s Supreme Court ruled that Don Trump, a former U.S. president, had engaged in insurrectionist activity as a matter of fact, and furthermore, as a matter of law, the U.S. Constitution bars him from holding <i>any </i>office, including the presidency. With an appeal to the U.S. Supreme Court a certainty, realized even by the Colorado justices, and some notable (and very visible) Republicans arguing that the American people should have the final say on whether Trump will be president again beginning in 2025, the question of who should have the final say—the judiciary or the people—was pressing, and indeed, very important. I contend that the determination of fact should have been made by a jury in a criminal proceeding, and that even absent that, the ultimate decision should still be made prior to, and thus not during, the election, for the question is whether Trump can be listed as a candidate for the office. Ultimately, the tension lies between the value of a politics-free judiciary and democratic (majority) rule.<o:p></o:p></span></p><p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">Section 3 of the 14<sup>th</sup> Amendment to the U.S. Constitution “prohibits anyone who swore an oath to support the Constitution and then ‘engaged in insurrection’ against it from holding office.”<span class="MsoEndnoteReference"><span class="MsoEndnoteReference"><span style="font-family: Calibri, sans-serif; line-height: 25.68px;">[1]</span></span></span> The Colorado Supreme Court reversed the decision of a trial judge with the simple logic that the section doesn’t explicitly mention the U.S. Presidency because it is so obviously an office. That it is so because, as the majority of Colorado’s high court’s justices wrote, the presidency serves “we the people” seems more like rhetoric than logic; the majority opinion could have left it at the rather obvious point that the presidency itself is not mentioned in section 3 because that section refers to <i>all </i>offices, federal and state, as being subject to the prohibition. Indeed, in political discourse, “the office of the president” is often mentioned, so the point hardly seems necessary to be made, but for the strange reasoning of the trail judge who had sought explicit mention of the presidency as if it were not included in “any office, civil or military, under the United States, or under any State.”<span class="MsoEndnoteReference"><span class="MsoEndnoteReference"><span style="font-family: Calibri, sans-serif; line-height: 25.68px;">[2]</span></span></span> That both appointed and elected offices are included is also indisputable on the face of it, and that the section expressly names senator and representative in Congress does mean that the presidency too must be named, for the distinction here is between the legislative and the two other branches (a justice is also an office). In fine, the presidency of the United States is indeed a governmental office.<o:p></o:p></span></p><p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">Colorado’s high court was on shakier ground, and this is noted in the dissent in the 4-3 opinion, in accepting the district judge’s determination of fact that President Trump had “engaged in an insurrection.”<span class="MsoEndnoteReference"><span class="MsoEndnoteReference"><span style="font-family: Calibri, sans-serif; line-height: 25.68px;">[3]</span></span></span> Insurrectionist activity was at the time a federal crime in the U.S., and yet Donald Trump had not even been charged with the crime, much less convicted by a jury. Rather, a district judge had made the finding of fact, such that not even any criminal sentencing could be done. At Yale more than a month before Colorado’s high-court ruling, I asked James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, whether someone would first have to be charged and convicted of insurrectionist activity. “No,” he said flatly, without feeling the need to elaborate.<span class="MsoEndnoteReference"><span class="MsoEndnoteReference"><span style="font-family: Calibri, sans-serif; line-height: 25.68px;">[4]</span></span></span> I thought I had asked a stupid question until I read in Colorado’s decision that the dissent makes the same point. Presumably someone should be found guilty of the crime before being barred from holding any public office because of said crime. Therefore, I submit that Colorado’s majority opinion erred in accepting the district judge’s determination of fact in lieu of any criminal prosecution and conviction as a sufficient basis apply the 14<sup>th</sup> Amendment to Donald Trump.<o:p></o:p></span></p><p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">Given the weaknesses in the judicial rulings of both the lower and higher court in Colorado, it is a good thing that the U.S. system of government is federal because the U.S. Supreme Court could make corrections. By implication, perhaps a plurality of state supreme courts should be able to overrule a decision of the U.S. Supreme Court. Checks and balances should apply to the judiciary too. Relatedly, the lack of check and balance concerning some of the unethical gifts taken by Justice Thomas of the U.S. Supreme Court from a Republican activist could diminish the legitimacy of the U.S. court in being the final decider on the questions of Donald Trump being an insurrectionist and, furthermore, being barred from holding any office. <o:p></o:p></span></p><p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">After the decision of the Colorado Supreme Court was made public, some of the Republican candidates for president publicly asserted that the American people should decide through the presidential election whether Trump should be president. A number of serious problems attend to this proposal.<o:p></o:p></span></p><p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">Firstly, it is highly unrealistic, to say the least, that every voter would vote on the basis of the question of whether the U.S. Constitution forbids Trump from holding office. Even if Trump were to lose the election, it could not be inferred that the American people had decided that Trump was barred and thus could not hold <i>any </i>office.<o:p></o:p></span></p><p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">Secondly, such a position incurs the worries noted by James Madison in his <i>Notes </i>on the constitutional convention that excess democracy, such as by having a de facto democratic judiciary (i.e., decided by votes of the people rather than rulings by justices), brings with it insufficient check on the passions of the people. A judiciary is one such check, and judicial review renders that branch a check also on the two other branches of government. In short, leaving the final word in interpreting the constitution to “we the people” leaves us without the ability to protect us from ourselves. For example, the rights of the minority would have no protection against the tyranny of the majority—democracy of course being by majority rule. Not the least of considerations, politics would also inevitably be involved.<o:p></o:p></span></p><p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">Even in the U.S. Supreme Court, politics have likely been more of a force than the public realizes. Justice Sandra Day O’Conner, whose funeral took place just days from Colorado’s high-court ruling, had written the majority opinion for Bush v. Gore (2000) even before oral arguments were heard. She had been active in the Republican Party when she was an Arizona legislator, and her majority opinion sided with Bush. Objections to her partisanship imply a belief that the judiciary should be neutral politically.<o:p></o:p></span></p><p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">Handing over the court’s functions to “we the people” would only add politics to constitutional interpretation. Voters in favor of Trump personally, or his policies, would likely find that he did not engage in an insurrection, and thus that the Constitution does not bar him from holding any office. President Biden’s supporters would be inclined to view Trump’s speech on January 6, 2020 as fomenting an insurrection. Who then should decide? This is the rationale for having a judiciary, especially where criminality is to be decided. Just as politics should not be criminalized, so too criminal proceedings should not be politicized.<o:p></o:p></span></p><p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">I asked James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, why the federal prosecutor had not included insurrection among the criminal charges against Donald Trump. “It’s messy,” the judge replied. He meant that it is difficult to get a conviction. If so, then the fact that the district judge in Colorado so easily found that Trump had indeed been engaged in insurrectionist activity by urging his supporters to disrupt the counting of the electors’ votes for president warrants strict scrutiny. In other words, if the charge is “messy,” then shouldn’t a jury hear the case and be made to deliberate? Then, of a jury were to convict the former president, then appellate courts, including ultimately the U.S. Supreme Court, would be oriented exclusively to deciding the questions of law concerning section 3 of the 14<sup>th</sup> Amendment.<o:p></o:p></span></p><p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">Separating the criminal proceedings from the work of the U.S. Supreme Court would buffer the impact of politics <i>inside </i>that court unless its justices would disregard a jury verdict. Such a rationale would have to be strong in its reasoning, least it appear to be part of a political effort to decide the 2024 presidential election by judicial fiat, as in 2000. Such an effort would effectively prioritize a decision by the electorate. Absent such judicial corruption, deciding whether section 3 of the 14<sup>th</sup> Amendment applies to Don Trump by an election incorrectly treats the United States as a direct democracy rather than a republic in which democracy is <i>a part</i> of the system of the system of government. Especially when democracy itself is in dispute, a judiciary free from politics is so very valuable. Boasberg’s dismissiveness of my two questions at Yale in early November, 2023 left me wondering about the neutrality of the federal judiciary. At the very least, what he took for granted is hardly settled law.</span></p><div style="text-align: justify;"><hr align="left" size="1" width="33%" /><div id="edn1">1. Nicholas Riccardi, “<a href="https://apnews.com/article/trump-insurrection-14th-amendment-2024-colorado-79373b5043976588b599fc00ede049e8"><span style="color: #783f04;">The Constitution’s Insurrection Clause Threatens Trump’s Campaign. Here Is How That Is Playing Out</span></a>,” APNews.com, December 20, 2023.<br />2. The U.S. Constitution, Section of the 14<sup>th</sup> Amendment.<br />3. Kinsey Crowley, “<a href="https://www.usatoday.com/story/news/politics/elections/2023/12/20/what-is-14th-amendment-section-3/71983754007/"><span style="color: #783f04;">What Is the 14<sup>th</sup> Amendment? Why Colorado Disqualified Trump and Removed Him from Ballot</span></a>,” USA Today, December 20, 2023.<br />4. Not even the report of the judge’s talk in <i>The Yale Daily News </i>includes any mention of the judge’s answer to my question. Presumably the student-reporter did not think the reply could be controversial.</div></div>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-31922688766033425532023-12-11T13:15:00.000-08:002023-12-11T13:21:00.936-08:00On the Role of the U.S. Supreme Court in Safeguarding the Peaceful Transfer of Power<p style="text-align: justify;"></p><p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">In the E.U., the state
governments and federal institutions can ask the European Court of Justice (the
ECJ) for an opinion on a legal matter. This is rare in the U.S., though waiting
for a dispute to winds its way formally through district and appellate courts may
be unduly bureaucratic, not to mention lengthy. On December 11, 2023, Special
Counsel Jack Smith asked the U.S. Supreme Court the ECJ’s counterpart, to
decide whether the former U.S. president Donald Trump had any immunity from
criminal prosecution of his involvement in the riot at the U.S. Capitol that
interrupted the formal counting by a joint session of Congress of the Electoral
College presidential ballots. The trial was set to begin the following March,
and the question of the former president’s immunity had to be decided before
the trial could begin. Hence the “extraordinary request,” which I contend
should not be extraordinary given the time frame and the important role of the highest
court in safeguarding American democracy from domestic threats. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">The prosecutor asked the U.S.
Supreme court to review district Judge Tanya Chutkan’s ruling that Donald Trump
is not immune from “the election subversion prosecution case.”<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 107%;">[1]</span></span><!--[endif]--></span></span>
Trump’s lawyers had argued that Trump’s actions in speaking outside the White House
on January 6, 2020 were part of his official duties because he was protecting
the American democratic system from alleged vote-fixing by Democrats. Chutkan
rejected that argument, pointing out that the speech was oriented to Trump’s
re-election and thus was not part of a president’s official duties—efforts to
secure another term extend beyond the performance of the office <i>within </i>the
current term of office. <span style="mso-spacerun: yes;"> </span>Essentially,
applying to continue in an office is not a function of the office. Chutkan classified
Trump’s speech as falling under the rubric of campaign speeches even though the
election had passed because he was using the speech to try be re-elected by
Congress (by disputing the authenticity of several state electoral ballots). <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">To be sure, it was not as if
Trump went with the option that he was considering of surrounding the Capitol
with tanks—something President Nixon had also considered doing in 1974 during the
Watergate scandal, which by the way ended up prompting him to resign. Instead,
Trump was trying to throw the election to the Congress by pressuring it to vote
on the validity of several of the Electoral College ballots that had been submitted
by the state governments to be counted. The U.S. Constitution does give
Congress a role in presidential elections, both in certifying the ballots and electing
a president outright if no candidate gets a majority of the Electoral College
votes. Had there been evidence of significant election fraud that would justify
Congressional votes on the Electoral College ballots from several key states
such as Arizona, Pennsylvania, and Michigan, then Congress could have intervened
while staying within the constitutional framework. It was Trump’s way of
applying pressure, by instigating a mob to disrupt the official counting, that resulted
in the federal indictments that run just short of insurrection. By the way, I
asked a judge on the D.C. district court why he thought Trump had not been
indicted on insurrection. “It’s too messy,” he replied. “Isn’t that charge and
a conviction based expressly on it necessary for someone to be barred from running
for office in the U.S.?” I asked. “No,” the judge replied. “A judge in Colorado
is looking at that now,” he added, presumably without there being a trial. It’s
a pity that no one asked the U.S. Supreme Court to rule on what a Colorado judge
was doing in lieu of a trial on the facts decided by a jury. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">Perhaps even more than the presumption
of innocence unless convicted of a crime, the rule of law applied even to U.S. presidents
is vital to American democracy. Writing to the U.S. Supreme Court, the
prosecutors with the special counsel insisted that “nothing could be more vital
to our democracy” than holding a former U.S. president accountable for breaking
a law.<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 107%;">[2]</span></span><!--[endif]--></span></span>
Indeed, a “cornerstone of our constitutional order is that no person is above
the law. The force of that principle is at its zenith where, as here, a grand jury
has accused a former president of committing federal crimes to subvert the
peaceful transfer of power to his lawfully elected successor.”<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 107%;">[3]</span></span><!--[endif]--></span></span>
Many democracies have turned into military dictatorships precisely because the
peaceful transfer of power was not respected. With a past of rule by kings,
both domestic and colonial, many African countries have had trouble with the
peaceful transfer of power. As a result, the foreign direct investment of multinational
corporations has not been as large as the continent would need to develop economically.
Even though it was hard to imagine a military coup in the U.S. in 2023, the precedent
of a president getting away with having violated the U.S. Constitution could begin
a slippery slope downward. More than sufficient grounds existed in 2023 for the
U.S. Supreme Court to fast-track the question of Trump’s immunity. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">The question of whether the trial
could go forward was subject to time constraints; were the trial date of March,
2024 delayed pending the question of Trump’s immunity from prosecution going through
the lengthy appellate process, the question of Trump’s guilt could still be unanswered
by the next presidential election, in early November, 2024. Even though several
presidential candidates were insisting that they would support a convicted
felon for president, presumably voters would want to know whether Trump had committed
a crime in attempting to thwart the results of the 2020 presidential election
before casting their respective ballots. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">Hence, the prosecutors wrote to
the U.S. Supreme Court, “Respondent’s appeal of the ruling rejecting his
immunity and related claims, however, suspends the trial of the charges against
him, scheduled to begin on March 4, 2024. . . . It is of imperative public
importance that respondent’s claims of immunity be resolved by this Court and
that respondent’s trial proceed as promptly as possible if his claim of
immunity is rejected.”<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 107%;">[4]</span></span><!--[endif]--></span></span>
The public importance has to do with the electorate having as much information
as possible concerning the charges against the presidential candidate before
going to the polls that upcoming November. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">The fast-tracking would not be
without precedent. In <i>US v. Nixon </i>(1974), the U.S. Supreme Court
fast-tracked the question of Nixon’s claim of presidential privilege in being
immune from a Congressional subpoena for the Oval Office tapes. “In that case,
the high court moved quickly to resolve the matter so that one f the
Watergate-era cases could proceed swiftly.”<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 107%;">[5]</span></span><!--[endif]--></span></span>
It was not long after the ruling that the White House handed over the tapes to
a congressional committee, and Nixon’s political fate was doomed from that
point. Indeed, the difference between Nixon’s public persona and what he had
been saying behind closed doors stunned many Americans who had no idea that even
a “law and order” president could have such a squalid criminal mind. The public
interest in furnishing the American electorate in 2024 with as much crucial
information as possible on one of the presidential candidates can thus be
appreciated. It should not be “extraordinary” for the U.S. Supreme Court to see
to it that Trump’s federal trial could take place in time for the 2024 presidential
election. Winding down the clock, to use a sports analogy, should not be a tactic
that any defendant in a criminal trial should be able to use effectively,
especially if accountability protecting the peaceful transfer of power is at
issue.</span></p><div style="mso-element: endnote-list;">
<hr align="left" size="1" width="33%" />
<!--[endif]-->
<div id="edn1" style="mso-element: endnote;">
<div>1. Hannah
Rabinowitz and Devan Cole, “<a href="https://www.cnn.com/2023/12/11/politics/special-counsel-trump-jack-smith/index.html"><span style="color: #783f04;">Special
Counsel goes Directly to Supreme Court to Resolve Whether Trump Has Immunity
from Prosecution</span></a>,” CNN.com, December 11, 2023.<br /> 2. Ibid.<br />3. Ibid.<br />4. Ibid.<br />5. Ibid.</div><p class="MsoEndnoteText"><o:p></o:p></p>
</div>
<div id="edn2" style="mso-element: endnote;">
<p class="MsoEndnoteText"><o:p></o:p></p>
</div>
<div id="edn3" style="mso-element: endnote;">
<p class="MsoEndnoteText"><o:p></o:p></p>
</div>
<div id="edn4" style="mso-element: endnote;">
<p class="MsoEndnoteText"><o:p></o:p></p>
</div>
</div><p></p>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-4824305580127150502023-12-07T13:02:00.000-08:002023-12-07T14:15:20.505-08:00U.S. Anti-Trust Law: Applicable to Amazon?<p style="text-align: justify;"></p><p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">In September, 2023, the Federal
Trade Commission and seventeen states sued Amazon on ant-trust grounds for
restraining trade and excessively raising prices on third-party sellers and consumers.
Three months later, a leaked internal memo revealed Amazon’s anti-labor
strategies of buying off local politicians and gaining reputational capital
through well-publicized charitable work. Such work, as an anti-union strategy, demonstrates
that the very expression, corporate social <i>responsibility</i>, is an oxymoron,
or at the very least a misnomer (i.e., misnamed); a more accurate, and thus <i>revealing</i>,
label would be corporate <i>marketing</i>. One effect of the “responsibility” connotation
is that companies such as Amazon with mammoth market power could effectively hide
strategic efforts in restraint of trade, and thus curtailing competition.
Combined with feckless anti-trust prosecution, the result is an American
economy that has not lived up to Adam Smith’s theory wherein competition via
the price mechanism is necessary for individual self-interests to have
beneficial unintended consequences systemically and thus in terms of the public
good.</span></p><p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">The civil case accused Amazon “of engaging in anti-competitive practices
through measures that deter sellers from offering lower prices for products on
non-Amazon sites.”<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 107%;">[1]</span></span><!--[endif]--></span></span>
Amazon was being accused of deprioritizing listings of products sold at lower
prices on non-Amazon sites, forcing merchants to raise their prices on Amazon’s
platform and other sites “in order to keep their products competitive on
Amazon.”<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 107%;">[2]</span></span><!--[endif]--></span></span>
The customers suffer as relevant results of searches are replaced by paid
advertisements that favor Amazon’s own brands. Also, the company was charging
third-party sellers nearly half of their total revenue as fees for using Amazon’s
platform, the result being higher prices for the consumers. The company was
also compelling the sellers to use the company’s logistics service in order to
qualify for Amazon Prime. With nearly 40 percent of the e-commerce market, Amazon
was allegedly flexing its muscle at the expense of competition. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">Yet the chairperson of the
Federal Trade Commission, Lina Khan, was not asking the court to break up the
mammoth company, preferring instead to limit herself to “liability.”<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 107%;">[3]</span></span><!--[endif]--></span></span>
I contend that such an avenue falls short as a vehicle for instituting a
competitive market. Firstly, a company with market power of nearly half of the
e-commerce market can be expected to use its muscle in restraint of trade even
while paying out liability claims because the oligopolistic excess-profits (akin
to “monopoly rents”) more than compensate for the (tax deductible) expenses. Secondly,
I submit that it is utterly unrealistic to suppose that a company with such
overwhelming market power will not use it merely because of external
disincentives such as civil fines. The use of “sticks” and even “carrots” to
get such a company to not act as a profit-maximizer comes up short because such
“motivating” tools are tertiary; they do not shake the fundamentals, whereby a
non-competitive market is <i>restructured </i>to be competitive and thus
composed of price-takers rather than a price-setter. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">It is worth expanding on the tactics
that an oligopolistic company can use to protect itself from extraneous
attempts to fundamentally change the market. We get a glimpse of Amazon’s “play
book” from an eight-page memo that reveals how one of America’s largest
companies “executes on its public relations objectives and attempts to curtail
reputational harm stemming from criticisms of its business. It also illustrates
how Amazon [sought] to methodically court local politicians and community
groups in order to push its interest in a region where [the company] could be hampered
by local moratoriums on warehouse development, and [where the company was]
facing resistance from environmental and labor activists.”<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 107%;">[4]</span></span><!--[endif]--></span></span>
Knowing the company’s tactics in Southern California can give us an insight
into how the company’s management blunts <i>federal </i>legislative action that
could break up Amazon itself in order to create a competitive playing field in
e-commerce. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">In a nutshell, Amazon’s strategy
was to create the illusion of on-going charity work and to pay off elected
government officials to, among other goals, resist unionization of the company’s
workforce and restrictions on where the company can build. Specifically, the
management “’cultivated’ Michael Vargas, the mayor of the town of Perris,
through pandemic-related donations” ostensibly to “support the region,” but
actually to buy off his support for new warehouse construction.<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 107%;">[5]</span></span><!--[endif]--></span></span>
This is proof that companies use money even aside from political campaign “donations”
to get elected representatives to affect public policy favorably to the
companies themselves. If this is so locally, we can be assured that companies
as large as Amazon wouldn’t withhold the tactic from being used to buy federal
lawmakers, whose power could include breaking up the company. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">In regard to Amazon’s corporate “social
responsibility” programs, the leaked document includes plans to have employees
drop off food to the Los Angeles Food Bank “in big media moments that are
broadcasted/posted.” The illusion of ongoing charitable work would of course
work to the company’s advantage in public relations. As the “memo suggested
curating similar moments during a back-to-school donation event and a [Christmas]
toy drive, where drop offs occur and Amazon executives, as well as groups who
receive grants from the company, ‘speak about Amazon’s impact” to the media
present, even as the company planned on cutting off groups that “did not result
in measurable positive impact,” charity was clearly viewed by Amazon’s managers
as a promotional tactic.<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 107%;">[6]</span></span><!--[endif]--></span></span>
The false societal image of a benevolent oligopolistic company could be
expected to shield governmental efforts to break up the company and perpetuate
the erroneous assumption that civil liabilities (i.e., verdicts against the
company) are enough to safeguard consumers because the company’s management is
benevolent. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">In conclusion, the Federal Trade
Commission shirked its governmental mandate to enforce the Sherman Antitrust
law from the onset of the litigation, thus hampering the ability of the judiciary
to order an effective remedy. In a large industry in which one company has 40
percent market share, and that company actively buys government officials and strategically
uses public relations, the danger is not just to competitive markets, but also
to American representative democracy and the rule of law itself. It is, I submit, no accident that the chairwoman of the FTC did not include breaking up Amazon as a remedy. We need only look at the company's strategially placed political contributions to surmise which elected officials might have put political pressure on the FTC. The company’s
memo reveals that Amazon uses its extraordinary wealth to bend
public policy away from the public good, like a black hole in space bends even space itself, to protect the company's viability by donating directly or indirectly to elected officials. I submit that plutocracy, rather than mob rule,
is the greatest threat to American democracy. <span style="mso-spacerun: yes;"> At the very least, private wealth knows how to protect itself politically, and even how to cover its tracks under the patina of corporate social responsibility.</span></span></p><div style="mso-element: endnote-list;">
<hr align="left" size="1" width="33%" />
<!--[endif]-->
<div id="edn1" style="mso-element: endnote;">
<div>1. Haleluya Hadero, “<a href="https://apnews.com/article/amazon-ftc-lawsuit-antitrust-1b91bf8026cc3edf81e817cf8596c4bf"><span style="color: #783f04;">Amazon
Sued by FTC and 17 States over Allegations It Inflates Online Prices and
Overcharges Sellers</span></a>,” APNews.com, September 26, 2023 (accessed December 7,
2023).<br />2. Ibid.<br />3. Ibid.<br />4. Haleluya
Hadero, “<a href="https://apnews.com/article/amazon-california-influence-warehouse-leaked-memo-557e58d92e8cb35cdfd45d47e1a61c3f"><span style="color: #783f04;">Amazon’s
Internal Plans to Advance Its Interests in California Are Laid Bare in Leaked
Memo</span></a>,” APNews.com, December 7, 2023.<br />5. Ibid.<br />6. Ibid, for the quoted material, which is both from the article and the memo
itself. </div><p class="MsoEndnoteText"><o:p></o:p></p>
</div>
<div id="edn2" style="mso-element: endnote;">
<p class="MsoEndnoteText"><o:p></o:p></p>
</div>
<div id="edn3" style="mso-element: endnote;">
<p class="MsoEndnoteText"><o:p></o:p></p>
</div>
<div id="edn4" style="mso-element: endnote;">
<p class="MsoEndnoteText"><o:p></o:p></p>
</div>
<div id="edn5" style="mso-element: endnote;">
<p class="MsoEndnoteText"><o:p></o:p></p>
</div>
<div id="edn6" style="mso-element: endnote;">
<p class="MsoEndnoteText"><o:p></o:p></p>
</div>
</div><br /><p></p>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-57266316004781052092023-09-04T12:34:00.003-07:002023-09-04T16:48:31.076-07:00On Trump’s Eligibility to Run for President: Who Decides?<p></p><p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">The 14<sup>th</sup> Amendment of
the U.S. Constitution “bans anyone who took an oath to uphold the Constitution
but who subsequently ‘engaged in insurrection or rebellion against,’ or gave
‘aid or comfort of the enemies’ of the Constitution from seeking any federal or
state office.”<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span face="Calibri, sans-serif" style="line-height: 107%;">[1]</span></span><!--[endif]--></span></span>
Did Donald Trump, when he was President of the United States, engage in
insurrection? Furthermore, who decides this and bars him from office? <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">During the summer of 2023,
lawyers opined on whether Don Trump is eligible to run for the U.S. presidency
in 2024. It is one thing for lawyers on law-school faculties to decide whether
Donald Trump, a former U.S. President as of 2023, is ineligible to run for
president in 2024; it is quite another thing for the U.S. Supreme Court to make
the determination; only the latter has governmental legitimacy that can legally
be enforced, for the U.S. Constitution gives the federal supreme court the task
of interpreting that constitution. In this case, the high court would be in the
position of making decisions of fact—did Trump engage in an insurrection—and
applying that decision to the 14<sup>th</sup> Amendment. “The question of
Donald Trump’s disqualification under the 14<sup>th</sup> Amendment will be
decided by the Supreme Court,” Michael Luttig, a conservative former federal
appellate judge said in 2023.<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span face="Calibri, sans-serif" style="line-height: 107%;">[2]</span></span><!--[endif]--></span></span>
Aside from the prediction, I contend that it should be.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">The comment made by Luttig, who
had actually been a judge, didn’t stop lawyers who teach at law schools from
writing as if their own opinion were enough to render the former president
ineligible to run for president. Just because someone ventures an opinion does
not make it so. Even lawyers who specialize on writing in the field of
constitutional law are, after all, merely private citizens like the rest of us.
