Sunday, July 4, 2010

Text and Subtext

Today we celebrate not the 234th anniversary of the birth of this nation, of our declaration of independence—that was two days ago on July the 2nd, the date that the Continental Congress unanimously passed Mr. Richard Henry Lee's resolution of independence, the day on which the United Colonies of America became the United States of America. No, we celebrate the 234th anniversary of the publication of the formal text stating the reasons for that independence. We celebrate not the act but the explanation, not Independence but the Declaration. Today we celebrate the power of words, of ideas, of reasons and reason. The great acts were on April 19th, 1775, which is commemorated as Patriots Day only in the Massachusetts, our offspring state Maine, and for the past decade, the state of Wisconsin, and July 2nd, 1776, which is not to my knowledge celebrated, despite John Adams' prediction.

The precise words of the Declaration and their history has been in the news lately as modern technology has shown what has been long suspected, that while writing the rough draft, Jefferson obliterated the word "subjects" and replaced it with "citizens". This change along with several others shows how new the ideas in the declaration were, how even the authors of the document, among the most eloquent speakers and writers of their day struggled to overcome the linguistic conventions of the ideas and mindset that they were overthrowing.

Elsewhere in the draft we find a reference to George the Third that reads:
The History of


king of Great Britain
Jefferson was obviously having trouble shaking off the styles of monarchy, of thinking of, or at least referring to the King as "his Majesty" and the people as his subjects. His original phrasings presume that authority flows down from God to King to subject to slave, but the very words of the document declare that "governments are instituted among men, deriving their just powers from the consent of the governed", who in turn are "endowed by their Creator with inherent & inalienable rights" in the words of the draft. Jefferson and the Founders were in the process of standing the social order on its head. No longer did authority come from the divine right of Kings, but from the natural rights of the people, the governed. This was a whole new theory of rights, authority, government and law.

This mistake of thinking in terms of authority deriving from the inherent power of those who govern is still made today, in the pages of our newspapers, the seat of our government and the maunderings of our pundits. It was not long ago that the Attorney General of the United States made the deplorable assertion in sworn testimony before Congress that "there is no expressed grant of habeas in the Constitution" as if the Constitution grants rights to the people rather than ceding the power of the People to the government. How often do we hear the President referred to as "Commander in Chief of the American People" as if he has the right to command, rather than being the servant and tool of the people? How often do we hear that foreigners, immigrants or terrorists should not receive the "rights the Constitution grants citizens"? According to the theory that Jefferson was struggling to fit his words to, these questions and claims are nonsense. Nature or Nature's God endows us with rights. The Constitution protects them, and grants limited power to the government that it creates, that it "constitutes".

That theory is basically the same as that found in Thomas Paine's "Common Sense", written a few months earlier, and derives in large part from the writings of John Locke, who crystallized the Enlightenment thinking that was evolving in the coffeehouses and the Freemason lodges and private clubs of England, Europe and the colonies. Here's what Locke wrote in the second chapter of "On Civil Government":

§ 6. But though this be a state of liberty, yet it is not a state of licence: though man in that state have an uncontrolable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent and infinitely wise Maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not another's pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy another, as if we were made for one another's uses, as the inferior ranks of creatures are for ours. Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice to an offender, take away or impair the life, or what tends to the preservation of life, the liberty, health, limb, or goods of another.

Locke had two basic formulations that he used most often to describe the natural rights of man: "Life, Liberty and Property" and "Life, Health, Liberty and Possessions". Jefferson uses a slightly different formula. In the draft he initially writes of "the preservation of life, & liberty, & the pursuit of happiness", but he, or one of the others, shortens that to the pithier "life, liberty and the pursuit of happiness". The difference is worth noting. According to the natural rights reasoning, life and the ability to enjoy it are fundamental rights, rights that we can deduce from the very act of Creation. The rights to liberty, health and property are essential rights because they provide the necessities for life and its enjoyment. All of these are inherent and inalienable, whether they are primary or secondary. And so, Jefferson replaces health and property with "the pursuit of happiness" and in doing so presages the Utilitarian philosophy of Jeremy Bentham and John Stuart Mill. (This makes Bentham's mocking "Short Review of the Declaration" a little ironic.)

