Truth Faileth And With It Charity

"And judgment is turned away backward, and justice standeth afar off: for truth is fallen in the street, and equity cannot enter.

Yea, truth faileth; and he that departeth from evil maketh himself a prey: and the Lord (sees) it, and it (displeases) him that there (is) no judgment."

 

- Holy Bible; Isaiah 59: 14-15

Bill of Sale

Legitimized By and Delegitimizing the Constitution?

Electoral majorities do not empower officials to suspend or subvert a Constitution to which they owe their very legitimacy as leaders.

Protector of Property?

In the Federalist Papers, Mr. Hamilton wrote that: “Energy in the executive…is essential…to the protection of property (of Americans) …A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.”

Checks and Cages

In the previous post, I observed that the Supreme Court's influence is greatly diminished relative to its former influence: in 1900, the Supreme Court rendered about 1.4 verdicts per 100,000 American citizens in five years time; today, the Supreme Court renders about 0.13 verdicts per 100,000 American citizens in five years time.  In other words, by this measure, the Supreme Court's influence was ten times as great in 1900 as it is today:  in 1900, there were ten times as many judicial opportunities to check the growth and reach of the federal government.

While there are fewer judicial checks on the growth and reach of the federal government, the reach of the judiciary into the lives of the American people has not been shortened by at least one ominous measure.  Regarding incarceration, the caging of once-free men, the grasp of the judiciary is far greater than it has ever been.

In fact, it is far greater in both nominal and relative terms.  In 1900, only 69 of every 100,000 Americans were incarcerated in state and federal prisons; by 2000, 478 of every 100,000 Americans were incarcerated in state and federal prisons.  In 2010, 731 of every 100,000 Americans were incarcerated.  In other words, incarcerations are accelerating:  exponential growth appears in both nominal and relative terms.

The "Caging of America" was the subject of a recent article by the New Yorker which observed that "Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country...Over all, there are now more people under 'correctional supervision' in America—more than six million—than were in the Gulag Archipelago (Siberian concentration camps) under Stalin at its height."

According to Rose Heyer of the Prison Policy Initiative, "the United States is now the global leader in incarceration".  Of course, we didn't vie for this distinction.  In fact, it is embarrassing.  It seems rather unprogressive for the leader of the free world to cage more and more of its citizens.  So, how did we earn this distinction?

As illustrated in my previous post, it was ten times as likely that the Supreme Court would act to protect one from government in 1900 as it is today.  The United States Constitution sought to protect the people from the government (not the government from the people) by granting the judiciary the power and duty to check the exercise of executive power in execution of the law.  This leaves one to wonder:  does the lack of checks, as observed, explain the cages?  While confluence will not prove correlation, perhaps additional research would?

Supreme Court's Influence in Decline

Apparently, the influence of the Supreme Court is in decline.  The Supreme Court's caseload was about 3 times as great between 1900 and 1904 as was its caseload between 2007 and 2011: about 1032 cases were heard in the five year period between 1900 and 1904 while only about 402 cases were heard in the five year period between 2007 and 2011.  In other words, a century ago, there were about 3 times as many verdicts rendered by the Supreme Court.  To summarize, in 1900, there were three times as many judicial opportunities to check the growth and reach of government.  This is notable.

But it is even more striking given the observation that follows:  there are four times as many Americans today as there were in 1900.  A century ago, the population of the United States was only about 25% of what the population is today.  In other words, a century ago, there were three times as many judicial opportunities to check the growth and reach of government at a time when the population was a small fraction of what it is today.

Consequently, the Supreme Court's influence is greatly diminished: in 1900, the Supreme Court rendered about 1.4 verdicts per 100,000 American citizens in five years time; today, the Supreme Court renders about 0.13 verdicts per 100,000 American citizens in five years time. By this measure, the influence of the Court has been reduced 90% from what it was in 1900.  In other words, by this measure, the Supreme Court's influence was ten times as great in 1900 as it is today.  Of course, this measure of influence does not assess the influence of the Court relative to the other branches of the federal government.  Of course, this measure, which suggests that the influence of the Supreme Court has been diminished by 90%, does not consider the effect that partial, statist, and/or pro-federal verdicts might have on the Court's current ability to check the influence of the other branches of the federal government.  While it is not the subject of this post, pro-federal partiality would be an interesting topic to consider across a century--especially given its potential to incrementally diminish the Supreme Court's influence relative to both a) its former influence and b) its influence upon the executive and legislative branches of the federal government.  But this is a topic for another day.

Nonetheless, the diminution of the Supreme Court's influence helps to explain the present polarity of presidential politics.  We Americans worry, perhaps with reasonable cause, that we have elected not a President--but a King?

