Saturday, September 17, 2005
America is off course - Time for a change.
Protect the rights of Americans - Elect another kind of animal for President
At the close of the First World War the Elks wrote a check for $1,000.000.00 so that America's Veterans could have a hospital for the first time. That is how it happened. Hardly anyone knows that today.
Beware of government, it takes credit for what it did not do - and it blames us when it fails.
Elections were on all of our minds when I went to Elks that Tuesday, but the questions that became the central focus of our discussion. lead us in unusual directions.
My friend Robert Crouch, a professor of economics who teaches at the University of California at Santa Barbara, asked me what I had been doing with myself over the summer. A long conversation ensued that included the happy announcement that I had finished writing my second book of the year, titled GREED: The NeoConning of America.
No discussion with an economist can begin without some defining of terms so amidst the discussions of football, Lodge politics, and the greetings and meetings of those assembling, we did a little of that.
Robert is not your normal academic. He likes playing poker and has in fact written a book on the subject. He is a former surfer, sidelined by his knees, who spends every summer scrolling through his memories in the first person while touring through the lush and lovely landscape of England, his native soil, in a sedan.
I like Robert. He is always jolly and very complimentary, filled with insights and interesting stories about his past. I would like him even if he were not a dedicated economist of the free market variety. But he is.
I asserted that there were serious problems with issues impinging on the 1st Amendment in that a relatively small cadre of powerful individuals in America today, namely the NeoCons, can make it impossible to publish for some people, in this case me. Robert asserted this was not true. Hence, this opinion piece that will take up three distinct issues melding them together to formulate a short study of why NeoConism worked and how they have impacted our essential institutions.
I begin at the beginning. How do the assumptions of the 2nd Amendment apply to the present understanding of secrecy, privacy and confidentiality, a right ‘discovered’ only in 1890?
That ‘right of privacy’ was derived from a corollary of the 4th Amendment in 1890. This ‘right’ was originally asserted as a protection from libelous coverage of the press in a case occurring in Boston that year. A family was suffering under the publishing of what we are assured were libelous assertions. While we can sympathize with the family in question they had at their disposal the means for protecting themselves, namely the existing laws on slander and libel. If the statements were untrue they could sue. Libel and slander remained specific to falsehoods. What was inadvertently created with this precedent was a right of privacy that was later used to protect falsehoods.
By creating this formulation of ‘privacy’ a tool was created that became a weapon wielded against freedom as envisioned by the Bill of Rights.
The ‘right of privacy,’ as the tool for deception it became, takes its present form when applied during the Twenties to the right of criminals to ‘privacy’ to continue their felonious careers. These related to the imposition of Prohibition on Americans, a limitation on freedom.
Clearly, this is not what the Founders had in mind. But neither could they have imagined the need that drove its application.
Each of the significant cases in which the principle is applied asserts the ‘right of privacy’ as a tool to protect freedom, not from other individuals, but from the government.
Along with ending the production, trade and consumption of alcohol statutes were being used by government to force sterilization of the genetically unfit, to prevent individuals from engaging in homosexual behavior, to keep people from killing themselves, and to limit their right to make reproductive choices for themselves. Instead of challenging the government’s use of statute to limit freedom civil libertarians retreated to this convenient but specious concept of privacy.
The government had ignored their most elemental right, namely freedom. The response of civil libertarians was to create a specious ‘right.’ The correct solution would have been to ensure that government not interfere in the personal or commercial lives of Americans by rescinding statutes.
To tie the issue of freedom to privacy is to use a hammer to file your nails. Why this happened is obvious. At that point in time civil libertarians were faced with the growing specter of the various forms of collectivism that were to blight the forward progress of the twentieth century, powered by the growing unrest caused, ironically, by having ignored the injustices flowing from the government’s original failure to make freedom available to all. The poor, women, blacks and minorities were inferior in constitutionally guaranteed rights.
Women were the muscle of the movement for social justice in the early years of the past century, moved by the failure of the Founders and subsequent generations to recognize their rights to self determination. Their cause was just. The tools they chose were unfortunately collectivist. Those who spoke the verities of individual rights had ignored their plight and the use of statute was adopted as a justifiable means for doing what freedom adherents had failed to do.
Failing to do the right thing has down stream consequences. Now, we should learn the lesson.
Therefore the present understanding of privacy should be rethought as follows. Confidentiality is a contractual relationship, mutually agreed to, such as exists between physician and patient, attorney and client. Within that covenant behavior and unpalatable truths are protected. The asserted ‘right to privacy,’ as a means of avoiding the truth regarding undeserved reputation does not exist. Facts are private when they are not known to others. No ‘right’ to privacy exists through the Bill of Rights. Privacy, as a means of evading the disclosure of unpalatable truths does not exist outside the contractual agreements limiting the actions of consenting parties.
We will now relate this line of argumentation to the 1st and 2nd Amendments.
The 2nd Amendment would appear to be about ‘the right to keep and bear arms.’ But in actual fact it has a broader application, that being the right to self defense, the expression of that being at the time it was written entirely bound up in the possession of weapons which were technologically adequate to the needs of the people to revolt against oppression in the year 1776.
