Friday, October 12, 2007

If they don't teach it, how can you forget it?

The following is a personal outlook paper of The Jacksonian Party.

We are taught time and again that the laws of the United States are based only on the things carried through by English Common Law and those things that we have made since the Constitution. I remember teacher after teacher giving that view: that America places its foundations on the inherited Common Law and that, really, nothing else is incorporated into the Constitution. There is no 'unwritten law' in the United States, and it is all in law books and legal books of various sorts.

Really! I went to a very good school system in NY State (fifth in the State academically) and it was in the top 50 nationwide. Had some damned fine social studies teachers (and a few klinkers, it can be said), but that basic view, above, is given. It is a lovely view and right... to a point. There are, however, two things given in the Constitution that are not explicitly written down in Federal Code, but serve as power oversight concepts. One is explicitly stated, the other brought in by reference to the type of law involved. Both have been used in court trials all the way to the SCOTUS level to demonstrate the justification for interpretation of law not only as given in the Constitution, but as the background view of how America works.

I have never been taught about this in any school, nor university and have had to figure this out on my lonesome. In doing that I can come to no other conclusion that these vital views of why the Nation can and cannot do things has been deliberately left out of the curriculum, save for that of law schools. This stuff is, however, not difficult to understand and was written in an era when explicit statements triumphed over verbiage: scarce paper and ink put a premium on concise thought. They were made to be read by anyone with an education which, by today's standards, would be somewhere in the 5-6th grade level. Yet it remains untaught, unviewed and, to this day, the population remains ignorant of these vital pieces the Constitution references in its main body text. Not an Amendment, but in the main body of the work itself: a fundamental underpinning of how the United States is to work.

Apparently those teaching school and those given oversight and those elected to get those to do oversight... they all think this is unimportant. You are meant to forget it by not having it taught, or if you learn of it, you are to treat in only in the most abstruse legal sense. Yet these are in the main body of the Constitution and more primary than Amendments. This is part of the guidance on what America can do.

Forget them.

Starting with the inexplicit is the inheritance by Common Law, but also trade law between Nations. Here are the portions of the US Constitution that deal with this.

Article I, Section 8

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;


To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;


To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;"
Article I, Section 9

"No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another."
Article I, Section 10

"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.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."
Article II, Section 2

"The President shall be Commander in Chief of the Army and Navy of the United States, ...


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; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
Article III, Section 2

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; [..] --to all Cases of admiralty and maritime Jurisdiction; [..] and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
The highlighting marks the implicit law sections, carried over from the Common Law of England and via the trade laws that had been defined before the founding of the United States. This area of law is the Admiralty jurisdiction of the United States, and it has its foundations in the English Common Law in the Black Book of the Admiralty. To get a better understanding of the role this 14th century book plays, let me offer an excerpt of Courts of Admiralty in Colonial America (Carolina Academic Press, Durham, NC, 1995) [pdf reprint here]], Chapter 1, p. 4 on Substantive Law [note abbreviations for this piece are: Lord High Admiral of England (“LHA”), High Court of Admiralty (“HCA”)]:
Courts of admiralty administer the specialized law of the sea called “admiralty law” or “maritime law.” This law has no connection, in history or in principle, with the common law.[36] In England it has always been referred to as the “civil law,” in the sense of “continental law” in contrast to the common law.[37] Basically this is Roman law onto which have been engrafted concepts and procedures developed by merchants in European ports of the Mediterranean, Atlantic Coast, North Sea and Baltic. An important part of maritime law thus acquired the name “Law Merchant.” Many principles of this ancient and specialized area of law are still with us today.38 An example is the law of charter parties.

The common law of England originated in its feudal society, with the great additional influences in the 11th century of the Norman Conquest and in the 18th century of a developing market economy and the Industrial Revolution that continued into the 19th century. The maritime law, on the other hand, originated in the practices of merchants along the southern, western and northern coasts of continental Europe. Gradually, this “Law Merchant” was absorbed into the continental or “civil” law which had its own roots in the Roman law. Beginning in about the 13th century the law maritime commenced its immigration to England, a process that has never completely ceased.[39] This cross-Channel transplant was welcomed by the Court of the High Admiral (later, the HCA), which was taking form about 1360 for reasons of commercial convenience. English merchants, who were beginning to deal in international trade, needed a substantive law that had international recognition and uniformity. They also needed a procedure of summary justice that would resolve commercial disputes promptly and allow them to get back to sea. The law merchant and the law maritime of continental Europe satisfied these two needs; the common law did not.

Fortunately, this medieval commercial law was codified in some of the major ports of the Western World. The most important were the Consolato del Mare of Barcelona, the Rolls of Oleron (a French Atlantic island) and the Town-Laws of Wisby (a Swedish port in the Baltic). Other codes originated in the ports of Pisa (now Italy), Damme, Flanders (now Belgium), and Hamburg and Lubeck (now Germany).[40] These codes, and many other maritime laws and regulations, are preserved in the famous Black Book of the Admiralty which originated about 1450 as a form of manual for the judges and practitioners in the HCA.[41]
In essence, the beginning of international law starts with the Roman Empire, as this form of trade law was an outgrowth of the practices of Rome. As trade grew in old Roman holdings, that form of law was changed by localities to make a new merchant law of trade. This form of law has peculiarities to it not seen in Common Law, such as speedy trial or even the absence of a defendent at trial. Admiralty Law is trade law for commerce, at heart, and a view towards swift and sure justice so as to not unfairly impede merchants who had done no substantive wrong or to assuredly bring in those who had done such wrong. The Black Book of the Admiralty is one of the first pieces of International Law as it serves as compendium of multiple maritime trade laws and regularizes them by the fact of having them together in one book.

Who *couldn't* make a good two week history class on that alone? What youngster in their right mind would want to pass up knowing about an important Black Book? What with all the fantasy stories going on and a name like The Black Book of the Admiralty, a half-way decent teacher could make this a romp through trade, war, pirates, and other such fun things to finally get into why this becomes a source of international law. And yet it is as vital to our understanding of ourselves today as it was when it was compiled: not only were laws regularized by common collection and distribution, but the basis for how to *make* such law starts there. This area of law also covers Privateers and the implications of Letters of Marque and Reprisal, and how they are viewed and utilized. Similarly as the Admiralty Court, as a jurisdiction within Common Law, came about, the basis for understanding what the responsibilities of individuals were to this common law of the sea would become a factor in later courts.

In one of the wonderful marvels of the modern world, the 1911 Encyclopedia Brittanica is available freely as it is out of copyright, and it has some of the best entries on Admiralty Jurisdiction and Law around. These things do not change much over time, and I will cover that in a bit, but where else can you get an entry on that jurisdictional view like this in the modern day:
Marsden, Select Pleas of the Court of Admiralty, Selden Society, London, 1892 and 1897; Zouch, Jurisdiction of the Admiralty of England asserted; Robinson, Collectanea Maritimes; Brown, Admiralty; Edwardes, Admiralty; Phillimore, International Law, vol. i., vol. iii. part xi.; Pritchard, Admiralty Digest, tit. Jurisdiction. (W. G. F. P.) United States The source of admiralty jurisdiction in the United States is Article 3, � 2 of the United States Constitution: - "The judicial power shall extend to all cases of admiralty and maritime jurisdiction." The United States Supreme Court has declared that by virtue of these words the admiralty jurisdiction extends not only to the high seas but to the great lakes and the rivers connecting them, and to all public navigable waters in the United States (the "Genesee Chief" v. Fitz-Hugh, 12 Howards U.S. Rep. 443), including even interstate canals (Ex. p. Boyer, 109 U.S. Rep. 629, the "Robert W. Parsons," [1903] 191 U.S. 17), and is not confined to tide waters. The American colonies had vice-admiralty courts with an admiralty jurisdiction equal to the largest claimed by the English admiralty courts even under Edward III. When they became states they delegated to the federal government their several "admiralty and maritime jurisdiction," using these words in the sense understood in every country in Europe, England excepted, and in the sense in which they had then been used in the colonies for a long time, and without reference to the very narrow jurisdiction of the English admiralty courts then existing (Waring v. Clark, 5 Howards U.S. Rep. 441).

It is settled as to the United States admiralty jurisdiction not that it is "co-equal with that of the original English, or that of continental European admiralty, but is rather that defined by the statutes of Richard II., under the construction given to them by contemporary or immediately subsequent courts of admiralty" (2 Parsons Adm. 176), and that it embraced all maritime contracts, torts, injuries or offences (De Lovio v. Boit, 2 Gallisons Rep. 398; Waring v. Clark, 5 Howards U.S. Rep. 441), and that it has never been restricted by the action of the common law courts as in England under Lord Coke (2 Parsons Adm. 166 n.; Waring v. Clark; De Lovio v. Boit). Original admiralty jurisdiction was by the Judiciary Act of 1789 (U.S. Rev. Stats. � 563) granted to the United States district courts exclusively, except that concurrent original jurisdiction was given to United States circuit courts over seizures for slave trading, and condemnations of property used by persons in insurrection (� 62 9; � 5309), and in the coolie trade (� 2159), and by the act of the 3rd of March 1901; the supreme court of the District of Columbia is given the same jurisdiction as the district and circuit courts. The Supreme Court of the United States has no original jurisdiction in admiralty. All suits are brought in the first instance in the district court. Appeals lie, both on the law and on the facts, from a final decree of that court to the circuit court of appeals only, except in cases involving the jurisdiction of the court, the constitutionality of a law of any state or of the United States, or the validity or construction of any treaty of the United States, and except cases of prize and capital or infamous crime, in which cases of appeal lies directly to the supreme court. In cases of gravity and importance the Supreme Court may by certiorari review the judgment of the circuit court of appeals, but such cases are rare (re Lau Ow Bew, 141 U.S. Rep. 587; Benedict's The American Admiralty, � 607). Formerly the Judiciary Act authorized an appeal from the district court to the circuit court, and thence to the Supreme Court. But the act of the 3rd of March 1891 (Ch. 517) abolished this and created the circuit court of appeals, making it the final appellate court in admiralty, except as above stated. In any case where the district judge is unable to perform his duties or is disqualified by reason of interest or of relationship, or has acted as counsel for one of the parties to the action, it may be removed to the circuit court in that district (U.S. Rev. Stats. �� 587, 589 and 601). These are now the only cases in which admiralty suits can come before the circuit court (Benedict's Adm. � 321).