Man in Black

Faced with a decision about whether the Supreme Court could even hear a case about warrantless federal spying and whether anyone could even challenge a law that allows the federal government to spy on its citizens without judicial warrants, perhaps the most conservative Supreme Court Justice, Antonin Scalia, opined that some laws are now beyond judicial review. “We’ve had cases in the past where it is clear that nobody would have standing to challenge what is brought before this court,” he said. “That just proves that under our system of separated powers, it is none of our business.”  Plaintiffs lack standing because all evidence is concealed as secrets of state: the court will not or cannot compel evidence.  So, according to perhaps its most conservative Justice, it is "none of (the Supreme Court's) business" to check warrantless federal spying.

Made In China: US Interest Rates

For at least four to five years, China has largely determined US interest rates.  In other words, US monetary policy is not its own--its China's.

I just correlated daily US interest rates as reported by the Federal Reserve to the daily dollar/yuan exchange rate (Treasuries of all maturities to the dollar/yuan exchange rate).  The statistics show that the China-managed dollar exchange rate has largely determined interest rate changes in the US.  In fact, Chinese policy accounts for almost all of the change in medium-term interest rates in the US (on five-year Treasuries the r-squared is about 70-75%).

The irony here is that a communist country is planning the economy of our Christian nation and has been allowed to exploit us with mercantilism which the President and Congress have enabled (or have not hindered).

Is currency manipulation a concern?  What if currency manipulation means China determines US interest rates?  It seems that it does.  Okay, so rates are low.  But what if China's Premier suddenly decides to raise US interest rates?  Central planning for our economy (ie. interest rates) will emanate from China.

How Capitalism AND Central Planning Failed

A war is being waged on capitalism.  And for capitalism.  In America.  It is as if we are being asked to decide between governing economic systems.

But the founders of our Republic did not create an economic system.  They created a rule of law--the Constitution of the United States.

In 2007 and 2008, financial markets collapsed.  Wealth evaporated.  It was a certain indication that, unchecked, capitalism is rapacious.  Armed with evidence that capitalism is effete, antagonists reacted against it.

Thereafter, reactionist economics was used to justify extra-legal and otherwise unconscionable redistributions of property and rights.  Recently, industries like banking, insurance, the auto industry, and green energy have become part of central economic plans centrally funded--with your money.

But apparently, this intervention has not improved the economy. 

Much of this economic activity, of capitalism and of central planning, from at least 2007, has contravened existing law.  It has made investment in the American economy uncertain and unprofitable.  Wealth has been redistributed without regard to justice or the rule of law. What's worse, wealth has been redistributed away from those who uphold or would uphold the rule of law (ie. the middle class).

But the economic cures we have been offered were the wrong prescriptions.  As cure for Wall Street's confiscation of Main Street, we were prescribed central economic planning by government.  Capitalism, unchecked by the Constitution, failed; now, central economic planning, unchecked by the Constitution (see my post "Is Justice Alive and Well?") is failing:  high unemployment persists and the middle class is worse off.

So, what is missing?  We've tried economic solutions.  The economic solutions we've tried put science (ie. economic science) above the law.  Now, we are worse off.  But reason would suggest that even science ought to be beneath the law.  Otherwise, ours is a rule of science.  And science has shown how it operates: in laboratories; by experiments.  Do we want to be human experiments in a world laboratory?

As a governing unity, economic science has an abysmal record.  Economic plans and capital controls invariably become despotic social plans and human controls.   For example, in Russia, the idealism of Marx became the realism of Stalin.

Perhaps, some say, China is an exception? After all, the gross domestic product of the Chinese economy has probably now surpassed the U.S. GDP. This is remarkable. But is it sustainable? Has the record of China surpassed America's record on human rights, household wealth, stability, and duration? We note that the Peoples' Republic of China was constituted in 1949 while the Constitution of the United States was ratified in 1788.   Has any nation, in all of the world's history, enjoyed as prosperous a tenure as has the United States?

Here, then, is what is missing in our economy: the rule of law.  In its absence, property and prosperity went missing.  Let's return to the rule of law.  If we can reinstate the Constitution as the supreme law, we can expect economic prosperity by and by--without egregious confiscations of property by others (ie. Wall Street) or for others (ie. presumably the less fortunate).

Fellow Americans, don't be deluded by economic arguments. Let's defend the Constitution of the United States. Economic prosperity will follow.  God bless you!


Whoseman


Dear reader, if you are not American, this may sound heartlessly nationalist.  Understand that we want you to enjoy the rights American citizens have enjoyed under the Constitution.  Can we ever enjoy these rights together or separately if we Americans shrug off what Abraham Lincoln called "the last best hope of earth"?

