Philosophy in an Abstract World

Jack Rooney


"Every Government degenerates when trusted to the rulers of the people alone." (Thomas Jefferson, Notes on the State of Virginia, 1781-1785, pp. 19).

Liberty and freedom can erode over time in a democracy. Such erosion is occurring in America today. Little by little the rights and freedoms paid for through the blood of our ancestors are being eaten away by the forces of political corruption operating within a gargantuan bureaucracy catering to special interests and completely out of touch with the interests of the American people.

The erosion of liberty and freedom begins when the powers-that-be suspends an inalienable right, or place limitations on it, alleging the interest of the public. Random roadblocks are only one example. No one denies that drunk drivers pose a threat to the community and should not drive while intoxicated. But the solution, set up random road blocks and remove all drunk drivers found, sets a dangerous precedent for dealing with future social problems. The same illogic could be applied to demand roadblocks to catch illegal aliens, terrorists, weapons smugglers, drug dealers, car theft ring operators, truants, or whatever other reason the state felt was in the public interest. It may sound good in theory, but the nation's highways could become one solid roadblock if restraint against government is not enforced vigorously. In short, the right of the individual to come and go as he/she pleases is in jeopardy if these rights can be suspended any time the government feels it is expedient.

Further example of a whole series of laws which have emerged as a result of political expediency are the seizure laws placed in effect recently in an attempt to curb drug dealers by depriving them of their ill-gotten gains. The Bill of Rights specifically prohibits government from denying a person the right to personal property without due process of law. But just what this "due process of law" amounts to was not specified in either the Constitution or the Bill of Rights, and, lately it appears due process of law is whatever the powers-that-be say it is, or whatever serves their purpose. Seizing ones property before one is tried and convicted of a crime is clearly in violation of the Bill of Rights, but it is allowed "in the public interest".

There are certainly legitimate conditions in which the state may impose restrictions on individual liberties. During times of war emergency conditions exist which require government to take hold of the responsibility of maintaining order, and it may legitimately restrict freedoms during emergencies where there is a clear and present danger to the people and the nation as a whole. We have experienced several emergencies in the short life of this nation. The Civil War, the First World War, the collapse of the economy in 1933, the Second World War, and the Cold War, and numerous smaller war threats to the people, have required government to install measures, which at the time were necessary and right, to protect America from devastation and total collapse. During these emergency times, laws are placed in effect to curb and control the harmful activities of citizens, such as, The Emergency Powers Act, the Economic Recovery Act, and an assortment of laws, codices and regulations. These measures, designed to protect America, were installed by congress during extraordinary times. The problem is that these emergency measures are often left in place long after the emergency has passed, and it falls to the present generation to clean up the mess left by well-intended but radical and purely expedient measures placed in effect against the people and to restore the nation to its original, just and benevolent form.

There are many problems in American society, problems with the economy and the environment, with employment and education, with civil rights and racial tensions, with gang wars and crime. When government is ineffective in dealing with these problems, citizens who feel they are affected directly by such problems begin to demand change.

Maintaining order and promoting the public prosperity is a tall order for government. Factions holding political power tend to operate in their own interests; they enact laws, which appear necessary at the time to appease public outcry and maintain political power. Often, the citizens doing the most complaining, who raise their voices loudest are not the physical majority but a small group of often-fanatical moralizers who want everyone else in society to conform to their concept of morally acceptable behavior.

This is political expediency in its purest form: Any perceived threat to the system is often eliminated by decree, even if the decree runs contrary to constitutionally protected rights, known principles of liberty, and tenets of the Constitution. Liberty, in this sense, is a sham; it is whatever the powers-that-be says it is, rather than an inalienable right endowed by the Creator.

But many of our civil laws come about as a result of political expediency, rather than from well-thought-out social concern. The effect, over time, can be the same as if government was to have declared martial law and gradually, almost imperceptibly, the people wake up facing a police state.

The erosion of liberty in America is occurring as a result of subtle, and probably more or less unintentional, mistakes in judgment on the part of the individuals who enact the laws, those who interpret the law, and those charged with enforcing the law. If degeneration of government is indeed inevitable, as Jefferson claimed, if left to the leaders, then he seems to be restating the platonic question, "Custodeit custoda?" (Who will guard us from the guardians?)" Obviously, not the leaders themselves. Politicians often play follow the leader. When the leader says X, the followers down the political ladder also say X because to say or do otherwise is to commit political suicide. Politicians are human, and operating in one’s own self interest is a typically human response when it comes to maintaining a job and source of income. Even when some know in their heart that the leader has the wrong idea, they often go along with wrong-mindedness in their own self-interest. Their justification(s), whether they openly admit to it or not, are often the same as that of the German officers in the Nuremberg trials: "I was just following orders", but in fact, their motivations are often driven by the basic need to hold onto their job, their position within the group, and if the bosses are in a position to fire a dissident in the ranks, most group followers will patronize the leader’ and that includes the group-body ideas. There are many yes-men in government, shallow leaders without the ability to think critically or independently about the issues or the courage to speak up even if they do think otherwise. A man of conscience would say "I'm real sorry boss, (or Mr. Constituent, or Mr. Special Interest Group) but what you are suggesting may be illegal."

