Sen. Paul's filibuster and the question

Congratulations to Sen. Rand Paul for utilizing the filibuster on a question that he has been asking for nearly a month and asked of the head of DoJ, Eric Holder, and the White House during that period: in their opinion does the President have the power to order a drone attack against an American on American soil without due process of law procedures?

This is not the question: can the President order someone stopped when they are in the process of attacking the United States?  That is an in-process question where someone is armed, known, dangerous, affiliated with an organization that has already attacked the United States or has otherwise made clear their intention to attack the United States on their own or in affiliation with others.

That, incidentally, is called Treason and has its own due process procedure set by the US Constitution.

And a single penalty after trial and being found guilty of same.

The White House, Eric Holder and Mr. Brennan, the man who's nomination for head of CIA has caused all of this to come out, have all given a big, hearty waffle on this question.  Do note that if this was the previous Administration that the Left, the MFM and all sorts of others would be denouncing that President and calling attention to this question.  Their complicity in partisan, tyrannical ends is demonstrated by their lack of doing anything.  Save Code Pink and the ACLU, I will grant those organizations and any others that have stood up to join with Sen. Paul and his fellow Senators that assisted on this that they have followed on an ethical and moral line of reasoning.  No matter how much you may not like what some of these organizations do, and how insane their motivations may be at times, they are consistent in their insanity.

As for me the question should be self-evident: no, the President does not have that power nor authority to go outside due process.  Going after those actually wielding weapons, planting bombs or hacking into the infrastructure of, say, a major sewage system to put its contents into the drinking water of millions of people, those people should be stopped with whatever force is necessary short of an indiscriminant missile attack.  Anything that has a warhead measured in pounds of explosives, launched from any platform including a shoulder fired weapon from an individual, is a bit much to go after an individual who is not in a tank, not in an APC, not in a hijacked aircraft about to hit a building or other infrastructure component, or in a known and designated bunker or other fortified area.  The potential for the innocent getting hurt or killed in a non-war zone is far too high to be using explosives outside of a testing range  or other designated safe facility utilized for the training of same.

And as to the question of being on a 'kill list', I have addressed that previously as something that has a lack of stated doctrine and procedure with legal framework attached to it.  The Congress can and should play a part in this using their Article I, Section 8 powers under the Letters language as that is the power that is granted to Congress to address and deal with the Private Enemies of the United States and the language allowing Congress the power to set the means by which the military forces of the US operate.  This would allow Congress to name specific groups that have attacked the United States as Private Enemies of the Nation, and that joining such a group is treasonous as it is one that has waged Private War on the US as defined in the Law of Nations.  Further it could tell the President that individuals of that organization, foreign and domestic, are to be publicly put on a list of those individuals to be brought in by any means necessary, apprehended when feasible overseas, and that these individuals are admonished to turn themselves in to any US Embassy or any US military base or organization for proper tribunal or trial.  Congress could place the general activities of 'terrorism' as those of 'piracy' and put forward, via legislation, that all such individuals are engaged in Piracy when they attack the US on their own and not as part of a Nation.  This would actually allow the removal of the cumbersome terrorist statutes and embrace the pre-existing framework of Piracy trials which are also a known part of the international framework of understanding between Nations.

These things would then set a basis for doctrine of apprehension for the Executive Branch and also define when private individuals who are actively part of an organization attacking the US may be attacked, and that other individuals or organizations, public or private, that are aiding and abetting such hostile groups or individuals are to be put on a separate list so that proper legal proceedings can go forward to freeze their assets whenever possible and seize them once proper legal recognition and status is done via trial.

Thus I applaud Sen. Rand Paul's filibuster.

I also humbly suggest that he start legislation to finally get a hard and fast set of legal understandings put forward to properly define and scope out just what a President can and cannot do with drones and other unarmed vehicles in the pursuit of 'terror' groups overseas.  Congressional input and designation of groups is necessary, and the President will then have to ask Congress to add or remove organizations to such a list as this is a WAR POWER of the Congress at work.  That would then set a methodology that is public and well understood on who is on such a list, and what recourse they have to turn themselves in for proper legal procedures be they citizens or foreigners, at home or abroad.  This would then involve all three branches of government and could even set up an initial tribunal system to find out just who is and is not a 'combatant', with the military running such under the Geneva Conventions and defining that 'terrorism' falls under the 'Saboteurs and Espionage' trials for military affairs.  Those trials are well known and understood, and have a single outcome when guilty, and it is immediate and summary in nature.  That would also clear out Gitmo and allow the US to shut it down once the last of the detainees are processed.

These things are things that can be done by a Senator or Representative and work with others to put legislation forward and move it through Congress.

That is how the entire thing is supposed to work.

Best to remind everyone of that while there is still time.

Syria must go–short and sweet of it

Who to support in Syria?  Should we support anyone?  Why or why not?

I've been asked by a few people what my solution would be in Syria.

First we do have to understand that the regime is a tyrannical horror.

Second that al Qaeda/Muslim Brotherhood are no better than the regime.

Third that the Iranian Foreign Legion (aka Hezbollah) is just as bad, as are the Iranian Revolutionary Guards.

You don't want to help ANY of these groups.

Not a one of them.

It must also be taken into account that the regime is putting de facto control of the North East of the Nation into the hands of the Kurds.

Also that the Iraqi Government has found that someone is funneling lots of arms through the Kurdish parts of northern Iraq into Syria.  Mostly over-age Soviet era stuff.

So what should the US do?

Well, helping the Kurds to just keep civil order in the North East would be one thing, I guess.  Maybe bollix up the Middle East and the dreams of a Caliphate by having a form of Kurdistan (or 'Greater Iraq' or some other verbiage) come into being on the ground (not legally, just as a way of doing business).  The Kurds 'get' being rational, civilized, multi-cultural and multi-religious... their territorial flag in Iraq is that of the Yezidis whom they protect.

If you want anything to do... like, say, funnel over-age Soviet equipment via the black market through the Kurdish parts of Iraq into NE Syria, that would be just fine.

Not that I think that the US is doing that.  That would take foresight, intelligence, thought, not having a knee-jerk response, looking to the long-term stability of the Middle East by totally changing the playing field.  The Obama Administration is patently incapable of that sort of thing.

Israel is probably behind that if I had to guess.  Subtle play, long-term benefits, totally their style.

