Thoughts on International Law

In the first edition of An Introduction to the Philosophy of Law published in 1922, Nathan Roscoe Pound, the Dean of Harvard Law School from 1916-1936 argued that the law is cyclical in nature, and the evolutionary process that law undergoes reflects a series of reactions and counter reactions by advocates of various jurisprudential theories. Dean Pound asserted that philosophical nature of the debates about the relative merits of the various theories resulted in a process of legal development that is dynamic in nature because, as newer theories develop the older theories attempt to counter them. The ability of older more established schools of thought to reply to the newer schools requires the older schools nullify and disavow outmoded conventions, customs, norms, practices, and traditions. Conversely, for a newer theory to achieve a degree of legitimacy it must abjure the practice of attempting to create a single uniform standard of law universally applicable without the need for exceptions over an indeterminate time Id: (Pound 1982, 1-4).

Internationally an example of the debates described by Dean Pound occurred between Edward Hallett Carr and Sir Hersch Lauterpacht on the relative merits of the Machiavellian realistic tradition, and the Grotian humanistic tradition. In his seminal work, The Twenty Years' Crisis, 1919-1939: An Introduction to the Study of International Relations, Carr argued that law is a series of commands unencumbered by ethical considerations, see: (Carr 1946, 176) Carr’s view of the law recognizes sovereignty as an element of the authority by which, the state compels obedience to the laws of the state.

As a response to Carr’s realistic and positivist approach, Sir Hersch Lauterpacht advocated the Grotian view of international law rejecting outright Carr’s legal positivism see (Kwiecień 2011) and (Jeffery 2006).
Lauterpacht argued the inverse asserting that although legal questions are separate and distinct from ethical and moral questions, the three inextricably intertwined as they are renders it impossible to completely divorce, the law from ethics and morals that underpin it. The clearest and most concise statement of Lauterpacht’s humanistic approach to international law essay entitled “The Grotian Tradition in International Law,” which appeared in the British Year Book of International Law published in 1946. Concerning sovereignty Lauterpacht argued that the sovereignty of state derives not from the inherent power and authority of the state but from the law of nations and the natural law. On the law of nations, Lauterpacht maintained that the recognition of the law nations by individual states is by its nature a dualistic construction predicated on the will of the governments and in part on the consent of the citizens of the nation-state.

In the sixty-five years since the publication of “The Grotian Tradition in International Law,” the Lauterpachtian humanist view of international law has permitted humanism to assume a place as one of several viable theories of international law alongside Carr’s realistic positivism through its presentation in Judge Lauterpacht’s separate opinion in the Case of Certain Norwegian Loans. The International Court of Justice employed Judge Lauterpacht’s reasoning in the case concerning the military and paramilitary activities employed by United States against Nicaragua.
Given the cyclical nature of the law as demonstrated above, I would contend that over time a counter reaction develops, in which, the humanist perspective currently holding sway in international at present will give way to another theory. One descended from the twin theories of legal positivism and political realism who advocate positions similar to those norms adopted by Herbert Lionel Adolphus Hart and Hans Joachim Morgenthau norms and standards, which, impart to the state primacy over the individual.

Put simply the near constant state of fluctuation present within international law imparts a greater degree of fluidity and flexibility within international law than is present within municipal law. This flexibility allows the various schools of thought to achieve a greater degree of ascendancy over other theories in a shorter time. For example, the immediate aftermath of the Second World War ushered in a period in which the strict realistic legal positivism advocated by Lord McNair and Hans Kelsen dominated international law. By the 1960's Lauterpacht's neo-naturalistic humanist view of international began to supplant the strict realistic positivism advocated by the Kelsenians. Lauterpachtian Humanism reached its apogee in the mid 1980's, and in the following decades, several realistic theories of international law have been the process of formulating a cohesive response. It is believed, that this response will ultimately supplant Lauterpachtian Humanism as the dominant theory of international law.

Regardless of the theory in ascendancy, there are elements common to all theories that are immutable. For example, all theories of international law accept to varying degrees, the universality principle. The universality principle, all states are granted the right to adjudicate matters involving crimes under international law either within the international judicial system or the national judicial system of the various nation states, piracy, war crimes, crimes against humanity, and crimes against peace as defined within the sources of international public law.

In short, I view international law as being similar to Chinese concept of yīnyáng, or the Korean variant Um-yang as symbolized by the Taijitu of Chinese Daoism and the Taegeuk of Korean Daoism in the sense that international law consists of opposing forces that complement each other.

Works Cited
Carr, Edward Hallett. The Twenty Years' Crisis, 1919-1939: An Introduction to the Study of International Relations. Second Edition. Vol. One. 1 vols. London, England: Macmillan, 1946.
Case of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits Judgment of June 28, 1986, p. 14. General List No. 70 (International Court of Justice, The Hague June 28, 1986).
Case of Certain Norwegian Loans (France v. Norway) Judgment of July 6, 1957. General List No. 29 (International Court of Justice, The Hague July 6, 1957).
Case of Certain Norwegian Loans (France v. Norway) Judgment of July 6, 1957, Separate Opinion of Judge Sir Hersch Lauterpacht. General List No. 29 (International Court of Justice, The Hague July 6, 1957).
Jeffery, Renée. "Hersch Lauterpacht, the Realist Challenge and the 'Grotian Tradition' in 20th-Century International Relations." European Journal of International Relations (Sage) 12, no. 2 (June 2006): 223-252.
Kwiecień, Roman. "Sir Hersch Lauterpacht's Idea of State Sovereignty - Is It Still Alive?" International Community Law Review (Nijhoff) 13, no. 1/2 (January 2011): 23-41.
Lauterpacht, Hersch. "The Grotian Tradition in International Law." British Year Book of International Law: 1946 (Oxford University Press ) 23 (1946): 1-53.
Pound, Nathan Roscoe. An Introduction to the Philosophy of Law. Third Edition. Vol. 1. One vols. New Haven, CT: Yale University Press, 1982.

Development

While the wars in Afghanistan and Iraq have drained American
resources, the unrest in the Middle East might herald the beginning of
a transformative period, one in which semiperipheral nations either
replace the existing core states or increase their number by becoming
core states themselves.

History demonstrates that global conflicts often prefigure the
evolution of the international system. The failure of the Concert of
Europe resulted in the First World War, which in turn culminated in
the Treaty of Versailles and the League of Nations. The fundamental
flaws within the peace treaty rendered the League of Nations impotent
in the face of the rising tide of fascism during the 1930s that
inspired the horrors of the Second World War.

From the devastation of World War II arose the United Nations with the
Bretton Woods monetary system. The resistance toward concerted efforts
at restructuring both the UN Security Council and the global economic
consensus and trade regime as sustained by the International Monetary
Fund and the World Trade Organization serves as a concrete
representation of the latent conflict between the "global north" and
the "global south." Within the Security Council in particular, the
"permanent five" aim to maintain the status quo in order to prolong
their ability to assert and implement their interests, possibly at the
expense of developing nations.

The "world system" however, as it was described by sociologist
Immanuel Wallerstein (1930), may not be static but dynamic instead to
the extent that the classification of various states as core,
peripheral or semiperipheral can evolve over time. Modern day examples
include Brazil, India and South Africa which are rising to the status
of core power. China, it may well be argued, has already achieved that
status.

Economist Ricardo Hausmann (2001), argued that the sustainable
development of the peripheral states of the “global south” is dependent upon their ability to overcome the natural barriers imposed by their geography.
If Hausmann is correct then the continued growth of the “global south” requires the
investment and involvement of the developed nations in the “global north”

A Summation of my Philosophical Outlook

My perceptions about the multitudinous sides to arguments are informed by my collegiate experiences, as an undergraduate I attended the University of Saint Thomas a Catholic university in Houston, Texas founded in 1,947 by the Congregation of Saint Basil (The Basilian Fathers). The core curriculum of the University mandates that all undergraduate students including transfer students complete a given number of theology and philosophy course prior to graduation. The manner of instruction on the philosophy courses offered by the University is consistent with the Thomistic foundation on which the University rests.

Thomism, the philosophy espoused by Thomas Aquinas maintains that faith and reason are neither mutually exclusive nor are they irreconcilable. Aquinas argued that God endowed humankind with a rational mind and a spiritual conscience, which, permits humankind to exercise freedom of choice. The effect Thomism has had on my perceptions as it relates to my understanding of the multiplicity of arguments available can be seen though my application of the Principle of Double Effect to given scenarios. I generally attempt to maintain positions that do not vitiate the Principle of Double Effect, although, I concede I am not able to always do so.

The Principle of Double Effect states that an act is moral if it meets four prerequisites, a morally acceptable act requires the fulfillment of the following conditions: One, the act must be either morally good or indifferent. Two, the good effect must not be achieved by means of the evil effect. Three, the proper intention exists when the intent underlying the act is the achievement of the good effect, with the evil effect construed as a tolerable unintended side effect. Last, the good effect and the evil effect must be proportionate to each other.

My ethics professor Dr. M. Jean Kitchel, always encouraged her students to see all the sides of an issue by drilling the following Latin epigram into the heads of her students: Cave ab homine unius libri roughly translated it means ‘beware the man who has only one book.’

Profile Update

I updated my profile in response to an allegation of plagiarism made by a professor who accused me of plagiarizing from my own work.

Hegel v Hobbes

During my first course as undergraduate pursuing, a course of study in international studies my classmates and I received our introduction to the differing philosophies of Yoshihiro Francis Fukuyama and Samuel Phillips Huntington.