The subject matter in cases of contract determines the jurisdiction (the "General Smith," 4 Wheaton U.S. Rep. 438), and not the presence or absence of tide, salt water, current, nor that the water be an inland basin or land-locked, or a river, nor by its being a harbour, or a port within the body of the county, nor that a remedy exists at common law. The admiralty courts have jurisdiction over all matters that concern owners and proprietors of ships as such; possessory actions and petitory actions to try title of a ship; cases of mariners' wages, wharfage, dockage, lighterage, stevedores, contracts of affreightment, charter parties, rights of passengers as such (the "Moses Taylor," 71 U.S. Rep. 411), pilotage, towage, maritime liens and loans, bottomry, respondentia and hypothecation of ship and cargo, marine insurance, average, jettison, demurrage, collisions, consortship, bounties, survey and sale of vessel, salvage, seizures under the laws of impost navigation or trade, cases of prize, ransom, condemnation, restitution and damages; assaults, batteries, damages and trespasses on the high seas and navigable waters of the United States; but not suits in rem for duties (Benedict's Adm. � 303a).


The admiralty courts have jurisdiction over crimes and offences committed upon vessels belonging to citizens of the United States on the high seas or any arm of the sea or any waters within the admiralty and maritime jurisdiction of the United States (U.S. Rev. Stats. � 5339). High seas include the great lakes. (U.S. v. Rogers, 150 U.S. 249). (J. A. BA.)
And as the US Court system uses stare decisis, or precedent to guide future doctrine, in adjudicating cases, this entry is just a relevant today as it was when it was printed. This is a major part of the United States outlook as a Nation and the strangenesses seen in the Admiralty can still show up to this day. That said the US, when it became a Nation, did the one thing that England had not done with Admiralty law: we made a record of the decisions so that precedent could be set. Great Britain would follow suit in the 19th century and as the basis of Admiralty law has a high degree of similarity between the US and Great Britain, decisions on similar cases in Great Britain could give guidance in the US due to the underlying basis of the law itself.

This underlying basis is the second part of the things you aren't taught about the US Constitution and what it has in it by reference, and is an extremely important part of how the US functions as a Nation and how we understand ourselves to be a Nation. For that I will look back at Courts and Admiralty in Colonial America:
For completeness a few words should be said about the substantive law of prize. It is unique in several respects. Obviously there is nothing comparable in the common law, but it is surprising to find that the medieval codes do not touch the subject. Prize law involves the law of nations, of war, of neutrality, of nationality, of capture, etc. The classic writers are Vattel, Grotius and Puffendorf. Dr. Browne has chapters on the law of nations (I) and the law of the prize court (VII). Henry Bourguignon thoroughly discusses the law of prize as developed by Sir William Scott, the greatest of all prize judges.

Certain unique features of the substantive instance law find no counterpart in the common law. Not all of these, however, were characteristic of the admiralty in the 17th or 18th centuries but developed in the 19th or even 20th century.
This now transitions us to the *other* law that is mentioned in the Constitution by name:

Article I, Section 8

"To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;"
The Law of Nations is the system developed to give a system of how Nations are to act with respect to each other, what their duties and responsibilities are, and what individuals are to do with regard to Nations. When one runs across a text, by name, in the US Constitution as specific citation of where Congress is to make law and for what offences you would *think* that someone would take notice of it. Congress certainly did writing the Piracy code and other Felonies on the high Seas.... but it never did get around to Offences against the Law of Nations outside of that. Yet, by the sentence construction it is clear that Congress gets to define *both* the high Seas portion (Piracies and Felonies) AND more general Offences against the Law of Nations.

There are two very good basis for text to understand how the Law of Nations works and its impact on the US. The first of these, quixotically, is not the main and important text, but a sub-part of another text that has high degree of impact on the US due to its standing for English Common Law. Here we get a text referenced in Court decisions, but I cannot, for the life of me, ever remember it being taught in any course in my sojourn through education. This is Blackstone's Commentaries on the Laws of England, 1765-1769 (a free text from scanned source with need to be deciphered a bit at the Avalon Project, and it does need some study to remember letter replacement and such; better edited text at The Laws of Nature And Nature's God). While a compilation of a long series of lectures on the law of England and how it worked, this also serves as one of the fundamental outlinings of Common Law that would serve as a basis of later views on the law. The founding generation used this as a reference when constructing the Constitution, although indirectly: it is never mentioned.

From Blackstone we get a view on Public Wrongs in Book 4, and Chapter 5 Of the Law of Nations:

THE law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world;1 in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance frequently occur between two or more independent states, and the individuals belonging to each.2 This general law is founded upon this principle, that different nations ought in time of peace to do one another all the good they can; and, in time of war, as little harm as possible, without prejudice to their own real interests.3 And, as none of these states will allow a superiority in the other, therefore neither can dictate or prescribe the rules of this law to the rest; but such rules must necessarily result from those principles of natural justice, in which all the learned of every nation agree: or they depend upon mutual compacts or treaties between the respective communities; in the construction of which there is also no judge to resort to, but the law of nature and reason, being the only one in which all the contracting parties are equally conversant, and to which they are equally subject.
Not to worry, the law of nations actually *is* written down. That said, this view is one that examines the fact that treaties between Nations determine their course with respect to each other. No third party, unless otherwise given by treaty, is the judge over the adherence to such a treaty. Nations enter into treaties voluntarily and hold each other accountable based on the treaty designed by them. This is a primary form of intercourse between Nations and outside of treaties only the more generalized law of nations applies, and there are some things which are basic to Nations that no treaty may remove: for Nations to enter into such treaties, they must have foundation before that entry and ability to freely leave such treaties when they no longer suit a Nation.

When Nations enter into treaties, however, their citizens are bound by such treaties. From that follows that citizens who break such laws are breaking a civil law created amongst Nations or the very sovereign foundations of the Nation State itself. Blackstone looks at the three categories of offense against the law of nations as follows:

THE principal offense against the law of nations, animadverted on as such by the municipal laws of England, are of three kinds; 1. Violation of safe-conducts; 2. Infringement of the rights of ambassadors; and, 3. Piracy.
Each of these three are primary to being able to hold discourse between Nations or to having a Nation without having its sovereignty violated. Sovereign Nations that break safe-conducts or infringe on the rights of ambassadors can give rise to war because of those things ALONE. Nations that disrespect other Nations in that way either during wartime or during peace, are liable to have war waged upon them because of that basic violation: a Nation that has given its word to respect safe-conduct of anyone through its territory and that then BREAKS that word, is committing an act of war.

Similarly as ambassadors are physical representatives of a sovereign Nation, they are to be given all due respect of that representation. Standard legal proceedings are halted in the cases where ambassadors are involved so as to settle the type of offense that is given. Truly, this does get to be quite a complex area of the law, but the basis for the sanctity of ambassadors is long-standing and the tradition of non-prosecution of offenses, save for true acts of war committed or sanctioned by the ambassador, are normally put aside. That is a very over-generalization, of course, but serves as a rule of thumb.

The third part, as a view of the law of nations, is one that utilizes piracy as a category to fit those warlike offenses committed by individuals without sanction from any Nation. The view of English law is to restrict this entirely to robbery and depredation upon the high seas, but even with that there is some variance of attitude of the activity itself. Strictly speaking Blackstone puts the specific of what we know as piracy, robbery and depredation on the high seas, with something more general:
LASTLY, the crime of piracy, or robbery and depredation upon the high seas, is an offense against the universal law of society; a pirate being, according to Sir Edward Coke,10 hostis humani generis [enemy to mankind]. As therefore he has renounced all the benefits of society and government, and has reduced himself afresh to the savage state of nature, by declaring war against all mankind, all mankind must declare war against him: so that every community has a right, by the rule of self-defense, to inflict that punishment upon him, which every individual would in a state of nature have been otherwise entitled to do, any invasion of his person or personal property.

BY the ancient common law, piracy, if committed by a subject, was held to be a species of treason, being contrary to his natural allegiance; and by an alien to be felony only: but now, since the statute of treasons, 25 Edw. III. c. 2. it is held to be only felony in a subject.11 Formerly it was only cognizable by the admiralty courts, which proceed by the rule of the civil law.12 But, it being inconsistent with the liberties of the nation, that any man's life should be taken away, unless by the judgment of his peers, or the common law of the land, the statute 28 Hen. VIII. c. 15. established a new jurisdiction for this purpose; which proceeds according to the course of the common law, and of which we shall say more hereafter.
This is where the Admiralty law leaves off, by and large, save for when pirates have warrant put out against them and their vessels and those that support them. At that point the Prize Court of the Admiralty would still be involved. Piracy is against the law of society, but having a yet more general distinction of 'enemy of mankind'. That more general distinction is not one that is limited to just piracy, in and of itself, but is a more general description of those who wage war for themselves, even if robbery is not involved. That is 'depredation', or war for the sake of something other than monetary gain. When delimited to the high seas, it is a civil crime if captured.

