Behind Political Culture: U.S. President Clinton’s Lying under Oath

The stature that comes with occupying (and even having occupied) public office, whether elected or appointed and especially if high office, combined with the ability to attract the attention of the media such that the (former) official’s statements have the credibility of pronouncements, and thus of being true rather than false statements, is rarely examined for what the stature and societal “mouth-piece” imply (i.e., veracity). A very high former elected representative who has even admitted lying under oath in a court proceeding back while in office can very easily be assumed decades later to be making a true statement by the public even though that statement is practically identical to the statement known (and admitted) to have been false. Even published photos that are strong evidence that the second statement is false can be dismissed by a public too liable to being beguiled by clever political birds of prey. I have in mind here the twin statements of Bill Clinton, who was the U.S. President for two terms in the 1990s and went on to associate with Jeffrey Epstein, the infamous head of the child-prostitute sex-ring, and at least one of his paid girls.

At least three compromising photos of Clinton with girls in close proximity were released by the FBI to my knowledge in 2026. In one photo, Clinton is situated between Maxwell, who was Epstein’s accomplice, and an under-aged girl in an indoor pool at a resort (not in the U.S.). Maxwell would later be convicted (and imprisoned) for her role in arranging girls for Epstein’s clients. In another photo, Clinton is sitting in a hot-tub with an underaged girl. In a third photo, he is seated with one arm (and hand) low around the waist of a girl in what appears to be Epstein’s private jet. To be sure, even though the positioning of Clinton’s arm (and his hand) low around the girl’s waist connotes sexual rather than paternal interest, and that a girl is with Clinton in the hot-tub photo (and the pool photo) are together highly suggestive, none of those photos is evidence that Clinton raped (i.e., had sex with) one or more of Epstein’s girls. Moreover, anyone accused of a crime is assumed to be innocent in any of the United States unless or until the accused is convicted in a court of law of having broken a law.

Even though the arm being around a girl’s waist and being in a pool with an under-aged girl and an adult whom we can now say definitely arranged Epstein’s girls for sex may bring to mind the old phrase, “where there is smoke, there is fire,” I bring up the matter of the photos merely as context to show just how misguided it was for the American public to assume that Clinton was testifying honestly before a Congressional committee in 2026 on his relationships with Epstein and the child-prostitutes. That Clinton was recognizable (i.e., fame) and had political stature as a former U.S. president are not sufficient for the default-assumption to be that even what he has said under oath is truthful rather than mendacious. This is the idea.

Asked under oath while testifying before a Congressional committee if he had had “sexual relations” with the woman in the hot-tub photo, Clinton answered, “No.”[1] Even if the photos make his answer difficult to believe, that he also “denied knowledge of Epstein’s crimes” may be so incredulous that a person could reasonably toss out all of Clinton’s testimony for being deceitful throughout.[2] It is possible that he rationalized lying because, as he had claimed, he believed that the Congressional subpoena, which he had unlawfully ignored, had been politically motivated.  Because Clinton claimed to have been unaware of Epstein’s business (i.e., prostituting girls to the rich and/or famous) in spite of spending leisure time with the criminal and his accomplice, and because Clinton knowingly violated the law by ignoring a Congressional subpoena, a rational basis can be laid for leaning at the very least toward concluding that Clinton lied under oath about having committed statutory rape.

Clinton being asked whether he had had sexual relations with a child-prostitute ought to ring a bell for anyone who was following U.S. politics toward the end of Clinton’s time in the White House. Back in January, 2001, the media reported that in “an 11-hour deal to avoid criminal charges over his sex-and-lies fling with Monica Lewinsky, President Clinton . . . admitted ‘knowingly’ lying under oath.”[3] Clinton had to surrender his Arkansas law license and pay a $25,000 fine. Stating, “certain of my responses to questions about Ms. Lewinsky were false,” on his last day in office, Clinton was referring to his responses made under oath in a deposition to questions including, “Did you have sexual relations” with Lewinsky? His answer under oath was a perjurious “No.” Sound familiar? Why would anyone lend any credence to Clinton’s answer to the same question decades later in regard to a child-prostitute? Why would his answer be reported as though his earlier answer to the same question in regard to another woman were truthful?

I contend that a person who has admitted to having lied, under oath, in answering a question of having had inappropriate sexual relations (with an intern) and is asked the same exact question (regarding a child-prostitute) should at the very least be viewed as questionable in terms of whether his second answer can be believed to be true. At the very least, the media should have inserted a footnote to remind readers that Clinton had lied, “I did not have sexual relations with that woman,” in speaking to the American people about Lewinsky’s “oral” contact with Clinton in the Oval Office. To the extent that the American public’s reaction to reports of Clinton’s Congressional testimony in 2026 was muted rather than publicly raising the obvious point that especially on the matter of sexual relations, Clinton was not to be believed, the undue credit that is implied or inherent in holding (or having held) public office and having a mouthpiece in the established, “main-stream” media can be surmised and judged to be problematic in themselves.

Societal credibility enjoys a certain default that, even if dislodged once as in the case of Clinton, can exist without any real foundation based in the character of the office-holder celebrities.  This is not to say that if they are caught “red-handed,” such as U.S. President Nixon was, and members of Congress have been more commonly, societal credibility can be difficult to regain. My point is that the public tends to swallow too easily that which should at the very least be held as suspect in terms of veracity. That Clinton lied under oath and to the American people about having had sexual relations with Lewinsky in the 1990s should have registered on the media’s radar screen and in popular reaction to Clinton’s answer, again under oath, to the same question, to Congress in 2026. An old dog can indeed learn new tricks, but personal ethical development should not be assumed as if the proverbial dog had not done the old, sordid deed once already.

