US Constitutional Dissent Briefs Toward Positive Liberty and Citizenship Rights

How the US might move, constitutionally, from formal-negative liberty to substantive-positive liberty is argued in the dissenting briefs of San Antonio Ind School District v. Rodriguez, 1973.
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Universalized Private Property & Mobility: Symbolic Domination Duo

Marketing the “universalized private property” non-solution to the problems of inegalitarian unfreedom has been the worldwide political organization “stock in trade of mercantilists, capitalists, and the jurists and politicians beholden to them ever since the Roman republic” (David Abraham. 1996. “Liberty without Equality” Law & Social Inquiry 21(1): 7, citing Moore 1966 and Mayer 1971). Rousseau once argued that through obeying the General Will, we would all have property, in the state, iff no one had associational capacity (such as private property allocates). Capitalists argue that we have property in our alienable labour. Jefferson tried to define citizenship as a patrimony of 50 acre land ownership. Bourgeois revolutionaries from France to the US South have argued for the universalization of private property. It’s an idea that’s stunting and killing us. By Bush II, the “Ownership Society” was reduced to a requirement to obtain credit, or debt in order to access the conditions of life…universalizing the company mining town model, smallholder slavery to the capitalist class, prioritizing the social reproduction of the lending class, in its internal billionaire rivalry to own and direct the world.

The opposite of exclusive private property is inclusive public property, vilified by conservatives as the True trajectory of injustice, which they define via idealist philosophy, and its impoverished conceptualization of change, as decentering exception. Abraham traces the domination of the marketed non-solution in a history of US ideas and law. With this co-optative discursive strategy, “America’s greatest libertarians could be slaveholders, just as Europe’s were political-economy free marketeers,” Abrahams observes (11) in accordance with Losurdo 2011 (2006). Occasionally, usually after wars, equal protection/fundamental rights jurisprudence “chips away” at the negative-liberty polestar. “The logic and politics that each time ended the progress: a politics and logic” of universalized private property (9).

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How can libertarianism remain twinned with slaver interest in the US? Abraham identifies geographic mobility as the necessary, co-optative factor greasing the relentless, little-challenged marketing of absolutist private property right as universal interest within the settler US (13). Yet in capitalism, private property is exclusive, accumulative, unequally allocating sovereign agency and collective action capacity, enhancing economic, social, and political inequality and unfreedom. Cosmopolitan mobility for the few, the ideal, rests upon the imposed, disruptive, depleting mobilization of the many—often war discharging people from citizenship and sovereign socio-material networks–home, Bourdieu said, where you are culturally literate, and by that able to navigate to your own interest, or through which you are symbolically dominated.

But a settler society, wherein freedom is allocated by market power and yet marketed as universal private property and glorified expulsion from home, is a society of vast and pervasive symbolic domination. We are required to black-box capitalism to presume, as political-economic elites have marketed since Cato the Elder in the 2nd c. BC, that citizenship rights, positive freedom, are irrelevant to non-elite liberty. Black-boxing capitalism, we can sink into the familiar, if degraded lullaby of Ownership Society marketing, aided by a sleeping pill: freedom’s idealistic reduction to physical mobility, as proposed by that original conservativizer of liberalism, Thomas Hobbes (1651). Enjoy the institutionalized Enclosure sweeps, and give my regards to your banker, your Master.

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Liberal Fart of Freedom: Mobilizing populations

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Liberal Fart of Freedom: Debt as Universal Private Property Ownership

Mobility freedom is subordinated to the Mill state’s global private property right protection obligation:

“But, then, in the 2018 Consolidated Appropriations Act passed on March 23, President Donald Trump not only reinstated the full amount but also added an additional $60 million, for a total of $510 million for the prison project.”

Mass incarceration:
“With 2.2 million people behind bars today and 11 million cycling through jails every year, the United States incarcerates more people, and at a drastically higher rate, than any other country in the world.

Building 1,200 more prison beds reflects our dependency on this system of racialized social control, revealing not only deeply held assumptions about crime and punishment, but also what we believe is possible for, and deserved in, rural America.” –Sylvia Ryerson & Judah Schept, 2018, “Building Prisons in Appalachia,” Boston Review.

