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Á La Citizens United, Should Corporations Exercise Influence Commensurate With A Vote?

          One may understand why there are those who find the debate regarding Citizens United  troublesome regardless of whether one supports or does not support the decision of the U.S. Supreme Court allowing corporations to contribute to political campaigns. One question that arises is whether corporations are to be permitted virtually unrestricted and unfettered rights of political participation?  Do  corporations impose upon  the constitutional right to privacy, as an essential attribute of intangible property and a life-sustaining characteristic upon which individuals depend, when they participate in elections?

          Corporations do not possess a quality, property or characteristic as the sense of privacy that goes to innate, subconscious, free and unencumbered human thought and choice. Self-governance and self-sustainability, in behest of self-governance, are the founding requisites of a democratic republic. This right and privilege of every individual is founded upon the existence of personal integrity and privacy. If corporations are equal yet not so dependent upon a guarantee of this form of privacy, may American citizens maintain their privacy and freedom to participate without imposition? The state chartered corporation is a creature of statute that lacks the intuitive sense of  whether its thoughts and actions challenge its very survival and existence. Corporations exist absent the psyche. And, if corporations argue that business entities possess rights of property and privacy, American commercial law has long protected commercial confidentiality and intangible property interests through securities regulation, patent and copyright law, contract law among many.

         Historically, tradition provides the premise and understanding that modern corporations do not vote. So it difficult to justify and to establish the right of corporations to offer publicly disclosed campaign contributions similar in public influence and public suasion to a vote, if not to the election count. More essentially, around the globe, in history the ancient family and the ancient corporation were similarly governed as one corporeal entity, patriarchically, without the recognition of individual form. The Corporation sole was the pater, aggregated one with others.  Corporations and families have generational existence, in perpetuity, yet individuals do not, both historically and in the modern era. Says Sir Henry Sumner Maine: “Corporations never die, and accordingly primitive law considers the entities with which it deals, i. e. the patriarchal or family groups, as perpetual and inextinguishable. “ (Maine’s Ancient Laws, Chap. V. Disintegration of the Family).

          In discussing the historical transition, Maine states:

“Nor is it difficult to see  what is the tie between man  and man which replaces by degrees those forms  of reciprocity in rights and duties which have their  origin in the Family. It is contract. Starting  as from one terminus of history from a condition of society in which all the relations of Persons are summed up in the relation of the Family, we seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of Individuals.”(Maine’s Ancient Laws, Chap. V. Disintegration of the Family).  For Maine, the Family and  the Corporation were both Groups, led patriarchically. There have come to be replaced by the Social Contract of one individual to another.

          One must observe the analogy of Maine with the Syllabus of the U.S. Supreme Court in Citizens United, 556 U.S. 310, quoting Syllabus at 2(a):

“(a) Although the First Amendment provides that ‘Congress shall make no law . . . abridging the freedom of speech,’ §441b’s prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction ‘furthers a compelling interest and is narrowly tailored to achieve that interest.’ WRTL, 551 U. S., at 464.” Yet, is the Corporate contribution or Corporate PAC too great a legal fiction in the modern era to compete with human life forms in the expression of political opinion?

          For, the Corporate PAC is  twice removed from the individual shareholder or corporate employee relative to the individuals of the Corporation sole  comprising the Corporation aggregate.  In Maine’s lengthy language:

“English lawyers classify corporations as Corporations aggregate and Corporations sole. A Corporation aggregate is a true corporation, but a Corporation sole is an individual, being a member of a series of individuals, who is invested by a fiction with the qualities of a Corporation. I need hardly cite the King or the Parson of a Parish as instances of Corporations sole. The capacity or office is here considered apart from the particular person who from time to time may occupy it, and, this capacity being perpetual, the series of individuals who fill it are clothed with the leading attribute of Corporations—Perpetuity Now in the older theory of Roman Law the individual bore to the family precisely the same relation which in the rationale of English jurisprudence a Corporation sole bears to a Corporation aggregate. The derivation and association of ideas are exactly the same. In fact, if we say to ourselves that for purposes of Roman Testamentary Jurisprudence each individual citizen was a Corporation sole, we shall not only realize the full conception of an inheritance, but have constantly at command the clue to the assumption in which it originated. It is an axiom with us that the King never dies, being a Corporation sole.” (Maine, Ancient Laws, Chap. VII Corporations Sole).

          As the purpose of the public recognition of and grant of existence to corporations is premised upon public interest principles of encouraging specialization and expertise in corporate productivity that transcends generations and is duly and ever more increasingly regulated and reviewed by both government and the public, what is the rationale or public interest in permitting corporations to exercise a constitutional right it cannot do via human means in its acknowledged name and form? If the concern is that traditional corporate subterfuge would encourage greater underhandedness than publicly communicated opinion as currently permitted by Citizens United and governmentally regulated Lobbyists, then, there may be no recourse than time. In the future, the development of regulation that would permit corporations to achieve ends now sought through political expression would end competition with voters and still permit voter review of corporate conduct through representative government.

 

Lori Gayle Nuckolls, Esq.

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Economic Rights: the Basis of Freedom

Participatory democracy is something in which we should all believe. Humans began as “hunters and gathers,”  roaming alone in a hostile environment. As savages, we imposed an economy upon our coming together to trade fruits, berries, pelts and meats. Our economy produces the culture we share. America’s economy today is complex and global. Yet, we bargain still one human being with another. We share a common currency. Yet, we meet in an innumerable number of marketplaces. Still, we share in and exist in our one economy. Our neighborhoods should be thought the cornerstone of our economy.