Interestingly, Jefferson didn't see the inspirational second paragraph of the Declaration as being all that important. For him, the key purpose of the Declaration was to air and enumerate the grievances that forced the colonies to declare their independence. His first paragraph basically says that declaring independence is a drastic step and we owe to the world to explain why we take it. The last paragraph actual declares independence. The bulk of the document lists the causes, the grievances. The second paragraph is there simply to lay the groundwork for the list of grievances, to set forth the philosophical assumptions and reasoning. It is merely the background. And therein lies its tremendous value. It is a one paragraph summary of the revolutionary philosophical underpinnings of the birth of a nation, the first nation conceived in and dedicated to a philosophy, rather than being an expression of raw power.

The Macintosh comes with a service for summarizing any document or text. If you set it to summarize by paragraphs, feed it the Declaration, and restrict it to one paragraph, it chooses the last, but if you set it to two, it chooses—rightly—the second and last. The first is preface, the bulk just a list of complaints. The second is the philosophical grounding and the last is the concrete action.

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. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. --Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.


We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

There is another whole section that was being reworked in the rough draft, but which was eliminated in toto from the final version of the Declaration, namely the reference to slavery, which read,

he has waged cruel war against human nature itself, violating it’s most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. this piratical warfare, the opprobrium of infidel powers, is the warfare of the CHRISTIAN king of Great Britain. determined to keep open a market where MEN should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce: and that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people upon whom he also obtruded them; thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another.

And while this section was removed, and slavery continued on for another four score and seven years, the words of that inspiring second paragraph, that all men are created equal, as the great modern orator Byron Rushing has pointed out became the property of others, of posterity and the law, and when combined with the legal reasoning at the heart of Anglo-American Common Law, ultimately resulted in the abolition of slavery, as we could no longer deny that "All men are created equal and endowed by their creator with certain inalienable rights" means just that—ALL people.

And so on this Independence Day, it is worthwhile to reread the Declaration of Independence, in all its drafts, to reflect on the text that is there and the subtext that is revealed as we study the context, the other writers, the other documents and the history of the times.

Sunday, January 31, 2010

Of Persons, Corporations, Money and Speech

These are the times that try men's souls. On the one hand we have the Supreme Court of the United States empowering corporations at a time when they already come far too close to owning our representatives, our government and our country. On the other, we have a populace that doesn't understand how our most fundamental principles tie to either this question or the trying of accused terrorists.

Someone MUST speak out about the nature of our Rights and our Constitution.

We seem to have forgotten the truths that our founding fathers took to be self-evident, the principles to which our nation was dedicated. Many on the left are decrying the recent Citizens United Supreme Court decision, while at the same time civil libertarians often thought to be on the left have spoken in defense of the decision. As it turns out the questions here are not simple, and to work them out requires really knowing both how the system works and what the underlying principles are. It's not easy stuff, and we seem unprepared for it.

Let me start by agreeing with those who fear undue influence and power is given to the corporations, domestic, foreign and multinational by this decision. This decision does, in fact, remove important safeguards against the super-rich corporations overwhelming our electoral process with huge amounts of money. Not only that, but it opens our government to the influence of foreign money and foreign-owned corporations. It's easy to sneer at that last accusation (one Supreme Court Justice did just that), claiming that the decision only applies to US corporations, but that ignores the fact that being incorporated in one of the United States is very different from being owned exclusively or mostly by US citizens. Citgo, for instance is incorporated in the US, but it is owned by PetrĂ³leos de Venezuela. It is a "US corporation", ye, but it is also an entirely "foreign owned corporation". If Citgo has a right of free speech that allows it to finance political campaigns in the US, then Hugo Chavez who runs the government of Venezuela, who owns PDV, who owns Citgo, has that right. Many people think that this is not a good thing.

