American Dictatorship

In a “commentary” piece in Salon titled A candidate, not a president: Jack Smith crafts a simple solution to Supreme Court Jan. 6 roadblock, Norman Eisen and Joyce Vance wrote:

«The Supreme Court’s late-term decision recognizing a dangerously expansive immunity from criminal prosecution for former presidents effectively cut off any chance of the original indictment in the January 6 case against former President Donald J. Trump going forward.»

The article goes on to talk about what Jack Smith has done to salvage the case. Good for him. It shouldn't be necessary to work under the preposterous constraints recently imposed by the Supreme Court, but I'm glad he's up to the challenge. And that's the immediate concern, so it makes sense that Eisen and Vance would focus commentary on something so topical.

But I want to draw back and reshape this same set of observations to highlight a few other things that have been bugging me as the rest of this immediate drama runs its course.

Biden Explains the problem

After the immunity ruling, Biden made a bold statement:

“This nation was founded on the principle that there are no kings in America. Each — each of us is equal before the law. No one — no one is above the law, not even the president of the United States.

With today’s Supreme Court decision on presidential immunity, that fundamentally changed. For all — for all practical purposes, today’s decision almost certainly means that there are virtually no limits on what a president can do.

This is a fundamentally new principle, and it’s a dangerous precedent because the power of the office will no longer be constrained by the law, even including the Supreme Court of the United States. The only limits will be self-imposed by the president alone.”

Wrapping our heads around the problem

Sometimes when there are big statements made (like that a President has “no limits” or is “above the law”), it's hard to see the practical reality that is lost inside. I notice this when trying to excite people about the urgency of Climate Change, as well. Sometimes, instead of saying the world might end, one needs to say that there will be no more Christmas vacations, orchids, poetry, or reruns of Groundhog Day. Something more personal. Because the vast scope of “anything” or “everything” is just too hard for the brain to wrap itself around.

I'll tie this all together in a moment, but first one more quote.

The aforementioned commentary by Norm Eisen and Joyce Vance also mentioned this:

«As a result, Trump’s attempts to weaponize the Department of Justice to his own private ends are no longer part of the case. Gone is the allegation that he pressured the Department to release a letter falsely claiming that the election was marred by outcome-determinative fraud. Gone is the allegation that he sought to use the Department to press state officials to certify his electors, rather than those of President Joe Biden. And gone is the allegation that he attempted to install his now-excised co-conspirator, Jeffery Clark, as the Acting Attorney General to implement his scheme when other officials resisted.»

So, yes, as Biden noted, Presidents will be above the law. But as the reduced indictment implies, included in the President's broad immunity, which SCOTUS has made up out of nowhere, are the following truths:

• It isn't a crime, just a routine day at work, when the President perpetrates a fraud on citizens of the US, or solicits those who work for him (including DOJ) to do so.
• It isn't a crime, just a routine day at work, when the President meddles in state or national elections.
• It isn't a crime, just a routine day at work, for the President to solicit state officials to do his bidding in ways that would be illegal for others.
• It isn't a crime, just a routine day at work, when the President organizes conspiracies against the United States government, in violation of his oath to protect and defend the Constitution.

Smith is doing what he must do in order to get this past a corrupt Supreme Court. But what they are asking him to accept as a premise is just utterly preposterous. The above examples are just the tip of the iceberg.

Forget the fact that we're talking about crimes that probably happened. Forget that it's Trump. Just ask yourself: If you were designing a nation, would these be intended consequences of your design? Can you even imagine our founders intended this? Keep in mind that these are the people that brought us the Declaration of Independence, which said, among other things:

“… The history of the present King … is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. …
He has refused his Assent to Laws, the most wholesome and necessary for the public good. …
He has made Judges dependent on his Will alone …
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation…”

Independent of the prosecution of Donald Trump, independent of the sweeping nature of presidential immunity, these specific truths that we already know from the mere fact that Jack Smith felt it necessary to remove them from the indictment, and which are only the tip of a very ugly iceberg, are not suggesting a positive direction for our nation's future. I would like to live in a country where Jack Smith did not have to fear prosecuting such things would be cruelly laughed out of Court.

