A Template for Greed

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DDI.

In a statement for a case the Supreme Court declined last year, Justice Sonia Sotomayor wrote, “prejudice should not be substituted for reason.” That’s a tall order, from the streets or the bench.

Having institutionalized its attitudes of bias into law, and into employment patterns, housing, education, wages, voting and social behavior for more than a century, the US is still struggling to dismantle racism, despite loud proclamations that it is gone, and blaming its victims for recognizing its problems.

Racism is in slow retreat, but its legacy remains; intact. Not always as a barrier, as limits on opportunity or as carrier of stereotypes and hate—racism’s legacy is a template of action, tied to wealth. An empty jar is a template. It can hold water or nitroglycerin. A basket can hold fruit or be filled with vipers. Racism’s biggest impact on America’s political economy is its template, an interconnected, elaborate methodology of laws, beliefs, behaviors and networks, a series of conjectures and omens that can be abstracted and applied to issues far outside race. Surprisingly, its manifest destiny has attached to international finance.

Substitute wealth into the language of race, and you can see the labels, the special privileges, the denials, the demagoguery, the legal justifications for its concentration and expansion of power that once accompanied race. America’s political economy is in a battle royal for wealth and power, seeking their absolute convergence.

Other countries have billionaire clubs; Russia has more in their parliament than any country; China’s 168 is second only the the US, where the number tops 500. But the numbers are only a partial story. The US stands alone among modern democracies in having an established legal system, a sympathetic tax code, and unwavering political support reinforced by the media, for the transfer of capital and business assets. All classes of assets, including those assigned to workers, pensions, healthcare, mortgages, or even countries, are in play. And the roots of that system’s framework are tied to the cultural entitlements and thinking found in slavery.

Though taught as a civil rights or civil liberties case, the US Supreme Court ruled against freedom for slaves because it would change the economic relationship of black labor; in Dred Scott vs. Ferguson, the court stated a slave had “no rights the white man was bound to respect;” thus allowing whites universal rights to abrogate the slave’s labor and value.

Now US courts have established, in a tricky legal workaround, that, despite “sovereign immunity,” nations can be sued in US courts for debt collection, for billions in capital—and even after debt holders turned down previous offers, the courts can order nations to pay. In other words, nations have no financial sovereignty the courts or corporations are bound to respect.

What race taught wealth and power is to put its interests in the rubric of democracy.

And the Court is redefining US political economy just as it changed and changes rights tied to race.

The 14th Amendment granted the right to vote to male blacks and former slaves. Yet the US Supreme Court removed the Amendment’s protections in states with long records of undermining voting, states with a history of restraining minorities’ access to the polls.

If you think speech is free, try answering an ad with blatant distortions that just reached 300,000 households in a blanket buy. Tweet your frustration. Then wonder how the majority of justices in Citizens United stood justice on its head and called it free speech.

A century and a half after slavery, the American minimum wage is $7.75 an hour, with no overtime for seasonal (read: farm) workers.

In the colonial era, American slavery quickly turned into a rigidly fixed legal status under state laws that allowed the enslaved to be bought, sold, insured, hired out, commissioned, reimbursed for losses, and mortgaged, with children (“the issue and increase”) made chattel to mortgages.

Back then, profit and race were a greater guide to law than the constitution. Southern states noted the Constitution’s lack of precedent in their articles of secession. Yet leaving the Union was also unprecedented and not accounted for in the Constitution. Their cases rested chiefly on complaints, which reflected their special interests and investment in a system the states were willing to justify by the most extreme legal or extra-legal steps.

The reasoning for breaking the Union apart reflects race, and its role in culture and wealth.  Evidence can be found in states’ declarations of secession, adopted and passed by a state convention, and in their ordinances of secession, the acts passed by the state legislatures officially affirming their exit.

South Carolina’s declaration claimed its right to secession not from the constitution, but from the peace treaty signed with Britain to end the Revolutionary War:

“His Britannic Majesty acknowledges the said United States, viz: New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be FREE, SOVEREIGN AND INDEPENDENT STATES; . . .”

Virginia’s ordinance repealed “the ratification of the Constitution of the United State of America by the State of Virginia,” and then resumed “all the rights and powers granted under said Constitution.”

Alabama’s ordinance made clear its intended common ground: “it is the desire and purpose of the people of Alabama to meet the slaveholding States of the South, who may approve such purpose, in order to frame a provisional as well as permanent Government upon the principles of the Constitution of the United States.”