What the English law does not look at are those that commit 'depredation' on land: the illegitimate use of warfare that is not for robbery, but for the act of war itself. When unsanctioned by any Nation that, too, would fit under 'depredation' but the English law does not address that beyond piracy. Normally it is a reason to go to war against a Nation, when done by a Nation, but by individuals and groups that have 'renounced all the benefits of society and government' while on land, especially when they are foreigners unattached by their actions to any Nation, just what, exactly are they?

Yes these things are not taught in school, are they? This raises the next untaught text the one directly mentioned in the Constitution and given by Blackstone: Law of Nations. Capitalized as more than just common agreement, that now leaves the actual document of Law of Nations to be addressed. This is the work of Emmerich de Vattel, Law of Nations, 1758, via Constitution Society. So we are up to three works not taught in school, but that have a major impact upon the actual law in the United States, one by inference, one by association with the English Common Law and the final the widely accepted work of all European Nations on how to behave as Nations, and none of these were taught to me while I was actively in school. When did these works go from actual, scholarly teaching to being dropped from the curriculum of everything but law schools? They each do have bearing upon the law, yes, but they are also, each of them, historical basis for how the United States works and views itself as one Nation amongst many. In that long era before the United States was even a major power in the world and before it was a superpower, this was how it viewed itself and, to this day, is how we still approach the world at large.

And while the Black Book of the Admiralty is more towards recounting the instances of law and how it is made at sea, which is highly fascinating on its own, Law of Nations now shifts to regularize those things which Blackstone would use to view the English Common Law. I move from the interpreted to source text so that we can see how this major work influenced the English Common Law and how the Admiralty law still, even then, was a separate jurisdiction even when it had shifted to the Common Law. That shift between the 14th and 18th centuries is crucial as the United States traces its Admiralty authority to the 14th century, and utilizes only preceptual outlook on the Admiralty law by England as there was no written record of the rulings between the 14th and 19th centuries in England. The United States would, in particular, not apply fully the views of Coke, and would differentiate the US jurisdictional views from those of Britain by doing so. With that the US would look towards the Law of Nations as a major supplier to help define Piracy and recognize that there were *other* Offences against the Law of Nations that England had left unaddressed.

Basically, the US gave itself the most leeway possible to interpret the law and not be hindered by the views of Monarchs and the unrecorded history of the Admiralty courts. Thus the Law of Nations and the Offences against Nations comes to the forefront as the third and most vital text for the US Constitution. In giving this citation by name and capitalizing the name, as seen in for an actual book or set of same (which Law of Nations is a multivolume set) and putting forth that Law of Nations defines crimes against Nations in it, the founders elevate this text up to the Constitutional level. While the US Constitution will refine the views of the United States towards itself and how it fits into the framework of this common view of Europe, we would also differentiate ourselves on how the US applies those views. But the actual crimes in Law of Nations is left up to Congress to define and enact: that is the direct duty given by the founders to Congress. And Piracy only begins to scratch the surface of that.

To see its impact, one can look to the founding era and find the references to Law of Nations in the works of Federalists and Anti-Federalists: this was an important view of the world and they incorporated it into their arguments on the Constitution. So some excerpts follow to let us see what this work did in their thinking about the nation of that era.

James Madison in Federalst No. 42, 22 JAN 1788 [bolding in original, italics mine for emphasis]:

The second class of powers lodged in the general government consist of those which regulate the intercourse with foreign nations, to wit: to make treaties; to send and receive ambassadors, other public ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to regulate foreign commerce, including a power to prohibit, after the year 1808, the importation of slaves, and to lay an intermediate duty of ten dollars per head, as a discouragement to such importations.

This class of powers forms an obvious and essential branch of the federal administration. If we are to be one nation in any respect, it clearly ought to be in respect to other nations.


The power to define and punish piracies and felonies committed on the high seas and offenses against the law of nations belongs with equal propriety to the general government, and is a still greater improvement on the Articles of Confederation. These articles contain no provision for the case of offenses against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the Confederacy with foreign nations. The provision of the federal articles on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses. The definition of piracies might, perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes. A definition of felonies on the high seas is evidently requisite. Felony is a term of loose signification even in the common law of England; and of various import in the statute law of that kingdom. But neither the common nor the statute law of that, or of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption. The meaning of the term, as defined in the codes of the several States, would be as impracticable as the former would be a dishonorable and illegitimate guide. It is not precisely the same in any two of the States; and varies in each with every revision of its criminal laws. For the sake of certainty and uniformity, therefore, the power of defining felonies in this case was in every respect necessary and proper.
Notice that there is an expansive view of the law of nations for self-protection against other forms of offenses against the law of nations. That is, exactly, what Madison sees under the Blackstone view of this:

so that every community has a right, by the rule of self-defense, to inflict that punishment upon him, which every individual would in a state of nature have been otherwise entitled to do, any invasion of his person or personal property.
Extracted from the previous for emphasis, to show how Madison utilizes the Common Law view of Law of Nations and then seeks to put that forth in the Federalist argument for the Constitution. As a Nation the US has the right to define these other offenses against the law of nations and to protect the nation from those practicing such via civil law. The Anti-Federalists also looked to this work for such things as press freedom, as seen in Cincinnatus I: To James Wilson, Esquire, 01 NOV 1787 [itals in original, bolding mine]:
You instance, Sir, the liberty of the press; which you would persuade us, is in no danger, though not secured, because there is no express power granted to regulate literary publications. But you surely know, Sir, that where general powers are expressly granted, the particular ones comprehended within them, must also be granted. For instance, the proposed Congress are empowered—to define and punish offences against the law of nations—mark well, Sir, if you please—to define and punish. Will you, will any one say, can any one even think that does not comprehend a power to define and declare all publications from the press against the conduct of government, in making treaties, or in any other foreign transactions, an offence against the law of nations? If there should ever be an influential president, or arbitrary senate, who do not choose that their transactions with foreign powers should be discussed or examined in the public prints, they will easily find pretexts to prevail upon the other branch to concur with them, in restraining what it may please them to call—the licentiousness of the press. And this may be, even without the concurrence of the representative of the people; because the president and senate are empowered to make treaties, and these treaties are declared the supreme law of the land.
Here is a very interesting view of the law of nations, and well worth examining. In how things worked out the Piracy laws are in the US Code and utilized there via the Admiralty jurisdiction. What is fascinating is that the direct, and blunt reading of the words of the Constitution, as Cincinnatus points out, is that Congress gets to define and punish piracy on its own. That reasoning, however, is belied by the Admiraly jurisdiction and Common Law views, that a tribunal or other judge (with or without jury! yes, that is *also* part of the Admiraly heritage) is to rule on such things.

But that is a tricky part as the Admiralty courts had two tracks of power: civil and military. At that point in history there was still a separate Prize court system for military captures, and that, while related under the Admiralty, served as a punishment court for things like piracy. This attempt to differentiate those systems by combining them into the Admiralty jurisdiction as a whole and regularize them is seen in the 'define and punish' language. While Cincinnatus puts forward only the treaty and trade end, the broader view of definition and assigning punishment belongs to Congress. By shifting the entirety of Piracy and other felonies on the high seas to Congress, there is, at that era, a necessity not only to give definition to those things, but assign the punishment scale: felonies needed to be graduated by type of crime and only Congress can do that.

The broader point, however, is extremely well taken: a powerful or charismatic President and a sycophantic Senate could abuse their treaty power and the need to ensure that such can be reported on falls to the House to guard the overall laws and privileges of that body as part of Congress. Did you think this was a *modern* worry?

Again, this stuff just isn't properly taught and in my school career the exposure to the Federalist Papers, which everyone lauds, was minor and my exposure to the coherency of the Anti-Federalist side and other Federalist supporting documents was *nil*. That does bring up a major problem in presenting American History as 'static': by making it that all of the arguments had been addressed and settled we spend forever trying to bring up 'new' arguments that, in actuality, have remained unsettled since the founding era. When we talk of the Presidential powers as Head of State, we are not talking some nebulous concept, but talking to a body of work that those creating the Constitution understood at heart. They CITE IT in their works and in the Constitution itself and utilize it in their understanding of how this republic fits into the greater continuum of nations. President Washington, himself, would utilize this in his approach to the world, and The Proclamation of Neutrality (22 APR 1793) would be based upon the President's powers as Head of State, hear provided in full [bolding mine for emphasis]:


Whereas it appears that a state of war exists between Austria, Prussia, Sardinia, Great Britain, and the United Netherlands, of the one part, and France on the other; and the duty and interest of the United States require, that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerant Powers;

I have therefore thought fit by these presents to declare the disposition of the United States to observe the conduct aforesaid towards those Powers respectfully; and to exhort and warn the citizens of the United States carefully to avoid all acts and proceedings whatsoever, which may in any manner tend to contravene such disposition.

And I do hereby also make known, that whatsoever of the citizens of the United States shall render himself liable to punishment or forfeiture under the law of nations, by committing, aiding, or abetting hostilities against any of the said Powers, or by carrying to any of them those articles which are deemed contraband by the modern usage of nations, will not receive the protection of the United States, against such punishment or forfeiture; and further, that I have given instructions to those officers, to whom it belongs, to cause prosecutions to be instituted against all persons, who shall, within the cognizance of the courts of the United States, violate the law of nations, with respect to the Powers at war, or any of them.

In testimony whereof, I have caused the seal of the United States of America to be affixed to these presents, and signed the same with my hand. Done at the city of Philadelphia, the twenty-second day of April, one thousand seven hundred and ninety-three, and of the Independence of the United States of America the seventeenth.

April 22, 1793
I have seen longer proclamations on the need for apple pies and motherhood! But the import is direct and clear and the *expectation* is that citizens will damned well know the law of nations and abide by it. And if you *didn't know* you were to find out.