Of course, they, along with the rest of the American electorate, could decide indirectly
through voting for or against Don Trump on the basis of determinations of
whether he engaged in an insurrection. There are several problems with this
method. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">First, the voters would need to
know how the framers used the word, <i>insurrection</i>, assuming an original
intent hermeneutic, or else what the word means in its <i>legal </i>sense in
2023. The electorate would also have to “research”—and some potential voters
put me off when I canvassed door to door by saying that they needed to <i>research
</i>the candidates (yeah, right)—the Trumps various actions that could be
considered to be insurrectionist: urging a crowd to pressure Congress on
January 6, 2020 when it was counting the states’ respective ballots of
electors, telling Vice President Pence that he had the authority to substitute
slates of Trump electors in Arizona, Georgia, and other states, pressuring
election officials in Georgia to “find” votes so Trump would win the state, and
considering the use of the military on the capitol so Congress would use his
slates of electors in states that he lost. Thomas Jefferson and John Adams
agreed in retirement that an educated and virtuous citizenry is essential to
the viability of a republic. They are also necessary for an electorate to apply
constitutional vigor even to a candidate whom some voters like. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">Secondly, letting the voters
decide cannot keep Trump off any ballot prior to the election, not to mention
prior to the Republican Party’s nomination process, because an election is the
means by which voters would decide Trump’s fate. Former New Jersey governor
Chris Kristy’s assertion, “The voters of our party are going to need to
determine this question,” is neither competent nor fair to the Republic Party.
An election before the election might be feasible, but then perhaps the first
election would then de facto be the presidential election itself.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">Deciding the matter by whatever
means after the Republican Party’s convention would not be fair to the party.
If election officials or a court later decide that Trump is ineligible, the
party would suddenly be left, after its convention, without a nominee for
president.<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span face="Calibri, sans-serif" style="line-height: 107%;">[3]</span></span><!--[endif]--></span></span>
Because the U.S. Supreme Court “keeps its own schedule and is not bound by
electoral deadlines, there exists the possibility that Trump could lock down
enough delegates to win the Republican nomination—or even be officially
nominated—only to be subsequently removed from the presidential ballot.”<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span face="Calibri, sans-serif" style="line-height: 107%;">[4]</span></span><!--[endif]--></span></span>
Perhaps in such a case the Republican National Committee would be tasked with
selecting the nominee, opening the door to the possibility of “back room”
political deal-making and even bribes. That rather undemocratic consequence
would be ironic if the people had been the deciders in a special election or
referendum. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">So, leaving the matter up to the
voters is problematic; the matter of a nominee could ironically be decided by
committee. That leaves us with either election officials acting independently
of each other or all together, or the U.S. Supreme Court justices to decide.
Just because some citizens claim that Trump is ineligible to run for office
does not make it so. That almost all lawyers teaching constitutional law in the
United States have only one—hence undergraduate—degree in law is all the more
reason why their writings should not be taken as binding for election
officials. Even if “the case is not even close,” as William Baude and Michael
Paulsen wrote, it is not necessarily the case that, “All who are committed to
the Constitution should take note and say so.”<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span face="Calibri, sans-serif" style="line-height: 107%;">[5]</span></span><!--[endif]--></span></span>
Not only are articles in law reviews, whose editors are undergraduate law
students, not objective analysis at least in constitutional law; such writings
can be deemed political, and even instances of political activism claiming that
readers <i>should </i>take action of a political sort. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">But should election officials of
local, state, or federal jurisdiction be the deciders? I contend that they
should not. Firstly, if even just a few officials at the local or state level
decide to exclude Don Trump, then the judgment in favor of Trump by other
election officials would be impaired because he would not be on the ballot in
every locale or state. It would be extra-constitutional (i.e., outside of the constitution)
should all of the officials in the U.S. vote on whether to exclude him, for all
of the officials, as a group, are not organized as a group constitutionally.
Secondly, election officials do not necessarily have expertise on what exactly
constitutes insurrection. Thirdly, they would inevitably be sued, whatever they
decide, so the U.S. Supreme Court would be the final decider anyway. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">An alternative way that the high
court could wind up deciding on Trump’s eligibility would be deciding the inevitable
appeal that would be made if Trump will have been found guilty of insurrection
by a jury. It is significant that Trump had not been indicted on the charge of
insurrection even though 91 charges were leveled against him as of August,
2023. Presumably Jack Smith, a Special Council in the U.S. Justice Department,
would have charged the former president with insurrection had evidence existed
to support that particular charge. Unlike the lawyers who teach in law schools,
Smith had a formal means—a grand jury and a court with a judge—to make the
charge, and he did not. Smith also had access to the evidence, which lawyers in
law schools did not have. So, it is odd that the lawyers who claimed that Trump
had engaged in an insurrection did so knowing that Smith had decided not to
level that charge. Even stranger would be such a lawyer presuming that one’s
opinion, whether in an interview or argued in an article in a law school’s
undergraduate publication, is sufficient for election officials to keep Trump
off their respective ballots. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">In short, it could be argued that
because Trump has not even been charged with insurrection, he cannot be found
to be ineligible for office based on insurrectionist activities. It could also
be argued, however, that the inclusion of <i>insurrection </i>in the 14<sup>th</sup>
Amendment is a political rather than a judicial matter. Under this reading,
Congress could pass a law—rather than using the word insurrection for January 6<sup>th</sup>
in an award given to three Capitol Hill police employees—declaring that Trump
engaged in an insurrection, and the high court would decide the inevitable
constitutional challenge in court. But unlike impeaching and removing a
president from office, no constitutional language supports applying the
political process of how a bill becomes law. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">Of all the chatter by experts and
non-experts alike, the fact that Jack Smith did not charge Don Trump with
having engaged in an insurrection is most salient to me in this case. To be
sure, the U.S. Supreme Court justices could find that if he is found guilty of
any of the existing charges bearing on January 6<sup>, </sup>2020, pressuring
Georgian officials to “find” votes, or instigating false slates of electors in
a few states, that they constitute insurrectionist activities.<span style="mso-spacerun: yes;"> </span>The “finding” of votes, such as probably
happened in Chicago in 1960 for Kennedy, constitutes garden-variety corruption
in American politics, however. Even so, the justices could find on their own
that Trump is guilty of fomenting or agitating an insurrection. The justices
would need a suit to be brought to the court, however. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">The legitimacy of the court as
the final arbiter hinges on the nonpartisan nature of a judicial ruling that is
based on legal reasoning. Unfortunately, the U.S. Supreme Court had its
legitimacy tarnished by imprints of politics. In 2023, the media reported that
Justice Sandra Day O’Conner had written the majority opinion of <i>Bush v. Gore
</i>(2000)—the case that effectively handed the presidency to George H.W.
Bush—before even the oral arguments. She had been a Republican legislator in
the Arizona legislature. In signing onto the court’s majority opinion in <i>Dodds
v. Jackson </i>(2022), which overturned both <i>Roe v Wade </i>(1973) and <i>Planned
Parenthood v. Casey </i>(1992), some of the justices reneged on their
confirmation-hearing statements that they would respect <i>Roe v. Wade </i>as
precedent on abortion. All of those justices had been nominated by Republican
presidents. In this context, the court’s ruling on whether Don Trump is ineligible
to run for president would likely be seen as political, especially if the majority
were to hold that he is ineligible even though the Special Counsel had not
included insurrection among the charges bearing on the riot at the Capitol on January
6, 2020. The need for an impartial, judicially-oriented supreme court could not
be more; in fact, the eventual undoing of the United States might be triggered
by the absence of any such honest broker outside the reach of political
factions.</span></p><div style="mso-element: endnote-list;">
<hr align="left" size="1" width="33%" />
<!--[endif]-->
<div id="edn1" style="mso-element: endnote;">
<div style="text-align: left;"><span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><span class="MsoEndnoteReference"><span face=""Calibri",sans-serif" style="font-size: 10pt; line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">[1]</span></span><!--[endif]--></span></span>
S.V. Date, “<a href="https://www.huffpost.com/entry/trump-14th-amendment-supreme-court_n_64f26082e4b02f61505e9b36"><span style="color: #783f04;">Trump
May Need Supreme Court To Say His Coup Attempt Does Not Violate Constitution</span></a>,”
<i>The Huffington Post</i>, September 2, 2023.<br /><span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><span class="MsoEndnoteReference"><span face=""Calibri",sans-serif" style="font-size: 10pt; line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">[2]</span></span><!--[endif]--></span></span>
Ibid.<br /><span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><span class="MsoEndnoteReference"><span face=""Calibri",sans-serif" style="font-size: 10pt; line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">[3]</span></span><!--[endif]--></span></span>
Ibid.<br /><span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><span class="MsoEndnoteReference"><span face=""Calibri",sans-serif" style="font-size: 10pt; line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">[4]</span></span><!--[endif]--></span></span>
Ibid.<br /><span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><span class="MsoEndnoteReference"><span face=""Calibri",sans-serif" style="font-size: 10pt; line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">[5]</span></span><!--[endif]--></span></span>
Ibid.</div><p class="MsoEndnoteText"><o:p></o:p></p>
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</div><br /><p></p>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-44722868331958239372023-07-15T14:45:00.009-07:002023-07-17T13:54:54.235-07:00The Screen Actors Guild Strike: American Capitalism Is Inherently Unbalanced<p></p><p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">On July 14, 2023, Hollywood actors joined the writers in going on strike against the studios, which had changed the business model in ways, according to the Screen Actors Guild (SAG), that were leaving the vast majority of actors out financially. At the time, AI (artificial intelligence) was the red-hot buzzword, promising unheard of advances but also baleful clouds on the horizon. The president of SAG sounded the alarm on not only the threat of AI given the studios' new business models predicated on ubiquitous streaming and digital technology, but also the more long-standing and ingrained American corporate system of Capitalism wherein upper managements get away with not sharing the surplus of corporate wealth due to an inherent or institutional conflict of interest. Indeed, Fran Drescher, the president of SAG, was not far from calling into question the taken-for-granted assumption in Capitalism that residual profits should go to stockholders exclusive. Questioning that default (as well as claiming that CEOs get to set their own compensation by controlling their respective boards of directors) would have made Drescher's announcement of a strike truly revolutionary. She was so close. </span></p><p class="MsoNormal" style="text-align: justify;"><span style="font-family: times;"><span style="font-size: large;">Regarding AI, even Drescher's position can be perceived as short-sighted even though it was an improvement on the studios' new business model. The ability of studios to use the likenesses (images) of actors who have been bodily scanned (creepy) in one project for use as computer-generated “acting” in future movies in which the actors themselves are neither compensated nor participate was among the issues to be arbitrated in which the studios and SAG were far apart. To an actor, the loss of control over one’s image can complicate or even detract from one’s efforts to construct a public image. To be sure, not being paid for such extended likenesses being used was noxious to the actors even though no additional work on their part would be required. This just means, however, that royalties, or residuals, rather than pay for the use of the images would be appropriate, and thus fair. Furthermore, rather than being able to pressure actors on a project to agree to their respective likenesses being used in perpetuity, studios should be required to get permission for the specific uses (rather than a general permission) at the time of each future project. Actors would not feel that they might lose their existing work if they refuse to give a general permission in perpetuity. Even such an arrangement, incorporated into the studios' new business models, might not last long. A student of AI suggested to me that just as non-profit organizations have open-source libraries of written works, such organizations in the film industry might make available, royalty-free, images of volunteers that start-up film companies, students, and even Hollywood studios could use. Extras, or background actors, could conceivably be used only in shots in which mere images won't do. </span></span></p><p class="MsoNormal" style="text-align: justify;"><span style="font-family: times;"><span style="font-size: large;">Of greater significance, SAG’s position extended to challenge a basic tenet of Capitalism itself. Were the strike a true inflection point, as Fran Drescher, the president of SAG claimed, the union had an opportunity to make the dogmatic, or arbitrary, tenet transparent if for no other reason that Drescher was aware and critical of the long-held assumption that had long before become embedded as a “necessary” plank in the economic system.</span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">I contend that it is arbitrary to
set the owners of a corporation as the receivers of the residual from the
surplus of revenues over expenditures (i.e., profit), whereas banks and labor
get only a fixed amount classified as expenses. All three groups can be thought
of as providing inputs, or resources, that a management can use to make a
profit. From this perspective, it seems arbitrary to say that only one of the
group has a right to the residuals from the profits. The philosopher John Locke
claimed that a person “mixing” one’s labor with land gives rise to a property
right on said land. Centuries later, the U.S. Supreme Court ruled that a maker
of wedding web-sites could refuse to have same-sex couples as clients because
she had expressed herself in her work. It seems rather obvious that
screenwriters and actors are also in an expressive profession. In “mixing”
their self-expressive labor in a film, writers and actors can be said to have
an ownership interest in what is typically referred to as <i>art. </i>Painters,
after all, sign their paintings. It is possible that the writers and actors of
a film have <i>more </i>of a claim on the profits than do the studios. In
depicting the strike as occurring at an “inflection point,” the president of
SAG had the opportunity to make such a claim, thus challenging the monopoly on
profits hitherto enjoyed by the owners of the studios. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">In announcing the strike in 2023,
Drescher called attention to the large gap in compensation between the CEO’s of
the studios and 99% of the members of the SAG union who were struggling
financially. To be sure, the inclusion of “extras,” or background non-speaking
roles that are on a per-project pay basis, means that the 99 percent were not
depending on acting as a full-time job. Even so, the astounding pay of “A-list”
movie actors may give people outside of the industry the misimpression that
acting constitutes a wealthy profession. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">The impression left by films
grossing hundreds of millions of dollars that studios are wealthy is more
accurate. The studios plead poverty, the SAG president exclaimed in
astonishment, and yet somehow they have the money to pay tens of millions of
dollars to their CEOs. In fiscal 2022, for example, the CEO of Disney made $24
million just before the company laid off 7,000 employees.<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span face="Calibri, sans-serif" style="line-height: 107%;">[1]</span></span><!--[endif]--></span></span>
Drescher could have added that Netflix co-CEOs earned $43.2 million and $39.3
million in 2020—when the company raised the monthly price of its subscription.<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span face="Calibri, sans-serif" style="line-height: 107%;">[2]</span></span><!--[endif]--></span></span>
Doubtless the management claimed that the company had no choice but charge
customers more. It is interesting that managements can so easily put their
companies in convenient straightjackets. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">The union president must have
sensed an opportunity to challenge the greed of American CEOs more generally as
evinced in the increasing inequality between their compensation and the average
of their respective workforces. “High seven figures, eight figures, this is
crazy money that they make,” she said.<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span face="Calibri, sans-serif" style="line-height: 107%;">[3]</span></span><!--[endif]--></span></span>
Implying that a basic shift in wealth distribution between upper managements
and workers was justified, she stated, “What’s happening to us is happening
across all fields of labor. . . . When employers make Wall Street and greed
their priority, and they forget about the essential contributors that make the
machine run, we have a problem.”<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span face="Calibri, sans-serif" style="line-height: 107%;">[4]</span></span><!--[endif]--></span></span>
A basic problem in the American system of Capitalism. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">The ratio of CEO compensation to
that of the average worker in the U.S. in 2020 was 299.<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span face="Calibri, sans-serif" style="line-height: 107%;">[5]</span></span><!--[endif]--></span></span>
Just one year later, the ratio was nearly 400, according to <a href="https://www.statista.com/statistics/261463/ceo-to-worker-compensation-ratio-of-top-firms-in-the-us/"><span style="color: #783f04;">Statista</span></a>.
Even as the coronavirus shuttered or hampered many businesses, which meant mass
layoffs, CEOs made out well nonetheless. Some CEOs made a thousand times that
of the average worker. The annual ratios in the E.U. were much lower than in
the U.S. That CEOs of American corporations had typically reached complete
control of their respective boards of directors, which are technically to function
in part as a check on their managements, presents not only accountability
issues more generally, but also a situation in which the CEOs can set their own
compensation and that of their managerial cadres. At one major corporation in
2023, the stockholders voted to deny the management’s proposed compensation
package. Astonishingly, the resolution was nonbinding and the board approved
the package anyway. This points to the existence of a major structural flaw in
corporate governance in the U.S. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;">In pointing to the greed of CEOs
of American companies in general, Drescher expanded her union’s agenda beyond
the immediate financial interest of the members. She was making a societal
contribution in claiming that the huge disparity of wealth between managements and
workers was by then so large that an inflection point had been reached wherein
SAG would try to set an example for other unions to follow in objecting to the
arbitrary feature of American Capitalism wherein CEOs do not have to share the surplus of corporate wealth. She could have gone a step further by taking the opportunity to
question the underlying assumption that stockholders should get the residual of
profits that are not retained or invested. Even though the business model of
studios had changed due to AI, the greed of American CEOs and their ability to
set their own compensation packages had existed for some time and was finally
too much for workers to take. That is to say, it was time for an enduring yet
arbitrary (rather than necessary) aspect of American Capitalism to be changed.
The system had been broken for some time, and the advent of AI meant that the
harm would soon become even more unbearable.</span></p><div style="mso-element: endnote-list;">
<hr align="left" size="1" width="33%" />
<!--[endif]-->
<div id="edn1" style="mso-element: endnote;">
<div style="text-align: left;"><span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><span class="MsoEndnoteReference"><span face=""Calibri",sans-serif" style="font-size: 10pt; line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">[1]</span></span><!--[endif]--></span></span> <a name="_Hlk140332585">Samantha Bergeson, “</a><a href="https://www.indiewire.com/news/general-news/fran-drescher-bob-iger-sag-aftra-strike-1234884547/"><span style="mso-bookmark: _Hlk140332585;"><span style="color: #783f04;">Fran Drescher Blasts Bob Iger’s Strike
Comments: ‘I Would Lock Him Behind Doors</span></span></a><span style="mso-bookmark: _Hlk140332585;">,’” <i>IndyWire</i>, July 14, 2023.<br /> </span><span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><span class="MsoEndnoteReference"><span face=""Calibri",sans-serif" style="font-size: 10pt; line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">[2]</span></span><!--[endif]--></span></span> Todd
Spangler, “<a href="https://variety.com/2021/digital/news/netflix-ted-sarandos-reed-hastings-compensation-1235141685/"><span style="color: #783f04;">Netflix’s
Ted Sarandos to Earn $40 Million in 2022, Read Hastings Pay to Top $34 Million</span></a>,”
<i>Variety</i>, December 31, 2021.<br /><span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><span class="MsoEndnoteReference"><span face=""Calibri",sans-serif" style="font-size: 10pt; line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">[3]</span></span><!--[endif]--></span></span>
Bergeson, “<a href="https://www.indiewire.com/news/general-news/fran-drescher-bob-iger-sag-aftra-strike-1234884547/"><span style="color: #783f04;">Fran
Drescher Blasts Bob Iger’s Strike Comments: ‘I Would Lock Him Behind Doors</span></a>.’”<br /><span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><span class="MsoEndnoteReference"><span face=""Calibri",sans-serif" style="font-size: 10pt; line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">[4]</span></span><!--[endif]--></span></span>
Ibid.<br /><span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><span class="MsoEndnoteReference"><span face=""Calibri",sans-serif" style="font-size: 10pt; line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">[5]</span></span><!--[endif]--></span></span>
Moira Ritter, “<span style="color: #783f04;"><a href="https://www.cnn.com/2021/07/14/investing/ceo-employee-pay-afl-cio-report/index.html"><span style="color: #783f04;">CEOs
Made 299 Times More Than Their Average Workers Last Year</span></a>,</span>” CNN.com, July
15, 2021.</div><p class="MsoEndnoteText"><o:p></o:p></p>
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</div><br /><p></p>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-62319142984463771702023-06-30T14:48:00.006-07:002023-07-03T13:38:31.303-07:00The U.S. Supreme Court: Free Speech Trumps Public Accommodations Law<p style="text-align: justify;"></p><p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">I contend as a matter of reasoned
opinion rather than infallible fact that the Free Speech protection in the U.S.
Constitution applies to not only human beings, rather than to non-human legal “persons”
(e.g., corporations), but also to speech where the purpose is speech rather
than something else. I have written elsewhere on the mistake in treating corporations
as if they were human beings, so I treat only the second claim here. <o:p></o:p></span><span style="font-family: times;"><span style="font-size: large;">I reference the first claim only as context for my broader claim that the U.S. Supreme Court has tended to over-extend applications of the free-speech clause not only beyond its original intent, but also common sense. The latter violation is particularly astonishing. </span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">That clause, I submit, is
oriented to forbidding the state from blocking or punishing what a person would
otherwise say or write. The state compelling speech is a different matter,
though that too ought to be prohibited in a free society. Also, where the
purpose is business, standing up to the state in what a person says or writes
is yet another matter. So if I open a business that sells ice-cream, for instance,
I would be mistaken were I to view having chocolate ice-cream as a matter of
free speech. I would not be selling chocolate ice-cream in order to say something,
but to <i>sell a product</i>. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">In <i>Creative LLC v Elenis</i>
(2023), the U.S. Supreme Court decides in favor of an evangelical Christian
whose business includes web-page design for weddings. She maintained that her
religious belief against gay marriage should be an exception to the state’s
public accommodations law, which bars discrimination against a protected class.
