The Day After

The following is a personal outlook paper by the founder of The Jacksonian Party.

With all the debt limit finger-pointing, yelling, screaming and such going on it is hard to take these supposed 'leaders' Upon The Hill seriously.  We hear words of 'default' and 'Armageddon'  plus 'Doomsday' bandied about.  So what is it, exactly, that is going on?

First the government has allowed itself to spend approximately $4.4 trillion dollars this FY of which $2.4 trillion is deficit to be added on to the debt.  Congress has previously set a debt limit, decades ago, to help keep tabs on spending so that everyone has to agree on the basis for new spending.  That debt limit is coming and has actually been here, save for some Federal Reserve and Treasury accounting tricks.  The tricks, smoke and mirrors are just about cleared out, now, and we are getting to see the problem without them.

If you back a 'compromise' then please set in your mind that you want a federal government that spends approximately 1/7th to 1/6th of our economic productivity in accrual of debt we can't pay now.  While that has usually been bought by foreign investors, the Federal Reserve has been pumping money into the system to get that debt and has been the largest buyer at the last couple of debt auctions.  Their hope is that either this blows over, or they are left controlling the purse strings of future federal spending.

Nice folks, huh?

Second if you back  'compromise' you are kicking the can further down the road to larger, more intrusive government that eats up more of our economy and, in the end, must do away with 'entitlements' as economic activity to sustain them falls through the floor.  Who will invest in a people who can't get a government to spend within its means?  Or seek to have a large part of its population unproductive by choice?  That isn't working out so well for Greece, Italy, Spain, Portugal and Ireland... or the UK and France, for that matter.  That is the future ahead for more spending on our shores if you support a 'compromise'.  You will live to see that.

Now what happens when the debt limit is reached and there is no compromise?

First even Turbo Tax Timmy, the man who can't figure out his taxes but is the head of the Treasury, admits that we will continue current debt maintenance.  Left and Right that is admitted.  If we DIDN'T do that it would be a DEFAULT.  The US will not default on its debt as that is the reason the federal government was CREATED in 1787: to take care of Revolutionary War debt that was breaking up the States in the old Confederacy.  If the federal government can't do the #1 primary job it was CREATED TO DO then it must go through civil means to allow We The People to figure out something that WILL make good our promises to others.  I expect that would happen via elections and a Constitutional Convention in which States that spent themselves broke will not get much of a hearing from solvent States, either.  So the debt will be paid because, for the first time in over a century, it is not clear that Progressives and Liberals will be able to sway the outcome of a Constitutional Convention.  They don't like that, so they want our debt payments to continue.

From the approximately $2 trillion the US government takes in, about $600 billion (or $0.6 trillion) is in debt payments.  You have about $1.4 trillion left to spend!  I bet you could run a government on that....

What gets paid for next?

Well Obama is the Executive and in lean times Executives get a bit of a say in things for cutting back when the money isn't there.  Remember, Congress unwisely put up an unsound budget and it is now up to Obama to cut spending back to meet revenue.

Stop that laughing!

He has no choice in this.

His first real choice will be between 'entitlements' plus the Constitutionally mandated cats & dogs (DoD, parts of State, a bit of the Interior, US Mint, USPTO, Government Accounting Office plus various other items mentioned in the Constitution which I tend to lump together as 'cats &dogs') or the other discretionary areas plus some entitlements plus the cats &dogs.  The cats & dogs will take a haircut, probably around 20%, which doesn't free up much money.

Here is the deal: if Obama wants to have all the discretionary parts of government that are non-entitlement continue to work (like Labor, Education, Energy, EPA, FCC, FAA, IRS receipts offices and so on) then those will be fighting for money with the 'entitlements'.

Now after decades of fearmongering we have the visage of the most Progressive and Liberal US President in our generation having to cut government.  First, think of that on its own and take a look at the holder of the Office of the President of the United States.  He has no choice.

If only Nixon could go to China, then only Obama can cut government.

What will he do?

Well he could go against everything that every Democrat has said for over a generation and cut entitlements!  That would be seen as a basic betrayal of The New Deal and The Great Society... by one of the most Progressive and Liberal Presidents in our generation.  That is an abyss to step into for him as it is his name that will be on that, not that of Reid or Boehner.

So we can take it for granted that at most we will see a bit of trimming around the edges of 'entitlements' which will, itself, be a watershed moment.

That leaves between $60 billion and $100 billion dollars left to fund EVERYTHING ELSE outside of 'entitlements' and the cats & dogs. He can go the 'skeleton crew' route and keep an executive staff in each, but no other functions.  All the regulatory stuff goes into limbo for as long as this 'stand off' lasts.  There are some places that would eat up all of that and want more, like Agriculture that consumes at least $700 billion per year... it would be hard to keep on anything but a few top people there for $100 billion a year, so you can bet that baby will close down to allow shifts to other, more politicized entities, like Dept. of Justice.  DoJ is not a cat or dog, but a discretionary organization that didn't exist before FDR.  Before that Agencies and Departments were responsible for bringing their own prosecutions.  Keep DoJ open and you don't have much left for anything else.

The spending, basically, stops for a large part of the discretionary part of government outside of the 'entitlements'.  See how that works?

Outside of this what else happens?

A major part of this is the Treasury no longer holding debt auctions as there is no new added debt to auction.  That is about $2.4 trillion not getting soaked out of the global economy, or $1.8 trillion discounting the amount the Fed. holds.  The Fed might auction some of its recently purchased debt off, but that is just the 13 largest banks in the US trying to dump US debt which doesn't look all too hot on the banking front.  It is like shooting yourself in the head to get rid of a headache: not so smart.  Still they don't hold enough to go past a single normal auction... sooner or later US debt stops soaking up investment money.

That freed up money then will be invested elsewhere as the surest way to make money is to invest in productive industry.

Now if most of the Interior and EPA go to the point they can't process forms, industrial firms will look to the States, point to the track record of the company and ask the State if they can do drilling in off-shore waters.  After a couple of months of non-processing of forms (in other words going back on a good-faith forms processing concept) the States will find themselves asked if they want productive energy sector jobs to open up.  Without the federal government there to process forms, responsibility drops down to the State level.  States have their own safety requirements and they are still open for processing forms.  My guess is the day after the first debt non-auction, the States will hear from the energy companies.  Maybe sooner.

If the Dept. of Labor isn't there, then no one will be backing its paperwork for businesses, loans and such.  OSHA goes with that.  A lot of those regulations are part of industrial standard work, at this point, so they will be kept up with or without an enforcement arm for awhile.  Put in a few months of non-government and industry will begin to realize that there is no one telling it how much to pay people.  Fun, fun, fun!  The States do have regulations on this, of course....

The EPA has been trying to reneg on coal agreements, sequester land from energy exploration and, generally, trying to stymie energy production in the US.  Without them the States get to decide as the federal government doesn't OWN any of that land but is allowed to USE IT by the States.  Right there in the US Constitution that the federal government can only use land with the agreement of the State involved.  States will begin pulling land back as the federal government really can't stop them from doing that, even with the EPA.  Wonder why they haven't done that?

Consider something like BATFE which got scooted over to DoJ save for the IRS interest in the revenue part which is 'A' or Alcohol which is alcohol tax stamps.  That 'A' part will remain open, more or less, to collect money on those stamps... actually it probably goes straight to collections.  On the 'F' side, which is Firearms, the IRS has interest in the tax transfer amount on fully automatic weapons ($250 per transfer) but not much else.  As no one is there to enforce the making of new weapons of that type it is possible that 6 months into not funding BATFE you will see a new market for these weapons arise with a base price of construction, plus materials, plus $250.  And as no one is there to federally license manufacturers, and no one can stop individuals from manufacturing arms, and the 2nd Amendment has similar language in nearly every State Constitution... well we might see the end of the cutting up of old military full auto weapons and the direct importation of them.  Mind you, before 1976 this is what it was like in the US, and we didn't have an FA shooting spree then and we won't have one if this happens, save for criminals who can ALREADY get their hands on such things.  Private security firms may handle something like background checks to ensure that felons don't get their hands on weapons and if the States really want the federal instant background check they can pony up a bit of cash to run that part of the bureaucracy.

What doesn't happen in all of this is interesting.

Anyone who has federal securities continues to get their interest payments.  A lot of retirement funds have them.  These large institutional investors will see that 'the full faith and credit of the United States' is still good.  So will the bond rating services.  Do you downgrade a spendthrift who mends their ways, stops spending on frivolities and keeps on paying down their debt?  I wouldn't as that person is making good their promises and mending their ways.  Why would the US get a downgrade for doing the exact, same thing?