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1. Leo Briceno, “WATCH: Bill Clinton Grilled on Shirtless Hot Tub Photo amid Swirling Questions on Epstein Relationship,” Foxnews.com, March 2, 2026.
2. Ibid (on the quoted material).
3. Marilyn Rauber, “Finally Admits He Lied under Oath: Dodges Criminal Charges with a Last-Minute Deal,” California Post, January 19, 2001.

The ECJ Castigates the Commission for Paying Off Hungary

In an opinion submitted to the European Court of Justice, which tends to follow the legal opinions the 11 Advocates General, Tamara Capeta recommended in February, 2026 to the Court that it “should annul the European Commission’s 2023 decision to disburse €10.2 billion” to the E.U. state of Hungary.[1] Capeta found that the state government had not sufficiently addressed “concerns over systemic corruption and rule of law violations” to qualify for the payment.[2] That the Commission released the payment nonetheless points to corruption at the federal level—in its executive branch in particular—and this charge against the Von der Leyen administration renders the charge against the Hungarian government rather ironic. Rule of law should apply (and be respected!) at both the federal and state levels for the E.U. to continue to be viable. This applies especially to the Commission, as it is tasked with enforcing E.U. laws, directives, and regulations as well as treaty obligations that the EU, including its state governments, have to other countries, whether they are federal unions (e.g., the U.S.) or independent states.  

The Commission’s decision to reverse itself on the payment “came just days before a crucial December 2023 EU summit, where Hungarian Prime Minister Viktor Orbán threatened to veto a €50 billion aid package for Ukraine and block the start of EU accession with Kyiv.”[3] At the European Council’s meeting, “Orbán left the room for a coffee break, allowing the other 26 E.U. [states] to approve the accession talks.”[4] At “an extraordinary” Council session in February 2024, “Hungary lifted its veto on the €50 billion Ukraine support package.”[5] Some representatives in the E.U.’s parliament “suspected the E.U. [had] struck a deal with Hungary, trading unfrozen funds for Orbán’s withdrawal of his veto” even though the Commission “denied any such agreement was made.”[6] Given Orbán’s twice reversal after his state government had just received the suddenly unfrozen funds from the Commission, its denial strains credulity at best, and more realistically actually confirms the charge of sordid dealings in the Commission at the expense of E.U. law.

It is harmful enough to the federal union when a state government violates E.U. law, especially with impunity; for a federal-level governmental institution to shirk federal law says in effect that the E.U. does not respect its own law (so why then should state officials respect it?). Presumably either the Commission and/or one or more of the states could have made a deal with Orbán that did not involve violating E.U. rule-of-law.

Moreover, occasioning the unlawful deal is the staying power of the principle of unanimity in the European Council and the Council of the EU. A minimum of nine states was at the time sufficient for the federal program of “enhanced cooperation” to be invoked, in which case blocs of states could move forward in being subject to a federal law or regulation even though one or more state would still be in opposition but not to be subject to the law. Of course, this program could not apply to votes on whether to annex another state to the Union, and to decisions on whether to spend E.U. funds on other countries, including Ukraine because on such matters, the E.U. itself must either act as one or not act. So a so-called “multiple-speed” E.U. is not a complete answer to the basic problem of applying the principle of unanimity to 27 (and potentially more!) states.

Rather than relying primarily on its state governments for defense and even foreign policy, the E.U. could look to the U.S., which has both a federal military and state armies (called militias). That the federal president can temporarily call upon such armies even if their respective state presidents refuse does not mean that those armies are federal. Such an arrangement, which the E.U. did not have at least as of 2026, is consistent with the underlying dual-sovereignty of both the federal and state governments (or, for the ideologically squeamish, governmental institutions). The augmented federal powers would need to be decided by qualified-majority voting in the Councils that represent the state governments at the federal level; otherwise, no such partial transfer of governmental sovereignty could take place. Being politically unwilling to “step up to the (baseball) plate and bat,” federal and state officials should not collude in deal-making in ways that violate federal laws, lest the Union itself head down a slope wherein federal law has no force. This is especially of value in a world in which military aggressors such as Russia and Israel were wantonly violating international law with impunity; E.U. and U.S. jurisprudence, which is not international, and the corresponding duties at both federal and state levels of government, is not as self-evidently strong as Europeans and Americans may have been assuming in as invasions and genocides elsewhere were going on with impunity internationally.

On a visit to Florida at the time, I was shocked at the extent of brazen refusals by police employees of at least two cities to enforce criminal law—some employees even denying the existence of whole statutes, and the subordinates’ respective managers refused to hold those employees accountable. I was so stunned by the sheer brazenness of the lies that I decided not to move to that U.S. state. The rule of law cannot be assumed as though it castigates sordid personal discretion automatically; rather, law depends on humans to enforce it with integrity. This is why the international “laws” that Putin and Netanyahu were able to violate with such violence for years may not even count as law, for the enforcement-mechanism was entirely lacking de jure et de facto. “Law” without this cannot be counted as law.

