All posts by B. A. Hunter

About B. A. Hunter

https://whatswrongwithequalrights.wordpress.com/

The Might of Nations

 

[PDF Version]

 

But what is it that makes a nation? Barricaded away in study in the law and history books, it becomes quite easy to see that the strength and might of a nation lies in its military strength, its economy, and its political structures (of which a nation’s family patterns play a key role in all three).

Transformed as modern economies may be from agricultural-based to industrial-based, there is nothing new under the heavens. Work was outsourced even to the extent in ancient times that the Code of Hammurabi[1] outlines many economic regulations (including the regulation of worker’s wages) and even ancient Rome had a welfare system[2] where imported grains were distributed free by the government to the poorest citizens. The two-parent “nuclear” family system is also to be found in various ancient societies where international trade and a marketplace based upon coinage seem to be the hallmarks of an advancing and prosperous civilization throughout all eras of history.

In short order, political instability contributes to economic instability and the reduction in the fighting capabilities of a nation’s armed forces. Which plays the greater role or comes first in causing the disorder (declining economics, military prowess or political instability) is hard to ascertain, but all forces push and pull on one another in the creation of such disorder.

To have stability, groups of individuals have since the beginning of time developed codes of conduct- either through unwritten tribal customs or formal codification of laws in civilizations[3]– often patriarchal[4]– with more advanced political structures- that regulate how they will relate to one another and deal with any forms of disputes that arise. When the formal and civilized terms become unacceptable, the alternative is to resort to violence until one side succeeds in subduing the other, and thereby forcing the losing side’s surrender to the will of the prevailing forces, and thus securing their acceptance to abide by the terms and the customs of the rule of law of the winning side.

Civilizations are created and the story of human affairs develops (and this is, perhaps, the very reason why the whole “herstory” idea has never gained any traction) whenever one civilization overpowers the other through brute force and imposes their own rule of law over the opposing (conquered) forces and sets up their own leaders in place of the ones who formerly ruled.

Throughout history, governments are only as strong as the might of their military forces- as strong as the men of a nation. An effective government must not only have the resources (its economy) and the manpower (its military) to protect its borders from invading forces attempting to overcome it from without, but also to subdue rebellion from within. Thus, all governments depend upon the strength of their military forces, effective economic functioning, and political stability for their continued existence.

Civilizations seem to prosper in particular when diplomatic relations are stable, and thus fostering the growth of international trade. Whenever civilizations advance in such ways they then begin to form more complicated systems of government, turning from being governed in more primitive ways (as in pre-civilization under tribal rule, without formal written language or advances in agriculture/industry) to becoming stable functioning states replete with a written code of laws and formal bureaucratic administration.

Stability from within and without produces prosperous and wealthy civilizations, and historically this has also meant increases in innovation and inspiration, with changing family structures to become patriarchal with men working the land/ engaging in industry and business to directly provide for families where the paternity of their children is known. With advancing economies also comes more resources to develop technology, and thus more advanced weaponry and more advanced modes of production (whether agricultural or industrial) to further advance a nation’s military and economic forces and increase the native population (with the civilizations thus becoming more powerful than those that surround them, with these nations oftentimes even moving to conquer their surrounding neighbors and impose their will and rule of law over them).

On BBC’s website, searching through the history section, there are provided a couple of image galleries that give a brief overview and quite fascinating insight into the aforementioned military and economic forces at work throughout human history: The Art of War by Professor Daniel Moran and a War and Technology Gallery by a writer named Matthew Bennett. It’s interesting to see the timeline of how such forces have historically played out to create the societies we have today.

Aside from how civilizations are built, another important aspect of all civilizations (and whether they advance or falter and become conquered and impoverished peoples), is their family structures (as mentioned, when civilizations advance they generally become more patriarchal in their structures where the role of fathers providing and protecting in families is of paramount importance to their stability) and relationships between the sexes.

From the ancient Greek Hoplites and brutal hand-to-hand combat to the modern era where “The essence of new information technologies…have made the accuracy and effectiveness of weapons independent of the range from which they are fired,”[5] and where, “On the battlefields of the future all detectable targets will be equally at risk, while the ‘shooter’ may be literally anywhere,”[6] the entire point of warfare has been, and will always be, to annihilate or subdue one’s target and “win.”

Modern political discourse revolves around placing women in combat because brute strength is apparently not needed on account of all the new technologies. But no matter the battle strategy utilized, the end result will always be that the one pulling the trigger (even if from far away and even if the utilization of the weaponry requires little to no physical strength where females can equally do the job as well as males) will become a target in warfare. The “brains of the operation,” operating invisibly from some far away source would of necessity become the prime target for the opposing forces, as they would not be able to achieve their objective until the individual silently and invisibly taking out their forces is himself (herself) annihilated- this means killedcapturedtaken out of action and off the battlefield.

Whatever way one wants to put it, placing women in any kind of combat situations where they engage the enemy either directly or indirectly is still placing women in danger. It is the hallmark of an ever-increasing degenerating culture where the rule of law has utterly broken down.[7] It is also a very dangerous proposition for society overall whenever men stop seeing women as weaker vessels whom it is their duty to provide for and protect. Men will also- no matter the consequences- desert both battlefield and workplace when morale sinks and they simply see no point in continuing on working or fighting anymore: when they simply no longer have anything to work or fight for.

On an interpersonal level, it is a very dangerous proposition indeed whenever males in society overall become aggressive against their women, and see no problem engaging in face-to-face competition with females and don’t even flinch at the idea of females being called into military service to be captured and killed by the enemy and will themselves attack and get in a woman’s face at only the smallest slight. When reality hits in the real world, men and women are not equal.