Profession

It is interesting that the word profession arises from the word profess and is related to the word professor. In history, what one professed generally determined one's profession. Professing allegiance to a tyrant, one might become his counsel. Professing opposition to a tyrant, one might expect imprisonment. Isn't it still true that what we profess influences or determines our profession (for other present parallels see my post entitled "Is Justice Alive and Well?")? After all, isn't it exceptional to find a self-declared conservative among professors (ie. economics professors)? Isn't it rare to find a self-declared conservative among trial lawyers? Perhaps one prerequisite to these professions is professing progressivism? And for their professions they are richly compensated. Perhaps one impediment to employment in these professions, and some other very high-profile professions, is a failure to profess what has been deemed "progressive"? Is there an economic penalty for failure to profess what is "progressive"? Economic research might consider that topic. And do some of the less fortunate in America then wrongly attribute their relative economic misfortune to fate or God--and fault Him for it in ignorance? Philosophers might consider that topic. And what is progressivism?

Progressivism is a political philosophy advocating economic, social, and political reform. During the era of trusts and sweatshops, some reform in America was self-evidently necessary. But I think you will agree that reform ought to have some constraints. Are all reforms progressive? Must we reform everything to be progressive (ie. our calendars, our language, our conception of religion or marriage)? Shall we remake our society on an economic ideal--purged of literalism and moralism (see the post entitled "Is Justice Alive and Well?")? What if we don't want the essence of our Constitution to be reformed? What if we don't want to be purged of literalism and moralism in favor of economic liberalism? Are we then consigned to low-wage professions because we professed what was not progressive? Without constraints on reform, what is the end of progressivism? For example, would it be progress, for all humanity to be subjugated under a unified economic world order? Would the means to that end be "progressive" or would it be depraved? How would the end then differ from the means employed to effect it?

When Justice Fled

In history, it was observed that "the law is slacked, and judgment doth never go forth".  This observation was made by Habakkuk, a prophet of the Old Testament (Habakkuk 1:4).  Slack, the law would cause the weak, the infirm, and the invalid to stumble while the strong would leap over it.  Slack, the law might, on demand, be made taut to address political expediencies (see my post entitled "Is Justice Alive and Well?").  Habakkuk's observation that the law was slacked, coincided with the coming of Israel's Babylonian captivity.  Ten of the twelve tribes of Israel were carried into captivity from which, to our knowledge, they never returned.  Did their disregard for justice in law coincide with their capture and captivity?  Will our preference for economic and secular interpretations of the law invite capitivity for Americans?

Elegant Smiles

There are those in our community who, with elegant smiles and outward certitude, are trying to turn the internet, neighborhoods, activities, and relationships into webs that snare others. Like the Pharisees, refusing to enter God's kingdom, they seek to hinder others.

If we allow these detractors entice us, their efforts will join us with the whore of the earth, described by the Apostle John, in the Book of Revelation (Chapter 17). There, we are warned that, ultimately, the beast that the whore rides, earthly kings, will hate the whore, reveal her nakedness and desolateness, "eat her flesh", and "burn her with fire". To me, it sounds like an inquisition based on the use of information technology and surveillance to discover and reveal secret iniquity, to enable possession and consumption of those who have been joined to the whore at the discretion of those in power--however briefly.   The technology for an inquisition, like that described, already exists. It is being implemented at super spy centers (ie. in Bluffdale, Utah).

Beware the whore.  Beware those who would ensnare you in any way.   If you would be free, be free of sin through Jesus Christ.  If you are ensnared, you can be released by and through Jesus Christ.

If you prefer to captivate others, it may seem to you for a time that you are in control, but you will find, as John predicted, that "he who leadeth into captivity goeth into captivity".  God bless you to evade captivity.

The UnTIED States of AmerCIA

Red or blue:  the UN-TIED STATES OF AMER-CIA.

Where is the white that once unified us--whiteness of intent that made America a city on a hill?  Can the CIA / National Security Agency reconcile and unify us with its new super spy centers which were developed in contravention of Constitutional rights?  For more on this, see http://www.wired.com/threatlevel/2012/03/ff_nsadatacenter/all/.

Why didn't the Germans get off the Nazi train?

We shouldn't forget that Germany was a Christian nation in 1933.  So why didn't they get off the Nazi train?  Before Kristalnacht?  Before Barbarossa?  Before Stalingrad?  Before Auschwitz? 

Was it fear or pride or grudge or gain or prestige or prospect that kept them until the last cattle car rolled into Auschwitz without cattle?  And its contents walked to the gas chambers.

Judiciary Impartial?

"The probability that we fail in the struggle ought not to deter us from the support of a cause we believe to be just."