The obligation of government officials to recognize and enforce rather than deny the very existence statutory law should be a given. It follows that federal officials in the Commission should not have been permitted to ignore the relevant federal law when it became an obstacle to making political deals with Hungarian state officials. If getting those state officials on board with a political priority of the Commission was so important, then the Commission could alternatively have pressured the states to reduce or end outright the application of the principle of unanimity in the two federal councils that represent state officials directly at the federal level, at least with respect to foreign policy and defense and even on the matter of “enlargement” (i.e., annexing future states). If qualified-majority is too low, then perhaps 75% of the states could be used as a benchmark for such very important policy decisions. The QMV-unanimity distinction is a false dichotomy, given the daylight available between the two voting methods. If one state can hold an entire Union back, then something is wrong with that federal system, and violating federal law to get around that problem is at best a short-sighted, expedient solution. In other words, the E.U.’s federal system has been suffering, at least as of 2026, from a much more serious problem than (collusive) corruption in the Commission and the Hungarian government.

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1. Sandor Zsiros, “E.U. Court Challenges Controversial €10.2bn Payment to Hungary,” Euronews.com, February 12, 2026.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. Ibid.

American Federalism and Equal Protection: Transsexual Children in Tennessee

On June 18, 2025, the U.S. Supreme Court ruled that a Tennessee law blocking transsexual children from being able to undergo puberty-blockers and gender-changing surgeries does not violate the Equal Protection clause of the U.S. Constitution. The court’s 6-3 opinion in U.S. v. Skrmetti was reported at the time to fall “largely along conservative-liberal lines.”[1] By this is mean ideological lines, both moral and political in nature. Such is grist for the mill for the broad judgment of an electorate, in what is otherwise known as popular sovereignty, which is superior to governmental sovereignty in a republic. Add in the fact that Tennessee is a member-state in a federal system in which the U.S. Supreme Court is on the federal level, and the broad judgment of the electorate takes on more significance to the extent that a federal system of an empire-scale union is in part supposed to take into account and protect interstate ideological differences that defy one-size-fits-all union-level policies. In other words, as cultural heterogeneity can be expected in going from state to state in an empire-scale union-of-states, efforts “from the top” to impose a single policy on every state do not allow the federation to breath. Political pressure could be expected to build over time if such a suffocating tendency eventuates, with the risk of dissolution increasing over time as if depreciation.

Because the U.S. Supreme Court can (and has) contributed to a one-size-fits-all compromising of federalism in favor of the General (i.e., federal) Government, Chief Justice Roberts wisely resisted the temptation (if he felt any) to decide the issue not only for the people of Tennessee, but also for the entire Union. “The voices in these debates raise sincere concerns; the implications for all are profound. The Equal Protection Clause does not resolve these disagreements. Nor does it afford us license to decide them as we see best.”[2] He was deferring to popular sovereignty. Because he did not find discrimination based on sex to exist in the Tennessee law and thus that it does not violate the Equal Protection Clause of the federal constitution, he was able to not only defer to an electorate to use its broad judgment, but also allow Tennessee some breathing room within the Union.

It is arguably more likely that the majority of the electorate in Massachusetts, for example, would be against the Tennessee law being adopted in Massachusetts, than that a majority of Tennessee’s citizens would vote to repeal the law. Both of these collective value-judgments being able to be codified into law is vital to the endurance of a federal system in an empire-scale union of states. Therefore, the strict scrutiny that sexual discrimination requires of any court should not be used as a crutch by which to “federalize” law in the United States or to replace the value-judgments of majorities of voters with those of justices. The fact that the decision fell along ideological lines means that value-judgments apart from jurisprudence were also involved in the decision, and thus that Roberts is correct that the contesting “sincere concerns” should not be resolved by fiat, but rather by means of ballots.

This is not to say that a federal court should sidestep cases that do involve significantly harmful sexual, religious, or racial discrimination on a minority, for majority rule is not absolute. Rather, the interests of an electorate and of federalism itself should be considered by judges and justices, especially when the law under the microscope has a legitimate purpose. In the present case, stopping children from blocking puberty is a legitimate societal goal because children are especially vulnerable to not being of mature mind on even themselves. Surgeries are of such consequence that this part of the law was not even contested. This means the law had at least some merit of intent and thus could not be rightly claimed to be intended to discriminate. Although historically some state governments have enacted laws intentioned to discriminate against Black Americans, that such laws were so blatant can be used as a litmus test for federal judges and justices to assess whether a law is inherently and intentionally discriminatory. Just because a particular law impacts only a group rather than everyone does not mean that the law necessarily violates the Equal Protection Clause. Put another way, just because a law costs or benefits only people who meet certain criteria, such as having a disease such as gender dysphoria, does not mean that unless everyone meets those criteria the law is unconstitutional.

In fact, the value of broad value-judgments being made by voters as the basis of a republic and the importance of not succumbing to one-size-fits-all-states trends by federal governmental institutions arguably warrant shifts in federal policy and jurisprudence. For instance, the use of referenda by governments so an electorate can assume an increased role on the level of value-judgments would solidify that foundation of American democracy, with elected representatives taking their cues from the broad strokes to implement them into specifics, whether laws or regulations. Furthermore, the U.S. Supreme Court could set a precedent whereby it is more difficult for that court to declare a state law unconstitutional under the federal constitution. That that court is a branch of the federal government means that there is at least an implicit conflict of interest on matters bearing on federalism, since justices are both nominated and confirmed by branches of the federal government. I once asked Sandra Day O’Conner why the court had not done more to counter this institutional conflict of interest. She replied, “It takes five,” meaning five justices to agree to do it, and that was a Republican-majority court!  That the U.S. is not a France or Germany with a large back yard, but, rather, of the same scale and federal-type as the E.U., is reason enough for the American state governments to flex their respective wings more so as to reflect or match the broad value-judgments of their electorates. On June 18, 2025, Chief Justice Roberts resisted the temptation to clip Tennessee’s wings and thus incrementally strengthened the federalism of the empire-scale union.