In sexual encounters, it is females who become pregnant and bear the disabilities associated with pregnancy and childbirth. In violent confrontations and domestic violence situations, few females are actually on equal footing with males. The rule of law may impose anti-discrimination legislation upon citizens and describe penalties for socially perceived wrongdoing- it may even become totalitarian with arbitrary domestic violence legislation- but the law is mere words on a piece of paper whenever its terms become unacceptable by individuals or groups of individuals who do not wish to abide by it.[8] Violence is the alternative to adherence to the rule of law, and out in the real world women are never- or rarely- equal under such circumstances. Therefore, it is imperative that the males of a civilization (and civilization in general) see the placing of women in harm’s way- no matter the circumstances- as utterly repugnant and unacceptable.[9]

On a personal note, we must always think of our children. When they are younger it is easy to see the world through selfish eyes and focus on oneself. But as they grow older the game shifts from simply caring for incompetent young and infant children to attempting to guide and instill necessary wisdom in the minds of young individuals- our offspring whom we once nurtured before they could do for themselves- and protect them from a world they are at once too young to truly understand even as they are yet beginning to enter into it as autonomous individuals seeking their own independence.

I have a preteen daughter, and I worry every single day about what this world is going to look like in a few short years when she begins to go out in the world and begins to interact romantically with the opposite sex. If I had a son I would want to know that the law would be on his side if he chose to invest in a woman, but it is absurd to truly believe that the same rules apply to women (or girls) as to men (or boys) or that I would have the same fears and concerns over a son as I do my own daughter.

Relationships between the sexes matter and they always will. It is, of necessity, the role and function of the men of society to provide for and protect their women and children, which will also produce the by-product of more feminine and less aggressive women, thereby resulting in a more prosperous, wealthy, and stable civilization where the people are free due to the rule of law being upheld.

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[1] The Avalon Project, Documents in Law, History and Diplomacy, Babylonian Law– The Code of Hammurabi, http://avalon.law.yale.edu/ancient/hammpre.asp (Last Visited, September 10, 2018).

[2] See Generally, TimeMaps, The Roman Republic: Government and Societyhttps://www.timemaps.com/civilizations/roman-republic/ (Last Visited, September 10, 2018); Hans Julius Wolff, Roman Law: An Historical Introduction 12-13 (9th ed. 1951). “Ever larger masses of the former free rural population moved into the city where they formed, together with great numbers of freedmen of foreign origin, a proletariat maintained by grains imported from the provinces, chiefly Africa; part of these grains were distributed free by the state.” Id.

[3] Even Rome itself developed as an insignificant city-state around the Tiber river region of Central Italy. Its original political system before the Republic is not as well known, though Rome was under a monarchy before the beginnings of the Roman Republic around 500 B.C. See generally Wolff, note 2, supra; TimeMaps, The Rise of the Roman Empirehttps://www.timemaps.com/encyclopedia/rise-of-the-roman-empire#republic, (Last Visited September 10, 2018).

[4] See generally Daniel Amneus, The Garbage Generation (1990). Still the best classic resource on the need for patriarchy. This book is also available online at: https://www.fisheaters.com/gb1.html (Last Visited, March 13, 2018). For a review of Amneus’ work, see B.A. Hunter, My Review of The Garbage Generationhttps://whatswrongwithequalrights.wordpress.com/2013/11/05/my-review-of-the-garbage-generation/, (Last Visited September 11, 2018). Victimology is not a theme in Amneus’ classic work. The solution for mothers- whether divorced, widowed or never married- is not the workforce, but marriage. Though paternal authority can at times be somewhat harsh-seeming on the outside of things, patriarchy is- in its truest sense- about love. Amneus doesn’t speak of love, but he does cite the English and Anglo-American common- law system of Coverture as the ideal. For the traditional girl, the heart and spirit softens and the mind is put at ease at his insistence on the male dominance and protection to be found under a truly patriarchal system such as Coverture. For more on Coverture, see generally What’s Wrong With Equal Rights, William Blackstone on Coverture Taghttps://whatswrongwithequalrights.wordpress.com/tag/william-blackstone-on-coverture/, (Last Visited September 11, 2018).

[5] Daniel Moran, The Art of War, Future of Warhttp://www.bbc.co.uk/history/worldwars/art_war_gallery_09.shtml, (Last Visited September 11, 2018).

[6] Ibid.

[7] A great historical example to this effect- though there are many- is the fall of the Western Roman Empire to “barbarian” Huns and the Germanic tribes of the Angles, Jutes and Saxons which plunged Western civilization into a period of lawlessness and ignorance. “When the Angles, Jutes, and Saxons first migrated to England, life was brutal. They came in small clans and tribes and every member of the tribe had to contribute to the defense of the tribe. Women had to fight. These tribes slowly coalesced into kingdoms, which gradually formed the kingdom of England.” Christine G. Clark, Women’s Rights in Early England, Brigham Young University Law Review 1 (1995). Available at  http://constitution.org/lrev/eng/womens_rights_early_england.pdf. The author then goes on to lament about the supposed taking away of women’s rights when law and order was restored and society was brought out of the Dark Ages in particular when William the Conqueror, at the time of The Conquest (1066), restored law and order with his Feudalism and code of chivalry. The author then ends the article with bright-eyed hope that women will return to combat now that less brute strength is needed as a result of ever increasing technology in warfare.

[8] See for instance, Lyman Abbot, The Atlantic, Why Women Do Not Wish the Suffrage (1903), Available at https://www.theatlantic.com/magazine/archive/1903/09/why-women-do-not-wish-the-suffrage/306616/:   “It is this power to compel which distinguishes law from advice. Behind every law stands the sheriff, and behind the sheriff the militia, and behind the militia the whole military power of the Federal government. No legislature ever ought to enact a statute unless it is ready to pledge all the power of government- local, state, and Federal- to its enforcement, if the statute is disregarded. A ballot is not a mere expression of opinion; it is an act of the will; and behind this act of the will must be power to compel obedience…The great elections are called, and not improperly called, campaigns. For they are more than a great debate. A debate is a clash of opinions. But an election is a clash of wills… Will sets itself against will in what is essentially a masculine encounter. And if the defeated will refuses to accept the decision…war is the necessary result.” Id.