Colorado, on the other hand, “argued that its Anti-Discrimination Act regulates
sales, not speech, to ensure ‘equal access and equal dignity.’”<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 107%;">[1]</span></span><!--[endif]--></span></span>
In other words, making and selling a product (or service) in order to profit
financially is not speech. </span></p><p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">So Gorsuch, who wrote for the majority, incorrectly refers
to “speech like Ms. Smith’s conveyed over the internet.”<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 107%;">[2]</span></span><!--[endif]--></span></span>
At the very least, it is misleading to characterize Smith as conveying speech on
the internet, for her purpose and the contours of her activity was to make and
sell a product. She was not posting essays, for instance, or constructing her
own website (her company’s website too was oriented to selling products rather
than conveying “speech”). For a bit of context, the Russian bloggers posting
essays online on the Ukraine war at the time would have shaken their heads in
disbelief had someone told them that the website of a business engaged in
selling products is really about speech rather than business. Even Target, an
American retail company, did not put gay Pride flags for sale on the company’s
website to make a statement; rather, the company was selling a product. Were
the company making a political or ideological statement by adding gay Pride
colors to the website, then that would fall under free speech. Smith was not
making a political or ideological <i>statement</i>; rather, she was selling a product—webpages
for weddings. <o:p></o:p></span></p><p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">Gorsuch attempts to hold the ruling back from enveloping business in its entirety by carving out the production of a product that is "expressive" of the person who makes the product. But a web-page is not a piece of art unless that is the purpose. Also, virtually any product could be said to be "expressive," for product-design itself expresses the work of a designer. Put another way, Smith's own personal website, or even the website of of her business, can be said to express herself in a way qualitatively different from the websites she makes for clients. Gorsuch conflates the two and thus ignores the distinction. He thus unwittingly set up a slippery slope by which virtually anyone in business can obviate public-accommodations law simply by arguing that one's work expresses oneself in some way. Locke, after all, argues that a person <i>mixing</i> one's labor with a piece of land is sufficient to turn it into private property. </span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">The real tension associated with
public-accommodations law is not free-speech; rather, the right of private
property is that which is circumscribed by the government mandating that
protected classes be served. Smith could have argued that her business’s niche
was Biblically-based weddings, based on the fact that the business was her private
property. For she was using her property for productive rather than speech
purposes, and the substance of her enterprise was making and selling products
rather than publishing speeches or essays, or even making a political or
ideological statement. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">Public accommodations law is not
absolute. A store manager of a Starbucks coffeeshop had demonstrated this in having
two people removed because they had refused to purchase anything and then ignored
the manager’s authority, which in turn is rooted in the right of private property.
That those two people were of the Black race is besides the point; <i>anyone</i>,
protected class or not,<i> </i>who sits at a table in a restaurant but refuses
to order anything is subject to the right of private property. Insecure,
Starbucks’ upper management capitulated to the unfair criticism by showing the
public that the company could discriminate against Caucasian employees,
including a regional manager, who had won her case in court less than a month
before the Supreme Court’s decision on “free speech.”<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">Unfortunately, the dissenting
opinion of the court obsesses over discrimination, and President Biden said the
court’s decision was unthinkable. The opposition missed an opportunity to point
to the jurisprudential mistake in the majority opinion, wherein selling a
product is itself characterized as free speech. This rather basic category
mistake was missing from the dissent, given the salience of ideology on the
court, which in turn is another problem. <span style="mso-spacerun: yes;"> </span>I submit that public discourse in the U.S. too
often skirts or overlooks underlying problems, while obsessing on flash-point
ideological agendas. I write in large part to uncover <i>depth</i> such that it
might be more highly valued and sought after. </span><o:p></o:p></p>
<div style="mso-element: endnote-list;"><!--[if !supportEndnotes]--><br clear="all" />
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<div id="edn1" style="mso-element: endnote;">
<p class="MsoEndnoteText"><span face="Calibri, sans-serif"><span style="font-size: 13.3333px;">1.</span></span> Andrew Chung, “<a href="https://www.reuters.com/legal/us-supreme-court-rule-web-designer-with-anti-gay-marriage-stance-2023-06-30/#:~:text=The%20justices%20ruled%206%2D3,a%20Colorado%20anti%2Ddiscrimination%20law."><span style="color: #783f04;">US
Supreme Court Deals Blow to LGBT Rights in Web Designer Case</span></a>,” <i>Reuters</i>,
June 30, 2023.<o:p></o:p></p>
</div>
<div id="edn2" style="mso-element: endnote;">
<p class="MsoEndnoteText"><span face="Calibri, sans-serif"><span style="font-size: 13.3333px;">2.</span></span> Ariane de Vogue and Devan Cole, “<a href="https://www.cnn.com/2023/06/30/politics/supreme-court-303-creative-lgbtq-rights-colorado/index.html"><span style="color: #783f04;">Supreme
Court Limits LGBTQ protections with Ruling in Favor of Christian Web Designer</span></a>,”
CNN.com, June 30, 2023 (accessed same day). <o:p></o:p></p>
</div>
</div><br /><p></p>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-6502803352670192842023-06-22T11:08:00.003-07:002023-11-18T13:21:22.438-08:00Pittsburgh Businesses Encroach on Public Property with Impunity<p style="text-align: justify;"></p><p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">Private property, competition,
and the market-mechanism have come to be assumed to be integral to the economic
system of Capitalism. The assumption that this cluster of attributes is
necessary is faulty though, as, for example, the state can own some or all of
the “means of production” (i.e., firms) that are subject to market competition,
especially if privately-owned enterprises also exist. China had a mix of
private and state-owned enterprises compete in several industries when the
state opened the economy to competitive forces setting supply and demand. In
Wisconsin, the Green Bay Packers, an NFL football team, is owned by the
residents of that city, such ownership being Socialism, and yet that team has
competed not only to win, but also in the hiring of players and managers. A
competitive market does not require that the property of the means of
production be privately owned. Even in the case of private ownership of
companies, the widely accepted custom wherein the owners receive the residual
profits after expenses is dogmatic in the sense of being arbitrary.
Alternatively, creditors or employees/managers could receive any excess revenue
after expenses have been paid. In short, Capitalism as it has come to be known
and exercised is more arbitrary than capitalists may realize. Even the
taken-for-granted distinction between public and private property is not as
stark as may be typically supposed. This is no excuse, however, for businesses
that knowingly encroach on public property as if it were their own private
property. A Capitalist economic system predicated on private property may
contain not only the seed of monopoly, as Marx claimed, but also a tendency of
private enterprises to over-reach on the public domain. If so, government has a
responsibility to prune back the overweening tentacles. Two examples make this point. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: center;"></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhF6cUcG_fkUENrq_WtMvbVxJ0Zh3J1jIrMnqlHIHKdcNjSXX-_De73tfVep6gHNyrJ1Mveh6g-hQn6csg3eSrB3dNQdI7aoHnBjfGhyeU5c_CwXDJZ-W0cGOoQfVg5pDT86dJC5qrV3jqJvFuszwdu8cS1bnPsqnHvFyKgjD4daII24HS5PnF2rxPwTpc/s4160/restaurant%20on%20public%20property.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="4160" data-original-width="3120" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhF6cUcG_fkUENrq_WtMvbVxJ0Zh3J1jIrMnqlHIHKdcNjSXX-_De73tfVep6gHNyrJ1Mveh6g-hQn6csg3eSrB3dNQdI7aoHnBjfGhyeU5c_CwXDJZ-W0cGOoQfVg5pDT86dJC5qrV3jqJvFuszwdu8cS1bnPsqnHvFyKgjD4daII24HS5PnF2rxPwTpc/s320/restaurant%20on%20public%20property.jpg" width="240" /></a></div><p></p><p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">Once while walking on a narrow
sidewalk, I glanced down at my phone and was instantly startled as I ran into
and tumbled over a metal chair in the middle of the sidewalk. A restaurant’s
employees had set up tables on the side of the sidewalk with chairs out into
the middle of the sidewalk, and a bit beyond a table had been placed in the
middle of the sidewalk, with a potted plant placed making it even more
difficult to navigate around the tables and chairs. Who would want to eat in
the middle of a sidewalk, with people passing by at close range? The manager of
that restaurant was guilty not only of missing this rather basic point, but
also of the incredible presumption that the public sidewalk was essentially
part of the business’s private property, which astonishingly placed the public
at a disadvantage <i>on public property</i>! <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">A month earlier, I had called the
zoning department of the city. I had been assured that a restaurant cannot
obstruct a sidewalk. However, the city then failed to act, perhaps capitulating
to the business interest (and wealth). So, after I nearly fell from running
into the chair, I called the city again. The employee who answered insisted that the
city gives permits allowing businesses to permanently block or obstruct public
sidewalks. So, I called again and spoke with another person who had more of a
sympathetic ear when I explained that I had almost fallen, and that a hazard exists because numerous
pedestrians walk into the street because of the obstruction. Two weeks later, with Franks Bar and Grill still interlarding on public property, I left a phone message for the code enforcement person. Two weeks after that, as the photo below demonstrates, the restaurant was still blocking the sidewalk. </span></p><p class="MsoNormal" style="text-align: center;"></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhbEId-jQDFeFgJv6UN0icvbPiKdppK1PviDaIJEiO4fUS-cMEXvkZwtKzl60dwortt1whcVUh_U7Y0baqJzeNZUANUw3lWrCDeULudMKahLd3klffNcp6sLE2QT_X4ruH1uNOYDItql39yigqJLSDa-FnjEfocY0ZoK5VtAPyRqqJTyyLkOk7nTsmsoA8/s4160/Franks%20bar%20and%20grill%20pittsburgh%20July%208%202023.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><span style="font-size: large;"><img border="0" data-original-height="4160" data-original-width="3120" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhbEId-jQDFeFgJv6UN0icvbPiKdppK1PviDaIJEiO4fUS-cMEXvkZwtKzl60dwortt1whcVUh_U7Y0baqJzeNZUANUw3lWrCDeULudMKahLd3klffNcp6sLE2QT_X4ruH1uNOYDItql39yigqJLSDa-FnjEfocY0ZoK5VtAPyRqqJTyyLkOk7nTsmsoA8/s320/Franks%20bar%20and%20grill%20pittsburgh%20July%208%202023.jpg" width="240" /></span></a></div><p></p><p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">I know that the city had opened an investigations months earlier, so I surmise that the restaurant's owner or manager knew of the complaints and dismissed them. Additionally, I suspect that the city of Pittsburgh had bowed to the business interest at the expense of the public good. This is as much of a problem as is the presumptuousness and dismissiveness of a business that can take advantage of a corrupt municipal government.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;"><span style="font-family: times;">Another example of companies encroaching on public "space" is the overreaching of security guards and private police employees presuming that their turf extends beyond a company's private property. When I lived temporarily in Pittsburgh, </span><span style="font-family: times;">while I was walking on
a public sidewalk along a hospital that was part of the University of
Pittsburgh, I stopped at a food-truck only to realize that a security guard was
perched on a small hill from which he seemed to have been presumptuously
patrolling the sidewalk. In the distance was another security guard. </span></span></p><p class="MsoNormal" style="text-align: justify;"></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhD2sZAkwxTSTzU4sII80CJgyVz6HuzY6xttMzmcStP3Rxmya1BRWm9CrEyiI7GXKo3ed3I2f8qGkPzYWEKDwT5qBeb77RJzggmQD23-mcv_YMS2WFGgPjJM_lUG-W5ZH9Xut7Kspcm-cB3ui2dedXSPghMps9CEdCtU885Bq4TRS525C-BlGxqkhDRsMg/s4160/UPMC%20security%20guard%20patroling%20public%20sidewalk1.jpg" style="margin-left: 1em; margin-right: 1em;"><span style="font-size: large;"><img border="0" data-original-height="4160" data-original-width="3120" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhD2sZAkwxTSTzU4sII80CJgyVz6HuzY6xttMzmcStP3Rxmya1BRWm9CrEyiI7GXKo3ed3I2f8qGkPzYWEKDwT5qBeb77RJzggmQD23-mcv_YMS2WFGgPjJM_lUG-W5ZH9Xut7Kspcm-cB3ui2dedXSPghMps9CEdCtU885Bq4TRS525C-BlGxqkhDRsMg/s320/UPMC%20security%20guard%20patroling%20public%20sidewalk1.jpg" width="240" /></span></a></div><p></p><p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;"><span style="font-family: times;">Initially, I thought he was in line to order food from the food truck as I was. So I held back. Strangely, he likely viewed my standing position with suspicion, or, more likely, dislike as I was looking generally in his direction. Not all subtle, </span><span style="font-family: times;">he strategically walked past me up close and stopped further along on the sidewalk, presumably there to talk to another
food vender, yet his body position reveals his real orientation. </span></span></p><p class="MsoNormal" style="text-align: center;"></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjWJJVqKOeR4lBeQ_actogK64EH4kCBWV12w3tNApQlIHZeoRFkrtjfpP9lD8WCZL4mu4TN2v7ben30QOAbHF4zn-D64ed95aWghuaMrYDk9jftjTQ8hCUSsj0GYY4TKVgBuqgOaM91L1MdBDgQs3RLqkkVQAKkX--uanMf3f4etDWIaKfIsISp5v_2u68/s4160/UPMC%20security%20guard%20patroling%20public%20sidewalk2.jpg" style="margin-left: 1em; margin-right: 1em;"><span style="font-size: large;"><img border="0" data-original-height="4160" data-original-width="3120" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjWJJVqKOeR4lBeQ_actogK64EH4kCBWV12w3tNApQlIHZeoRFkrtjfpP9lD8WCZL4mu4TN2v7ben30QOAbHF4zn-D64ed95aWghuaMrYDk9jftjTQ8hCUSsj0GYY4TKVgBuqgOaM91L1MdBDgQs3RLqkkVQAKkX--uanMf3f4etDWIaKfIsISp5v_2u68/s320/UPMC%20security%20guard%20patroling%20public%20sidewalk2.jpg" width="240" /></span></a></div><p></p><p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">The presumptuousness
of that university-affiliated hospital was visible in the choice of the <i>security
guard’s </i>uniform mimicking that of the police—including with a silver “badge” and handcuffs. If the hospital was breaching the state's monopoly of police powers, which in general is a larger problem, I submit that the visible artifacts added to the possible presumptuousness of the wearers that company security hyper-extends "off campus" even if the state permits it. The artifacts also misled the public into supposing that the company's police were the same as the city police. At the very least, a company's private security or "police" employees do not necessarily receive the same training as the regular police receive. There is also the problem of legitimacy from a democratic standpoint once the state's monopoly of police powers, as per the U.S. Constitution, is violated by companies. </span></p><p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">Just a public property is distinct from private property, a company's employees are distinct from a government's police force (and power). Encroachment onto a government's use of force puts a company in a conflict of interest in that its security employees are not in an even-handed position in disagreements between a company's management and its stakeholders. Human nature being what it is, we should not assume that the employees would be fair in cases in which a management oversteps its own authority ethically or legally. </span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">I contend that business managers have
a tendency to overreach, even perceiving public property as fair game to be
captured for the private, narrower, interest of a business as the public
interest suffers. This tendency on the microlevel is the same as that which
fuels a company in a competitive industry to become a monopoly. John D.
Rockefeller, for example, pressured competitors unwilling to be bought by his
Standard Oil company. The titan had the audacity to view himself as a Noah
saving the drowning competitors from being ruined by the destructive
competition especially in the 1860s, and as a Christ-figure saving them. Unlike
Rockefeller, Jesus in the Gospel stories does not kill off people who are
unwilling to accept his help. Rockefeller even pressured the railroads to pay
Standard Oil a “drawback” when they carried the oil of his competitors. Such
encroachment breached what was thought to be ethical business conduct at the
time, which in turn included some practices that would come to be regarded as
unethical. The titan’s presumptuousness thus extended to treating the railroads
as akin to his own property. By such means of encroachment, Rockefeller built
his company into a monopoly in the refining industry. Fortunately, the U.S.
Supreme Court broke up Standard Oil in 1913, but made the mistake of keeping in
tact the same ownership in all of the resulting companies. The managements
thereof were even allowed to be in the same building! A willingness to stand up
to powerful businesses and competency as to how to break up their excessive market
power from previous encroachments are both important if the private-property
attribute of modern Capitalism is not to eviscerate the attributes of
competition and the market-mechanism. Given the tendency of business managers
to shirk the public interest, society needs some means of protecting public
property from the inevitable encroachments.</span></p><p></p>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-34703745046462761342023-06-17T13:48:00.002-07:002023-06-17T13:50:44.313-07:00American Law Enforcement: Extricating the Aggressive Personality and Presumption to Violate the Law Off-Duty<p style="text-align: justify;"><span style="font-size: large;"><span style="font-family: times;">The assumption that more police
than we might expect have in not being subject to the law even while off-duty suggests
that hiring, training, and retention practices of police departments are inadequate.
The presumption of being an </span><i style="font-family: times;">ubermench </i><span style="font-family: times;">and thus untouchable is dangerous
when the person can legally carry a gun. Memo to police departments in the U.S.:
</span><i style="font-family: times;">please notify</i><span style="font-family: times;"> </span><i style="font-family: times;">your employees that they are subject to local, state,
and federal laws, period.</i><span style="font-family: times;"> </span><i style="font-family: times;">Any indication of any presumption to the
contrary subjects the culprit to termination. </i><span style="font-family: times;">Unfortunately, police
departments and their respective city governments in the U.S. are far from such
enlightenment as could hold their </span><i style="font-family: times;">employees </i><span style="font-family: times;">accountable.</span></span></p><p style="text-align: justify;"></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhdB2xPFULMQBSyGtjHbSKkEO3p9FkTs4u-8oPJ_YhUeloZeBYbq9Dqj5a3jZOsiTbueYwMbHFjA2TR1kUyvXqREc5I3vaY-RwrCMKC_JxOH7aIteDGt7njXGkMf7ZsPr5sCYyj-DLUY5U_ydAGIz8xtGqAtsQJbyjnaCZ-OxNVbzta-ez7DiH_j_g3/s459/Off%20duty%20Orlando%20cop%20refuses%20to%20show%20drivers%20license%20and%20flees%20sheriff.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="280" data-original-width="459" height="195" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhdB2xPFULMQBSyGtjHbSKkEO3p9FkTs4u-8oPJ_YhUeloZeBYbq9Dqj5a3jZOsiTbueYwMbHFjA2TR1kUyvXqREc5I3vaY-RwrCMKC_JxOH7aIteDGt7njXGkMf7ZsPr5sCYyj-DLUY5U_ydAGIz8xtGqAtsQJbyjnaCZ-OxNVbzta-ez7DiH_j_g3/s320/Off%20duty%20Orlando%20cop%20refuses%20to%20show%20drivers%20license%20and%20flees%20sheriff.jpg" width="320" /></a></div><p></p><p class="MsoNormal" style="text-align: justify;"><span style="font-family: times; font-size: large;">In June, 2023, a police employee
of Orlando, Florida faced charges by the Seminole County Sheriff’s Office for
reckless driving and resisting and fleeing from a deputy. The culprit “refused
to show the deputy his license, got back in his car, and took off . . .”<span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 107%;">[1]</span></span><!--[endif]--></span>
He had been driving at 80 mph in a 45 mph zone. It is significant that he
thought that going to work was a viable excuse for speeding. Even more incredibly,
he told the deputy to notice his police uniform, as justifying the speeding!
When the deputy asked for the man’s driver’s license, the violator abstinently said
a quick, “NO!,” and turned to get into his car before fleeing the scene. <i>How
dare you as me for MY license! That’s something I do to OTHER PEOPLE. </i>How arrogant,
wrong, and incorrect. Moreover, the man’s reaction to being held accountable
provides the public with a view of someone having the legal use of a gun and
yet not willing to be held accountable himself. He may have incorrectly
appropriated the former President Nixon’s erroneous declaration that if the
president does something, it is legal. A local police employee is not even
close to being the president of the United States. Even aside from prosecuting
the presumptuous law-breaker in Florida, the city of Orlando would have done
well in considering whether such a person should be granted the legal right to
use lethal force.</span></p><p class="MsoNormal" style="text-align: justify;"></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiAMqOC8SiKZAxnevbaH-K8A6ExfWO5IsBkdAdp5Ix6AlVb1Oh0Vfk_xMKwDTpt-C-zVpV3vxpx8EdtO1iPWIrAyRuYQ5HYFqm7IQC5TNPxSkXxNov9VEi31GaNievcoRXKTJ1OdYdgXysX2ibQpDQpiU1elEfJ62rvql9W7kVcGt8_IKHwNhdnfuSR/s590/off%20duty%20chicago%20cop%20attacks%20a%20teenager.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="590" data-original-width="582" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiAMqOC8SiKZAxnevbaH-K8A6ExfWO5IsBkdAdp5Ix6AlVb1Oh0Vfk_xMKwDTpt-C-zVpV3vxpx8EdtO1iPWIrAyRuYQ5HYFqm7IQC5TNPxSkXxNov9VEi31GaNievcoRXKTJ1OdYdgXysX2ibQpDQpiU1elEfJ62rvql9W7kVcGt8_IKHwNhdnfuSR/s320/off%20duty%20chicago%20cop%20attacks%20a%20teenager.jpg" width="316" /></a></div><p></p><p class="MsoNormal" style="text-align: justify;"><span style="font-size: large;"><span style="font-family: times;">My point includes the subtle one that
prosecution is not sufficient and is thus inadequate as a litmus test for deciding
whether a police employee literally takes liberties </span><i style="font-family: times;">off duty </i><span style="font-family: times;">should
remain employed. Due to lack of evidence of a malicious intent, a police employee
of Chicago, Illinois was not found formally guilty of assaulting a 14-year-old,
whom the </span><i style="font-family: times;">off-duty </i><span style="font-family: times;">employee had wrongly assumed had stolen his son’s
bike. The employee inserted one of his knees in the eighth-grader’s back.</span><span class="MsoEndnoteReference"><span class="MsoEndnoteReference"><span style="line-height: 107%;">[2]</span></span></span><span style="font-family: times;">
Regardless of whether there was sufficient evidence for a criminal prosecution,
the photograph of the man on top of the boy should be enough for a chief of
police to decide that such presumptuousness predicated on being a police
employee should eliminate the attitude from being on a police force. The
presumption in being allowed to attack a child who happens to walk past a stolen
bike would be a red flag even in the case of a police employee </span><i style="font-family: times;">on-duty</i><span style="font-family: times;">. Off-duty,
a man who happens to work as a police employee is just like any other dad.
While any father may </span><i style="font-family: times;">feel </i><span style="font-family: times;">like being judge, jury, and executioner of a
suspected thief of one’s son’s bike, what father would actually </span><i style="font-family: times;">act </i><span style="font-family: times;">on
the urge? Hence, the off-duty police employee can be seen as presumptuous, and
even as questionable psychologically, as can a police employee who curtly says
no when asked for his driver’s license for speeding to get to work. An
aggressive tenor can be detected from both men, and this alone should bar them
from having the legal right of lethal force.</span></span></p><div><!--[if !supportEndnotes]--><br clear="all" />
<hr align="left" size="1" width="33%" />
<!--[endif]-->
<div id="edn1">
<p class="MsoEndnoteText"><span style="font-size: 13.3333px;">1. </span>Connor Hansen, “<a href="https://www.fox35orlando.com/news/orlando-police-officer-facing-charges-after-tense-exchange-with-deputy-trying-to-pull-him-over"><span style="color: #783f04;">Orlando
Police Officer Accused of Reckless Driving, Leaving Traffic Stop after Exchange
with Deputy</span></a>,” Fox35 Orlando, June 12, 2023 (accessed June 17, 2023).<o:p></o:p></p>
</div>
<div id="edn2">
<p class="MsoEndnoteText"><span style="font-size: 13.3333px;">2. </span> Alex
Hammer, “<a href="https://www.dailymail.co.uk/news/article-10980597/Moment-duty-police-officer-bodyslams-boy-14-ground-pins-knee-back.html"><span style="color: #783f04;">Moment
Off-Duty Chicago Cop Kneels on 14-Year-Old Boy’s Back after Mistakenly Accusing
Him of Stealing a Bike</span></a>,” DailyMail.com, July 4, 2022 (accessed June 17,
2023).</p></div></div>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-90478194323165587662022-01-30T18:03:00.000-08:002024-01-15T07:49:57.947-08:00The Electoral College: Beyond the Conventional Wisdom<div style="margin: 0in 0in 0pt; text-align: justify;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">The matter of how the U.S. President is to be selected
was a tough nut for the delegates in the Constitutional Convention in 1787 to
crack. Mason observed the following in convention, “In every Stage of the
Question relative to the Executive, the difficulty of the subject and the
diversity of the opinions concerning it have appeared.”</span><span style="font-size: large;"><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif;">[1]</span></span></span><span style="font-family: "times" , "times new roman" , serif;">
The alternative proposals centered around the Congress, State legislatures, the
governors, the people, and electors designated for the specific purpose as the
possible determiners. Although the delegates were men of considerable
experience, their best judgments about how the alternatives would play out were
subject to error as well as the confines of their times. In re-assessing the Electoral
College, we could do worse than adjust those judgments and rid them of
circumstances pertaining to them that no longer apply. For example, the
Southern States no longer have slaves, so the question of whether those States
would be disadvantaged by going with a popular vote no longer applies; the
alternative of going with the popular vote nationwide no longer suffers from
that once-intractable pickle. Yet lest we rush headlong into a popular vote
without respect to the States, we are well advised not to dismiss the points
made by the convention delegates, for we too are constrained by our times, and
we may thus not be fully able to take into account points that have been
forgotten. </span><span style="font-family: times, "times new roman", serif;">Before turning to the views expressed at the convention,
I briefly touch on the Electoral College. I discuss the apparent dichotomy
between the College and popular vote, after which I discuss the relevance of
federalism.</span></span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">American citizens vote for slates of electors by state,
and those electors then meet, again by state, to cast votes for the U.S.