Which, of course, finally gets to Law of Nations! What President Washington is referring to comes from Book III:
§ 4. It belongs only to the sovereign power.(137)

As nature has given men no right to employ force, unless when it becomes necessary for self defence and the preservation of their rights (Book II. § 49, &c.), the inference is manifest, that, since the establishment of political societies, a right, so dangerous in its exercise, no longer remains with private persons except in those encounters where society cannot protect or defend them. In the bosom of society, the public authority decides all the disputes of the citizens, represses violence, and checks every attempt to do ourselves justice with our own hands. If a private person intends to prosecute his right against the subject of a foreign power, he may apply to the sovereign of his adversary, or to the magistrates invested with the public authority: and if he is denied justice by them, he must have recourse to his own sovereign, who is obliged to protect him. It would be too dangerous to allow every citizen the liberty of doing himself justice against foreigners; as, in that case, there would not be a single member of the state who might not involve it in war. And how could peace be preserved between nations, if it were in the power of every private individual to disturb it? A right of so momentous a nature, — the right of judging whether the nation has real grounds of complaint, whether she is authorized to employ force, and justifiable in taking up arms, whether prudence will admit of such a step, and whether the welfare of the state requires it, — that right, I say, can belong only to the body of the nation, or to the sovereign, her representative. It is doubtless one of those rights, without which there can be no salutary government, and which are therefore called rights of majesty (Book I. § 45).

Thus the sovereign power alone is possessed of authority to make war. But, as the different rights which constitute this power, originally resident in the body of the nation, may be separated or limited according to the will of the nation (Book I. § 31 and 45), it is from the particular constitution of each state, that we are to learn where the power resides, that is authorized to make war in the name of the society at large. The kings of England, whose power is in other respects so limited, have the right of making war and peace.1 Those of Sweden have lost it. The brilliant but ruinous exploits of Charles XII. sufficiently warranted the states of that kingdom to reserve to themselves a right of such importance to their safety.
Quick and to the point, isn't it? In the US, as we have separated out the Foreign Policy from War Declaring powers, the President is fully within his power to put forward that he is not looking to partake in a war and that NONE of the citizens of the Nation may do so. But there is more to it than that! Lets look a bit further along in Book III:
§ 15. Enlisting in foreign countries.

As the right of levying soldiers belongs solely to the nation or the sovereign (§ 7), no person must attempt to enlist soldiers, in a foreign country, without the permission of the sovereign; and, even with that permission, none but volunteers are to be enlisted; for the service of their country is out of the question here; and no sovereign has a right to give or sell his subjects to another.

The man who undertakes to enlist soldiers in a foreign country, without the sovereign's permission, — and, in general, whoever entices away the subjects of another state, violates one of the most sacred rights of the prince and the nation. This crime is distinguished by the name of kidnapping, or man-stealing, and is punished with the utmost severity in every well-regulated state. Foreign recruiters are hanged without mercy, and with great justice. It is not presumed that their sovereign has ordered them to commit a crime; and, supposing even that they had received such an order, they ought not to have obeyed it, — their sovereign having no right to command what is contrary to the law of nature. It is not, I say, presumed that these recruiters act by order of their sovereign; and with respect to such of them as have practised seduction only, it is generally thought sufficient to punish them when they can be detected and caught: if they have used violence, and made their escape, it is usual to demand a surrender of the delinquents, and to claim the persons they have carried off. But if it appears that they acted by order, such a proceeding in a foreign sovereign is justly considered as an injury, and as a sufficient cause for declaring war against him, unless he makes suitable reparation.
President Washington is reminding folks of this paragraph and his right to deny citizens the ability to enlist in foreign armies or help foreign nations. Now imagine if we applied *this* as Congress can and should do, against terrorist recruiters. They are, actually, worse than those recruiting for a foreign nation as they are seeking to entice people to lawlessness on an international scale. The offense of doing that has an actual punishment under the law of nations: hanging without mercy and great justice.

Wouldn't THAT be a lovely law to have for those recruiting for Hezbollah, al Qaeda, HAMAS, and so on?

Congress DOES get to do that, Art. I, Sec. 8:
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
There you have a stated Offence against the law of nations and its REMEDY. Congress can do that for foreign recruiters AND non-state military recruiters or those supporting non-state military actors. They are given that right EXPLICITLY by the US Constitution and they are to follow the Offense in question with its remedy. Define and punish.

That puts an entirely different character on those 'charity' front organizations supporting terrorism, doesn't it?

Too bad you weren't taught this in school.

That brings us up to actual war time powers a Nation may use under declaration of war or when attacked by outside forces so as to be at war. This is still in Book III [itals in original, bolding mine]:
§ 67. It is to be distinguished from informal and unlawful war.

Legitimate and formal warfare must be carefully distinguished from those illegitimate and informal wars, or rather predatory expeditions, undertaken either without lawful authority or without apparent cause, as likewise without the usual formalities, and solely with a view to plunder. Grotius relates several instances of the latter.5 Such were the enterprises of the grandes compagnies which had assembled in France during the wars with the English, — armies of banditti, who ranged about Europe, purely for spoil and plunder: such were the cruises of the buccaneers, without commission, and in time of peace; and such in general are the depredations of pirates. To the same class belong almost all the expeditions of the Barbary corsairs: though authorized by a sovereign, they are undertaken without any apparent cause, and from no other motive than the lust of plunder. These two species of war, I say, — the lawful and the illegitimate, — are to be carefully distinguished, as the effects and the rights arising from each are very different.

§ 68. Grounds of this distinction.

In order fully to conceive the grounds of this distinction, it is necessary to recollect the nature and object of lawful war. It is only as the last remedy against obstinate injustice that the law of nature allows of war. Hence arise the rights which it gives, as we shall explain in the sequel: hence, likewise, the rules to be observed in it. Since it is equally possible that either of the parties may have right on his side, — and since, in consequence of the independence of nations, that point is not to be decided by others (§ 40), — the condition of the two enemies is the same, while the war lasts. Thus, when a nation, or a sovereign, has declared war against another sovereign on account of a difference arisen between them, their war is what among nations is called a lawful and formal war; and its effects are, by the voluntary law of nations, the same on both sides, independently of the justice of the cause, as we shall more fully show in the sequel.6 Nothing of this kind is the case in an informal and illegitimate war, which is more properly called depredation. Undertaken without any right, without even an apparent cause, it can be productive of no lawful effect, nor give any right to the author of it. A nation attacked by such sort of enemies is not under any obligation to observe towards them the rules prescribed in formal warfare. She may treat them as robbers,(146a) The inhabitants of Geneva, after defeating the famous attempt to take their city by escalade,7 caused all the prisoners whom they took from the Savoyards on that occasion to be hanged up as robbers, who had come to attack them without cause and without a declaration of war. Nor were the Genevese censured for this proceeding, which would have been detested in a formal war.
Yes, terrorism is *defined* under the law of nations! It is 'informal or predatory' war not sanctioned by any sovereign nation. It is depradation undertaken without any right and any cause given is illegitimate: they have no basis as a non-sovereign to address a grievance in this way. And do notice that 'summary justice' is done to those practicing it, that is the right of nations and peoples to have freedom from predators in human form. That is an actual sanction that Congress could levy... or just treat the like under the Piracy code with life imprisonment.

And this brings us to my favorite citation of the last few weeks, one that gets repeated perhaps too often, and yet bears repeating. It is this power to protect a nation from predators that is given to the sovereign during wartime. When illegitimate and illegal war, under law of nations, is done to the nation, she has the right to protect herself and ask for the support of all other nations in ending this scourge. When such predators are captured on the battlefield, the President, as Commander in Chief of the Armies and the Navies has wide jurisdiction and prosecution against those that are predators. This is something that past Presidents have put forth and utilized, and it was, for many decades, part of the Field Manual of the US Army. Here is the actual article in question:
Art. 82.

Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers - such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.
Perhaps the most succinct view of terrorism given by a President, although he did not even call it such. It was a form of illegitimate war and he addressed it as such. Which President is it that had this view, and promulgated it? A President who knew justice and injustice, and one greatly lauded for his wisdom and insight into humanity and America:

Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863.
The Great Emancipator. President Lincoln understood the law of nations and *his* responsibility to the nation to protect it under that law. He calls such being by a few of their law of nations names: highway robbers, pirates.

And you weren't taught that, either.

How can we make decisions as a Nation and a People if we have no idea what it means to have a Nation by the People?

Apparently this is far too much a burden for the everyman to have, so it is not taught save at the upper echelons of law schools. Yet it is something that was widely known by Americans to found this nation and understand the meaning of that and what the responsibilities of individuals and the nation *are*.

I call on Congress to carry out its DUTY to enforce the Law of Nations and put down those Offenses and their punishment so that this Nation can be protected.

I know what that means.

Do you?

Friday, October 05, 2007

The Religion of Economics: Left and Right

Economics is an activity of individuals, groups, and societies amongst themselves, so as to encompass activities across a wide spectrum of aims. In the modern day the attempt to boil everything down to economics is, however, changing the tenor and tone of ideological outlook for the United States and the world. By wishing to monetize all activities, and demonstrate worth as representing only economic output, other values that an individual puts forth, such as knowledge of a skill or trade and enjoyment in its exercise for its own sake, become relegated to secondary value to the monetized value of something created. Further, creativity to be creative, beyond monetary reward, is also shifted in that way to something that gains value in transaction, but loses the import of the value of thought, insight and hard work that went into it. Money is not the actual root of all evil, but wanting to put money on top of all other activities is such a root of evil: it destroys and denigrates human culture and insight with an aim towards getting simple cash value out of something that may be beyond price to the actual individual that created it. By not recognizing the original value and putting only a trade value upon something, even great works of art become mere commodities to be bought and sold: the creativity and worth that an individual put into its creation is lost in the translation to monetization.