[9] Perhaps there is yet still hope with the as of yet very weak cries at restoring a sense of chivalry and duty for the protection of women and children back to society. See for instance, Emily Esfahani Smith, The Atlantic, Let’s Give Chivalry Another Chance (2012). https://www.theatlantic.com/sexes/archive/2012/12/lets-give-chivalry-another-chance/266085/, (Last Visited September 11, 2018).

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Movie Review: Romeo Must Die

Being bedridden most of the day yesterday due to ongoing illness, my husband stayed with me and we watched a couple of movies. One in particular is called Romeo Must Die (2000) and it stars Jet Li and the late R&B singer Aaliyah (curiously we were watching this movie on the seventeenth anniversary of the late singer/actress’ death). My heart itself smiled when the movie started playing and immediate nostalgia overwhelmed me a bit at the old-school rap and R&B that is so reminiscent of my childhood. Not having seen the movie in forever, there were quite a few things refreshing about it. Looking at it through a different lens (for one who can see and understand it), there are several things to be noted.

The first thing to be noted about the movie from my view is that it, in essence, portrays a man’s game. Only men are to be found doing business and playing the key roles in any decision making in the entire movie. In fact, aside from the main character Trish (Aaliyah) there aren’t even any women to be found hardly at all in the movie. Even in the background when business dealings are going on there isn’t a single woman in sight. But in no manner is there even the slightest insinuation that women are somehow inferior. In fact, just the opposite is true.

The movie is rated R as there is language, violence (murder, fighting), and some brief drug use and brief slight nudity, but in no way is there to be seen in the movie any level of unnecessary crudeness or vulgarity that is so common in modern movies. There is no promiscuity, nor is there any offensive language or slurs against women. In fact, neither are there any racial slurs in the movie either- even amongst members of the same race (an unusual finding in a movie centering around two separate racial clans at war with one another).

One of the things that stirs my heart as well is the protective paternalistic nature of a lot of the movie. Trish’s father, brother and Jet Li (Han, whom Trish has a romance with in the movie) are all very protective of Trish. Trish is “independent” in the movie, but never in the sense that the typical modern woman today is. She has her own apartment and a small shop but she’s not a career woman nor is there any talk of her being one nor any push made upon her to be independent or assertive in any manner. Female empowerment is not a theme in the movie on any level.

Trish portrays a sweet, gentle and nurturing- yet brave- character in the movie. In the first scene where Trish comes into the movie, she walks out of her shop only to find one of the men who works for her father waiting for her. Since a member of the opposite warring clan was murdered, her father fears for her safety (the clan might retaliate) and sends protection. Trish is assertive in the sense that she stands up for herself and has strong moral values, but not assertive as one would expect the modern woman to be. She gives Maurice (the man her father sent to her) absolute Hell as she evades him, leading to her chance encounter with Han (a very comical encounter as he has just arrived in America and stolen a taxi car that Trish jumps into while attempting to hide from Maurice).

Trish has a close relationship with her slightly older brother. She berates her brother a bit whenever she finds him at her shop using the phone. Trish has children who hang around her shop and in the movie she seems to be a role model to the kids in a couple of different scenes (I find this notable for the overall way it portrays her character in the movie). She goes off on her brother a bit, telling him that she had asked him not to do his business there at her shop for the very reason that she has kids hanging around all the time. Afterwards though she does apologize and embraces her brother, telling him that she only worries about him.

Masculinity isn’t demonized in any manner in the movie. There is a lot of emphasis on knowing how to fight, being competent, doing business, honor, chivalry… Trish’s brother is murdered in the movie and one of the last things he was talking about was “being his own man” and breaking away out of his father’s shadow in order to prove himself.

After her brother’s murder and a few other events, Trish is sleeping (presumably in her own apartment) whenever her father comes and wakes her up, tapping her on the shoulder and attempting to immediately calm her so she wouldn’t worry, letting her know it was only him (as opposed to some stranger entering her room). He then tells her that she needs to come with him, and takes her back home with him to the house she grew up in. Trish doesn’t really protest and goes with her father, staying in her childhood bedroom at the house. Her father takes care of her, protects her and sees to her well-being. Her father then leaves for a minute to take a call, at which point Han (who has followed Trish to her father’s house) taps on Trish’s window.

Trish opens the window asking Han if he had lost his mind, informing him in a low voice that her father was just on the other side of the door. Trish then hides Han behind the door as she speaks there at the doorway with her father. Her father informs her that he has to go out, but that she’d be safe and provided for there in the house. After he leaves she then sneaks out of the house with Han like a teenager and the two go exploring a list of addresses Han has.

Running from and then finally being cornered by their assailant after finding a warehouse of slaughtered victims, Han gets out and faces their attacker in hand to hand combat while Trish is yet still in the car. After a brief time of fighting, the assailant’s helmet is removed to reveal a beautiful woman (the only time a woman is ever seen fighting in the entire movie). Han then ceases attacking, merely shielding himself from the woman’s blows. Trish is confused, at which point Han tells her “I can’t hit a girl”- and he never does.

Trish shoves open the passenger seat of the car door, slamming it into the other woman then exclaims to Han that “I don’t know how they do things in China but in America when a girl is kicking your ass you don’t have to be a gentleman.” Still unable to bring himself to hit a woman, Han instead uses Trish, swinging her around and directing her moves so that it is technically her, and not him, that is fighting the woman. In a world where it is seen as socially acceptable to purposely and deliberately place females in harm’s way (such as military combat), where entertainment is full of men and women fighting each other to the death and where modern men don’t even think twice about becoming aggressive against women or even physically attacking them at the slightest provocation, this is noteworthy. Even faced with a woman obviously trained to fight, Han’s moral values simply would not allow him to ever use force against a woman.