- Abraham Lincoln

Where are the Lincoln lawyers and judges?  Where are the judicial checks on abuses by government (ie. abrupt economic confiscations and redistributions -- see Is Justice Alive and Well)?  Why have we abandoned the only real basis for law--moral absolutes like justice and morality?  Where are the judicial watchdogs?  Perhaps it was a mistake to require attorneys to attend three years of law school and pass a bar exam to practice law?  After all, Mr. Lincoln was licensed through homestudy.  The required investment of time and money in law school and the wage differential an attorney may anticipate coupled with the peer pressure to profess progressivism (see my post "On Ascent") and to advance economic interpretations of the law (see my post "Is Justice Alive and Well?"), might suffice to coopt one to a conformity that is adverse to the rule of law itself--a conformity that enables the executive to run roughshod over constitutional rights.

Do Unto Others

Loyalty, it has been observed, is the chief characteristic of love.  Acts of apparent disloyalty, then, one might surmise, always exhibit a lack of love.

To early Christians, the first and great commandment was to love God.  Because He is perfect, we can love God and be loyal to God without any reserve.

The second great commandment was to love others as we love ourselves.  But naturally, we are "brutish" in knowledge, according to Jeremiah, and "children", according to Christ.  So we love ourselves and others with some reserve and we love God without any reserve.  Our absolute loyalty must be reserved for God and truth as revealed by Him.

We tend to misunderstand loyalty.  For the sake of friendship, understanding, mutual affirmations, and shared benefits, we often compromise.  Giving our self away is a good thing--if we don't give up on God.  But some would require our absolute devotion.  Some would require our devotion to darkness, to deceit, and to dominance of others.  They would have us put our loyalty to them before our loyalty to God.  Like sticks, their prestige, power, wealth, or fame, might make us fear to do what might appear to be disloyal to them (ie. to speak out).  Like carrots, they might give us opportunities, honors, and riches for our acts and professions of loyalty to them--however secretively.  But we hazard our souls and our civilization on loyalty to such persons and causes.  It is disloyal for others to induce us to do what is wrong.  It is disloyal for them to expect us to follow them in error.  When courageously, we correct them, if they love God and others more than money and power, they will amend their ways and we should embrace them.  If not, the Golden Rule suggests that we should do unto them as we would have them do unto us if we were in error--we would want them to work to reconcile us to God (and not to brutish men).

It is loyal for us to oppose misdirected persons and false ideas.  Our loyalty to the best in them and to the truth causes us to oppose error.  We do it with their best interests in mind, for God, for ourselves, for our children, and for others--sometimes at our own expense.  Can we do otherwise and still be loyal to God?

On Ascent

Jeremiah observed that "every man is brutish in his knowledge" even that "the pastors (leaders and shepherds) are...brutish."

"Let not the wise man glory in his wisdom, neither let the mighty man glory in his might, let not the rich man glory in his riches. But let him that glorieth glory in this, that he understandeth and knoweth me, that I am the Lord which exercise lovingkindness, judgement, and righteousness, in the earth: for in these things I delight, saith the Lord" (Jeremiah 10:14, 21; 9:23-24)

Without light and knowledge from God, we are brutes. Leaders or groups who deny, reject, and/or offend God will become brutes and will cause civilization to become brutish.

When spiritual darkness prevails, the brutish ascend. This ascent affirms them. And they affirm their mentors. Together, they reason: "are we not ascendant?" "Surely, as cause for our ascendancy, we must have done something right, done something worthy?" Without proper attributions to God and His enlightened purposes, the ascendant attribute their ascendancy to their own cleverness. What's more, they attribute the relative servility of others to some deficiency. But isn't it really presumptuous, even deluded, to omit to consider dumb luck, or inheritance, or one's professions (and etc.) as the source of one's ascent--especially in an increasingly politicized environment?

It is interesting that the word profession arises from the word profess and is related to the word professor. In history, what one professed generally determined one's profession. Professing allegiance to a tyrant, one might become his counsel. Professing opposition to a tyrant, one might expect imprisonment. Isn't it still true that what we profess influences or determines our profession (for other present parallels see my post entitled "Is Justice Alive and Well?")? After all, isn't it exceptional to find a self-declared conservative among professors (ie. economics professors)? Isn't it rare to find a self-declared conservative among trial lawyers? Perhaps one prerequisite to these professions is professing progressivism? And for their professions they are richly compensated. Perhaps one impediment to employment in these professions, and some other very high-profile professions, is a failure to profess what has been deemed "progressive"? Is there an economic penalty for failure to profess what is "progressive"? Economic research might consider that topic. And do some of the less fortunate in America then wrongly attribute their relative economic misfortune to fate or God--and fault Him for it in ignorance? Philosophers might consider that topic. And what is progressivism?