In the final stages of the Cold War during the summer of 1989 Francis Fukuyama authored, the seminal article entitled “The End of History” which initially appeared in the summer 1989 issue of The National Interest. In the article, Fukuyama contended that the impending end of the “Cold War” as it had existed since the conclusion of hostilities during the Second World War on September 2, 1945 prefigured the completion of an evolutionary process in political thought and ideology. Fukuyama argued that the process would result in the eventual universalization of liberal democracy and it acknowledgment as the ultimate form of human governance.

What we may be witnessing is not just the end of the Cold War, or the passing of a particular period of postwar history, but the end of history as such: that is, the end point of mankind's ideological evolution and the universalization of Western liberal democracy as the final form of human government. This is not to say that there will no longer be events to fill the pages of Foreign Affair's yearly summaries of international relations, for the victory of liberalism has occurred primarily in the realm of ideas or consciousness and is as yet incomplete in, the real or material world. (Fukuyama 2005)

Fukuyama advanced a Hegelian argument influenced by work of Alexandre Kojève and his student Alan Bloom emphasizing the Hegelian position that a true understanding of history requires a thorough comprehension of the underlying historical processes originated in the realm of ideas (consciousness) and transcended the material world.
For Hegel, the contradictions that drive history exist first of all in the realm of human consciousness, i.e. on the level of ideas - not the trivial election year proposals of American politicians, but ideas in the sense of large unifying worldviews that might best be understood under the rubric of ideology. Ideology in this sense is not restricted to the secular and explicit political doctrines we usually associate with the term, but can include religion, culture, and the complex of moral values underlying any society as well. Hegel's view of the relationship between the ideal and the real or material worlds was an extremely complicated one, beginning with the fact that for him the distinction between the two was only apparent. He did not believe that the real world conformed or could be made to conform to ideological preconceptions of philosophy professors in any simpleminded way, or that the "material" world could not impinge on the ideal. Indeed, Hegel the professor was temporarily thrown out of work as a result of a very material event, the Battle of Jena. But while Hegel's writing and thinking could be stopped by a bullet from the material world, the hand on the trigger of the gun was motivated in turn by the ideas of liberty and equality that had driven the French Revolution. For Hegel, all human behavior in the material world, and hence all human history, is rooted in a prior state of consciousness an idea similar to the one expressed by John Maynard Keynes when he said that the views of men of affairs were usually derived from defunct economists and academic scribblers of earlier generations. This consciousness may not be explicit and self-aware, as are modern political doctrines, but may rather take the form of religion or simple cultural or moral habits. And yet this realm of consciousness in the long run necessarily becomes manifest in the material world, indeed creates the material world in its own image. Consciousness is cause and not effect, and can develop autonomously from the material world; hence the real subtext underlying the apparent jumble of current events is the history of ideology. . . . For Kojève, as for all good Hegelians, understanding the underlying processes of history requires understanding developments in the realm of consciousness or ideas, since consciousness will ultimately remake the material world in its own image. (Fukuyama 2005)

Fukuyama and his antecedents maintain that the preexisting universal consciousness, the realm of ideas, will eventually transform the material, particular world in such a way that it becomes a true representation of the universal consciousness capable of transcending and bridging areas of potential conflict.

As a counterpoint to balance the Hegelian and utopian aspects of Fukuyama’s article our professor, Dr. Col. Ronald L. Hatchett, UASF ret., required his students to read Samuel P. Huntington’s “The Clash of Civilizations.” Even though he was one of Fukuyama’s mentors, Huntington’s views are the antithesis of those espoused by Fukuyama.

Huntington argued that in the post Cold War era conflicts would occur along cultural fault lines, instead of political and economic ones that had occurred during and before the Cold War

Civilization Identity will be increasingly important in the future, and the world will be shaped in large measure by the interactions among seven or eight major civilizations. These include Western, Confucian, Japanese, Islamic, Hindu, Slavic-Orthodox, Latin American and possibly African civilization. The most important conflicts of the future will occur along the cultural fault lines separating these civilizations from one another. (Huntington 1993).

The core of Huntington’s thesis rests upon a Hobbesian response to the arguments raised within Fukuyama’s “End of History.” Huntington identified six root causes for future clashes between the various cultural groups: One, difference between civilizations; Two, heightened interaction between differing civilizations; Three, economic and social changes that undermine local identity and inhibit the nation-state from fulfilling its role as definer of the national identity, and unifying force. The need to fill the void created by the inability of the state to serve as a unifying force mandated that religion assume this function previously held by the state. Four, Huntington asserts that cultural differences are more static and less likely to be subject to concessions, unlike political and economic differences to which, solutions are more easily negotiated. Five, economic regionalism; Last, the dual nature of the Western civilization, has resulted in an admiration of the power and influence possessed by the Western nations by Non-Western nations, while, simultaneously inciting what Huntington termed a “return to roots phenomenon”

The six root causes for conflict documented above provide an illustration of the influence of Thomas Hobbes that underpins the “Clash of Civilizations.” In chapter, thirteen of Leviathan Hobbes contended that the nature of humankind was predisposed to be quarrelsome. Hobbes believed that the conflict between humans originated from three sources competition, indifference, and greed.

From this equality of ability ariseth equality of hope in the attaining of our ends. And therefore if any two men desire the same thing, which nevertheless they cannot both enjoy, they become enemies; and in the way to their end (which is principally their own conservation, and sometimes their delectation only) endeavour to destroy or subdue one another. And from hence it comes to pass that where an invader hath no more to fear than another man's single power, if one plant, sow, build, or possess a convenient seat, others may probably be expected to come prepared with forces united to dispossess and deprive him, not only of the fruit of his labour, but also of his life or liberty. And the invader again is in the like danger of another.
And from this diffidence of one another, there is no way for any man to secure himself so reasonable as anticipation; that is, by force, or wiles, to master the persons of all men he can so long till he see no other power great enough to endanger him: and this is no more than his own conservation requireth, and is generally allowed. Also, because there be some that, taking pleasure in contemplating their own power in the acts of conquest, which they pursue farther than their security requires, if others, that otherwise would be glad to be at ease within modest bounds, should not by invasion increase their power, they would not be able, long time, by standing only on their defence, to subsist. And by consequence, such augmentation of dominion over men being necessary to a man's conservation, it ought to be allowed him.
Again, men have no pleasure (but on the contrary a great deal of grief) in keeping company where there is no power able to overawe them all. For every man looketh that his companion should value him at the same rate he sets upon himself, and upon all signs of contempt or undervaluing naturally endeavours, as far as he dares (which amongst them that have no common power to keep them in quiet is far enough to make them destroy each other), to extort a greater value from his contemners, by damage; and from others, by the example.
So that in the nature of man, we find three principal causes of quarrel. First, competition; secondly, diffidence; thirdly, glory.

The first maketh men invade for gain; the second, for safety; and the third, for reputation. The first use violence, to make themselves masters of other men's persons, wives, children, and cattle; the second, to defend them; the third, for trifles, as a word, a smile, a different opinion, and any other sign of undervalue, either direct in their persons or by reflection in their kindred, their friends, their nation, their profession, or their name. (Hobbes 1995)
Huntington’s six sources of potential conflict readily reaffirm the Hobbesian contention humankind is in general a species of selfish beings, indifferent to the welfare of others, driven by the desire for self-preservation that is accomplished through the power accrued only through the achievement of economic and political capital.

Hence the West will increasingly have to accommodate these non-Western modern civilizations whose power approaches that of the West but whose values and interests differ significantly from those of the West. This will require the West to maintain the economic and military power necessary to protect its interests in relation to these civilizations. It will also, however, require the West to develop a more profound understanding of the basic religious and philosophical assumptions underlying other civilizations and the ways in which people in those civilizations see their interests. It will require an effort to identify elements of commonality between Western and other civilizations. For the relevant future, there will be no universal civilization, but instead a world of different civilizations, each of which will have to learn to coexist with the others. (Huntington 1993)
In 2002, nine years after the original publication of the “Clash of Civilizations” and thirteen years after Fukuyama’s propositions regarding the “End of History” Stanley Hoffmann offered a critique of both models in an article entitled “The Clash of Globalizations.”

Hoffmann rejected both Fukuyama and Huntington’s models because both possessed deficiencies in their abilities to account for various phenomena. Hoffmann’s primary objection to the Fukuyamian paradigm revolves around Fukuyama’s failure to account for extremist nationalism and the development of future religious conflicts especially those inspired by radical religious fundamentalist groups especially in the predominantly Islamic countries.

His refutation of the Huntingtonian concept is founded upon both a semantic and a substantive argument. Semantically, Hoffmann contends that Huntington’s definition of what constitutes a civilization is illdefined. Substantively, Hoffmann makes three points: First, he observed that the Huntingtonian model errs in the sense that it effectively minimizes intrastate conflicts, dismissing them as unimportant. Second, he believes that Huntington’s view grossly exaggerated role religion plays when considering the behavioral development of non-Western elites who are often more secular and Westernized than the lower classes of the populace. Hoffmann, third and final substantive point reflects the synthesis of his prior two points, he maintains that Huntington cannot establish a firm linkage between his concept of a civilization and the foreign policies of the nation-states comprising these civilizations.

Two models made a great deal of noise in the 1990s. The first one -- Francis Fukuyama's "End of History" thesis -- was not vindicated by events. To be sure, his argument predicted the end of ideological conflicts, not history itself, and the triumph of political and economic liberalism. That point is correct in a narrow sense: the "secular religions" that fought each other so bloodily in the last century are now dead. But Fukuyama failed to note that nationalism remains very much alive. Moreover, he ignored the explosive potential of religious wars that has extended to a large part of the Islamic world.