A lot of federally dependant jobs add to the unemployment situation, which might go up a full percentage point.  Sucks, that.  But there isn't a federal government to suck up investment dollars, either.  Hmmm.... why there will be businesses without regulatory overhead, without mandates, without worries about credit... who knows what they will do when there is some CERTAINTY that they will not be PUNISHED for hiring people via new REGULATIONS?  If and when that money comes off the sidelines the 'crisis' will end as unemployment drops and economic activity picks up.  As soon as everyone realizes that the federal government is the problem and that you can get by without it, then why, on Earth, would you want to bring all that back?

It is that last part that is the worry of the political and economic elites.  They are living in the 20th century and now see that Americans would be more than willing to chuck all the centralized controls in the 21st century.  Anyone saying that a 'moderate' solution to continue spending into pure insolvency is very immoderate to do so.  We have hit our credit limit and can turn back and not be Greece, Italy, Portugal, Spain, Ireland, the UK, France... why that might be a GOOD THING, no?  That is how much the equations have changed in the last few years:  the old 'moderates' are not in the middle, just addicted spendthrifts who can't say 'no' to more spending.

Of course this will be messy.

It will be painful.

You will have to be prepared for it.

I've been saying that for awhile now and am getting prepared even as we speak.

Not to march on the streets, but to help my fellow citizens through the tough times ahead.

If you aren't doing that, then your hours to prepare are few.

Because the day after debt limit Doomsday is not Armageddon, not global meltdown, but the beginning of the first day on a path to freedom and liberty.  I see that day coming much, much, much faster than I ever expected it.  Yet I have done the prudent and cautious things as the survivors will step with Prudence who is one of the best women I know of to walk with as she always warns to pick your steps and be prepared for bad days.  It is better to be prepared and never need those preparations as you can sleep well at night and be unafraid of the future.  I can't sleep soundly due to physiology, at this point, but I have no fears.

In a crisis will you be yelling, screaming, finger pointing and waiting for someone to save you who may never come?

Or will you be prepared to help your fellow man through hard times?

I will join with those doing the saving, may you never need my help as it isn't free and you will be expected TO help TO BE helped.  No free rides to salvation, sorry.

Positivist bias in the two party system

One of the so-called 'features' of the US political system is that it has a 'stable' two party assemblage.  That is to say the system of open politics in the US, in which there are no government established parties, boils down to a two party system over time.  I remember that in social studies courses this was posited as a 'good thing' as it led to a general 'middle of the road' sort of government that would 'get things done' and be 'stable'.  That attitude grew out of the Cold War which had a Superpower confrontation between rival Nation assemblages (USSR/Warsaw Pact and the US/NATO) that required non-traditionally high levels of government spending in the form of the the Defense Department having to keep a large standing military organization ready to strike back at any incoming Soviet attack.  A 'stable' government was to be cherished, then, as an all-out nuclear assault would have led to a massive redistribution of atoms from that of civilian population centers into vaporized and irradiated atoms floating in the air.  So if any political ideology got in place that put the 'balance of power' at risk it was seen as a very, very bad thing.

Thus we got: two parties now and forever!

The way the two party system did this was also posited as a 'good thing'.  Whenever a new political movement came into being that threatened to actually get enough people to register as a political party (and what is up with that, anyways?  I thought we were free to form our own parties without having to register them anywhere) or even just get close, one of the two parties would adopt some verbiage and programmatic planks from then new arrivals so as to cut short the founding of a new party.  By putting party 'muscle' behind these minoritarian agenda planks, the two party system would be 'safe' from major 'changes'.  Of course the political party apparatus endorsed this as it tended to concentrate political power into the hands of the few (that is the party elites) and cut off the oxygen supply to upstarts looking to get into the political action.  To that end elected officials from the two parties enacted laws that put population minimums on registering a political party (ahhh... makes sense, no?) and then sought to undermine, undercut and marginalize any new political movement by co-opting key positions of the new movement.

On the flip side if you firmly believed in the concepts you were backing as the key positions of a political movement and a larger entity endorsed those and you really, and for true, wanted to see those things you backed 'get done' then you looked at the motley assemblage of the party 'backing' those ideas and saw all the other special interests that YOU would have to support if YOU supported the party in question (and it was one or the other of the parties, now, wasn't it?).  And if the party that was trying to co-opt your political movement had planks from other minority organizations that had become embedded into the party structure, your choice was to swallow your pride and your ethics and vote for the party, or to continue on the journey without major party support.  Also you tended to find that a large number of your friends in the nascent organization decided it was easier to co-opt their values to get one or two good things done than to stick to the actual underlying philosophy of whatever it was being pushed (that is if you were lucky enough to have one).

The two parties couldn't get this done without the willing help of their organizations to get changes into the political system via way of Amendments, as well.  Luckily the two parties had established themselves in the Statehouses as well as in Congress and that pretty much wrapped up 'getting things done' for changing the Constitution.   I go over this in a previous article, The 10 years that changed America. Via a process of marginalizing new entrants to the political scene, co-opting agendas and programs, and then shifting the system to loosen the grip of local politics at the federal level, you got a system where political apathy becomes the norm.  'Activists', recognizing a good system they can game, then pop up touting one agenda or another so as to willingly get co-opted into a hodge-podge of special interests that became the two political parties.

But 'stability' was kept, right?

If you looked from the outside you would see some semblance of 'stability' yes, and that was the only front that mattered when nuclear holocaust was just minutes away.  On the inside of the United States, however, there were major changes taking place to the internal political structure as it had not transitioned from the 19th century 'throw the bums out'  mindset and had changed to a 'throw the bums back in again' mindset.  Here is what that looks like in a graph set I've used a few times now:

Courtesy: thirty-thousand.org

Up to the late 1890's the turnover in Congress was approximately 70%.  That is to say 30% were re-elected.  That flips over completely in the Progressive era and is rarely reached thereafter with 1904, 1912-1916, 1922, 1934 being the exception to the 70% getting thrown back in idea that became entrenched in the political system.  The idea of a 'stable' political system via incumbent return is a 20th century Progressive-era phenomena, not one rooted in the Cold War nor in our history.  While there have been two parties throughout almost all of the time the US has been around, the actual representation capability shifted at very high rates via elections.  So long as there was turn-over in the political class seeking election, representation was maintained and politics became vital.  When representation does not shift at high rates (and the society was growing, mind you, both in size and diversity) there is political stagnation and party entrenchment.

The reason this is 'positivist', that is that it seeks to add positive powers to the federal government, is that the concept of programs had also changed from the 19th century from one of abiding by State powers (they were the signatories to the Constitution, after all, and held the keys to the government they agreed to) to one of marginalizing State powers.  I go over this concept in When change is not progress and the process of shifting that focus from State-based entities to one of central regulatory authority of the federal government is both subtle and radical at the same time.  The concept of using program-based agenda items to win elections via the redistribution of money and power took hold in the early part of the Progressive era with Anti-Trust regulations that sought to 'break up the trusts' that were concentrating power and money in the American economy.  Of course busting those trusts still left the power and money in the same hands, but the company names and means through which to do so had changed: it was now necessary to start co-opting political parties to secure wealth and power.  Thus the Federal Reserve was born as an organization created by the largest banks in the US to protect themselves from Anti-Trust regulations and to start grasping at the political power that guided the Nation.  Too bad the only thing they know how to do is devalue currency, huh?

Nice how that works, isn't it?  You regulate something and then they throw their power and money into lobbying so as to start writing the regulations.  It becomes real hard to tell the difference between the politicians, the regulators, the regulated and where, exactly, any piece of legislation actually comes from because the actors all shuttle between those jobs.  Usually on your dime.  Then comes lovely ideas of being 'nice' and establishing a 'retirement age' so as to get the older, more productive and higher wage earning workers out of the economy and pay for that system by taxing the younger, less well off, and trying to raise a family working class.  Government can't 'invest' so it runs Ponzi Schemes, instead, up until the money gets radically inflated by their banking friends trying to gather value at the National level... but at least everyone will be broke, your money without value and no one cared for because it isn't worth working!  Then we are all equally slaves to the system!