OK, back to Charlie-Foxtrot land, of what should the US do.  Not what we will do, mind you, but what would be the perfect US response to this stuff?

Here, I'll give you a guess:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

How do you get to that boldfaced part?

First you have to be free.

Second to be free you must secure your freedom as an individual.

Third you may use any means necessary to secure your freedom to protect your life, extend your liberty and pursue your happiness, which requires that government be held accountable by the governed.

There is one problem in Syria: it has been a police state for decades.

For all the bozos running around with guns, they are backed by other forces and can impose their will on the population without its say so through force of arms.

Now lets go to a few other people on this subject:

AND NOW, FRIENDS AND COUNTRYMEN, if the wise and learned philosophers of the elder world, the first observers of nutation and aberration, the discoverers of maddening ether and invisible planets, the inventors of Congreve rockets and Shrapnel shells, should find their hearts disposed to enquire what has America done for the benefit of mankind?

Let our answer be this: America, with the same voice which spoke herself into existence as a nation, proclaimed to mankind the inextinguishable rights of human nature, and the only lawful foundations of government. America, in the assembly of nations, since her admission among them, has invariably, though often fruitlessly, held forth to them the hand of honest friendship, of equal freedom, of generous reciprocity.

She has uniformly spoken among them, though often to heedless and often to disdainful ears, the language of equal liberty, of equal justice, and of equal rights.

She has, in the lapse of nearly half a century, without a single exception, respected the independence of other nations while asserting and maintaining her own.

She has abstained from interference in the concerns of others, even when conflict has been for principles to which she clings, as to the last vital drop that visits the heart.

She has seen that probably for centuries to come, all the contests of that Aceldama the European world, will be contests of inveterate power, and emerging right.

Wherever the standard of freedom and Independence has been or shall be unfurled, there will her heart, her benedictions and her prayers be.

But she goes not abroad, in search of monsters to destroy.

She is the well-wisher to the freedom and independence of all.

She is the champion and vindicator only of her own.

She will commend the general cause by the countenance of her voice, and the benignant sympathy of her example.

She well knows that by once enlisting under other banners than her own, were they even the banners of foreign independence, she would involve herself beyond the power of extrication, in all the wars of interest and intrigue, of individual avarice, envy, and ambition, which assume the colors and usurp the standard of freedom.

The fundamental maxims of her policy would insensibly change from liberty to force....

She might become the dictatress of the world. She would be no longer the ruler of her own spirit....

[America's] glory is not dominion, but liberty. Her march is the march of the mind. She has a spear and a shield: but the motto upon her shield is, Freedom, Independence, Peace. This has been her Declaration: this has been, as far as her necessary intercourse with the rest of mankind would permit, her practice.

- John Quincy Adams

Got that?  Good.

First – Back liberty, give our benedictions, but do not force governments upon others. They are to figure it out for themselves, or not as the case may be.

Second – Enlist under no foreign banners. Right, help NO faction in Syria. Nor its government. Not a one of them.

Third – It isn't our fight.

Now for the next bit:

Firearms are second only to the Constitution in importance; they are the peoples' liberty's teeth.
- George Washington

And there you have it.

What is the course of America?

Well how are people supposed to secure their liberty and then form government by consent of the governed?

With arms.

What should we do?

Arm up the civilian population.

I suggest dropping cases of AK-47's and 7.62 x 39 ammo so that every man and woman in Syria can have a firearm, a few thousand rounds of ammo, and then go about figuring it out for themselves and securing their liberty from tyrants.  Maybe drop leaflets far and wide that if you can't get to a normal drop zone to put out a big 'NEED GUNS AND AMMO' sign done in 3' letters in a nearby field and we'll get to you as soon as we can with an airdrop.

The rest, as they say, is logistics.

If, once they've done so and formed up something like a government and ask us to help figure this liberty stuff out now that they have it for the first time in LIVING MEMORY then we should, indeed, help them.

A fully armed population can go about securing its peace pretty easily.

Sort of like what is flowing through Kurdistan, just simpler and a bit more direct.

Put 'MADE IN USA' stickers on everything, to drive the point home.

We don't like the government, we detest the radical factions, but we still love the people.

It is a damned sight better than supporting tyrants, thugs, or radical islamists terrorists, that's for damn sure. If you want to back a CIVIL population, then back the Kurds. They aren't harming anyone but tend to get shot at by everyone. How about supporting civilians for a change, and not governments, thugs, terrorists, kleptocrats and tyrants?

Do we mean this or not?

Put up or shut up.

Don't like the answer?

Figure it out for yourself if you don't like it.

10 Minutes Into The Future

I thank my lady for the title of this article! It was and is apt.

For many the concept of cyberpunk dystopianism was first introduced in Max Headroom, seen in the Max Headroom series on ABC from MAR 1987 to MAY 1988.  With fourteen shows produced, 13 were aired in the US and the 14th was aired as part of the Australian run of the series. It is a blended-season program much like The Prisoner by Patrick McGoohan which ran 17 episodes. Both programs had a first and second season squashed into a limited production run.  Max Headroom had an abbreviated first season and second season while The Prisoner was scheduled for a second season but had that cut and McGoohan wanted to wrap up the entire thought schema in one season a bit longer than normal.

Max Headroom: 20 Minutes into the Future was a tv-movie in the UK, and the tagline '20 Minutes into the Future' was seen at the start of each episode of the series. Many of the elements seen in Max Headroom draw their lineage through cinematic productions of dystopian futures.  The most notable of them is Blade Runner (1982) directed by Ridley Scott, and the entire look of the city of Network 23 and Max Headroom could fit seamlessly into that dystopian future without missing a beat.  The same low level social dynamics of a post-futuristic world gone to ruin is part and parcel of both, down to fires in oil drums and the real lack of cars at street level.  So, too, are the social interactions between levels of society similar from the highest corporate level (Dr. Eldon Tyrell in Blade Runner and Ped Xing in Max Headroom) through the techno-geniuses that support them (J. F. Sebastian in Blade Runner and Bryce Lynch in Max Headroom) all the way down to the lowest level operatives of Matt Deckard and Edison Carter, who are the draw and appeal for their differences in being perhaps not human and more than just human both at the same time although in starkly different ways.  One can picture Matt Deckard confronting Roy Batty and then having Edison Carter land in on the confrontation with the help of Blank Reg and Big Time Television.