Though Romeo Must Die was never meant to be a children’s movie or even a family movie at all, a closer look at this movie (made in a world yet not that far gone in time) reveals (as odd as it may seem) that the moral values it portrays far exceed even the children and family movies of today’s era. This is always important as entertainment and the media often wield a profound influence over society/culture.

Beyond the moral aspects, of course, the movie is pretty bad-ass, filled with drama, action, comedy and a slight bit of innocent romance thrown into the mix. It gets a full five-stars in my book.

He Feels the Way He Always Did

Just sittin’ here Just waiting on him to come back home the way I always used to

I’d love to say all that I feel inside if only I could describe it

All I can say is that he feels just the way he always did

I could look at him and say, “It’s still you after all these years”

 

But just look at all that time has done to me now

With paper and pen this writer’s mind goes to work

Sittin’ here as a tear falls down my cheek

Society says we were way too young but how could that ever be true?

 

Because he feels just the way he always did

Grew up together from all the time gone by

Still him and only him; his feel, his smell, his touch I know so well

Still him, only him, since I was seventeen

But God all I’ve got to say is that all men are fools

 

But he still feels just the way he always did when he touches me, holds me

He never abandons me when I cry; when I hurt inside, I cry out for his love, his feel, his touch

But all men are fools when they never listen, when they simply fail to understand

Maybe we were once young and stupid together, then watched it mature

But I know it’s sweet the way he feels, his distinct smell, his breath soft upon my ear

 

I’m waking in the middle of the night, still crying out for him

Never been gone very long without him before I run right back to him

Because I love him so dearly, so passionately; feverishly

The feel of his love, that sweet feeling within me

If it’s always him, just like it’s always been

 

His love, so deep and fulfilling; loving me just the way he’s always been

He feels just the same

His sweetness

His touch is so familiar to me

Every inch of him, just the way he always was, still after all these years

 

Passionate, gripping, hold nothing back from this love now

It’s still his feel, his touch I know so well

Let him inside without shame or fear

There are no rules;

Love is not a game

Trauma bonds whether or not it heals

 

But strengthen here this love;

Laying under him, he feels just the way he always did

 

I softly wrap my arms around him

Bury my head there against his chest

He feels like protection, he feels like love

He feels to me the same as he has always felt

He feels the same as he always did

 

I want to pull him in, hold him close, hide away from the world there in his arms

A preciousness shrouded in secrecy and privacy; I want to pull him in deeper

His solidness, his strength, his weight; he holds me so gently in his arms

I could kiss and hold him with all my love the same as I always have

He feels, all of him, the way he always did

Shift to the Right: (Part 3 of 3): The Ordinary Citizen, Popular Culture, and the Enforcement of the Law/Outro

(PDF of full article here)

 

The Ordinary Citizen, Popular Culture, and the Enforcement of the Law

More than mere words on a paper, does a law on the books do any good if it lays dormant? As the nation turns its eyes to the highest tribunal, both sides hoping to garner just that one vote to tip the scales in their parties’ favor, perhaps history can shed some light on the realities of life. Before the Civil War, the entire nation, ripped apart and split in two on the issue of slavery, turned its eyes to the Supreme Court to settle the pressing issue of the day once and for all. Still reeling from Worcester v Georgia[xxxiv], after which incident president Andrew Jackson is reported to have said, “The decision of the supreme court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate,”[xxxv] the Supreme Court adopted what was known as Judicial Restraint for many years to come.

Yet when the pressure mounted on the Supreme Court to decide the decisive vote on the hot issue of slavery, the Court finally decided the infamous case of Dred Scott v Sandford[xxxvi], causing an uproar throughout the nation, further splitting apart an already divided nation and ultimately leading to civil war. Much as today’s politicians talk about Court decisions being “settled law,” even Abraham Lincoln, months before Dred Scott was handed down, had stated that “the Supreme Court [is] the body charged with deciding the issue of slavery in the territories and that ‘we will submit to its decisions; and if you do also, there will be an end to the matter.’”[xxxvii] In reality, however, this was not to be as even Lincoln himself soon changed his tune on the matter.

After the Civil War, Radical Republicans took control over Congress, passing the Reconstruction Amendments (Amendments that president Andrew Johnson waged a massive campaign against), Enforcement Acts and various Civil Rights Acts. Yet, ultimately, the presidential administrations of the era refused to enforce the legislation, refusing to intervene to stop the corruption and violence that ran rampant; the states and their judges (voted in by the people) refused to comply, and the Amendments and subsequent legislation by Congress quickly lay dormant and unenforceable. Since abortion is the hot-button issue of the day that is tearing this nation apart, it is worthwhile to look into the hearts of the nation’s citizens and learn from human history as to how this story will play out. Is abortion about the regulation of morality- sexual or religious? But even setting aside the blatant Unconstitutionality of the latter, can a state use its police powers to effectively govern morality when the overall culture is vulgar and promiscuous and where “anything goes?” Absent widespread social change (possibly even revolution), the short answer to this question is likely to be a resounding “no.”

If the Civil War represented an appeal from law to the sword, that was true because the opposing extremes no longer accepted the underlying premises of the legal order. Americans too often forget that the rule of law draws only limited strength from judicial guaranties; it must have roots far deeper than a formal fundamental document and decisions of the judges enforcing it. Our public law depends for its efficacy on popular acceptance of its basic presuppositions. Acceptance, rather than formal legal machinery, is the decisive force in the law’s implementation, with Learned Hand in a famous passage we may ‘wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes, believe me, these are false hopes.’[xxxviii]

No act of the legislature nor decision by the Supreme Court is likely to ever lay the issue of abortion to rest any more than the issues of slavery or racism were ever laid to rest by words on a piece of paper. Only getting straight to the heart of the real issues at play and a true reconsideration of the role of women in society and the family is ever likely to lay such an issue to rest, much the same as the issue of racism and segregation (though still not entirely eliminated among ordinary citizens in society at large) could never be laid to rest without a thorough re-examination of the status of African-Americans as citizens and an acknowledgement by the people of the nation of their position in society and the law as equals to the heretofore dominant Caucasian race. Couched as pro-choice activism is in society’s belief in women’s equality, society can never even begin to move past this issue without a thorough re-examining and reconsideration of the entire premise of feminism from its very roots.