Notes on Redoing Abraham:

  1. Writing in 1996, Abraham did not yet realize how hard a Catholicized Supreme Court would be restoring absolute private property right in upcoming years. That can be updated.
  2. His analysis of the poverty of negative liberty’s version of “autonomy,” choice, can be improved by contrasting choice, as delegated agency, to sovereign agency.
    1. We fear dependency (37) in absolute private property right regimes not because it is “entwined with collective action,” but because dependency is the denied condition within which all (except self-aggradizing property owners) make unfree choice. Within a law by, of, and for capitalists, most of our choices are non-sovereign, and we fear being called out. Anti-dependency discourse is a terrifying game of hot potato; the stakes are credit and cooperation.
    2. While the Pro-choice movement (footnote 120, p. 37) has conspicuously played by the pragmatist’s losing game, and, update, has lost massively by it within capitalism’s automated class warfare context, a subtle, thorough, and non-sexist analysis would also observe that social democracies and communist societies have, far more securely than liberal and of course conservative societies, recognized women’s right to reproductive sovereignty (see Baker & Ghodsee), because they recognize, behind the reproductive right, the societal value in the development of the woman, threatened by the high consequences of reproductive work for women’s lives in particular, particularly in commodified economies.
  3. Analysis from his comparator case, West Germany, can be improved. Instead, to grasp socialist-influenced, positive-rights constitutional law, use Sweden.
    1. While the West German constitution excerpt (38) is a fine example, point out how the positive rights constitution is sociological, where the Anglo-American liberal negative rights constitution is anti-sociological.
    2. Attack the (rather-Jewish) reduction of social democracy to merely the reproduction of “homogeneity” (per Abraham, Friedman, etc.). See my critique of Jantelagen decontextualization and fetishization. Ethnic “homogeneity” (reduction of the salience of ethnicity) is socially (not discursively) constructed by an inclusionary sociological definition of society (per Dewey 1916), as where ethnicity is converted into political subcommunity, eg. in Vansterpartiet, or political-economic variation is incorporated, as with the Sami in the Swedish Constitution (Basic Laws). There’s a reason (genetic diversity, including incorporating some isolated, genetically-distinct communities–analogous to Ashkenazi Jews) why long-traveling Swedes “look weird,” as the idealistic Germans like to say. Swedes’ national ethnicity is an historical project of inclusion. Like non-ethnic difference and inequality, ethnicity is also a construction, one that extends outside a multicultural society; it isn’t just subcommunity. It is an alternative society, sometimes (particularly when in relation with capital) functional, and otherwise often ascribed, isolating, somewhat functional (capitalism outlaws working class organization) but not very. Universal celebrations of ethnicity in liberal, negative-liberty regimes are about abstracting functional ethnicity as the universal, non-White condition, and denying the functional servitude assigned to ascribed ethnicization within capitalism.
  4. Ipsum lorem.

Unfree Labour & Mass Killing

“The preoccupation with the origins of ‘freedom’ and a persistent understanding of market economies as essentially ‘free’ has clouded our perspective of the past. It is time to engage with new explorations on the role of unfree relations, not only in the form of slavery, but in other variations as well. Studying the role of slavery in the Dutch global empire and the presence of slavery in the Dutch Republic is only a modest first step. It is important to critically re-examine the role of coercion in other parts of the history of and explicitly in Europe as well. How did debts, legal and economic force, or other limits to freedom influence migration, labour relations, social strategies, everyday life and politics?…As much of the global history of slavery, these questions are waiting to be explored” (Karwan Fatah-Black and Mattias van Rossum. 2014. “Slavery in a slave-free enclave?: Historical links between the Dutch Republic Empire and slavery, 1580s-1860s.” Werkstatt Geschichte 66-67: 55-73.

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I.

What is liberalism? Liberal principles have been asserted as rear-guard, ad hoc defenses of elite privileges under significant assault by absolutist rulers, chartered corporations, and centralized states. Across these rear-guard defense options, one principle grounds liberalism: absolute private property right.

  1. See Losurdo 2011.
  2. Fatah-Black and van Rossum: The States General (1776) “The freedom of the Negro and other slaves, brought here from the State’s colonies to these lands” ordinance stipulated that “the freedom of the citizens of the state, who would lose their property (if slaves were freed), would be damaged more severely than that the upholding of the principle of freedom would be worth… ‘This would be a far graver affront against the birthright and immediate freedom of the inhabitants of this Republic,’” the preamble announced (64).
    1. Roman Law was introduced in 1629 to manage slavery in the Dutch Republic (62).
    2. Creditors’ rights superseded both plantation owners and slaves’ rights (65).