For all of that there are other precursors to cyberpunk television beyond just Blade Runner, although it hands off so many visual cues that the relationship is hard to miss. What makes it distinct from the 1980 made for TV movie Brave New World, is that the Aldous Huxley dystopianism is one of anti-septic neatness which is reflected by the anti-septic nature of thinking.  That world is a world which, however, bears resemblance to both Blade Runner and Max Headroom in that books are absent not because they are repressed or destroyed, like in Bradbury's Fahrenheit 451 which was made into a BBC film in 1966, but because they are unwanted by a population now beyond learning.  Like in Fahrenheit 451, however, television now plays that central role which makes for the dystopian Max Headroom vision, and it is far more powerful than the multi-wall arrangements in Bradbury's work and closer to the Big Brother two-way dystopia of Orwell's 1984.  Much of the television movie adaptation in 1954 or the regular movie adaptation of 1984 in 1956 carries through as cinematic reminders in later works, often with the stark external scenery updated to cast a pall in colors that are dark and muted in modern works, of which Max Headroom takes part.  Coming from that lineage of Big Brother, two-way television, corporations blending into the State, and the removal of knowledge media from the world, Max Headroom gives us a glimpse of the cyberpunk pathway.  This is a pathway that has an endpoint in other films like Mad Max (1979) and Mad Max 2: The Road Warrior (1981) complete with mohawk haircuts and lots of leather jackets and leggings.

It is amazing to think that in the span of 1979 to 1982 the entire cyberpunk dystopian future was encapsulated visually and thematically with the decaying and corrupt State with corporatism (and one can't help but see Rollberball (1975) as a precursor to this). From a 1984 collapse through the time of Max Headroom and Blade Runner is a part of this arc.  After that then goes through a further decay because they depend on resources that are failing, until the world falls into complete ruin in Mad Max and Mad Max 2.  The relatively anti-septic dystopian vision of an Aldous Huxley requires a system that is, itself, so highly dependent upon automation and resources that it cannot last. The enforced ignorance and numbing of the senses are preludes to the ideas later reviewed by other dystopian works,the outcome of which gets a transition phase seen in A Clockwork Orange (1971) where Anthony Burgess juxtaposes wartime lack of morality with everyday life and puts them together.  Stanley Kubrick in many ways sets the tone for the later dystopian works in that film to show a highly decadent society with highly authoritarian State on the verge of internal collapse as the State comes to embrace barbarism fully.  In Max Headroom those who see such barbarism are in the minority, but have Edison Carter to intrepidly risk life and limb to get the story of how the corporate world and utilization of State power by Network 23 is going wrong.

If there is anything that Max Headroom does represent it is that cry against the dying of the light, the collapse of the civilized State into its corporatist system which is, itself, not sustainable without a civilized population at its core.  That State has already removed the off-switch from televisions and utilize two-way technology to track ratings and, thusly, power.  Blood games (ala Rollerball) are not embraced while shrugging off the deaths of citizens due to commercials is seen by the new generation of elites as the price to pay for ratings.  From that and the body banks, lifted nearly directly from Larry Niven's Known Space works, comes a lowered valuation of life even when the birth of a baby is still seen as a special event even though the backdrop of the life that child will have is a grim one.  This is dystopian fiction with a bite to it and the slow degradation of man to becoming viewer in the hands of the media is one that begins to overwhelm, indeed not just co-opt but buy out, the State.  The adoring media of the Left today becomes the controlling media of politics and society tomorrow.  Big Brother is Network 23, indeed Orwell only lacked putting the BBC behind Big Brother to complete that circle in 1984.

For all of the darkness of a world sliding into Mad Max realms, there are glimmers of a future that doesn't need to be this bad.  First and foremost is that the Tyrell Corporation, Big Brother nor the Fordian State of Brave New World all lacked an older cohort that remembers not just ethics but displays them.  In this Network 23 has a person that is unlike all the others in a position of power in those dystopian futures: someone who has qualms about what he has helped to create and sees it as toxic.  That person is not Edison Carter, per se, nor Theora Jones his controller to get him to stories, nor Murray their producer, all of which are front-line functionaries to the programming for live shows which can be replaced or interjected at a moment's notice.  That person who is so different is Ben Cheviot who demonstrates ethical underpinnings in pulling lethal commercials and allows for the complicity of Network 23 working to get blood sports into the line-up even against the pull of ratings. For all the fun (or not so fun) parts shown for everyone else in the system, Ben Cheviot has a keen awareness of just what can and cannot be done to start showing the problems of the system that he has helped to promote.  Edison Carter would be a top, and soon dead, journalist as seen in the first program if not for Ben Cheviot willing to back him against the rest of Network 23's interests of the moment. While Ben Cheviot got to the Board of Directors of Network 23 he must have demonstrated competence and ability to deal with competitors to a large degree as it is a cut-throat position just to be on that board.  By having a better 'feel' for viewership and how ratings work, he is able to become the Chairman of the Board and allows Edison Carter to start showing the underbelly of Network 23, the State and corporations... because it is good for ratings.  Ethics sells.  Ethics are power when chained to moral certainty.

Edison Carter, Theora Jones, Murray, Blank Reg and others also show this form of moral certainty and ethics that go with them.  In many ways Blank Reg (a Blank is someone who has gotten themselves erased from all records to be truly free) lives that life of moral and ethics, live or die, continually and is an energetic force to be reckoned with.  Although pirate station Big Time Television may not get the ratings, it does work a wedge into television of an older sort that he still remembers.  In this way Blank Reg is the counter-part to Ben Cheviot, although the two could never be mistaken, their firm standing upon what they see as right and wrong is not only similar but their requirements have put them in crucial positions on either side of the Network/public divide in which the State is part of the Network.  Blank Reg isn't just hitting at the television level but at the level of a Blank, which is to say trying to get people to actually ingest more than television as part of their thought processes.  Like Brave New World books aren't burned, just not circulated or used, they are seen as relics of a past long gone and no longer needed.  Yet it is Blank Reg who tries to get people interested in reading (are they even literate anymore?) and touts books as 'a non-volatile storage media... you should have one'.  In our modern age of e-readers what will become of books?  Not text on screen but printed books?  That non-volatile storage media is immune to EMP and CME effects, they will survive them while your e-reader, your PC, your laptop, the servers that serve up text, and the rest of the modern infrastructure goes away.  Hardcopy back-up can be burned but cannot be erased, cannot be changed once printed, and if carefully tended can last many life times.  Your PC is obsolete the day you buy it.  Ditto your cellphone and all other digital media.