That is what passed for 'stability' on the inside of the US circa 1970 up to the end of the Cold War when the 'impossible' happened and the USSR vanished in a puff of smoke and having a legislature that was equally in bed with industrialists and organized crime.  At least they had the brains to include the criminals, directly, and get some useful capability from them.  Don't mind the new color of red from the non-cooperative ones who got in the way.  Not that something like that is coming to the US of A where 'Activists' push agendas that industry gets behind so as to expand government and create crony jobs that benefits the industries in question so they can pay a pittance to the 'Activists' as a leaving on the bedside table one they are done using them.  No THAT would never come to the US of A, don't mind the labor union bosses meeting constantly with the President to maintain their illegal stake in companies that were 'rescued'!  That's not 'criminal' that is just redistributing the wealth and shafting the average taxpayer.

At least the average taxpayer is well armed, and getting better armed by the minute.  It would be a crying shame if the Dept. of Justice violated international law by funneling arms to transnational crime syndicates to destabilize our neighbor to the south and use that as a justification to vilify the small businessman who runs a gun shop.  Why that could NEVER happen HERE.

Right?

It isn't like there are vocal 'special interests' in bed with politicians, industrialists and banking organizations that are seeking to devalue the dollar and then extract a massive tithe for doing so via official means and by implementing huge bureaucratic organizations that will be filled up with 'Activists' and lobbyists, and burden the entire system with their overhead while reducing productivity to a pittance.  I mean that is so STABLE, isn't it?

Right?

Just accept the ratcheting up of government programs and never, ever, utilize the quaint 18th century idea that they should ever, just once, be re-authorized on a regular basis, say every 5 years or so.  That is just so... actually it sounds pretty insightful as a way to limit government, come to think of it.  Someday maybe we will have that in America...

And that is the problem with the positivist viewpoint of government always doing more via political co-opting of small political movements: it stifles larger movements and entrenches the special interests who are sucking at the taxpayer's hard earned money at every turn.  When I started this blog I suggested that the federal government needed a RESET button (not to be confused with the overload button handed to the Russians by Hillary Clinton).  The positivist view of government administering rights and liberty is one that enshrines government as the keeper of those same rights and liberties... not you.  But without you there would be no government.  Thus the actual holder of all rights and liberties is the individual, not government.  That is what I have been going over and continue to go over: the fundamentals.

If you don't know the fundamentals, then you are lost and without a compass.

Too bad there are these idiots in the expedition throwing the compasses away, huh?

And what you get when your fellow citizens lack a moral compass isn't pleasant nor civilized.  They start to think people should be ruled because they see their hideous reflection all about them... instead of realizing that it isn't their fellow citizens that are the problem, but that person in the mirror who has become a savage.  Now comes the time to remind these people that being a citizen means that you seek common governance equal for all, no carve-outs, no special interests and no special rights for anyone.  Savages won't like that and getting them to be civilized can often be quite messy because that means they must govern themselves, first, and that is always and ever a painful thing to do.

All agree or none shall pass - Part 2

This is a follow-up article to All agree or none shall pass which is a look at the structure of the US Constitution as put forward by Nicholas Rosenkranz on The Subjects of the Constitution.  The follow-up article on The Objects of the Constitution by Nicholas Rosenkranz was linked to by Glenn Reynolds at Instapundit on 26 MAY 2011.

By establishing the SVO system of sentences (that is Subject, Verb, Object) Mr. Rosenkranz has put forward that the Subjects of the Constitution are part of a logical understanding that actions (that is Verbs) that are being done apply to something (Objects) and are performed by someone (Subjects).  To find out who the Actors or Subjects of a clause or Amendment are in the US Constitution it is necessary to see what the Object of the Verb is which then tells you the Subject of that clause or Amendment.  As this is being applied to a federal structure type of government it is possible to implicate more than one Subject to a Verb acting upon an Object: a federal structure requires division of power and checks and balances amongst branches so as to establish a form of government that does not devolve down to a single branch or individual.

Finding the Subject performing an Verb requires that any reader of the Constitution understand the Object that the Verb is being applied to, so as to understand what the implications are in the Verb and Subject being described are.  To do this requires an examination of the internal structure and consistency within the US Constitution, itself, so as to see how powers (Verbs) are apportioned to different actors (Subjects) to do something (to an Object).  Even within the general Articles of the Constitution there is an apportionment of powers both stated and unstated but present by implication, that reach beyond the branch of government being discussed.  This is done so as to set up the balance of powers systems within the Constitution (and there are more than one power balance system involved), and to discern who is being talked about one must look at the phrasing of clauses and Amendments so as to properly place who gets a power and who is the counter-balance to it.  As there are three branches of government in the federal system (Legislative, Executive, Judicial) and divisions amongst the States and the federal government, and the States having their own republican forms of government that do not mimic the federal system, the types of power that are apportioned must often be directed to the holder of that power type rather than a formulaic system that equates, say, the President directly with a Governor as each State apportions powers differently

As part of the review of the Constitutional structure, Mr. Rosenkranz continues with the examination of powers via the clauses and Amendments and utilizes prior SCOTUS case history and other judicial review documents to see who gets to do what via the way a clause or Amendment is phrased and ties in with other, similarly worded, clauses or Amendments.  This is to perform a logical coherency check on the system to see if there is an underlying theme of how phrases are stated and what the understanding is for each power grant in terms of scope and limitations.  The clauses and Amendments fall into the category of active voice (Congress shall make no law...) which directly addresses an actor, and passive voice in which an actor is not directly named, but has a restriction on an action, instead.  The lineage of the passive voice is a long one and, for Common Law heritage, can be most directly traced back to the first article of the Magna Carta (boldface mine, unless otherwise noted throughout):

(1) FIRST, THAT WE HAVE GRANTED TO GOD, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired. That we wish this so to be observed, appears from the fact that of our own free will, before the outbreak of the present dispute between us and our barons, we granted and confirmed by charter the freedom of the Church's elections - a right reckoned to be of the greatest necessity and importance to it - and caused this to be confirmed by Pope Innocent III. This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity.

Compare this to the First Amendment in the Bill of Rights for the US Constitution:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Magna Carta utilizes the passive voice in that it does not state who the people are that cannot limit the English Church's internal operations.  It is a very broad declaration that pertains against the whole of the English government and all of its sub-parts.  For not stating who has done the restricting in the past, the first article puts forward that NO ONE can restrict it in the future and that it is to be run by its own internal election system from that point onwards.  This both establishes the Church of England for the Nation and yet removes it from the power of government, at the same time.

Amendment I of the Constitution is an active voice and narrowly crafted restriction as it names its actor: Congress.  It hits at the point of the federal system in that Congress, using Legislative powers, makes law that is then enforced by the Executive and presided over by the Judicial.  By making the crafting narrow so as to restrict the making of law by Congress, the other branches can gain no foothold nor have any say over the realm of religion as there can be no basis in law for it.  Congress cannot create or establish (or disestablish) a religion or prohibit the free exercise of religion.  Do note that if the people, separately from Congress and the National government, wish to make a National religion outside of the power of government, they are free to do so as Congress gets no say in that as those are the unenumerated powers that are retained by the States and the people.

Both prohibitions work to restrain the power of the government, but the passive voice restraint is universal in tone while the First Amendment is narrow in scope although broad in its implications in that the federal government is restricted from doing these things via the organ of Congress, but says nothing about the States who had as their purview the establishment of State church recognition at the time of the Framing.

To see this in the purely passive form on a similar subject, there is this from the Magna Carta:

(38) In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.

(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

(40) To no one will we sell, to no one deny or delay right or justice.

And from the Bill of Rights:

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Again passive voice in both is an injunctions against unlawful searches and seizures of someone's person or property, which is an Executive power, and that their liberty shall not be violated without having probable cause, which is the production of credible witnesses before seeking out an individual for searches and seizures.  The exceptions for the Magna Carta includes those of from judgments by juries '...the lawful judgment of his equals...' and '...by the law of the land', which is the Legislative arm of government. Amendment IV has an injunction against the Executive to perform  '...unreasonable searches and seizures...' indicating that there are reasonable ones that must be backed by a Warrant issued from the Judicial branch for law made by Congress.  In the absence of law or judgment, there can be no violation of the right against unlawful searches and seizures which is a passive voice restriction that binds the Legislative branch to make 'reasonable' laws, the Executive to ensure that it has good information before going after individuals, and the Judicial is made a part of this in the Magna Carta via court decisions and in the Constitution via the necessity of seeking a Warrant.