It is not surprising that society is experiencing problems with individual behavior within communities across America among our children. Over the last few decades, a whole generation of young people have seen a President dethroned, politicians and judges jailed for corruption, teachers jailed for sex-offenses against children, police officers indited for brutality, murder, and theft, mayors of cities caught doing drugs, military and political officials found lying to congress and to the American people, and members of the clergy imprisoned for fraud. Of course, a mature adult mind will reason that these are exceptions. Not all politicians and public officials and servants are corrupt. Indeed, the majority are fine and upright public servants who care deeply about America. But children generalize. They make a leap in logic from SOME, indeed a very few, politicians, teachers, police officers, and clergy are bad to ALL are bad.

The media often augments the child’s beliefs by sensationalizing these stories, giving the impression to the impressionable youth that the government is run by a bunch of corrupt self-serving bureaucrats, and the moral leaders are a bunch of bigoted hypocrites. They fail to see the positive aspect of these events, which is that the system of democracy in America, its Constitution, and its system of checks and balances, works.

The old saying about a few rotten apples spoiling the barrel appears to apply here; the result is that many young people in America harbor feelings of resentment and disrespect for law enforcement, politicians, teachers, government, and a system which they see as, bigoted, dogmatic, corrupt, unjust, and unfair. The current leaders and keepers of the status quo have lost their credibility with the American youth, and as Lincoln observed: "Once you forfeit the confidence of your fellow citizens, you can never regain their respect and esteem." (Lincoln’s Yarns and Stories).

Thus can be the nature of politics. False and ignorant premises are espoused from the top of the political ladder and carried along through the ranks. These ideas, these premises, stretch out into the community, and, if the people listen to the rhetoric long enough, large numbers of citizens may actually begin to believe they are true and right -- this is dogma incarnate. Hitler was a master of dogmatic rhetoric. Anyone who has taken the time to read "Mein Kampf " and analyze this infamous document can see a master of deception at work, his carefully worded arguments and conclusions demonstrate a cunning perversion of language and misuses of logic. His ability to put forth false and misleading causal connections in a convincing manner are the main reason he was able to sway so many people to accept his twisted ideas. Through the use of terms and phrases like "the German People", and "the Fatherland", and "the interests of the German people", he generated strong public opinion in line with his arguments; and, then, a great many Germans, convinced by Hitler's rhetoric, collectively proceeded to commit every kind of unspeakable and vile atrocities against their fellow human beings who they were convinced were the cause of their social woes. If the Holocaust teaches us anything, it is not that man has the capacity to brutalize his fellow men, this fact was already well documented before Hitler was born, first recorded in the biblical story of Cain and Abel, and recorded throughout the annals of history in the form of war, conflict, skirmishes, battles, conquests, enslavement and murders and the brutal nature of the human species to its own kind continues to be reaffirmed each night on the evening news, as we see piles of bodies strewn throughout war torn streets of the world, but the Holocaust, when viewed as one man's ability to move a large number of people to commit atrocities against their fellow human beings "in the public interest", stands as a testament to the force and power of the misuse of technical language, of impassioned rhetoric, to communicate dogma, to obscure and pervert the truth, and to convince large numbers of peoples of false and distorted ideas.

It is often cited in civil law that ignorance is not an excuse. Not knowing that a proposed law may be unconstitutional does not negate its impact on the community once placed in effect and enforced. The unintentional erosion of liberty brought on as a result of political expediency, where laws are placed on the books in a desperate attempt to solve social problems and quell complaints from special interest groups, can be destructive to human rights and progress. The unintentional mistakes in judgment combined with intentional abuses of power creates a set of conditions which are, in effect, destructive to the fabric of society.

Abuses of power are preventable only in a free society, where an individual can participate in the great discussion without threat of censure or reprisals from the powers-that-be.

Abuses of law are more or less preventable through appeal to reason, by looking at the arguments; the rhetoric put forth by those who propose such laws, and the language they use when they discuss social phenomena.

Carefully worded dogmatic rhetoric can persuade a large number of people some of the time, but as Lincoln observed, "It is true that you may fool all the people some of the time; you can even fool some of the people all of the time; but you can't fool all of the people all of the time." (op cites). Some of the people (the ones who "...can't be fooled all of the time.) see through the dogma and articulate an alternative point of view. Stalin, Lenin, Hitler, Mao tse-Tung knew this fact and killed all the intellectuals first, because they are the vanguard of truth, and truth is always the enemy of tyrants.