Fukuyama's academic mentor, the political scientist Samuel Huntington, provided a few years later a gloomier account that saw a very different world. Huntington predicted that violence resulting from international anarchy and the absence of common values and institutions would erupt among civilizations rather than among states or ideologies. But Huntington's conception of what constitutes a civilization was hazy. He failed to take into account sufficiently conflicts within each so-called civilization, and he overestimated the importance of religion in the behavior of non-Western elites, who are often secularized and Westernized. Hence he could not clearly define the link between a civilization and the foreign policies of its member states. (Hoffmann 2002)

As an alternative Hoffmann recommended a neoclassical realistic approach founded on the work of Hans Morgenthau and Raymond Aron but with modifications that can account for terrorism by non-state actors and the challenges posed by the political, cultural, and economic globalization especially in the aftermath of the destruction wrought on September 11, 2001. He urged caution and restraint in the development and use of a new framework.

For all these tensions, it is still possible that the American war on terrorism will be contained by prudence, and that other governments will give priority to the many internal problems created by interstate rivalries and the flaws of globalization. But the world risks being squeezed between a new Scylla and Charybdis. The Charybdis is universal intervention, unilaterally decided by American leaders who are convinced that they have found a global mission provided by a colossal threat. Presentable as an epic contest between good and evil, this struggle offers the best way of rallying the population and overcoming domestic divisions. The Scylla is resignation to universal chaos in the form of new attacks by future bin Ladens, fresh humanitarian disasters, or regional wars that risk escalation. Only through wise judgment can the path between them be charted. (Hoffmann 2002).

John Ralston Saul’s article entitled “The Collapse of Globalism: And the rebirth of nationalism” extends Hoffmann’s views on the subject of the relationship between globalization and terrorism to include market fundamentalism. Saul argued that globalism as an idea appeared in a fog much in the same way that God appeared to Moses in a cloud, that ultimately resulted in the formation of Crucifixion Theory of Economics

Finally, the new approach to debt—public versus private, First World versus Third World—revealed a fatal confusion. Those who preached Globalization couldn’t tell the difference between ethics and morality. Ethics is the measurement of the public good. Morality is the weapon of religious and social righteousness. Political and economic ideologies often decline into religious-style morality toward the end. But Globalization had shoved ethics to the side from the very beginning and insisted upon a curious sort of moral righteousness that included maximum trade, unrestrained self-interest, and governments alone respecting their debts. These notions were curiously paired with something often called family values, as well as an Old Testament view of good and evil. It somehow followed that if countries were in financial trouble, they were moral transgressors. They had to discipline themselves. Wear hair shirts. Embrace denial and fasting. This was the crucifixion theory of economics: you had to be killed economically and socially in order to be reborn clean and healthy. For a quarter century, under the severe hand of the International Monetary Fund, this moralizing and emotionally charged approach has been applied to the developing world with absolutely no success. Oddly enough, it had been presented as a form of cool, detached utilitarianism. Those who applied the theory seemed to fail the basic philosophical test of functioning intelligence and ethics—the ability to imagine the Other. They simply insisted, as developing-world debts continued to rise on a roller coaster of instability, that those people must learn to act in a more predictable manner. Which brings to mind rather aged priests insisting that young men should take cold showers and exercise more. (Saul 2004)

Fundamentalist economists argue in order to achieve `economic salvation’ requires a blind faith and catholic faith in the monolithic structure of Crucifixion Theory. The purists who advance a blind supplication to the theory are demanding a faith uninformed by the light of reason. The main flaws within the Crucifixion Theory are visible within the utilitarian underlayment that reinforces the theory because it advances the good of the state at expense of the individual.

Having read Fukuyama, Huntington, Hoffmann and Saul I find that I concur with Hoffmann’s assessment of both Fukuyama and Huntington’s model. Moreover, I would argue that the need for a more flexible model not tied to the Crucifixion Model was demonstrated as early as 1995-1996 with the bombings of the Alfred P. Murrah Federal Building, and the Khobar Towers.

Works Cited
Fukuyama, Yoshihiro Francis. "The End of History? (1989)." This is Robert L. Stevenson's home page. Edited by Robert L. Stevenson. Robert L. Stevenson. January 13, 2005. http://www.unc.edu/home/rlstev/Text/Fukuyama%20End%20of%20History.pdf (accessed August 13, 2010).
Hobbes, Thomas. "The Leviathan (1660)." Great Voyages: the History of Western Philosophy from 1492-1776, Winter 1997. Edited by Bill Uzgalis and Joy Hughes. Jon Dorbolo, et al. October 1995. http://oregonstate.edu/instruct/phl302/texts/hobbes/leviathan-c.html#CHAPTERXIII (accessed August 13, 2010).
Hoffmann, Irving. "The Clash of Globalizations." Foreign Affairs 81, no. 4 (Jun/Jul 2002): 104-115.
Huntington, Samuel Phillips. "The Clash of Civilizations." Foreign Affairs 72, no. 3 (Summer 1993): 22-49.
Saul, John Ralston. "The Collapse of Globalism: And the rebirth of nationalism." Harper's Magazine 308, no. 1846 (March 2004): 33-43.

One of the titles given to Mary Magdalene by the Eastern Orthodox Church is Iσαπόστολος, isapostolos in Greek, aequalis apostolis in Latin, which, translates into English as Equal to the Apostles.

Another case is Saint Phoebe (1st century) who was a deaconess of the Church. Phoebe was commended to the congregation of Rome by St. Paul, who praised her for her assistance to him. According to tradition delivered the Epistle to Romans to the congregation, her feast day is 3 September

A third example is Saint Macrina the Younger, the elder sister of Saint Basil who served her community as a deaconess.
Finally, the life of Saint Melania the Younger a contemporary of Macrina founded numerous orphanages, hospices, and served as a deaconess,

I would humbly assert that Mary's designation and the work of these women and many others in the early church are sufficient reasons to warrant the full ordination and participation of women within the Roman Catholic Church. Furthermore, this position is consistent with the Jewish customs and mores that are the foundation for Christianity, traditions that recognized the feminine aspect of the Divine Presence exemplified by the Shekhinah.

The 2010 revisions made to Normae de gravioribus delictis, which ratified and reaffirmed the General Decree: regarding the delict of attempted sacred ordination of a woman, issued by the Congregation for the Doctrine of the Faith on 19 December 2007.
The more grave delict of the attempted sacred ordination of a woman is also reserved to the Congregation for the Doctrine of the Faith:
1° with due regard for can. 1378 of the Code of Canon Law, both the one who attempts to confer sacred ordination on a woman, and she who attempts to receive sacred ordination, incurs a latae sententiae excommunication reserved to the Apostolic See.
2° If the one attempting to confer sacred ordination, or the woman who attempts to receive sacred ordination, is a member of the Christian faithful subject to the Code of Canons of the Eastern Churches, with due regard for can. 1443 of that Code, he or she is to be punished by major excommunication reserved to the Apostolic See.
3° if the guilty party is a cleric he may be punished by dismissal or deposition
The position adopted by the Roman Catholic Church, flies in the faces of history and contravenes the positions adopted by the earliest communities.

The Musings of a Layperson on a Judicial Nominee

The confirmation proceedings for Solicitor General Elena Kagan to become the newest Associate Justice of the Supreme Court of the United States have been largely unremarkable in that the hearings have not illumined Solicitor General Kagan’s personal views on any substantive points of law that are likely to be examined by the Court. Many of the Senators who are attempting to ascertain the Solicitor General’s qualifications and fitness for the appointment have complained about her scant production of literature related to topics such abortion and the right to bear arms. Indeed I would assert that this dearth of information is an effort to avoid the same fate as former Solicitor General Robert Bork whose writings were utilized to raise questions about his temperament and resulted in the defeat of his nomination to the Supreme Court of the United States as potential successor to former Associate Justice Lewis F. Powell in 1987. Since then potential nominees have been quite circumspect about the tenor of the writings they publish. As result the Senate Judiciary Committee will be forced to rely on the testimony of the nominee and the witnesses that have been called to testify on the nomination because, there is very little within the documents that could be held to be construed as controversial.
President Obama's commissioning of Solicitor General Kagan as the replacement for the retiring Justice Stevens is neither unexpected nor is it without precedent four other Solicitor’s General have ultimately occupied seats on the Supreme Court of the United States with one serving as Chief Justice of the Supreme Court of the United States, the other three former Solicitors General of the United States confirmed to the high court served as Associate Justices of the Supreme Court of the United States.
The first Solicitor General of the United States to serve on the Court was President Benjamin Harrison's second Solicitor General, the thirty-two year old William Howard Taft who served in the position from February 1890 until his confirmation to the Sixth Circuit Court of Appeals on 17 March 1892, although thirty-one years would pass before President Warren G. Harding would commission the former President of the United States on 30 June 1921. In June 1921 President Harding commissioned the sixty-three year old Taft to succeed Chief Justice, Edward Douglass White who had died on 19 May 1921 following complications from gallbladder surgery. Former President Taft was confirmed the same day his nomination was received in the Senate a feat few justices have achieved. The vote taken by the Senate overwhelmingly confirmed his nomination by a vote of sixty in favor, four against and thirty-two not voting. Chief Justice Taft took both the Constitutional Oath and Judicial Oath on 11 July 1921. Chief Justice Taft served eight years, six months, and twenty-three days before retiring on 3 February 1930 due to failing health. Chief Justice Taft died thirty-five days later on 8 March 1930 aged seventy-two
Since Taft's appointment to the court three other Solicitor Generals have been appointed to the Court, these individuals were the following:

1. On 26 January 1938, Solicitor General Stanley Forman Reed was commissioned by President Franklin Delano Roosevelt to replace Associate Justice George Sutherland who had retired 16 January 1938 after fifteen years, three months, and fifteen days at the age of seventy-five. Justice Reed served nineteen years and twenty-five days before he retired on 24 February 1957 at the age of seventy-two.