This lesson of the passive voice being an involving one because it does not clearly state who the actors are and requires an understanding of who gets these powers within a Nation are ones that any British citizen would know to some extent as this was part of the Common Law system.  The hidden structure within the Constitution is supported by the repetition of phrases amongst clauses and Amendments that point to a common understanding of the functions of the powers of government within the object of the Constitution, which are those powers that the Nation has, as a whole.  That a Nation has concerns that are different than those of States (that is sub-units that cannot make treaties and have other National concerns) is something that is well understood in the Founding and Framing era coming after the works of Grotius, Pufendorf, Montesquieu, Hobbes, Blackstone and de Vattel that all address the limits of National power.

From these examples done outside of the scope of Mr. Rosenkranz's article, it is possible to see how the English language has been utilized not only in the instance of the US Constitution, but thematically across time from at least the era of the Magna Carta.  The structure of sentences dealing with National powers is a form of 'originalism'  that goes beyond the power context of the document as a whole or even in its major sections, but allows for an in-depth understanding of clauses within sections, that tell much about the structural underpinnings gained from the utilization of the language to imply actors in the power arrangement without explicitly stating who they are.

Stepping from this to the interior cross-structural elements of the Constitution, the utilization of multiple instancing of phrases on topics then puts into play an understanding of linkages within the Constitution and its Amendments.  For this I will start with one Mr. Rosenkranz utilized which centers on the analysis done in Barron v Baltimore.  This analysis centers around the Takings Clause in Article I, Section 9 of the Constitution:

No Bill of Attainder or ex post facto Law shall be passed.

This is a passive clause and when asked 'to whom' does it apply, it is clear that the passing of laws is up to the Legislative branch of government as that is the organ of government that passes laws.  Now this language is replicated in Section 10 which applies to the States:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

This clause is a complex one, so it is necessary to concentrate on the structure as it pertains to the Takings Clause in Section 9 which I have put in boldface.  The 'No State shall...' is addressing the States (singular) and then listing prohibitions, which the 'pass any Bill of Attainder...' part highlighted is the one to examine.  Here the verbiage is similar to the restriction upon Congress, but is put on the States. Given that passing laws is a Legislative power, it can be inferred that the restrictions upon the State Legislatures or that set of organs of government that are vested with the Legislative power.  Because each State has a different arrangement of powers, so long as they are republican in form, it is not possible to say that a State may not transfer a power to a different organ for passing these sorts of laws.  So no matter which part of State governments get this power, they are restricted from using it to create a law pertaining to a Bill of Attainder or ex post facto situations.

Similarly the first article of the Magna Carta tells what may not be infringed in the manner of law leaving the implied context that although Parliament is normally the place for such laws, it is possible that the Sovereign may choose other bodies to do such things.  Those bodies, having that power, are also similarly restricted.  While the subject of 'States' are explicit in Art. I, Sec. 10 of the US Constitution, the reference to which part of State government is restricted from doing these things is not explicitly stated.

Reading from the same clause is a restriction on another part of State governments with the 'enter into any Treaty, Alliance or Confederation' restriction.  To whom does this apply at the State level?

In the main body of the Constitution, the only power in this regard is the Senate assent to a Treaty, but this is in Art. 2, Sec. 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;

This is an active voice clause 'He shall have Power...' is directed at the Executive branch of government, which is vested in one individual: The President.  With that power is a restriction requiring the Advice and Consent of the Senate by a 2/3 majority of those present. From this the restriction upon the States is to the Executive branch of State governments, namely Governors.  By utilizing a passive voice and generally addressing the States, the Constitution allows for a broad set of restrictions on the States as these powers that they are restricted from having are vested in the federal government.  Instead of an explicit listing of 'No State Legislature shall...'  or 'No State Governor shall...' the writers of the Constitution decided that a summary listing of powers that the States are restricted from having would then imply which organs of each State would face that restriction.  The blanket restriction of this clause removes uncertainty as it has no exceptions, no other mentioned or implied action that can be taken to allow these items, nor any way a State may do them while remaining in the United States.  The categories of power and branches that enact them for the States are embedded within the clause, itself.

A power mapping into the States can be performed by showing the different functions in the clause:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

The items marked in red are Executive functions while those in green are Legislative functions.  These function areas come from the formulation of republicanism used by the Founders in the Articles of Confederation and by the Framers of the Constitution, both of which had demarcations between Legislative, Executive and Judicial functions as part of the structure of government.  The structure of a republican form of government is not set in stone, and from Ancient Greek and Roman times through to the time of the Framing, the positives and minuses of republics were understood.  Republics are stronger than Confederations which had been seen as a failure as a system time for the Ancient Greeks as they are more of a passive structured alliance system with sovereign States able to act independently within the alliance with outside Nations.  By centralizing a number of functions to a single government, the ability of sovereign States was limited, but not dissolved.

When the United States was first Independent it was as a Confederation.  The load sharing of debt could not be centralized in that form of government and while the southern States found that with their thriving plantation based agricultural system was able to handle the debt load, the poorer family farming northern States could not due to smaller amounts of distributed output.  In the north the Confederation was breaking apart with uprising against confiscatory taxes leveraged by politicians that mainly represented the few bit cities which then tilted in favor of the merchants and against the rural farmers.  Changing to a republic meant a new Constitution to dissolve the old Confederation, so as to centralize the debt load so that the States as a Nation, not as States, paid off the Revolutionary War debt.  In a very real sense America failed in her first governmental system due to debt, the republic was founded in debt and with one exception under President Jackson, America has always been in debt.  Getting out of debt was a relatively easy thing to do: staying out of debt has proven impossible for this form of government.

One of the minuses of republics that was well known at the Founding and Framing is that they work best with small and compact geographical regions with more or less homogenous populations.  In their era the examples of the Swiss, Dutch and City of Venice were well known and each typified the examples of the Greek and Roman republican systems for being compact geographically, with similar cultural and ethnic backgrounds.  The reason a Confederation was chosen is that the United States were seen as too geographically spread and having major ethnic sub-populations that brought different forms of society together, even while they were colonies.  Each of the colonies had their own form of republican government with strong variations from Georgia to Pennsylvania to Connecticut to Rhode Island. The necessity of changing to a republic was worrying as central governments tend to become distant from those they govern when geographical size overwhelms the homogeneous nature of the republic.  Multi-ethnic and cultural republics have proven to be very few and far between, and not stable.  Rome transitioned from republic to empire before Julius Caesar in many ways with the government subsuming more private functions and handing out goods and services on an unequal basis.  The strength of a republic is also its weakness and it takes a good people who hold the values of republicanism to heart to hold a republic together.

The language of the Constitution reflects this understanding of the form and nature of governmental power at the level of the Nation and the internal workings of Nations as States.  By utilizing a federal form of republic, that is one with restricted allowances on what powers are granted to the National government, the concepts of checks and balances was put into place via the understanding of how they worked not just under British Common Law, but using the examples of republics past and present. 

When crafting sentences and clauses, as well as the Articles of the Constitution, the Framers took pains to understand exactly which powers they were dealing with (sovereign external or internal powers) and to proscribe those powers explicitly via statement and implicitly by the way republics utilize such powers amongst different branches of government.  An understanding of the federal form of government created at the Framing has a pre-requisite of understanding what a republic is and how one works as sovereign and representative power of the Nation in question.  Because of the SVO formulation of English as a language, those underlying power allotments are to be taken into consideration when approaching which actions (Verbs) are given to which actors (Subjects) and applied to which parts of the power structure (Objects).  The flexibility of the English language to have passive and active structures, and change the SVO ordering (although not the internal logic of the SVO order, itself) means that all parts of a sentence must be in accord with the underlying understanding.

All parts must be known and agree with the structural outlay or else it may not be understood and none of the power structure shall pass muster for the federal form of republic.

The fictional citizen

What a strange title for a blog post, no?  What is a fictional citizen?  Why do they exist?  And are they better or worse than being a real citizen?

So many concepts that go with fiction, aren't there?  But there are very real fictional citizens and, no, they aren't hiding in shadows or scurrying across borders or any of that sort of thing.  These are ones that have been known for ages, and tend to be despised by the modern Left for the 'power' they wield.  Ah, the criticisms: that a carte blanche is given to these fictional citizens and that they run roughshod over everyone!  Day in and day out I hear the complaints of the Left about these fictional citizens and yet, for all the moaning, griping and complaining, no one ever bothers to find out exactly what the actual, real problem is with them and how they might be dealt with.  So, as a person used to reading fiction and even trying my hand at some derivative fiction, plus running role playing universes in which I get to run the rest of the universe while players play at being people in such universes, I will give that a shot.