There is no such thing as "the public". There is no such thing as "society". These concepts are intellectual abstractions designed by theorists to describe a composite of individuals, specific circumstances, situations, events, and conditions observed by the theorist. Concepts like, "the public interest", or "the American public", or "mainstream America" have little meaning outside of a strict or rigorously constructed social theory, where they are used by the theorist in an attempt to explain social phenomena. Apart from some specific social theory, where such terms are a part of the technical language of the researcher/theorist, they are nothing more than vague metaphysical abstractions, empty concepts, and we can not possibly know what they mean in any epistemological sense of the term "know" or any linguistic sense of the term "meaning". These concepts, these theoretical constructs, have no basis in reality apart from the specific phenomena they are designed by the theorist to represent within some social theory. These hypothetical constructs are formed from observations and musings of theorists, which are finite, limited, and have no absolute or universal meaning. Yet these arbitrarily constructed concepts are often used and abused and bantered about in speeches and political rhetoric as if everyone has a clear idea what these mean. Politicospeak, to coin an psuedo-Orwellian term, is a great evil. At the base, at the foundation of all such technical terms, all that really exists, are specific individual theorists and the ideas and opinions they hold. Since opinions are often relative to the individual theorist's perception of the world, including their motivations, much of the rhetoric espoused by politicians, the news media, government agencies, educators, sociologists, psychologists, and the clergy regarding social problems is unintelligible.

"Public opinion", defined as the ideological predisposition of the group holding political power, is seldom a good measure of right or wrong and can never be used as a fitting barometer of justice. Public opinion, if there is such a thing, and the politicians and leaders guided by what they perceive to be, or what they claim to be, public opinion have burned heretics at the stake, thrown Christians to the lions, marched Jews into gas chambers, and sold men into slavery -- all because these people were different and perceived by an ignorant majority or power elite as a threat to the established order. We can not, therefore, always rely on public sentiment as a good judge of the rightness or wrongness of an issue.

Liberty and the right to pursue happiness according to the dictates of one's own heart, are fundamental human rights and are not socially or culturally relative. They are Universals and have equal legitimacy and force regardless of the time, circumstances, milieu, or "public opinion" which might happen to prevail at any time.

That the Creator endows man with certain inalienable rights is not a subject of debate in America. It is a given. Laws, which abridge these rights, are destructive, contrary to the best interests of all the people living in America. The founders of America had reason for mentioning "the pursuit of happiness " as one of our inalienable rights. As an inalienable right, the right to the pursuit of happiness ought not to be abridged by the state through laws restricting individual liberties unnecessarily. Liberty is a necessary condition for the pursuit of happiness, and laws which place undue restrictions on liberty are repressive; they are contrary to the intent and spirit of the original concept of America, where men can come and go and do what they want and say and think as they please in pursuit of happiness without unnecessary interference or control from government.

Repressive sanctions (laws placed in effect and enforced by the state to curb the behavior of a group of individual citizens believed to be engaging in activities thought to be the cause of social problems) invariably fail to control the behavior they are designed to regulate because people desire the liberty to do what they want with their own lives, they innately desire freedom.

The only sanction which can be reasonably assumed by government against the right to life, liberty, and the pursuit of happiness, is that the actions of the individual ought not restrict or abridge the rights of any other individual. This is precisely what the constitution has empowered the federal government with the responsibility to prohibit in state governments: actions by state government in which a small group holding political power (not the physical majority) exerts its beliefs or forces its opinions upon a minority through coercion, restrictions, and sanctions. Conversely, no majority has the right to abridge the legitimate rights of minorities.

We must be careful, mindful in our attempts to solve our social problems, not to engage in activities under auspices of law which abridge the rights and freedoms of harmless citizens; and, further, we must be watchful that the opinions of a group holding political power, even if they constitute a legitimate majority, do not exert themselves boldly to the point of violating the rights and freedoms of a small and defenseless minority who do not hold the same opinions as the powerful.

The primary goal of any just system of government should be to improve the basic human condition of it’s citizens through humane measures and not to lead the system to ruin by imposing sanctions on them which are intolerable to human nature and set the stage for increasingly repressive laws. It appears some politicians and public officials may be attempting to do precisely this to divert public attention away from the fact that government in America, at the federal, state and local levels, has been ineffective in dealing with the problems which plague American society, and by singling out a small group of citizens to blame for the variety of social problems (persons who use drugs and the youth gangs involved in the drug trade), the politicians have been able to downplay the fact of their own ineptitude at dealing with the underlying social problems and have instituted one of the first real witch hunts since the McCarthy era.

Pseudo-causal reasoning which posits an effect for a cause is fallacious. The real cause, as opposed to the presumed cause, of the problem of drug abuse in American society rests at the foundation of society itself, at its moral codes and laws.