Progressivism is a political philosophy advocating economic, social, and political reform. During the era of trusts and sweatshops, some reform in America was self-evidently necessary. But I think you will agree that reform ought to have some constraints. Are all reforms progressive? Must we reform everything to be progressive (ie. our calendars, our language, our conception of religion or marriage)? Shall we remake our society on an economic ideal--purged of literalism and moralism (see the post entitled "Is Justice Alive and Well?")? What if we don't want our Constitution to be reformed? What if we don't want to be purged of literalism and moralism in favor of economic liberalism? Are we then consigned to low-wage professions because we professed what was not progressive? Without constraints on reform, what is the end of progressivism?  For example, would it be progress, for all humanity to be subjugated under a unified economic world order? Would the means to that end be "progressive" or would it be depraved? How would the end then differ from the means?

In any case, we should follow leaders who seek counsel from God--not those who seek to counsel God or deny God.

On Sedition

Sedition is the incitement of discontent or rebellion against a government.  It involves speech that promotes rebellion.  Sedition is not something we advocate or will advocate.  In fact, it is the opposite of sedition for us to petition for execution of the law precisely as it is written.  It is the opposite of sedition for us to defend the supreme law of the land.  It is loyal for us to do so. 

Consistent with constitutional law, we support the rule of law.  Not government by persons or personalities.

It is not seditious for us to reprove persons and personalities who hold a public trust or seek public ends—especially if they do not uphold the rule of law.  It is not sedition or terrorism or “hate speech” to do so--even in exigencies and emergencies.

 

On the other hand, is it not sedition for persons who consider America defective to enforce Constitutional law?  Is it not seditious for the rule of law to be smothered by economic ends (see my post "Is Justice Alive and Well?")?

Charisma and Demagoguery

Alexander Hamilton noted that "a dangerous ambition...often lurks behind the specious mask of zeal for the rights of the people.....of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people, commencing demagogues and ending tyrants."

Charisma and outspoken zeal for the welfare of others has often concealed dangerous ambitions.  For example, Stalin and Hitler had charisma; both purported to represent the common people or the homeland.  As ends, they promised peace, prosperity, and progress; as means, they used war, murder, and oppression.  They failed to grasp their ends.  In fact, their means became their ends:  Hitler's thousand year reich ended in ignominy and bitter defeat in about a decade; Stalin died alone and paranoid in a forest bunker and came to be despised by his own people.  Our means will become our ends.  Don't expect to grasp peace, prosperity, and progress with seditions, suppressions, or swords.

If we really want to make a change for the better, we must seek better means to our ends.  The best means is the Gospel of Jesus Christ.  It proposes love of God, others, and self.  And wouldn't that be the best end?

Dissidence and Discretion are Desirable

In a totalitarian society, what is studied is what subdues.  History is what exonerates the suppressers.  What is worshipped is what exalts them (the suppressers).  In a totalitarian society, only dead men tell the truth.

Salient Quotations from John Adams

"Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." 

 

"All the perplexities, confusion and distress in America arise, not from defects in their Constitution or Confederation...so much as from the downright ignorance of the nature of coin, credit and circulation."

"The Science of Government it is my duty to study, more than all other Sciences...I must study politics and war that my sons may have liberty to study Mathematics and Philosophy. My sons ought to study Mathematics and Philosophy, Geography, Natural History, Naval Architecture, Navigation, Commerce and Agriculture, in order to give their Children a right to study Painting, Poetry, Musick, Architecture..."

 

And liberty is tenuous again.  Will our sons and daughters have liberty to study what they choose unless we are a moral, merciful people, wise to the corruptibility of coin, credit and circulation, given to the study of the science of government, politics, and war?

Justice in America?

This cartoon, Justice under Economics, concerns law and economics in America.  To most of us, law and economics are distinct concepts.  But almost everyone who attended law school in recent decades took a course in law and economics.

This course considered the intersection of the law and economics.  The students learned that economics is a modern social science that seeks to optimize societal production, consumption, and investment.  Their legal curriculum suggested that the law is a codification of the evolving ethical reasoning of society.

The differences between the law and economics were striking.  For example, the law is divided:  by country, by state, by municipality, by jurisdiction, by court, and as to origin (ie. common law versus administrative law).  Unlike law which has many divisions, market economics purports to be a unity: it purports to prescribe what is maximally productive or efficient across cultures and borders.

Economics is modern and progressive when compared with the law.  Much of law is ancient, is cultural, is situational, and is outdated?

The law looks backward for precedents; economics looks forward with forecasts and prescriptions.

Justice defies measurement; it is case-specific and based in perceptions.  Meanwhile, economics provides neat numerical measures of societal utility (satiety)—if that can be made to represent broad justice.