Texas’ declaration offered views on race: “an unnatural hostility” to “beneficent and patriarchal system of African slavery, proclaiming the debasing doctrine of equality of all men, irrespective of race or color—a doctrine at war with nature, in opposition to the experience of mankind, and in violation of the plainest revelations of Divine Law.”

Missouri’s ordnance cited “domestic traitors,” “acts of atrocity,” and “a deep-settled hostility towards the people of Missouri and its institutions.”

Mississippi’s declaration of secession made clear its view of slavery: “Our position is thoroughly identified with the institution of slavery—the greatest material interest of the world.”

Secession claimed rights not cited in the Founders’ document. Secession was an extreme extra-legal attempt to protect a system of political economy founded on race as privilege and dominated by slavery. Its core views now assign privilege to wealth as a narrow proxy for race, and challenge international sovereignty.

II.

Argentina’s sovereignty is at stake in a case before the US Supreme Court that evolves from events more than a decade ago.

In 2002, after having three presidents in ten days, Argentina initiated the world’s largest sovereign default and restructured its debt. Its intent was to save its domestic economy by creating a million jobs, a goal unmet. In 2005 and 2010, Argentina offered refinancing swaps and 93 percent of bondholders accepted. A few holdouts refused.

A century before (in the 1920s), Argentina boasted the world’s seventh largest per-capita income. Its individual income was 50 percent higher than Italy’s. Then over 50 years (between 1930 and 1983), Argentina had 25 presidents and 22 years of military rule.

Before its 2001 crisis, Argentina, as did many Latin America countries, experienced cycles of rapid growth and hyperinflation, fueled by mismanagement, unstable governments and institutions, and political corruption and wealth concentration. Fortunes were hidden away as local prices rose, and wages, income and investments bottomed.

The South, too, during the Civil War faced inflationary prices as family fortunes were hidden. One Charleston diary noted: “The prices are very high. Corn is $10 per bushel, Peas dito, butter $4 per lb, Beef $2 per lb, Pork dito.”

Liquidity, reserve balances, and exchange rates were a regional problem in Latin America, much as the breakdown of the Confederate economy extended beyond individual states. With resources in high demand, wages low, and a gilded class with giant chips on their shoulders came the crises of 1861 and 2001. In 1861, the South was blockaded by the US Navy; in 2001, Argentina was hemmed in by US bankers and the IMF. Both the South and Argentina faced the call for payments, budget cuts, and a program of austerity; the loss of investment and liquidity, and fleeing capital reserves. In Argentina, workers’ 2001 income dropped by 50 percent in a year’s time.

A compelling image in Charleston during the Civil War was the turkey buzzard, a giant scavenger perched along its waterfront, surviving on the city’s carrion, a symbol of its decay and decline. When Argentina suspended its debt payments in 2002, and reorganized in 2005 and 2010, distressed debt hedge funds, known as vulture funds, circled its default. They accumulated millions in bonds at deep discounts in the secondary markets.

Enter the hedge fund, NML Capital, in 2008. It bought $48 million of default bonds, paying 22 cents for each dollar of face value (without interest) for bonds totaling $220 million. Today it claims, with a group of 19 other bond holders, it is entitled to payments (with accrued interest) of $1.3 billion.

III.

Argentina has proved unrepentant, and is outraged by a simultaneous media campaign claiming it has no respect for US law, coddles drug traffickers, and is allied with Iran. (Today, although the US Constitution is unchanged, Southern states have threatened to secede over grievances including the Affordable Care Act.) Continue reading A Template for Greed

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Texas Is a Mess

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Texas is a mess.

The news of the day over the US Supreme Court’s decision will drown out the trench warfare witnessed at the same time in Texas, as its Senate, with only 31 members, debated and fought over the status of abortion in the nation’s second largest state.

I spent four hours Tuesday afternoon and early evening listening to Fort Worth Democratic Senator Wendy Davis hold the floor as she filibustered to block a vote on Texas bill SB5 (Senate Bill 5) whose provisions would create requirements that would be difficult to meet for clinics and providers of abortion services, and effectively make doctors unavailable, force clinics to close, and put requirements on women that would restrict their access to legal abortions.

When asked by a fellow Democratic senator to confirm whether passage of SB5 “won’t limit abortions, only the legal ones,” Sen. Davis added: “and the safe ones.”