This has been brought up as something of concern in the Republican party as its voter base has given a look, via a poll looking at foreign trade agreements and, as a concomitant to that, 'free trade', at what the values of such foreign trade has been to the US. I have written on that topic elsewhere, and see it as a shift on the belief that foreign trade is an unrestrained 'good thing' for the US. The two major points of outlook for societal and industrial justice are given by two Presidents: Andrew Jackson and Theodore Roosevelt. Both of these Presidents saw need, and great need, not only for America to have a self-sustaining economy and to have just compensation for created goods, but they both, particularly Jackson, saw that foreign changes and control over parts of the US economy, in his era banking, would slant not only US domestic policy but US foreign policy. Neither of these men would leave America to the mercies of overseas interests, and each would utilize their powers to ensure that America was self-guiding and sustaining with just recompense between the US and foreign Nations. Jackson would do that by the Bank Veto which would remove a National Bank and its foreign investors who were the majority in that era. Roosevelt would utilize treaties and agreements, but also see that the working man needed the ability to address larger organizations via self-organizing. By 1913 President Wilson would establish a Federal Reserve Bank and by the early 1970's the power of trade unions would rival that of the companies they sought to address and be just as oppressive in their structure as the industrialists they sought to hold accountable.

During the 18th and 19th century economics started to shift from a basis of something done as you go along, and to gain regularized outlooks that attempted to analyze economic activity. One individual who would see the investment in static monetary reserves as something that stultified trade was Adam Smith. This shift towards one of economic efficiency and removing barriers to effect moral based social change due to economic expansion and the birth of what we call Capitalism. Within a century, Karl Marx would shift economic outlook towards pure labor input as work as the only value for a good, and that any value on top of that as a trade value, would lead to 'surplus value' also known as 'profit'. Marxist economic theory would also contain its own social dynamics towards that of creating a worker-based state as the minority extracting 'surplus value' would be at odds with the class of people actually making the goods. That system in which the workers control the means of production and remove the 'surplus value extracting class' is Socialism.

I have previously written on Socialism in The Limits of Socialism, which examines it from a practical standpoint, and in how those that today profess wanting Socialism seem to have forgotten Marx in The Theory and Practice Conundrum. Socialism, however, gained credence in the 19th century as it put forward a widely accepted concept of 'limited room of expansion and resources'. In a world in which there are hard and fast bounds on what can be utilized for production and how much can be discovered, the conception of Socialism is a natural outgrowth. It is an 'end-state' view of economic theory and utilizes that to change social theory to adhere to that view. Capitalism does not recognize such constraints and allows human creativity to step in to find new and different ways to approach production, utilization and resource allocation.While other viewpoints and systems have been seen before and during the utilization of both Capitalism and Socialism, such as the pre-existing Mercantalism and the post-existing Anarcho-Syndicalist concepts, these two views put down by Smith and Marx have served as the basis for 20th century thought and have shifted towards more and more distancing of the economic activity from the society that allows such activity to go on.

It is that third view of economics that is unaddressed by the two-party system today and by modern economic theory, although Adam Smith had deep views on it from his era. Today, however, with the abolition of slavery and the shift to market-based, non-mercantalist economics, this earlier conception of economic activity as an outcome of society is no longer pushed. In abstracting it on the Right side of the political spectrum, to create 'free trade creates freedom' the actual equation of the control of trade by society is reversed: economic activity controls society. That is, strangely enough, the view of Karl Marx. By cutting the constraints of social control over Capitalism, we are now seeing the first shifts towards Marxist views coming from the Capitalist side of things: by implicating that trade and value out to be efficient, with the lowest overhead possible, one does not wind up with efficient Capitalism but with Socialism. By having no social value to work imported by the goods made, and wanting there to be no value based overhead, those that put forward 'free trade' are making an end-state valuation on human activity that is Marxist based. Without the societal values attached to trade, society is then at the mercy of trade.

That is why when Republicans are asked about the value of foreign trade in relationship to the US economy and jobs, we get a 2/3 majority not agreeing that this is a good thing. And as the Republicans have been pushing 'free trade' for nearly three decades as a balm to mankind, and all trade agreements that have bi-partisan buy-in reflecting this, particularly NAFTA, the Republican voter is saying that the US is getting a 'raw deal'. It is not just a question of economic expansion and jobs, but something different beyond that which is being looked at slant-wise: the value of work by the American worker. It is true that as a society the US has a high economic overhead, part of that overhead and, indeed, large part of it, is government regulations. In two of my articles before this, Insurance, assurance and prosperity and When change is not progress, the intrusion of Federal Government and its encroachment upon activities that had been under the sole purview of the individual and the States shifting to the Federal Government have created larger and larger societal overhead that not only costs money, but also devalues the judgment of individuals in favor of that of the government for personal decision making. Such overhead has made it difficult for the most productive people on this planet, the American worker, to actually compete with foreign Nations with lower social overhead and even less valuation upon their Peoples. While 'free trade' may create jobs, the type of jobs being created are those in the non-creative areas called: the service sector. That sector has now surpassed manufacturing as the largest employer of the United States.

That can be expected to some degree, as more goods need servicing due to increasing productivity per person in manufacturing, the service sector is not generally seen as a creative, inventive and prosperity producing area in times past. George Will taking a look at the economic adviser for presidential candidate Barack Obama, Austan Goolsbee, puts forward Goolsbee's view on the service sector as follows:

"Globalization" means free trade and various deregulations that supposedly put downward pressure on American wages because of imports from low-wage countries. Goolsbee, however, says globalization is responsible for "a small fraction" of today's income disparities. He says "60 to 70 percent of the economy faces virtually no international competition." America's 18.5 million government employees have little to fear from free trade; neither do auto mechanics, dentists and many others.

Goolsbee's rough estimate is that technology -- meaning all that the phrase "information economy" denotes -- accounts for more than 80 percent of the increase in earnings disparities, whereas trade accounts for much less than 20 percent. This is something congressional Democrats need to hear from a Democratic economist as they resist trade agreements with South Korea and such minor economic powers as Peru, Panama and Colombia.
This is, perhaps, not something that rings well in the ears of those wanting a relatively low social overhead. Putting forth that 18.5 million Americans in government employment is *good* because they have safe jobs, is not a selling point for 'globalization' or 'free trade'. Just the opposite, in fact, it points out the continuing shift in America's manufacturing base away from Americans and to overseas production facilities, staffed by individuals often in repressive regimes or exploited because their Nation puts little value in human liberty or freedom. Further, the 'information economy' is not something that accounts for absolute widespread prosperity for all, as it inherently targets such things as software and the services economy for economics and trade. While trade may account for only 20% or less of the disparity in incomes in America, the other 80% is not widespread, either. And as 'services' become automated or 'farmed out' to overseas call centers, additional jobs in the US 'services economy' likewise disappear.

And it is in that valuation of trade, and its support of human rights that we cherish in America, that is part of the view that Republican voters have on the unfairness of trade deals: they do not uphold the rights that we hold as fundamental in our overseas activities and all putting forward that trade will create the space for rights to grow have proved false sincethat was first put forward by President Wilson in 1917. Americans, in particular, can judge if the stated goal of an activity, in this case expanding freedom abroad by trade, are in any way in accord with the outcomes that we have seen. President Wilson applied the balm of trade to the Middle East to avoid conflict there in WWI, and we are now there 90 years later with soldiers on the ground having to create peace and teach our values directly by our Citizen Soldiers. Apparently this 'trade creating freedom' business does not work.

It is a lie as given by the evidence we can see with our own eyes today.

Dogma (via
Source: WordNet (r) 1.7


n 1: a religious doctrine that is proclaimed as true without proof [syn: belief, tenet]
2: a doctrine or code of beliefs accepted as authoritative; "he believed all the Marxist dogma"

Those that put forward free trade and the value of 'globalization' are putting forth a dogmatic tract that adheres to economic doctrine. As much as the Right detests Marxist dogmatic adherence to the 'value means of production', so are they, themselves, spouting something that is demonstrably false across the Middle East and in China. Freer trade or, indeed, expanded trade, has not brought forth Western liberal values in either place, and has proven impossible to overcome societal and governmental views against such liberal ideas even when lots of goods get into the hands of people in those places. Even worse, as these goods tend to placate the population in both those regions, they do not come to understand or appreciate the Western value of human liberty and, instead, see it as another authoritarian talking point that the West has no intention of backing.

How do they know that?

We trade with tyrannical and despotic governments that can take the rights of their people away on a whim.

Damned simple. A 2x4 across the head could not be more direct, really.

The Left/Marxist side, by putting forth government control of the economy (in theory by 'the workers' but, somehow, the actual individual workers never get asked about it) has been putting forward its own concept of that control as 'freeing'. That has led to some of the worst repression, starvation and outright disintegration of social systems as has ever been seen before in history. Forced mass migrations by Stalin caused untold hardship and ethnic strife that exists as his legacy today. The farming and 'collective' policy around such did nothing to boost production and, in fact, removed private gardens and small farm holding for local support from the overall mix of social structure. In China the 'great leap forward' wound up with millions impoverished or dead, along with re-education camps that would seek ideological purity. That after coming to power and truly eliminating the opium problem in China: Mao had everyone in the drug trade and their families killed. Today the shift to 'capitalism' in China is that of 'crony capitalism' of the State guided sort which we have come to know under another name: Fascism. The accounts of cities and working conditions inside China and the outright destruction of the social structure to provide cheap labor reads like something out of Dickens than of any 20th century industrial work. Even worse is that the crony capitalist system accumulates a bad debt structure that does not get paid back, every, thus 'inflating the economy' in the short term but trending towards a long term collapse as the bubble is not sustainable. The entire banking system of China under the direction of the government, is corrupt, unwilling to hold favored individuals to any standard and have little or no oversight over those businesses that fail, thus the money sunk into such companies disappears leaving behind unstructured debt.