Here is a science, they learned, that can independently or in tandem with other sciences reduce everything (however tenuously) to a monetary cost or price or value.  For example, an economist might, using the prescriptions of a psychologist, derive the monetary value of a mother lost to a child—if the psychologist’s prescriptions are an adequate substitute for a mother.

They learned that economic theory, like game theory, might suggest more efficient ways to compete and contend in a case or in a courtroom—if maximal monetary gain was justice enough.

Economic arguments, they observed, appeal to something which garners universal sympathy:  human want or need. Sympathies for literal and moral arguments are more heuristic— influenced by one’s experience with the law or moral at issue.

Economics can substitute the cool rationality of digits for the hype, heat, and heft of semantics in legal arguments.  Literal and moral arguments tend to be strident and divisive.  With economics, one can consider what is optimal, productive, and/or efficient--without the divisive freight of moral arguments.

Economics exalts self-interest as service to society; in a courtroom or in a political debate, self-interest is self-seeking partisanship.

From the perspective of economics, the regulation of law is an externality—something that inhibits or impedes the natural flows of capital and goods.  Economists assert that competitive markets efficiently ration goods and capital; courts don’t; if laws and governments didn’t intrude in economics, societal utility (satiety) would be maximized.

The law students probably came away from the courses with the vague perceptions that economics is unassailably mathematical and logical when compared with the law which is ad hoc, political, administrative, unscientific, and sometimes illogical.

During the courses, many of these law students probably made and shared some new and informed resolutions:  to be a prudent lawyer: to generally favor economic arguments as unifying to persons across classes and cultures and to spurn literal or moral arguments as difficult and divisive, to err toward an economic interpretation or execution of the law; to generally avoid a moralizing interpretation or execution of the law; to identify and represent only economic causes so as to have money and reason on one’s side; to only pursue a just cause for as long as it is economic; to retain experts who would provide “empirical” economic testimony to influence juries; to refuse cases that would pit one against economic collectives like the government and the legal community.

But in general, the classes did not provide the attorneys with the skills to measure economic value.  Without this skill, in practice, the newly minted attorneys and judges would only pursue clients, causes, and legal interpretations that they easily deemed economic or progressive.

Progressively, economics (and law) would enable detachment from literal interpretations and moral arguments when they would be inconvenient, illiberal, or unprogressive.  For example, “just compensation” to be paid to private property owners under the Bill of Rights when private property is taken for public use might be trivialized to “just compensation” as in “just yesterday”, thus losing all the ethical and moral freight of justice and equity, on behalf of an economic client like the state and its public.  It would spare one the duty to represent or defend or even concede a jury trial to a private “holdout” against the state and its public taxpayers because it would be non-economic and unprogressive, however just.  To allow state employees to be accountable for torts, even egregious or criminal torts, would be uneconomic—especially if one was a state judge on a state payroll.  An economic interpretation of the law would spare judges much of the political hazard of rendering justice—because an economic interpretation of law would almost always side with might.

With some reflection, the students probably deduced that:   what is economic generally promotes a welfare state:  it purports to represent what is best for the majority; it generally benefits the masses—often at the expense of the rights of individuals—unless the individual happens to be a Rockefeller or a Rhodes.  Law and economics naturally sides with the rich and the poor--to the detriment of the middle class.

Notably, what the law and economics classes probably omitted was a simple observation about the origin and timing of economics.  Relative to the origin of law, economics came late.  In fact, the English rule of law preceded the study of economics by five centuries.  It was in 1297, that the law of the land clause of the Magna Carta was confirmed by Edward I.  It protected persons and property from arbitrary imprisonment and confiscation.  The first study of economics only emerged in 1776 with the publication of The Wealth of Nations by Adam Smith.  In other words, the supremacy of law was instated in England and America long before economics emerged.  Much of economic theory was developed in the United States under the auspices of Constitutional law.   This is notable.

Without rules, without the supremacy of law, everyone understood economics:  he prospers who is not prey.   Without protections for property and persons, both were simple prey to power.  Ownership was not secure.  Capital and goods were ephemeral.  Sovereign seizures made physical security (not productivity) paramount.  Efficient activities included hoarding and bribery under this regime.  It was superfluous to consider the efficiency, productivity, and optimization of capital when capital was not secure.

Some centuries after the rule of law had ordered society and economic relationships and interactions, economics arose.  History reveals that the rule of law was the egg; economics was the chicken that hatched from this egg.  The enlightenment of economic science was only enabled by and extended from the rule of law (ie. the Constitution of the United States).

Some would say this observation is tenuous and that the rule of law was an accident observed in a single sample:  history.  An economist, one of the most cited legal scholars of the 20^th century, has suggested that “the rule of law is an accidental and dispensable element of legal ideology".  Perhaps this authority considers economics to be other than “an accidental and dispensable element of legal ideology”?