II.

Varieties of domination across space: Why (where) slavery and not wage-wage slavery or genocide?

Premise 1: There are different forms of slavery.

Premise 2: Imperialists rely on genocide where slavers’ freedom cannot be supported by the slavery of the regional population.

What conditions support or attenuate slaver freedom?

  1. Structural explanations:
    1. As slavery contributes to slaver societies’ value accumulation–for example, between 1595 and 1829, slavery contributed around 70 million guilders to the Dutch port cities’ economic profit margins (69), slavers are an economic network. Within this network, slave traders‘ profits are typically “modest” (70), and could be a bottleneck for the development of slavery.
    2. To capture and distribute wealth within an oligarchical metropole, specific commodity chains produced by slavery promote or prevent slavery across locations.
      1. Slavery-promoting commodities: Cotton, sugar, rum, coffee, sexual services, domestic service, diamond mining. See also economic sectors that rely heavily on “volunteer,” “labor of love,” and “intern” labour: education and research, conservation, community and social services,…
      2. Wage slavery commodities: Expansive, alternates with slavery, see above.
      3. Genocide commodities: Commodities requiring total territorial control? Doubtful. Rather than “genocide commodities,” genocide probably is structurally caused by irreconcilable oikoi within a region, and may be indicative of a closer power balance than is present in slavery and wage slavery regions. As they are central in financing slavery commodity production, expanding financial metropoles and capitalization may play a role in spurring oikos rivalry blocs into genocide.
      4. To parse out the distribution of slavery, wage slavery, and genocide, compare commodity production and capitalization histories of high- indigenous population American regions–Guatemala, Peru, Bolivia, the Four Corners, USA, (New Zealand?); and regions that relied more heavily upon genocide: financial-manufacturing Eastern US and Canadian regions, Argentina, Australia, etc. What is happening distinctively with commodity production and capitalization in indigenous-settler mixing zones– “La Malinche” Mexico, New Zealand, and Metis Manitoba?
  2. Cultural & social network explanations:
    1. Within this structure described above, relative regional coordination capacity and culture would matter.
      1. In Dutch Asia, slaves came from East Indonesia because the non-Islamic population had low coordination capacity and lacked anti-slavery culture (60). By engaging in internecene war and raiding, supplying slaves to the imperial merchants, violent Indonesian parochial competition made Dutch slave traders’ work easier and profit margins higher.
    2. The trade in slaves was (re-)produced through elite networking. Slaves were taken from merchant elites’ business travels and dislocated around the globe, via elite network gifting, etc (59-60).
      1. Network symbolic capital, distinction (63)–as in modern, inegalitarian, imperial, cosmopolitan immigration/colonial settler societies–incentivizes the separation and relocation of humans as slaves, and by that, produces “trouble” in metropoles.
        1. This trouble had to be regulated with metropole laws that progressively reduced slaves’ freedom further, until at the last (just before illegalization of the slave trade) owners’ sacred property was threatened–the law threatened to free any slave who gave herself up to authorities when entering the metropole (65-67).
          1. Capitalism works by unevenly allocating exploitation and appropriation across space, across social categories. Yet over time separating these geographically requires great management effort, including racialization to reproduce exploitable parochial competition, and this differential breaks down when the slave comes to the metropole. The metropole is a value-distribution zone opposed to extraction zones.
            1. Contemporary: Core global metropoles–NYC, SF, Singapore– are even today policed and efficiently cleansed of anyone surplus who is not a wage slave or owner. Non-capitalist populations in metropole space degrade the capitalization-coordinator/accumulator function. Check out geography lit.
    3. Slavers could depend on black overseers to use their human capacities to innovate torture, to control slaves on plantations (72).
      1. The Master’s dependency on the humanity of the dehumanized: “Men do not want solely the obedience of women, they want their sentiments. All men, except the most brutish, desire to have in the woman most nearly connected with them not a forced slave but a willing one.” –JS Mill, 1869, “The subjection of women.”
        1. See also Hegel’s critique, “Herrschaft und Knechtschaft” (1807).
      2. The human capacity for unmaking (see Scarry 1985): Using others’ human sentience against them to destroy their material worlds, and in place of their semantic world, promote the imperial voice and order.
      3. The stimulated jump from a state of unsolidaristic, competitive, parochial soveriegnty to a state of subordinate patriarchal intermediary secures the social construction of steep and complex social hierarchy.
        1. According to Federici 1998, patriarchy in complex societies invokes intimate and, by categorical extension, systematic alienation and fear of the target of defection and the defected relation, to realign trust and solidarities to an inegalitarian, socio-spatially dispersed network, an imagined global community of men, “winners v. losers.” This trust realignment permits the transfer of property to and up the hierarchy of men. Alienated on multiple everyday levels, and crippled by fear, non-elites are compelled to reproduce exploitation and appropriation.
          1. Not all communities are responsive to patriarchal co-optation, and it is not structurally advantageous. For example the Basque maintained intra-community solidarity that permitted an autonomous and successful economic development path within capitalism (Federici 1998). Some communities rather are disposed to the protection racket bargain and patriarchal co-option. Why? What are the factors?
            1. As well as Robin (2004), the comparative history of the Scandinavian countries suggests some hypotheses, see Barton (1986). Ask Jonah Olsen about the Basque exception as well.
        2. Once instituted, capitalist law recreates the vertical-solidarity, competitive patriarch.
  3. See Losurdo (2011), Robbie Etheridge, Fatah-Black and van Rossum (2014).