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1. Josh Gerstein, “Supreme Court Upholds Tennessee’s Ban on Gender-Affirming Care for Minors,” Politico.com, June 18, 2025.
2. Ibid.

Corporate Governance and Political Activism: The Case of Ben & Jerry's

When a company’s management decides to take a partisan position publicly on a political issue, especially one that is contentious, decreased revenue, whether from potential or actual consumers individually who disagree with the company’s position, or from an organized boycott from groups that stand against the position. Anger may be a stronger motivator than ideological agreement, in which case any increase in purchases would be less than the lost revenue. This asymmetry itself is interesting from the standpoint of human nature, and strongly suggests that CEO’s steer their respective companies, which managements operate on behalf of the stockholders anyway, away from taking controversial positions on social or political issues that do not directly and significantly pertain to the bottom-line (i.e., profitability) in the short- or medium-term. In short, wading into societal issues is, generally speaking, not good for business. What then about a company like the ice-cream manufacturer, Ben & Jerry’s, which from its inception had social/political activism as a salient part of the company’s mission?

Both the initial two owners and all subsequent owners, which includes Unilever, which bought the company in 2000, could not have become owners with the understanding that they were buying (into) an apolitical company, so the fiduciary duty of management was not breached. That Unilever fired Ben & Jerry’s CEO, Dave Stever, in 2025 because he had continued the subsidiary’s very public political activism presumably because it included criticism of U.S. President Trump is, let us say, complicated. I contend that the firing constitutes a breach of contract even though that contract contradicts the principle of corporate governance in part but not enough to justify allowing the firing to stand legally.  

On March 18, 2025, the management of Ben & Jerry’s accused the subsidiary’s parent-company of violating the ice-cream-maker’s “independence on social policy issues.”[1] It is precisely because a parent-company has the legal right to control the management of a subsidiary.

Unilever had informed the management of Ben & Jerry’s on March 3^rd that the latter’s CEO was being removed “without consulting directors because of his commitment to the ice-cream maker’s social mission and brand integrity, not because of concerns about his job performance.”[2] Unilever’s managers had “repeatedly warned personnel” at Ben & Jerry’s “not to defy” that management’s “efforts to ‘silence the social mission’” of the subsidiary.[3] Unilever’s management blocked the management of Ben & Jerry’s from honoring of Black History Month and opposing the detention of Mahmoud Khalil, “a U.S. permanent resident” who had been “active in pro-Palestinian demonstrations at Columbia University.”[4] It was not as if the subsidiary were supporting a “KKK (i.e., racist) month” and gang activity coming across the border from Mexico and hitting streets in the U.S.; nevertheless, the positions that Ben & Jerry’s management wanted to take were controversial in nature, though it is not clear that either position would have lost the subsidiary much revenue. 

The issue, I submit, comes down to corporate governance. Ordinarily, when a company buys another, the former gets to control the latter. It is not like a federal system wherein two governing bodies have at least some governmental sovereignty over the same territory; rather, corporate governance is top-down. The question is whether, in buying Ben & Jerry’s, Unilever’s agreeing to recognize and go through an independent board tasked with safeguarding the political and social activism that were so much a part of the ice-cream brand was valid. In refusing to go through that board and in accusing the management of Ben & Jerry’s as defying the Unilever management, the latter was taking the position that as the owner of the subsidiary, Unilever could unilaterally cancel the agreement.

Prime facie, to sign off on a clause in a legal contract and while presuming the legal right to unilaterally invalidate said clause without notifying the counterparty of the escape clause before the signing is odious and unethical (the technical term being sneaky). The practice could be considered a form of lying because the standard understanding of a legal contract is that all parties signing it accept that they are bound to it and thus cannot legally violate it. Kant reasoned that promise-breaking is unethical because if such a policy were universalized, making a promise (or an agreement) would not make sense because no one with any sense would sign a written contract. The logical contraction itself offends reason and is thus unethical because it is by the use of reason that we assign value to things.

Another ethical issue is whether it is fair that Unilever fired Ben & Jerry’s CEO even though plans were in place to spin off the subsidiary later that year. In February, 2025, the subsidiary’s management had “accused Unilever of unilaterally banning [the subsidiary’s management] from publicly criticizing [U.S. President] Trump, ostensibly because of the ‘new dynamic.”[5] Given the spin-off plans, this could very well have been the motive in firing the CEO because even a few months more of political speech could be dire for Unilever financially, given the president’s penchant for payback. Using corporate governance to stifle political dissent is, however, questionable ethically as well as from the standpoint of democracy. The ethical issue would be exacerbated were Unilever’s board-members or its CEO supporters of President Trump. In terms of democracy, an elected president’s de facto control of companies with respect to wiping out political dissent is obviously problematic because of the importance and right of free-speech in maintaining a republic. Of course, Hitler’s political use of companies to locate political dissent and even to find Jews didn’t face any such obstacles.

As important as ethics and political freedom are, the core issue in this legal case pertains to corporate governance itself. Specifically, do property rights, such as a parent company has in being able to control any of its subsidiary companies, trump even a written contract by which a parent company has agreed that subsidiary’s management can be protected from certain exercises of control by the parent company’s management or board? This is the pertinent question in this legal case.