The people of that digital media are represented by Bryce Lynch, late teen techno-nerd, and his work for Network 23.  Bryce is somewhat detached from the goings-on around him and in his own self-created world of technology.  He is more than willing to create commercials that kill (although only as a side-effect of those who no longer exercise ANY), more than able to take a brain-dump of Edison Carter for the old Chairman of the Board to protect him, and then willing to help Edison Carter at various points throughout the program.  In many ways a family style dynamic between Edison, Theora, Bryce and Ben form, although it is very underplayed it does have effects on Bryce to both humanize him and show that he does care about people close to him.  He takes part in the creation of digital personalities from direct brain dumps, starting with his pet parrot (who shows up in the first episode and then is replaced by a screen of the digital parrot thereafter in its cage) and ending with Edison Carter which yields the namesake of the show: Max Headroom.

Max Headroom is only tangentially the star of his own program, with Edison Carter (the source for Max's altered ego) being the real one.  Max is a completely digital being (although there were no digital effects when the series was produced to make him, so it was done through SFX with make-up and only a digital background done for later episodes) who is born in the lab of Bryce Lynch.  Max's home is the Network 23 internal network which has external feeds to two-way televisions.  Thus Max starts out with the ability to grow in capability and, when he is threatened with erasure, he can leave Network 23 for the rest of the external system.  Max, as Edison's altered ego with far fewer inhibitions, is in turns smarmy, insightful, comical and devious and a total creature of the Network ratings system.  Yet he is also its critic beyond mere critique, as he asks what are the effects of this visual pap that is pushed out to the world at large? 

For all of the sometimes juvenile humor of Max, he is also a person that grows beyond that rather shallow exterior of head and shoulders, giving insightful questions into the nature of authority, television, the State and the human condition.  While he may no longer remember much of what it feels like to have a body, Max Headroom grows into this larger system that gives him more than a physical presence and one that is at once as omniscient as Big Brother and as limited as the humor of a teenager.  Scary in one regard, yes, but he does not have a controlling nature and is as irrepressible, and yet open, as Edison Carter.  For an altered ego he is still learning about the Id and Super Ego, those parts necessary to create a solid moral view with ethics and compassion.  That he has that capability and shows it is beyond any doubt, because Edison Carter has them.  That these are skewed by his environment is also without a doubt as Max Headroom is at once more and far less than human, and for all the faux humbleness of a game show host he often displays real doubts about himself and who he is.

So if, when the show was aired, it was 20 minutes into the future where is it now?

My lady answered 10 minutes and she is absolutely right on that in many ways.

What would it take to subvert the modern Internet into a purveyor of Network 23 (and other networks in the power grab)?  The answer is very little: a government power grab in support of television over other forms of communication, probably done by 'emergency measure' as is hinted at in 1984.  Two-way television is, essentially, here in many regards but to be truly controlled as is seen in 1984 or Max Headroom would require a wholesale change of television sets... without off buttons.  And as the Internet now is part of the cellphone network, it would also control your two-way digital phone as they already do for emergency tracking.  Adjust the software and the 'off button' goes away.  As a 'government emergency' requires control of information, any information deemed 'subversive' or 'anti-government' will be removed as 'dangerous speech'.  Like the blog post you are reading.

To be clear the Internet is a threat to centralized power as it is a distributed, shared set of networks (a network of networks) that works via a set of common address standards.  Any government that can get a hold of the address look-up tables can, quite literally, partition the networks from each other.  By blocking off entire blocks of networks and then screening them, speech and thought that isn't sanctioned is restricted.  What happens after that is a promulgation of 'sanctioned' software that only allows for connections to sanctioned blocks of the network.  Like Network 23 and its cohorts in Max Headroom.  With that said there is a set of hacker skills that has permeated society as, from the very first episode, we see that Theora (Edison's controller for live feeds) has skills to get past common and everyday computer security not only inside Network 23 but outside of it as well.  In contrast Murray, members of the Board of Network 23 and various others do not have such skills to any great extent, but members of the Blank community do as it is a survival necessity.  Edison Carter has rudimentary security skills, mostly to deal with physical security, and his friends also have a range of skills from simple deception of security systems to skills close to those of Bryce Lynch.   

Getting around security blocks to get information is one of the skills necessary in the newsroom, necessary to criminals, necessary to the Blanks and only the elites can do without even the basics of them.  In a post-Internet segmented world the ability to get around the segmentation and through security routines: the very security that the Networks and others seem to think they need make common trespass against such systems widespread not out of malice but to just get work done and no one thinks anything is wrong about it.  Even when they go after the most secure records, it is done with an acknowledgement that there are penalties, but nothing morally wrong about it.  Pervasive security doesn't make anything more secure and, contrarily, makes going against security measures common place.  For all the security that Network 23 and others seek, they just add complexity to getting around such measures and get no real security against the mildly determined.

At the top of this realm is Max, although he is unskilled at security circumvention he is born directly into this cyberworld.  He can and does run afoul of security measures, yes, but he also demonstrates an ability to move from network to network, area to area, building to building without much regard for who owns what or what security measures they have in place.  If the centralized network headquarters are bastions of security, the outlying network is a hodge-podge of everything from insecure televisions to relatively secure private systems.  And make no mistake about it, in the world of Max Headroom all security is relative and no one has planned on a sentient cyber entity moving through systems, which raises a whole question of just what is security to such a being?

The physical problems of any of the relatively advanced, that is to say further along in the timeline of decay, worlds that are represented by the generic continuum that coalesced in the late 1970's and early 1980's is one that comes quickly to our civilization once basic maintenance and upkeep can no longer continue.  Cities like Gary, IN and Detroit, MI starkly show how entire sections of cities can go to ruin in less than a decade through depopulation alone.  The hints in Blade Runner and Max Headroom of A Clockwork Orange style elitist inculcation of barbarism leading to decay and retribution would leave our current physical infrastructure in such ruins as seen in those worlds.  Even with such relatively minor organizations (or lack thereof) like the current OWS movement (backed by Unions, socialists, communists and anarchists) the decay inside those encampments has shown rapes, murders and the spread of communicable diseases that are at a first point on a decay continuum.  If the goal of those backers is to get city blocks set ablaze with radical and relatively pointless intent and violence, then the dystopian continuum at A Clockwork Orange will be set and in place.  It is but a short transition through a 1984 regime that then seeks to restore some order and, lacking that, collapses back to corporatism of a Blade Runner or Max Headroom style outcome. 