2. Three and half years later on 10 July 1941, Attorney General and former Solicitor General Robert Houghwout Jackson was nominated by President Franklin Delano Roosevelt to replace the newly promoted Associate Justice Harlan Fiske Stone who became Chief Justice on 2 July 1941 following the retirement of Chief Justice Charles Evans Hughes on 1 July 1941. Justice Jackson served thirteen years, two months and twenty nine days until his death from a massive heart attack on 9 October 1954.

3. Almost thirteen years after Justice Jackson’s death President Lyndon Baines Johnson nominated the last Solicitor General to become a Supreme Court Justice, Thurgood Marshall. On 13 June 1967 President Johnson nominated his Solicitor General replace Associate Justice Thomas Campbell Clark (Tom C. Clark) who had retired on 11 June 1967 concluding seventeen years, nine months and nineteen days of service in order to permit his Ramsey Clark’s nomination as Attorney General of the United States to proceed. Justice Marshall served for twenty-three years, eleven months and twenty-nine days before he retired on 30 September 1991 at the age of eighty-three due to ill health.

Another issue that has caused some concern among critics of Solicitor General Kagan’s nomination is her lack of prior judicial experience. In my view, however, this should not be an absolute bar to her confirmation. If one examines the levels of the four former Solicitors General to sit on the Court as Justices only Chief Justice Taft and Associate Justice Thurgood Marshall possessed previous judicial experience having served on the United States Court of Appeals for the Sixth Circuit and the United States Court of Appeals for the Second Circuit respectively. Neither Justice Reed nor Justice Robert Jackson served in any judicial capacity prior to their respective appointments to the Supreme Court. Furthermore, Justice Reed never attended law school, and Justice Robert Jackson briefly attended law school but did not graduate, a fact which differentiates Solicitor General Kagan from both Justices Reed and Robert Jackson.

I conclude my remarks on the nomination by reserving my judgment on how Solicitor General Kagan’s judicial temperament will manifest itself in the event that she is confirmed. I reserve my judgment because, I am reminded that in some in notable cases an individual once appointed has not fulfilled the expectations of the President who appointed them. For example, Oliver Wendell Holmes Jr., Earl Warren and William J. Brennan disappointed Presidents Theodore Roosevelt and President Dwight David Eisenhower. President Eisenhower is reputed to have remarked that he was not sure which was his worse mistake appointing Chief Justice Warren or Associate Justice Brennan.

A Brief Explanation of my Recent Hiatus

My absence from my blog has in large measure been due to my need to focus on the rehabilitation of my reconstructed left leg.

Update

My progress on my masters program has suffered a setback albeit a minor one. For some reason, which, has not been fully and adequately explained I was inadvertently dropped from my current courses. Fortunately I only have to wait a month before the next session begins.

On another note President Obama's civil service reforms that include the reduction and eventual elimination of KSA essays from the application process should make my quest for gainful employment easier.

Some Thoughts on Realism and its Progeny

In the field of international relations, the realist school of thought founded by Hans Joachim Morgenthau, and Edward Hallett Carr was established as a counterpoint to the idealistic (utopian) school of thought as exemplified by Ralph Norman Angell and Alfred Zimmern.

As a theory describing the nature and purpose of international relations, classical realism rests on framework of six pillars first articulated by Carr in his seminal text The Twenty Years' Crisis 1919-1939, which, was released in 1939 just days before the outbreak of the Second World War. Carr’s six rudimentary theses were refined by Morgenthau in his 1948 classic entitled Politics Among Nations: The Struggle for Power and Peace.

The first principle underlying realism is the idea that international system developed in such way that the nation-state serves as the key actor within the system. Second, Carr, Morgenthau and subsequent realists argue that international politics is at its most basic level, an expression of a power struggle, a conflict between nation-states facilitated by the absence of an effective governmental structure on the international level. Furthermore, they maintained that continual state of conflict, which, exists on intrinsically the international level required the nation-states to inevitably rely on their own capacities and assets in order to ensure their survival as sovereign states. Third, the classical realists adhere to the belief, that in theory recognized nation-states alone possessed de jure the legal standing necessary to engage in relations with each other. The realists further qualified this point in order to account for the de facto differences in the capabilities of each nation-state and the boundaries imposed upon the states by the presence of these differences. The realists held that these de facto differences in capability amongst the nations resulted in the community of nation-states being divided into two general classes `more powerful states’ and `less powerful weaker states. The designation of a nation-state as a powerful state or a weaker state is based on the amount power and the nature of the influence exercised by the nation-state. The amount power and influence exercised the various states is calculated and determined by assessing quantitatively and qualitatively the de facto differences in capability. Fourth, in the realist school the nation-state is viewed as single unitary entities capable of separating domestic politics of the state from its foreign policy by compartmentalizing them into two independent and unconnected spheres. Fifth, realists perceive nation-states as entities characterized by rational decision making processes resulting in choices that benefit the national interest. Lastly, Carr and Morgenthau argued that power, its acquisition, exercise, and maintenance are the key, necessary to understanding, explaining and predicting the behavior of the nation state.

In the 1980’s a group of realist theorists led by Kenneth Waltz who were dissatisfied with the manner in which key concepts were being defined broke with the classical realist school and formulated neo-realistic theory as a critique of classical realism that was intended to be a reformulation of Carr and Morgenthau’s classical realism. As a preamble to the main body of their work Waltz and the other neo-realists forcefully argued that the core concepts of realism should be redefined in such a way that conformed to neo-realistic desire for a greater clarity, consistency and rigidity in the discussion of the key concepts of realism. Waltz and others also maintained that the structure of Carr and Morgenthau’s classical realism required several updates and revisions. First, the neo realists saw power not as a final end, but as a byproduct that resulted from a political relationship. Second, within the structure of realism, the neo-realists replaced power. Thirdly, Waltz and his collaborators sought replace Morgenthau’s single factor approach that viewed power as the ultimate end to a multi-factored approach asserting that politics is the master key, necessary to understanding, explaining and predicting the behavior of the nation state. Lastly, the neo-realists modified the anarchical formulation employed by traditional realists to describe the political landscape on the international level as well as the relationships between the international level and lower levels, creating the international system to better address these relationships, while retaining the wall isolating domestic policy and foreign policy.

Unlike the realists and neorealists, before them the neoclassical realists represented a major departure from long held ideas concerning the need to separate domestic and foreign affairs into two distinct and independent spheres. Neoclassical realists argue that since the same economic and technological variables effect both domestic and foreign policy alike there exists no need for the separation because, its serves no discernible purpose and in fact hinder a proper study power and politics.

Structural Functional Analysis: A Rudimentary Discussion

Structural-functional analysis is a quantitative and objective method of analyzing different political systems by conducting a thorough examination of the individual structures within the political systems, and the institutions that form these structures, by comparing and contrasting the functions and roles these structures and institutions perform within the political system. Structural functional analysis also explains the interdependence that exists between the different structures and institutions that form the political system.

In order to conduct a structural-functional analysis two points must be assumed a priori: One is that the functions of the structures that form the political system, and the roles of the institutions that constitute the structures within the political system may differ from country to country. Two, structural functionalism assumes that while, a political structure and its institutions may possess and exercise more power with regard to a particular function within the political system, in most cases a single structure and its institution will not be permitted to possess absolute control over any one function within the political system. For example, within the United States political system even though the President of the United States, in his capacity as chief executive can appoint cabinet secretaries, for these appointments to become permanent the appointments must be confirmed by the Senate of the United States.

Within the political system there are six different structures that can be subjected to analysis. The six structures are the following: political parties, interest groups, legislatures, executives, courts, and bureaucracies. The outputs produced by these six structures can be examined to obtain quantifiable data concerning the four process functions which must occur for policy to be made and implemented. The first two functions involve the articulation and aggregation of interests. The other two processes are concerned with policy-making and the implementation of policy.
Structural-functional analysis can also be utilized to collect data about the three systemic functions that determine whether or not the political system will change or remain the same. The three functions that are used in this determination are the following: political socialization, political recruitment, and political communication.

The use of these functions impart to the theory its greatest strength namely, that because the data is purely empiric the data is not subject to the vagaries of any bias possessed by the authors or survey takers. Conversely, the nature of the data also lends itself to the greatest weakness of the theory. Structural-functional analysis by its nature cannot be used to account for the beliefs, mores and customs adhered to by individuals.

MA 2010

Many argue that Brown's win is detrimental to the Democrats, while signalling the beginning a rejuvenation of the Republican Party. Although, this appears to be true on the surface Brown's win presents with the Republicans with some difficulties since, Senator-elect Brown's real politics follow along the same lines as former Senator Edward Brooke's, in the sense that Brown like Brooke before him is percieved as being a maverick with Massachusetts' Republican cricles. If Senator McConnell is looking to Brown to be a yes man who rigidly tows the party line in opposition to the Democrats then the leadershp will be sorely disappointed.