What conditions support or attenuate genocide?

  1. See Straus, Scott. 2007. “Second-generation comparative research on genocide.” World Politics: 476-501. Of the early 21st century efforts to improve on genocide theory, Valentino’s (2004) is the most convincing, least ideologically-motivated, most comparative explanation. He argues that in the modern era, small groups of leaders are ideologically persuaded to choose mass killing (including both genocide and politicide) as an instrumental solution to resource and land acquisition, or to defeat collective resistance. Everyone else just accommodates and enables the political entrepreneurs. Valentino’s theory has the virtue of specifying a central role for rational calculation as well as a lesser role for irrational ideology, both by a small leadership group. In modern/capitalist societies, the popular classes are dominated and socially accountable to elite-ruled networks.
    1. Valentino (2004) identifies two categories of mass killing: a) Dispossessive mass killing, such as where leaders seek to transform/modernize societies across diverse, populated territory; and b) Coercive mass killing, including mass killing in wars and in imperial strategy, where “leaders try to defeat resistance and intimidate future resistance” (485).
      1. Arguably the long colonial genocide in North America is the progressive confluence of both forms of mass killing.
    2. Levene’s (2005) explanation is flawed but offers a couple of insights of value. In his first volume, Genocide in the Age of the Nation State, he argues that genocide is a contingent outcome and more likely when targeted populations resist. He specifies the irrationalism as phobia. However, Levene is an elitist, and his overall argument is that popular irrationalism in late-developer countries causes genocide. To arrive at this explanation, he ignores colonial mass killing. However, the irrationalism of phobia could just as well be imported into Valentino’s theory to specify the elite ideology behind the genocidal path. Semelin suggests that leaders use ideology to transform popular anxieties into fear, and this is affirmed by Federici’s study of the European witch hunts.
    3. Of the comparative genocide theorists, Levene’s second volume alone attempts to survey mass killing in the vast expanse of the pre-modern period. While he is unable to substantively theorize pre-modern mass killing, it exists empirically. The transhistorical abstraction of mass killing explains it as a byproduct of “political development.” So by comparison (following the Marxist technique of comparing a phenomenon’s capitalist form to its transhistorical form), “modern” or capitalist-era mass killing is caused by political development (also), state interest, and to a lesser extent, ideology, or the elite deployment of fear.
    4. Midlarsky’s comparative work (2005) is also flawed but has the virtue of exploring where genocides did not occur: There was not genocide in Cambodia, but politicide. Greeks in the Ottoman Empire and Jews in pre-WWII Poland were not targeted for genocide. Such examples could be used to help explain mass killing. Midlarsky thinks that modern genocides are created in the context of loss: territorial, economic, or population loss in war (486). His theory also helpfully specifies that targeted populations are simultaneously feared as threatening and assessed as vulnerable (486), and he points out that genocide perpetrators have both gotten away with violence before they commit the genocide, and have some international support, such as the Vatican for Nazi Germany and France for the Rwandan genocide (486).
    5. This brings up the point that theorists of genocide have to take political sides. In the early 20th century, the UN defined the problem of mass killing as genocide on the model of the Shoah. That specific context and formulation produces a liberal moral framework and research agenda, which at first produced explanations of genocide that were highly idiosyncratic to the Jewish community’s preexisting frameworks and post-Holocaust political needs (see pp. 480-483), and in the second wave of genocide scholarship, still produced explanations, like Weitz’s (2003), that identified communist revolution as genocide, or like Mann (2005) tended to select genocide cases from amongst the Anglo-American Empire’s late-to-the-party rivals. Less ideological approaches recognize and theorize the mass killings committed across the political and geographic spectrum, including the colonial genocides.
    6. Note that both Mann and Levene think that late capitalist development causes genocide. I don’t agree with this, but I think it’s interesting that sociologist Mann as well as Levene acknowledge the position of Germany relative to the Anglo-American Empire at the start of the 20th century. Idealist explanations for the rise of fascism typically obscure what Hegel had identified in the early 19th century as the intractable problem of an already-owned world–at the individual level, The Right of the Starving Man.
  2. ipsum lorem