Today the Leftist dogma is to centralize things, move more into the government sphere and remove it from personal oversight. This will, somehow, work out 'for the better' by centralizing power in the hands of the few.

The Right/Capitalist side, by putting forth that private control is better, sees no harm, at all, in trading with non-free peoples to make a fast buck. For multiple product scares to come *out* of China, the interior system must have serious and systemic flaws, particularly in quality assurance and even such things as 'product safety standards'. They don't have any and on contract work will aim for 'least viable acceptance' to pass off shoddy work or even toxic work as meeting specifications. From Nations with problems of supporting terrorism, like Saudi Arabia, no restrictions on trade or trade goods is put in place because of the one vital resource, oil, that actually flows into a global market to sustain price points. The loss of Saudi oil would be a disaster for the global economy, but the support of the regime and its rich nobles that pay out to terrorists for their own petty views, puts the lives of millions at risk. Requiring accountability of the Saudi banking system is done, but the 'traditional' corruption and bribery make that less than useless: it actually undermines the system by allowing transactions to happen for well-connected individuals. And if you try to hold Saudi Arabia responsible or any of its ruling class, well that threatens world oil markets now, doesn't it? So we have the lovely specter of the US supporting a regime that allows and encourages terror financing and has done so since the mid-1950's. And when 'rogue regimes' like Syria need to do business, they just go through their Rolodex of intermediaries to find the right hook-ups for the things that they can pay for and get through minimal sanctions regimes. The entire chemical weapons and long-range missile systems development all happened with Syria *under sanctions*, which demonstrate just how much trade sanctions do to tyrannical regimes. Not that the US would ever want to hold 'friendly' despots to account for anything, like the regimes of Samoza, Marcos and other such sweeties as the Shah of Iran. And just how much *did* each of those individuals ensure the expansion of liberty and freedom while they were in power? How about terrorist supporting Carlos Menem and his ties to Syria and Iran, which would only cause lack of sleep once nuclear and improved missile technology was in the kitty from the Argentinian side?

I am sure that trade will make everything better for everyone, don't mind the body count along the way.

Say, whatever happened to all that wonderful stuff in the Declaration of Independence? Or our seeing that upholding rights is necessary and that the best government is 'small, limited government'? Well, we have 18.5 million people working FOR government, so that can't be so bad, right? Ensured jobs and all.... and it is those folks, and the elected representatives and Presidents that now want to hand even *more* out via trade and the actual expansion of our ideals by them has been.... well, I am sure they will get around to addressing that once they convince Americans that those ideals aren't so special and, really, we should be just like any other Nation that allows 'free trade' but controls every other aspect of our lives. It makes good money! Can't be that important if we don't look to actually utilize trade to hold such regimes accountable, now, does it? Don't mind the blood at Tienanmen Square we won't hold the regime accountable for that by TRADE now will we?

Even worse is that by making trade the be-all, end-all to diplomacy, and that actually taking a military stance might just jeopardize *trade*... why! Heavens, no! If people actually stand up to assert their rights against a government because the US said it would back them, like the 300,000 dead in the Shia uprising against Saddam Hussein, well, a nice Oil For Food deal might get some flowers to the mass graves if they can be found. Really that trade will make everything A-OK!

Which is why we now have soldiers on the ground setting things right when Woodrow Wilson, George HW Bush and William Clinton just couldn't be bothered to do much of anything.

Yes, I would say that 60% of Republicans have a major gripe with their party on trade. When an agreement like NAFTA has Mexico agreeing to clean up its economic house and not to export its unemployment problem northwards, and then they start printing maps for people wanting to go north into the US against all treaties and laws, well, you know, what part of the word 'patsy' doesn't that fit? Gullible? Chump? Fool? Easy to take advantage of? I'm so glad that NAFTA was bi-partisan in nature, as it shows just how the two parties view America, the treaties she makes as a Nation and holding other accountable for their end of such things.

My guess is that the large percentage of Americans who do not vote feel that they have been victims of the two party system which now exists only to support the dogmatic ideologs within them. Our history is not assured, and we write it as we go, and for democracy to succeed it must have broad acceptance and exercise by the people involved. We put economics ahead of the interests of the Nation and our own founding outlooks only at our collective peril. Apparently fewer and fewer are prepared to accept that democracy is a good thing in its present form in America, and many in the Republican party are seeing some displeasure with the concept that more goods leads to greater liberty. That hasn't happened yet where it has been practiced on non-free societies. Perhaps it is time to change that around so that those that support democracy and the US can get good and substantive trade so long as they are friendly with us and we with them.

You know, our Friends and Allies? The people we should be honoring with our thanks and freedom of access to our market, no matter the size of their Nation. Does anyone remember them? UK, Poland, Australia, Japan, South Korea, Taiwan... a long list of coalition partners and Nations that show up by our side again and again to help us? How about those recently free from tyranny that look to the US for help and understanding to make democracy work? Don't they deserve 'free trade' with us, too?

And, perhaps, those that are tyrannical, authoritarian, despotic or just downright don't care should have to pay for access to the works of free people.

And our enemies deserve NOTHING.

That is aligning trade to a Foreign Policy, not Foreign Policy to trade. You don't hear much of the former, but you hear lots of the latter all the time.

Wednesday, October 03, 2007

When change is not progress

The following is a personal outlook paper of The Jacksonian Party, cross-posted from Dumb Looks Still Free.

At the founding of the United States there was a clear and succinct voice that rang out beyond the great documents, beyond the Declaration of Independence. It was a voice of Revolution and yet a voice of warning, too. That voice with single clarity identifies, classifies and instructs on who we are, as a People, and how we view this world. It is a voice forgotten today, and many while noting the author, no longer note the words involved, as they were and are Revolutionary. Perhaps the best passage for our modern times comes from then, if we dare to read it:

Some writers have so confounded society with government,
as to leave little or no distinction between them
whereas they are not only different, but have different origins.
Society is produced by our wants, and government by our wickedness;
the former promotes our POSITIVELY by uniting our affections,
the latter NEGATIVELY by restraining our vices. The one
encourages intercourse, the other creates distinctions.
The first a patron, the last a punisher.
That writers is, of course, Thomas Paine and the quote is from Common Sense (via the Gutenberg Project), bolding is mine, unless otherwise noted.

A problem on the Left and the Right is to try and use government to enforce society, and social norms, instead of having government shift to our changing views as a People. Our society is given voice by who we are, what we want and how we approach life as a People. The government is an artifact of that process, made to ensure that our passions do not destroy our society, but not to enforce a view on the world upon that society. The major 'debates' of the last century revolved around the role of government in society, and in each and every case, MORE government intervention was chosen over LESS.

I have written elsewhere about the 10 years that changed the course of America for the worse, within that century. Starting in 1909 the US Federal Government expanded its powers over medications, to begin regulating what individuals could and could not do with their own bodies. Government put that forward via those organizations that supported them, mainly church groups seeing the ills of the Far East opium trade, and sought to end the trade by eliminating the demand. To do that, Nations had to agree to end the importation of such things and outlaw them for their peoples. The Federal Government, before that, could only tell manufacterers to list all ingredients in foods and medications, via the food and drug purity laws. That is how the government *should* act, so that the People have a truthful accounting of what they take in the way of food and medication. In proscribing certain medications to enforce a treaty, the Federal Government changed its role from that of supporting society to that of dictating to the greater society based on a religious outlook of ending the opium trade.

Instead of just taxing the hell out of the imports to try and dissuade Americans from using such things, the Federal Government went a route of authoritarianism against its own People to tell the People what was good for them. That was via the Harrison Act of 1914, to require 'stamps' for the purchase of these medications, and no stamps were ever produced or distributed. If you want the start of the 'Nannystate' then this is, perhaps, the first milestone in that. Would that such markers were so few and far between that they could not even be sighted one to the next. Suddenly a thing that individuals did, which was guiding their own use of medications, had become criminal behavior. Society could no longer be the patron of its own needs, and look after them, and government took up its role to punish those that contradicted that.

Also in 1909 would come Amendment XVI to the US Constitution that would allow the first formulation of taxation of individuals by the Federal Government to happen that would NOT be set by per capita tax, but by income. This would, in addition, remove the need of the Federal Government to go to the States to get income to run the Nation and allow the Federal Government to act in a fiscally independent mode from State based oversight. The 'power of the purse' for funding Federal Government shifted from the People and the States to the Federal Government. Previously the US had existed on tariffs and then asking States to make up the remainder based on an equal apportionment on a per capita basis. The States were left to figure out how the best way to garner that money was. Income tax, sales tax, property tax... the variety of taxes that could be levied varied and each State could figure out the best way to share the National burden for itself. The States, in separate or concert, could also WITHHOLD payments when Federal Government no longer addressed the needs of the States. That is an accountability power that Amendment XVI removed from play. Suddenly local government had lost its ability to hold the Federal system accountable to it, and the evils of local government were replaced by the distant and less accountable and larger evil of Federal Government.