President. Because the electors are elected by popular vote, the dichotomy
between the Electoral College and the popular vote is misleading. The question
regarding the false dichotomy is actually whether to go with the popular vote
by state or nationally. To be sure, electors in four states do not have to vote
according to the popular vote in the state, and electors in the other states
can vote contrary to that vote in those respective states but must pay a fine.
The point lost on most Americans by the twenty-first century is that one of the
original selling points of the Electoral College was that the electors could be
a check on the momentary passions of the masses precisely by being able to vote
contrary to the popular vote in electors’ respective states. Should the U.S. be
attacked and the citizens have an emotional reaction to go to war, electors
could say, in effect, “well, I’m not so sure we should go with the war hawk.”
In short, the Electoral College is geared to protecting the best interests of
the people even if they are blinded to it. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">The Electoral College also gives some heed to the
sovereignty retained by the States as members of the U.S. The U.S. Senate is
the federal institution that represents the republics. In the College, the
number of electors a State has equals the number of its U.S. senators and House
representatives. Because this number is not by population and each State has
two federal senators, less populated States have disproportionately more
electors than the big States do. Besides the fear at the convention that the
“big” States might pick the president either by electors or if by a
national-level popular vote, the sovereignty retained even by the “small”
(i.e., less populous) States warrants some role in the selection of the
executive of the Union. To dismiss this point is to ignore what the U.S. is as
a Union composed of semi-sovereign States. What I’m getting at here is that to
dismiss these ongoing reasons for the Electoral College is to forget what the
U.S. is (or are). When you no longer know what you are, you can be in real
trouble when you act. Hence, it behooves us to take seriously the various
points (and alternatives) discussed and debated in the convention. The answer
may not be the Electoral College. In this case, the status quo is broken. In
fact, the Electoral College has never performed as intended—most significantly
in this regard as a check on “excess democracy” that can come with direct
democracy even at the voting booth. Yet this does not necessarily mean that shifting
from state popular votes to a national popular vote is wise. Considering the
points raised by delegates in the federal convention, hidden downsides to a
national popular vote can be seen, and this in turn may precipitate new ideas
that are optimal. I turn now to the delegates in hopes that their wisdom might
inform our public discourse on the topic. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">Franklin, being quite elderly by the time of the
convention, could afford to sit back above the debate and see the “big picture”
in terms of democratic theory. “It seems to have been imagined by some that the
returning to the mass of the people was degrading the magistrate. This he
thought contrary to republican principles. In free Governments the rulers are
the servants, and the people their superiors & sovereigns.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[2]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
The question of whether or not the people have what it takes to select a
capable person of good character and standing for the presidency was debated at
several points during the Convention. Referring to the federal executive,
Morris urge, “He ought to be elected by the people at large. If the people
should elect, there will never fail to prefer some man of distinguished
character, or services; some man, if he might so speak, of continental
reputation.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[3]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
Similarly, Madison said: “The people at large was . . . as likely as any that
could be devised to produce an Executive Magistrate of distinguished Character.
The people generally could only know & vote for some Citizen whose merits
had rendered him an object of general attention & esteem.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[4]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
Already, these delegates were anticipating the expansion westward of the
then-Thirteen-State Union. Morris and Madison were assuming that anyone
attracting enough votes across a continent to win must be renowned, and thus
distinguished of character or significant accomplishment. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">Yet given the vast number of voters spread over a vast
territory, or country, the sheer distance between the electorate and the
candidates would mean the former could not really size up the latter. Mason
“conceived it would be as unnatural to refer the choice of a proper character
for chief Magistrate to the people, as it would, to refer a trial of colours to
a blind man. The extent of the Country renders it impossible that the people
can have the requisite capacity to judge of the respective pretensions of the
Candidates.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[5]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
Lest it contended that the modern media closes in the distance, the media
companies and their journalists and commentators have their own agendas and
ideological biases, and the concentration of the media has enabled
“groupthink,” wherein the public “airwaves” are unanimous in a judgment, even
if very wrong as in the prediction of a near-certain Clinton landslide in 2016.
Democracy at the empire-scale is not at all optimal. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">Unfortunately, a relatively few “designing” men—or
associations thereof—could take advantage of the sub-optimality. Gerry
suggested that private associations not confined by State could take advantage
of the problem. “A popular election in this case is radically vicious. The
ignorance of the people would put it in the power of some one set of men
dispersed through the Union & acting in Concert to delude them into any
appointment.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[6]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
Such a “set of men” might in modern terms be a large corporation, or even an
oligarchy. That is to say, large concentrations of private wealth could profit
politically from the electorate being so large and dispersed. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 8pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">That the U.S. was and is an empire not only in scale, but
also in that it is made up of (early modern) “kingdom-level” polities (i.e.,
States) that differ culturally, just as the E.U.’s States do, presents
additional problems for the popular election of the federal president. Sherman
got at this when he said that “the people at large . . . will never be
sufficiently informed of characters, and besides will never give a majority of
votes to any one man. They will generally vote for some man in their own State,
and the largest State will have the best chance for the appointment.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[7]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
The people cannot really get a sense of a candidate’s <i style="mso-bidi-font-style: normal;">real </i>character through the media—and almost the entire electorate
could not possibly meet the candidates in person. Furthermore, the expanse of
territory and the difficult cultures mitigate against a candidate being of such
a reputation as to be acceptable in all of the States. In fact, the largest
States in population could dominate the elections. To wit, Williamson claimed,
“The principal objection [against] an election by the people seemed to be, the
disadvantage under which it would place the smaller States.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[8]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
Pinkney got at the both points—that such a large, extended electorate could be
easily manipulated and the electorates in the large States could dominate.<span style="mso-spacerun: yes;"> </span>“An Election by the people being liable to
the most obvious & striking objections. They will be led by a few active &
designing men. The most populous States by combining in favor of the same
individual will be able to carry their points.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[9]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
Williamson combined the “large State” problem with the extent of territory
mitigating the chances of there arising a reputation of sufficient reach.
“There are at present distinguished characters, who are known perhaps to almost
every man. This will not always be the case. The people will be sure to vote
for some man in their own State, and the largest State will be sure to succeed.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[10]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
In modern America, candidates would need only campaign along the crowded
Northeast coast, the Bay Area in California, Southern California, and Chicago
to get a majority of the popular vote. People in the rest of the States would
be left out except for cases in which the election is close. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 8pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">Dickenson had an interesting idea. Although he “leaned
towards an election by the people which he regarded as the best & purest
source” he surmised the greatest difficulty was “the partiality of the States
to their respective Citizens. But, might not this very partiality be turned to
a useful purpose. Let the people of each State chuse its best Citizen. The
people will know the most eminent characters of their own States, and the
people of different States will feel an emulation in selecting those of which
they will have the greatest reason to be proud. Out of the thirteen names thus
selected, an Executive Magistrate may be chosen either by the [National]
Legislature, or by Electors appointed by it.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[11]</span></span></span><span style="font-size: large;"><span style="font-family: "times" , "times new roman" , serif;">
What would keep the candidates from the largest States from winning election
after election?<span style="mso-spacerun: yes;"> </span></span></span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">Of all of those objections, I submit that the sheer size
of the voting electorate—around 120 million in 2016—is the largest drawback of
popular election. The problem is reflected in the extraordinarily long
“campaign seasons”—16 months in the case of the 2016 presidential election—as
candidates must campaign in what in Europe would be “country after country.”
Even so, so very few voters can possibly have first-hand knowledge of even just
one of the candidates that the electorate as a whole is left at the mercy of
the concentrated media and the marketing-driven campaigns. The electorate in
1920 did not knew that Warren Harding had been a patient in a mental hospital
five times, and Richard Nixon’s rather severe pathology only came to light
after the Watergate scandal. For all the electorate knows, a candidate could be
acting—even, as in Ronald Reagan’s case, be a professional actor. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">We can expect the inordinate, self-invested influence of
giant corporations and, moreover, the infamous “1 percent” because they know
how (and have the means) to use the media to “steer” the public discourse and
finance the candidates launching empire-scale campaigns. That the concentrated
media companies are also large corporations does not reduce the risk of the
onslaught of plutocracy by taking advantage of what the delegates sometimes
called “excess democracy.” That the electorate can be so easily manipulated
gets scant attention. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">Thomas Jefferson and John Adams agreed in retirement that
an educated and virtuous citizenry is essential for an ongoing republic. We the
American electorate better educated at the very least in civics, the people
could better fend for themselves against designing corporations and demagogues.
Hence, Gerry pointed to a real problem: “The people are uninformed, and would
be misled by a few designing men.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[12]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
He felt the problem so grave that the “popular mode of electing the chief
Magistrate would certainly be the worst of all.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[13]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
We are dependent on the media and the candidates’ marketing campaigns. By in
large, we see what the candidates and journalists want us to see. Hence, Mason
observed, “It has been proposed that the election should be made by the people
at large; that is that an act which ought to be performed by those who know
most of Eminent characters, & qualifications, should be performed by those
who know least.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[14]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;"> Mercer
insisted that the “people can not [sic] know & judge of the characters of
Candidates. The worst possible choice will be made.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[15]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
Doubtless this opinion would resonate with a considerable number of the
electorate in 2016 <i style="mso-bidi-font-style: normal;">of both parties</i>. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">Unfortunately, rarely do advocates of a nationwide
popular vote take into account how grave those concerns were in the convention,
and thus how many (but not all!) of the delegates felt about an empire-wide
popular vote. It’s much more convenient to feel a sense of entitlement that
throws caution to the wind. Hence the shared advice from Jefferson and Adams. So
I think Morris got it backwards in saying, “It is said the people will be led
by a few designed men. This might happen in a small district. It can never
happen throughout the continent.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[16]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
In a small district (i.e., a small electorate), a larger proportional of the
electorate have direct knowledge of the candidates, and so can dodge the
“designing” ones. It follows that the relatively small number of electors in
the Electoral College is within range of being able to “meet and greet” the
candidates and their close friends (and detractors). Yet this assumes that the
electors are independent not only of the majority of voters in the respective
States, but also the political parties, and this has not been so since the
College’s first day on the job. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 8pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">The delegates at the convention considered other ways in
which a relatively small number of people could select the federal president. Certainly
having the Congress select would eliminate the problem of the selectors not
being able to know (or get to know) the candidates. Additionally, the members
of Congress could see to it that the candidate selected can execute the laws
that the Congress legislates. After all, the delegates understood the purpose
of the U.S. president to be “to carry into execution the [national] laws.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[17]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
According to Pinkney, “The Nat’l Legislature being most immediately interested
in the laws made by themselves, will be most attentive to the choice of a fit
man to carry them properly into execution.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[18]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
This could mean, however, that the legislature would be able to exercise
control over the executive. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 8pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">Hence Morris warned the other delegates, “If the Executive
be chosen by the Nat’l Legislature, he will not be independent [of] it; and if
not independent, usurpation & tyranny on the part of the Legislature will
be the consequence.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[19]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
The check and balance that the separation of powers affords would be lost. As
Morris explained, “the checking branch must have a personal interest in
checking the other branch, one interest must be opposed to another interest.
Vices as they exist, must be turned [against] each other.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[20]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
Hoping to be re-elected, or having to honor deals made with particular members
of Congress in order to get elected in the first place, the president would not
have a personal interest in checking the federal legislature even were it to
over-reach at the expense of the liberties of the people. Hence, “A particular
objection with [Wilson] against an absolute election by the [legislature] was
that the [executive] in that case would be too dependent to stand the mediator
between the intrigues & sinister views of the Representatives and the
general liberties & interests of the people.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[21]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
Maintaining the liberties is of course the aim of the checks and balances in
the separation of powers. Madison put the matter well. “If it be essential to
the preservation of liberty that the [Legislative, Executive and] Judiciary
powers be separate, it is essential to a maintenance of the separation, that
they should be independent of each other. The Executive could not be
independent of the Legislature, if dependent on the pleasure of that branch for
a reappointment . . . a dependence of the Executive on the Legislature, would
rending it the Executor as well as the maker of laws . . . then according to
the observation of Montesquieu, tyrannical laws may be made that they may be
executed in a tyrannical manner.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[22]</span></span></span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 8pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">A second major problem with having Congress select the
federal executive is that the choice could invite corruption. Morris predicted,
“If the Legislature [i.e., the Congress] elect, it will be the work of
intrigue, of cabal, and of faction; it will be like the election of a pope by a
conclave of cardinals; real merit will rarely be the title to the appointment.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[23]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
According to Madison, “the candidate would intrigue with the Legislature, would
derive his appointment from the predominant faction, and be apt to render his
administration subservient to its views.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[24]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
Ingenuously, Morris flipped the argument back to the people deciding: <span style="mso-spacerun: yes;"> </span>“The people of [the most populous] States
cannot combine. If their [<i style="mso-bidi-font-style: normal;">sic</i>] be any
combination it must be among their representatives in the Legislature.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[25]</span></span></span><span style="font-size: large;"><span style="font-family: "times" , "times new roman" , serif;"><span style="mso-spacerun: yes;"> </span>Furthermore, “It is said the multitude will
be uninformed. It is true they would be uninformed of what passed in the
Legislative Conclave, if the election were to be made there; but they will not
be uninformed of those great & illustrious characters which have merited
their esteem & confidence.”</span></span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[26]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
Morris could be right about a legislative conclave and yet wrong on the popular
election if he did not take into account the future westward expansion of the
Union across (and beyond!) the continent. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">A third problem with having Congress select the president
can be labeled an <i style="mso-bidi-font-style: normal;">opportunity cost</i>.
Simply put, all the divisiveness of the contest for the high office could
compromise the ability of legislators to work together on legislation. Of the
“insuperable objections” to the Chief Magistrate being elected by the National
Legislature,” Madison claimed that “the election of the Chief Magistrate would
agitate & divide the legislature so much that the public interest would
materially suffer by it. Public bodies are always apt to be thrown into
contentions, but into more violent ones by such occasions than by any others.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[27]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
Just imagine the 2016 general election campaigns of Hillary Clinton and Donald
Trump infecting Congress—what that would have done to the members of that
institution! </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">Besides the popular vote and Congress, the delegates also
debated whether state legislatures or governors should select the federal
president. Such an approach enjoys the support of federal theory, especially as
it was known at the time of the convention when federalism applied to
international alliances such as the Netherlands, Switzerland, and Germany,
which were had been considered empires in the Middle Ages. By the time of the
convention, those polities had become nation-states equivalent to the Early
Modern kingdoms such as the UK and France, and this might have been why the
delegates believed putting a national government at the federal level would be
workable. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">Yet federal theory still maintained that the first level
of polities in a federation selects the officials at the federal level. In the
case of the U.S., this would mean that the State legislatures or executives
would select the federal president, whereas the people would of course elect
the State-level officials. So democracy itself would be maintained; <i style="mso-bidi-font-style: normal;">elected </i>State officials would select the
federal president. Bringing in the bit about smaller electorates being closer
to candidates for public office (i.e., at the local and State levels), the
federal theory’s rationale can be understood to be the following: The people
are more likely to get good people into the State-level offices, so the people
can have confidence in those officials as selectors of the federal president.
That the number of state officials—especially governors—is much less than the
American electorate as a whole means that the problem of the large electorate
is also avoided. To continue to have a federal system yet dismiss federal
theory is like a person who acts as if she no longer knows who she is. Such a
person is likely to get into trouble. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">To be sure, leaving the decision to State legislatures or
governors is not without pitfalls. Also, complicating the traditional federal
theory is the delegates’ decision to add a directly-elected body of
representatives to the federal level: The U.S. House of Representatives. The
federal government would represent the people <i style="mso-bidi-font-style: normal;">and </i>the States—the latter being the members of the U.S. Senate, a
body founded on international-law principles. As Elseworth explained, “We were
partly national; partly federal. The proportional representation in the [U.S.
House of Representatives] was conformable to the national principle & would
secure the large States [against] the small. An equality of voices [in the U.S.
Senate] was conformable to the federal principle and was necessary to secure
the Small States [against] the large.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[28]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
By “federal” here is meant <i style="mso-bidi-font-style: normal;">international</i>.
Hence, the equality of votes for each State in the U.S. Senate comes out of
international law (e.g., alliances, and international organizations including
the United Nations). This “partly national; partly federal” applied to the
federal level is how the convention advanced federal theory. This advancement
complicated matters in the convention. A State’s number of electors voting in
the Electoral College, for example, equals the number of U.S. House representatives
whose districts are within the State plus the number of federal senators, so the
Electoral College was designed to take into account <i style="mso-bidi-font-style: normal;">both </i>bases of the federal legislature: the people and the
States—or, in other words, the “partly national, partly federal” nature of the U.S.
Government. Reducing the Electoral College to the nationwide popular vote would
ignore the ongoing federal element. This could certainly happen if few voters
are aware of the international component of the U.S. Government (e.g., a Union
of semi-sovereign republics), and, moreover, of the balance therein. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">Regarding the appointment of the National Executive by
the States’ legislatures, Madison believed this option to be objectionable.
“The Legislatures of the States had betrayed a strong propensity to a variety
of pernicious measures. One object of the [National Legislature] was to
[control] this propensity. One object of the [National] Executive, so far as it
would have a negative on the laws, was to [control] the [National] Legislature,
so far as it might be infected with a similar propensity. Refer the
[appointment] of the [National] Executive to the State Legislatures, and this
[controlling] purpose may be defeated. The Legislatures can & will act with
some kind of regular plan, and will promote the [appointment] of a man who will
not oppose himself to a favorite object. Should a majority of the Legislatures
at the time of election have the same object, or different objects of the same
kind, [the national] Executive would be rendered subservient to them.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[29]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
In hindsight, considering the extent of consolidation of power at the federal
level, perhaps had the State legislatures selected the president the federal
system itself would be more balanced today. Also, the State legislatures would
not have been so left out—whereas in the E.U. they play a direct role at the
federal level. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">In the convention, Gerry “moved that the [federal]
Executive be appointed by the Governours & Presidents of the States.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[30]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
What we moderns know as a governor is essentially a president at the State
level. At the time of the convention, New Hampshire had a president. Gerry’s
rationale is symmetrical, and thus interesting. “He urged the expediency of an
appointment of the [federal] Executive by Electors to be chosen by the State Executives.
The people of the States will then choose the 1<sup>st</sup> branch [i.e., the
U.S. House of Representatives]: The legislatures of the States the 2<sup>nd</sup>
branch of the National Legislature [i.e., the U.S. Senate, the senators of
which were selected by the State legislatures until 1913], and the Executives
of the States, the National Executive. This he thought would form a strong
[attachment] in the States to the National System. The popular mode of electing
the chief Magistrate would certainly be the worst of all.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[31]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
It might be added: from this perspective, having the people vote for the
federal president does not make sense because it is out of step with the
symmetry. The U.S. House of Representatives was intended to be the place for
representative democracy at the federal level—like the European Parliament in
the E.U. The U.S. Senate, like the European Council (and the Council of
Ministers) was to represent the state governments, so they could protect their
retained sovereign powers. It made sense to Gerry that the State executives
would select the federal executive. But why through electors? </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">Madison provides the rationale: “An appointment by the
State Executives, was liable among other objections to this insuperable one,
that being standing bodies, they could & would be courted, and intrigued
with by the Candidates, by their partizans, and by the Ministers of foreign
powers.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[32]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
When Barak Obama resigned as a U.S Senator of Illinois to become the U.S.
President, the governor of Illinois tried to sell the empty senate seat to the
highest bidder. Gerry was doubtless worried that governors would sell their
vote to the highest bidding candidate for president. Electors would provide
some insulation, yet they too could be swayed. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">We can see this from Williamson’s view on electors being
chosen by state legislatures. “He had no great confidence in the Electors to be
chosen for the special purpose. They would not be the most respectable
citizens; but persons not occupied in the high offices of Govt. They would be
liable to undue influence, which might the more readily be practised as some of
them will probably be in appointment 6 or 8 months before the object of it
comes on.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[33]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;"> Butler,
on the other hand, thought “the Govt should not be made so complex &
unwieldy as to disgust the States. This would be the case, if the election
[should] be referred to the people. He liked best an election by Electors
chosen by the Legislatures of the States.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[34]</span></span></span><span style="font-size: large;"><span style="font-family: "times" , "times new roman" , serif;">
But it seems to me that the addition of electors only to elect the federal
president makes the system more complex and unwieldly. The experience of the
Electoral College quickly showed how easy it was for the major political
parties to dominate the slates of electors per candidate; it isn’t even a
question of corruption, and there is little chance that said electors could
provide a check on the passions of the people. <span style="mso-spacerun: yes;"> </span></span></span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">Hence Madison preferred popular election (i.e.,
nationwide popular vote). “The option before us then lay between an appointment
by Electors chosen by the people—and an immediate appointment by the people. He
thought the former mode free from many of the objections which had been urged
[against] it, and greatly preferable to an appointment by the [national]
Legislature. As the electors would be chosen for the occasion, would meet at
once, & proceed immediately to an appointment, there would be very little
opportunity for cabal, or corruption. . . . The remaining mode was an election
by the people. . . With all its imperfections he liked this best.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[35]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
There being no political parties by the time of the convention in the U.S.,
Madison could not have foretold the fate of the electors at the hands of the
parties, and yet he preferred election by the people anyway. Two difficulties
he thought had weight. “The first arose from the disposition in the people to
prefer a Citizen of their own State, and the disadvantage this [would] throw on
the smaller States.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[36]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
The second difficulty “arose from the disproportion of qualified voters in the
N. & S. States, and the disadvantages which this mode would throw on the
latter.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[37]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
Only the first objection still exists, as candidates needing only a majority of
the nationwide vote could treat many of the less-populated States as fly-over
territory devoid of merit politically speaking. That those States, including
their respective citizens, are also part of the Union—and more specifically
part of the federal system—should give us pause as to the implications of
Madison’s preference. Madison “thought too much stress was laid on the rank of
the States as political societies.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[38]</span></span></span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">Some delegates viewed the existing States as artificial
political societies, and thus as unnecessary obstacles. Morris insisted that “State
attachments, and State importance have been the bane of this Country.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[39]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
It is as if the States existed solely because their respective government
officials did not want to lose their power. “Can we forget for whom we are
forming a Government?” Wilson asked. “Is it for <i style="mso-bidi-font-style: normal;">men</i>, or for the imaginary beings called <i style="mso-bidi-font-style: normal;">States</i>?”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[40]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
The States then existed, so in what sense would they have been imaginary?
Furthermore, having territory even just on the scale of the thirteen States at
the time, and more definitely across a continent, the United States must
naturally contain much diversity in going from place to place. Madison pointed
out that “the States were divided into different interests not by their
difference in size, but by other circumstances.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[41]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
He points to climate, but we can add religion, political ideology, and industry
as differing across large expanses of territory. It is natural, therefore, that
political societies would emerge. Were there no such polities, the United
States with only “one size fits all” centralized laws would suffer increasing
political pressure building up from the unexpressed diversity that cannot but
exist at such a scale as across (and beyond) a continent. In other words, one
size does not fit all where the size of the polity is so large that there must
be significant ideological/cultural differences from region to region. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">One of the main benefits of a federal system is in fact
that it enables the political expression of the diversity that is necessary in
an empire-scale country or alliance. The delegates viewed the U.S. in itself as
an empire. Morris referred to “the dignity and splendor of the American Empire”
and even insisted that any person deserving the presidency must be such that
his character is “proclaimed by fame throughout the Empire.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[42]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
Ghorum, too, referred to the U.S. as “the Empire.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[43]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
At the time, empires were known to consist of kingdoms; hence an empire is
inherently diverse (i.e., the kingdoms differing from each other). <span style="mso-spacerun: yes;"> </span>Hence the fit of federalism especially for
empires. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">Because of the diversity from “kingdom” to “kingdom,” it
follows that political dynamics must exist at the empire-level government that
do not exist at the State level. Reducing the selection of the federal
president to nationwide popular vote effectively ignores this distinction and
treats the office as if it were on the State level. To treat the U.S. itself as
if it were like one of its States is to commit a category mistake in logic.