At stake:

Consider the recent indigenization interventions of Glen Coulthard and Leann Betamosake Simpson. They call for a reclamation and reinvention of indigenous lifeways and associated ways of knowing, and anti-capitalist and anti-colonial refusal, rather than mere Reconciliation and cultural celebration. Their intervention is heroic.

At the same time, even liberal Reconciliation is countered by furtive but insistent protest. If a viable alternative to capitalist extractivism was built in extractivist Canada, a place that exists within the World-system in order to transform nature’s work into capitalist accumulation, would the settler protest switch into mass brutality again? As it is, it’s more like a constant mining or blood-letting. One thinks of the baby moose of the north-eastern U.S. seaboard, drained to death by tens of thousands of ticks. Humans have mass-killed off our rival macro-predators, and the tiny killers, the biomass of bugs, flood into the breach. We sit like Mr. Kurtz amidst the entropy we have created, and we celebrate culture.

Under what conditions does capitalist power organize through its hierarchical network its primary forms of economic- and other warfare, its infinitely-negative judgment–wage slavery, slavery, and genocide?

Research Site

The Equal Justice Initiative’s The Legacy Museum in Montgomery, Alabama. For background, see review by Laquer, Thomas. 2018. Lynched for drinking from a white man’s well. The London Review of Books.

The US has killed more than 20 M people in 37 countries since WWII.

 

 

 

Breaking Windows…or the Whole Welfare State?

In Le Monde, Brotherton & Phillips argue that a criminology theory, Broken Windows, became distorted by vulgar American social speciation (The poor are evil. Their automatic small transgressions cascade into crimes against the Order), and this corruption is what resulted in a recent, tyrannical Supreme Court ruling.

I like this analysis, in that it points to how even materialist explanatory frameworks become distorted within a conservative culture. (And why materialist explanations can never serve as adequate substitutes for historical-materialist explanations.)

Nonetheless, at the end of the day, any Supreme Court decision must be assessed in the context of that body’s other contemporaneous decisions, and there, unless we are hopelessly immobilized by fear, we must recognize a stark pattern has emerged.

 It is not simply that the Supreme Court justices fell prey to a bowdlerization of Broken Windows theory. That would be a tough enough problem to address. But in fact the situation is much, much more dire. The justices were selected for the Supreme Court because they are far from innocents. The US Supreme Court has come to revert to pre-liberal, end-of-days feudal British legal traditions, and this is not through a series of mishaps. SCOTUS sanctioned election fraud at the highest level; it has recently ruled in favor of capitalist class totalitarianism in the workplace; it has come to rule repeatedly in favor of state tyranny over citizen liberties; it is positioning itself to revoke Congress’ capacity to create welfare institutions. Through its interpretations and rulings, the both conservative and fundamentally elitist US Supreme Court is actively, systematically creating the legal framework for the decisive blows that convert the US to a ferociously capitalist class-biased night watchman terror state.

The working elite theory is that the conservative initiatives will bolster the investor confidence that the US, its dollar and its debts rely on. But the conservative theory of investor confidence is superficial, a symptom of a larger conservative misreading of capitalist accumulation incentives. Because of the 40+ year dominance of conservatism, the US economy is going down like a stepwise-imploding dirigible, and its elites will not fall without scrambling together a new age of serfdom and primitive accumulation—concentrated accumulation by any means possible.