Limited, legal, or safe abortions made no difference to Texas’ Republican senators whose collective strategy it was to challenge Sen. Wendy Davis on points of order as she spoke. Texas Senate Rule 403 requires the speaker on the floor to confine remarks to the bill; comments must be “germane” to the legislation. Two warnings can be given, if the Presiding Officer of the Senate finds, after a challenge, the remarks have not been germane. After a successful third challenge, the Senate may vote on the right of the speaker to continue.

The key phrase: “as it applies to SB5.” That makes the discussion relevant to the bill.

Sen. Davis’ second warning, however, involved “comfort to a member,” and raised the issue whether by receiving assistance with putting on a back brace during a discussion at the dais, Sen. Davis violated the rule on decorum.

This challenge was resolved by a vote of the Texas Senate, as the Lt. Governor, citing no prior precedent for a ruling, turned the decision over to the body. The Republicans who were sticklers for the letter of the law voted for a violation not written in the rules for which there was no precedent!

The third successful challenge came at 10:39 pm, Central time. The rest of the evening devolved into a series of maneuvers that lead to a vote Republicans initially said resulted in the bill’s passage, but even that was uncertain.

Despite the Republican bluff and bluster, and media reports of passage, the bill’s voted ended after the midnight deadline for the special session. The vote was recorded at 12: 02 am. The same Republican senators who demanded strict, narrow accountability during the filibuster now sought to play fast and loose in the final minutes of the special session, claiming the vote began before the midnight hour, and therefore should count.

After the third challenge, using a page from the GOP playbook, Democrats resorted to points of order and sought rulings that delayed the vote on SB5 until shortly before midnight.

Then, in a state that prides itself on its fierce independence, the citizens of the state took over. The gallery created such a din that the vote could not be heard and could not proceed. It was so loud that many screaming covered their ears.

Typical of Republican deaf-ear arrogance, one senator admonished his state’s citizens: “The people can’t come and create so much of a ruckus that we can’t do our job.”

Yes, they can. No Senate rule prohibits it. There is precedent. Particularly if it’s a job the citizens don’t want done. Continue reading Texas Is a Mess

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Gay Marriage and Deliberate Speed

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The Supreme Court never seems to see its own reflection in the law. I wonder if any of the current justices participated in a popular 1970s self-awareness training exercise, Johari’s window.

The exercise, whose roots go back to Karl Jung and his archetypes and reflects the later influence of the popular Myers-Briggs assessment, replied on four windows that were intersections between self-knowledge and society, and the known and unknown. The facade window was unknown to society and known to you. The internet has turned the facade into a negative space; it is now the space in which you are known to others by dark secrets or ignorance, by insulting absurdities, vitriol and hatred, masked by a cute avatar and narcissistic screen name. Flaming in chat rooms has given way to trolls who are relentless in replacing logic with personal attacks, stereotypes, and repeated failures of common sense flaunted as searing insights, protected by their rights. It is closer to what Johari’s window labeled the arena, a place of shared exposure.

The exercise assumed certain psychological and personality customs that the internet has stripped away as it tossed the old facade aside. The exercise did not see this future.

Johari’s window also had a blind spot. It was a frame where others knew things about us that were oblivious to our own self-awareness. In the internet media today, its equivalent is a place of spin and denial. Denial not as a psychological defense, but as a social strategy of deceit and misdirection, positive or negative, that conceals real intent.

My favorite blind spot was Herman Cain’s. Framing opportunity and merit as entitlements, he shouted out in the last campaign about African-Americans being on Democratic plantations. He subverted the history of the institution from the horrific tragedy of enslavement to a place where its room and board was a poison pill that killed motivation and freedom! In the logic of Cain’s world, sleeping and eating—rest and community—broke the spirit and chained the enslaved in a way that the exploitation and supposed ownership of their labor did not!

That ownership, and the involuntary extraction of labor by force and law, was approved unequivocally by the institution of the American Supreme Court, then lead by Maryland-born Roger B. Taney, considered one of its greatest Chief Justices and the first Roman Catholic Chief Justice. In the 1857 Dred Scott decision, Taney and six other justices saw no contradiction in a creed of freedom that permitted the ownership of human families, or between human liberty and human property—and said so, from the highest court of the land.

In fact, in his dissent, Justice Benjamin R. Curtis, the Massachusetts-born son of a merchant vessel captain, painstakingly points out that the Dred Scott decision denies the court decisions that Africans and persons of African descent were given legal citizenship in the several states, and this legal grant of citizenship gave them standing before the Court—a standing that Taney, in his majority decision, denies, calling it “unagreeable.” Curtis then points out how ludicrous it is to declare Scott is without standing before the Court, and then to have ruled anyway!