And it must be remembered that what controls women will also control men. All too often it is the male who pressures the woman he has been sleeping with/having an affair with into obtaining an abortion (often offering up the funds to pay for it as well) because the male does not wish any responsibility for the products of an unwanted pregnancy after a night or two of fun. Those who would term themselves as “men’s rights activists” have no case, no cause, no purpose nor any legislative agenda outside of the realm of feminism and egalitarianism. If feminism and its egalitarian legislative progeny die out in their entirety in society, their cause will go down right along with it. The males of society will then have to come face to face with what is termed “responsibility,” having to face the reality that actions have consequences- and they cannot continue to run their pick-up artist “game” if there are consequences attached to the sex act that the society will then ultimately hold them accountable for.

Trickling down from the highest tribunal to the lowliest officer of the law, many forces push and pull against each other in the adversarial system of American criminal justice. Many legal processes must first be traversed before an individual may actually be prosecuted, convicted, and punished for any crime. Fairness in the rule of law and criminal justice procedure is, after all, the very premise upon which the American criminal justice system was founded upon. Ethics play such an important role in law enforcement on account of the discretion that officers on all levels are given in the carrying out of their duties, and the power of the ordinary citizen in the enforcement of the rule of law has been greater than many realize throughout history. What is the alternative to discretion but tyranny? The short answer is that there is none.

Even for actions officially recognized as illegal under the law, an officer retains discretion whether or not to arrest an individual. Ethically, it is an officer’s duty to uphold the law even when off-duty, but all the way from a simple traffic citation to violent crimes, the decision ultimately rests with individual officers to choose whether or not to arrest. It is also prosecutors who decide whether or not to pursue a case and, if so, specifically what crimes to charge the individual with.

The Second Amendment retains for the states the right to a “well-regulated militia,”[xxxix] and in the days of old this gave power into the hands of ordinary men to challenge an unjust cause much the same as ordinary citizens today retain the power, when called upon to try their fellow citizens for crimes in a court of law, to acquit and effectively nullify the law at issue. “That every man be armed:”[xl] Not only the right to bear arms, but historically the obligation to do so fell upon adult male citizens, and when called upon to act, local militias could exercise a form of passive resistance by simply refusing to muster and heed the call to bear arms,[xli] much as modern juries still to this day retain the extraordinary power of jury nullification, whereby ordinary citizens can simply fail to convict a defendant even in the light of overwhelming evidence of guilt when they believe the case or law at issue to be unjust. Due to the prohibition of double jeopardy in the United States Constitution, the defendant then walks free, as the government cannot retry the defendant again upon the same charges after an acquittal.[xlii]

Nowhere today can this issue be seen more clearly than with modern juries refusing to convict in drug cases, even as society struggles with a serious drug problem. The push to legalize specific varieties of formerly illegal recreational drugs is strong. The laws don’t work, because the people are simply unwilling to believe in or comply with the laws. Could abortion also fall in with this issue? Is- was- legalization not responding to a serious problem that society faces on both accounts? Are there not less arbitrary measures to affect the same goals? But can any change ever happen without an extreme makeover in the overall structure of society? Were not “Too many wealthy women… flouting the law to get abortions from respected physicians…[and] too many poor women being injured by inadequately trained mass purveyors of illegal abortions”[xliii] at a time when “free love” and the sexual revolution were rocking society, much the same as the opioid epidemic has plagued and ravaged the nation today, causing lawmakers to look to alternatives- including the legalization of the “softer” drugs such as marijuana- to attempt to address a serious problem in society and prevent further death and hardship of the nation’s citizens?

As opposing and competing forces push and pull society in two different directions, we as a nation must stop and ask what it is we are doing, where we are going, and what, precisely, is hoped to be achieved? Is it a reinstatement of law and order and a returning of America to a supposedly more prosperous time? And how can that ever be achieved without addressing, but yet instead choosing, to turn a blind eye to the underlying forces that have caused the problems in the first place? Tyranny by the executive, legislative or judicial branches of government can never hope to turn America into the great nation that it once was in a civilization that simply no longer believes in the rule of law.

Outro to the Posting

What I have set forth here is a proposal: A deep and serious consideration that I do so sincerely hope can reach the hearts and minds of many. And with this humble piece of scholarly literature I do now so contribute it to that prayerfully ever free and prosperous marketplace of ideas.

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[xxxiv] 6 Pet. 515 (U.S. 1832).

[xxxv] A History of the Supreme Court, supra, p. 94. Quoted from Letter from Andrew Jackson to John Coffee, Apr. 7, 1832.

[xxxvi] 60 U.S. 393 (1857).

[xxxvii] See Peter Irons, A People’s History of the Supreme Court, p. 179 (5th ed. 2006). Quoted from Lincoln, “we will submit”: Phillip van Doren Stern, ed., The Life and Writings of Abraham Lincoln, 399.

[xxxviii] A History of the Supreme Courtsupra, pp. 126-127. Quote by Learned Hand, The Spirit of Liberty: Papers and Addresses of Learned Hand 189-190 (3rd ed. 1960)

[xxxix] “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. For a thorough discussion of the Second Amendment see generally A Well-Regulated Militia, supraSee also United States Supreme Court cases of McDonald v City of Chicago, 561 U.S. 742 (2010); District of Columbia v Heller, 554 U.S._ (2008). (Incorporating the Second Amendment against the States as an “individual right”).

[xl] The cry of Anti-Federalist Patrick Henry at the Virginia ratification debates. See A Well-Regulated Militia, supra, p. 53.