This outcome is not hard to get to, at all, and while those who seek power may think they can get it permanently, what they actually get is transient power as no centralized system can run a complex world.  The problem in bringing on the moral and ethical decay necessary to get to that point is that it cannot and will not stop at the lowest levels, no matter how many are killed in the attempt, because the decay has already started by those who brought it on.  When you welcome in barbarism as a means to an end you don't find yourself civilized once you have done so as you have let go of the very support of civilization necessary to be civilized.  In the world of Max Headroom there is a desperate attempt to retain and spread the necessary morality and ethical backing is being done by a very few at Network 23.  We never learn much of how the world got to the point of the Max Headroom world, which points to just how unpleasant the transition was.

The trick is not to get to that point in the first place and to retain civilized habits and remind our fellow citizens of those necessary habits and costs to oneself as the price to have a technological civilization.  Civilization isn't free, and your freedom is without price.

Student loan bailouts? No, but there is an alternative...

Of the true stupidity of OWS there is the idea of 'bailing out' those with student loans.

This will not actually address the problem of the high cost of education nor will remove the problem from the system, nor does it hold one to their agreement for paying back one's debts.

And, yes, I didn't like the 'bailouts' of the 'too big to fail' organizations, either.

So when this topic was posted at Hot Air, I put out what an actual solution is to stop the high cost of higher education in its tracks.  It would require that the OWS people actually mean what they say about what they see as their loan problems.

Here is the unadorned commentary, such as it is, spelling/syntax/logic errors all included for the amusement of the reader because all of this is written on the fly:

Say, if these people feel that they didn’t get the value promised them by an education they should sue all of those who promised them a high value education.

Really, they should writed down every written promise of having a ‘career path’ via these high priced educational institutions, with the names of who promised it and when. Push that all the way to those leading the tours for the place you went to.

Then work with all the other people who have similar views and start to put a master list together naming all the institutions and all the people who promised the educational value and what they charged for it in the way of tuition, books, dorm fees, etc.

Form a class action lawsuit against the whole kit’n'kaboodle.

Sue their butts off, including the endowment funds.

Get your money back from these places.

Impoverish them.

Put them out of business because they are not selling a product they promised to you.

Occupy a law library and get to work, you may need to get a few part time jobs to support yourselves while you gather the info and put the briefs together, but in 6 months every single high flying university and all of those pushing the high cost/low value education on the docket to figure out just how they will defend themselves from their rapacious cost structure for a bloated bureaucracy.

Question Authority! Get those university personnel on the witness stand!

ajacksonian on November 20, 2011 at 7:42 PM

This is how you hold people to account in America, isn't it?  You sue their butts off.

Yes this means that OWSers must un-occupy parks, work with each other and start to occupy law libraries and look for part-time jobs to sustain themselves... and do something PRODUCTIVE WITH THEIR LIVES instead of bitch/moan/whine/complain and forever feel that they are 'entitled' to something.  Nope, you are 'entitled' to life, liberty and the pursuit of happiness and the latter means 'happenstance' or 'fortune'.  Heaven help you if you actually catch happiness as it will make you miserable the moment you realize it has slipped through your fingers and you are chasing that bugger again.  You had it so good for that microsecond...

Really it is the educational institutions and their Leftist academics that are the cause of this problem.

OWSers should want to hold them both to account for the high cost of unproductive, useless higher education.  Note that actual scientists and engineers are lacking at OWS, along with mathematicians.  Why?  Real jobs with real pay are involved at the end of those educational cycles.

You want an education that leads to a real, paying job?

Go to a trade school.

There are lots of jobs going begging to maintain our infrastructure and you can nearly set your own pay as a welder, electrician, plumber... hell, even pipe-fitters and bricklayers are doing pretty well, if you can stay out of a Union, that is.

But if you feel you got rooked on a product or service you purchased?  Sue them.  Sue them until they are white due to lack of money.  Those selling such products are fiends and no friend of yours.  Prove it in a court of law.  Put up a site to garner funds for your legal team to actually, and for true, address the REAL bad actors who demand such high payments for this shoddy educational product.  Put up a page tracking the funds that will roll in and get to know who your REAL friends are.  Surprisingly you in OWS will find that the $500 K that those inside your movement are seeking to take for their own needs are looking at chicken feed compared to what you will garner for bringing down the corruption inside the educational system.

It will take guts, stamina and courage to confront these institutions and tell them how badly they have under-delivered on their promises to you as an individual and to all of you as a class in a class action lawsuit.  Take all of those promising that college is a path to a sure job and career to court.

ALL OF THEM.

Without exception.

Really, which would have done you better in your life: a poli-sci degree from an Ivy League institution or a two year certificate that certifies that you actually, and for true, can weld?

Heck, I'll toss in $25 to your legal fund!

Practice some accounting on that fund, though.

Keep the grubby, so-called 'authorities' within your own 'movement' away from it.

Get some payback and get paid back, while you're at it.

I'll help with a bit of cash.  Maybe a couple of meals, too, if you are nice about it.

Need some clothes while you are whiling away your hours in a dusty library?  Gots spare work clothes for you.  You don't need a suit and tie to file a petition in a court.  And damned if paper isn't cheap and the ability to get to a word processor to do the typing is close to damned near free... and is pretty much free if you have a word processor already as many court documents have gone electronic.

Get what you paid for!

OR GET YOUR MONEY BACK WITH INTEREST.

Because, you know, revenge is a dish best served cold.

And I can tell you that those educational institutions, their endowment funds, the entrenched bureaucracy and some few of your professors truly are ripe for the picking.  And a few of the really high flying ones should go away permanently on the pay-back side.  Hit them where it hurts.

Wall Street?

Small fry.

Go after the big money people and the ones who have actually hurt you.

Gather the evidence.

Show you are doing so.

Ask for help.

And then sue them until they go broke.

Heck, its good job experience you can put on a resume to help track down the liars, their promises, get them all as evidence and then take them to court.  You can't PAY for such experience.

But you can make the actual miscreants pay.  Yessiree.

If, that is, you stop LISTENING TO THEM and get them on the witness stand and QUESTION AUTHORITY UNDER OATH.

Never so cold as a court of law, hey?