If it looks at its own reflection, the Supreme Court would see how it avoids the institutional evidence of its own magnanimous failures, going back to Dred Scott. Perhaps we, too, forget that the Court was not intended to be an institution of democracy, or rather of democratic interests: the expansion of individual liberties and rights, the ending of discrimination, the leveling of the ever-expanding playing field. The Court did not rule in support of equal protection prior to an inclusion in the Constitution by amendment, nor for women’s voting rights prior to its inclusion, nor for civil rights prior to a Congressional act, or for ending slavery before a Constitutional amendment. Continue reading Gay Marriage and Deliberate Speed

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Digging Deeper: Justice Scalia, No Fear of His Own Horror

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It’s not the 4th of  July, but I’m having flashbacks to two century-old Supreme Court cases involving liberty: Plessy v. Ferguson and Dred Scott.

Dred Scott was a slave who sued for his freedom on the grounds he moved from a state that chartered slavery to federal territory that didn’t recognize slavery as a legal institution, and did recognize a number of citizenship rights for blacks including marriage. Therefore as a resident in a free land with no provision for slavery, he should be free. The Supreme Court’s decision, by seven to two, abrogated his right, but also states’ rights. When it came to slavery, the court ruled the slave had no standing to bring a legal case against his or her status. The court also firmly declared slaves were property, chattel, having “no rights any white man was bound to respect.” Despite state laws, a slave transported to Massachusetts remained in bondage.

The Dred Scott decision was only the second time an act passed by Congress was ruled unconstitutional. Chief Justice Roger Taney’s written decision struck down the Missouri Compromise, passed in 1820, which limited the expansion of slavery into federal territories.

The 14th Amendment removed Dred Scott as a legal precedent, but it remains important in history, as example of how US law is interpreted and rights altered through the institutions of the courts, states, and federal government. For often, law is about ends and means, what it affirms and what it denies.

I’m an American-born, free black. Supreme Court Associate Justice Antonin Scalia wants to return to the days when my state, South Carolina, could come to my door and demand that I leave. By state law, South Carolina authorities before 1865 before could compel me by force to leave the state. The state could prohibit my return. Not because of crimes, but merely due to my status—as free and black. The basis of such state laws, among others, was the Dred Scott case.

On Monday, Justice Scalia referred to such an egregious use of force by the state to compel forced removal as “travel restrictions.” The dislocation of free people—a violation of common sense, morality, ethics, human rights and settled law—was one of the examples Scalia chose to cite in his 22-page dissent on Arizona v. the United States, which tells why he sees Arizona having the historic and absolute right to expel residents at will.

Scalia, in his independent, after-the-fact dissent on Arizona v. the United States, desperately wants states to have the same expired right to ban or expel undocumented workers. He goes a step further and sees the constitution and legal precedent as granting—no, more—guaranteeing this right of sovereignty to states, with the federal function to protect the entitled state authority above its own.

The removal of a person from a state may be a matter of policy and civil law, but against the person, it is a high crime and a declaration and act of war. Some have already taken Scalia’s fantasy-filled illogic to call for secession—again. The desire to truncate all federal activities burns in their hearts.

From a blog:

“Message to Arizona- Start forming Infantry Regiments wholly under the control of the Arizona Governor and state legislature. It is impossible to see any other alternative for states and citizens wishing to protect their Constitutional rights in the face of a runaway Federal Government of the United States, and its various organs, that has all but suspended the founding intent of the original Constitutional Convention.

LET FREEDOM RING!!!”

The American tradition of jurisprudence is giving every lying, crazy white man a pass, through what Jeffery Tobin called a “loss of perspective.” There is freedom of speech but no freedom to reside, if the state decrees so by law. If Scalia is right, by extension, we are all naked, unprotected—as free blacks once were! We can all sing “Kumbaya” on the bus.

And with his dissent, Justice Scalia became the first justice ever to use a dissent as a blog.

Careful reading of Justice Scalia reveals he uses established principles of international law on sovereignty. As a strict constitutionalist, wedded to original meanings, his far afield examination of international precedents outside US law seems to go against his own logic and prescriptions. The decisions and principles he cites are about national sovereignty, not the sovereignty of states or entities within a nation. He is treating the constitution as a contract whose purpose is to establish a federal government to provide services as the states collectively require, but with limited authority of its own. In fact, Mr. Scalia at one point cites the Articles of Confederation—written before the constitution, when the colonies were independent, as relevant. He sees no prudent limitation on the authority of states.