Williamson insisted, for example, that “the case is different here from what it
is in England; where there is a sameness of interests throughout the Kingdom.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[44]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
A kingdom may be homogenous, whereas an empire is of such size that internal heterogeneity
exists geographically and must be accommodated. Otherwise, political pressure naturally
builds up and the empire eventually splits apart. <span style="mso-spacerun: yes;"> </span>So the injustice that some delegates,
including Madison, saw in conciliating the smaller States and therefore a
minority of the U.S. population by not going with the nationwide popular vote
can be understood and even justified by reference to the U.S. as an empire
necessarily composed of different States, each of which needed to retain some
sovereignty to accommodate its distinctive features.</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[45]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
As Mason put it, “The United States will have a qualified sovereignty only. The
individual States will retain a part of the Sovereignty.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[46]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
The Electoral College was meant in part to reflect this point, which is in turn
based on the belief that the U.S. even then constituted an empire. Just because
the College never worked as intended or designed does not mean the fundamentals
on which it is based are faulty—that is, what the United States are (or is). To
wit, Elseworth noted, “the U.S. are sovereign on their side of the line
dividing the jurisdictions—the States on the other—each ought to have power to
defend their respective Sovereignties.”</span><span style="mso-special-character: footnote;"><span style="line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">[47]</span></span></span><span style="font-family: "times" , "times new roman" , serif; font-size: large;">
Consolidate the sovereignties at the federal level and the empire has lost its
way of accommodating political pressure naturally coming from within any
empire.</span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">I wish to make three points in conclusion. First, the
matter of whether to retain the Electoral College, which reflects popular vote
at the State level, or go with a nationwide popular vote is complex. Adding to
the difficulty is this very dichotomy, which is false both in the sense that
popular vote and the Electoral College are mutually exclusive and that no
viable alternatives exist. The debates in the Constitutional Convention attest
that alternatives do exist, and that some of them may fit better the nature of
a federal system than either a nationwide popular vote or the Electoral
College. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">To be sure, the debates also tell us that no alternative
is salvific. Alternatives beyond those debated in 1787 may be needed. In fact,
this essay is geared to fostering such creativity, which the debates can enrich
and keep grounded. Perhaps one possible useful alternative—one not considered
by the delegates—is the way Germany selects its federal president. All
representatives in the federal Budestag are joined for the purpose by an equal
number of delegates chosen by the regional governments. In this way, both the
regional governments and the federal legislature have a say. Such balance is
good for a federal system. This method could be adjusted, such as by having a
majority of the governors of the American States and a majority of
representatives of the U.S. House of Representatives both agree on a person. </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"> </span></div>
<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
</span></div>
<div style="margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "calibri";"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">Finally, the experience of the Electoral College tells us
that compromise is not always the best option; the College never worked as
intended—as a check on the passions of the people. Even just having electors
specifically for the purpose of elected the federal president adds complexity that
may be unnecessary. Rather than proceeding from a political compromise (or,
even worse, a partisan desire for nationwide popular vote or a desire for
tradition for its own sake), distinct alternatives can be formulated and
debated without losing the arguments made in the Constitutional Convention.
Both as regards the length of the presidential campaign “season” and the lack
of a sustained focus on public policies even in the so-called “debates,” the
process is clearly broken. When the nationwide popular vote favors one of the
candidates and the Electoral College favors the other, the vulnerability of the
method becomes particularly transparent. Once the status quo has been found to be
broken, the question becomes one of which alternative should be selected. I
submit that considerable attention should be placed on the formulation of such
alternatives, taking account of the delegates’ respective arguments—some of
which have turned out to be more valid than others—rather than dismissing them
in favor of a media-driven (and constrained) public discourse that is unrooted
and without (historical) context.</span> <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span></span></div>
<hr align="left" size="1" width="33%" />
<div style="mso-element: endnote-list;"><div id="edn1" style="mso-element: endnote;"><div style="margin: 0in 0in 0pt;"><span><span><span><span style="font-family: times;"><span>1 <span>James Madison, <i style="mso-bidi-font-style: normal;">Notes of Debates in the
Federal Convention of 1787 Reported by James Madison </i>(New York: W. W.
Norton, 1966): 370.</span></span></span></span></span></span></div>
</div>
<div id="edn2" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;">
<span><span><span><span><span style="font-family: times;"><span style="mso-special-character: footnote;"><span style="line-height: 107%;">2.</span></span><span> Ibid., p. <span>371.</span></span></span></span></span></span></span></div>
</div>
<div id="edn3" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;">
<span><span><span><span><span style="font-family: times;"><span style="mso-special-character: footnote;"><span style="line-height: 107%;">3.</span></span><span><span><span style="mso-spacerun: yes;"> Ibid., p. </span>306.</span></span></span></span></span></span></span></div>
</div>
<div id="edn4" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;">
<span><span><span><span><span style="font-family: times;"><span style="mso-special-character: footnote;"><span style="line-height: 107%;">4. </span></span><span>Ibid., p. 327.</span></span></span></span></span></span></div>
</div>
<div id="edn5" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;">
<span><span><span><span><span style="font-family: times;"><span style="mso-special-character: footnote;"><span style="line-height: 107%;">5.</span></span><span> Ibid., p. 308-9.</span></span></span></span></span></span></div>
</div>
<div id="edn6" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;">
<span><span><span><span><span style="font-family: times;"><span style="mso-special-character: footnote;"><span style="line-height: 107%;">6.</span></span><span> Ibid., p. 368.</span></span></span></span></span></span></div>
</div>
<div id="edn7" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>7. Ibid., p. 306.</span></span></span></span></span></span></div>
</div>
<div id="edn8" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>8. Ibid., p. 368.</span></span></span></span></span></span></div>
</div>
<div id="edn9" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>9. Ibid., p. 307.</span></span></span></span></span></span></div>
</div>
<div id="edn10" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>10. Ibid., p. 309.</span></span></span></span></span></span></div>
</div>
<div id="edn11" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>11. Ibid., p. 368-69.</span></span></span></span></span></span></div>
</div>
<div id="edn12" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>12. Ibid., p. 327.</span></span></span></span></span></span></div>
</div>
<div id="edn13" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>13. Ibid., p. 327.</span></span></span></span></span></span></div>
</div>
<div id="edn14" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>14. Ibid., p. 370.</span></span></span></span></span></span></div>
</div>
<div id="edn15" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>15. Ibid., p. 405.</span></span></span></span></span></span></div>
</div>
<div id="edn16" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>16. Ibid., p. 307-8.</span></span></span></span></span></span></div>
</div>
<div id="edn17" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>17. Ibid., p. 310.</span></span></span></span></span></span></div>
</div>
<div id="edn18" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>18. Ibid., p. 307.</span></span></span></span></span></span></div>
</div>
<div id="edn19" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>19. Ibid., p. 308.</span></span></span></span></span></span></div>
</div>
<div id="edn20" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>20. Ibid., p. 233.</span></span></span></span></span></span></div>
</div>
<div id="edn21" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span style="font-family: times;"><span><span>21. Ibid., p. 307.</span></span></span></span></span></span></div>
</div>
<div id="edn22" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span style="font-family: times;"><span><span>22. Ibid., p. 311.</span></span></span></span></span></span></div>
</div>
<div id="edn23" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span><span>23. Ibid., p. 306.</span></span></span></span></span></span></span></div>
</div>
<div id="edn24" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>24. Ibid, p. 364.</span></span></span></span></span></span></div>
</div>
<div id="edn25" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>25. Ibid., p. 307-8.</span></span></span></span></span></span></div>
</div>
<div id="edn26" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>26. Ibid., p. 308.</span></span></span></span></span></span></div>
</div>
<div id="edn27" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>27. Ibid., p. 363.</span></span></span></span></span></span></div>
</div>
<div id="edn28" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>28. Ibid., p. 218.</span></span></span></span></span></span></div>
</div>
<div id="edn29" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>29. Ibid., p. 364.</span></span></span></span></span></span></div>
</div>
<div id="edn30" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>30. Ibid., p. 363.</span></span></span></span></span></span></div>
</div>
<div id="edn31" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>31. Ibid., p. 327.</span></span></span></span></span></span></div>
</div>
<div id="edn32" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>32. Ibid., p. 364-65.</span></span></span></span></span></span></div>
</div>
<div id="edn33" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>33. Ibid., p. 329.</span></span></span></span></span></span></div>
</div>
<div id="edn34" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>34. Ibid., p. 366.</span></span></span></span></span></span></div>
</div>
<div id="edn35" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>35. Ibid., p. 365.</span></span></span></span></span></span></div>
</div>
<div id="edn36" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>36. Ibid.</span></span></span></span></span></span></div>
</div>
<div id="edn37" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>37. Ibid.</span></span></span></span></span></span></div>
</div>
<div id="edn38" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>38. Ibid., p. 213.</span></span></span></span></span></span></div>
</div>
<div id="edn39" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>39. Ibid., p. 241.</span></span></span></span></span></span></div>
</div>
<div id="edn40" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>40. Ibid., p. 221.</span></span></span></span></span></span></div>
</div>
<div id="edn41" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>41. Ibid., p. 224.</span></span></span></span></span></span></div>
</div>
<div id="edn42" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>42. Ibid., p. 255, 324.</span></span></span></span></span></span></div>
</div>
<div id="edn43" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>43. Ibid., p. 321.</span></span></span></span></span></span></div>
</div>
<div id="edn44" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span>44. Ibid., p. 357.</span></span></span></span></span></span></div>
</div>
<div id="edn45" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span style="font-family: times;"><span><span>45. Ibid., p. 239</span>.</span></span></span></span></span></div>
</div>
<div id="edn46" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span><span style="font-family: times;"><span><span>46. Ibid., p. 491</span>.</span></span></span></span></span></span></div>
</div>
<div id="edn47" style="mso-element: endnote;">
<div style="margin: 0in 0in 0pt;"><span><span><span><span style="font-family: times;"><span>47. Ibid., p. 493.</span></span></span></span></span></div>
</div>
</div>
Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-57518309736681976562021-11-05T15:21:00.006-07:002023-11-18T10:09:42.048-08:00Compromising Public Health for a States' Rights Ideology: The Governor of Arizona Nullified a Federal Law during a Pandemic<p class="MsoNormal" style="text-align: justify;"></p><div style="text-align: justify;"><span style="font-size: large;">On October 27, 2021, I rode on
two mass transit buses in Phoenix, Arizona. Both drivers were knowingly and
willfully violating the federal regulation (42 CFR sec.s 70-71), which requires
transit operators to wear masks during the pandemic even when they are situated behind a plexiglass
barrier. One of the drivers, whom I had twice before seen not wearing a mask,
again had lowered the plexiglass window pane between the driver and customers
paying.<span style="mso-spacerun: yes;"> </span>The first time, I had asked her
to put a mask on, given the federal regulation and her proximity to the
passengers boarding. Replying as if making an announcement, she said, “If
anyone feels unsafe on the bus, they can get off and wait for the next bus.”
That prompted a passenger to insult me. The company subsequently backed up the driver's refusal by saying that the federal law doesn't apply to buses in Arizona. It did, so the company violated federal law with impunity.</span></div><div style="text-align: justify;"><span style="font-size: large;"><br /></span></div><div style="text-align: center;"><span style="font-size: large;"> </span><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjHm0BuUhczIymK-yJBQI-D2UN_nZfV91RgcFpQHJcaY9YSPtMnG8QgQoGhQyGP6vncnFOPf55dp7vsq3cCwE0BdOcioiYhb5w1mDtfDmgrsNGnh3pMU2aqFUtTs1RrucUu7IGJOK9YXEc/s320/bus+driver+violating+a+federal+regulation.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="320" data-original-width="240" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjHm0BuUhczIymK-yJBQI-D2UN_nZfV91RgcFpQHJcaY9YSPtMnG8QgQoGhQyGP6vncnFOPf55dp7vsq3cCwE0BdOcioiYhb5w1mDtfDmgrsNGnh3pMU2aqFUtTs1RrucUu7IGJOK9YXEc/s0/bus+driver+violating+a+federal+regulation.jpg" width="240" /></a></div><div style="text-align: justify;"><span style="font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-size: large;">I reported this incident to the regional
bus authority and the city of Phoenix. Nevertheless I saw her maskless more than a week
later and then during the following week. I did receive a voicemail from TransDev, a
bus-operating company contracted by Metro Valley, informing me that regardless
of the federal law, the company policy does not require bus drivers to wear
masks. In fact, a representative from Metro Valley defiantly declared on a subsequent phone call that drivers
can let maskless passengers board—again, in violation of federal law. Company
policy apparently can nullify federal regulations in Arizona, a U.S. state with
special needs. </span></div><div style="text-align: justify;"><span style="font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="text-align: left;"><span style="font-size: large;">Even though the FBI told me
that it looks to local law enforcement agencies to enforce federal regulations,
a supervisor at one of the police sub-stations told me that his department
would not enforce the regulation. “Oh, so they want to dump it on us,” he said.
Astonishingly, he claimed that only law passed by his state’s legislature is
“real law in Arizona.” About a week later, a police transit supervisor told me
that the chief of police had told the non-supervisory patrol employees not to
enforce the federal regulation, and this directive had come down from the governor.</span></span></div><div style="text-align: justify;"><span style="text-align: left;"><span style="font-size: large;"><br /></span></span></div><div style="text-align: justify;"><span style="font-size: large;"><span style="text-align: left;">As shocking as such corruption
is, the immature, even pathological behavior of the second maskless bus driver
I witnessed on the morning of October 27, 2021 told me after I had asked her to
put on a mask that she didn’t care if a federal regulation requires drivers to
wear masks. “I don’t care. Go ahead, call the FBI,” she said with a daring tone
of presumed impunity. She also encouraged me to call the local police after I
said I would contact them too. “They don’t wear masks either,” she shouted.
Yes, shouted. I replied that I was ending the conversation, which she ignored
until I went to the back of the bus. She then accused me of threatening her.
“Get off my bus!” she exclaimed angrily even though she kept the bus in motion.
She was clearly making up an excuse to get me in trouble for having asked her
to comply with U.S. law. What a strange, absurd mentality, at least outside of
Arizona. Not surprisingly, she had let a maskless man ride. While walking to
the back door to exit the bus, the maskless old male passenger felt entitled pick
up the baton from the driver and shout “I’m vaccinated; I don’t have to wear a
mask” at me. I knew he was ignorant so I did not comment. Nevertheless, she
kept shouting his presumed factoid to me as he got closer. After he left, the
driver once again began shouting insults at me, having dismissed my statement
that I was done with the conversation. She called me a dumbass and a weirdo, and
told me in a dismissive and hostile tone, “Go back to your institution!” My
stop was coming up, so I could not get off the bus, but I did not want to hear
any more from the childish driving having a temper-tantrum. So I began repeating,
“I don’t talk to local creepers.” I had said this to the maskless passenger
too. </span><span style="mso-spacerun: yes; text-align: left;"> </span><span style="text-align: left;">“I won’t let you ride on my bus
ever again,” the driver said. It is significant that she referred to </span><i style="mso-bidi-font-style: normal; text-align: left;">her </i><span style="text-align: left;">bus, in repeating, “I won’t let you
ride </span><i style="mso-bidi-font-style: normal; text-align: left;">my</i><span style="text-align: left;"> bus ever again,” when in
actuality the city of Phoenix owns the bus and she does not have the authority
to ban anyone from ever riding “her” bus ever again. Even were the bus her own,
she would still be required to follow federal law, though she clearly believed
otherwise.</span><span style="mso-spacerun: yes; text-align: left;"> </span><span style="text-align: left;">She even put her two hands to
her ears </span><i style="mso-bidi-font-style: normal; text-align: left;">while operating the bus</i><span style="text-align: left;"> like
a kid would do, and angrily repeated, “I know you are, I know you are,” after I
declared that I do not talk with local creepers. </span><span style="mso-spacerun: yes; text-align: left;"> </span><span style="text-align: left;">It was surreal that any bus driver would
behave like a four year-old. “What are you in kindergarden?” I replied. Even when
I was walking out of the bus and then outside of the bus, the driver was
yelling insults, so I continued repeating my line. It was incredibly pathetic
that a four year-old’s mentality would stop her temper-tantrum only to pick up
her phone to call her supervisor, and yet the bus company’s customer service
does not allow passengers to speak with a supervisor of the drivers in real
time even when a driver is not only abusing his or her authority, but is having
a temper-tantrum. It is precisely because the drivers know that they can
misbehave with impunity that they go on the offensive even more by claiming
that a passenger is misbehaving. It is not surprising that drivers tend to
presume impunity in violating a federal regulation geared to ending a pandemic.
It is not surprising that several drivers in 2020 and 2021 felt entitled to
ignore the local and federal laws, respectively, requiring that passengers and
drivers wear masks. Some drivers actually wore their masks to cover only the
chin area as if that constituted compliance. Arizona’s pre-college education
ranked 49</span><sup style="text-align: left;">th</sup><span style="text-align: left;"> out of the 50 states at the time. Go figure. Presumptive
arrogance combined with astounding ignorance is a toxic combination.</span></span></div><div style="text-align: justify;"><span style="font-size: large;"><span style="text-align: left;"><br /></span></span></div><div style="text-align: justify;"><span style="font-size: large;"><span style="text-align: left;">I submit that this last driver
was so brazen at least in part because there really is no accountability in the
local mass transit system, which includes Metro Valley, the regional transit
authority and TransDev, a private subcontractor that operates the buses, which
are owned by the city of Phoenix. Both Metro Valley and TransDev have told me
that their policies allowing maskless riders and drivers invalidate the federal
law. By the way, a local police patrol employee </span><i style="mso-bidi-font-style: normal; text-align: left;">informed me </i><span style="text-align: left;">(when he was off duty) that bus drivers are not federal
employees to the federal law does not apply to them. “So you locals are ok with
the federal money you get from the feds for your mass transit, but that doesn’t
obligate you to follow their regulations,” I concluded. He gave a thumbs up.
Three weeks earlier, a patrol supervisor </span><i style="mso-bidi-font-style: normal; text-align: left;">informed
</i><span style="text-align: left;">me that the only “real law in Arizona is that which goes through the state
legislature</span><i style="mso-bidi-font-style: normal; text-align: left;">.</i><span style="text-align: left;">” There is virtually no
enforcement of masks on the light rail by security guards either. They
illegally impersonate police officers by wearing silver badges, yet have
admitted that Metro Valley won’t allow them to enforce the local ordinance in
2020 and the federal regulation in 2021. I think the guards are more interested
in intimidating passengers to feel the pleasure of being dominant (albeit
certainly not superior in any way) than in enforcing even federal law.</span></span></div><div style="text-align: justify;"><span style="font-size: large;"><span style="text-align: left;"><br /></span></span></div><div style="text-align: justify;"><span style="text-align: left;"><span style="font-size: large;">It is strange seeing three or
four guards on one half of a car yet not one of the Allied Security employees
are enforcing the federal law as it is even stated on on-board signs declaring,
“Per Federal Law, Masks Are Required.” Once when I heard a train’s operator
make an announcement at every stop, I pressed a red button at an intercom with
the driver. The drivers want passengers to report problems, so it was ironic
that a young black guard rushed to me (I had not seen him in the back) and demanded
to know what I had been talking about. I asked him twice to lift his mask from
his chin to cover his mouth and nose. He obviously felt entitled to break the
law even though signs on the doors and windows were obvious. Without even
waiting for me to answer his question, he became very hostile toward me and
declared that if he ever sees me use the intercom again, he would kick me off
the train. As I was leaving the train, I passed by the operator’s open window. “Of
course we want you to use the intercom to report things like you did—that many
passengers are ignoring my announcement!” I asked her to report the guard.</span></span></div><div style="text-align: justify;"><span style="text-align: left;"><span style="font-size: large;"><br /></span></span></div><div style="text-align: justify;"><span style="font-size: large;"><span style="text-align: left;">In short, the arrogance,
corruption, and incompetence at the state, city and mass transit levels at
least in Phoenix are such that someone who is not used to such a sordid,
ignorant, and hostile culture cannot but be astonished—jaws-dropped astonished.
Not only does the bus company ignore reports of illegal behavior; the company
claims that its policy, which contradicts federal law, is the only thing that
the company acknowledges as valid. How could anyone at a company believe that a
company policy nullifies a federal law? How could a police chief tell her
police force not to enforce a federal law, when according to the U.S.
Department of Justice, the F.B.I. routinely relies on local law enforcement to
play a role in enforcing federal law. Yet in Phoenix, Arizona, a police supervisor
specializing on transit refused to acknowledge that state officials </span><i style="mso-bidi-font-style: normal; text-align: left;">ever </i><span style="text-align: left;">enforce federal law. “They want
their laws enforced? They will have to send feds to enforce them.”</span></span></div><p></p>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-15307546570661644132021-11-05T13:17:00.001-07:002021-11-05T13:31:47.102-07:00On the Role of Business in a Societal or Global Catastrophe<div style="text-align: justify;"><span style="font-size: large;">While it is obvious that a
business or industry can affect and be affected by its environment, such as by
polluting a river and a hurricane, respectively, it is less well known that a
business or an entire industry can cause or facilitate a societal or global
crisis. Whereas polluting a river can be answered with government regulation,
the very legitimacy (and thus ongoing operations) of a company or even an
entire industry is arguably at risk in knowingly creating or significantly
worsening a societal/global crisis. The latter role goes beyond the scope of
government regulation and corporate social responsibility, although broadening
or just enforcing anti-trust laws may be sufficient to deal with the lost
legitimacy. That is to say, what I have in mind is another genre or type of
problem.<br />For instance, Exxon funded its
own scientific studies on the effects of the oil industry on the Earth’s
climate as early as in the 1950s. Certainly by the 1970s, the company’s
management knew that the ongoing release of CO2 into the atmosphere would cause
<i style="mso-bidi-font-style: normal;">severe </i>climatic problems, and yet the
company’s public-relations lied to the public that the company’s studies were
not decisive. Given the industry’s clout/money with members of Congress and
even presidents, the company could keep the government from legislating and
regulating geared to an expected crisis. Exxon (and the entire industry) played
a major role in causing global warming, which could result in the extinction of
our species, not to mention reduce the production of food-stuffs and trigger
mass-migrations and even wars such as over water-rights.<br /> Business ethicists can be
expected focus on the ethical principles violated lying and the related
willingness to be a major contributor to a planetary crisis as regards
habitability. In other words, what should Exxon have done? Scholars of business
and societal culture focus on the incompatibility of corporate and societal
cultural norms and values. Within that field of business and society, advocates
of corporate social responsibility design company charitable programs oriented
to specific societal problems, especially if the company had contributed to the
ongoing (rather than crisis) problems. Operating a food bank for the poor is
not like saving the planet, or our species. Political economists cover the
legislative and regulatory capture by an industry and the resulting muted
regulations. Systems theorists can explain how all of these parts work
together—an entire system with a fatal flaw in its basic design and operation. The
ability of business to cause or even greatly facilitate a societal or global
crisis is perhaps so new in the twenty-first century that this sort of problem
has not yet been studied.<br />In 2007-2008, mortgage
producers and investment banks created sub-prime mortgages and made high-risk
bonds based on the risky mortgages. Investment banks even sold insurance for
holders of the bonds. The financial derivative and insurance markets became so
large that when they collapsed, a financial crisis occurred. An industry had
put the world’s financial system itself at risk of collapse. Financial
regulation was not sufficient; a gigantic financial infusion from the Congress
and the Federal Reserve was necessary. Unlike the banking crisis of 1907, more
than a socially responsible J.P. Morgan would be needed. Society, through its
government, had to step in both for the U.S. economy and the global economy.