We must drive stakes in the ground to keep the Overton window from moving.

Dictatorship vs democracy

Democracies have a lot of problems. The back and forth of democratic decision-making can be messy, processes run slowly, and outcomes are not always pretty. Democracies are said to offer the best of worst case outcomes, not the best of the best. For example, they are supposed to resist capture by a single individual. They are supposed to have checks against becoming dictatorships.

And, let's be honest, a benevolent dictatorship might sound better. Someone who knows good things need to be done and can do them efficiently. But the problem is that there is no such realizable system as a reliably benevolent dictatorship. Even if it started out that way, it would risk in every moment becoming malevolent. And if that happened, and it would, there would be no protection.

So, as Churchill is often quoted as saying, “Democracy is the worst form of government, except for all the others.”

But at the same time, Jefferson wasn't wrong in saying, “Eternal vigilance is the price of liberty.”

We've been too trusting in the US for too long and have allowed, little by little, for various changes that have weakened our democracy's safeguards. We have seen them burrowing in at democracy's weakest points, and instead of responding aggressively by filling observed gaps, we have let them drive a wedge.

So, at this point we find ourselves preparing for an election that many have described as having placed democracy itself on the ballot, because Donald Trump has promised that if elected, he will be a dictator. Just for a day, he says, but not everyone is Joe Biden. The history of power is that people do not step back from it easily. If Trump achieves any approximation of dictatorship, expect him to decide he likes it and wants to keep it that way. And the Supreme Court seems poised to back that.

After all, he seems to think he can be a dictator on day one if he wants. But the Supreme Court has not said anything that distinguishes any day from any other. If he has the power to be a dictator by his own choice on day 1, he has the power to be dictator by his own choice on any day. The Supreme Court seems to have made that pretty clear. That he's hinting only about a single day has no predictive value. His promises are worth nothing. He changes like the wind. The only consistency he has is his narcissism.

Meta-dictatorship

But, wait a minute, why does the Supreme Court get to decide these things?

Well, that's just their role and always has been. They are charged with making decisions that are true to the Constitution, but who polices that? They do. Or they don't. But, either way, no one else can tell them they're wrong.

Pardon the use of technically precise language here, but they just say shit, and it becomes true, stink and all.

They don't exactly make law, but they tell lawmakers what laws are OK to make. They don't exactly enforce law, but they tell enforcers which laws may be enforced. That's a lot of power. Too much.

They are, effectively, a team of meta-dictators. That's kind of always been there, just waiting to rear its ugly head.

A President is suddenly a king. How? That wasn't previously true. The Supreme Court says so. So we believe it. They claim the power to say that someone is a dictator, above the law and immune to question. How do you do that if you're not already a dictator yourself?

So why are we talking about a future world that only might have a dictator after the election. The problem is real, and here, and now. We have a team of dictators already—a weirdly constituted team that has a minority voice that's like an ignored conscience, unable to have an effect but still able to speak out, alerting us to danger. In spite of that, collectively, they are dictators.

Nothing has recently changed about the power of the Supreme Court other than its composition. It has been a potential dictatorial mob for a while, just awaiting two things to align:

• the right composition, to take advantage of the power that was there.
• the death of shame, so they won't be embarrassed doing it.

Now that those conditions are met, the Supreme Court's danger, a danger that has been there all along, is starkly visible.

In a sense, the story of the US Supreme Court is the story of a dictatorship that started out benevolent and decayed before our eyes, just as I was saying one should expect from any such attempt. As soon as we get the chance, we need to correct its structure so that it has much stronger protections. In the past, our various Congresses and Presidents have seen the Supreme Court's design as something sacred, that works well, not realizing they were simply relying on luck. Democracy must be built upon firmer stuff. It needs solid checks against corruption. Nothing less will suffice.

Leave it to the United States of Capitalism to bring on dictatorship fashioned in its own image, as a board of directors, not quite dictating directly, but freely controlling who is allowed to be the country's CEO and under what parameters they are permitted to operate. It's a bad look. But it's what money has bought.