He does not see the state’s action as poaching on federal authority: “The state’s detention does not represent the commencement of the removal process unless the Federal government makes it so.” “The most important point is Arizona is entitled to have “its own immigration policy”—including a more rigorous enforcement policy—as long as it does not conflict with federal law.” “There is no reason Arizona can not make it a state crime for any removable alien to remain in present in Arizona.” And then: “What I fear is that federal policies of “non enforcement” will leave the states helpless before those evil effects of illegal immigration that the Court dutifully recites in its prologue but leaves unremedied in its disposition.”

This last statement is a clear call to action: the assertion that the Court is to provide a remedy that goes beyond legal merits and attacks “evil effects.” As a free black (once removed!) I cringe that the scales of Scalia’s justice now weigh evil effects. Especially without concern for the justifying excesses of unrestrained authority. It seems Justice Scalia protects, as one of the original states’ rights, the right to discriminate without regard to liberty, due process, human rights, or national policy, calling himself an originalist, not an activist.

Plessy v. Ferguson, heard in 1896, involved segregated, race-based seating on street cars in Louisiana. The Supreme Court ruled that the 14th amendment was not intended to eliminate or abolish differences of social privilege based on race or color, and states had a right to reflect custom, tradition and use in their laws. Discrimination as a custom could be legally maintained. Plessy by law must sit in the colored section during his public journey. Continue reading Digging Deeper: Justice Scalia, No Fear of His Own Horror

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Walmart Sex Discrimination Decision - Too Big to Sue

Betty Dukes and Plantiffs
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Betty Dukes and Plaintiffs

Some of the worlds biggest corporations were protected from bankruptcy at the end of the financial downturn by a policy dubbed “Too Big to Fail”. Now we have a ruling from the US Supreme Court that has dubbed one large corporation “Too big to Sue” that may have a significant impact on future plaintiffs ability to initiate class action suits against large corporations.

I’ve spent some time reading through the full decision by the court and what I see is upsetting, but more background first. There is a lot but I think you will agree it is worthwhile to read through the end.

The big issue decided by the court is whether the claims by women alleging gender bias and discrimination can be pooled together into a class action lawsuit. Class action suits terrify large corporations because many individuals can join the suit easily vastly increasing the potential liability of the corporation. It also attracts the best legal teams to represent those in the class action again because of the potential for a huge payday as the legal team would typically receive a percentage of the winnings.

Class action suits are an important tool in the neverending effort to make large corporations responsible if and when they behave improperly. When an individual attempts to take a large entity to court on their own, it’s a common practice for that company to overwhelm the individual’s resources by dragging out the court dates, filing numerous motions, etc., all of which take time and lots of money in legal fees to fight.

In order to proceed with a class action suit, those intending to bring one forward have to satisfy several requirements and two of those, Rules 23a and 23b of Federal Rules of Procedure are what were at issue in this case. Those things that need to be proven are:

Rule 23a

  1. the class is so numerous that joinder of all members is impracticable,
  2. there are questions of law or fact common to the class,
  3. the claims or defenses of the representative parties are typical of the claims or defenses of the class
  4. the representative parties will fairly and adequately protect the interests of the class

Rule 23b

  1. The prosecution of separate actions by or against individual members of the class would create a risk of
    1. inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
    2. adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
  2. the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
  3. the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:
    1. the interest of members of the class in individually controlling the prosecution or defense of separate actions;
    2. the extent and nature of any litigation concerning the controversyalready commenced by or against members of the class;
    3. the desirability or undesirability of concentrating the litigation of the claims in the particular forum;
    4. the difficulties likely to be encountered in the management of a class action

The Supreme Court found a problem with the certification of a class action based on 23(a)(2) “there are questions of law or fact common to the class” and 23(b)(2) “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole”

Now that I have explained what happened and why, let me take you through why this is a problem. Continue reading Walmart Sex Discrimination Decision – Too Big to Sue

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POE Calls for Investigations Into Justice Thomas in Light of New Financial Disclosure

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POE Calls for Investigations Into Justice Thomas in Light of New Financial Disclosure

Press Release:

New Information Reveals Thomas Invested In Lobbying Firm Tied To Tea Party and Engaged In “Judicial Insider Trading” To . . . → Read More: POE Calls for Investigations Into Justice Thomas in Light of New Financial Disclosure