Put up a legal fund, get out of the parks and start getting the evidence together.

I will gladly PAY to help you in that.

It will be money WELL SPENT and your service to your fellow citizens will be beyond any price.  Though there will be a price to be paid by those who lied to your face about the value of the so-called education they sold you.  Plus you should get enough to pay your loans back once you hit those pushing them right in the pocketbook.

Really, the only losers are those pushing the bad service and product.

You become a loser by complaining.

You become a citizen by doing the right thing, staying within the law, and getting your money back.  With interest.

Then you can pay off your loans.

You'll have a worthless degree, yes, but you will have experience and be out of debt.

That is what you want in OWS, right?

Debt-free with experience?

Do it the right way.

Do it yourself.

Simple solutions for complex problems

As the discussion of what the States might do during a Constitutional convention has been kicked around for a few years and is getting some traction (as seen at Instapundit), here is a quick and simple amendment to consider:

Proposed Amendment

1)  All regulations shall be approved by a simple majority of Congress.

2) Any regulation may be removed by either house of Congress.

3) All legislation for all laws shall be reauthorized every ten years, to include all regulations.  All prior government laws and regulations shall be reauthorized on the final number year they were first instituted.

4) All directly granted bodies mentioned specifically in the Constitution are exempt from reauthorization.  All directly granted bodies are not exempt from regulatory reauthorization procedures.

This concept is known as a 'sunset' law that would sunset every provision ever passed by any Congress or regulatory body formed by Congress so that Congress must take active steps so as to re-affirm that these bodies and regulations are actually necessary.

The ability to get a simple majority in either body of Congress to strike down regulations should be enough to curb offending regulations.

Do note that this proposed Amendment is incorporated, in part, to the States so that every State gets a 'sunset' law.  It is up to the States to consider which bodies they have that pass laws so that the proper ten year sunset cycle is implemented in each State for State level concerns.

This will keep the US Congress and State legislative bodies very, very busy for a decade to clear out the backlog.  And anything that isn't reaffirmed goes away.  The default position of any government is that it only has power on approval of proper legislation passed and reaffirmed on a frequent basis.  Do note that this includes ALL government activities, and only those mandated by the US Constitution or State Constitutions must be kept, but their regulatory ability is also under scrutiny.

Sunshine is the best policy for transparency as a disinfectant.

Sunsets allow for old ideas to pass away and only those positively reaffirmed will survive any nightfall, others live like mayflies and die out very quickly, indeed.

All agree or none shall pass - Part 2

The following was originally posted at The Jacksonian Party.

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

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

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

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

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

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

Amendment I

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

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

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

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

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

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

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

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

And from the Bill of Rights:

Amendment IV

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

All agree or none shall pass

This article was originally presented at The Jacksonian Party.

This is an article of The Jacksonian Party.

On 25 MAY 2010 Glenn Reynolds linked to an interesting, indeed compelling, article by Nicholas Rosenkranz on The Subjects of the Constitution.  This article will be followed with another on The Objects of the Constitution and a later book to explore this conception of judicial review of Constitutional law and cases.  I have previously written on this topic looking at formulations of Constitutional Structure with Strictly constructed or not?  In that I attempted to discern the differences between Strict Consturctionism, Originalism and Textualism.  I do not come to this topic from the law perspective, per se, and have no legal training just some common man familiarity with law. The Constitution is, in and of, itself not law, save for the few crimes and penalties mentioned within the text (ex. Treason and Impeachment).  The Constitution is a system of powers that are limited, enumerated, and sovereign within the limitations and enumerations, that is to say they are the exercise of sovereign power by the Nation of the United States of America.  It is a system of how one makes and designs a government to make laws, how that government works and just who gets which powers.  Thus it is a system of rules agreed upon by those who agree to abide by them and they state who they are in the Preamble.  Note that the Preamble is a statement of those individuals and what they agree to do and only invoke the Constitution as one means to do so at the very end of their statement.

To me this is a form of mechanical design theory (Wikipedia, YMMV):

In economics and game theory, mechanism design is the study of designing rules of a game or system to achieve a specific outcome, even though each agent may be self-interested. This is done by setting up a structure in which agents have an incentive to behave according to the rules. The resulting mechanism is then said to implement the desired outcome. The strength of such a result depends on the solution concept used in the rules. It is related to metagame analysis, which uses the techniques of game theory to develop rules for a game.

Thusly the Constitution can be viewed via metagame analysis, and is a set of metarules for making the rules of a game, which we call the federal government and how it works internally and externally under the Law of Nations conception of Nation State structure.

Nicholas Rosenkranz utilizes Formal Grammar of the English Language with the Subject, Verb, Object agreement system as its basis thus forming a systemic functional grammar basis analysis of how Constitutional law cases should be evaluated.  SFG is described thusly (Wikipedia, YMMV):

Systemic functional grammar (SFG) or systemic functional linguistics (SFL) is a model of grammar developed by Michael Halliday in the 1960s.^[1] It is part of a broad social semiotic approach to language called systemic linguistics. The term "systemic" refers to the view of language as "a network of systems, or interrelated sets of options for making meaning";^[2] The term "functional" indicates that the approach is concerned with the contextualized, practical uses to which language is put, as opposed to formal grammar, which focuses on compositional semantics, syntax and word classes such as nouns and verbs.

Systemic functional grammar is concerned primarily with the choices the grammar makes available to speakers and writers.^[1] These choices relate speakers' and writers' intentions to the concrete forms of a language. Traditionally the "choices" are viewed in terms of either the content or the structure of the language used. In SFG, language is analysed in three different ways (strata): semantics, phonology, and lexicogrammar.^[3] SFG presents a view of language in terms of both structure (grammar) and words (lexis). The term "lexicogrammar" describes this combined approach.

Notice that such an analysis can be done fully within a mechanical design theory approach as Formal Grammar for English, and analysis from same, are mechanism design systems.  In fact such a systemic analysis can yield structure beyond the mechanism, itself, and reveal much of the operation of the mechanism as designed via its grammatical composition.  The article does not utilize the logical notation system that the metarules can be boiled down to, but sticks to a more conversational approach that is more a reminder of simple sentence construction classes than of a Law Review article (although it is gloriously footnoted throughout).  Thus the objective of the actor is to present a highly coherent presentation of grammar as applied to the Constitution via the activity of presentation.