 

---

Author's Notes:

If you got value from this post, please “Share” it.

For the flag logo, I tried to generate an image at Abacus.ai using various models and Dall-E or Flux.1, but all of them made a complete mess of simple instructions, so finally I asked just "make a simple black and white logo in the style of a clenched fist. make sure the fist has 4 fingers and a thumb" (because many times it gives too few fingers), and I had to edit it onto the flag myself, using a public domain image of a flag downloaded from publicdomainpictures.net.

Edit: The penultimate paragraph in the main article above, beginning “In a sense, the story of the US Supreme Court…” had been intended originally but ended up lost due to editing. It was added back the day after initial publication when its absence was noted.

Impeachment Poetry

A tweet written in limerick led me to respond in kind:

After laws broken daily for years,
“Shocked, Shocked” are a Speaker and peers.
  Now they’ll risk reelection,
  raising one thin objection.
“Too little, too late” are my fears.

Limerick is not my preferred format. I usually prefer haiku, or (as here) senryu. There's something calmer and more elegant about it. So I also tweeted a senryu, perhaps as apology for the limerick above:

Crimes mount by the day.
  Biden chides, “soon, it's too much.”
What was it before?

---

Author's Note: If you got value from this post, please “Share” it.

Corporations Are Not People

Part 1 | Part 2 | Part 3

Corporations are not people, my friends, no matter what Mitt Romney says.

Corporations are corporations. People are people.

If corporations were people, they would obey the same tax laws as regular people do. Instead, they have a separate set of rules. What an amazing irony, given that “legal personhood” arose, in part, from a desire for equal protection under tax law.

If corporations were people, when they broke the law, they would be punished, not just by fines but sometimes by imprisonment or death.

If corporations were people, they could not urinate in public. This would be a relief to the employees of certain corporations, who are presently asked to enjoy humiliating public displays of trickle down. We'd insist corporations use a rest room like everyone else. Although that would usually require knowing their gender. If something doesn't have a gender, that's a big clue that the something is not actually a person.

If corporations were people, they would be counted in the US census.

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

 —13^th Amendment
    to US Constitution

If corporations were people, some would be old enough to receive Social Security.

If corporations were people, taking money out of them would be called robbery, not profit or dividends. Owners would surely justify this robbery by saying the corporation was a dependent body, but we would see quickly enough that it was the owner that was dependent on the corporation, not vice versa.

If corporations were people, other people could not buy, sell, trade or own them. We don't let people own people in the US. We call that slavery. Every person controls his own destiny.

If corporations were people, they could not be dissolved by other people. We'd call that murder.

If corporations were people, then from the moment of their very conception, their ultimate existence would be assured—no backing out allowed. If any other person interfered with or otherwise aborted plans to sign articles of incorporation, pro-life groups would insist that was murder, too.

If corporations were people, they would have a childhood. During their first eighteen years, they would attend school and learn how to be good citizens. They would not be allowed to sign contracts.

If corporations were people, they could not exist simultaneously in multiple countries at the same time. We would know when they were in one country or another. They would need passports and visas to move around, just like people do.

If corporations were people, we'd give them freedom of speech, but no more such freedom than we give any other person.

If corporations were people, there would be limits on how much they could donate to political campaigns. Because people have such limits.

If corporations were people, some could even vote or run for office—if they were old enough and born or living in the right place. But if we caught them coercing the vote of another person, perhaps an employee, we'd throw them in jail.

If corporations were people, they might need freedom of religion. But not so that they could coerce the rights of others, and instead so that they could explore what they thought of life, death, and ethics, independent of the people who gave birth to them. Religion is a very personal choice we should each make for ourselves, not owners for corporations, nor corporations for employees.

If corporations were people, I wouldn't have to write this article. Because when two things are the same thing, so many questions like this just don't come up. And yet the questions keep coming and this list could go on. Corporations are not people in so many ways.

---

Author's Note: If you got value from this post, please “Share” it.