It is not unusual for governments to enact the most expedient method of dealing with social problems. The problem is that sometimes these methods are inhumane or outright illegal. It becomes then a question of how much control government should exert over the people to promote the public welfare and prevent anarchy. Some people seem to think it is proper role of government to save us from ourselves, from our own vices, and, indeed, certain harmful activities and kinds of behavior (activities which have a direct negative impact on society and are destructive) ought to be repressed in the interest of the security and well being of all members of society. It is the proper role of government, for example, to provide sanctions against murder, theft, fraud, wanton recklessness, and obviously destructive activities injurious and harmful to all to prevent anarchy or a deterioration of the established social order. "The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg. Thomas Jefferson 1743-1826; "Notes on the State of Virginia", 1781-1785. Note that Jefferson is talking about private belief and not implementation of law, political activities, and action based upon such belief, or the effect entirely erroneous notions may have on the attitudes and actions of a people within a society

Where there is a clear cut, empirically verifiable, causal connection between the actions of the individual and the effects on the community, sanctions against some forms of behavior are appropriate. Acts (crimes) such as theft, murder, robbery, where there is a clear cut causal connection between the act and its effect, i.e., pulling the trigger on a gun and the injury or death of an individual, sanctions should be implemented and enforced by government; But where human actions are only vaguely connected to events within a community, care should be exercised on the part of government in sanctioning the public's right to do as they please with their own lives.

It is naive to assume that the world or a country, or a state or a community should be perfectly ordered. Utopia is not likely to be achieved in this world regardless of how many laws we have on the books to control and regulate human behavior. Laws, which attempt to impose order by restricting human rights and liberties invariably, fail. Even if they appear to work for a while, it is only a short-term solution. Whenever human activities (unusual or even aberrant as they may seem, such as excessively smoking pot, or using cocaine, or listening to extremely loud (to the point of hearing damage) rock & roll music, or viewing sexually explicit magazines or video taps), are only remotely or vaguely connected to events within a community, (an increase in the number of robberies and murders in a community, an observed rise in crime, an increase in sex related offenses or any supposed threat to the community), care should be exercised by the lawmakers in sanctioning the behavior thought to be the cause of the reported social ills. They might be wrong.

Smoking marijuana or snorting cocaine may not be the fundamental cause of crime in the streets. In fact, the emergence of these "problems" is more properly "effects" of more fundamental social problems. There was a time in America in the not too distant past when many people believed that men with long hair (hippies) were a threat to society. There was a time when people thought persons who rode Harley Davidson motorcycles and wore black leather jackets were a threat to society. In other lands there have been instances where people believed persons of certain religious predisposition’s, or of different skin color or of a certain economic status were a threat to society. Public sentiment and the facts of the matter can often be two different things. It is not the pot smoking or the consumption of alcohol or the coke snorting or the sale of automatic weapons which are the cause of the problems in current American society, it is America's inability to deal with more fundamental social and economic problems, such as ignorance, poverty, the environment, social inequalities, the disproportionate gap between the top and bottom of the social lattice, the widening gap between the haves and the have-nots, unemployment, access to education, and a variety of other social injustices inherent in current America.

If the basic causes of these problems are not identified correctly, all attempts to whip into submission, through the use of force, the masses of people who smoke pot or use cocaine or read naughty books are doomed to be nothing more than an exercise in futility. Sanctions prohibiting certain types of human behavior which do not pose a "clear and present danger" to the community set a dangerous precedent for the future. Socialist communism, as attempted in Russia, is the most striking example. Stalin’s application of Marxist philosophy, for example, led to nothing less than the enslavement of the Russian people. The laws in Russia were, up until very recently, extremely restrictive, and despite the Soviet government's promise of a utopian society, the people got tired of it. Marxist theory fails to account for the human factor at work in social groups. It reduces motivation by suggesting a strict determinism in the relationship between the individual and the state. If everything in life is controlled by forces greater than we (historical determinism), then why try? The result is that people find no motivation to achieve if they can not take part in the fruits of their labor, if they can not own their own property, if they can not come and go and say and do what they please, if they are not free. The laws in Russia were, up until very recently, extremely restrictive, rock & roll was illegal, all recreational drugs were illegal, the ownership of private property was illegal, the resale of a pair of blue jeans could land one a long trip to Siberia, and despite the Soviet government's promise of a utopian society, the people got tired of it. Russia collapsed from within.

The radio and television media have had an escalating effect on the vast changes taking place in the Soviet Union today. The Internet is having the same effect throughout the world. People see, through television and radio broadcasts, and information available through the net, that the standard of living in democratic countries far exceeds that of their own. The question raised in the old song, "How you gonna keep 'em down on the farm after they've seen Paris." has a simple answer -- you can't. The basic human desires for freedom, liberty, and to search for the good life are too strong.

Laws which emerge as a result of faulty reasoning about the circumstances surrounding social problems, specifically, laws which come about as a result of political expediency, are passed on from generation to generation, perpetuated from age to age, and breed new laws which are faulty. The result can be a system of government entrenched in dogma, and dogma is difficult to escape once it has become deeply imbedded in the body of our laws, our corpus juris. A single restrictive law sets a precedent, which can allow for the emergence of more restrictive laws to be enacted in the future. The growth and spread of more restrictive laws can continue to be put in place by the lawmakers, until finally, if left unchecked, liberty has eroded away to nothing but a concept, and the people are all slaves to the state, subject to the whims and caprices of the people who hold the power. Sanctions against religion, speech, communication of ideas, assembling, and to do as one generally pleases with one's private life in the pursuit of happiness, stagnate creativity and hinder progress by placing restrictions on our natures which are intolerable. Eventually, people subject to such laws will revolt.