This analysis is one of the most compelling of the structural analysis reviews of the Constitution that I have run across as it gives an inherently logic-based review of the Constitution via its grammar and syntax.  Thus a key change in judicial review that started with the Progressive Era in full swing was the movement away from the Supreme Court to say who violated the Constitution and when they did so.  This shift from actors taking action at a discrete time starts with utilizing imprecise language for the basis of Supreme Court judicial reviews and even creates a blurring of the lines of who and when the Constitution to the point that statutes are seen as unconstitutional, not the actors who created such actions.  As all actions are taken by an entity, for such an action to be unconstitutional, then the entity that is doing that is in violation of the Constitution by the enumerated and limited powers it defines.  There are only three actors in the federal government:  Congress (the Legislative Branch), the President (the Executive Branch) and the Supreme Court (the Judicial Branch).  There are unconstitutional actions outside the federal government (the various limitations on the States), but for simplicity the systemic approach is used on the federal government and, once learned, then can be applied to all levels of Constitutional cases and law.

Modern Supreme Courts have moved from identifying actors, or who violates the Constitution, as a means to not get involved in political fights, by and large.  That means the imprecision of their rulings can and do create confusion about just what is and is not Constitutional and on what basis.  This means that proceedings that should be questioning a law's Constitutionality may be addressed to the wrong actor by plaintiffs, and the Supreme Court has allowed such proceedings which further confuse the issue of who violates the Constitution and when. 

Thus, in something like the Raich case of medical marijuana in California, the defense team argued that the violation of the Commerce Clause was done by the Executive Branch.  The Commerce Clause has a particular actor attached to it and that is Congress, thus any violation of the Commerce Clause in its extent of reach is not one of the Executive but the Legislative branch of government.  By attempting a Due Process procedure case, they did not bring a Congressional power over-reach case.  The difference is that in the Executive a singular action on a Constitutional law is the violation at one, singular time while in the Congressional instance the entire law is in violation from the moment it was passed.  The Executive, when acting within all other Constitutional constraints cannot be the target of a Commerce Clause case: only the Legislative branch and Congress by name, have the power to utilize the Commerce Clause and direct others in how to execute it.

In trying to blame the Executive on over-reach and admitting that Congress had the power to regulate interstate commerce, the case against intrusion into intrastate commerce was not made as that would be argued as an over-reach of Congressional (not Executive) power and a direct violation of the Tenth Amendment.  By making the procedure an enforcement case, the Raich case was not doomed to failure, but was doomed to see its Executive part of the case fail as they did not address the power being used at the direction of its holder, which was and is Congress.  Not only did the Raich team make scant use of this argument, the Supreme Court only addresses it in a single footnote which, Mr. Rosenkranz rightly observes, should have been the opening statement of a judgement as it contained the subject, the who, of the power and the extent of that power as written in the Constitution.

In looking at the Depression era case of Wickard v. Filburn, the farmer producing wheat to for private purposes, which was upheld mainly due to the District Court not addressing the actual case and, instead, writing much about how the Agriculture Act had been campaigned for by Congress.  Later United States v. Lopez would put some restrictions on the intrusion of federal interstate commerce as the prior case set no real limits on it and could be seen as an open door to federal intrusion into State sovereignty.  In the Lopez and Raich case the government deployed the rubric of intrastate commerce if it 'significantly impacted' interstate commerce, and this has never been properly addressed as a concept in direct violation of the limited powers of Congress pertaining only to interstate commerce.  Under a precise grammatical review would there be any question of this rubric even being valid?  The power grant is exclusively for interstate commerce and the outcome of it is not given to the federal government to decide: there is to be equality of law and application between the States for commerce and the power is silent, thus not granting any power, on commerce within a State.  The sovereign power grant for one aspect is singular and complete, outside of that there is nothing: no grant, no provision, no support whatsoever.

This view of the active voice parts of the Constitution with definite actors is a vital review of the concept and the subject, as it allows much of the imprecise, ill-worded and ill-conceived rulings to be examined as to their actual following of the logic of the grammatical construction of the Constitution itself.  Those constructions have meaning as they are sovereign power grants by the people to their government for the Nation of the United States of America.  When Courts, professional lawyers and professors of law attempt to cloud the language, to invite imprecise words and concepts into their everyday work with the Constitution we all begin to suffer as the meaning of the words and their sentences can be read clearly and easily by a layman.  Congress used to cite their powers in the bills they authorized so there would be no question of the power grant, its source and its extent.  By muddying that as a concept and no longer even bothering to include it, Bills and then Acts become unclear as to their power, their extent and the content of what is being done with that power.

I very much look forward to The Objects of the Constitution and the passive voice sections and Amendments to see where this analysis goes in those realms.

States on the brink

Prof. Bainbridge offers an interesting look at the possibilities of what would happen if a US State, in this case California, goes bankrupt.  He raises the question if the federal government could offer some sort of 'bailout' and then asks what would that look like?

Before jumping all the way to bankruptcy views of either the personal or commercial kind, lets take a look at the US Constitution and what it has to say about such matters:

Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Section 8 is always a good place to start!  Here, however, the general Welfare clause is due to all the States, equally, thus the federal government cannot be seen as 'on the hook' to bail out California.  California did not incur its debts in the name of We the People but for its own population, and, from that, it is primary in its responsibility to solve its debt problems, not the federal government.

This is in stark contrast to the Revolutionary War debt owed to France, which was then apportioned out to the States to pay (which caused the impoverishment of farmers in the North and led to the rising of rebellion).  In that case it was a debt take on by We the People and the burden was to be shared.  Here that is not the case.

The next clauses in Section 8 of interest are the following:

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

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Highlighting of sections is mine, throughout.

Here there is the interesting piece on the 'uniform Laws on the subject of Bankruptcy'.  This would, apparently, be the clause to look for to create legislation.  With that said the action where it is to be applied to is 'throughout the United States'.  Thus the laws created must be throughout the States so that there is a recognized way for those within the States to have a uniform process applied to them.  If it was then the language would read something like 'Bankruptcies to and throughout the United States'.  This is far too much power to give to a federal government if you are a collection of sovereign States looking to form a joint venture that applies to all of the sovereigns.

With that said the question of making bankruptcy laws for the States, as States, is questionable as they are the sovereign actors that sign on to, and lend power to, the federal government.  As sovereign actors they have the authority to dispute laws which apply to them as sovereigns and an attempt by the federal government to dictate bankruptcy laws to the States is not something that is outlined by this clause.  This is the first stumbling block: as the States are the ones who bring the Constitution into force for their people by agreement, then they are the ones left holding the bag for their people for their interior administration.