In this instance the fictional citizen is made by law and is thusly a legal fiction.

We call these legal fictions by a few names: companies and corporations.

Hitting on the word corporation it hints at how we get the 'citizen' part attached to these legal functions.  You are a corporeal citizen, that is an independent individual that has flesh and blood attached to you.  However one of the words we use when individuals die is to 'discorporate', that is you are no longer attached to your corporeal form any longer.  You are not incorporated into it, in other words.

When a legal fiction is incorporated, that is all the necessary legal papers are drafted to create the corporation, it then becomes a 'corporate citizen', a concept I am quite sure most have heard of at some point in their lives.  Now these fictional citizens have somewhat different constraints on them being merely legal incorporations and not individuals incorporated with a body, which is corporeal existence.  Legal fictions can hold property, then can hold funds and goods, they can be owned by one or millions of people, they get their own special tax code, they get all sorts of things we don't leverage upon real citizens because they are fictional constructs that we create to do business.

There are things they can't do, in general, like get up and walk around.  Their headquarters may move, yes, but that is done via a different process than you, as an individual, getting up from your chair and walking around.  Corporations may process air through air handlers for their offices, but they cannot breathe.  Only by allowance from Congress can they keep and bear arms in combat, although they can make armaments that is only for sale not for corporate use.  Corporations cannot vote in elections, another area of difference between you, as an individual, and a corporation as a fictional entity.  While they may exchange funds or goods with another company and found a new company, that is not the same as having sex and giving birth to a child, which is biological in its origin, not created by forms filled out and slips of paper passed around to be signed and counter-signed.

Some similarities are striking, however, in the way we see corporate citizens.  They have the right to freedom of speech, which the Left moans about greatly, but they are also beholden to the same limits on speech for slander and libel.  They have freedom of worship, as there are religious based incorporated entities often associated with charities.  They can petition government, which is another problem the Left has with corporations, that and their ability to contribute to political campaigns.  A search warrant is required to search a corporations' properties, and they are protected from unlawful search and seizure of their property and goods.

Then there are the ways that these incorporated citizens are actually superior to corporeal citizens.  They have no life expectancy, and can (in theory) live forever.  As they exist as incorporated entities, they can change their place of corporation and gain corporate citizen rights in other countries without being seen as having a dual allegiance problem.  Individual corporations can gain much power and money, over time, and generally wield influence when petitioning a government beyond the ability of a normal citizen to do, which is the nub of the grief from the Left on this topic, I believe.  And they can be scofflaws and still exist, which is a major bonus for a company that makes enough profit to shrug off fines and lose individuals who do wrong for the company's benefit.

The major problems and grief that associate the Left on their problems with corporations tends to be the power accumulation bit, along with the making money from wrong-doing part.

Do they ever address these problems?

No.

Not a hint of how to solve the problems, just complaints.  Lots of complaints.

To help out the faint of heart I will suggest a couple of things to 'reform' our concept of legal fictions while still keeping them as a viable option.

As almost everything the Left complains about revolves around power and undo influence of corporations, the question must be asked: how do they get so much of them?

The answer is astonishing: they can exist forever and remain free even after wrong is done for them by individuals.

Can these be addressed without losing the concept of the 'corporation' as a viable social tool?

Yes, they can.

First is a 'Three Strikes and You're Out' law.  We do this for repeat offenders that are actual people, so why not apply it to corporate citizens as well?  Any company that accumulates three felonies (federal, State and they are cumulative) then gets immediately discorporated so as to never reform again.  It gets broken down and sold piecemeal at auction, its intellectual property is put in the public domain, its records are kept by the State for review, and the company vanishes from the marketplace.  After its debt is paid off then the remains are divided amongst the shareholders as cash. It doesn't matter if its a local mom and pop store that was dealing drugs on the side or some huge behemoth.  Transnational companies will find that after they have lost their corporate holding in America, they can't get back into the country as a company: their overseas goods can still be sold here, but they cannot return from the dead.  And as the 'Strikes' penalty accrue to the parent company, that means any organization that they have any role in operating would be barred from starting up in the US, and the requirement for third parties that are separate entities would be the only way for such companies to sell their goods and services in the US market.  Americans could still purchase from overseas suppliers, of course, and take on that third party role for themselves as citizens, not corporations.

Yes a corporate death penalty, simple, isn't it?  Now lets extend this concept one more step.

Second is a life expectancy for a corporation set by law.  Between your entering majority and leaving this life is in the neighborhood of 60 years, of which a good part of that is spent accumulating the necessary goods and wealth to have a good life, perhaps raise a family, and generally ensure your continued existence via your use of liberty and freedom.  Thus the prime time of your life is about 40 to 50 years long.  Why should a corporation last longer than that?  If you want to pass some goods and cash to your children you can have a corporations made at your death to do so, and they get that as a great start to their lives!  Isn't 40-50 years long enough to actually do something with a company?  And wouldn't it be a benefit to the marketplace to have no long-term giants standing around, but to have them finally die off after a given period of time?  The time span must be one that is set in a way so as to make it something that the average physical citizen can understand as a concept: forever doesn't seem right due to the accumulation of wealth and power of such entities, but 20 years is way too short.  By setting a definite expiration date for a company much good can be done for markets and society, while allowing corporations to do what they were made to do, achieve that and then end with that achievement as something that can be pointed to and understood... without the company still hanging around.

Like your death the company does get to give away its assets after its debt is paid off.  Those are the physical assets, only, and intellectual property goes into the public domain.  Intellectual works originated in a company and held by a company only last as long as the company does, even if sold or traded away, they go the way of their originator.  This will, finally, get rid of companies lobbying to have copyright extended past a person's death which one or two powerful companies with great influence on this topic have done to distort the original intent of 'limited time' for materials under copyright.

Together these two concepts start to 'level the playing field' of competition in the marketplace as incumbent corporations in a field have a definite life span so that the worries about a monopoly are addressed and anti-trust law can be taken off the books as by the time a company gets enough sway in a market to try and act as a monopoly, it is also tending to be past the early part of its life and has a ticking clock against it.  Those seeking the benefit of creative destruction in the marketplace to churn it, now will have a maximum beat of that churn: the life of a given company.

Enacting the second would require giving a period of time to existing companies: say the half-life of the new life expectancy or the life expectancy minus the amount of time they have been around, whichever is greater.

The Three Strikes law would be a clean slate, but be enforced immediately upon its becoming law, so that any ongoing cases will count against corporation, while past ones would not.

Thirdly is in the area of speech, particularly political speech.  We, for some reason, see fit to limit donations from corporeal citizens.  The concept is to apply those limitations to incorporated citizens, exactly as they are to actual citizens, save that it would apply to all parts and segments of a company.  In principle there should be no reason to see the speech rights of a company as different from that of an individual in any venue.

These three concepts dealing with corporation life span and speech would do much to address the abuses of companies over the long-term.  Bad corporate actors like Enron will still be made, that is a part of the human condition, nothing can change that save better accounting requirements for public disclosure.  These are the main three that would address the problems of the Left and bring corporations to be something that we don't expect to be around as continued beings.  Remember, you can still have one made on your death date to help your children along for a period of time, but at some point that, too, will go away.

By these changes a major shock would be given to the US economy: businesses that are huge (Boeing, Ford, Fannie, Freddie, the Federal Reserve, IBM, GM, GE) would have expiration dates coming around in a couple of decades.  Things we don't think of as corporations, but are legal fictions as entities would also face this: private libraries, hospitals, private universities, charitable organizations, political parties, advocacy groups, PACs.  What this means is a major re-thinking of how we run our society and addressing our own temporary existence by first having to deal with the expiration of companies.  Within two decades major institutions, good and bad, would evaporate off the landscape leaving vast market areas open for new entrants. 

The requirement to discorporate fully, pay off debts and give any remains to shareholders or those that own the company, means that those institutions have to be re-made, re-purposed, re-designed, re-configured and, generally, require people to ask if they really WANT a replacement for it or can get support to make a new version of it.  I am sure that some long-lasting niches would find themselves barren of incorporated individuals as they have actually served their purpose and it isn't worth trying to re-make them.  Others, like the entire venue of education, would be re-made by totally new start-ups willing to compete on the playing field of providing value for the money in the way of a good education.  Banking would have a huge turn-over, and the financial system of the US would break down... not in the 'collapse' sense, but in the 'break down into smaller, more agile pieces' sense.  With the end of large banking institutions and other financial institutions, there would be major upheaval in those markets, yet where needs are vital there would be new entrants ready to step into and step up to the challenge.