If laws, which restrict basic human rights, were compatible with human nature, then conflicts and problems would not arise in situations where governments attempt to impose and enforce sanctions against the individual. But conflict does arise. It is extremely difficult for government to control what people do with their private lives, and when large numbers of people continue to ignore the sanctions against their behavior placed in effect by the state, they gamble, they smoke, they drink to excess and abuse drugs, they look at naughty books and videotapes, this is a good indicator that we the people, and our elected officials, are not dealing effectively with the problems which cause this sort of behavior to emerge on such a large scale in the first place. Violence, for example, is a symptom, an effect, and not a cause per se or in and of itself of anything. Laws, which are incompatible with human nature and designed to deal with symptomatic social ills, but overlooking the proper causes of the ills, are destined to fail and can create greater social woe than the problems they were designed to relieve.

By sanctioning certain highly desirable substances, such as marijuana and coke, the government has created the conditions for a successful black market. The government's proscriptive solution to the problem (sanction the activity, make it illegal), is incompatible with human nature and will probably fail to solve the social problems attributed to the drug activity.

Unrestrained freedom can lead to lawlessness, anarchy, and chaos, and although as Chief Justice Homes opined, "…one can not shout fire in a crowded theatre", excessive repression of the inalienable rights of the individual can lead to totalitarianism, and since totalitarian governments have never lasted because of the strong human desire for freedom, excessive repression of individual rights and liberties will invariably lead America to ruin. The people will get tired of it.

False ideas and mistaken notions which do not reflect the opinion of the majority, but of a small but powerful minority, or of a single individual, or a dictator, or a tyrant, or a monarch, or a body of men with the capability of enacting laws, or who have the ability to reach a large number of people through the press, or television, or the media, may become vogue for a time to the sentiment of the ignorant masses, but they can not last. Twenty-seven million illiterates in America (USDE Statistic) and at least that many more who are functionally illiterate (they can read and write a little bit but they do not), and at least that many again who have low, if not non-existent analytical skills, are prime targets for perpetuating dogma. In short, a large number of the American people do not have the critical ability necessary to analyze the issues intelligently. They accept anything that sounds good or conforms to their own moral or ideological predisposition. Because of this sad and disturbing truth, we must have honest men as leaders, and if we do not have this, we must have honest men in the press to watch those who are perhaps not so honest or who engage in false and misleading rhetoric; men who are not afraid to tell the truth, even if it goes against the grain of public opinion or is not politically expedient.

Reporting the whole truth is necessary to preserve the very basis and structure of democracy. If the citizens are not properly and thoroughly informed, they can not make intelligent decisions regarding issues of government. In response to the platonic question, "Who will guard us from the guardians?"(Plato, The Republic), it appears, at least in part, the answer may be honest men and women of conscience in the press. But the press, in itself, can not change anything. It can bring issues to the fore. It can point out inconsistencies. It can expose hypocrisy and untruth. It can reveal cons and frauds and inequities in the system. But the people are the ultimate instrument of change. People within a society, as a general rule, including journalists, hesitate to criticize their own government too harshly or to speak out against certain actions by governments which are questionable. Perhaps it is because, in a sense, people feel they are a part of the system and don't want to rock the boat, and sometimes even blatantly illegal government activities go on unchecked. War is murder. Colonialism is theft. The repression of human rights and liberties and freedoms constitute crimes against humanity. Such actions are invariably justified with reference to the public interest. But "Rose is a rose is a rose...." (Gertrude Stein, Brewsie and Willie, 1946). You can call it anything you like; it is still a rose. Those who speak out against certain kinds of controversial government activities are labeled, "dissidents", "muckrakers", "rabble rousers" or "seditious trouble makers". Their cries are labeled unpatriotic. In some countries they are threatened or tortured, imprisoned or killed. Or, in the alternative, for reasons of self-preservation, they turn a blind eye to the truth and become yes-men of the status quo, patsies, and dupes.

One of the first steps in practically all totalitarian governments is to alienate the intellectuals, the university professors, the writers and political commentators, and even the university students, because they are the first to blow the whistle on illegal government acts. If those in power do not achieve ostracism with nationalistic propaganda and charges of un-patriotism against those who speak out, they can take more drastic measures; they ship them off to Siberia, throw them in prisons charged with subversive acts, or set them up, or have them declared mentally ill and lock them away, or stand them against a wall facing a firing squad, or a variety of other tactics designed to shut them up. History is replete with examples. Socrates, Jesus Christ, Gallalieo, Lincoln, Martin Luther King, and Joseph Mandella all spoke up and were either punished, imprisoned, or murdered.

In America, the typical method of quieting dissidents is usually to ostracize or discredit the whistleblowers to downplay the importance of what they are trying to say. (Which is precisely what government has done to the intellectuals who have criticized its drug control policies. The intellectuals know that sanctions against the individual drug user are senseless. There are just too many parallels in history to this problem where similar measures were tried and failed. Bennett charged them with being unpatriotic. An old ploy.) If we do not listen to the best minds in our land, then to what higher authority must we appeal? The Supreme Courts? Yes. But only after the fact, only after those who disagree with the laws are in jail or dead.