This first part of a 3-part series was originally published December 2, 2013 at Open Salon, where I wrote under my own name, Kent Pitman. The next part is We The People (and Corporations). The series concludes with Employers of Religion.

The public domain liberty bell graphic came from freeclipartnow.com.

Tags (from Open Salon): politics, incorporation, corporations, corporate personhood, legal personhood, legal person, legal personality, taxation, crimes, punishment, imprisonment, life, death, death penalty, urination, trickle down, census, social security, robbery, slavery, human trafficking, murder, pro-life, childhood, contracts, travel, passport, visa, home country, citizen, citizenship, speech, religion, freedom, freedom of speech, freedom of religion, religious freedom, philosophy, ethics, vote, voter, voting, run for office, running for office, candidate, elect, election, elected, office holder

Disobedience, Civil and Not-So-Civil

Disobedience of the Civil Kind

I have a beef with certain people who enagage in civil disobedience and then expect to be treated as if they did nothing wrong. Should they be treated with human decency and respect? Of course. But should they be treated as if they did nothing at all? No, I don't think so. I want to say why.

It's not the idea that people should be allowed to walk free that bothers me. There are reasonable arguments made about why we might sometimes not want to punish someone who commits an act of civil disobedience. We all know that's true. We tell people not to kill one another, but there are times when we all agree that it's legitimate to do so—certain cases of self-defense, for example. So my gripe here isn't about that.

“Non-violence, publicity and a willingness to accept punishment are often regarded as marks of disobedients’ fidelity to the legal system in which they carry out their protest.”

  —Civil Disobedience

(Stanford Encyclopedia of Philosophy)

My gripe is that people who commit acts of civil disobedience seem to have come to expect to be let off. It's almost as if they see civil disobedience as a right, and they are morally indignant (not to mention surprised and terrified) if they are arrested.

When I was in college at MIT, I attended a meeting in which activists who were concerned about the Seabrook nuclear plant trained others on how to protest. (I think I was there as a reporter covering the event, by the way. I wasn't especially political back then.) Among the things they explained was how to behave if people wanted to be arrested. That wasn't the main thrust of the protest, it was like an extra credit aspect they said some might want to do. In fact, it was pretty carefully explained that not everyone should do this, that only people who really understood the consequences of being arrested and were willing to pay that price should do. They weren't planning anything violent, but they did think it was a legitimate choice to be more-than-average obstructionist if the person was willing to pay that price of being arrested and having a mark on their record. In fact, it was the price they would pay that made the action noteworthy.

Refusing to move when instructed by the police was not seriously going to keep the nuclear plant from being built. But their willingness to spend time in jail peacefully might get them time on the news, since it would arouse sympathy in the population, who might think it awful they'd had to make such a sacrifice just to be heard. But once such a penalty is removed, or routinely waived, why is it be noteworthy? Sacrifice is only sacrifice if you lose something, and if you're assured you won't, you're not making one.

Disobedience of the Not-So-Civil Kind

I want to turn now to another issue that I will ultimately tie in with the above, and that's the issue of ticking time bombs. And no, in case you're worried, I am not going to suggest that these are some good form of civil disobedience. But the discussion of their existence at all will set up something else that I want to talk about.

As you probably know, the ticking time bomb scenario involves the notion that there will be imminent harm to many people very soon, that you are the one who must interrogate a suspect, and that everyone is depending on you to avert a catastrophe. “What would you do to get the needed information?”

And, indeed, here on Open Salon, DJohn posted such a question just the other day in a thread to which I responded. I've lifted my response to him into this post here (with very light editing) to make sure my thoughts on the matter didn't get lost in the shuffle.

The fallacy here is that you think this problem is unique to torture. It is not. Consider any law we have. There are laws against driving fast on highways, against breaking into buildings, and against killing people. We know, for example, that there are sometimes extraordinary reasons why good decent people need to drive beyond the speed limit, break into buildings, and even kill other people. And we do not say, therefore, that there must not be laws against driving beyond the speed limit, against breaking into buildings, and against killing one another. Rather, we expect brave souls to do in extraordinary times what needs to be done, consequences be damned. In some cases, we will exonerate them afterward for breaking a rule because we agree that circumstances warranted it. In some cases, we will not, and we will hold them accountable and they will console themselves knowing that they sacrificed themselves for something they believed was more important.