Political parties would find that they had to re-start afresh, that old parties used to doing things one way would be gone from the landscape and new successors would be formed by the people to take their place.  Gone would be the certainty of Red and Blue, Left and Right, This or That: the two-party system exists solely due to the incumbent parties able to keep new entrants out, thus politics has stagnated in America and power has concentrated into the hands of the few and that has depressed electorate turnout to 50% or less in the Congressional election cycles.  In a couple of decades there would be no Republicans, no Democrats, no Socialists, no Communists, no Greens, and even the smaller parties that have been around for decades would soon find a death date approaching.  I am sure that some would try to continue on the parties under a different name, but they would have to be totally re-situated, get people to enroll in them, get support, find candidates... and compete at the local level with anyone else trying to start a party.

* * *

The above are ways to creatively address problems and offer solutions that do not 'break' the capitalist system nor make it into a crony system of preferred companies getting rewards while those that are not preferred getting penalized by government.  Are they good methods to employ?  I cannot say for certain, but they certainly are much further along in addressing 'problems' in the political landscape and should wipe the very reason for those problems to exist right off the map while retaining all the good features of the capitalist system and penalizing the bad actors immediately and removing the accumulation of wealth and power via a regularized form of known and understood methods that will cause churn in the marketplace without being upsetting to the market as a whole.

Attempts to tinker capitalism into 'playing nice' has meant high government overhead in the form of regulations, and those very regulations tend to be in favor of large corporations able to lobby government over a number of legislators and legislative sessions.  Smaller companies have a major problem with regulations that impose pre-conditions at size levels as being anti-small business and a barrier to entry to becoming larger.  This is not only a penalty but a non-market based pressure imposed upon the marketplace so as to reward larger entities over small ones by securing the larger entities from competition.  Soon they become 'too big to fail', and yet they do fail due to size and lack of competition to cause innovation in such large organizations.  By placing a known, exact life span on all companies, big and small, the carpet protecting big companies is pulled out from under them and all new entrants to becoming large must face up with the barriers erected to protect large companies, thus leveling that playing field for all players as the cost of becoming large is a set, known quantity.

The 'Three Strikes' system is perhaps the easiest of all parts of this to do as it is something that is known and understood by all of us: recidivists need a major penalty applied to them, and since these are not flesh and blood entities the ultimate price can be paid more easily to stop these actors from ever acting again.  A company with a single 'Strike' against it finds that their ability to expand is only slightly hampered as expansion requires a trained workforce able to uphold corporate ethics with regards to the law.  Yet a company can continue on past that in a relatively easy fashion, although parts that it attempts to shed have the 'Strike' attached to them, also.  There is no way to cleanse an organization of that save via discorporation and breakdown: death is the final end for such problems.  So selling off portions of a company as subsidiaries means that those parts have a separate load of burden upon them.  Remember if this is done without a final expiration date, then that portion could continue on forever with that single 'Strike'.  A company purchasing it, however, is faced with the moral dilemma of having to purchase that company and either keep it wholly separate, or accept its 'Strike' by fully incorporating it during any reorganization that dissolves the company into the larger structure.  This would be a new category of business ethics and how to deal with bad actors in the marketplace, and yet it would only be a major hamper on a business that already has two 'Strikes' against it as they could never reorganize the smaller unit into the larger one.

While this sort of system may seem to advantage the adversaries of companies, that is activist groups pushing lawsuits, it must be remembered that those organizations, themselves, fall into the same category of law for the 'Three Strikes' provisions and that 'targeted' companies can run themselves in an ethical and law abiding fashion and escape a 'Strike' by turning in bad actors before they are found by outsiders and reimbursing those that have suffered due to the actions of that individual from the corporation.  Self-policing and turning oneself in to authorities with an admitted misdeed has always gotten lower penalties as the individual involved recognized their culpability and is seeking to make amends and restitution to society and to those they harmed by the action of turning themselves in.  That behavior MUST be rewarded by lowering penalties and seeing that the company does not and will not allow itself to benefit by the actions of the few bad actors within it.  Corporate ethics go from being a joke and 'its all about money' to not only a worthwhile pursuit but something that companies will seek to enforce in a meaningful way by turning such bad actors in when they are found.  An outside organization cannot inflict harm where a company polices its own actions well enough to find bad actors before 'activists' or law enforcement.  This is what is known as being a 'Good Corporate Citizen'.

In some ways the first two concepts can be seen as an either/or situation, as they both begin to address bad corporate actors with the ultimate end to corporations: the first against the bad actors and rewarding those that act in an ethical manner by lowering penalties to the company (not the individual) and the second by putting a life span on all companies.  If both were put in play there might be some trend to companies willing to do wrong as they don't expect to be around that long.  We already have that problem as we can see the Enrons and Madoff's of the world are more than willing to throw ethics overboard in search of pure gain.  Nothing can be done to stop such actors in life, save to penalize them harshly.  That is part and parcel of being human and no set of laws made on this Earth can address them from doing such things, only set into place a system that discovers them, faster. 

Companies nearing the end of their natural life might be inclined to behave in an irresponsible fashion as they don't have much time left.  Yet for their corporate history they have avoided 'Three Strikes' in total and will either have a good set of corporate ethics (to be admired and upheld to all corporations as 'how to do it') or they will be in the precarious position of one or two 'Strikes' bringing their sudden demise.  If the ethics of a company go so rapidly downhill so as to cause those, then they will be unlikely to remain around for long as their ethics suck to begin with and they won't be around long enough to lose all touch with their founder's ethics, as that founder just might still be around to run the show or criticize it from the outside if he or she has sold it off.  That would be a major warning sign and red flag in the business community that the corporation is losing touch with its initial purpose and should be scrutinized.

In many ways these are self-reinforcing laws that put upon companies the same requirements as individuals have in corporeal life: people who lead good lives don't tend to go bad when they get older and set in their ways, and those with bad intents tend to run into problems sooner rather than later.  There will always be people like Bernie Madoff, and only good corporate accounting standards can help to show Ponzi Schemes up for what they are, there is nothing to stop those who wish to 'cook books' from doing so.  What can be done is to make the penalties steep, very steep, for such actions and the effects of them cumulative.

The final part, of speech, is one that helps to extend our ideas of exactly what being a 'citizen' is all about in the way of exercising our liberties and freedom.  If the 'threat' to society, as the Left would have it, is from corporations being big and overwhelming with speech and money, then the problem is not with the speech or the money, but the means to accumulate same.  Money is not speech: it costs nothing to go out on the sidewalk and rant.  Similarly it costs very little for a company to hawk its wares on the sidewalk with a bullhorn or to get a name space on the Internet to set up shop: your overhead is minimal for such, too, so that is a level playing field with minor barriers to entry.  Money spent to get a message out doesn't help if the message is muted on television, the ads blocked by software, or just 'tuned out' by the recipient audience. 

Newspapers make money not through subscriptions, but through circulation of advertisements, and a few new entrants to newspaper markets that are not subscription based are becoming major competitors by having circulation of news to entice people to pick up the papers on their way to work.  If you don't pick up the paper, you don't help the company, if you do pick it up you help them: the choice is up to you if you want to get an advertising vehicle at your own cost or for free.  Free does not guarantee that people will actually read the ads, just that they will be in a media in the hands of individuals in which it might be presented before them.  Money doesn't get you access, and even if it does get widespread distribution, that doesn't mean that people will actually pay attention to it or LIKE the message.  No one is forcing individuals to GET THE MESSAGE no matter HOW MUCH you pay to distribute it.  Money is not speech, nor speech money, although some after-dinner speakers can command a hefty sum, needless to say, but they are effective speakers which is a both a gift and a job that one can study for.

At the end of this I find the parallels between how we treat legal fictions as citizens and real citizens to be an interesting one.  If the concept is extended to something like 'income' then could we replace all corporate taxes with a single, flat income tax?  The question of 'what is income?' then moves from an academic question to a real world one.  Is it just being paid by an employer?  If so then it is not a 'sales tax', and would be leveraged on any contracts that have set payment amounts on a regular basis to a company to provide a good or service: the company is working for someone, it is being employed by them. 