But let me also say that people like Glenn Greenwald and Jonathan Turley also have a very real and valid point that the decision in Citizens United, which empowers Citgo, and PDV and Venezuela and Chavez is based on long standing principles of Constitutional law, law that has both important practical justifications and a basis in our most sacred principles. Greenwald has written on the topic at "What the Supreme Court got right" and "Follow-up on the Citizens United case". I recommend reading both, though I do not agree with everything that he wrote. Turley wrote a lengthy commentary in his blog and spoke about the topic on a segment of Countdown.

Greenwald makes the point that none of the nine Justices agree with those of us who argue that it is a problem that the law holds that corporations are people and that money is speech. On the latter he lays out a rather specific challenge. He says that if we are to claim that speech isn't money then we have to explain what will protect us from laws like the following (he gives several hypothetical examples, I'm using one for brevity):

"It shall be illegal for anyone to spend money to criticize laws enacted by the Congress; all citizens shall still be free to express their views on such laws, provided no money is spent;"

My own response is that this is absolutist rhetorical flummery, that if money is speech, you get into problems just as deep:

If money is speech, then the First Amendment must give me the right to pay my Congressman to take an action I wish him to, because I have the right to tell him what I want him to do.

Clearly I have a right to tell my representative what I want him to do. If I cannot, I have lost not only the right of free speech, but also the right to representation, which is definitionally inherent in a Republic. But that doesn't give me the right to put my money where my mouth is and pay him to vote my way. That's bribery and corruption.

In the end, I do not believe that either absolute extreme, that money is speech or that money has nothing to do with freedom of speech is tenable, but, and it is a big "but", but Constitutionally protected rights, natural rights tend to be absolutist. That is one of their strengths. "Congress shall make no law..." like "Thou shall commit no murder" (I hope you'll forgive my slightly non-traditional, but I believe accurate translation of the Commandment) is strong because it is a prohibition. once you get into qualifying them you start allowing loop holes and we all know where that gets you.

I think we need to recognize that Constitutionally protected rights are not an artifact of law, are not granted by the government, judges or the Founders, but are rather natural rights, with which we are endowed by our Creator, whatever you consider said Creator to be. Corporations, are NOT natural, though. They ARE social constructs, the product of law, goverment and the consensus of society. When we constitute them, when we incorporate them as entities within our legal system, I think we have to say that they have rights, but that those rights are not inherent, that they derive from the rights of the people they comprise, and who create the corporations. We endow the corporations with rights and we can limit them.

Similarly, money is a social construct and while there are certainly moral aspects to money and to its use, it is not, in and of itself, speech. It can be used to enable or discourage speech and can be used to violate the rights of others, or with deference to their rights or to empower people, ourselves or others with regard to their rights. "Money is speech, speech is protected, money is thus protected" is a nice syllogism. It is simple and understandable, it is easy to derive conclusions from it. But it is oversimplified.

Einstein was right. "Make everything as simple as possible. And no Simpler."

Where does that analysis get us? Certainly NOT to a Constitutional amendment. But, given that corporations are created by legislation, Why can't legislation explicitly limit and define the rights and obligations they have? And since corporations are primarily commercial in nature, why can't regulating them be a federal function? The state laws define and control corporations and the methods of incorporation, but in the name of regulating interstate commerce, cannot the federal government set certain limits on corporations and the laws that control them?

This ties in to a number of issues before us today:
  1. The empowering of corporations on the grounds of free speech.
  2. Regarding money as speech and thus giving the extremely rich a greater practical right to "speak".
  3. The influence of foreign money through the free speech of US incorporated, foreign owned corporations.
  4. The right of all US citizens and anyone in the US to habeas corpus and trial by jury.
  5. "Getting FISA right" and the potential abuse of the USA PATRIOT Act.
  6. A system which allows the government to try accused terrorists in whichever court they know they can convict them in.
For all of these, it is important to understand the nature of rights in US Constitutional principles. We need to ground these discussions not only in what makes us safe from terrorists or corporations or corruption, but in terms of the natural rights that all men are endowed with and which we the people do not allow our government to violate. Our fundamental, natural rights are not granted by the government, the King, or the Constitution, and understanding that, and the principles our whole system is based on is both important and sadly lacking in the discussion of a lot of these and other critical issues.