[xli] Termed sometimes as “militia nullification.” According to Saul Cornell in A Well-Regulated Militia, supra, “Implicit in the idea of the militia was the idea that citizen soldiers were not passive tools of government, but retained a right to refuse to muster and thereby exercise a form of passive veto on government policy…This type of passive resistance was akin to the right of juries to refuse to convict a citizen under an unjust law, effectively nullifying the law at issue.” (p.81).

[xlii] Due to the dual sovereignty doctrine, however, a defendant may be tried both at the state and Federal level for the same offence, and also if the defendant crossed state lines in the commission of the crime, may be tried by each State that the crime was committed in. See, eg., Heath v Alabama, 474 U.S. 82 (1985).

[xliii] A History of the Supreme Court, supra, p.333.

Shift to the Right (Part 2 of 3): The Dangers of Excess “Conservatism”/The Common Law and the Constitution

(PDF of full article here)

 

The Dangers of Excess “Conservatism”

For all the good that might become of a Supreme Court that leans more to the Right, there are also many inherent dangers that accompany too much “conservatism.” A few months ago I had said to my husband- only half-jokingly- that I often wondered if our grandparents didn’t all pass away just so they wouldn’t have to live to see what America has become. For all the good that less governmental intervention in the economy might do, many forget all that history has to teach about the often extreme abuses against the common and ordinary citizen that naturally accompany unrestrained laissez-faire capitalism. According to Peter Irons in his 2006 book A People’s History of the Supreme Court: The Men and Women Whose Cases and Decisions Have Shaped Our Constitution, during the last two decades of the 19th century (speaking of the expansions of the railroads), “…railroads had their caste system and brakemen took home only $212 that year for the most dangerous job on the trains. More than two thousand railroad workers died in accidents each year, and thirty thousand suffered injuries.” (p.245)

According to Bernard Schwartz,

To return to the Peckham conception of law is to return to a time when ‘it was unconstitutional to intrude upon the inalienable right of employees to make contracts containing terms unfavorable to themselves, in bargains with their employers.’ In those days, ‘[a]n ordinary worker was told, if he sought to avoid harsh contracts made with his employer…that he had acted with his eyes open, had only himself to blame, must stand on his own feet, must take the consequences of his own folly.’ And if, as in Lochner, a law sought to equalize the situation, it was ruled an invalid interference with freedom of contract. To return to Lochner is to return to the abuses that inevitably accompany unrestricted laissez faire.”[xii]

After all, there is a reason why many of our grandparents were Democrats. “Democrats are for the blue-collar worker” is what we often have heard, and history bears this out to a large extent. In the days of laissez-faire, the common, average, and impoverished citizen was often told:

Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations. We know that this is a power which may be abused, but that is no argument against its existence. For protection against abuses by legislatures, the people must resort to the polls, not to the courts.[xiii]

 By and large the Republicans often favor the rich/elite and the big corporations, often stating today something similar to the above quoted passage as regards the democratic process. But to quote Schwartz once again: “A supreme tribunal that molds its law only to fit immediate demands of public sentiment is hardly fulfilling its proper role. As Justice Frankfurter once put it, ‘The Court has no reason for existence if it merely reflects the pressures of the day.’”[xiv] What is needed, in reality, is to maintain moderation as danger lurks whenever courts and legislatures swing too extreme either to the Left or the Right. Mostly “moderates” in the center on the Supreme Court were responsible for most of the legal revolution of the mid-20th century, ruling according to the “felt necessities of the time.”[xv] Perhaps today the “felt necessities” could be that the “welfare state” has simply gone too far.

But as everyone hopes that the highest tribunal shifts to the Right so that Roe might be “overturned,” there are many more consequences of such a shift that many never give any heed nor regard to, but which will become even more apparent as time goes on. Part of this disregard simply stems from an ignorance of the history of American legal and Constitutional jurisprudence. Or perhaps Americans truly believe by and large that some rights and freedoms now enjoyed by the criminal defendant, the indigent, and the political dissenter have simply always existed as they do now. Sadly, this is not the case. Many rights and freedoms Americans enjoy today actually come from the “liberal” excesses of the mid-20th century- excesses “conservatives” on the Supreme Court and elsewhere have consistently been trying to chip away at for the past few decades.

The right to jury trial of one’s peers at the state level in cases where the possibility of incarceration exists, the right to be read one’s rights at the time of arrest/detainment in the custody of police,[xvi] the right of an indigent criminal defendant to a lawyer,[xvii] the right to petition for habeas corpus,[xviii] the right to a lawyer upon appeal, the prohibition of police use of the “silver platter doctrine,”[xix] the prohibition of the use of illegally obtained evidence by Federal or state officers in criminal trials,[xx] the right to burn an American flag in political protest,[xxi] the right of one’s children to refuse to salute the flag and against compelled prayer in public schools,[xxii] etc…

Only due to the “liberal” and “moderate” forces upon the Supreme Court in the 20th century do these rights even exist at all. The president’s War Powers have also been largely kept in check on account of “liberal” and “moderate” forces on the Supreme Court. It can’t be taken for granted that Republicans such as those of the current administration have little respect for the rights of the accused or suspected enemy combatants to habeas corpus. The “conservative” forces must balance out the liberal forces, of necessity, in order to protect the welfare of the public, but “conservative” excesses have a long and dated history of giving carte blanche to the president, legislatures and other executive officials- especially since 9/11.[xxiii] This isn’t a set “rule,” of course, but there is enough of a history to make anyone mindful of the law and criminal justice system wary of the consequences of too much “conservatism.”

 

The Common Law and the Constitution

Perhaps I would like to bring the abortion issue back into the equation for the moment. There doesn’t seem to be much common sense floating around where this issue is concerned, just back and forth ranting. I’m not here to rant about these issues, but only to reason rationally and deeply- and realistically- about them. My main fear where this issue is concerned is that it simply reeks of “police state” with a side order of religious tyranny.