Brown's victory will necessitate alterations in the tactics and strategies employed by the majority when interacting with the minority.

In my mind Brown's victory serves a reaffirmation of the fact that the majority remains incapable of preventing a fillibuster thereby keeping the staus quo as it stood prior to Senator Kennedy's death.

The next races to watch will be the senatorial contests in Texas and North Dakota

An Update

On 27 December 2009 I snapped my tibia and fibula an inch above the ankle in my left leg. The forced bedrest that this injury mandated has forced me to temporarily suspend both my job hunt and the physical therapy that forms a part of my treatment regimen to negate the symptoms associated with Fibromyalgia Spondalosis.

My injury allowed me to complete an in depth reading of the textbooks required for my first postgraduate courses.

Masters Program

I know it has been a long while since, my last upadte. I am enrolled in the M.A. in Intelligence Studies offered through American Military University.

I begin my classes in February 2010, my first three courses will be Research Methods in Security and Intelligence Studies-Intel Majors, Strategic Intelligence and Collection.

Job Hunt Update

I have another interview. Knowing my luck. I should probaby ask Saint Jude, the patron saint of lost and hopless causes to intercede on my behalf with the angelic powers.

Progress at Last: a premature post

I have a job interview on Monday perhaps, if all goes well I will be gainfully employed starting next week. The interview came to naught.

Prime Minister Netanyahu's Conditions for the Establishment of a Palestinian State

I am inclined to believe that Prime Minister Netanyahu's prequisites for the establishment of a Palestinian nation-state, are merely platitudes which are designed as an attempt to diffuse the criticism of Israeli positions that have been on the rise within United States and United Kingdom.

If Prime Minister Neatanyahu and his coalition believe that Palestians especially the memmbers of Hamas and Fatah would accept the conditions that Prime Minister Netanyahu elucidated on in his address to Bar-Ilan University, then they have deluded themselves.

Only a fatuous idiot would think that Palestinans would disarm in order to achieve the creation of state. History has demonstrated that the majority of such states ultimately fail. Indeed the Palestinians could argue that any agreement to such a condition would constitute an abdication of their responsibility to provide for the protection and defense of the Palestinian people.

Martial Arts and Politics

I have studied the martial arts for many years. In my studies I have found that almost uniformly in the Chinese, Japanese, Korean, and Okinawan traditions the concept that an interrelationship exists between the active and passive principles as examplified by the by the Chinese Taoist principle of the Yin and Yang, its Korean variant Um and Yang or it Japanese incarnation of Inyodo.

This concept has a practical application within the political realm. I believe that the cyclical nature of politics lends credence to such an application.
Indeed if an individual examines the history of the shifts in power within the Congress, and the Presidency a clear cyclical pattern emerges.

In light of the constant shifts within politics. I would argue that a successful and durable political strategy, is a strategy employed by a party that recognizes the importance of these cycles, and utilizes their time in the minority to reconsolidate and marshal their forces anew, while acquiring the assets necessary to successfully transition from one cycle to another.

Some may interpret this as advocating a complete state of passivity while, being in the minority. This view is inaccurate because, neither principle can effectively govern without the presence of the other.

As such I would contend that the minority party should focus the majority of its activities on retrenchment, consolidation and acquisition of new assets. At this point it seems prudent in my opinion to choose battles with the majority selectively, being careful to avoid a wholesale disengagement and retreat from the press outlets controlled by the majority party, while, embracing only those outlets sympathetic to the positions adopted by the minority. Such an exclusive strategy could nullify efforts to expand the base to draw in more moderates and independent minded people like Senators Barrasso Chambliss, Collins, Hagan, Shelby, and Snowe. It would also negate Chairman Steele's overtures with respect to minority groups

Tea

If you are cold, tea will warm you. If you are too heated, it will cool you. If you are depressed, it will cheer you. If you are excited, it will calm you. William Ewart Gladstone

I find that in my present difficulties that tea has proved to be a valuable relaxant. Indeed in my current state only long conversations with my beloved are more calming than a well made cup of tea.

Millvina Dean 1912-2009 and Bertram Dean 1910-1992

The death on 31 May 2009 of Elizabeth Gladys Millvina Dean aged ninety-seven, was both ironic and befitting given her status as the last survivor of the tragedy, in the sense that she died on the ninety-eighth anniversary of the launch of RMS Titanic which occurred on 31 May 1911.

Her elder brother Bertram Vere Dean also died on an anniversary related to the RMS Titanic disaster. Bertram died on 14 April 1992 at the age of eighty-one. He died on the eightieth anniversary of the sinking of the Titanic

It is ironic that the deaths of the Dean's should occur on anniversaries related to a ship that affected the beginning of their lives so profoundly.

Feast of Saint Sarah: A Catholic Layman's Perspective

The twenty-fourth of May was the Feast Day of Saint Sarah, as a Roman Catholic layman I would like to offer a few thoughts on the importance of Saint Sarah.


First, argue that feast of St. Sarah and its observance by French Catholics reflects an acknowledgement and affirmation of the divine feminine. The color of Sarah’s skin serves as a remiinder that powers that be within the Church attempted silence and discredit those whose thought was non-conformist by branding them as heretical or otherwise schismatic.

Second, I believe that in sense the festival served as a form of peaceful resistance by the Catholics of Languedoc whose pupose was an is to keep the pure unadulterated memory of the divine feminine alive within the hearts of Roman Catholics, as a counterbalance to the atempts made by the hierarchy to alter or otherwise adulterate the true nature of God to suit its purposes.

Last, Saint Sarah serves as a beacon of hope for those Catholics within the Church whose voices have yet to be heard by Rome and it is by following the example set by her and her parents that on the Day of the Last Judgment we will able to say God that we were faithful to you,

The Report out of Ireland on the Abuse that occurred in many Reformatories

As a Catholic, I am horrified by the evidence presented which, illumines a pattern of systemic child abuse occurring within the Irish reformatories.

I am ashamed and disgusted by the conduct of the religious institutions, and bishops responsible for overseeing the reformatories at center of the abuse scandal that permitted the propagationof a culture of abuse within the Roman Catholic Church in Ireland and the United States.

The propensity of the superiors of the religious orders and the local ordinaries to reassign and transfer the clergy responsible for such barbarity is unconscionable and unjustifable. The actions of the bishops and the superiors is tantamount to an implicit admission that such behavior was and is acceptable within a religious institution.

That such reassignments of abusive clergy occurred at all, reflects a callous and intentional disregard for the safety and well being of their parishoners and charges. I would argue that the perpetrators of the abuse should be prosecuted to the maximum extent that law allows. I also believe that the local ordinaries, and superiors of religious orders responsible for reassigning abusive clergy should be prosecuted for their role in propagating the abuse.

Such conduct is an abomination, an anathema offensive in the eyes of God and humankind. The clergy responsible should be excommunicated and when they die its my hope that they reside for all time in the tenth circle of Hell.

A Laypersons Perspective: Governor Huntsman's Nomination and the Signals it Sends

The nomination of Governor Huntsman as the next Ambassador from the United States of America to the People's Republic of China sends a strong signal to the government in Beijing that the relationship between the two countries continues to be of the utmost importance because Governor Huntsman's prior diplomatic service and his knowledge of Chinese culture demonstrates that he will be a worthy and able sucessor to Ambassador Clark Randt Jr.

Governor Huntsman's nomination also highlights the continuation of the efforts by the Obama administration to continue those policies of the previous administration aimed at discouraging Beijing from relasing into and flooding the common market with the sum total of excess U.S. currency that the Chinese treasury now holds in its reserves. Additionally, ther nomination also signals to Beijing that Washington will continue to negotiate trade issues respectfully but, forcefully and will not be easily cowed into giving up any advantages either tactical or strategic.

A Supplement to my post of 14 May 2009

It has been suggested in discussions that Justice Souter lacked Republican friends and allies when he arrived in Washington D.C. ninteen years ago. This argument is at least partially refuted by the fact that the final result in the full Senate was that ninety Senators voted in favor his confirmation, nine voted against confirmation, and one Senator did not vote.

During the 101st Congress the seat distribution occurred in the following manner the majority party: the Democrats held 55 seats and the minority party: the Republicans held 45 seats with no other parties being represented.

All but one Republican Senator voted to confirm the nominee, Souter. The only Republican who did not cast a vote was Senator Pete Wilson (R-CA) who was not present when the vote was taken. The Republicans were joined by forty-six Democrats who voted in favor of Souter's confirmation. The nine Democrats who opposed the nomination were the following:

Brockman Adams (D-WA)
Daniel Akaka (D-HI)
Bill Bradley (D-NJ)
Quentin Burdick (D-ND)
Alan Cranston (D-CA)
Ted Kennedy (D-MA)
John Kerry (D-MA)
Frank Lautenberg (D-NJ)
Barbara Mikulski (D-MD)

If Justice Souter lacked friends in Republican circles it seems to me that his nomination would not have engendered the complete support of the Republican minority in the Senate.

Justices of the Supreme Court of the United States and Other Judges: A Response to the Valley of the Shadow: The Republican Encyclicals: The 3x3 Rule

In the post that is linked here my friend JSF discussed how to avoid selecting individuals that strayed ideologically from the conservative fold, specifically he mentioned Governor Schwarzenegger and Associate Justice of the Supreme Court of the United States, David Hackett Souter.