Noting that a person putting one’s labor (or money, which represents labor in part) into something renders it legitimately one’s own property, John Locke saw property rights as existing in the state of nature, whereas Thomas Hobbes did not; in the contentious seventeenth-century Europe, he advocated that a political sovereign be given a monopoly on political (and religious) power in part to protect the property of people so they would not kill each other over it (though the sovereign could of course take over the property without providing a justification). In the antebellum southern States in the USA wherein slaves were considered property, those slaves had no rights against their respective owners. It is ironic that a case of humans-as-property illustrates the epitome of property rights, and yet such rights in themselves, at least in a society, have a legitimate basis. My point is that while we may not like where the doctrine of property rights can take us, modern corporate governance is on a sound footing philosophically.

Unilever’s breach of contract may, however, run aground because a system of property rights is for practical purposes based in a legal framework, wherein a breach of contract is not legal even though particular circumstances may admittedly justify it ethically and even legally. The question of whether Ben & Jerry’s CEO could legally “defy” the board or management of Unilever because officials representing the latter signed a legal contract mandating the use of the independent board centers on whether that clause can be considered to be legally valid and thus binding even though it “defies” the doctrine of property rights upon which corporate government itself rests.

I contend that the clause is legally enforceable. It is not as if that clause were in “boiler-plate” small-print that the lawyers at Unilever missed. It is not as if the clause contains an escape sub-clause for Unilever, for Ben & Jerry’s management (and lawyers) would have flagged it as undercutting the very point in having the clause in a legal contract. Moreover, the willful unilateral decision by a party to a contract that it no longer binding is offensive to law itself, which is an important foundation for a free society, l’etat est moi is a different story. In fact, it is as if the board or management of Unilever were saying, we are above the law, or we are the law. Either premise guts the basis of a legal system, and thus of corporate governance too. Such a governance system in the private sector is based on a legal system even more fundamentally than on property rights because even such rights are premised on a legal system (even though Locke disagreed). Regardless of what holds in the state of nature, the rights of property in a society are granted by law, which requires the existence of a legal system unless law is the will of a political sovereign. This is why it is so important that the President of the United States recognize the constitutional validity of judicial decisions bearing on a president’s will, for otherwise that will could easily become law and no legal system would be needed; the republic would collapse into dictatorship.

That a republic, including federal republics wherein smaller republics also exist—the E.U. and U.S. being notable examples—can (and have) become autocracies demonstrates just how tenuous democracy can be. Property rights, too, may be tenuous, especially in autocracies even though eminent domain exists in republics. To be sure, the lack of legal restraint on a regime of dictatorship, for the state’s will is the law, means that property owners are not typically monetarily compensated for the loss of their respective properties taken by the state. The legally contracted legitimacy of the independent board protecting Ben & Jerry’s social-activist-brand intangible asset is in relative terms not much of an affront to property rights as instantiated in corporate governance.

I have argued that Unilever’s representatives signed the contract of the merger-agreement means that the independent board is not even not much of an affront. In effect, Unilever’s property rights regarding  Ben & Jerry’s explicitly excluded the right to ignore the independent board. As a principle to be derived from this case, it can be maintained that corporate governance does not necessitate or require an absolutist doctrine of property rights. The very existence of the state, whether democratic or autocratic, means that absolute property-rights do not and cannot exist. Therefore, a purchaser of an asset agreeing by legal contract to restrict one’s rights with respect to the use of the asset is legally valid and thus should not be vitiated by later appeals to the doctrine of property rights. In renting house, the house’s owner typically agrees in the lease to restrictions on entering the house. The state may mandate this restriction to protect renters even thought their use of a rented property is not ownership. That is, use-rights can trump property-rights in certain respects short of the right to assume ownership of the property, and the existence of such restrictions on property rights does not destroy property rights as a prominent part of a legal system.

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1. Jonathan Stempel, “Ben & Jerry’s Says Parent Unilever Decided to Oust Ice Cream Maker’s CEO,” Reuters, March 18, 2025.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.

Undermining the U.S. Supreme Court: Non-Jurisprudential Ideology and the U.S. Constitution

As in the case of the Roman Empire, which internal corruption likely weakened and even destroyed centuries after that empire had been a republic, modern republics are also not immune from internal decay. Even though political corruption can go under the radar, especially if systemic rather than merely episodic or around particular office holders, the subtle, gradual impact can be just as destructive than had Carthage defeated Rome’s general, Skippio Africanus, in north Africa. Making subtle decadence all the more embarrassing is the fact that it can be right under the noses of upstanding office-holders. I contend that this is the case with Chief Justice John Roberts of the U.S. Supreme Court.

In his annual report in December, 2024, Roberts “slammed what he described as ‘dangerous’ talk by some officials [in the two other branches, or arms, of the U.S. Government] about ignoring court rulings,” as that could result in a judiciary that is less than independent of the legislative and executive branches and their respective members.[1] Both Republicans and Democrats had “hinted at ignoring rulings in recent years.”[2] To Roberts, that every presidential administration “suffers defeats in the court system—sometimes in cases with major ramifications”[3]—is the main reason why some presidents, including Andrew Jackson, have been tempted to leave it to the high court to enforce its rulings rather than rely on the executive branch. But this explanation ignores something else—something just below Roberts’ nose.

Even as Roberts “lamented that ‘public officials’ . . . had ‘regrettably’ attempted to intimidate judges by ‘suggesting political bias in the judge’s adverse rulings without a credible basis for such allegations,” the chief justice dismissed the claim of political bias as “inappropriate.”[4] I submit that the claim has sufficient basis to be taken seriously, and, furthermore, that it goes beyond questions about the ethics of particular justices, such as Thomas’ acceptance of vacations and Alito allowing his wife to fly a right-wing flag at one of their houses.