It is nonsense, blindness, and/or treason to propound economic theory as the highest argument or analysis or law or arbiter or government:  to do so is to propound the invisible hand of anarchy.  To do so, is to run against the only sample we have:  history.  To do so, is to reduce all humanity to economic capital.  To do so, is to embrace the centralized planning of society by politicians and economists.  Rule of law would suggest that even science including economic science is beneath the law.

But is that how we actually order our society?  By this infinitive:  rule of law  > economics?  Or, is economy foremost?  As a society, haven’t we come to generally shun what is literal, cultural, political, and religious and favor what is economic, productive, and efficient?

What is our dominant identity as Americans?  Is our chief identity economic?  Is it that:  of the credit-enabled consumer, of the profiteer with or without produce and with or without work, of the insatiable internationalist or industrialist, of the uncensurable government employee or unionist, of the entitled welfare recipient, of the social-security retiree?  Or, do we identify with the patriots to whom freedom under law was so dear that they purchased it with their money and lives and reputations—for us?  Do we value the rule of law above our jobs, credit, investments, entitlements, profits, industries, even our temporary security?  Or, for the sake of jobs or pensions or profits, will we assent to the suspension and subversion of some laws that protect the property and persons of others?

For the sake of societal gain, economics is used to justify all sorts of extra-legal and otherwise unconscionable redistributions of property, rights, and legal priorities—especially in times of crisis.  For example, to avert an economic crisis and to stimulate the mortgage market, economists have suggested that borrowers ought to be allowed to breach mortgage contracts—but only if their mortgage is past due—never mind the social cost to justice, to the lender, and to other borrowers.  Politicians, informed by central planners, have intervened to prop up industries like banking, insurance, and the auto industry and to develop industries like green energy.  Apparently, this intervention has not improved the economy.  Much of this activity has contravened existing law.  It has made investment in the American economy uncertain and unprofitable.  Worse, it has redistributed wealth without regard to justice or the rule of law.  Worse, wealth has been redistributed away from those who uphold or would uphold the rule of law (ie. the middle class).

Under law and economics, without moorings to morality, the legal system lacks the will to check this lawlessness.  Consider the events of 2008.   Some of our law students became politicians, judges, and regulators—the same individuals who reversed laws and deferred regulations and structured rulings to deregulate the financial markets, concerned that laws would check the efficiency of the financial markets that ultimately fleeced so many Americans in a financial crisis that continues to reverberate.  In so doing, they propounded economic theory as ascendant to the rule of law.

Certainly, for the rich and powerful, raw economics is more efficient than egalitarian laws.  Perhaps economics and law has contributed to the increasingly unequal distribution of income in America?  Apparently, the rich are getting richer right alongside economic interpretations of the law.  And the poor are getting poorer (and the prisons are burgeoning) right alongside economic interpretations of the law.

But if economic interpretations of law are unjust, if they confound the checks on government that protect the rule of law, what will be our basis for law and justice?  Can a consensus be formed based on morality when common sense and conscience are publicly confounded?  In its true light, law and economics ought to be viewed for what it is:  a valiant but impoverished attempt by the legal community to prop up law in the absence of morality as a substitute for displaced absolutes like God, truth, and right.  In place of moral absolutes, economics exalts self-interest as enlightenment in the judge and in the judged.

This simplifies justice.  It reduces it to sums.  It appeals to our selfish natures.  It rebuffs guilt when we encounter inequality:  we rationalize that the poverty of others is self-inflicted--perhaps because they have refused the enlightenment of self-interest?

But isn’t it also self-interest that animates nature’s predators?  Are we, then, under economics, animals who accidentally acquired a conscience?  Would our courtroom, economic, political, religious, and cultural disputes be better reconciled by natural processes that leave one “red in tooth and claw”?

Here is my economic forecast for a country that puts economics above the rule of law and morality:  hunger and fear.  Don’t expect good sense or justice or morality to prevail in a society where the only law applied or upheld is the science of secular economics.  In fact, if constitutional law is successfully subverted by law and economics, if economics becomes our only unity, conscience, and constraint expect to turn the calendar back about 1,000 years to a period that resembles the Spanish Inquisition.

God bless you,


Whoseman

On the Dispossession of the Middle Class

Recently, Vice-President Joseph Biden observed that the middle-class has been "buried" during the past four years.  Dispossessed is an adjective related to buried:  one might say that the middle-class has been dispossessed of their property.

Here is an observation by F.A. Hayek from The Road to Serfdom (p. 229):  "It should never be forgotten that the one decisive factor in the rise of totalitarianism (in Europe before World War II).....is the existence of a large recently dispossessed middle class".

Dispossessed, will we, Americans, embrace totalitarianism now?  Or cling to freedom?