Valley of the Shadow: The Republican Encyclicals: The 3x3 Rule

While, I defer to JSF regarding Governor Schwarzenegger and his tendencies. I am inclined to disagree with his assessment of Justice Souter and jurisprudence for the foregoing reasons.


I hate the use of the terms "activist judge," "passivist judge," "strict constructionalist," and "loose constructionalist," to describe the jurisprudential philosophies of judges especially those that serve on the Supreme Court of the United States because, these phrases are attached willy-nilly based upon a superficial reading of their opinions.

An execellent example of the failure of these terms can be illustrated in the case Griswold v. Connecticut, 381 U.S. 479; 85 S. Ct. 1678; 14 L. Ed. 2d 510; 1965 U.S. LEXIS 2282 (1965). The majority in the case led by Justice William O. Douglas argued that penumbras" and "emanations" derived from those righr explicitly set forth in the Constitution implicitly permitted the extension of those protections to include a "right of privacy." Justice Goldberg, a "liberal" justice concurred with the majority using the protections contained in the Ninth Amendment.

The result is interesting because two of the most "conservative' Justices on the court at the time Justices Harlan II, and Byron White also concurred with the result. In their concurrences with the result Justices Harlan II and Byron White both asserted that the protections provided Due Process Clause of the Fourteenth Amendment extended by implicstion to cover a right to privacy


Conversely, Justice Hugo LaFayette Black, the intellectual leader of the "liberal bloc" of Justices on the Court at that time dissented from the majority opinion arguing that Consitutional protections could be afforded to a "right of privacy"

...we are not, in my view, justified in holding that the First Amendment forbids the State to punish their conduct. Strongly as I desire to protect all First Amendment freedoms, I am unable to stretch the Amendment so as to afford protection to the conduct of these defendants in violating the Connecticut law. What would be the constitutional fate of the law if hereafter applied to punish nothing but speech is, as I have said, quite another matter. The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth [p509] Amendment's guarantee against "unreasonable searches and seizures." But I think it belittles that Amendment to talk about it as though it protects nothing but "privacy." To treat it that way is to give it a niggardly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given. The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone. And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.

One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term "right of privacy" as a comprehensive substitute for the Fourth Amendment's guarantee against "unreasonable searches and seizures." "Privacy" is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. I have expressed the view many times that First Amendment freedoms, for example, have suffered from a failure of the courts to stick to the simple language of the First Amendment in construing it, instead of invoking multitudes of words substituted for those the Framers used. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 293 (concurring opinion); cases collected in City of El Paso v. Simmons, 379 U.S. 497, 517, n. 1 (dissenting opinion); Black, The Bill of Rights, 35 N.Y.U.L.Rev. 865. For these reasons, I get nowhere in this case by talk about a constitutional "right of privacy" as an emanation from [p510] one or more constitutional provisions. [n1] I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to. invade it unless prohibited by some specific constitutional provision. For these reasons, I cannot agree with the Court's judgment and the reasons it gives for holding this Connecticut law unconstitutional.

This brings me to the arguments made by my Brothers HARLAN, WHITE and GOLDBERG for invalidating the Connecticut law. Brothers HARLAN [n2] and WHITE would invalidate it by reliance on the Due Process Clause of the Fourteenth Amendment, but Brother GOLDBERG, while agreeing with Brother HARLAN, relies also on the Ninth Amendment. I have no doubt that the Connecticut law could be applied in such a way as to abridge freedom of [p511] speech and press, and therefore violate the First and Fourteenth Amendments. My disagreement with the Court's opinion holding that there is such a violation here is a narrow one, relating to the application of the First Amendment to the facts and circumstances of this particular case. But my disagreement with Brothers HARLAN, WHITE and GOLDBERG is more basic. I think that, if properly construed, neither the Due Process Clause nor the Ninth Amendment, nor both together, could under any circumstances be a proper basis for invalidating the Connecticut law. I discuss the due process and Ninth Amendment arguments together because, on analysis, they turn out to be the same thing -- merely using different words to claim for this Court and the federal judiciary power to invalidate any legislative act which the judges find irrational, unreasonable or offensive.Griswold v. Connecticut, 381 U.S. 479; 85 S. Ct. 1678; 14 L. Ed. 2d 510; 1965 U.S. LEXIS 2282 (1965).

I would argue that the same holds true when such language is applied to Justice Souter, the blanket characterization of Souter as an "activist" "liberal" or "loose constructionalist fails to thoroughly examine his record as a jurist. A proper study of his jurisprudential philosophy requires that the review be taken beyond cases such Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), or Lawrence v. Texas, (2006), and be extended into cases involving property rights issues such as "eminent domain."

Indeed, conservatives will be saddened by his loss when his voice is no longer heard in cases involving eminent domain and other property issues or issues related to commerce where he adopted a fiscally conservative position. I would argue that a thorough exmination of Justice Souter's record demonstrates that he was a highly qualified and thoughtful justice who sought a "middle road." He was for all intents and purposes a maverick who eschewed a rigid party identification.

Where Judges are concern and in particular Justices are concerned, I think that partisans only focus on those cases that serve to advance their points without giving due regard to the precedents that preceded the case at bar.

As Learned Hand pointed out in 1921 in his opinion regarding Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D.N.Y., 1921), the Consititution by its nature is a flexible document, which, can and does readily adapt to the changing needs of the Republic.

Now it is argued that these cases are distinguishable, because they arose under an act of Parliament which was not limited by any Constitution. So, indeed they were, and if our Constitution embalms inflexibly the habits of 1789 there may be something to the point. But it does not; its grants of power to Congress comprise, not only what was then known, but what the ingenuity of man should devise thereafter. Of course, the new subject-matter must have some relation to the grant; but we interpret it by the general practices of civilized peoples in similar fields, for it is not a strait-jacket, but, a charter for a living people. Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D.N.Y., 1921).

Thomas Anthony Heath

I want to share a picture of my nephew Thomas Anthony Heath born yesterday. He weighed in at 4 pounds 2 ounces and was 17 inches long.

Justice Souter's Retirement and its Effect on Justice Kennedy

Justice Souter's announcement tody that he plans to retire at the conclusion of the 2008-2009 term after nineteen years of service on the Supreme Court of the United States, while expected has left me reflecting on what his legacy on the jurisprudence of the nation will be and how history will remember him.

While, many conservatives will not be saddened to see him retire either because of his rulings on social issues including abortion.

Cnversely liberals who were infuriated by his holdings on land and property issues such as eminent domain.

For myself I will miss the independent spirit that have characterized his decisions. In sense the retirement of Justice O'Connor in 2006 and Justice Souter at the end of this term has largely divested the Court of moderate centrists who maintain the balance between liberal Justices led by Justice Stevens, and the conservative justices led by Chief Justice Roberts. Of the Justices who remain only Justice Kennedy could be classified as a centrist. Yet, unlike Justices O'Connor and Souter whose voices were strong amd clear.

Most observers would argue that Justice Kennedy's voice was up untill Justice O'Connor's retirement muted to an extent. With the exceptions being Planned Parenthood of Southeastern Pennsyvania v. Casey and Lawrence v. Texas .

What I find most interesting about the criticism of Justice Kennedy is the criticism that some observers level at him because, he like Justice O'Connor has been known to refer to international law and foreign sources of law from time to time in his opinions.


The opposition to the use of foreign and international laws in the deliberative process strikes me as quirte bizzare because, Justices have included such precedents in their opinions as far back as 1798. The evidence for the inclusion of such precedent can be found in Justice Chase's references to Sir. William Blackstone and Sir. Richard Woodeson the English jurists in his opinion in Calder v. Bull 3 U.S. (Dall.) 386 (1798).

Governor Perry and Secession

I have descended into the tenth circle of hell, what happening to the State of Texas we had the nutters from the Republic of Texas separatists. Now it is being reported that both Governor Bush in 1994 during his campaign against former Governor Richards, and Governor Perry at various points in their tenure while, it is true that they have done so those incidents were not taken in situ

I would like to make four points in regard to these stories.

First, Texas was annexed to the United Sattes and admitted into the union in December 1845. No secession clause was included in the treaty admitting Texas into the Union. A prior treaty in 1844 which included such a clause failed to pass the United States Senate.

Second, the issue of Texas secession was settled in 1868 when the United States Supreme Court issued it decision in Texas v. White, 74 U.S. 700 (Wall.)(1868)

Third, the formation of the original Republic of Texas was only an interim measure, The original intent of the majority of the founders who were involved in drawing up the Texas Declaration of Independence in March 1836. General Houston and with his Jacksonian allies wanted to draw Santa Anna across the Sabine River and into Louisiana, where he would then face the combined armies of General Houston, and the Western Department of the United States Army commanded by Major General Edmund Pendleton Gaines. President Jackson and General Gaines favored the idea, while the Commanding General of the U.S. Army Major General Alexander Macomb and Major General Winfield Scott who commanded the Eastern Department opposed the plan. The purpose of the plan was to draw Mexico into a war with the United States so that the United States could acquire through military the Mexican province of Coahuila y Tejas.
It was only the dissatisfaction of the rank and file of the Texas Army that forced General Houston into battle at San Jacinto, and the opposition from the Whigs andthe northern Democrats that prevented annexation immediately after the Battle of San Jacinto.

Fourth, Governor Perry's comments were purely made out of poilitical calculations, specifically the need to align himself with the most conservative elements within the Republican Party in Texas. Governor Perry's standing within the Texas Republican Party made it necessary because on the whole he is less popular with the more moderate elements within the party are looking for other candidates to challenge him in the 2010 gubenatorial primary.