Proverbially with a straight face, the chief justice wrote in his 2024 year-end report that the role of the judicial branch is “to say what the law is.”[5] I submit that the justices do more than that. Just in the media referring to “the conservative 6-3 majority” contains the implicit assumption that there are indeed conservative and liberal justices and that such labels go beyond referring to jurisprudential hermeneutics (i.e., approaches to interpreting the U.S. Constitution) and even what opinions on what law itself is. Emphasizing what the words in the document meant in 1787 versus what they mean today, or privileging the original intent of the delegates at the U.S. Constitutional Convention versus interpreting the text in terms of the modern world are just two examples of how the words conservative and progressive (or liberal) could appropriately be applied to court justices in a way that delimits the extent to which their ideology can play a role.

I submit that when Justice Sandra O’Conner wrote the U.S. Supreme Court’s majority opinion before the oral arguments in Bush v. Gore—the ruling that effectively gave George W. Bush the federal presidency—something more political than jurisprudential hermeneutics being applied was in play. That O’Conner had been a Republican in Arizona’s lower house from 1969-1974 may have something to do with why she subsequently wrote the Bush v. Gore opinion for the conservative, Republican-nominated majority before even oral arguments were heard.

Furthermore, that justices who were against abortion constituted the majority opinion that overturned Roe v. Wade (1973) may suggest that a non-juridical ideology played a role, and thus that those justices went beyond merely deciding what the law is to stating what it should be. That the justices who constituted the majority in the Citizens United (2010) case were conservative, and thus likely pro-business, may have meant that the nonjuridical economic ideology of free, unencumbered markets even manifesting with money being free-speech was in play.

On the other ideological side, it is likely that attitudes towards race played a role in the liberal majority’s opinion in Brown v. Topeka Board of Education (1954) that separation is not equal and thus racial segregation in public schools is unconstitutional. Similarly, the finding of an implicit privacy right in the due process clause of the U.S. Constitution in order to render abortion legal in the Roe v. Wade decision may point to an extra-judicial ideology bearing on life and abortion, and even religion, as being in the driver’s seat.

When moral, political, cultural, or even religious ideologies or beliefs are salient in a judicial decision, then the designation of conservative or liberal points to a broader judgment both as concerning the justices themselves and their respective rulings. If such broadly-informed judgment is really what the electorate in a republic should bring to voting, then the implication is that public matters requiring or even just fitting such broad judgment should not be decided by unelected justices. I submit that such deference is precisely the point on which Roberts and his court (as well as other, past courts, including that of Warren) has lapsed. Individual judges and even an entire court can thus be seen as opportunistic in short-circuiting the prerogative that actually belongs to the popular sovereign: the people. This does not mean that the will of a majority of an electorate should trample over individual rights, as a judiciary is rightfully charged with protecting such rights precisely because a majority of an electorate may act heedless of minorities, as can legislatures and even presidents; but defending rights from majoritarian tyranny does not mean or require a judge coloring beyond the jurisprudential lines on a page to impose one’s own exogenous ideology, which anyone could do—hence the deference.

That the U.S. presidency, which unfortunately has been partisan at the expense of the credibility needed to preside, nominates U.S. Supreme Court justices and Republican or Democratic U.S. Senators (and occasionally an Independent) confirm the nominees means not only that politically conservative or liberal justices can be expected to be sitting on the bench, but also, and perhaps more importantly— though unfortunately almost invisible to the naked eye—the selection process itself is culpable in essentially exporting political judgments from the American electorates to the unelected justices. In short, Americans should not be surprised at all that political ideology, infused with moral, economic, and even religious valued beliefs, has such an impact in U.S. Supreme Court decisions. The U.S. Constitution itself is biased in favor of this, and that the amendment process is itself so hard to complete means that the vulnerability to partisanship on the bench that is structural in the document is effectively intractable.

Being human, all too human, all of us would love to imprint our respective ideologies on law, whether statutory or common. So, we should all have the means to do so through the vote. Essentially, I am arguing that popular sovereignty—government by the people rather than vice versa—has unwittingly ceded too much territory to the U.S. Supreme Court under the subterfuge of an expansive notion of judicial interpretation. Ironically, there is thus a silver lining in this respect to the anti-abortion justices imposing their moral or religious beliefs in overturning Roe v. Wade because as a direct result, some state legislatures have voted on legislation bearing on abortion and even the voters in some states have been able to exercise their popular sovereignty by being able to vote directly on the matter via referendi.[6]

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1. John Fritze, “Roberts Warns Against Ignoring Supreme Court Rulings As Tension With Trump Looms,” CNN.com, December 31, 2024.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. That last word is the plural form of referendum; you can blame Latin, and ultimately the Romans whose empire fell at least in part due to corruption within. No human social artifact can be expected to last forever. 

The Colorado Supreme Court Bars Insurrectionist Trump: Who Should Ultimately Decide?

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 any 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.

Section 3 of the 14^th 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.”[1] 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 all 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.”[2] 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.

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.”[3] 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.[4] 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^th Amendment to Donald Trump.

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. 

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.

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 any office.

Secondly, such a position incurs the worries noted by James Madison in his Notes 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.

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.

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.

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^th Amendment.

Separating the criminal proceedings from the work of the U.S. Supreme Court would buffer the impact of politics inside 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^th 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 a part 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.