It isn’t really enough to look through history or the common law of England where this issue is concerned, though it could shed light on history and the nation’s founding, as the common law was adapted over time to the unique scenarios and circumstances of the American way of life.

The first issue is how prosecutions would proceed. There have already been instances in recent years of individuals (of both sexes- not just women) being charged for giving abortifacients for the purpose of illegally inducing abortion. Obviously if a woman enters the emergency room with complications from an illegal abortion, the law does allow (in some instances it requires) that the crime be reported to police. But if a woman chooses not to receive emergency care after an illegally-induced abortion (or simply does not need care if she has no adverse side effects), how then would charges be brought and whom would they be brought against? Being “pro-life” might sound good on paper- much the same as “drug-free”- but reality must be given greater weight than sentiment where issues of law are concerned.

 The nature of abortion has changed since misoprostol began being used to induce abortions non-surgically in the 1980s. The drug is widely available in some Latin American countries where abortion has been outlawed (usually due to the influence of the Catholic Church) without a prescription, but in recent years it has shown signs of becoming a major “black-market” drug in the United States. Obviously, the dealers of such drugs could be caught in the normal legal manner, but danger of governmental tyranny and Unconstitutional search and seizure lurks in the murky waters where the woman who takes the drugs is concerned.

This question must be proposed, now that I have also in-depth asked the questions above of how a more “conservative” majority in our Federal courts and in the Supreme Court would deal with the rights of criminal defendants. Justice Harry Blackmun (who wrote the opinion of the Court in Roe v Wade), in sharp contrast to today’s justices who generally have their law clerks do most of the research and write up rough drafts of opinions for them, spent months doing research and writing up drafts (whom Justices Douglas and Brennan consistently gave him feedback on) in the Roe case[xxiv]. In the final Roe opinion, he went over historical abortion laws in good depth and concluded that most of the early anti-abortion laws in early American history (which laid the full legal penalty upon the one providing the abortion, not the pregnant woman) were generally thought to be designed to protect the woman from submitting herself to a procedure that in many cases would threaten her life.[xxv]

When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman. This was particularly true prior to the development of antisepsis…Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940s, standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus, it has been argued that a State’s real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy.[xxvi]

One of the major grievances the American colonists originally had against the Crown before the Declaration of Independence was the general writs of assistance that were used to arbitrarily carry out searches of a person’s home, person and belongings. These were equivalent to general and vague search warrants, allowing agents of the Crown to basically rummage through all of a subject’s possessions, without having to specify exactly what was being searched for. The question must be proposed: Could a search warrant be executed against a woman who is suspected of being pregnant if an officer has probable cause to believe that she might be pregnant and might be doing something that might put the life or health of the fetus in danger? Might she then be physically restrained and subjected to an intrusive search of her body to see if she is pregnant and then her body be searched for evidence of the crime of endangering the life of the unborn in some way? Or evidence of pregnancy or attempted/completed abortion in a woman suspected of being pregnant even where medical help or attention has not been sought and consented to? Might she, or even the father of the child or others close to her, be arrested and interrogated or subpoenaed as witnesses in a court of law against the woman or anyone else charged as being connected with the “crime?”

If a fetus is legally considered to be a “person” under the Fourteenth Amendment, then this is not a ridiculous question, but a realistic one. From Alabama’s “fetus lawyers” to Texas’ TRAP laws (which the Supreme Court struck down in its 2016 Whole Woman’s Health v. Hellerstedt decision[xxvii]) mandating the proper burial of fetal remains, it is hardly unreasonable that the States, if allowed, would resort to nearly any arbitrary measures in order to bypass the civil rights of their residents and oppress them. An officer of the law need only have a “reasonable suspicion” to believe that criminal activity might be afoot or that an individual is about to commit, is in the process of committing, or has just committed, a crime in order to stop and question an individual or give a quick pat-down or search of their outer garments.[xxviii] If probable cause exists, the officer may then make a lawful arrest. Could this discretionary power of officers of the law be used in an arbitrary manner against a woman and/or her partner/husband regarding pregnancy and abortion?

Today’s society is overly concerned about an individual being allowed to point the finger and accuse an individual, without trial or evidence, of wrong-doing and ruin their lives (think sexual harassment allegations) even while all the while being overly concerned with “victim’s rights.” But as the English jurist Sir William Blackstone had so famously stated, “It is better that ten guilty persons escape, than that one innocent suffer.” Most of the Bill of Rights is concerned with the protections of the accused. Living in a time where advances in science and technology have advanced to such extremes (and are only likely to advance more in the future) that the government has an increasing ability to spy on its citizens and control their every move even when they are unaware of it, upholding the Bill of Rights becomes even more paramount. Ratification of a Bill of Rights was a prerequisite to many who termed themselves “anti-federalists” (or those who were against too strong of a national government). It was a prerequisite due to the fear that lack of a Federal Bill of Rights would lead to Congress enacting laws abridging the rights of the people.

On the other hand, there is clear and convincing evidence that the Bill of Rights does not contain all of the rights due to citizens, and the Federalist fear was that if a Bill of Rights was ratified it would lead to the belief that only those rights specifically enumerated and specifically mentioned in the Constitution would be accounted for. The Ninth Amendment to the United States Constitution states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[xxix] Similarly the Fourth Amendment was adopted to redress the grievances caused by the issuance of general writs of assistance that caused widespread discontent among the colonists and were denounced by such historically famous men as James Otis.