The crisis was that large. That the financial sector was culpable and yet could
receive federal money without strings (so even bonuses could be paid!) suggests
that the notion of a few large companies or an industry creating a major
societal-level (e.g., the economy) crisis was new. Wall Street money as
electoral campaign contributions doubtless played a role in the refusal of
Congress and the U.S. president to break up the big banks, but the larger
question of what to do when a business or industry creates a societal crisis
rather than localized typical problems had not been considered in its own
right.<br /> To be sure, a government can
enable a company to create a societal crisis. Take, for example, the
public-health crisis during the coronavirus pandemic that began in 2020. In
Phoenix, Arizona, the regional transit authority and the two subcontractor
companies ignored local law requiring that masks be worn on the buses and
light-rail. A significant proportion of bus drivers went maskless and/or
allowed passengers to ride without wearing masks <i style="mso-bidi-font-style: normal;">even when federal law required masks even of operators behind a
plexiglass shield. </i>A representative of TransDev, one of the subcontracting
companies, said that the law didn’t matter because of the company’s policy,
which permitted masks and presumably overrules federal regulations. A
representative of Metro Valley, the regional authority, refused to enforce the
federal regulation on the light rail as well as against the willful bus drivers
(and passengers). A transit supervisor on the police force told me that the
chief of police had told police employees not to enforce the federal regulation
even though, according to the FBI, local law enforcement is regularly relied on
to enforce federal law. “They are federal; we are state,” the police supervisor
told me. He also told me that the governor had told the chief not to enforce
the federal regulation. That federal money goes into the mass transit system in
the Phoenix metropolitan area is apparently no reason to follow federal law on
mass transit. One police employee told me that “bus drivers are state employees
(which is false) so they are not bound by federal regulations. A second police
patrol supervisor had told me that the only real law in Arizona is that which
“goes through the state legislature.” All three men were not only sure that
they could not be wrong, but were extremely rude and dismissive towards me. I
concluded that Arizona is in need of federal oversight.<br /> At the company level, TransDev
has been knowingly misleading its bus drivers into thinking that they don’t
have to wear a mask <i style="mso-bidi-font-style: normal;">and that passengers
need not either</i>—in spite of the company’s own signs, “Per federal law,
masks are required on the buses.” A representative from Metro Valley, the
regional authority, told me to ignore the signs. This mentality within at least
two organizations is itself a problem. In fact, with Arizona having the highest
infection rate in the U.S. on at least November 3, 2021, the mentality and the
resulting patchwork of masks on the local buses and light rail can be said to
be a significant cause of the ongoing pandemic locally. At the very least, the
positive correlation is troubling, though conveniently not to the governor,
chief of police, regional transit authority, or TransDev company.<span style="mso-spacerun: yes;"> </span>The brazenness alone is enough for informed
minds to question the legitimacy of at least the local police department (which
was being investigated by the FBI for having intimidated and stopped peaceful
political protesters) and the TransDev company. The matter of the higher
officials, including the governor, the mayor of Phoenix, and the city manager,
is of course more political. I had spoken with the mayor’s office manager and
had sent an email to the manager’s office (my request to speak with a
managerial-level staffer resulted in a call from an intern). Besides the sheer
willfulness, lack of respect for federal law, and ignorance all around, the
culpability of a company (TransDev) in giving the ok for bus drivers and
passengers to go maskless, and another company (Allied Security, backed up by
Metro Valley) to allow security employees to go maskless and allow passengers
to go maskless on the light rail when the state ranks highest in the
pandemic-danger in the U.S. suggests that companies can create or severely
worsen a crisis with impunity both within the companies themselves and in a
corrupt and ignorant political culture. The question of legitimacy is in this
case broader than just for a few companies.<br /> Company managements are not
always above lying to the public. The case of Boeing involves a management
lying to its pilots, customers, and the public, resulting in preventable
deaths, a significant decrease in the company’s reputational capital, and
arguably even a societal-level crisis at an early stage regarding aviation. The
company installed new software that could be influence by a sensor that could
malfunction. Saving the company the cost of training the pilots, the company’s
management did not inform those employees of the addition. The ethical
dimension is pretty clear (consider Kant’s dicta about lying). What is less
clear is the matter of a company being of such size in a market and the latter
being so salient in society that the company can unilaterally cause a crisis at
the societal level. Announcing a program in corporate social responsibility,
such that helps children to keep up in school, wouldn’t suffice; the harm in a
societal crisis is so much greater than are the societal problems to which CSR is
geared. At the very least, the board and upper management could have been
replaced by a law; the company’s response was to replace the CEO with the “Plan
B” insider on the board. That is, playing a significant role in causing a
societal crisis could justify the intervention of a government, rather than
leaving it up to a company’s shareholders. Where the government is itself
corrupt, such as in Arizona, the needed intervention can come from a federal
government (e.g., U.S. and E.U.) or even other countries against both the
government and the particular company involved. Corporate social responsibility
and business ethics are geared to a lesser scale of harm. Causing a societal or
global crisis does not reduce to unethical business and is not redressed by corporate
social responsibility. Instead, society has more legitimacy to intervene and in
a more drastic way, given the nature of a crisis. </span></div><p class="MsoNoSpacing" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNoSpacing" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNoSpacing" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNoSpacing" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNoSpacing" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNoSpacing" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNoSpacing" style="text-align: justify;"><o:p></o:p></p>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-34518585945673923722021-10-22T15:25:00.004-07:002023-11-20T11:51:08.379-08:00On the Weakening of the Rule of Law in the United States<div style="text-align: justify;"><span style="font-size: large;">When law enforcement (i.e.,
police) conveniently exclude themselves from obeying law, the contradiction
should, I submit, be sufficient for the perpetrators to be fired. It is not
enough for their boss to chastise or even suspend the hypocrites, for they are
inherently unfit for law enforcement, and should instead be treated as actual
or potential criminals. What about when such a sordid mentality comes to
proliferate through a police department, especially if it lies beyond the
competence of a city government to hold even such a department accountable?
What if a local political “law and order” culture tacitly exempts police and
goes on to look the other way as the latter render the locality into a police
state? I contend that the Phoenix metropolitan area, including the suburbs
surrounding Phoenix itself, furnishes us with a case in point.</span></div><div style="text-align: justify;"><span style="font-size: large;"><br /> In a subway station in New
York City in October, 2021, two cops shoved a passenger out of the station
because he had asked them why they were not wearing masks, which federal law at
the time required be worn on subways, light rail, street cars, buses, and
indoor subway stations. The alpha male policeman lied in declaring to the
passenger that he was “a disturbance,” and subsequently shouted. Sounds like a
bully to me. Not exactly a fitting persona for people who can legally kill
others, yet how many police departments willow out such misfits?</span></div><div style="text-align: justify;"><span style="font-size: large;"><br /> Whereas the bully component
can be dramatic enough to grab headlines in the news, the presumptuous decision
made by police employees—and this is what “officers” really are—that the law
does not apply to them is noxious in its arrogance. As NYC mayor de Blasio said
after viewing the video of the subway incident, “if you’re going to be in law
enforcement, you actually have to participate in following the law.”<span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span face=""Calibri","sans-serif"" style="line-height: 115%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">[1]</span></span><!--[endif]--></span>
The mayor noted that the police had been given the mask-requirement instructions
“a thousand times.” It was not as if the two police employees did not know that
they were breaking the rule—and violating a federal regulation!—when they aggressively
turned on the passenger who was motivated to see that the law was enforced. Janno
Lieber, CEO of the MTA (the metro transit authority) put it well in saying, “I
don’t want to see [passengers] being pushed out of the system by people who are
not complying with the rules that the federal government sets. Come on, enough.”<span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span face=""Calibri","sans-serif"" style="line-height: 115%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">[2]</span></span><!--[endif]--></span> </span></div><div style="text-align: justify;"><span style="font-size: large;"><br /> Unfortunately, “Come on,
enough” could be said of the Phoenix (Arizona) police department, which the
U.S. Justice Department had found guilty of lying to the department about
having denied police-accountability protesters their constitutional right of
political protest. To knowingly intimidate protesters with excessive shows of
guns, police employees and vehicles, and low-flying helicopters reveals an
immaturity and lack of judgment on proportionality that de facto de-legitimate
a police department even if such qualities are salient in the local culture.</span></div><div style="text-align: justify;"><span style="font-size: large;"><br /> In Phoenix, self-exemption
from having to obey federal law had become overwhelmingly salient in the local
culture, given the proportion of light-rail and bus passengers who did not wear
masks—or wore them only covering their respective chins! Even a significant
number of bus drivers had self-exempted themselves from the signs on the buses:
“As Per Federal Law, Masks Must be Worn on the Bus.” Calling the mass transit
authority (Metro Valley) to report some of the drivers who were disobeying
company policy and violating federal law, I was stunned to hear, “Our drivers
don’t have to wear masks. Don’t pay attention to the signs on the buses.” A
manager of TransDev, one of the bus-operations sub-contractor, left a voicemail
<i>informing me </i>that even though masks
were required by federal law, the company had no such policy.” Interesting.
Company policy trumps federal law. Welcome to Arizona.</span></div><div style="text-align: justify;"><br /></div><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiTKGxNahyazDdF8oBOSYpWNWCbdVTcApimzTVF2nT7Aqu5-e57L3NhIy1tjyfsmwpiIxd8ScuBBYFD5wf5bADG5CCRzb5h3MNK_kP5f7UF7zoGRMVOL8pkgGfRJpLNB1DW_QDhwH0ggOg/s320/bus+driver+willfully++violating+a+federal+regulation.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="320" data-original-width="240" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiTKGxNahyazDdF8oBOSYpWNWCbdVTcApimzTVF2nT7Aqu5-e57L3NhIy1tjyfsmwpiIxd8ScuBBYFD5wf5bADG5CCRzb5h3MNK_kP5f7UF7zoGRMVOL8pkgGfRJpLNB1DW_QDhwH0ggOg/s0/bus+driver+willfully++violating+a+federal+regulation.jpg" width="240" /></a></div><div class="separator" style="clear: both; text-align: justify;"><span>In October, 2021, with passengers passing by to pay, this bus driver was violating federal law by refusing to wear a mask. I reminded her that masks are required on city buses. After I took my seat, she made a general announcement that if any (paying) customer on the bus feels unsafe, he can get off and catch the next bus. Notice that the driver had lowered the plexiglass "window" pane and thus was being unsafe (and thus inconsiderate). Her passive aggression in her hostile announcement added insult to injury even though she felt convinced that she was entitled to break federal law. This sense of entitlement backed up by passive (and active) aggression is salient in the local culture. I called in a complaint to the regional transit authority (Metro Valley) against that driver. </span></div><div class="separator" style="clear: both; text-align: center;"><br /></div><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEicMKTqFFghOgn8pBDIpmNmaFTqHwGFslPETaNbP9ux4JRXO6Y-2VeNlf5Knnh_VTMKnT7MZnUcHhF_JfvgdkvDBtPYOesyEggmjhgNQIMap94_bpWijiJEONY7UEZVOX6F8Zt-PP5MxyM/s320/bus+driver+violating+a+federal+regulation.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="320" data-original-width="240" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEicMKTqFFghOgn8pBDIpmNmaFTqHwGFslPETaNbP9ux4JRXO6Y-2VeNlf5Knnh_VTMKnT7MZnUcHhF_JfvgdkvDBtPYOesyEggmjhgNQIMap94_bpWijiJEONY7UEZVOX6F8Zt-PP5MxyM/s0/bus+driver+violating+a+federal+regulation.jpg" width="240" /></a><div class="separator" style="clear: both; text-align: justify;"><span>A few weeks later, I witnessed the same driver again not wearing a mask. At least she had the plexiglass window pane up, though the federal regulation requires masks be worn by operators even behind plexiglass. I had heard back from TransDev, a subcontractor bus-operating company, telling me on my voicemail that the company policy allows drivers to go maskless, even in spite of the federal regulation. Metro Valley customer service had a week earlier informed me similarly that passengers can board the buses even though the company's signs on the buses forbit it as "per federal law." Such entitlement! Such willfulness! Such passive aggression! Such ignorance! A company policy does not outweigh a federal law or regulation.</span><span style="font-size: large;"> </span></div></div><div style="text-align: justify;"><span style="font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-size: large;">Seeing a managerial-level Phoenix policeman walking from his "Supervisor" car to the police substation on Central Ave near Arizona State
University’s downtown Phoenix campus, I told him that I had encountered: bus
drivers (and light rail security guards) refusing to wear masks and even allowing passengers to ride without
wearing masks. I added that the regional transit authority and one of its sub-contractors
arrogantly and ignorantly <i>declaring </i>that
such passengers can ride and bus drivers need not wear masks.</span></div><div style="text-align: justify;"><span style="font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-size: large;">To my profound, jaw-dropping
astonishment, the police patrol manager <i>informed
me </i>that “the only real law is Arizona law,” and my governor told us that we
don’t have to follow that federal mandate.” Every law and regulation mandates, I
said to correct for the man’s ignorant belief that a mandate is optional and
does not have the force of law. I pointed out that state governments cannot
constitutionally nullify federal law; South Carolina had learned this lesson in
1832. I also cited the Supremacy Clause of the U.S. Constitution. “Where did
you learn that?” the policeman asked, “At Yale?” I had told him that I had
studied political theory (as well as theology) at Yale. The man’s disdain for
higher education was just as salient as was his sordid ignorance, and of course
he presumed that he could not be wrong. Unfortunately, the local workforce in
general was saturated by unbelievable ignorance that would presume itself to be
infallible and lash out as if in getting even.</span></div><div style="text-align: justify;"><span style="font-size: large;"><br /> I reported my conversation as
well as the messages from the regional transit authority and its TransDev
subcontractor to the office manager of the Phoenix mayor’s office. I even
called the city manager’s office and asked for a managerial level employee to
return my call. Instead, a misleading intern called me. Meanwhile, nothing
changed in the mass transit system. Given the decadence in the local culture, I
would have been surprised had anything changed. I was most concerned that the
city government would not pounce on such outrageous statements by a police
manager concerning federal law. Such utter corruption and an inert local
government could produce a toxic, perfect storm beyond the reach of the U.S.
Justice Department to counter, for the local police department and regional transit authority (and its two operations sub-contractors) had become infused with the local culture. </span></div><div style="text-align: justify;"><span style="font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-size: large;">Specifically, I am referring here to the sense of entitlement that laws can be ignored or simply dismissed if they are inconvenient, and the defense mechanism of hostility in the face of having the bloated, self-serving sense of entitlement questioned or contradicted outright. For instance, I called the police non-emergency number in 2021 to report loud bass from cars at a self-serve carwash near where I was living at the time. The offender was still present when the police arrived. To my utter shock, one of the two patrol police employees claimed that no law prohibits loud noise in a residential neighborhood. "The business owner has posted signs--right over there--citing the Arizona statues and the local ordinance number (2-22). Would you take a look?," I countered in a calm voice that belied my real objection to his ignorance. "No, I won't," he objected like a child. So the man-child would not even go to the offending pick-up truck to speak with the young men. While I was waiting for the business owner to call me back, the man-child slowly followed me as if I were a suspect rather than witness reporting an ongoing, almost daily crime that the local police had failed utterly to stamp out. The man-child's sense of entitlement was evident not only in his lying about the law, but also his abject refusal to drive or walk over to one of the signs. He assumed himself infallibly to be on solid ground, from which he then tried to intimidate me (hostility). Getting back at me for what? What sort of sordid mentality invents retribution out of thin air? A week after I had reported the man-child's behavior to his department, I received a call from a patrol supervisor, who was intent on arguing with me by insisting that the sign read "No Trespassing." "I don't doubt that such a sign exists there, but that's not the signs that I was referring to when I said that the signs read 'No loud noise, no revving engines, ...' and at the laws are cited at the bottoms of the signs--one posted at each post." The woman hung up on me. There would be no accountability within that woefully stubborn and corrupt police department, which had lied to the FBI concerning another matter: intimidating protestors who were protesting against police brutality in 2020. A dysfunctional culture, whether of a locality or an organization, is extremely difficult to cure. </span></div><div style="text-align: justify;"><br /></div><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjXeVWM7oy0IPkUdgAVM8-ScTpamqfyM_jCtkDgco9X2G3viHXaNFKpok3lFY9GkBfsAurrxJuktK0Fi3zDwhH0WDJGqaOJR8joS-thMaGn9Q3lXZf2vivWfExolkIeOEm328LDevxLViw/s320/sign+at+car+wash.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="320" data-original-width="240" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjXeVWM7oy0IPkUdgAVM8-ScTpamqfyM_jCtkDgco9X2G3viHXaNFKpok3lFY9GkBfsAurrxJuktK0Fi3zDwhH0WDJGqaOJR8joS-thMaGn9Q3lXZf2vivWfExolkIeOEm328LDevxLViw/s0/sign+at+car+wash.jpg" width="240" /></a></div><br /><div style="text-align: justify;"><br /></div><div>
<hr align="left" size="1" width="33%" />
<!--[endif]-->
<div id="edn1" style="text-align: left;">
<div style="text-align: left;"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference"><span face=""Calibri","sans-serif"" style="line-height: 115%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">[1]</span></span><!--[endif]--></span>
Liam Reilly, “<a href="https://www.cnn.com/2021/10/20/us/nyc-subway-masked-commuter-unmasked-officers/index.html"><span style="color: #7f6000;">NYC
Mayor ‘Troubled’ by Video Showing Unmasked Officers Forcibly Removing Masked
Subway Commuter</span></a>,” CNN.com (October 21, 2021).<br /><span class="MsoEndnoteReference"><span class="MsoEndnoteReference"><span face=""Calibri","sans-serif"" style="line-height: 115%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">[2]</span></span><!--[endif]--></span>
Ibid.</div><p class="MsoEndnoteText"><o:p></o:p></p>
</div>
<div id="edn2" style="text-align: left;">
<p class="MsoEndnoteText"><o:p></o:p></p>
</div>
</div><div style="mso-element: endnote-list;"><div id="edn2" style="mso-element: endnote;">
</div>
</div>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-68659604193353239902021-01-27T16:28:00.002-08:002021-01-27T16:28:30.720-08:00Arizona’s Dysfunctional Business and Governmental Culture Creates a Crisis in the Coronavirus Pandemic<p style="text-align: justify;"></p><div><div style="text-align: justify;"><span style="font-size: large;"><span style="font-family: times;">On January 15, 2021, the New York Times reported that
Arizona had the highest 7-day daily average </span><i style="font-family: times; mso-bidi-font-style: normal;">per
capita </i><span style="font-family: times;">of deaths and new cases of the new coronavirus, covid-19.</span><span class="MsoEndnoteReference" style="font-family: times;"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[1]</span></span><!--[endif]--></span></span><span style="font-family: times;">
On one day, Arizona had 11,324 new cases.</span><span class="MsoEndnoteReference" style="font-family: times;"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[2]</span></span><!--[endif]--></span></span><span style="font-family: times;">
“We’re the hottest spot in the U.S. and among the hottest spots in the entire
world,” said Keith Frey, the chief medical officer for Dignity Health’s Arizona
division.</span><span class="MsoEndnoteReference" style="font-family: times;"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[3]</span></span><!--[endif]--></span></span><span style="font-family: times;">
“If we don’t slow this down over the course of the next days and weeks, then we
will be fully into that crisis zone,” he added.</span><span class="MsoEndnoteReference" style="font-family: times;"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[4]</span></span><!--[endif]--></span></span><span style="font-family: times;">
It would be a crisis of the state’s own making, and thus preventable but for
the local culture at least in the Phoenix metro area. In other words, the
crisis did not happen to Arizona; rather, the crisis was in large part homemade,
and can thus be used as a window into a dysfunctional culture in the United
States.</span></span></div><span style="font-family: times; font-size: large;"><div style="text-align: justify;">In spite of county and municipal laws and company policies
on wearing masks in stores and on public transportation (buses and the light
rail), many stores and the mass-transit company forbid employees from even
asking incoming customers to wear a mask (or wear one correctly over the nose
and mouth). Grocery stores were particularly problematic, with even their own
employees walking around with impunity without masks on (properly). “We don’t
enforce that requirement,” a grocery-store director told me. How, then, can the
policy be considered to be a requirement? “It just is,” a store manager told
me. That wearing masks was not only a company requirement, but also a city and
county law was of no interest to the manager. “We don’t enforce the law,” he
quipped. “But you are violating it by letting people in who are not wearing
masks,” I retorted. This was not his concern.</div><div style="text-align: justify;">The Phoenix metropolitan mass-transit company, and thus its
two subcontracted bus-operating companies, also had a policy forbidding
employees from enforcing the company’s own requirement and the local law. Some
bus drivers would even not wear a mask or wear one without covering their noses
and mouths! Some light-rail security employees subcontracted by the
mass-transit company wore their masks over their chins too, as did a significant
proportion of the rail passengers. Some security employees asked passengers to
wear their masks correctly, while most of those employees did not. The notion
that masks were required on the trains was a farce, and yet notwithstanding
this, the company’s representatives had no problem defying logic itself by
insisting that masks were required. <span style="mso-spacerun: yes;"> </span>It
was as if the company policy and the county law mandating masks on public
transportation simply did not exist, and yet they did. “It’s not really a law,”
a customer-service employee told me. Why? Because the county doesn’t have a
legislature and only one of them can pass laws. The county board was apparently
extra-governmental in nature.</div><div style="text-align: justify;">Both retail and the mass transit were exploiting an
exception, that of medical exceptions, to invalidate the rule. Incredibly, the
stores and mass-transit company used this exception to justify refusing even to
ask customers and passengers, respectively, to cover the nose and mouth area
with an existing mask. People with medical conditions exempting them from
wearing masks would not have masks on. The absurdity of allowing an exception
(e.g., a medical condition) to condemn a requirement was permitted in the
dysfunctional culture and amid a lack of accountability by regulators.</div><div style="text-align: justify;">The problem was exacerbated by the political extremism that
was salient in the state. A steadfast refusal to obey the law on wearing masks had
a significant role in the number of people not wearing masks in stores and on
public transportation. Such people could easily exploit the managerial
incompetence both in retail and mass transit. It does not take long to realize
that an intentionally-unenforced requirement is not a requirement, even if this
point is not grasped by company managers. Yet the managerial dysfunction enabled
this condition to go on for almost a year as of January, 2021. In such a
political culture wherein a significant proportion of residents believe they
are justified in breaking the law and ignoring company policies, it can be
reckoned as inexcusable for companies to follow the invalid logic that the
existence of an exception invalidates a rule (or requirement). In other words,
it is negligence pure and simple. The lack of accountability, which was
well-ensconced in the culture within companies as well as between businesses
and local and state government, enabled the corruption that gave the virus the
upper hand. It was as if the locals could not help themselves.</div><div style="text-align: justify;">Moreover, the local culture wherein political extremism was
salient allowed for the erroneous belief that the public good is simply the
aggregate of individual wills. Where enough wills decide not to wear masks
indoors in public and on public transit, the aggregate public good falls short
of being above the ability of the virus to spread. The public good as merely
the aggregate of individual wills thus is not good enough; it falls short of
what the public good actually is (e.g., being greater than the ability of the
virus to spread). The understatement of the public good can be understood too
as the belief that the general will (e.g., Rousseau) is reducible to the
aggregation of private wills.</div><div style="text-align: justify;">The good of the whole, I submit, is more than
the sum of the individual parts because some parts may even detract from the
public good and thus understate it if it is taken to be merely the aggregation of
individual wills. That the market value of a product is determined by the
aggregate supply and demand does not mean that the public good is likewise
determined. For one thing, the market value of a product is in a closed system
(the aggregate supply and demand) whereas the public good is open-ended. In
other words, the public good can be higher than the aggregate of the individual
wills would have it because enough private-benefit-only wills can detract
appreciably from what is the good of the whole. If enough people refuse to wear
masks indoors in public places, and stores and even governments look the other
way, the result is significantly below the good of the whole, which in this
case is stopping the coronavirus. By its self-inflicted crisis, Arizona was
functioning well below its own good, and a highly dysfunctional local mentality
is to blame.</div></span></div><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal"><o:p></o:p></p>
<div style="mso-element: endnote-list;"><!--[if !supportEndnotes]--><br clear="all" />
<hr align="left" size="1" width="33%" />
<!--[endif]-->
<div id="edn1" style="mso-element: endnote;">
<p class="MsoEndnoteText"><span style="font-family: times; font-size: medium;">1. Jordan Allen et al, “<a href="https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html"><span style="color: #783f04;">Coronavirus
in the U.S.: Latest Map and Case Count</span></a>,” <i style="mso-bidi-font-style: normal;">The New York Times</i>, January 15, 2021. <o:p></o:p></span></p>
</div>
<div id="edn2" style="mso-element: endnote;">
<p class="MsoEndnoteText"><span style="font-family: times; font-size: medium;">2. Alicia Caldwell and Ian Lovett, “Arizona Is America’s Covid-19 Hot Spot and on
the Brink of Crisis,” <i style="mso-bidi-font-style: normal;">The Wall Street
Journal</i>, January 15, 2021.<o:p></o:p></span></p>
</div>
<div id="edn3" style="mso-element: endnote;">
<p class="MsoEndnoteText"><span style="font-family: times; font-size: medium;">3. Ibid.<o:p></o:p></span></p>
</div>
<div id="edn4" style="mso-element: endnote;">
<p class="MsoEndnoteText"><span style="font-family: times; font-size: medium;">4. Ibid.</span><o:p></o:p></p>
</div>
</div><br /><p></p>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-42325302106708357412021-01-05T15:03:00.003-08:002021-01-05T15:04:59.906-08:00Ethical Human Resources Management<p style="text-align: justify;"></p><div><div style="text-align: justify;"><span style="font-family: times;"><span style="font-size: large;">Ethics applied to human resource management is typically
thought to boil down to treating subordinates well. Kant’s categorical
imperative, treat other rational beings not just as means, but also as ends in
themselves, applies to this sense of ethical HR management. Specifically, human
beings are not only cogs in a machine; they have lives outside of work that
should not be expected to reduce to serving the interests of the employer.