It is often difficult for the citizens within a society to think of their own system of government as capable of committing crimes. Yet we know through experience those governments, individuals, and groups within government engage in criminal activities often. When governments commit crimes, they often claim immunity from punishment under the principle of "sovereign immunity"*, which, technically, historically, died out with the Magna Carta. This is beginning to change in America, and the sovereign immunity plea is no longer an absolute shelter: Watergate, Irangate, Abscam, and Operation Graylord, are examples where those in power abused their power, committed crimes or conspired with others who committed "the dirty deed", got caught, and were punished for their criminal acts, for their misuses of power, for their malfeasance.

The principle of sovereign immunity is beginning to erode in America, particularly with instances of malfeasance (evil intent) as distinguished from misfeasance (they just made a mistake). This principle, which is a holdover from the British principle of the "Divine Right of Kings", has outworn its usefulness (if it was ever at all useful to any but the king himself). Messages sent forth by the Supreme Court recently hold that abuses of power by elected officials and public servants will not be tolerated in America. The next true test of this nation will be in our ability to stem the tide of abuses of power before they occur. The temper of our time suggests the next decade will see a general housecleaning in government characterized by a weeding-out of the corrupt elements at all levels. Efforts on the part of single individuals are often ineffective in reducing abuses of power because a power structure of individuals, followers, loyalists, supporters, etc., builds up around the leader in power. This power structure of individuals is cemented together through fealty, loyalty which emerges in the followers from the personal satisfaction which arises from being a part of the group, from the perceived rewards to be gleaned from such affiliation, and from the desire to promote themselves and move up the political ladder through works and deeds they believe will meet with the approval of the leaders. For all practical purposes, these factions have the appearance of, and operate much like, little monarchies. Instead of calling themselves kings, barons, dukes, lords, and knights, they call themselves Presidents of the Party, Vice president, Executive vice presidents, Directors, Prosecutors, Representatives, Senators, Mayors, Councilpersons, Chiefs of Police, Sheriffs, Officers of the Law, etc. These individuals tend to protect and perpetuate the ideas of the leader (the boss) in their own self-interest. They maintain political dynasties within certain geographical regions of the country, particularly in large metropolitan cities. This form of government is plutocratic oligarchy; rule by the honchos in the interests of themselves. In their zealot attempts to look good to their supporters, they sometimes engage in behavior which is at best questionable and at worst criminal.

Political control combined with unrestrained power, create the conditions for the possibility of abuse resulting in civil rights and human rights violations, and because anything that can happen will happen, abuses occur. But it is often difficult to bring charges against elected officials for crimes against humanity when they presumably have the support of "their" public. It is difficult to bring charges against a group of people who have conspired to pass laws or do pass laws which are unconstitutional or violate human rights. But even this is beginning to change.

Holding politicians accountable for their acts of legislation in the same way we hold the surgeon responsible for work in an operating room would do wonders toward eliminating some of the reckless attitude among lawmakers. It is important to analyze the public statements made by the leader, the political philosophy, and to carefully examine proposed legislation before it is placed on the law books. In the past, and even today, proposed legislation does not receive close scrutiny from the people. Most citizens have no idea what laws are under consideration in congress or the house or even in their state legislatures. If legislator's proposals were checked by the judicial system, or by an independent judicial body set up to opine on the constitutionality of proposed state laws before they become law, or even if the media would bring the issue to the fore for the people to entertain, there would be less chance for error on the part of legislators in formulating new laws before they result in human rights violations. Most states have what is called a constitutional committee or constitutional check division designed to check proposed legislation before it is enacted, but the problem is that often these people are members of the system who have proposed the laws in the first place, the legislative branch, so they are not likely to be totally objective. It is almost as if they are saying, "Well, let's go ahead and pass it anyway and see if it stands up against a check by the Supreme Court." This is ignorance in is purest form. What about the people who suffer because of such laws in the time between the enacting and enforcement of a law and the time it is overturned by the Supreme Court? Does this not constitute a supreme act of malfeasance at the very least and outright criminality at worst on the part of the elected officials who are sworn to serve the interests of all the people?

Under the present system, the laws are placed in effect and checked by the judicial system only after the citizens begin to protest, only after the human rights violation occurs. There is no necessary reason why this process of lawmaking and enforcement should be allowed to continue. The solution resides within law itself.

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*The Myth of the State's Right to Sovereign Immunity

Why the 11th Amendment of the United States Constitution is referred to as the "States Rights Amendment" granting "Sovereign Immunity" to government is one of the true mysteries of American law? In reading the Amendment, I find no reference to such things there. Here is an example of my concern:

"… Justice John Paul Stevens complained that the court's expansion of state sovereign immunity could become a "mindless dragon that chews endless holes in federal legislation.'' States gain protection from lawsuits…. But Florida -- joined by Ohio and other states -- contended that Congress overstepped its authority. The states said Congress does not have the right to waive the 11th Amendment's guarantee of sovereign immunity from private suits…. In the Maine case, the justices killed the lawsuit by the parole and probation officers. The high court had ruled that states couldn’t be sued in federal court. Yesterday, the court said that the state was protected against a lawsuit charging a violation of federal law filed in state court -- unless the state agreed to be sued in state court." Thursday, June 24, 1999 By Roger K. Lowe the Columbus Dispatch, Washington Bureau Chief

The terminology "state's rights" and "sovereign immunity" is not in the Constitution and it is certainly nowhere in the 11th Amendment. The 11th Amendment does not say anything about "states rights" or "guarantee of sovereign immunity from private suits".