Starting in 1911 would be the move to have the People directly elect Senators, and that would be ratified into the Constitution as Amendment XVII. This shifted a second, State-based, accountability factor from keeping Federal Government limited. While the appointment of Senators had always caused problems from the States, those were problems of localized, State based corruption that allowed the Federal Government to actually criticize the States for not doing their job of appointing Senators. A major question for democracy is: what happens when a major institution in a Republic is no longer strongly backed and yet is vital to the running of the Nation? The answer is NOT to change the place where the decision power rests, but that is what exactly, was done. Again, prior to this the Federal Government actually had to have its tenancies ham-strung by the States in their power to send or NOT to send Senators. If things are not getting done, perhaps it is the Federal Government's fault for not running itself well enough to gain backing by the States? Instead the People chose to move the corruption directly to themselves, so that Senators could now emulate their House colleagues in the ways of pork barrel politics.

Also in 1911 came Public Law 62-5 which would allow the US Congress to set a size that would be permanent, and no longer 'float' with the size of the population. That would have long term consequences which would remove from the House the need to address the changing size of the Nation and, instead, start to permanently divide the States into districts that would have a long range impact due to the shifting industrial basis of the Nation. The US was shifting from an agrarian system that was still the majority employer in 1911, to one in which manufacturing would be the major employer in the US in 1925. While the districts would be re-drawn to a degree to demonstrate that, those rural areas that had once had representation and would have retained that due to size of population in a proportion-based system, would now lose out in a fixed seat system. By amalgamating populations to craft new districts, distinction in populations on a rural basis was lost, even as cities gained more representatives due to the concentration of population. In a fixed proportion system with growing population, older areas that could retain their population base would retain representation, while in a fixed seat system they would lose that and need to have dissimilar towns and villages amalgamated into a larger district. The effect of that was not the marginalization of rural outlook, as it would be under fixed proportion, but the loss of diverse outlook from rural areas in favor of more homogeneous outlook based on dense, urban populations.

In 1913 the Federal Reserve Banking System would be instated, reversing the post-Civil War need for a Nationalized banking system for war finance and also reversing the veto of President Jackson on such a National Bank. In the system devised the Nation, as a whole, via its Federal Government is liable for its currency: thus financial obligations were now those of the Federal Government. This took the onus off of banks to have such equities go directly to them, but moved that responsibility to an unelected part of the Federal Government in the way of the distributed Federal Reserve Board. While this is a compromise, of sorts, to get some distributed representation into the banking system, it is not one that is directly accountable to the People and, instead, only by those passing appointment in the Senate as government officers. That is how the Federal Government controls currency and interest rates to adjust to financial conditions. In the intervening years from Jackson to Wilson, the main criticism of a Federal Bank was that it would be a majority ownership of overseas monied interests, which was the case with the First and Second Banks. While this system has prevented some 'bank runs' and alleviated 'bank panics', the question of the actual scope of government to do this is one that has not been well addressed. This is a change-over from a distributed, State integrated (or unintegrated as the case may be) system, being replaced by one of centralized control with limited district input. The accountability and tenure of such individuals appointed by the President and confirmed by the Senate is not one that has been or is well addressed. While it is, no doubt, a change that adds stability, the cost of that stability remains unaddressed by the concentration of that power to the Federal level and away from the States.

Amendment Amendment XVIII in 1919 would be the only part of this suite to be repealed, as the temperance movement and anti-alcohol movement attacked the very grain and fiber of the Nation and its history in alcoholic beverages. What is even more amazing is that the actual use of alcohol was already on the decline from its high point in the 1840's, along with a shift from hard liquor to beers and wines. The generations that built the railroads, built major industrial bases, built the first industrialized cities, built transcontinental railways, and united this Nation was a hard drinking rough bunch that accomplished great feats while, apparently, being sloshed to the gills. Somehow this was painted as a demonic or 'bad' thing, and the attempt to sever the Nation from its societal roots with intoxicating beverages went too far. The short term effect of that, however, was to empower the first of the international organized crime syndicates with the easily made and transported alcohol that had been outlawed. Those crime organizations had already started to grow based on opium, heroin and then cocaine, but the supercharging of those organizations by adding in alcohol made them the very first threat to civilization succumbing to well armed thugs since the age of piracy two centuries and more previous to that.

Each of these instances is an attempt to enforce a 'societal good' or an 'easement to government' that would, each in their own way, remove decisions from individuals and concentrate power into the hands of the corrupt and unelected on a National scale. These changes did not *stop* in that era, and, indeed, some were to come forward that would be even worse than the original problems in their long term corrosion of the society of the nation in favor of the government of the nation. I will look on that in a moment, but take time to look back to Thomas Paine, again, further on in Common Sense, where he proposes a new system for government, which is a striking outline for the House, Senate and Presidency we have today, and go further to look at what he saw as the basis for governance:
But where, says some, is the King of America? I'll tell you.
Friend, he reigns above, and doth not make havoc of mankind
like the Royal Brute of Britain
. Yet that we may not appear
to be defective even in earthly honors, let a day be solemnly
set apart for proclaiming the charter
; let it be brought forth
placed on the divine law, the word of God
; let a crown be placed thereon,
by which the world may know, that so far as we approve of monarchy,
that in America THE LAW IS KING. For as in absolute governments
the King is law, so in free countries the law OUGHT to be King;
and there ought to be no other
. But lest any ill use should
afterwards arise, let the crown at the conclusion of the ceremony,
be demolished, and scattered among the people whose right it is
Those words are one that became deeply embedded in America, and remain so to this day as a prime foundation of the Revolution and our own outlook on government and society. The law above all is that which holds us together as a Nation, even as we, as a People, see higher Divine inspiration above Nation, so that Divine Guide is not the guide of the Nation by mortal guise but is our personal guide to make good law for all People in the Nation. As Paine had pointed out earlier:
Not one third of the inhabitants, even of this province, are of English descent.
Wherefore I reprobate the phrase of parent or mother country applied
to England only, as being false, selfish, narrow and ungenerous.
The Colonies becoming States were already diverse in their populations, distributed amongst many sources and views on religion. That we had firm and steadfast belief in the Divine is not in question: that we each saw the Divine in a rigid way was in question. These States could ill-afford religious disputes here, and so the great Peace of Westphalia to allow each man his own view on the Divine was carried over. America has always had generosity in spirit towards all those who worship or not as they chose, but neither do we force religion nor irreligion on all. We pay homage to our roots in Divine Guidance, but then must get to the practical business of having a common Nation together with those acknowledged roots. We neither slather religion across those who do not wish it, nor do we remove it from those who gain offense to any homage to our forbearers. The Divine Inspiration for the Nation must lead to the hard work of making just law across society, and those that cannot understand that it was that Inspiration that made such things possible and pay no homage to it, break with the Nation as do those that seek to put in-place a singular view of religion for the Nation as a whole. Both are wrong and contrary to the Nation's history and discourse and corrode that common society that upholds the law, itself.

This Nation has suffered greatly over its time, but we also have a strength in society that is greater than the government itself. Even when things go horribly wrong, and many fall sick and die, this Nation had the resources without the Federal Government stepping in. Strange as it may seem, the Nation looked to itself for disasters, and saw government as the last and least competent to deal with same. The Spanish Flu outbreak did not cause a sudden need to have 'government mandated health insurance', and yet it killed hundreds of thousands in the US and nearly 25 million people globally in the first 25 weeks after its appearance. Those that tended to the sick were hospitals, church organizations, missions of various sorts, philanthropic organizations. Cities, counties and States responded faster than any 'National response' by the Federal Government could have done, as waiting to get those gears in motion would have killed more and caused more suffering than treating the ill immediately. America did, indeed, look to family, town, church, and charitable hospitals to seek aid and shelter from something that the Federal Government could do very little about either in prevention or direct aid.

After the 1906 earthquake in San Francisco, the Federal Government did NOT step in to rebuild the city. State, city and local governments along with industrial and commercial concerns all played their part in removing debris, demolishing buildings, designing building codes and rebuilding the city, which would suffer again and again from that form of natural disaster. Nor did the Federal Government do much about the Great Chicago Fire of 1871 or, indeed, a host of disasters both natural and man made, that would befall the Nation time and again. Apparently when a town or city or county or even the Nation is beset by ill or illness, the first place America looks, quited pointedly, is NOT the incompetent Federal Government. But those lessons were forgotten in the one 'ill' that had no source in Government and no remedy by Government. That would be the Great Depression.

I have looked at that era in a previous work, and will bring out some of the salient points of it here, to look at the appropriateness or lack thereof, of government intervention in such things as the economy. The most startling thing to realize is that the actual decline of the Great Depression was during the period of late-1929 to mid-1933, a bit under 4 years. Only one program put in place by President Hoover, would outlast his Presidency, and that was the Reconstruction Finance Corporation that would see its major spending in that period and then taper off drastically from 1933-41 until it was re-purposed for World War II. All of the 'New Deal' programs beyond that would actually come in the recovery upturn of the economy, without exception. None of them would be the actual cause of the turning point in the economy which was due to deep business restructuring and the start of re-utilization of industrial capacity. That did not, however, stop the adding on of new things to the Federal Government that had never been under its purview before.