The situation of national security is no different. Were there really a case where millions could die and there was a chance torture might work, I expect someone would try the torture. If it worked, I imagine he'd be found a hero and forgiven. If it failed, I imagine he'd be court-martialed for his foolish notion. That's not much reassurance, but it ought not be. That's what it is to be illegal, to say that the risk of doing the thing is entirely to be engaged at a personal level. It's what we heard every week in Mission Impossible growing up: Should you or any of the IM Force be caught or killed, the secretary will disavow any knowledge.

It's an uncomfortable truth but an honest one. It doesn't just give a wink to someone saying “it's ok, we know you'll need to do this and we'll forgive you later” it says “if you think this is your only option, you'd damn well better have examined every other one and it better really be because this is not one we'll forgive lightly.” For things that are truly (rather than merely rhetorically) one's only option, who asks for permission?

Anyone who tortures should never do it as a matter of process. He should do it as a last resort knowing that he is potentially sacrificing his life or freedom. That's a nice high bar that I'm comfortable won't get misused. Anything less, I'm not so sure.

Kent Pitman
April 19, 2009 01:22 AM

Checks and Balances

The traditional argument goes that “The Constitution is not a suicide pact.” Fair enough. That's a theory that goes quite a ways back in history, well before its recent formulation in words. But it was always about “above board” (pardon the unfortunate waterboarding pun) action. The problem isn't that the Bush administration wanted to change the policy, the policy is that they did so without informing the public and without subjecting themselves to trial. Having seen the need to do it, they should have done what they needed to and then marched straight to court demanding a trial. In the worst case, they should have told the public what they were doing so that the public could decide.

The claim by Bush echoed claims made by Nixon, who in turn quoted Lincoln when he was interviewed by David Frost: “Actions which otherwise would be unconstitutional, could become lawful if undertaken for the purpose of preserving the Constitution and the Nation.” I don't even propose to debate that here; it might well be right. Let's assume it is. The critical difference between Lincoln and Nixon on this point is that Lincoln's actions were public and subject to scrutiny by the electorate. Nixon was secretive, and so was Bush.

Secrecy matters a great deal because the Constitutional foundation of allowing the Executive this much power is not that we like trusting the Executive with this much power, but rather we understand that some decisions must be made quickly, before the populace or perhaps even Congress could offer advice. And some decisions must be made coherently to avert the effect of Congress tearing our nation limb from limb by each Congressperson going in a different direction. A President must know when he acts on his own that he is still doing so at some risk of being judged harshly, and if he does it in secret, that risk is averted. The essential check on Presidential power is the option to impeach or at least not to re-elect. And even for those who will not be re-elected, we have the option to publicly discuss with new candidates for the office whether they subscribe to such doctrine. We are robbed of all of that when such actions are taken in secret, and we end up making decisions about the Presidency without critical information that would allow us to make good decisions.

Summary

And so I'll close with the point I opened with, that there is a relationship between civil disobedience as it has become and this kind of not-so-civil disobedience. In both cases, the actions have become so comfortable that the high bar of sacrifice has been removed. With that bar removed, the acts in question are too easy to do and too hard to later judge. We must repair that.

---

Author's Notes:

If you got value from this post, please “share” it.

Originally published April 26, 2009 at Open Salon, where I wrote under my own name, Kent Pitman.

Tags (from Open Salon): recourse, impeachment, impeach, informed electorate, re-election, election, democracy, we the people, democratic rule, checks and balances, dick cheney, cheney, george w bush, george bush, bush, frost/nixon, frost, nixon, lincoln, abraham lincoln, 24, time bomb, ticking, torture, ticking time bomb scenario, war, co, conscientious objector, unjust law, civil disobedience, politics