There are two venues for how to approach this.

1) Each State creates its own laws for what happens when it goes bankrupt.  This is problematical as it is unlikely to be seen as trustworthy given that the very same government is the one spending the State into bankruptcy.

2) A Convention of the States is held to create a system applicable to all of the States.  This could be through the federal government or by a common assent of 3/4 of the States to agree to have a newly devised system applied to them.

Due to the strict limitation of federal power by Amendments IX and X, the States are left holding the bag for their own problems in the realm of debt.

Those are the positive powers of Congress, as seen in Section 8, and while great for normal affairs of a Nation as a whole, they do not address the Nation as parts as those parts are independent actors within the Union they agree to.

Now onto the the States.

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.

Generally I like to think of Section 10 as the Ten Commandments for the States as they are of the 'thou shall not' form.  Still within that form there are positive articles.

The part on coining money that I highlighted I tried to deal with in a prior post.  Here the proscriptions are fierce, and yet at one time the United States had money from different States under the Constitution.  The difference between now and then is that our current money is scrip that has no backing, while what is allowed is gold and silver Coin as tender for payment.  The United States, itself, stayed on a gold standard before the federal government started to just print money and President Nixon took us off the gold standard.  Paper money can and did represent gold tender with so many dollars per ounce, and this was also true of the States at one time.

Thus, one possibility is the one I outlined in my prior post: have the gold bullion held by the US Treasury divvied up to the States by population with the States to have a gold backed debt scrip set by the State (say at 1200 scrip per ounce of gold, or 2 grams of gold per single scrip).  This could be circulated as Tender in Payment of Debts with a cashout period of, say, 5 years to allow the economy to stabilize inside California (or any other State for that matter).

This would have the benefit of being gold backed, and thus having real value, and extremely limited, which would force California to cap off its debt spending if creditors no longer accepted greenbacks.  Part of sliding into bankruptcy is having your credit drop to nothing, and you are forced to deal in real money that has some backing to it.  As each person in California would have a vested interest in keeping their gold backed scrip inside the State, this would create a decision point on what to do about spending.  A penniless State is one that beggars the imagination, and yet the citizens from it would be free to leave for more fiscally sound States while leaving the bankrupt State behind.  Or the citizenry could demand that the State stop spending the very last part of its wealth, for that is what the gold represents, and downsize internally.  This is a variation of the 'in State' way to solve the bankruptcy via the allowance of being able to pay off debt with only gold or silver. 

When a State loses its creditworthiness it finds borrowing impossible.  Thus a debt scrip would allow it to re-organize internally while the government drastically downsized to fit its revenue from taxation and not squander the last of its wealth in gold and silver.  When others stop accepting money on credit due to the amount of debt financing an individual has to do, they are unable to borrow and must pay 'cash on the barrel'.  Thus it is for a State and once they run out of greenbacks, which would be very quickly these days, they are no longer going to get monetary 'floats' on even short term debt: basic necessities become something you pay for up front, not even on account.  Since such purchasing happens between a State and private enterprises, there is no conflict between the States as this is a business matter, not an internal State-to-State matter: businesses have the right to refuse custom based on inability to pay and being a sovereign does not change that relationship.  This may seem in conflict with Article IV:

Section. 1.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

But that is for laws and proceedings, not for actual credit or debt obligations.  Thus all of Articles I, II and III are done and now into Article IV a bit further.

Here is the meat of what Prof. Bainbridge and some commentators are getting at:

Section. 3.

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Section. 4.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

Section 3 is pretty clear: you must be able to guide your own actions as a State before you can be admitted into the United States.  Thusly California is a sovereign with voluntary entry into the Union.  To become a Territory would require the consent of the governed and this is, essentially, a discorporation of a sovereign State:  California, as a sovereign entity, would be at an end.  This is not something that can be imposed by any law as it is the people of the United States, in each State, who guide their own destiny.  While putting forth that having California as a Territory might be more pleasing and be something that the United States is better able to deal with, the United States would then be on the hook for all the debt of the prior State.  To do that would also require an agreement, by Congress, to accept the Territory of California into the protection of the United States as once a State discorporates there is no 'reversion' to the United States as it was free and independent territory before it joined the United States. 

While the United States government would, presumably, claim possession of California, it would be with the understanding of it as a 'failed State' with debt obligation.  That would be true of Mexico, China, Russia or any other Nation that wanted to do so: those debts do not go away and a larger sovereign entity assuming possession of California is stuck with its debt.

The only way for California to rid itself of debt, and this is in the extreme, would be to totally disband and repudiate its current government and hold an internal convention to create a new one only after the old one had defaulted on all debts.  This could, of course, be done within the framework of the US as it stands: the people are free to make any interior government for their State so long as it upholds the commonality of the Constitution.  With that said, California would have trouble getting any credit, any loans, indeed anything, on an other than 'cash only' basis if it did this.  Those that go into default have a very, very, very hard time getting their creditworthiness back, and such a default would reflect badly upon the rest of the States through no fault of their own... which is why States would seek to have their creditworthiness rated separately from that of the Union and other States.  California, meanwhile, would have a State with no contracts, no labor unions, nothing left from its previous incarnation and start from scratch with a new constitution, new laws and a new representation system.  There would be no 'debt spending' as no one will give California any credit and the State may, in fact, see itself wanting a debt scrip just to get some working overhead as a new entity.

The prospects of a new government, after the old one defaults and disbands, is perilous inside or outside the Union: those who would seek to control the new State constitution would try to make it a 'modern' over-burdened affair that, unfortunately, would have no credit to run on.  No matter what would be written into the thing, without any cash to institute any grandiose wealth redistribution schemes, the government would be severely limited in what it could do.  And any attempts to 'soak the rich' even more would cause further emigration from California of anyone willing to work for a living.

Basically California needs to learn the basics of doing for oneself and getting out of the idea of people being entitled to anything more than Life, Liberty and the Pursuit of Happiness... and that last is a risky business as they have found out after catching Happiness: they are now succumbing to it.  They have forgotten the Life is in the Pursuit of Happiness, using one's Liberty.  The moment you think you have gotten it you soon find yourself without Liberty and then, very quickly, without a Life worth living.