Though they are always enchanted by American capital’s money, networks, organization, ready policy models, hype, and marketeers’ assurance, the rest of the world would do well to continue to turn away and let the Americans alone erect their self-rape and -pillage legal framework in their “exceptionalist” (British serfdom and imperialism meets American slavery and nuclear chain-reaction exploitation) tradition.

Marxists are correct about what is happening here. Despite their emotional rejection of Marxists above all, American liberals need to start to assess whether they will withdraw from the real world to protect their visions of marginally-conflicted, equilibrium, civilized capitalism, or whether they will get back in there and organize to defend the pillars of their crumbling, limited-Enlightenment utopia—from conservatives this time, again.

You have to ask yourself: Are you really comfortable with slavery and serfdom?, because these remain fundamental conservative institutions–entirely complementary to, we can see plainly before us, capitalism, wretched capitalism. Absolute power corrupts absolutely; and under a system of concentrated power–such as is capitalism, there is no high, easy road to progress.

There is No Compromise with Conservatives

“So, the Heritage Foundation said let’s do an individual mandate because it keeps it (health care reform) within free enterprise. The alternative was single payer. And they didn’t want that, and I’m in sympathy with that. So now all of a sudden the free-market alternative becomes unconstitutional and terribly intrusive where a government imposition and government-run project would not be? I don’t get it. Well, I do get it. It’s politics” Liberal-conservative Charles Fried commenting on the the Randy Barnett-led conservative campaign, which aims to use the Supreme Court to kill Obamacare. 

Obamacare (The Patient Protection and Affordable Care Act, PPACA 2010) requires, on pain of fines, individual Americans to buy health insurance from private health insurance firms. Why conservatives hate it is because it is a progressive redistribution of wealth, and so an enlargement of power and freedoms. Further, millions of Americans cannot afford food or shelter, let alone buy expensive health insurance; so their insurance costs must be socialized. Conservative states and conservative business organizations filed lawsuits (and amicus brief), and the Supreme Court agreed to hear their arguments.

Say you want to get something done: Address the problem of the predatory, unregulated health care industry which is sapping the economic strength of responsible employers and the working class, causing crisis within the working class and foisting the costs of an unhealthy, traumatized populace upon the state, capital productivity, and society.

If you wanted to do something, you would have had to coordinate a massive protest + polity campaign, first to get a President who would and could appoint progressive judges to the Supreme Court, and then to press for universal  Medicare, with the state being a single buyer of services (to negotiate medical rents down). Given the judiciary is conservative, this is a long-term project at this point. There is no other road. If you wanted to get social reform accomplished, you cannot compromise with class warrior conservatives, because even though they own Congress, they own the judiciary more. Ideologically, Republicans and other class warrior conservatives will not tolerate the idea that any policy that strengthens the working class strengthens the capitalist class or economy.

Illustrated: the difference between Fried (a Reagan-era conservative = Democrat) and Barnett class-warrior conservatives is that the former agree that something had to be done about health care cost and access in the US–and something could be done that would benefit capital. Whereas the latter are “Let them eat cake” Malthusians. The Barnett class-warrior conservatives believe that the working class should be miserable, in crisis, and dead young (The elitist Supreme Court judges laughed merrily at the idea of working-poor families booted off health insurance.), and on principle no state should stand in the way of that proper “market”/god-given outcome. Following feudo-capitalist British tradition, as long as US military troops and mercenaries are competitive in imperial war, there is no need for class compromise or social amelioration in Malthusian conservatives’ view. Might makes right.

And when I’m finally old enough to learn to play the game, 
Oh the dinosaurs will roam the earth, and resume their bloody reign. 

Political Problem: The Supreme Court is a Fundamental Enemy of Democracy

Robin plumbs another depth to conservative strategy: The reason why the Supreme Court agreed to hear this challenge to Obamacare as a matter of constitutional law is because that conservative court has been using the Constitution’s commerce clause to work toward constructing the class-warrior legal interpretation: broadly, the interpretation that the Constitution does not give Congress the authority to create working class-supportive social institutions (eg. Medicare, food assistance, Medicaid, Social Security, etc.). This conservative constitutional interpretation would illegalize all institutions of the welfare state, making the US a night watchman state.