The Securities Act of 1933 did not pass until the actual inflection point in the economy itself, and the follow-on Securities and Exchange Commission would not come until the recovery had actually progressed upwards from that inflection point. A raft of other works and jobs programs would face high hurdles and many fell due to SCOTUS rulings. That 'start-stop' concept that came about happened, apparently, in spite of industrial recovery and may not have been, in actuality, adding much, if anything to it. While many do argue that the work to make infrastructure, via things like the Tennessee Valley Authority, also in 1933, would add jobs and security to the infrastructure of the Nations' power supply and rural electrification programs, the utility and need of the Federal Government to do that have not been properly addressed. President Franklin Roosevelt, indeed, had a view that the Federal Government *owned* such electrical generation as water regulation as part of its make-up:
"Never shall the federal government part with its sovereignty or with its control of its power resources while I'm president of the United States."
The Federal Government, apparently, owns all oversight on all power generation in the United States, as seen by President Roosevelt. This is something of a 'power grab' by the Federal Government in both the power generation and direct accountability aspects to it. And as the TVA crosses many State lines, the Federal Government should have a part in regulation, but its role to actually build, run and maintain it are highly dubious at best. The sovereignty of the power resources of the Nation is for the People to utilize as they will, not for the Federal Government to take to itself. Control of the inter-State commerce part of that is up to Congress to decide, but those things that are entirely intra-State are outside of those powers, until Congress put forward that purely in-State dealings in things that have a National market allow it to use its inter-State commerce powers to regulate it. That was the basis of the Raich decision on 6 DEC 2005. Thusly if President Roosevelt was right, any Congress can put forward that all private means of power generation... say buying solar panels for your home... will have an impact on the National power market and thus should be regulated. Do not be surprised if one's own power production needs a meter on it to pay Federal taxes. That should make some individuals uncomfortable: that any means to address environmental concerns require obedience to Federal taxation for something that is free, like sunlight, being converted to electricity. Apparently sunlight can be put through a meter, and it isn't the power companies that can do it, but the Federal government.

One program that was never intended to live past the Depression era was enacted in 1935, again well past the point where the economy was recovering. That was the provision to provide of old-age, survivors and disability insurance (OASDI) better known as: Social Security. Here, again, is something that the Republic of the United States had survived without since 1776, and even with the easing of the Depression and the re-employment of individuals, there was little actual need to remove from the hands of individuals their own ability to provide for their future needs. While there were, indeed, many older workers that were suddenly out of work, that was also true of their younger counter-parts. The idea of OASDI was to remove the older workers from the workforce by a forced retirement system to get Social Security benefits. Unfortunately the first pay-out from the system was on 31 JAN 1940 not only well after the Great Depression had passed but also after the 1937 Recession which had marked the end of the Great Depression. Apparently older workers were *still* expected to undergo forced retirement and end their contribution to the workforce once the Nation was expanding economically before WWII. The post 1937 Recession recovery was robust and growing in its need for workers, with industrial expansion on the rise by the industrial sector.

The two premises of the OASDI system are deeply and highly flawed: 1) that the number of jobs in the marketplace is fixed, and, 2) that life expectancy is fixed. In the Depression these two things were forgotten, with the sudden decline of so many individuals having so little income to sustain themselves. Post-Depression, however, both of these proved false almost immediately with economic expansion going beyond pre-1929 levels of employment and life expectancy continuing to rise even during the Great Depression. Both of these had upward trends since 1900, with only the Influenza Epidemic having a number of years of decreased life expectancy. With those two concepts of Social Security sitting fixed, the economic problems that each would cause, cumulatively, now force this Nation to question the wisdom of having the concept of a 'retirement age'. Life expectancy increases, alone, mean a nearly 14% drop in the number of productive years one can expect to be working as part of one's life. Previous to OASDI, an average individual could expect to spend 45% of their lives in the workforce, and that does not include any time spent as children or teens working. Today the average individual can expect 31% of their life to be in the active workforce. That delta is paid for by transfer payments to the young, working class of individuals to the older workers who have retired. As life expectancy increases, although well below the absolute known limits for human old age, more of that time is spent not working and is subsidized by younger workers.

Strange as it may seem to say, most of the time America has existed was spent with people working to effective old age, and only retiring when they either could not work or their own plans for retiring had come about. The removal of letting an individual decide this and letting the Federal Government do so has been an increased dependence of older individuals on Federal payments and removing self-reliance from individuals to plan for their own old-age needs. Even worse is that the Social Security 'Trust Fund' is a revolving door account, in which no money is put into actual 'Trust' via securities and all payments depend on taxation upon workers. That is not 'Insurance' it is a direct income redistribution from struggling younger workers to older individuals who should be both older and wiser in their handling of their lives. Beyond that, the lack of investment due to the 'Trust' taxation means that income that would normally have either been spent or invested by younger individuals for such things as homes or old age security goes to those who are no longer working and should have prepared for this known eventuality in life: it is called 'getting old' and it is across-the-board and a well known phenomena.

It may have had some basis earlier on, when actually being able to invest widely was difficult for low income individuals, but that era passed with the entry of automated mutual funds for investing, and fractional stock ownership in such funds. While a relatively poor worker of the 1930's did not have such opportunities, that is not true of an entry level worker in 2007 and hasn't been true for a couple of decades. Today's workers no longer expect to *get* any payment via Social Security and plan accordingly with their remaining funds. This 'entitlement' was invented for a particular era and need and now has almost become a 'right' and the Federal Government had very little place or standing to do this when it did. In so doing, however, a real problem happened in the 1940's when numbers of individuals were ready to retire and they were needed for wartime production! As no good deed goes unpunished, this program was removing workers from the active workforce just as they were needed to replace younger men going off to war. To encourage those that would normally retire, a number of 'non-wage benefits' were put in place by businesses and one of them was given a tax write-off by the Federal Government: health insurance.

As John Stossel goes over in Bad Medecine (21 SEP 2007, NY Sun), insurance is the worst way to pay for medical care invented. Prior to the war-time subsidies via tax-code, Americans looked after their own health care directly. Most individuals went uninsured and some purchased forms of what today would be considered 'catastrophic care' plans, although most would fall under the 'accidental death and dismemberment' concept of insurance. Health insurance, itself, while not unknown was not widely used and the need for individuals to understand their own health limited the utilization of health practitioners and medications to chronic diseases or immediate ailments. It should be noted that even the Influenza Epidemic did not cause a rush to 'health insurance', even with the death toll that came with it. By requiring individuals to pay their own way, health care costs were minimized and, yes, often at the expense of long-term health. This did not prevent overall life expectancy to continue to rise even without 'health insurance'. Today the cost of overhead to the 'health insurance' system is entirely due to the 'insurance' part and not the health part. Actual costs to the individual for actual doctor treatment time and not paying for paperwork has changed very little in America. What has changed is the need to keep and manage health insurance records, fill out forms, undergo third party governance of what is and is not good for one's health and, generally, time and effort spent in trying to keep track of all of this. That overhead has now changed the system itself to a document management system that, as a minor function, also delivers a little health care.

When that tax subsidy did not end 'health insurance', previously a little used benefit for high wage workers, was retained and enrollment in it would swell. This causes a systemic distortion in two areas: 1) perceived cost when little payment is directly made for care causing spiraling cost as overhead increases out of proportion with delivered care due to fraud and over-utilization, and, 2) loss of control over one's own health. Both of these are hard to deal with, as 'let the insurance company handle it' has become the catch phrase, but one that indicates little understanding of the cost in 'letting the insurance company handle it'. Additionally the need to practice 'defensive medicine' and order many more tests than are needed to diagnose a condition, so that any malpractice suits will have little chance of standing adds burden into the system. Fraud not only by physicians but by patients that over utilize the system or who seek to cause an error to their benefit via lawsuit add into the expense of health care via 'insurance'. And as the number of procedures increase, the paperwork for each multiplies what has to be tracked by doctors and the insurance companies. To control over-prescribing of medications or fraudulent prescription of same, insurance companies now wield extra-ordinary power over an individual's health and will put down draconian limits on some medications that may be more expensive (due to their paperwork overhead, especially for 'controlled' substances). The result is that while many older medications may get under utilized, in preference to 'newer' and more expensive ones, individuals who need the benefits of the newer medications may not have access to them as insurance companies mandate more paperwork for justification for those newer medications.

Politicians who try to exploit these 'entitlements' or to try and create new 'entitlements' further distort the health care system towards their own ends, while not offering any improvement in cost, overhead or actual care delivery. By making such a system 'universal' and mandatory, the need for 'control' over the use and utilization increases, the overhead increases disproportionately to the amount of utilization and those that see no benefit in it (mostly the young and healthy) feel as if money is being extorted from them to no good nor useful end. We forget that for 'insurance' to be useful, the majority never get a real pay-out on it at any one time. Life insurance has a single-time payout and is a bet that you will die and the insurance company thinks otherwise. Similarly health insurance is your bet you will be sick in a given time period and the insurance company expecting otherwise. You purchase insurance to cover need and eventualities based on individual perception of those. Mandating same indicates that lack of trust in individuals to judge their own need and provide for it. That is government removing personal responsibility from the individual and putting it in the hands of a bureaucrat.

It is very strange to see such things, and yet, when reading Paine there is an eerie foreboding that one can get out of passages he wrote to describe the state of the Colonies just as the Revolution had begun:
The present state of America is truly alarming to every man who is
capable of reflexion. Without law, without government, without any
other mode of power than what is founded on, and granted by courtesy.
Held together by an unexampled concurrence of sentiment, which,
is nevertheless subject to change, and which, every secret enemy is
endeavouring to dissolve. Our present condition, is, Legislation
without law; wisdom without a plan; a constitution without a name;
and, what is strangely astonishing, perfect Independance contending
for dependance.
The instance is without a precedent; the case never
existed before; and who can tell what may be the event? The property
of no man is secure in the present unbraced system of things
. The mind
of the multitude is left at random, and seeing no fixed object before
them, they pursue such as fancy or opinion starts. Nothing is criminal;
there is no such thing as treason; wherefore, every one thinks himself
at liberty to act as he pleases
. The Tories dared not have assembled
offensively, had they known that their lives, by that act, were forfeited
to the laws of the state. A line of distinction should be drawn, between,
English soldiers taken in battle, and inhabitants of America taken in arms.
The first are prisoners, but the latter traitors.
The one forfeits his liberty, the other his head.
Legislation without law, a Constitution without a name, independence contending for dependence, the property of no man secured, nothing criminal and no such thing as treason... that is, unfortunately, an apt description of much of America today.

We have seen this before in America.