Today we have several powerful analytical tools available for determining the meaning of legal statements -- Propositional logic (Copi) and Transformational Grammar (Chomsky). Although neither is particularly useful in determining the context (a job for historians) of legal axioms and derivative propositions, the structure of statements and argument forms are an important element in deriving meaning from political and legal rhetoric. These tools, based on mathematical models, have only recently, within the last 50 years, emerged as instruments of analysis in the science of language, but their origins date back to the presocratics (Euclid).

Now, I know there are differences between Colonial English and everyday talk-speak we use today and the legalese we use in the courts today. But let us look at the opening sentence of the 11th Amendment:

Amendment XI - Judicial Powers not construed.

Ratified 2/7/1795.

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or subjects of any foreign State.

The 11th Amendment says federal courts, "The Judicial power of the United States", can not interfere with {"extend to "} or stop, intervene in, a suit brought, for example, by an individual living in Indiana against the state of Ohio, one of the United States, or by the State of Indiana against the State of Ohio, or by the foreign state of France, for example, against the State of Indiana. It does not say the Federal Court can not intervene or enforce suits brought by the Citizen against the Citizen’s own home state, or conversely, by the state against Citizens or the "subject of any foreign State". It does not say it can not intervene in suits brought by citizens against their domicile state. It is the obvious absence of sanctions against suits from citizens against their domicile state that is important here.

The Citizen most certainly can sue the domicile state under the 11th Amendment, and once a citizen commences suit, so my cause of action is a "suit commenced", against the state, any of its officers and agents, elected officials, and the state itself collectively if they violate the Citizen’s rights or injure the Citizen, and the federal courts can intervene because such intervention is NOT specifically prohibited in the 11th Amendment. It does not make sense for the congressional amenders to talk about "suits commenced… against…one of the United States by Citizens…." And the current courts to imply states are immune from suits. It does not make sense to talk about a "suit… commenced by Citizens…" unless a citizen can commence such a suit as a matter of right.

The principle of sovereign immunity creates a dichotomy between the people and the state. The true relationship is not one of symbiosis; the state is the people and the people are the state (communism), or subjugation; where rights are bestowed upon the people by a powerful human benefactor (monarchy), or a group of them (plutocracy), or an heavily entrenched elitist group (oligarchy), but the legitimate relationship in American law between the people and the state is a relationship of grant of authority, in which the state derives its responsibilities to the people from the people. Sovereign immunity, as nothing more than a bogus conceptual throwback to the Middle Ages, creates an us-against-them scenario, the people vs. the people or the state vs. the state, which is wrong. It also posits the existence of a double standard in law, rules applying to the state and the same rules applying to the people differently, which is equally wrong.

Further evidence against sovereign immunity is found in Lock, who helped pen the original draft of the constitution.

Locke fled to Holland shortly after writing these words. The king and his minion were not amused. It was dangerous indeed for any citizen to openly question "the divine right of kings" and the notion that the king's men could be held accountable to the people for the crimes committed against them did not set well with the royal political establishment in Britain. Yet the colonists embraced these ideas and, indeed, molded them into the foundation of the constitution itself in the right of the people "…to petition the government for redress of grievances."

The Pre-Revolutionary war declaration of 1775 specifically complained about rulers being "exempt from the operations of such laws" as they themselves hold over the people and command them to obey:

The idea that the 11th Amendment is a "states rights amendment" granting the state "sovereign immunity" from lawsuits is nonsense. The notion arose as an expedient reaction to post Revolutionary War suits commenced by some states against other states and citizens of one state against another state itself, an not just its citizens, for reparations. I suspect government, the courts, the states, elected officials, officers, and agents of same who might be placed at risk by it have found the words and wording of the 11th Amendment unsettling and so in the past have conceived to have it say something more favorable to their safety and protection.

The right of the people to petition the government for a redress of grievances is a constitutionally guaranteed right. The principle of sovereign immunity stands in direct opposition to that right insofar as petitioning the court to hear a case is an act of petitioning the government, whether by one citizen or many, guaranteed under the constitution

Furthermore, the 14th Amendment, passed after the 11th, clarifies the matter further:

The concept of immunity is a legal concept reserved to citizens, not states. Efforts on the part of sovereign immunity advocates are merely a subterfuge, or a deliberate obfuscation designed to stand the issue on its head.

Neither Amendment 11 nor 14 section 1 reference "states rights" or "sovereign immunity" at all except to limit such things and make the impudent violation of citizen’s rights by the States illegal. The llth Amendment is an amendment of clarification. The State is neither supreme, nor immune.