Another side of HR management also exists, however, that concerns the handling
of unethical employees. Such handling can be ethical or unethical.</span></span></div><span style="font-family: times; font-size: large;"><div style="text-align: justify;">Front-line employees who deal with customers whether in
person or at a call center are especially subject to customer complaints. The
choices that such employees make on how to deal with customer complaints
regarding themselves can be ethical or unethical. For instance, an employee who
resists a customer’s request to speak to the employee’s supervisor acts
unethically by exploiting the conflict of interest. The conflict lies in the employee
putting his or her own vocational interest above the interests of the customer
and even the company. Gate-keeping refers to an employee’s efforts in getting
the customer to say why he or she wants to speak with a manager so if the
reason reflects badly on the employee, he or she can lie about a supervisor
being available or insist that the customer speak only to the employee about
the issue. Such an employee is operating at a primitive level—that of
self-preservation—rather than as a duty-bound agent of a principal (e.g., a
company).</div><div style="text-align: justify;">I contend that a company’s management that does not have
adequate safeguards against such an exploitation of a conflict of interest
operates unethically with respect to its human resources. Should a customer
inform a supervisor of a specific employee who is exploiting the conflict of
interest and yet the supervisor does not set negative consequences for the
employee <i style="mso-bidi-font-style: normal;">and </i>notify middle-management
that the company’s safeguards against such exploitation are not sufficient acts
unethically too. Safeguards are possible beyond relying on individual customer
complaints. The latter strategy is flawed because the complaints that actually
reach a supervisor are reduced in conditions in which employees can get away
with exploiting the conflict of interest. Put another way, a company is
unethical in relying on individual complaints to willow out problematic
employees as a safeguard because it is hampered by the exploitation itself.
Interestingly, whereas exploitation <i style="mso-bidi-font-style: normal;">of </i>employees
is a common refrain, an employee’s exploitation of customers is less commonly
known.</div><div style="text-align: justify;">Stronger safeguards are ethical where their efficacy cannot
be compromised by an employee’s exploitation of customers. Concerning phone
calls, for example, the greeting could include the following: “At any time
while speaking with a representative of the company, you can press 5 should you
like to report a problem you are having with the representative.” The call
could go to a designated manager who acts as a safeguard. In a store, a
designated desk could be identified as the place where customers can go if they
have had a problem with an employee. Unlike a typically customer-service desk,
the person taking the complaints should hold a rank higher than that of the
entry-level employees. Unfortunately, entry-level employees may tend to cover
for each other, and thus extend the conflict of interest rather than curtail
it.</div><div style="text-align: justify;">Internal audit departments could definitely add assessing
weak as well as presumably strong safeguards. Calls to respective
customer-service departments could be made, and verification could be applied
not only to those calls, but also on real complaints. Problems may be difficult
to detect. As a case in point, the customer service process used by the
regional transit authority in Phoenix, Arizona begins with an employee in Metro
Valley’s customer-service department. Complaints on bus drivers are sent to
their respective supervisors, yet they are known to cover for their respective
drivers rather than provide accountability. Also, drivers circumventing company
policies, including those regarding the coronavirus pandemic, has also been a
major problem. Bad driving, such as braking too hard, and, relatedly, driving
fast to accrue enough time to take smoking breaks, have also been endemic and
beyond the reach the process of accountability. Aggravating the matter of
accountability, the driver-supervisors work for the sub-contracted
bus-operating companies; at least one of which dismissed videos of bad braking
in 2018. In short, the customer-service department’s process of handling
complaints and feedback is grossly inadequate, given the behavior of enough
drivers and their supervisors. An audit would ideally uncover the corruption
and come up with a process that takes the problematic drivers and supervisors
(i.e., the dysfunctional culture) into account. Accountability is indeed
difficult in such organizations in which employees regularly flaunt company
policies and the immediate supervisors enable such behavior by refusing to
enforce the policies even where unsafe driving and passenger health are
concerned.</div></span></div><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal"><o:p></o:p></p><div style="text-align: justify;"><br /></div><p></p>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-4562143130858440422020-11-10T14:24:00.001-08:002020-11-10T14:24:55.552-08:00Corporate Federalism: Did AOL Miss an Opportunity?<div style="text-align: left;"><div style="text-align: justify;"><span style="font-family: times; font-size: large;"><span><span style="color: black;">Citing twelve past and present AOL employees, The Wa<span style="mso-bidi-font-style: normal;">ll Street Journal</span> characterized AOL in 2011 as a “culture of clashing fiefs and personalities created by a rapid series of acquisitions that haven’t jelled.”[1] Just in managing the likes of Michael Arrington and Arianna Huffington, Tim Armstrong had his hands full as CEO. Both Arrington and Huffington were strong defenders of editorial independence in their respective units. Arrington started a venture capital firm partly financed by AOL to invest in tech firms even as Arrington’s division at AOL, TechCrunch, wrote on technology firms. The problems for AOL went well beyond acquiescing in a structural conflict of interest of TechCrunch writing on particular tech companies while investing in some of them but not others. A person familiar with AOL said that Armstrong “had a macro vision that was right but didn’t have the right plan to implement it.”[2] That is to say, his visionary leadership was good but his strategic management was bad. Strategic leadership demands better. </span></span>AOL may have been a good candidate for a federal system of governance because the publishing units needed some autonomy even at the cost of foregone corporate cooperation. </span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;">In a federal system adapted to a corporation, each division or acquisition is like a semi-sovereign state with some autonomy from the general government, which includes the board of directors and the CEO. Were the board by analogy the constitutional court rather than part of the federal government, then it would be too easy for conflicts of interest to be exploited at the expense of division autonomy. This arrangement does not compromise the control that comes with property rights, for the shareholders would still be able to vote on major conflicts wherein a division claims that its autonomy is being compromised by a CEO or board.</span></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><div style="text-align: justify;"><span style="color: black;"><span style="font-family: times; font-size: large;">The federation form—similar to the Japanese conglomerate “family” of businesses centered around a banking division though with each division having some autonomy from headquarter—is perhaps ideally suited to a publishing company in which pressure exists to tailor articles to particular companies favored financially by a division or the publishing company as a whole. In other words, reconciling editorial freedom (and credibility) with the synergy possible from corporate coordination (otherwise why make the acquisitions in the first place?) may be well-suited to the federal form wherein the parts and whole each of some areas of autonomy from the other. The limited autonomy itself must be in the stockholders’ long-term financial interest; this is not difficult, as sacrificing editorial freedom for immediate financial gain is typically detrimental in the long run. </span></span></div></div><br /><div class="MsoNormal" style="margin: 0in 0in 0pt;"><span style="font-family: times; font-size: medium;">1. Jessica E. Vascellaro and Emily Steel, “<a href="http://online.wsj.com/article/SB10001424053111904836104576558993970961586.html?mod=WSJ_hp_LEFTWhatsNewsCollection"><span style="color: #783f04;">Culture Clashes Tear at AOL</span></a>,” <i style="mso-bidi-font-style: normal;">Wall Street Journal</i>, September 10-11, 2011. </span></div><span style="font-family: times; font-size: medium;">2. Ibid.</span></div>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-27852729303535260282020-11-10T13:52:00.001-08:002020-11-10T13:52:35.780-08:00Taxation and Economic Inequality<div style="text-align: left;"><div style="text-align: justify;"><span style="color: black;"><span style="color: black; font-size: large;"><span style="font-family: times;">The top</span><span style="font-family: Times, Times New Roman, serif;"> 1% of U.S. taxpayers had 19.4% of the total income in 2007 and paid 28.1% of all federal taxes. In 1987, the top 1% had had 11.2% of the total income and paid 16.2% of all federal taxes. The share of total income going to the wealthy (income over $353,000 in 1987) and the share of federal income taxes they paid </span><i style="font-family: Times, "Times New Roman", serif; mso-bidi-font-style: normal;">increased</i><span style="font-family: Times, Times New Roman, serif;">. That the poverty rate hit 15% in 2011 while the real wages of the middle and lower classes were back to mid-1990s levels suggests that the rich were getting richer as the poor were getting poorer; income and wealth inequalities were increasing. Differential impacts of a taxation regime can have an impact on a growing inequality, and thus on whether a society <i>should </i>adjust its tax structure. </span></span></span></div><div style="text-align: justify;"><span style="color: black;"><span style="color: black; font-size: large;"><span style="font-family: Times, Times New Roman, serif;">Although the share of taxes increased between 1987 and 2007, the 15% rate on dividends and capital gains put in place during the second George W. Bush administration meant that</span><span style="font-family: Times, Times New Roman, serif;"> at the time, “many wealthy Americans [paid] considerably less because their earnings [were] derived from dividends or capital gains.”[1] </span></span></span></div><div style="text-align: justify;"><span style="font-size: large;"><span style="color: black;"><span style="color: black;"><span style="font-family: Times, Times New Roman, serif;">Also, advantageous itemized deductions are more likely to be useful to a wealthy taxpayer, enabling a lower effective rate lower than that of a middle-class taxpayer. </span></span></span><span style="font-family: Times, "Times New Roman", serif;">Few if any low-income taxpayers benefit from itemizing deductions. It could be that the standard deduction (and exemptions) are not sufficient to reflect the </span><i style="font-family: Times, "Times New Roman", serif; mso-bidi-font-style: normal;">actual </i><span style="font-family: Times, "Times New Roman", serif;">and </span><i style="font-family: Times, "Times New Roman", serif; mso-bidi-font-style: normal;">necessary </i><span style="font-family: Times, "Times New Roman", serif;">expenses—especially relative to income. So to claim that the bottom 1% should pay the same share of taxes as the top 1% ignores the fundamental difference between </span><i style="font-family: Times, "Times New Roman", serif; mso-bidi-font-style: normal;">surplus </i><span style="font-family: Times, "Times New Roman", serif;">and </span><i style="font-family: Times, "Times New Roman", serif; mso-bidi-font-style: normal;">necessity</i><span style="font-family: Times, "Times New Roman", serif;">. </span><span style="font-family: Times, "Times New Roman", serif;">The symmetry of a bell-shaped curve does not apply because the incomes at the respective tails are qualitatively (i.e., not just quantitatively) different (e.g., relative to </span><i style="font-family: Times, "Times New Roman", serif; mso-bidi-font-style: normal;">survival</i><span style="font-family: Times, "Times New Roman", serif;">).</span></span></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><div style="text-align: justify;"><span style="color: black;"><span style="color: black; font-family: Times, Times New Roman, serif; font-size: large;">As for the effective rates, the unjust inversion with the middle class is not universally the case. For example, the top 400 taxpayers saw their effective federal income tax rate drop from 29% in 1993 to 18% in 2008. By comparison, households with income between $50,000 and $75,000 had an effective rate of 15% in 2008. These are averages, so there were doubtless cases of inversion where middle class taxpayers had a higher effective rate than wealthy tax payers. Depending on restoring justice to such cases does not go far enough in deficit reduction. That is to say, as just as it is, making sure millionaires are at least at the effective rate of the middle class may not go far enough, considering the seriousness and magnitudes of the U.S. deficit and accumulated debt. Given the sheer magnitudes, those who can afford to contribute more should be required to do so. It is doubtful that merely correcting for the effective rate injustice on a case by case basis would go far enough.</span></span></div></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><div style="text-align: justify;"><span style="color: black;"><span style="color: black; font-family: Times, Times New Roman, serif; font-size: large;">In 2009, for instance, 238,000 households filed returns with adjusted gross incomes of at least $1 million. Twenty-five percent of them paid an effective federal income tax rate of less than 15 percent, and 1,470 paid no federal income tax at all. Although the money involved dwarfs the number of taxpayers concerned, focusing on this “effective rate” injustice need not blind us to the fact that the increase to the treasury would fall well short of what is necessary to eliminate a deficit of over $1 trillion (not to mention paying down a debt roughly equal to the annual GNP of the U.S.). A <i style="mso-bidi-font-style: normal;">macro </i>justice matter concerns the role of the wealthy in reducing the deficits and debt—beyond the question of effective rates to address the inconvenience to the wealthy versus the pain from cuts to the poor.</span></span></div></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><div style="text-align: justify;"><span style="color: black;"><span style="color: black; font-family: Times, Times New Roman, serif; font-size: large;">To claim that the effective tax rate on the top 1% or even 5% of all taxpayers should be <i style="mso-bidi-font-style: normal;">higher </i>than the rates on lower incomes is not “class warfare.” Neither is the claim that those who can afford to contribute more money to reduce the deficit (and debt). The notion that those who can afford to contribute more follows from the principle that those who have means, rather than those who do not, should be relied on <i style="mso-bidi-font-style: normal;">disproportionately</i>, given the qualitative difference between <i style="mso-bidi-font-style: normal;">surplus </i>and <i style="mso-bidi-font-style: normal;">sustenance</i>. To suggest that everyone <i style="mso-bidi-font-style: normal;">except</i> those who are able should sacrifice to reduce a deficit is antipodal to the ethical principle of fairness. In other words, it is unfair to try to squeeze blood from a turnip while leaving the watermelons alone.</span></span></div></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><div style="text-align: justify;"><span style="color: black;"><span style="color: black; font-family: Times, Times New Roman, serif; font-size: large;">As easy as it may be to get bogged down on the percentages and dollar amounts, charts and graphs, pros and cons, the debate about taxation, spending cuts, and deficit reduction comes down to values. This is why the debate can get so heated, only we don’t take the cue and cut to the chase. We are perhaps too instrumental and utility-oriented; we miss the broader question of what we as a society value—who we are—things that <i style="mso-bidi-font-style: normal;">are </i>even if we don’t make it explicit. I submit, therefore, that the final paragraph below is much more significant than any of the figures and analysis above. Statistics can be manipulated to support virtually any point, whereas values go to the core in defining a society and its members.</span></span></div></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><div style="text-align: justify;"><span style="color: black;"><span style="font-family: Times, Times New Roman, serif; font-size: large;">A society that cuts its way to eliminating a deficit is saying something quite different regarding itself than a society that includes a <i style="mso-bidi-font-style: normal;">solidarity </i>tax on the wealthy. Solidarity itself can mean different things to different people, particularly when self-interest is consulted. How do we weigh society as dog-eat-dog relative to society as solidarity? In other words, is solidarity something more than society as an aggregation? <i style="mso-bidi-font-style: normal;">Is it ethical to exempt the rich from paying more while making cuts to the sustenance of the poor? </i></span><o:p></o:p></span></div></div><br /><br /><br />1. David Kocieniewski, “<a href="http://www.nytimes.com/2011/09/21/business/obamas-tax-on-millionaires-faces-obstacles.html"><span style="color: #783f04;">A Tax Others Embrace, U.S. Opposes</span></a>,” <i style="mso-bidi-font-style: normal;">The New York Times</i>, September 21, 2011. </div>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-46343076540234716962020-11-09T14:38:00.002-08:002020-11-09T14:38:51.430-08:00Bank One: Adding to Systemic Risk after the Financial Crisis of 2008<div style="text-align: justify;"><span style="font-family: times; font-size: large;">The financial <i style="mso-bidi-font-style: normal;">crisis </i>in September 2008 was indeed a crisis, and yet it is stunning how soon the American financial sector sought to undermine governmental efforts to guard against another such crisis. Exactly three years after the crisis, Republicans in Congress repeatedly invoked the Dodd-Frank Act’s 848-page length and rules on trading derivatives and swaps as examples of government overreach at the expense of much-needed jobs. “Dodd-Frank is adding safety margins to the banking system,” according to Douglas Elliott at the Brookings Institution. “That may mean somewhat fewer jobs in normal years, in exchange for the benefit of avoiding something like what we just went through in the financial crisis, which was an immense job killer.”[1] To scrap the new law in order to save few jobs would thus be short-sighted even with regard to jobs. Wall Street's concern, however, was not jobs, but, rather, the loss of profit off high-risk trading. </span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;"><span>The banks had grown used to the higher risk and were not about to do without it in spite of its risk to the economy. </span>The Dodd-Frank law “aims to rein in abusive lending practices and high-risk bets on complex derivative securities that nearly drove the banking system off a cliff.”[2] The banks themselves could not be relied on to forestall such “cliff-diving” because it could be so profitable. Nor could the banks be expected to look out for the financial system as a whole in the face of such profitability as the financial derivative instruments were making.</span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;">For example, at the Federal Reserve hearing on September 20, 2011 on Capital One’s proposed takeover of ING, John Finneran, Capital One’s general counsel, said the “acquisition of ING Direct will further reduce, rather than increase, any risk to the financial system.”[3] The combination would have around $200 billion in deposits (moving the bank from No. 8 to No. 5 in the U.S.), however, which raised “questions about the deal’s impact on customers and the broader economy.”[4] John Finneran’s claim of lower risk thus required further support. To be sure, he did argue that the deal would “not lessen competition or result in any undue concentration of resources.”[5] He was thinking in terms of restraint of trade more so than systemic risk. Regarding the latter, John Taylor of the National Community Reinvestment Coalition, pointed to the risky subprime loans in the bank’s credit card portfolio. Before the hearing, he had asked, “We already have four too-big-to-fail banks. Why make a fifth?”[6]</span></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><div style="text-align: justify;"><span style="color: black; font-family: times; font-size: large;">That the proposal to carve up the four $1 trillion plus banks was summarily dismissed as Dodd-Frank was being written (with the help of the banking lobby, which Sen. Durbin said still owned Congress) was apparently not enough; preventing an <i style="mso-bidi-font-style: normal;">increase </i>in the number of mega-banks too big to fail would <i style="mso-bidi-font-style: normal;">still</i> go too far, at least from the vantage point of the banks and, presumably, the Republican party as well. This view was expressed by Dan Tarullo, a Federal Reserve governor. “While Congress instructed us to consider the extent to which a proposed acquisition would pose a greater risk to financial stability, it clearly did not instruct us to reject an acquisition simply because there would be any increase in such risks.”[7] I contend that Tartullo’s stance is wrongheaded and even dangerous.</span></div></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><div style="text-align: justify;"><span style="color: black; font-size: large;"><span style="font-family: times;">The continued existence of banks with assets of over $1 trillion allows for enough systemic risk to tank the system. <i style="mso-bidi-font-style: normal;">Increasing </i>such risk by permitting Bank One to continue “amassing a big national banking franchise” ignored the risk of there being too much systemic risk in the system <i style="mso-bidi-font-style: normal;">already</i>. It is highly unlikely that merely increasing capital requirements for the biggest banks and providing for their possible liquidations reduced the systemic risk in the system to a tolerable level. Therefore, adding more systemic risk to the system should have been forbidden.<span style="mso-spacerun: yes;"> </span></span><o:p></o:p></span></div></div><div style="text-align: justify;"><br /></div><p style="margin: 0in 0in 0pt; text-align: left;"><span style="font-family: times; font-size: medium;"><span>1. Edward Wyatt, “<a href="http://www.nytimes.com/2011/09/21/business/dodd-frank-act-is-a-target-on-gop-campaign-trail.html"><span style="color: #783f04;">Dodd-Frank Act a Favorite Target for Republicans Laying Blame</span></a>,” <i style="mso-bidi-font-style: normal;">New York Times</i>, September 21, 2011. <br /></span><span style="text-align: left;">2. Ibid.<br /></span><span>3. Ben Protess, “<a href="http://dealbook.nytimes.com/2011/09/20/capital-one-defends-ing-direct-deal/"><span style="color: #783f04;">Capital One Denies ING Takeover Would Make It ‘Too Big to Fail</span></a>’,” <i style="mso-bidi-font-style: normal;">New York Times</i>, September 21, 2011. <br /></span><span style="color: black;">4. Ibid.<br /></span><span style="color: black;">5. Ibid.<br /></span><span style="color: black;">6. Ibid.<br /></span><span style="color: black;">7. Wyatt, "Dodd Frank."</span></span></p><p style="text-align: justify;"><br style="text-align: left;" /></p>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-49762429464220307062020-11-06T14:53:00.002-08:002020-11-06T15:03:29.214-08:00American Federalism Eclipsed by an Ideal of Democracy: Education Over Immigration as a Constitutional Problem<div style="text-align: justify;"><span style="font-family: times; font-size: large;">The U.S. Constitution includes immigration as one of the listed (i.e., enumerated) powers of the federal government. Education is not such a power; hence it resides with the States. Historically, the accumulation of power by the federal government has involved taking areas from the States even though those areas are not listed as federal powers. As a result, American federalism has shifted increasingly toward a consolidation of power at the federal level. Among other means, Congresses and U.S. presidents have used the power of the purse to gain control from the States. Education is a case in point, whether elementary, secondary, or higher education. That the U.S. Government has had trouble controlling the country's southern border with Mexico suggests that maybe adding education has come at the expense of the added attention and effort that could have been put on immigration. In business terms, an opportunity cost (i.e., the cost of foregone benefits) comes with each additional federalized area. U.S. President Obama on education presents us with a case in point. </span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;">“Our country used to have the world’s largest proportion of young people with a college degree,” the president said in 2011. “We now rank 16th. I don’t like being 16th; I like being No. 1.”[1] Liking being at the highest rank is only natural. Wanting a more educated people is laudable, especially because an more educated citizenry is more likely to be able to maintain a republic instead of falling prey to "fake news" and a deceitful demagogue. </span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;">By 2020, the influx of educated suburbanites from other States was changing Arizona politics, for example. A candidate for sheriff of Phoenix's county who had campaigned on <a href="https://thewordenreport-governmentandmarkets.blogspot.com/2020/11/the-right-of-political-protest-in-us.html"><span style="color: #783f04;">standing up "to the mobs,"</span></a> with peaceful protests being included as if they were inherently dangerous rather than a constitutional right worthy of protection, lost. In truth, the mobs consisted of all of the uneducated residents--a large group, and thus with the numbers to vote in office-holders, given Arizona's rank of 49th out of the 50 States on elementary and secondary education in 2019. By 2020, the influx of new, more educated blood in Phoenix and some of its suburbs (not Glendale or Mesa) was beginning to compensate for the power of the uneducated in the State.</span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;">As laudable as more education is especially in the backward States, the ability of the U.S. Government to intervene comes with a cost in terms of federalism sliding into consolidated governance of a empire-scale country, which is inherently heterogenous (i.e., has differences within). One size does not always fit all in cases such as the U.S. and E.U. because the states are different culturally. My point is that to forestall consolidation in order to protect the checks and balances made possible only in a federal system. </span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;">Education is problematic precisely because allowing the federal government in to shore up States such as Arizona puts one more nail in the coffin of American federalism, yet such States would otherwise continue to suffer from the uneducated being able to determine who holds public office. It is a paradox actually, in that the poorer, uneducated citizens are less able or inclined to hold their elected officials accountable <i>between elections</i>. In Arizona, for instance, people complain about "the police state" of nightly surveillance by police helicopters especially in the middle- and lower-class areas of the Phoenix metropolitan area, yet without defending their right to peaceable enjoyment. Yet those same voters vote into office the "law and order" authoritarian type of person who is inclined to take liberties with innocent people, being ignorant of the fact that even innocent people do not like being intimidated as if that were are necessary deterrent. <br /></span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;">In 2011, President Obama's visit to a city's school sent a good message wherein education should be valued, but it is also significant that the president overlooked the fact that education is not among the areas granted to the U.S. Government by the U.S. Constitution. He could have resolved this tension by urging that Americans urge their respective state officials to improve their education systems. Yet there would still be States like Arizona in which too many people believe that taxing constitutes stealing.</span></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><div style="text-align: justify;"><span style="font-family: times; font-size: large;"><span lang="EN" style="mso-ansi-language: EN;">It is not as though the president of the United States had a lack of things needing his attention <i style="mso-bidi-font-style: normal;">within the enumerated powers</i> of the U.S. Government. In fact, state officials of some border States were stepping in to adequately enforce immigration law because federal officials were too ineffectual. That the federal government fought such assistance while continuing to encroach on State domains such as education evinces a desire to have it all; that is, a desire at the federal level to consolidate power rather than respect federal constitutional boundaries (as well as international boundaries such as borders). </span>It was as if the person in charge of an association’s club house were resisting cleaning help by some of the members while going into <i style="mso-bidi-font-style: normal;">their </i>houses to try to clean them. Somehow the common sense advice to get one's own house in order before trying to order other houses, which is so needed to restore American federalism, has been missed at the federal level. </span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;">To be sure, it is not as though the Obama administration was so consumed with visiting local schools that it would not have time or resources with which to better enforce immigration law. It is rather the accumulation of areas that are not included in the enumerated federal powers that has left the U.S. Government vulnerable to not doing enough in its own areas. </span></div></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;">Interestingly, while the president was acting as parent-in-chief at a local (rather than federal) school, his administration lost a case in federal court against Alabama’s immigration law enforcing the federal law. Among other things, the Alabama law “nullifies any contracts entered into by an illegal immigrant.”[2] Another section “forbids any transaction between an illegal immigrant and any division of the state,” and still another section “requires elementary and secondary schools to determine the immigration status of incoming students.”[3] Nothing here violates or nullifies federal law; in fact, Alabama was <i style="mso-bidi-font-style: normal;">helping </i><span style="mso-bidi-font-style: normal;">the U.S. Government with its task</span>. In the E.U., where most power still resides at the State level, it is common for the state governments to be <i style="mso-bidi-font-style: normal;">required </i>to implement E.U. directives. In the U.S., where the federal level has accumulated so much to do, it makes even more sense that state governments would be required to do more of the legislating. "Congress is behaving like a state legislature," Justice Sandra O'Conner once told me when I asked her about the role of the federal government in eclipsing federalism by instituting a system of consolidated power.[4]</span></div><div style="text-align: justify;"><span style="font-family: Times, "Times New Roman", serif; font-size: x-large;"><br /></span></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><span lang="EN" style="mso-ansi-language: EN;">1. </span> Mark Landler, “<a href="http://www.nytimes.com/2011/09/29/us/politics/president-obama-urges-nations-students-to-set-sights-on-college.html"><span style="color: #783f04;">Obama Urges Students to Set Their Sights on College</span></a>,” <i style="mso-bidi-font-style: normal;">New York Times</i>, September 29, 2011. </div><div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: left;"><span lang="EN" style="mso-ansi-language: EN;">2. Campbell Robertson, “<a href="http://www.nytimes.com/2011/09/29/us/alabama-immigration-law-upheld.html"><span style="color: #783f04;">Alabama Wins in Ruling On Its Immigration Law</span></a>,” <i style="mso-bidi-font-style: normal;">New York Times</i>, September 29, 2011. <o:p></o:p></span></div><div style="text-align: justify;"><span style="text-align: left;">3. Ibid. </span></div><div style="text-align: left;">4. Sandra J. O'Connor, Personal Conversation, Yale University. </div>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-43150237077029222532020-11-05T16:36:00.003-08:002020-11-06T13:07:05.598-08:00The Right of Political Protest in the U.S.: Nullified in the Outback by Intimidation<p style="text-align: justify;"></p><div style="text-align: justify;"><span style="font-family: times; font-size: large;">The First Amendment of the
U.S. Constitution states in part, “Congress shall make no law respecting . . .