Thus not all contracts would be 'employer-employee' basis as something like a contract to provide an indefinite quantity of an item over time could not guarantee that any would be purchased, therefore the risk is on the 'employee' not the 'employer'.  Goods made for sale with no pre-existing contract are then not made for anyone specific but made for society, in general, and available for individuals to buy.  That is certainly not an employer-employee relationship.  Nor are items that do not meet up to a contract set of standards for sale, but are generally safe, useful and functional for general sale.  A contract to supply security services at a home or business would be an such a relationship between employer (those procuring the long-term services) and the employee (those supplying such services).  Hiring someone to do something on other than the purely short-term (less than a week, say) creates that relationship necessary to define 'income'.   From that sales of items are not, of necessity, employee-employer relationships, and most fit into the indefinite quantity, indefinite delivery type of contract where the amounts and timing can only be generally defined and, therefore, revenues are not a guaranteed constant.  Employing a roofer for a few days isn't a long-term contract, employing people to keep your lawn up over a year is.  Temps while 'employed' are only temporary or go through a third party for a longer-term relationship, so the direct actor is the Temp Agency, not the one needing the services.

So if we look to extend an 'income tax' idea it would have some ramifications on how we do business with businesses, as service contracts to the home (for cable TV, telephone, Internet, power, lighting, water, sewage, etc.) ARE long term contract types of this sort.  You are employing an entity (private or public) to provide long term services in a very real sense.  You are the boss.  That might make your take on why a public utility should have a monopoly change, greatly, as such things as education for children are ALSO employee-employer relationships especially when specific and identifiable taxes for same based on school districts or other direct tax funding are utilized.  Government acts as the intermediary, but the service is a monopoly one and you, as the boss, should have some say on if you want a monopoly service, or not... that is done via this thing known as 'elections' to change 'laws'.  But once you see yourself as the employer (and have the headaches of employing someone befall you) then you begin to take a different look on exactly what 'income' is and how it is garnered, and what overhead we place upon it in regards to the viability of such work.

The concept of creating more 'real' citizens and accountability has limits when dealing with fictional entities.  The lack of actual questioning of what those limits are and what they mean to us, as individuals, shakes up how we view ourselves, how we utilize our liberty as individuals and with other individuals to form fictional entities, and what the actual driving ideas behind such concepts are.  While the original complaints from the Left are those of the Harpy, the underlying concepts are vital ones that we take for granted and, by doing so, lose sight of what it is we do in life and why we structure certain things the way we do as individuals and a society.

On the Duties of Man - To Man

This post is a continuation of the examination of Samuel Pufendorf's On the Duty of Man and Citizen (1682).  This post follows the previous section I've looked at On the Duties of Man - To God plus the overview of why this is important in Three Realms of Law.  This work by Pufendorf is, itself, an overview of a multi-volume work he had generated and thought that a primer on that work, suitable for students, would be a vital part of a teaching curricula examining Natural Law.  I will continue to do the overview of his logic and keep my usual commentary in abeyance as much as possible so as to follow Pufendorf's line of reasoning so that the outline of it is plain to see.

In the post-Westphalia tradition of Europe (and America) the concept of the 'Separation of Church and State' is one that is done for the benefit of the Church which had become a key part in State power.  The 30 Years War revolved around the question of which religion was to hold sway over Europe and the Nobles and States of that era followed differing religious beliefs and then imposed those on the people of their holdings or States.  When a realm went from Roman Catholic to Protestant, there would follow the forced change in religious outlook from the top - down.  This would include grabbing the material wealth of the religious doctrine that was in disfavor and the persecution, and often execution, of those who would not convert over to the State's new religious outlook.  With 15% of Europe dead by the end of the conflict, the Great Peace of Westphalia would impose restrictions, agreed to by treaty, upon all those taking part in the Treaty.  While the Roman Catholic Church via the Vatican did not take official part in the Treaty, Roman Catholics could and did help the formulation of it.  This treaty would break apart the links of State and Church so that States could not repress or suppress any of the three forms of Christianity then extant in Europe: Roman Catholicism, Protestantism and Calvinism.

During that conflict two major writers put forward their different conceptions of how they saw the work of Nation States and religion: Thomas Hobbes and Hugo Grotius.  Samuel Pufendorf examined their works (and many others, needless to say) and would then be the first writer in the post-Westphalian world to blend the outlooks of both Hobbes and Grotius while taking into account the Treaty which would forever change the course of Europe.  Many of the ideas formulated by Pufendorf have resonance with prior works in the Greek and Latin world, and also with those in the Anglo-Saxon tradition like Bracton on the Laws and Customs of England. From the philosophical basis of reasoned examination dating back to Plato and Socrates, then putting in the Latin and Church traditions plus those of the Protestants, and blending in examinations of laws, states and religion, Samuel Pufendorf would be one of the first to present what we would call a 'liberal' view of the world by positing that God is not enough, nor is having a State and that there is a third realm which is Creation in which we must all exist that is separate from both God's moral law and the law we create via the State.  This is Natural Law which is ever present in our mortal life, restricts us in our views, and otherwise shows the physical instantiation of God's Will.  Being part of that Creation we must take it into account as it speaks of God's Will in a way that is not contained by Scripture nor can it be dictated to by the State.  When we examine our Duties as Man and Citizen we cannot leave out this thing called Natural Law as it is a vital part of what allows us to have States so as to be Citizens.

With that, I now proceed on to our Duties to Man.

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The duty of Man to oneself starts with the very simple and self-evident truth that self-love is something that we are born with.  We use our natural gifts and talents from the Creator to our own good and self-interest, thusly we care about ourselves and love ourselves to do those necessary things.  If we did not have that self-love we would assuredly perish.  There is no need to impress obligation of self-love from any other venue: you have it as a given at birth.

From the Creator also comes the self-evident truth that you do not wish your natural gifts to perish and that they must be used so as to contribute to human Society so as to seek the preservation of such gifts over time.  Having such gifts and not recognizing that you have them is your shame and loss, but when taught that you have them those doing the teaching are right to punish the pupil for not recognizing their own gifts and utilizing them  It is one thing to neglect one's gifts through ignorance, another to purposely ignore them when those willing to show the vital use of them are at hand.

We do this because we, as individuals, have two parts to us - the soul [anima] which drives and controls the physical body via the intermediary of the mind [animus] which is our direct government of our body.  It is the mind which must encompass Society, not only look after the needs of the body, and it is to that part of us that our ability to become a contributing and vital part of society is held.  Our soul directs, the mind then does the work of following those orders as best as possible within the realm of what can be done via the body.  All morals and ethics are decided upon by the mind, in accordance with the soul so as to give the body the greatest chance to survive and prosper.  With that said our physical needs cannot dictate to us as that then creates gluttony, sloth and the creation of passions not directed clearly towards our self-betterment and may actually be contrary to it and our contact with Society.  A strong spirit resists such temptations so as to become a better man, and those who give into them become less of themselves as they do not recognize the true direction of their self-evident obligations to themselves and Society.

Your life is given from the Creator and you are set for your time in life until the Creator requires you to leave it.  A man can choose a course in life that will shorten it, in doing hard labors and constantly tiring himself to the benefit of himself and Society a shorter life may ensue.  A citizen may willingly risk his life for others, so long as there is benefit to that and is not just adding to a general slaughter to no good ends.  With your life in your hands you must weigh and balance those times when sacrifice, even the ultimate sacrifice, on your part is of benefit to your Society which is the holder of those things which you have given to it in the way of yourself.  There is no obligation for such sacrifice, no words saying that you must give up your life for your fellow man, no one can decide that for you: only you can do that for yourself.

To throw away one's life is a violation of Natural Law in all instances.  It does not matter if it be due to personal misfortune, pain and suffering, throwing oneself into a lost battle to die or putting forward an empty show of faith, they are all the same.  No one profits from your death and Society mourns the loss of skills and fortitude necessary to continue on your life for its allotted time on Earth.  We can learn fortitude and strength from the suffering of others, that it is possible to confront such pain and anguish and survive and even come out the other side of it a better man.  For those with illnesses that will have no end, their example to us of how to live with such things is far, far more important than taking the easy way out for if they can suffer and cling to life until its bitter end, then that demonstrates the power of that life and our own life can benefit from that so as to steel ourselves for lesser travails than theirs.  As horrific as suffering is, and it wouldn't be suffering if it wasn't horrific, it does have a larger context in life and as a demonstration to others of the value of such life within the context of Society.  The greatest gift of the suffering isn't to die, but to live and show us how to lead with perseverance through all lesser times in our own lives.