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

To address another question- are we a civilized society? There are many things that modern Americans simply do not seem to understand. In our fights over abortion, the right to die, the barbaric nature of the death penalty, gun control legislation and the waging of war, what is lost in the discussion is the very real and often brutal reality that some legally justified killings are necessary for the freedom, welfare, prosperity, and safety of a nation and its citizens. Included among the legally justified killings that civilized society recognizes is the necessity of waging war to protect the people of a nation and secure their peace and freedom, the right to use deadly force against one’s attacker in personal self-defense by the individual or by law enforcement for self-defense and public safety, the right to pre-viability abortion, and the right of a State to execute individuals who are convicted of certain classes of dangerous and heinous crimes. The taking of human life for any reason is brutal and barbaric, no matter the circumstances that surround it. But one must ask the question: How humane is a civilization, in reality, that never allows for the taking of life under any circumstances?

Justice Kennedy delivered the opinion of the Court in the gut-wrenching 2008 case of Kennedy v Louisiana, stating, among other things, “Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule…When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint…”[xxxi]

But again a question begs to be answered: Is this an example of a “civilized society?” More directly to this point: Most American freedoms today, including the right to self-defense,[xxxii] can be traced back to the laws of England, which granted to “freemen” many rights and freedoms, though these rights and freedoms were greatly expanded upon in America. Looking back to what was in another culture long gone or in other cultures around the world holds no legal or social weight in America even if we can never wisely cast aside history’s lessons. As Justice Alito stated in his majority opinion in McDonald et al v. City of Chicago, Illinois, et al, “…we must decide whether the right…is fundamental to our scheme of ordered liberty.”[xxxiii]


[xii] A History of the Supreme Courtsupra, pp.201-202. “Peckham conception of law” refers to the legal jurisprudence of former associate justice of the United States Supreme Court Rufus Peckham, who was famous for utilizing “substantive due process” to invalidate state attempts at regulating the economy in favor of laissez-faire capitalism.

[xiii] Munn v Illinois, 94 U.S. 113, 134. (1876)

[xiv] A History of the Supreme Court, supra, p.258. Frankfurter quote from West Virginia Board of Education v Barnette, 319 U.S. 624, 665 (1943)

[xv] Ante, at 224.

[xvi] Miranda v Arizona, 384 U.S. 436 (1966); Dickerson v United States 530 U.S. 428 (2000) (Some “conservatives” such as O’Connor and Rehnquist in the majority, but this case was largely a battle between the Supreme Court and Congress)

[xvii] Gideon v Wainright, 372 U.S. 335 (1963). During the Warren Court era, decision was unanimous. Earl Warren, though never claiming to be a great legal scholar, had a way of uniting the Court to deciding major landmark decisions unanimously, such as in Brown v Board of Education of Topeka (1) 347 U.S. 483 (1954) and Brown V Board of Education of Topeka (2) 349 U.S. 294 (1955), cases outlawing segregation of the races in public schools.

[xviii] Herrera v Collins, 506 U.S. 390 (1993); Lockyer v Andrade 538 U.S. 63 (2003)

[xix] Elkins v United States 364 U.S. 206 (1960) (Another Warren Court case ruling for the rights of criminal defendants.); Weeks v United States 232 U.S. 383 (1914).

[xx] Hudson v Michigan 547 U.S. 586 (2006). (“Conservatives” on the Roberts Court vote against rights of criminal defendants, though perhaps not unjustifiably in this particular case.); Wolf v Colorado 338 U.S. 25 (1949) (Overturned by the Warren Court in Mapp v Ohio 367 U.S. 643 (1961))

[xxi] Texas v Johnson, 491 U.S. 397 (1989); United States v Eichman, 496 U.S. 310 (1990); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). (the latter decision of R.A.V. was unanimous in favor of R.A.V., while the prior cited decisions were a bit mixed, but largely with “conservative” justices voting in the minority against flag burning as protected speech.)

[xxii] Minersville School District v Gobitis 310 U.S. 586 (1940); West Virginia Board of Education v Barnette 319 U.S. 624 (1943). (Within three years the Supreme Court had reversed itself on this issue)

[xxiii] Important post-9/11 cases include Hamdi v Rumsfeld 542 U.S. 507 (2004); Rasul v Bush 542 U.S. 466 (2004); Boumediene v Bush 553 U.S. 723 (2008). (“Conservative” forces on the Supreme Court have swung wildly in these cases revolving around habeas corpus petitions by detainees in Guantanamo Bay. It is a necessity for public safety that the rights of enemy combatants and criminal defendants are not granted in excessive and unreasonable amounts, yet at the same time the rights of those accused and detained to prove their innocence and challenge illegal detentions must be upheld where reasonable.)

[xxiv] See A History of the Supreme Court, supra, Chapter 15 Watershed Cases: Roe v. Wade, 1973. Writing in the early 1990s, Schwartz had the opportunity to do interviews with the justices from the Warren and Burger court eras, as well as interviews with their law clerks, and takes readers behind the scenes on some of the most important cases from these eras.

[xxv] 410 U.S. 113 at 129-41

[xxvi] Id. at 148-49 (footnote omitted)

[xxvii] 579 U.S._

[xxviii] Terry v Ohio, 392 U.S. 1 (1968); Michigan v Long, 463 U.S. 1032 (1983); Alabama v White, 496 U.S. 325 (1990); United States v Sokolow, 490 U.S. 1 (1989). Under the “Plain Feel” or “Plain Touch” doctrine, evidence may also be seized in specific circumstances pursuant to a pat-down of the suspect’s outer garments. See Minnesota v Dickerson, 508 U.S. 366 (1993).

[xxix] U.S. Const. amend. IX.

[xxx] U.S. Const. amend. IV.

[xxxi] 544 U.S. _

[xxxii] According to Blackstone, common law required the citizen to first “retreat to the wall” before using deadly force against one’s fellow citizen, but in the early 19th century America, a new standard of having a “reasonable fear” for one’s life became the new standard after the murder trial where a jury acquitted Thomas Selfridge of the charge of the murder of Charles Austin, accepting the defense’s self-defense claim. For an overview, see Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (1st. ed. 2006).

[xxxiii] 561 U.S. 742 at 767 (2010). (Citation omitted, emphasis in original).