If Governor Perry's only opposition in the 2010 gubenatorial primary were from either Larry Kilgore of the Texas Secession Party, or Debra Medina, Chairwoman of the Wharton County Republican Party, then his renomination becomes more likely.

However, many of the influental moderate and liberal Republicans are looking to Seantor Kay Bailey Hutchison to challenge Governor Perry in the 2010 Republican primary election for the gubenatorial nomination. Senator Hutchison's potential challenge poses a looming obstacle to Governor Perry's desire for a third term as Governor of Texas because, the popular affection and popular support she possesses within Texas, are items to which Governor Perry cannot lay a claim and diminishes the Governor's chances of winning renomination.

I do not mind that both he and Governor Bush before him used the concept of secession for their own political gain. The problem I have with theris speeches are that they demonstrated how little they actually know about the history of the State of Texas. It is my belief that if any individual desires to occupy the statehouse of any state in the Union, then those candidates have a duty and a responsibility to study closely the history of their respective states. In my experience decisions made without due regard being given to the past, are questionable in both content and spirit.

Presidents Jackson, Lincoln, Clinton, Bush, Obama, and the Writ of Habeas Corpus

President Obama has repeatedly asserted that he considers President Lincoln his role model, in terms of governance. There are parallels between the Lincoln and Obama administrations.

First, President Lincoln entered office during a period of conflict because, seven states had already seceded from the Union by the time Lincoln entered office on 4 March 1861. Likewise President Obama entered into office in the midst of conflicts in Iraq and Afghanistan involving United States armed forces.

Second, during the early days of the Civil War President Lincoln unilaterally and without consulting Congress suspended the right of Habeas Corpus. A similar situation now confronts President Obama because the Bush administration’s policies regarding the right of detainees suspected of terrorism or being enemy combatants with regard to applications for writs of habeas corpus, has placed the new Obama administration in the unenviable position of restoring the right of such suspects to petition for writs of Habeas Corpus. A process the Obama administration began on 21 January 2009 with an executive order.

Despite this order the right to petition for writs of Habeas Corpus has not officially been restored by executive order to the prisoners detained at Bagram Theater Internment Facility.

The question that I have been pondering is how quickly the Obama Administration will bring the executive branch into conformity with the stance assumed by the judicial system as elucidated in the following decisions of the Supreme Court of the United States:

1. Rumsfeld v.Padilla, 542 U.S. 426, 124 S. Ct. 2711; 159 L. Ed. 2d 513; 2004 U.S. LEXIS 4759; 72 U.S.L.W. 4584 (2004);
2. Rasul v. Bush, 542 U.S. 466, 124 S. Ct. 2686; 159 L. Ed. 2d 548; 2004 U.S. LEXIS 4760; 72 U.S.L.W. 4596 (2004);
3. Hamdi v .Rumsfled, 542 U.S. 507, 124 S. Ct. 2633; 159 L. Ed. 2d 578; 2004 U.S. LEXIS 4761; 72 U.S.L.W. 4607 (2004)
4. Hamdan v .Rumsfled, 548 U.S. 567, 126 S. Ct. 2749; 165 L. Ed. 2d 723; 2006 U.S. LEXIS 5185 (2006);
5. Boumediene v. Bush, 553 U.S. ___; 128 S. Ct. 2229; 2008 WL 2369628; 2008 U.S. LEXIS 4887 (2008).

Or will the Obama Administration follow choose to follow the reasoning that President Andrew Jackson articulated after hearing of the decision of the Supreme Court in Worcester v. Georgia 31 U.S. (6 Pet.) 515, 8 L.Ed. 483, (1832. President Jackson responded to the decision of the Court saying the decision of the supreme court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate. The idea that a decision of the Court could be "still born" was next articulated by President Lincoln in his administrations response to Chief Justice Taney's circuit court opinion in Ex Parte Merryman, 17 F. Cas. 144, (1861). It was not until 1866 that the suspension of the Writ of Habeas Corpus was rescinded. I would argue that the Bush administration adopted a similar stance relying on the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, enacted by the Clinton Administration in the aftermath of the 1993 World Trade Center bombing and the 1995 Oklahoma City bombing. A case could be made that AEDPA provided the heart of the position taken by the Bush Administration taken regarding the right of detainees to petition or writs of Habeas Corpus

Laymans Thoughts on Ex Post Facto Laws

Turning to your second point I would argue that the Obama administration has not yet contravened the Ex Post Facto clause contained in Article 1 section 9 of the Constitution.

The holdings of the the Supreme Court on this issue have been remarkably consistent. The high court has always adopted a narrow interpretation of the clause even the Warren Court which was characterized as an "activist" court applied a restrictive reading of the clause. A reading which reaffirmed and upheld Justice Chase's view.

I would assert that Justice Chase's view of an Ex Post Facto law as illustrated in Calder v Bull 3 U.S. (Dall.) 386 (1798) serves not only as the foundation for the interpretation of the clause but, sets the standard by which future cases concerning ex post facto laws have been adjudicated.

I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action , done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive.In my opinion, the true distinction is between ex post facto laws, and retrospective laws. Every ex post facto law must necessarily be retrospective; but every retrospective law is not an ex post facto law: The former, only, are prohibited. Every law that takes away, or impairs, rights vested, agreeably to existing laws, is retrospective, and is generally unjust; and may be oppressive; and it is a good general rule, that a law should have no retrospect: but there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement; as statutes of oblivion, or of pardon. They are certainly retrospective, and literally both concerning, and after, the facts committed. But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the criminal law; but only those that create, or aggravate, the crime; or encrease the punishment, or change the rules of evidence, for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time; or to save time from the statute of limitations; or to excuse acts which were unlawful, and before committed, and the like; is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an UNLAWFUL act LAWFUL; and the making an innocent action criminal, and punishing it as a CRIME. The expressions 'ex post facto laws,' are technical, they had been in use long before the Revolution, and had acquired an appropriate meaning, by Legislators, Lawyers, and Authors. The celebrated and judicious Sir William Blackstone, in his commentaries, considers an ex post facto law precisely in the same light I have done. His opinion is confirmed by his successor, Mr. Wooddeson; and by the author of the Federalist, who I esteem superior to both, for his extensive and accurate knowledge of the true principles of Government. Calder v Bull 3 U.S. 386 (Dall.) (1798).

Time will tell whether the Obama Administration has violated the clause. However, I believe that an absolute answer to that question, an answer backed by proof sufficient to answer the question either affirmatively or negatively beyond a reasonable doubt cannot be ascertained at the present because of the dearth of compelliong evidence. On this point were involved in a trial oon the subject I would issue a verdict of "not proven."

Thoughts of a Layman on Treaties

JSF, In regards to your third question related to the status of supranational agreements rasied in your post on Constitutional Issues.


As a layman with no formal training the field of law I would argue that the opinion in the 1884 Head Money Cases, written by Justice Samuel Freeman Miller afirmed that international treaties to which the United States was a party possessed the force of law within the American legal system. American law accords treaties the same status as any Act of Congress. I would argue that this decision served as the standard by which all such argeeements are judged even into the twenty-first century.

A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may, in the end, be enforced by actual war. It is obvious that, with all this, the judicial courts have nothing to do, and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance when the individuals concerned are aliens. The Constitution of the United States places such provisions as these in the same category as other laws of Congress by its declaration that this Constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land.

A treaty, then, is a law of the land, as an act of Congress is whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.

But, even in this aspect of the case, there is nothing in this law which makes it irrepealable or unchangeable. The Constitution gives it no superiority over an act of Congress in this respect, which may be repealed or modified by an act of a later date. Nor is there anything in its essential character, or in the branches of the government by which the treaty is made, which gives it this superior sanctity.

A treaty is made by the President and the Senate. Statutes are made by the President, the Senate, and the House of Representatives. The addition of the latter body to the other two in making a law certainly does not render it less entitled to respect in the matter of its repeal or modification than a treaty made by the other two. If there be any difference in this regard, it would seem to be in favor of an act in which all three of the bodies participate. And such is, in fact, the case in a declaration of war, which must be made by Congress and which, when made, usually suspends or destroys existing treaties between the nations thus at war.

In short, we are of opinion that, so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal. Head Money Cases, 112 U.S. 580 (1884).

Thoughts on Hate Speech

This post is my commentary on my friend JSF's last blog post. I am posting my comments this way because, when attempted to attach the comment to his initial post I had technical difficultiues with the comments feature. Having appropriately prefaced my thoughts I will now move onto the substantive portion of my response.


Hate speech whether it is espoused by liberals or conservatives inherently denigrates the foundations of the Republic. In aspiring to the ideal of freedom that the founders of the Republic both Federalist and Anti Federalist sought to engender we as Americans have a sacred charge to safeguard liberty, freedom, and their offspring the representational democracy that is the Republic of the United States of America. As Judge Learned Hand pointed out in 1944 at the height of the Second World War:

What do we mean when we say that first of all we seek liberty? I often 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. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow. What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest. The Spirit of Liberty, (21 May 1944) reprinted in The Spirit of Liberty: Papers and Addresses of Learned Hand (Irving Dilliard ed., 3d ed., New York, A.A. Knopf, 1960)

It is seems that it is will of the individual partisans on either side of the aisle to affix to their senses blinders. I would argue that these blinders are by their nature designed to effectively fetter both the spirit in which, partisans approach issues and by extension limits the solutions offered by lobbyists in answer to problem. The blinders utilized by advocates both conservative and liberal elements are akin to the smoky glasses worn by judges in ancient China to hide their emotions from the parties involved in a case. The use of these blinders in effect creates a degree of tunnel vision that necessarily impacts the ability of lobbyists to readily adapt to changing circumstances in the socio-political, and economic realms. The absolutist rigidity exmplified by the radical left and radical right imposes a set of inherently small boundaries on the political spectrum beyond which the radicals on both sides are not willing to venture.
As long as these radical elements within the political spectrum continue to wage a war to annihilate the other by engaging in a destructive pattern of conduct that demonstrates a clear lack of civility the progress of the nation-state as whole will remain stagnant. A lack of constructive dialogue will only further weaken the Republic, and place it at the mercy of its enemies as Judge Hand argued in 1930.