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1. Nicholas Riccardi, “The Constitution’s Insurrection Clause Threatens Trump’s Campaign. Here Is How That Is Playing Out,” APNews.com, December 20, 2023.
2. The U.S. Constitution, Section  of the 14^th Amendment.
3. Kinsey Crowley, “What Is the 14^th Amendment? Why Colorado Disqualified Trump and Removed Him from Ballot,” USA Today, December 20, 2023.
4. Not even the report of the judge’s talk in The Yale Daily News includes any mention of the judge’s answer to my question. Presumably the student-reporter did not think the reply could be controversial.

On Trump’s Eligibility to Run for President: Who Decides?

The 14^th 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.”[1] Did Donald Trump, when he was President of the United States, engage in insurrection? Furthermore, who decides this and bars him from office?

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^th Amendment. “The question of Donald Trump’s disqualification under the 14^th Amendment will be decided by the Supreme Court,” Michael Luttig, a conservative former federal appellate judge said in 2023.[2] Aside from the prediction, I contend that it should be.

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.

First, the voters would need to know how the framers used the word, insurrection, assuming an original intent hermeneutic, or else what the word means in its legal 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 research 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.

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.

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.[3] 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.”[4] 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.

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.”[5] 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 should take action of a political sort.

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.

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.

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 insurrection in the 14^th 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^th 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.

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^, 2020, pressuring Georgian officials to “find” votes, or instigating false slates of electors in a few states, that they constitute insurrectionist activities.  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.

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 Bush v. Gore (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 Dodds v. Jackson (2022), which overturned both Roe v Wade (1973) and Planned Parenthood v. Casey (1992), some of the justices reneged on their confirmation-hearing statements that they would respect Roe v. Wade 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.

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[1] S.V. Date, “Trump May Need Supreme Court To Say His Coup Attempt Does Not Violate Constitution,” The Huffington Post, September 2, 2023.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.

The Case for a Presiding President in Russia

On December 31, 2010, a Russian judge sentenced Mikhail Khodorkovsky, the Russian tycoon who had been imprisoned in 2003 after defying Vladimir Putin, to an additional six years in prison. According to The New York Times, "It was a politically tinged decision that undermined President Dmitri Medvodev."[1] Leonid Goman of the Right Cause Party in Russia agreed. "It was obviously a political, not a judicial, decision." He went on to say that in general terms, "corruption is endemic, government power is often abused and senior politicians are rarely, if ever, held accountable for misdeeds."[2]  Clearly, Prime Minister Putin was still very much in control in Russia.  His message was that wealthy businessmen should not interfere in Russian politics. What a contrast to American politics, especially after the U.S. Supreme Court's Citizens United case!  Khodorkovsky was at one time the richest person in Russia, having been one of the oligarchs who bought government assets at bargain prices after the fall of the USSR, but he financed opposition parties in a political system that was anything but democratic.

Analysis:

This case points to the importance of separating a judiciary from executive and legislative branches of government, as in the E.U. and U.S. The fragile nature of a judiciary's credibility can be of dangerous ground even when the branches are separated. But in Russia technically under President Medvodev in 2010, a court doing the bidding of a powerful prime minister (in name only) contributes to the demotion of the credibility of the country's judiciary. Ultimately, the president of a country is charged with presiding over its system of government with an eye towards protecting it as a going concern.  

For example, U.S. President Andrew Jackson in the early 1830's looked out for the viability of the country's federal system by pushing Congress back on its tariff that hurt South Carolina and pushing the latter to repeal its Acts by which federal law could be nullified. He also vetoed a bill that, if enacted, would have allowed Congress to appropriate money for what was really a state road in Missouri. The President's focus was on maintaining the balance between the federal level and that of the member-states that is so important to maintaining a viable federal system in the long term. 

In the case of Russia, the problem concerning the political use of the court was that neither the president nor prime minister were interested in safeguarding the judiciary's long-term viability, for they prostituted it for political expediency. I submit, moreover, that most governments have lacked a presiding president, by which I mean a president who is primarily fixated on maintaining the continued viability of the system of government, including its credibility. It is too easy for voters to elect partisans who are more focused on their respective ideological agendas than putting the system itself first. Similarly, it is too easy for dictators to use all branches of government to consolidate more power for themselves or their party rather than to protect the viability of the branches, including how they are related, rather than to be primarily oriented to presiding over the system as a whole. 

See related essay: "On the Eclipse of Russian Federalism: Implications for the E.U."

1. Clifford Levy, "Russia Extends Prison Sentence of Tycoon 6 Years,” The New York Times, December 31, 2010, p. A1.
2. Ibid. 

China: Mandating the Virtue of Filial Piety by Law

The founders of the United States, most notably Thomas Jefferson, John Adams, and Ben Franklin, held that for a republic to long endure, its citizenry must be virtuous and of a minimum education. Public education would be established, such that the common man could render a reasoned judgment at the ballot box. The dictum that the popular sovereign (i.e., the electorate) should be broadly educated resulted in law and medical schools in the U.S. requiring entering students to have a bachelor degree in another school before beginning the bachelor’s degree in the professional school. In short, public policy is an effective means of providing a people with the opportunity to gain an education, which at least in theory enhances the wisdom of a self-governing people. 