Doug Henwood and Daniel Lazare argue that with one exception-that-proves-the-rule (post-FDR) period, history has shown that the Supreme Court is hopelessly anti-democratic. Robin explains the  elitist Supreme Court problem for democrats: The commerce clause hasn’t always been an obstacle to progressive social change. Iff you had a social movement in place, and iff you ALSO had a president who was able to appoint Supreme Court justices who wouldn’t strike down all progressive legislation, the commerce clause could be turned to freedoms expansion.

So after Roosevelt’s liberal judicial appointments, and with social movement pressure, for a couple decades justices used the commerce clause to authorize Social Security, the Wagner Act, the Civil Rights Act, and more. But  social movement is not enough. There were social movements in the US for many decades that managed to pass legislation, and it all got struck down by the Supreme Court.

Unless you struggle to abolish the Supreme Court or pass an amendment that radically restricts its authority, it’s going to wield that authority and strike down freedoms-expanding legislation.

The only temporary alternative is if a social movement can over time both advance a President who will appoint new progressive judges and maintain the disruption and pressure needed to advance progressive, freedoms-expanding legal interpretation.

Strange Fruit: A Nice Kid Savagely, "Legally" Cut Down

Young Treyvon Martin was hunted down and murdered in cold blood because ALECNRA machine-written law, in the context of the undead slave society legal and cultural tradition within the US, identifies all black male activity (including even walking to and from a convenience store to buy a box of Skittles) as a “threat” that legally can be “met with deadly force.”

That’s right. We find that our corporate overlords (including Walmart), via their venal, despicable ALEC (American Legislative Exchange Council), have been going from state to state, flogging the legalization of hunting neighborhood black children (The Castle Doctrine Act/ Stand Your Ground law. Yes, it is not a coincidence that the legislation titles sound like they were written by a penis. The Little King strategy). Corrupt policy for an apartheid military society.

Look, this is clearly a case where liberals should be in there, taking on the conservative corporate warlords. The ALEC / NRA legislation is nothing more than Klan policy in a Jim Crow country.

“You live in a country where your son can get A’s and B’s in high school, be well liked by his teachers, never get in trouble with the law, and run out to buy a snack during the NBA All Star Game, and never come home…because someone decides he has the right to execute your son…That’s the country you live in, if you are black in America” Lawrence O’Donnell.

The rotten-hearted US, devoid of the union strength required to set a brake on and break a corporate-feudal law that elaborates itself as a greasy film of excuses for abominations against humanity.


Likewise, ‎”Florence, an African-American, was driving with his pregnant wife and four-year-old son in March 2005 when he was pulled over by a New Jersey state trooper. He was arrested on a bench warrant for an unpaid fine. The warrant had been cancelled two years earlier after the fine was paid, but it had never been removed from the police data system. Florence was taken away in handcuffs and spent the next six days at the Burlington County Detention Center, where he was ordered to undress, sprayed with a delousing agent and inspected for contraband and gang tattoos. He spent an additional day at the Essex County Correctional Facility in Newark, where he was stripped and ordered to squat and cough, a maneuver designed to eject anything hidden in the rectum. Brought before a magistrate, he was released without charge.” 
The anti-democratic Supreme Court says, “no problem”.

The militarized NYC police “elite gun unit” has been outed for systematically treating black people, and black people alone “like animals,” as policy. 

“They didn’t care if it was kids in there, they didn’t care if it was women in there, naked women,” the detective said. “. . . They treated them as if they had no rights whatsoever. It was disgusting.” 

“What white American majorities have been collectively attempting to redeem for the past 40 years, is a White Man’s Country. That’s why they have voted Republican in presidential elections since 1968, with Richard Nixon’s Southern Strategy. That’s why, in the wake of the Black Freedom Movement of the Sixties, white electorates in every state put in office politicians that methodically constructed an overwhelmingly non-white Prison Gulag that now warehouses 1 out of every 4 incarcerated persons on the planet, half of them African American. That’s the essential truth of Michelle Alexander’s New Jim Crow, under which Blacks are criminalized as a people in order to return them to the status of a subjugated class. 

The Stand Your Ground-like laws that have been enacted by more than two-dozen states are very public manifestations of unreconstructed white nationalism on the offensive.”