For in such matters everything turns upon the spirit in which he approaches the
questions before him. The words he must construe are empty vessels into which he
can pour nearly anything he will. Men do not gather figs of thistles, nor supply
institutions from judges whose outlook is limited by parish or class. They must
be aware of the changing social tensions in every society which make it an organism; which demand a new schemata of adaptation; which will disrupt it, if rigidly confined. Sources of Tolerance, LXXIX University of Pennsylvania Law Review 1-14 (November 1930) reprinted in The Spirit of Liberty: Papers and Addresses of Learned Hand. (Irving Dilliard ed., 3d ed., NewYork, A.A. Knopf, 1960).

Valley of the Shadow: The Blood Libel against Republicans#links

Valley of the Shadow: The Blood Libel against Republicans#links

Expansion of American Political Thought: A Layperson's Opinion

It is true that by and large Americans have a short memory. I argue that it is true on both sides of the political fence. This allows both sides to engage in the endless cycle of debates about the validity of classical realism and its descendant, the neo-realism advocated by neo-conservatives as opposed to the neo-liberalism advocated by the proponents of the Obama administration that is slowly phasing out the classical liberalism advocated by the older generations of Democrats.

However, by adhering too rigidly to either one or the other schools of thought and their offspring, both the Republicans and Democrats have largely ignored or dismissed the theories advocated by the Rationalists led by Dr. Martin Wight.

While, do not think Rationalism possesses the answer to every socio-political and economic debate or question. I believe that both of the political parties and their partisans would benefit from a study of rationalist theory in the sense that it may broaden the viewpoint of both sides because, as they are now the partisans of both camps are blinded by a degree of tunnel vision not seen in the political arena since Reconstruction.

The Future

The unexpected death of my academic advisor Dr. Gustavo A. Wensjoe, PhD., aged fifty-nine has served as the catalyst, which solidified a number of my future endeavors. As an undergraduate student Dr. Wensjoe was always trying to making me see that my focus on international law and international politics was too narrow a viewpoint, and that I should broaden my analysis to include a study of international political economics and development issues in order to better understand global conditions.

Truth told as an undergraduate I was far from an ideal student. I allowed my intransigence, my disability and my illnesses to adversely affect not only my academic performance these factors also diminished the way in which I perceived my self-worth to such an extent that I like many of my professors had despaired of me successfully completing the requirements necessary to achieve a Bachelor of Arts degree.

This devaluation on my part made Dr. Wensjoe very angry and frustrated with me. He called me into his office. I had never known him to be angry over the conduct of a student. However, I did not understand why he was angry with me and when I asked him why he was angry with me. He said to me Mr. Zimmermann you can sell yourself short and tell yourself that you will fail to graduate. However, I will not do so because, I still believe you can graduate. I was later told that the dressing down could be heard through whole of Tiller Hall. I did graduate by the grace of God and with Jefe's strength of will to inspire me.

It was a long and arduous path that I had to take before I realized the truth of what he was telling me, and that he was right and had seen all those years ago what I had been too myopic to notice. My acquisition of my paralegal certifications were the first steps on the path that he led me to so many years ago, The next step is to find a position and take the LSAT

Thoughts of a Layman III: Expression and Radicalism

In Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D.N.Y., 1921), Judge Learned Hand asserted that the Constitution of the United States and by extension the Copyright Act of 1909 was constructed to provide protection for the freedom of human expression.
Judge Hand’s holding specifically addressed the question whether or not Copyright Law as derived from Article I section 8 of the Constitution implicitly required a standard of comprehensibility in order for the expression that is the product of an intellectual effort to be worthy of copyright

Hand’s holding that copyright law did not mandate a standard of individual comprehension, while, clarifying specific point of law, also, serves to remind the citizens of the Republic of the desire of the Founders to ensure that the freedoms granted under the First Amendment remained available and accessible to succeeding generations of Americans through the preservation of the sum total of the intellectual efforts of their descendants uniformly without any distinctions being accorded to them because, of their beliefs, values, and mores.

Now it is argued that these cases are distinguishable, because they arose under
an act of Parliament which was not limited by any Constitution. So, indeed they
were, and if our Constitution embalms inflexibly the habits of 1789 there may be
something to the point. But it does not; its grants of power to Congress comprise, not only what was then known, but what the ingenuity of man should devise thereafter. Of course, the new subject-matter must have some relation to the grant; but we interpret it by the general practices of civilized peoples in similar fields, for it is not a strait-jacket, but, a charter for a living people. Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D.N.Y., 1921)

The decision handed down in Reiss reflected I would argue Judge Hand’s belief that the greatest dangers to a society as a whole lay within legally sanctioned compulsory uniformity:

Our dangers, as it seems to me, are not from the outrageous but from
theconforming; not from those who rarely and under the lurid glare of obloquy
upsetour moral complaisance, or shock us with unaccustomed conduct, but from
those, the mass of us, who take their virtues and their tastes, like their
shirts andtheir furniture, from the limited patterns which the market offers.
(Learned Hand. The Preservation of Personality, VII, 7 Bryn Mawr
Alumnae Bulletin 7-14 (1927) reprinted in The Spirit of Liberty:
Papers and Addresses of Learned Hand (Irving Dilliard ed., 3d ed., New
York, A.A. Knopf, 1960)

This belief was reaffirmed by Associate Justice of the Supreme Court of the United States, Robert H. Jackson in 1943 during the depths of the Second World War, demonstrably highlighting his belief that the freedom to express oneself was a treasure to be protected in both war and peace.

Lastly, and this is the very heart of the Gobitis opinion, it reasons that
"National unity is the basis of national security," that the authorities have
"the right to select appropriate means for its attainment," and hence reaches
the conclusion that such compulsory measures toward "national unity" are
constitutional. Id. at 310 U. S. 595. Upon the verity of this assumption depends
our answer in this case. National unity, as an end which officials may foster by
persuasion and example, is not in question. The problem is whether, under our
Constitution, compulsion as here employed is a permissible means for its
achievement. Struggles to coerce uniformity of sentiment in support of some end
thought essential to their time and country have been waged by many good, as
well as by evil, men. Nationalism is a relatively recent phenomenon, but, at
other times and places, the ends have been racial or territorial security,
support of a dynasty or regime, and particular plans for saving souls. As first
and moderate methods to attain unity have failed, those bent on its
accomplishment must resort to an ever-increasing severity.

As governmental pressure toward unity becomes greater, so strife becomes more
bitter as to whose unity it shall be. Probably no deeper division of our people
could proceed from any provocation than from finding it necessary to choose what
doctrine and whose program public educational officials shall compel youth to
unite in embracing. Ultimate futility of such attempts to compel coherence is
the lesson of every such effort from the Roman drive to stamp out Christianity
as a disturber of its pagan unity, the Inquisition, as a means to religious and
dynastic unity, the Siberian exiles as a means to Russian unity, down to the
fast failing efforts of our present totalitarian enemies. Those who begin
coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a
compulsory routine, is to make an unflattering estimate of the appeal of our
institutions to free minds. We can have intellectual individualism and the rich
cultural diversities that we owe to exceptional minds only at the price of
occasional eccentricity and abnormal attitudes. When they are so harmless to
others or to the State as those we deal with here, the price is not too great.
But freedom to differ is not limited to things that do not matter much. That
would be a mere shadow of freedom. The test of its substance is the right to
differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)

It seems to me that the Executive and Legislative branches have forgotten the idea illustrated above, and have allowed the government to be forcibly fettered by the shackles of extreme partisanship and its attendant rhetoric because, they have allowed themselves to forget Voltaire’s long held belief on the need for freedom of speech as a form of expression as restated by S. G. Tallentyre (Evelyn Beatrice Hall in her 1906 opus the Friends of Voltaire, when she wrote the following:

“I disapprove of what you say, but I will defend to the death your right to say
it.”

Truth told the situation as it now exists reminds me of the 1868 Impeachment of Andrew Johnson which was orchestrated by the Radical element within the Republican Party in the sense that then as now the United States was in a time of turmoil, decimated by partisan bickering. During the early years of Reconstruction politicians on either side of the political fence possessed of a spirit that was either unwilling to compromise, and unable to recognize the validity of the concerns raised by their opponents, threatened the stability of nation as a whole, and only the courage of a single Senator prevented the wholesale renewal of armed conflict.

The unwillingness of partisans on both sides to stipulate that even though they possess fundamental disagreements that the other side has legitimate concerns that should be considered and addressed in a civil manner has led to a divisiveness and intransigence that is dangerous and could potentially either stunt the growth of, or be fatal to continued growth of the Republic

I argue simply argue that radical partisanship on either the left or right when unrestrained by moderating influences poses a threat to the country as whole, because, it only serves to encourage and facilitate division which given the current economic woes would be function as a hindrance to the recovery of the nation.