Virtue is another story. Law seems ill-equipped to form a virtuous people. It is one thing to outlaw vice in its outward conduct; how can legislation instill virtue within a soul?  Mandating virtuous conduct, such as in Massachusetts’ “Good Samaritan” law, may be possible where the conduct is in public and thus readily enforceable. Virtue within the home is far more difficult for the law to reach and thus foster. Even vice behind closed doors, such as incest as well as physical and emotional abuse more generally, is difficult for police to catch. To an extent, property rights enable such vice and allow people the option of not being virtuous in a family context.  Yet in countries in which an authoritarian state trumps even property rights, such as China, the question becomes whether legislation is the sort of thing that can foster or mandate virtuous conduct and even a virtuous character.[1] 

On July 1, 2013, the Government of China passed the Protection of the Rights and Interests of Elderly People law, which lists the required duties of adult children toward their parents. The duties stipulated include visiting one’s parents “often” and occasionally sending them greetings. The intent of the legislation is enforce filial piety, or Xiào 孝, by requiring adult children to meet the “spiritual needs of the elderly.”[2] Man, it would seem, does not live on bread alone.[3] This apparently includes the elderly.  

Although the government can enforce without much trouble the law’s stipulation that companies must give sufficient time off for employees to visit their parents on a regular basis, how are “greetings” to be enforced? The law itself contains no penalties. Moreover, is kinship, or what Cicero calls amicitia—friendship that is closest in the home—the sort of thing, being a sentiment, that can even in theory be nudged by a law? Not according to Guo Cheng, a novelist, who writes, “Kinship is part of human nature; it is ridiculous to make it into a law. It is like requiring couples who have gotten married to have a harmonious sex life.”[4]  Forcing gays not to have sex, mandating or outlawing birth-control, and prohibiting a person of one race to fall in love with someone of another can be added under the heading, “Difficult to Enforce” (or, “Should We Even Be Doing This?”). How do the police or a judge assess whether a son or daughter has given sufficient “mental support” to a parent?  

Should a daughter who has been sexually molested as a girl by her father give him spiritual or mental support? Even worse, should such care be obligatory as enforced by the state?  Is filial piety unconditional? An innocent girl having been sexually molested repeatedly by her father might stand in a shower for hours at night while her parents are out. She might have the mistaken sense that she is the person who must be dirty and thus in need of a cleansing. In actual fact, it is her father who is soiled by sickness from within. Further, the daughter might have the mistaken impression that she is afraid when her dad is away rather than at home. Should the state require her to do certain things for her dad when she is an adult (assuming she survives well into adulthood without self-destructing)?  
What about a grown man who as a boy had been beaten and emotionally abused by his dad? What does that son owe his father in terms of care and contact? Should the state dare even step foot into that tortured decision? What if the boy's mother had tried, albeit unconsciously, over the years to get her son to feel so bad about himself that he might commit suicide to answer for some imagined slight against her?
Any competent psychologist would advise all of those adult children to avoid their respective pathological parents rather than continue to suffer from abuse while offering care and support. Should a law mandate that the victims undergo further injury from parents who clutch out of fear and pride to their old ways or simply don't know any better?

Filial piety, one of the fundamental Confucian virtues

 Image Source: WUJIFA

What exactly is the virtue of filial piety? For six centuries in China, The 24 Paragons of Filial Piety, by Guo Jujing, has taught the importance of respecting and caring for one’s parents. Here the interior is married to exterior conduct. In 2012, the Chinese Government came out with a new edition, brought up to date with suggestions like: teach your parents how to use the internet.[5] It seems rather dogmatic, or arbitrary, to provide such specificity to the virtue. How uncomfortable would it be for the woman who had been repeatedly molested by her unjust father to sit down next to him decades latter to teach him key-strokes at such close range?  The obligatory weight of a six-hundred year-old text might push her over an emotional cliff.  

Generally speaking, law is like a thunderstorm’s wind. It does not discriminate between one light object and another in blowing through. A law is not directed to an individual; nor is law capable of discerning between individual cases. Even in common law, the law coming out of a case is meant to apply beyond the particular plaintiff and defendant. Roe v. Wade, for example, applies to any woman in the U.S. who wants to have an abortion.  

In contrast, virtue interacts with the idiosyncratic nature of the human psyche to form a unique moral character, which the person then applied to particular social situations. Filial piety in practice might mean one thing to you and something else to me even if we agree on the internal essence of the virtue. Furthermore, how we choose to express the virtue externally involves our own particular histories and situations. You might be obligated morally to visit your parents, while I face a psychological and moral obligation to avoid mine. Law is not such a sufficiently fine-tuned instrument to accommodate both of us, even as we share the same virtue.

Given the nature of human nature, law is both necessary and limited in its capacity. Even in the case of an autocratic state such as in China, the law can only do so much in touching a citizen’s interior life—the life of the soul.  Instead of having issued particular requirements to foster the virtue of filial piety in society, the Chinese government could alternatively have put resources into helping the Chinese adults having living parents assess how to apply the virtue to their particular situations rather than determine one size to fit all.

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[1] An alternative means, which I do not discuss here, involves the future possibility of scientists being able to “tweak” the human genome to make human beings less inclined to vice and more virtuous. For example, if greed is an instinct or urge to “get still more,” perhaps through genetics that instinct can be expunged from human nature. In terms of virtue, genetics might make it more pleasurable in being generous. Where such genetic treatments are available to everyone, it seems to me that a good ethical argument could be made on their behalf.

[2] Edward Wong, “A Chinese Virtue Is Now the Law,” The New York Times, July 2, 2013.

[3] Bible, Deut. 8:3. See also Matt. 4:4.

[4] Edward Wong, “A Chinese Virtue Is Now the Law,” The New York Times, July 2, 2013.

[5] Andrew Jacobs and Adam Century, “As China Ages, Beijing Turns to Morality Tales to Spur Filial Devotion,” The New York Times, September 5, 2012.