I don’t look at the Right wing blogotwitterosphere. That’s a pastime for others, and not my schtick. But I am somewhat interested in how the Right cannot effectively spin the spate of state terror unleashed on innocent black people these days. I did happen to stumble upon one conservative comment thread trying desperately to damage-control spin the topic of Martin’s murder. The political tack that the conservative tweeter was trying to flog was this: “The Left (which hesheit calls “neoliberals”–either for obfuscation purposes if hesheit is a paid conservative dittohead, or because hesheit is honestly politically clueless) has politicized the Martin murder. Good people will simply see Martin’s murder as an inexplicable act of God, not think, and just sadly FEEL the unaccountable tragedy, and then quietly walk away, nothing to see here folks, get back to your workstations.” 
So you, Little Lord Faunteleroy, declare it’s exploitative, it’s impossible, it’s wrong to both feel and think. To start, I gotta alert you, junior. The Right, though they believe they are the only humans, actually do not have a monopoly on feeling bad at the death of boys. In fact, there’s plenty of evidence, historical and contemporary, that conservatives’ feelings are shockingly absent at the death of black boys; and the Left, the thinking, political Left, is decidedly more human, more feeling in this regard. 
Not only that surprising fact, but also: Someone let the politicization out of the bag a loooong time ago, Twinkles: Hence the NRA, ALEC, their Castle/Stand Your Ground political campaign to militarize American civil society, as well as the similarly elite, antidemocratic use of constitutional law to allow wealth to dominate politics and to give free reign to state terror. That’s all political, Virginia. And it’s politics that results in political corruption, economic pillaging, brutality, state terror…and murder. Are you still telling us to stop feeling and thinking together? I’ve got to wonder what’s wrong with you.
This conservative schtick did not seem to be getting much traction (not much of a conservative yes-men choral response) on-line, leading me again to believe that this tweeter is an unpaid conservative tool. (Or conservatives are just completely busted on selling their brutal polity achievements these days.) [UPDATE: No. This nothing-to-see-here/back-to-your-workstations conservative gambit was reproduced for a mass audience…by The Daily Show (Larry Wilmore & Jon Stewart), in April 2012. It should be noted that The Daily Show positions itself as a “fair & balanced” liberal political commentator. See here and here for analyses of conservative liberalism.]

I do have one thing to say to unpaid conservative internet trolls:

If you are attempting to flog conservative dogma, and you don’t get a piece of Koch’s prodigious black gold accumulated and reserved precisely for such a commercial service (as protected by the antidemocratic SCOTUS), then you need to examine your life, son. There’s a term for someone who does unpaid work for a wealthy, freeloading tyrant who could easily pay for the labor…No wait. A slave wants freedom, but is brutally constrained. Something (self-)objectified, that is dedicated to be used by a boss, that aspires neither to commodification nor freedom, well now that is specifically a tool. A tool, son. We all know what the Limbaughs, Malkins, and Palins are doing: Paying for the estates, the nannies, the Manolo Blahniks, the Mercedes-Benz SUVs, and the Viagra stash, working for a massive, high-rent industry. The question is: What are you doing, Littlest Hobo King? I’ll tell you what. Since you come so cheap, I need a squire. I’ll pay you  a little above your going rate: a strand of licorice and a gumdrop for your lifelong service. …Or maybe you should consider opening up some books, going to some new places, making some new friends, listening to some different voices, do some reflecting about which side of history you do the free work for. …And for the record, you can keep feeling as well as reflect. It’s a little razzle-dazzle we Leftists like to call being human.

And, conservative pros, good luck with your Right-wing pro-feudal state terror spin. All your dogmatic court and legislative coups spew brutality and crisis. You don’t know how to rule worth a damn.

Researcher Fournier likewise finds a pattern of institutionalized racism in Anglo-American (Canadian) courts (forthcoming, Canadian Criminal Law Review 2012). The courts are lenient on men who kill their families in a fit of “passion”, iff the men are white.

Law’n’Order Corrupts Absolutely

Authoritarian Law’n’Order is by its very nature corrupt and corrupting. Here, law enforcement officers relate how they fabricated drug charges against innocent people, in order to meet Law’n’Order quotas.

…Once again proving that you are a bona fide idiot, if you think militarized policing and prison slavery build-up is a concession to the working class and an imposition of firm, fatherly (or feminist. whatever.) order. The working class will pay for each and every police and prison job through the nose and then through every other orifice they’ve got.