From this, when the acts of another man put our lives in danger we have the obligation and natural right of self-defense to put ourselves out of danger while seeking to do as little harm to those who attack us as possible.  Self-defense when another takes a risky course of action to attack us or threaten us then invokes our duty, obligation and right to life, and there is no misdeed in carrying through with such self-defense.

Exercising self-defense has the negative effect of injury or death upon your attacker, yourself or both, and this cannot be denied.  While all life is to be cherished and protected, the concept of reciprocity of civility is a requirement for social discourse.  That is that a peaceful and friendly manner is to be reciprocated between people so as to have a civil environment.  As your safety as an individual is part of that sociality, there is no law that prevents one from defending himself from harm.  When one seeks to do harm to another or harm is being perpetrated upon you, the right to self-defense becomes a bulwark of civil discourse by upholding civil standards.  To not do so is to put at peril the good things provided by nature or industry and leave them open to despoliation.  Any attempt to remove the means of self-protection of individuals would be the death of the human race.

With those things said it must always be sought to mitigate the use of force via defensive action, by securing oneself so that an attacker's fury will have had a chance to wane.  Along with this is the prudence of not taking umbrage to minor slights so as to cause them to escalate into provocation and this is to be done if at all possible.

Defense of self includes defense of one's property as any who would violate one's property have already demonstrated no restraint on their actions.  To those ends defense of your property with violent means is allowable in the natural state and in the civil state for immediate purposes.  It is also allowable to chase those who have violated your property in the immediate extent.  In the natural setting you can do so until you have tracked down the individual, while in the civil setting this requires the recourse of the Magistrate and seeking the civil means of law to track such people down.  In the natural setting you can find change of heart and repentance from the individual who has done harm to your property, and you may accept that.  In the civil instance this is for the process of law to decide guilt or innocence.  In either instance it is mandatory to take away the tools available to such individuals to do harm again: that is either on the civil or natural state, it is mandatory that those who are judged guilty or who have repented of their ways have the tools of their ways removed from them.

The right of self-defense is against both those things done by malice and those done by error, thusly there is no right to kill another and submit to being killed due to error.  If you are mistaken for another and harm comes your way, your right to defend yourself is paramount, no matter the cause of the infliction of harm.

To defend oneself from harm by putting up innocent safeguards that will protect you from harm is part of your natural duties towards yourself against your fellow man.  Arming oneself, forming alliances, erecting fences and walls to protect yourself are all parts of what nature bids us to do in our self-defense and there is no wrong in doing them.  These works cannot be used to justify attacking another to conquer them and despoil their goods by force.  This is true no matter how powerful a neighbor is.

Upon seeing that a third party intends harm against another, your first duty is to yourself, save if you have treaty with another to protect him.  Again this is man in the natural state, not the Nation State with civil government and law that is being talked about.  Still, a powerful third party that seeks to conquer or subdue a neighbor can rightly be suspected of wishing to cause you harm after subduing your neighbor.  When you see that plans are laid for violence against you by a third party, you have the right of self-defense by force and seizing the initiative before such plans come to fruition so long as there is no hope of friendly warning dissuading him from such plans.  Defense is not merely avoiding blows, avoiding harm, nor evading your capture as the right of attack in your own defense before being attacked when the plans against you are clear then allows you to stop such plans by force.

In our civil states it is not allowable to attack a government when it is planning to do harm to a third party that plans harm against a fellow citizen.  It is always to be sought to bring such potential assailant before a common Magistrate so as to have his plans addressed in common.  You are not allowed the pre-emptive attack against a third party as a citizen in the civil state, and only once attacked is your right of self-defense to be called upon.  When such violence is visited upon one in the civil state it is your self-defense that allows you to take any measures, up to killing another, to protect yourself.  When such threat is neutralized by being driven off, by the death of the assailant or by you finding safe haven, you are not to continue the engagement but to get the office of civil government involved so as to address the matter.

There is no obligation to always seek the milder form of self-defense as, when one is attacked, the mental turmoil that ensues will change the evaluations of what is, exactly, to be done.  One might leave a place of safety to confront an attacker, one might not run when they are in open sight of an aggressor as to turn and flee is to invite falling or being attacked in the back.  Thus, even if there is relative safety with neighbors nearby, the mental state may not allow that to be an option.  One may also appear in public when they know that they are at risk of attack, the right of self-defense still holds in that case as well.  In the case of duels, however, there is no safe haven to self-defense as it is a purposeful event chosen by the individuals involved, thus the innocence of self-defense cannot be brought into play.

In defense of his limbs a man is allowed the same as in defending his life.

In addition female virtue is also guaranteed the same capability as self-defense.  No greater offense against a woman can be imagined than to take her against her will and force her to raise the child of her own blood for an enemy.

As property is a necessary part of living, those who attack our property are attacking our life in a very real sense.  We cannot preserve our life without our worldly goods, and those seeking to deprive you of them are attacking your life.  In the state of nature we can repel and hunt down such people, while in the civil state we appeal to the civil government for help of recovery but retain the right of self-defense against burglars and robbers of all sorts.

To move on from self-defense are those who have attacked others.  They are barred from self-defense until critical conditions are first met.  He must be repent of the harm he has caused others and give guarantee that he shall do no future harm to others.  That being offered such repentance if he shows savagery in his heart by refusing such and obtaining vengeance at his own hand.

Self-preservation is so high a natural duty that is seen as exempt from the common laws. 'Necessity knows no laws'.  There is no power, no authority, not God nor civil government that can impose an edict so strict upon us as to compel us to face death for them.  Because of this we give exception to laws that have put individuals in danger by following them and recognize that there is no compelling reason for a man to follow a law, no matter how well intentioned, that forces him not to obey self-preservation.

As examples a man may sacrifice an infected limb to save his life.

-On a lifeboat we draw lots if there is not enough food to go around, and those that will not abide by this are tossed overboard instead of letting common fate decide the ends of each.

-If thrown into a hole with deep water and you can swim and the other cannot, and he clings to you and drags you down, then you are within the right of self-defense to release yourself from his grasp.

-If shipwrecked and you find a plank or means to save yourself, but not another, and proceed to do so, and the other swims out to you threatening your survival, you may repel him.

-If an enemy chases two with intent to kill both and the only means of escape requires destroying the means to get to you, even if that means the other is killed, then you are to do so as your life would be forfeit otherwise.

It is also permissible by necessity to cause injury to another to escape death.  If pursued by a stronger man intent on harming you, and you flee down a confined alleyway and another person, innocent of the conflict, blocks the way, you are allowed to knock them down if they do not take the warning of your action or words as proof of your necessity.  You may very well cause harm to this person, but necessity allows such to save your own.  If that person blocking your way was an innocent or cripple, then at least the pursuer would  have the necessity of jumping over them and exposing himself, briefly, to the pursued.  And if the blocker is doing so wilfully, then he may be knocked down and flattened directly as they have courted their own disaster.

The poorest beggar, who has nothing left to sell, cannot sell his works or be hired, who gets no recompense from begging nor friends to succor him may seek to gain sustenance from those who have an overabundance without committing the crime of robbery, so long as there is intent to pay back such sustenance to those it is taken from.  From that it follows that the wealthy are by the limits of humanity, to help the poor and destitute as they are his fellow man.  Still a man is to try all other ways so as to sustain himself then falls under not only necessity but the perfection of obligation of doing no harm.  It can only be done to those not liable to fall into similar dire straits due to that loss and the obligation to make amends via full restitution is perfect and must be done.  If they cannot make a free gift of aid due to their circumstances, then your obligation is not to put them into the same peril you are now in.

Finally the necessity of destroying the property of others to save our own may only be done if there is no way to save the other's property and its value, to the other, is less than the value of your property to you.  In attempting to move or otherwise find means to save the property of another due to the imminent destruction of your own, when that loss is made you are to seek to give restitution to the one who has lost property.  If both properties are at risk and sacrificing some of another's will save yours from perishing, then the loss you are to make up is pro rata as you have saved both from ultimate harm by doing injury to another's property.  That is the basis of maritime law, and it serves on land as well as at sea for such events.

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As with the previous section, I will not be commenting upon this section, save to say that the basis of what we understand our obligation to ourselves to be from natural law, and then under civil law, is something that is obvious and cannot be denied.  This is not due to the nature of civil society, but due to the nature of man, and as man is a being of Natural Law, and always will be no matter where we are in this mortal realm we are within the mortal realm and thus not transcendent of it.

After this comes the duty of every man to every man.