the right of the people peaceably to assemble, and to petition the Government
for a redress of Grievances.” Peaceable protest, even to protest a government
or an official thereof, has come to be regarded as a staple of American
democracy. In practice, however, the right can be eviscerated such that
peaceful protesting is simply not worth the trouble. Such trouble can be
orchestrated by a police force or even a government within the United States.<br /> Implicit in the right to
protest is the value put on tolerating the expression of contrary opinions.
Conservative and progressive views, even those of racists and anarchists, respectively,
are generally accorded the right to peaceably protest in a public way. If a
State is sufficiently one-sided, however, public officials, including
governors, majors, and police chiefs, can reflect the dominant attitude of
residents that protests on behalf certain political, economic, or social
ideologies should not be allowed. If they must be allowed, then massive shows
of police force can—it is assumed--legitimately be used to intimidate the
protesters.</span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;"><br /></span></div><div style="text-align: justify;"><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEifbK80R9Yoqsz87nN_y9lJ0SzD2Hx6tAV-nZI3UhyexWbiamf4ZCEnVeqcwQc0nNf2iDponiLi_i4IBbx53DpAfI5KQ0C2-E3ebC7LwmI0w0a-IQy-o7rIivjH2wUVc1tqidH8j7egdYw/s2048/AZ+sheriff+poster.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1536" data-original-width="2048" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEifbK80R9Yoqsz87nN_y9lJ0SzD2Hx6tAV-nZI3UhyexWbiamf4ZCEnVeqcwQc0nNf2iDponiLi_i4IBbx53DpAfI5KQ0C2-E3ebC7LwmI0w0a-IQy-o7rIivjH2wUVc1tqidH8j7egdYw/s320/AZ+sheriff+poster.jpg" width="320" /></a></div>The placement of the three posters illustrates pictorially that business and authoritarian political interests can co-exist comfortably in a broader political coalition. In Nazi Germany, for instance, the industrialists were part of Hitler's authoritarian political coalition. Besides receiving purchase orders from a state that is able to resist popular calls for government spending, business likes the political stability that a "law and order" police-state can provide. </div><div style="text-align: justify;"><span style="font-family: times; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;"> In Arizona, for example, prior
to the 2020 election, a conservative candidate for sheriff of Maricopa County,
which includes the Phoenix metropolitan area, displayed signs containing the
imperative, “Stand Up to the Mobs!” Just above that line was another
imperative—that the laws be enforced. Presumably the unenforced laws on car-emission
limits and mask requirements on public transportation were not on the
candidate’s mind. Presumably he was not planning on holding the transit
authority accountable for allowing passengers without masks to ride the buses
and light rail. A supervisor at Metro Valley told me by phone at the time that
the county law (and ordinances of the cities) that face masks must be worn on
public transportation does not have “legal force” because it is just a
requirement. Stunned, I did not point out that her company was in violation of
the requirement because even bus drivers did not have to wear masks; I had
already investigated the strange messages coming out of that company, such as,
“Masks are required and we will allow passengers to board without wearing them.”<br />
The candidate for sheriff was
likely referring back to the protests against police brutality (otherwise known
as abuses of power). That he did not use the word, “Rioters,” instead of “Mobs”
implies that he was including peaceable protests too. Given the bad connotation
of the word, “Mobs,” as “a large and disorderly crowd of people” according to
the Merriam-Webster dictionary, a negative attitude toward at least <i style="mso-bidi-font-style: normal;">certain </i>peaceful protests can be
inferred. I had heard enough Arizona residents conflate “liberal” peaceful
protests with riots to know what the candidate meant by <i style="mso-bidi-font-style: normal;">mobs</i>. “They are all violent,” one conservative resident insisted to
me as I thought of the state’s pre-college education rating of 49<sup>th</sup>
out of the 50 States.<br /> A few years after the 2016
presidential election, some students of Arizona State University told me that
protests against Donald Trump had not really been allowed on campus. One
student even observed that Arizona does not tolerate “liberal” protests. Besides
the errant assumption that any mob of people is bound to become violent (which
in turn rests on an extremely negative view of human nature rivaling that of
John Calvin), anger against “liberals,” which was clearly evident locally, was
likely behind the excessive police force designed to intimidate even peaceful
protests.<br /> With ASU police regularly
staked out in jeeps parked on sidewalks and even academic courtyards, an
excessive <a href="https://thewordenreport-highered.blogspot.com/2019/02/the-urge-to-dominate-dominates-at.html"><span style="color: #783f04;">show of force</span></a> has been the authoritarians’ tactic of choice to
intimidate protesters even if they happened to be 20 students in the Global
Politics of Human Rights class whose final project was a class protest on
campus on April 13, 2017. The students protested against Trump’s policies on
immigration, LGBT rights, women’s rights, Black Lives Matter, and even the
prison system. </span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;"><br /></span></div><div style="text-align: justify;"><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh-LCqKMAQVUeJt1vZPoh-jnkclT-ZOP3a4o2snjY7AuAG6dRk6ip0BccgtF_-i29gMjh4S5_4Sq_R8_bwgHhWGtXOr6f-suuuB-T7iCgW4q2ix0Ia9rBGG3IoUkWtWwAbjcZO1EC6oopg/s660/ASU+class+protest+Conner+Borgelt+of+The+Republic.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="373" data-original-width="660" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh-LCqKMAQVUeJt1vZPoh-jnkclT-ZOP3a4o2snjY7AuAG6dRk6ip0BccgtF_-i29gMjh4S5_4Sq_R8_bwgHhWGtXOr6f-suuuB-T7iCgW4q2ix0Ia9rBGG3IoUkWtWwAbjcZO1EC6oopg/s320/ASU+class+protest+Conner+Borgelt+of+The+Republic.jpg" width="320" /></a></div><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgaFnAGCenhyphenhyphenZZkQ_0gDIJWhQnwqCshrZzGhyphenhyphen8WrO16gZnaphHHbJiMYNYmPSMq6UvkaOrPnGNpr02yTM6ZpeLNvDSFwiPEwYQbYHygsDreSSFERgj0jJdX-iotsnWTvaoNwG6iVpRozjM/s660/asu+class+protest+linked.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="373" data-original-width="660" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgaFnAGCenhyphenhyphenZZkQ_0gDIJWhQnwqCshrZzGhyphenhyphen8WrO16gZnaphHHbJiMYNYmPSMq6UvkaOrPnGNpr02yTM6ZpeLNvDSFwiPEwYQbYHygsDreSSFERgj0jJdX-iotsnWTvaoNwG6iVpRozjM/s320/asu+class+protest+linked.jpg" width="320" /></a><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgIE25wnhq2X4HJkZl2ABVRA_KZ_YlqBOSFpT2yIklI8LHOBCM7n5Wfn9ObFoNXdCI-lVT40ZABMNn6zNpkFSwwPtmAIoAKbAJXc7W0M8_CjlT8kAIjlIvMmfRryYGmS9DQHRbG1jJYO4Y/s660/ASU+class+protest+away+from+sidewalks.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="373" data-original-width="660" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgIE25wnhq2X4HJkZl2ABVRA_KZ_YlqBOSFpT2yIklI8LHOBCM7n5Wfn9ObFoNXdCI-lVT40ZABMNn6zNpkFSwwPtmAIoAKbAJXc7W0M8_CjlT8kAIjlIvMmfRryYGmS9DQHRbG1jJYO4Y/s320/ASU+class+protest+away+from+sidewalks.jpg" width="320" /></a></div>The class was fluid in its movements, rather than being intent on blocking a sidewalk. (Source: Connor Bolget of <i>The Republic</i>)</div><div style="text-align: center;"><br /></div></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;">As vaguely reported by a local newspaper, “At one point, Arizona
State University personnel asked the group to relocate in order to stop
blocking the sidewalk. Protesters then stood in a staggered line, with about a
foot between each person, instead of standing shoulder to shoulder. Campus
police then were called to the scene, as the protesters changed from holding
signs to linking arms, walking back and fourth [<i style="mso-bidi-font-style: normal;">sic</i>] in front of the grassy area of Hayden Lawn.”<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[1]</span></span><!--[endif]--></span></span>
The word <i style="mso-bidi-font-style: normal;">lawn </i>is important, as the
area is a large square of grass with sidewalks on the periphery.<br /> Who were the opaquely labeled
university personnel? In addition to the routine police presence on the campus,
students working essentially as police aides typically have the campus covered
(even sidewalk intersection to intersection). I have seen those security
students keeping a particular eye on outdoor “political” tables near the
student union building. It is possible that those student-security personnel
notified the campus police of the class’s final project as a protest, which the
police would have understood as such rather than as an academic project.</span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;"><br /></span></div><div style="text-align: justify;"><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhVFRIWFrexNOgeIP2gojXoYG-9xGJpMebpn0vtKOijJoCLINwMpQzOjGyGXFfUtKYi6dJlUH3lvjE7ser-n1kHZdUFNqRliqMF3I0tnoyUwQfJNHAc0Adcmym9pYWSneijv8w0P6t-gCQ/s2048/ASU+students+as+security.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1536" data-original-width="2048" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhVFRIWFrexNOgeIP2gojXoYG-9xGJpMebpn0vtKOijJoCLINwMpQzOjGyGXFfUtKYi6dJlUH3lvjE7ser-n1kHZdUFNqRliqMF3I0tnoyUwQfJNHAc0Adcmym9pYWSneijv8w0P6t-gCQ/s320/ASU+students+as+security.jpg" width="320" /></a></div><div class="separator" style="clear: both; text-align: justify;">The walkie-talkie-clad "eyes and ears" for the campus police are ubiquitous on the main ASU campus--sometimes at every sidewalk-intersection even as observant police jeeps are stationed during the day on sidewalks and even academic courtyards. </div><br /></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;"> Did the university personnel
and police over-react? The local newspaper reported, “Passers-by had some
difficulties finding their way around the linked demonstrators, so ASU’s campus
police stepped in to give a second warning, this time directly” to the
professor.”<span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[2]</span></span><!--[endif]--></span></span><span style="mso-spacerun: yes;"> </span>That the protesters were few (20 with some
add-ons) and were generally fluid (i.e., mobile) suggests that both the
university personnel and the caller over-reacted. It would not be a crisis for
by-passers (especially students) to walk on the grass, especially at that
square. The police stepped in to give a second warning, so who gave the first?
The student security workers? Given that students ordinarily walked on the
grass and the small group was mobile, were two warnings really necessary?
Should a university police force be able to interfere with a class project
without permission from an upper-level academic administer? I suspect that the
police took it upon themselves to threaten the professor as if she deserved to
be arrested because students had to make a slight detour on grassy square. I
also suspect that the police viewed the event as a political protest rather
than as an academic project. That it was the latter means that the police
should not have intervened without the permission of an <i style="mso-bidi-font-style: normal;">academic </i>administrator. Instead, the incident reflected the local
culture wherein mobs protest and protests can be expected to turn violent. With
such a negative view of protests even as a class project, it is easy to
understand why threats and intimidation would be used with impunity.<br /> Hence even the people in the peaceful
protests against abuse-of-power by the police in Phoenix during the summer of 2020 (as distinct from the riots, which rightly have no constitutional protections) had to contend with massive
police shows of force. Even a small protest on behalf of Ryan Whitaker had to
put up with a police helicopter circling overhead as if twenty people might
suddenly lose control of themselves and go on a rampage. A resident who lived near a park where
protests against police violence took place told me that even peaceful protests
walking to the park had to contend with an overwhelming police presence. I was
talking to the other Midwesterner after a police car hit a parking lot curb as
the police employee quickly swerved closely by me as I was walking from the
main library, which was closed. No one was in the nearby park or even in the
library’s parking lot that early afternoon during a weekday. Even though
protests were taking place nightly, I contend that the police were
over-reacting to one person walking through the parking lot. The aggressive
driving was totally uncalled for, and yet the police employee likely, given the culture there, regarded it as measured rather than hyperactive. The underlying assumption, which I had heard from both local police and residents, is that any grouping of citizens in public is likely to turn violent without intimidation from an exaggerated show of force. That very assumption is what puts Arizona at odds with the First Amendment of the U.S. Constitution.<br />During that summer, the city’s mayor was bragging
about how minimal the protests were there compared with those in other big
cities in other States. If that differential was the result of intimidating peaceful protesters
under the subterfuge that they would inevitably become violent because mobs are
unruly, then the “success” came by trampling on the right of the people to
assemble peaceably, which means without feeling intimidated. I would not call that success.</span></div><p class="MsoNoSpacing" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNoSpacing" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNoSpacing" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNoSpacing" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNoSpacing" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNoSpacing" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNoSpacing" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNoSpacing" style="text-align: justify;"><o:p></o:p></p>
<div style="mso-element: endnote-list;"><!--[if !supportEndnotes]--><br clear="all" />
<hr align="left" size="1" width="33%" />
<!--[endif]-->
<div id="edn1" style="mso-element: endnote;">
<div><span face="Calibri, sans-serif"><span style="font-size: 13.3333px;">1.</span></span> Conner Borgelt, “<a href="https://www.azcentral.com/story/news/local/tempe/2017/04/14/asu-class-holds-protest-instead-final-exam/100437210/"><span style="color: #783f04;">ASU
Class Holds Protest as Part of Its Final Assignment</span></a>,” <i style="mso-bidi-font-style: normal;">The Republic </i>(azcentral.com), April 14, 2017.<br /><span face="Calibri, sans-serif"><span style="font-size: 13.3333px;">2.</span></span> Ibid.</div><p class="MsoEndnoteText"><o:p></o:p></p>
</div>
<div id="edn2" style="mso-element: endnote;">
<p class="MsoEndnoteText"><o:p></o:p></p>
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</div><br /><p></p>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.comtag:blogger.com,1999:blog-2569112882232778554.post-52544401491757693652020-10-31T16:45:00.001-07:002020-10-31T16:46:07.350-07:00Deficit Reduction and Tax Breaks: Rhetoric and Priorities<div style="text-align: left;"><div style="text-align: justify;"><span style="font-size: large;"><span lang="EN" style="mso-ansi-language: EN;">Actions speak louder than words. A tree is known by its fruit. Where your treasure is, therein lies your heart. These three sayings each have at their root a value on integrity or authenticity that cuts through purported assertions designed to manipulate or otherwise mislead. Integrity here is consistency between word and deed. </span></span><span style="font-size: large;"><span>When members of Congress have cried that the sky was falling under the weight of the annual deficits and the accumulated debt of the U.S. Government, a person might ask by looking at the actual votes on legislation whether the representatives really considered the fiscal imbalances as so dire. If someone exclaims that her house is about to explode but does not </span><i style="mso-bidi-font-style: normal;">act </i><span>accordingly, such as in running out of the house rather than finishing dinner, it is reasonable to doubt that the person really believes that a blast is imminent. In protecting tax breaks even amid a deficit of over $1 trillion in 2011, members of Congress belied their own warnings concerning the American governmental debt crisis. The American people as a whole let their representatives get away with the Janus-like stances, and this in turn eventually allowed the U.S. Government debt to exceed $20 trillion. </span></span></div><div style="text-align: justify;"><span style="font-size: large;"><span>Generally speaking, a </span><span style="mso-bidi-font-style: normal;">crisis</span><i style="mso-bidi-font-style: normal;"> truly acknowledged </i><span>does not admit the luxury of granting the status quo a continuance. In other words, if the elected officials really did view the trajectory of deficits as unsustainable in 2011, then continuing the tax breaks would have been off the table. In prioritizing protecting constituent interests by tax breaks and by insisting that deficit-reduction is only to be accomplished by spending cuts, a member of Congress is actually saying that the deficit/debt problem is not really a crisis. </span></span></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><div style="text-align: justify;"><span lang="EN" style="font-size: large; mso-ansi-language: EN;">So when the U.S. Senate Republican leader, Mitch McConnell said in 2011 that he was open to ending tax breaks for special interests yet without including those of his constituents, he undermined his insistence that the deficit <i style="mso-bidi-font-style: normal;">must </i>be significantly reduced. He argued that the tax break that he had secured in 2008 for the owners of thoroughbred racehorses was essential for the protection of jobs in Kentucky. Of course, the financial interests of racehorse owners were not necessarily in line with—or reduce to—the protection of jobs. In political diction, the interests of capital hide behind those of labor even while going after those interests in private so as to maximize profit. That is to say, subterfuge may be the name of the game in the public square. The same can be said of Senator John Kerry, Democrat of Massachusetts, who claimed to want to eliminate tax breaks except for a <i style="mso-bidi-font-style: normal;">proposal </i>for a tax cut for small breweries, such as Samuel Adams in Boston. The deficits must not be such a big problem if the U.S. could afford <i style="mso-bidi-font-style: normal;">additional </i>tax cuts. At the time, mega-wealthy “operations like oil refineries, Hollywood productions and hedge funds have all profited” by tax breaks.[1] Tax breaks for industries in general added up to an estimated $123 billion a year—hardly chicken feed.</span></div></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><div style="text-align: justify;"><span lang="EN" style="font-size: large; mso-ansi-language: EN;">The “disconnect between the lawmakers’ words and deeds" reflected the hurdles that Congress and the White House faced as they looked to cut at least $1.2 trillion from the government's debt.[2] Talk of cutting tax breaks to raise money and reduce the debt had become a mantra in Washington, but it threatened sacred ground; "such breaks are a favorite tool among both Republicans and Democrats to reward supporters and economic interests in their home states.”[3] Given Fed chief Ben Bernanke's remarks on October 4, 2011 before the Joint Economic Committee of Congress that even reducing the debt by $1.2 trillion would not be enough, talk of protecting favorite tax breaks undercuts any claim that the public debt is a dire problem. To be sure, obviating another recession was also on Congressional minds. However, even as he was urging Congress to act in order to avoid a double-dip recession, Bernanke said of deficit-reduction efforts, "More will be needed to achieve fiscal sustainability."[4] That is to say, the U.S. Government could lose even its AA rating. Risking this by protecting local interests is short-sighted; it is like a biker accelerating down a hill while looking only a few feet ahead. We might save a few deck chairs for weary passengers, but what about that iceberg ahead? Is anybody even <em>looking</em>?</span></div><div style="text-align: justify;"><span lang="EN" style="font-size: large; mso-ansi-language: EN;">I contend that we, the electorate, ought to accord claims of crisis as valid only if sacred ground is given up. “Whether any of [the tax breaks] are scrubbed from the books may ultimately prove how serious Congress is about reducing the debt.”[5] It is the price of admission, as it were, to having a legislator’s claim of a serious problem being recognized as authentic rather than as possibly just hyperbolic, attention-getting rhetoric.</span></div></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><div style="text-align: justify;"><span lang="EN" style="font-size: large; mso-ansi-language: EN;">Without a verifiable indication of some <i style="mso-bidi-font-style: normal;">actual </i>give on a sacred cow, a legislator should be told, “prove it!” regarding his or her claim on the <i>necessity</i> to reduce the deficit. If no such sacrifice is proffered and made, then the politician ought to be ignored as if he or she were crying wolf. Otherwise, we enable two-faced Janus behavior that undermines public confidence in the government and misleads us into being too confident that the serious problems are being solved. The American electorates as well as the media companies are perhaps too accustomed to letting our elected legislators off the hook by taking their words at face value as if they were self-validating. In the case of the U.S. Government’s continuing deficits and accumulated debt, the United States can ill-afford other priorities (even in terms of <i style="mso-bidi-font-style: normal;">presumed</i> GNP and job increases) coexisting antithetically with the baleful platitudes of crisis if the imbalances truly are unsustainable and a danger to the American union and its republics. That is to say, given the magnitude of the problem, the members of Congress should be held closer to account in terms of deeds matching words. Priorities, the making of which is part of the job of a legislator, should match the rhetoric in front of the cameras.<o:p></o:p></span></div></div><div style="text-align: justify;"><br /></div><br /><div class="MsoNormal" style="margin: 0in 0in 0pt;"><span lang="EN" style="mso-ansi-language: EN;">1. Ron Nixon and Eric Lichtblau, “<a href="http://www.nytimes.com/2011/10/03/us/lawmakers-want-to-end-tax-breaks-if-they-can-agree-what-they-are.html"><span style="color: #783f04;">In Debt Talks, All Tax Breaks Are Not Alike</span></a>,” <i style="mso-bidi-font-style: normal;">New York Times</i>, October 3, 2011. </span></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><span lang="EN" style="mso-ansi-language: EN;">2. Ibid.</span></div><div class="MsoNormal" style="margin: 0in 0in 0pt;"><span lang="EN" style="mso-ansi-language: EN;">3. Ibid.</span></div>4. Jon Hilsenrath and Luca Di Leo, "<a href="http://online.wsj.com/article/SB10001424052970204524604576610712269716064.html"><span style="color: #783f04;">Bernanke Issues Warning, Urges Action on Economy</span></a>," <em>Wall Street Journal</em>, October 5, 2011. <div>5. Nixon and Lichtblau. <br /><br /></div></div>Dr. Wordenhttp://www.blogger.com/profile/02867414605883311000noreply@blogger.com