Justice Under Economics

Whose-Man?

James Madison observed that “government is instituted no less for the protection of the property than of the persons of individuals.”  Mr. Madison understood that, of all property, what is most precious is one’s person:  if government protects anything, it ought, above all, to protect our persons from the conquest of others, and from the conquest of government.  Vigilance is vital because the contest for conquest continues today:  for force, for unity, for unanimity, ideas claim man as a possession:  whose is man?

Whose is man?  Does he belong to the collective that is society?

Whose is man?  Is he the property of a state?

Whose is man? Is he an asset of the economic order or organization in which he labors?

Whose is man?  The stakes of this contest for possession are momentous.  Wary or not, willful or not, our persons may end up as possessions.

Whose is man?  This question is as old as man.
 

Whose is man?  “MINE!” cry the tyrants and demagogues from time immemorial.

Whose is man?  “OURS!” cry executors of excess in law, tax, regulation, government, religion, technology, education, medicine, and commerce.

Whose is man?  Is he the possession of a state, a monarch, and/or a church?  Inquisitors affirmed.  Then they stripped and extradited or tortured and burned their human refuse.

Whose is man?  Can one man be the property of another--fungible for economic exchange?  Slave-traders and slave-holders agreed.  Then they entrapped, exported, and sold and bought their “chattel” into human bondage.

Whose is man? If man belongs to the collective that is society, or is the property of the state, or is an asset of the economic order or organization in which he labors, may he not then be acquired, used, and disposed of as dictated by the caprices of his master(s)?  If we accept this conclusion, we must embrace all of the depravity that it will entail, including genocide.

Whose is man?  If we reject the conclusion that man is a political or economic or social possession, we must reject all of its premises including ideas:  a) that man is supreme—even in sums, b) that man is vile and must be coerced to goodness, c) that mortals can surmount self-interest for the sake of a more salutary society, d) that conscience, not natural consequence, constricts choice, and e) that all-embracing economic incentives and all-enjoining cultural customs will suffice to bring about permanent peace and personal prosperity.  Otherwise, we are simply being seduced by hypocrisies and half-truths.  Some say that glorious ends will justify repugnant means.  But Nazi and Soviet history show that the means and the ends are indistinguishable.

Whose is man?  This author is not nearly vain enough or egotistical enough or creative enough to propound an idea of his own that he believes others ought to be forever possessed by.  Moreover, collective humanity has already plumbed the best ideas.  His, then, is the task to attach his opinions to what is right and to detach his views from what is wrong; to popularize what is true and good and to denounce what is false and evil.

Whose is man?  Are men, as the founders of the American Republic suggested “endowed by their Creator with certain inalienable rights” including life, liberty, and the pursuit of happiness (ie. property)—rights that are and ought to be above the conquest of man and state?

Whose is man?  Essential freedoms, endorsed by the Constitution, including freedoms to speak, write, worship, and assemble, depend on our answer.

Whose is man?  Is he a child of God--as Jesus declared (John 5:2)?

Whose is man?  Is he the offspring of God (Acts 17:28-30) and heir of God (Romans 8:16-17) as the Apostle Paul declared?

Whose is man?  Given the choice, will you choose to be ruled by the creature(s) or by the Creator, our Father, who gave us life, liberty, property, choice, conscience, family, long-suffering, and mercy through Jesus Christ?  The choice is yours.  It is this author’s opinion that those who seek to detach us from our dependence on God would cause us only error, servitude, and misery.

Whose is man?  If crises come, if circumstances conspire, will we assent to the arbitrary disposition or confiscation of the property or persons of others for personal gain?  Tacitly, didn’t we recently assent to an arbitrary disposition and/or confiscation of property to purportedly avert a financial crisis?  Whose property was dispensed, after all, to the failing banks?  And who owns the bailed-out banks now?

Whose is man?  When virtually every public decision is now made or justified in the name of efficiency, productivity, and the Holy Economy, are we not all in danger of being deemed assets only?  Would it be just or moral to dispose of such assets?  Who is pompous enough to decide of whom to dispose?  Deemed assets, may the remainder then exercise free expression, worship what is non-economic, and assemble “unproductively”?  Secular economics (ie. Keynesianism) might suggest only what is efficient, but will it accord with what is just or moral or Constitutional?

Whose is man?  If our only unity is gain, if gain eludes us, will we sacrifice the property or persons of others (if only in extremity) to economy, or science, or ideology, or community, for personal or communal gain?  What depravity would then ensue?

Rather, let us do what is just and observe the way of the Lord of life and liberty and trust in His divine purposes, protection, and provision.  To Him, we are not possessions—we are His children.  He loves us.  He wants us to “possess…(our own) souls” in liberty (Luke 21: 19).

God bless you!


Whoseman