This is incomplete. All tools for the protection of the individual should properly be included within our understanding of the 2nd Amendment. Truth is a tool, a weapon of appropriate defense in the hands of the innocent, and cannot and should not be limited by the use of ‘privacy.’ Further, its use should not be limited by the abuse of power by other individuals, the court system or by government.
We are not used to thinking of truth as a weapon, but it is.
The Founders thought they had taken care of the issue of free speech as a tool for self defense. The example of Zenger, the printer who ran afoul of the Royal Governor of New York in 1735, and so established the concept of the right of jurors to rule on the law as well as the facts, was clearly within the purview of their experience. This is the principle of jury nullification.
Zenger broke the law according to the statutes. He was found innocent because the law was unjust. His right to speak the truth was superior to all statutes. The truth was not to be abridged. Clearly, the Founders understood the potential for statutes to void the rights they protected within the Bill of Rights. Statute is always inferior to rights secured by the Bill of Rights and the natural rights of humankind.
This previous example refutes the creation of a ‘right of privacy’ from the 4th Amendment.
The truth was seen by the Founders as a weapon of social correction and self defense.
The NeoCon Cabal today continues the bad precedent created by civil libertarians who feared government, using the tool of ‘privacy’ and ‘executive privilege’ to protect deceit. Government has been lying to us for a good long time but the NeoCons have taken this to a new level. The use of lies is foundational to the philosophy of NeoConservativism as emoted by Irving Kristol and by Leo Strauss, the philosophical mentors to this administration.
First, make sure your ugly behavior does not become known. Then find the means to have your own deceits accepted as truth.
The NeoCons saw the potential to use the media for their own purposes. They had learned from watching others do the same on a smaller scale and brought with them the Trotskyite methods of their origin in the left.
The fourth estate, the media, with traditional newspapers, writers of subjects relating to politics and policy, and now radio and television, are no longer a reliable means for ascertaining the truth. Instead they have morphed into a form of entertainment at best and at their worst the public relations arm of political parties and the primary owners of political parties and corporations. Depending on who owns them they line up to produce and so be paid.
Corporations are the third part of the story.
The Founders lived in a world where wealth was held by individuals. The first such corporation was East India Company. Founded by Royal Charter in 1600 the first limited liability corporation, gradually assumed the form of a government, enabling and justifying the take over of India by the British Crown.
This early limited liability corporation was enormously profitable to its investors and the British Crown. But this wealth was not created but transferred from producers. Governmental heads of the various sultanates in India traded access to the markets and merchants residing therein in exchange for advantages accruing only to themselves. The East India Corporation was therefore a middle man, taking from the producers but supplying no value in exchange. In 1670, through five acts of Parliament, the East India Company was granted rights that made it, effectively, a nation in itself, exercising rights of dominion over millions of Indians who had no recourse or choice in the matter.
So the tendency for corporations to become quasi-governmental entities, reaching for and asserting rights reserved to governments and individuals is of long standing. Corporations are now invested with an artificial personhood that makes them potentially immortal. They are not vulnerable to the impact of strict liability or social ostracism as are individuals. While the majority of businesses engaging in commerce are owned by the individuals who run them there remains a class of corporation that has worked to enjoy the benefits of citizenship while evading the balancing accountability. That class of corporations ignores the issues of informed consent, benevolent outcome, and individual autonomy.
Discriminating between the uses of the form of incorporation is an essential element for ensuring humanity moves in positive directions. Incorporation is a tool of human devising; it is not natural. Corporations should not be protected under the Constitution.
In the world of the Founders, the corporation, as we understand it today, did not exist. Wealth brought power but the power of wealth was limited; individuals holding great wealth died. Their heirs usually dissipated the accumulation of wealth over a few generations. It was a small world and reputations were not subject to the spinning all too familiar to us today. The truth was not as much at risk because the tools of truth and the right to enforce those tools remained very much within the control of the people as a whole. It was a small world and reputation mattered.
The Founders did not imagine that entities like corporations as we know them today would ever exist and could not therefore defend against them.
It was only in the 1960s that corporations succeeded in assuming personhood. Since then the irresponsible and grasping subset of corporations have been working at supplanting government. They are succeeding. The dynamic thereby produced is both complex and simple. The means used to control and steal are many, the formula remains the same. Lie. Distract. Take. Do it again.
Having formulated a powerful set of tools, the ‘right to privacy,’ the means for broadcasting disinformation, and then the means for displacing the original vision of American government through a collation of corporate entities, the pieces were in place for turning the representative republic originally visioned by the founders into a federal empire.
Thomas Jefferson said that we should have another revolution every twenty years, that being the maximum time that a government could remain free of corruption.
“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.”
Americans should listen to the words of their founders and consider carefully what actions seem best.
Corporations have come to exercise rights superior to those of individuals. Each of these is a conversion of an existing institution of American life; paid for by the people, but used by those who are building the federal empire we now see taking shape. It could not have happened without generations who ignored the essential issues of freedom.
Using the military, Social Security, the department of Social Services, education, disasters, the court system and the wistful hopes of a Nation those in change continue to steal. For most of them it is the only job they have ever held. While this is going on the series of mistakes made by wishful civil libertarians, hoping that band-aids will fix the problems, continue to accumulate.
It is time for real answers and we can only hope it is not too late.
Elect an elk as president. They are quick of eye, keen of perception, swift of foot - and tasty when roasted over a slow fire; a much better deal than the bunch in office today.