Is the Supreme Court referencing another version of the constitution than the one I have on my shelf? Maybe they are using the "new and improved version", the version that makes it easy (expedient) for them to distort the Constitution and undermine the Bill of Rights, the version that says what they want it to say, instead of what it actually says. I mean, what part of "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" do they not understand? This is not rocket science. It means what it says. And it says don’t screw around with the people’s rights and that includes the most fundamental right of the people to petition the government (state or federal or local) for "redress of grievances". Since the courts are a branch of Government designed to settle disputes and grievances, the people have a constitutionally guaranteed right to sue the government in a court of law, and we do not need to ask the governments permission to do so. Since "sovereign immunity" is not mentioned in the constitution as a defense against citizens, one can reasonably conclude it is "a ghost in the machine" (Whitehead), a hollow specter that haunts the halls of American justice with no substance or weight.

The principle of Due Process of Law gives many legal scholars, judges and lawmakers trouble; they seem to have a hard time understand what it is or defining it clearly. What is it? I think the authors of the Constitution figured we would be intelligent enough to figure it out, but apparently not in some cases, since there still seems to be some confusion about the concept of due process of law. It is simply this: Making just laws, which serve the interest of the people, and enforcing those laws. And this process was clearly defined in the Constitution. The making of laws involves, on the one hand, the will of the people and their consent at the outset, the legislative branch as the embodiment (X is what we want the law to be) of the will of the people, and the executive branch as the expression of their will in carrying out the law of the people; the enforcing of laws on the other hand, involves, again, the will or consent of the people to be governed, insofar as laws can not be enforced against the people against their consent and will; and, the judicial branch for interpreting (X is or is not the law) and documenting violations of law and reporting same to enforcement executives, and the executive branch with the power to move the enforcement agencies against lawbreakers, the police, the armies, the FBI, CIA, BATF, etc. and then the penal system itself.

The principle of sovereign immunity, which isn’t even in the constitution, was, in fact, one of the major gripes against King George leveled by the American Colonists in the Declaration of Independence"

"He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For Quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from Punishment for any Murders which they should commit on the Inhabitants of these States." (Crimes of the King, Declaration of Independence).

The principle of sovereign immunity, as a clever way the king could shelter himself from punishment for crimes committed against the people, began its demise as a guiding legal principle with the Magna Carta, and was outlawed with the success of the American revolution.

In America, the people are not the servants of the State. The State is the servant of the people – this is exactly what makes us different from all other nations on earth. This is why America is a revolutionary government; it involves revolutionary thinking that rejects the conventional wisdom of the ages and places the people in charge of their own lives. We rule the state; the state does not rule us. We must remain consistent to that principle.

The greatest crimes in the history of the world have not been crimes committed by a person against another person but by governments against there own people. One of the chief functions of the American revolutionary war was to settle the issue of "who will guard us from the guardians" and to establish a system of government to effectuate protection of the people from crimes of government officials.

Just how the Citizen would go about collecting a judgment won against a State is problematical, but a minor problem, I suspect, since appeal power to the federal courts is not prohibited after the matter has been tried at the state courts level. It does not imply one can not appeal after trial at the state level. Again, it centers on the right of citizens to petition the courts to redress a grievance, i.e., a wrong ruling, that is, to appeal. This is a paradox the courts seem to have a difficult time dealing with, so they have chosen to ignore it. State sovereign immunity is a myth in American law

Another conceptual error committed by many legal theorists in talking and writing about the relationship of the people to the state involves the mistake of using the concept of "state’s rights". States do not have rights. Human beings have rights. The state, as a transcendental entity, like a corporation, has responsibilities to human beings, the people. Advocating a position for state’s rights (the state has the right to do X) is like claiming a cotton gin has the right to thresh cotton or an automobile the right to drive down the street. The state is a machine, a corporation established for the purpose of managing the business of the people. It has no rights; only responsibilities to the people to manage their affairs in there best interests, and nothing more. A man has the right to drive down the street, but the machine carrying him has no rights.

Anthropomorphism is the activity of assigning human attributes to non-human things. The phrase "the long arm of the law", for example, is used often in legal rhetoric, but the law does not have arms. Humans have arms. So the "phrase" states rights is equally problematical. Attaching human attributes to non-human things, concepts, and abstract conceptual entities such as "the state" is purely metaphorical, likening something, in this case the term "state", to that which it is not in pure poetic analogy. Legal terminology is not poetry. The state, for example, is not endowed by the creator with inalienable rights -- a person is so endowed. The state derives authority from the people and is endowed only with the responsibility of upholding human rights, and not with granting them (as in a monarchy or pure communist state). The grant of authority of right is reserved to the people or the state only insofar as the state represents their will to be governed.

The concept of "state’s rights", if it is meant in any way a right above the people, or separate from them, or a power over them, is pure fiction.

Respectfully,

Jack Rooney

Copyrights 1987, 2000. Jack Rooney. Steal these words.