The letter below is a comment I submitted today to several Federal agencies which collectively govern the American economy and its financial institutions.

Lori Gayle Nuckolls, Esq.
1237 Paddock Hills Avenue
Cincinnati, Ohio 45229-1219

Lori.Nuckolls@post.harvard.edu
lnuckoll@wellesley.edu
lorigaylenuckolls@cinci.rr.com
513-305-7902
September 16, 2018
Legislative and Regulatory Activities Division
Office of the Comptroller of the Currency 400 7th Street SW, Suite 3E–218
Washington, DC 20219
Sent via email to: VolckerReg.Comments@ occ.treas.gov, Re: Docket ID OCC–2018–0010

Ann E. Misback
Secretary
Board of Governors of the
Federal Reserve System
20th Street and Constitution Avenue NW
Washington, DC 20551
Sent via email to: regs.comments@ federalreserve.gov, Re: Docket No. R–1608; RIN 7100–AF 06

Robert E. Feldman
Executive Secretary
Attention: Comments/Legal ESS
Federal Deposit Insurance Corporation
550 17th Street NW
Washington, DC 20429
Sent via email to: comments@FDIC.gov, Re: RIN 3064–AE67

Brent J. Fields
Secretary
Securities and Exchange Commission
100 F Street NE
Washington, DC 20549–1090.
Sent via email to: rule-comments@ sec.gov, Re: File Number S7– 14–18

Christopher Kirkpatrick
Secretary
Commodity Futures Trading Commission
1155 21st Street NW
Washington, DC 20581.
Sent via email to: https://comments.cftc.gov, Re: RIN 3038–AE72

Re: Proposed Revisions to Prohibitions and Restrictions on Proprietary Trading and Certain Interests in, and Relationships with, Hedge Funds and Private Equity Funds

Dear Agency Administrators,

I write in reference to the proposed revision of the 2013 Volcker Rule, 12 C.F.R. Part 44, collectively by the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve, the Federal Deposit Insurance Corporations, the Securities and Exchange Commission and the Commodity Futures Trading Commission, (individually, an ‘‘Agency,’’ and collectively, the ‘‘Agencies’’). Please consider this letter to be a formal submission of comments upon this proposed rule amendment in response to the Notice of proposed rulemaking published by your Agencies in the Federal Register, on July 17, 2018, 83 Fed. Reg. 33432. All citations herein to proposed amendments to the Code of Federal Regulations reference the proposed rules of the Comptroller of the Currency only and parallel citation to the proposed rules of all Agencies has not been attempted.

The Purpose of the Proposed Amendment of the Volcker Rule

The Agencies state that the rationale and premise for the amendment of the Volcker Rule is the learning and improvement of the largest banking entities since the 2013 amendment of the Bank Holding Company Act (the “BHC Act”) and the 2013 amendment to the Volcker Rule promulgated thereunder. In that, since 2013, the Agencies have found that the banking entities have engaged in detailed compliance under the 2013 BHC Volcker Rule. These requirements were intended to prevent great economic loss and distress from speculative, proprietary trading by the banking entities. (83 Fed. Reg. 33432, 33434 (July 17, 2018)).

The Agencies profess that the banking entities are more sophisticated, more prudent and consequently, less of a threat to the safety and soundness of the financial system if engaging in the purchase and sale of securities for their own account. Thus, the Agencies are amending the 2013 Volcker Rule to lessen the regulatory burden of reporting proprietary trading in order that compliance resources may be directed, instead, to profit making commercial activities. (83 Fed. Reg. 33432, 33434 (July 17, 2018)). The Agencies propose that the extent of reporting compliance required be determined by the monetary value of assets available to each individual banking entity for trading. The amendment creates three categories of banking entities with three different levels of reporting compliance. Id.

My comments are offered in request that the Agencies reflect upon the amendment of the Volcker Rule as it would govern those banking entities with no more than $1 billion in available trading assets, globally, including affiliates. This is the third and smallest designated tier of banking entities both within the American economy and international banking, subject to the proposed amendment of the Volcker Rule. The Agencies have designated these smallest of banking entities to be by definition those entities with ‘‘limited trading assets and liabilities.” (83 Fed. Reg. 33437 (July 17, 2018))(to be codified at 12 C.F.R. § 44.2(t)).

Creating a regulatory safe harbor, the amendment would exempt these smallest of banking entities, possibly for the first time, from all proprietary trading reporting compliance. Under the safe harbor, the small banking entities are not required to routinely file periodic proprietary trading reports with their respective agency. And, the small banking entities must only do so after notice of regulatory inquiry, and a request for evidence of compliance ex post facto. The amendment proposes to transfer the burden of proof as to proprietary regulatory compliance from the small entity to the Agency. (83 Fed. Reg. 33432, 33450 (July 17, 2018)).

The Agencies only grant this safe harbor to the small banking entities. This is done through the recognition by the Agencies of a “presumption of compliance.” (83 Fed. Reg. 33460 (July 17, 2018)(to be codified at 12 C.F.R. § 44.20(g)). No small banking entity would bear the burden of demonstrating affirmatively on a periodic basis that its proprietary trading is in due compliance with governing regulatory proscriptions. The safe harbor also exempts the small entity from all compliance requirements as to potential conflict of interests. (83 Fed. Reg. 33432, 33441 (July 17, 2018)). With respect to large and mid size banking entities, as the first and second tiers regulated, the amendment merely lessens and does not completely remove requirements as to proprietary trading reporting and conflict of interest. (83 Fed. Reg. 33432, 33441 (July 17, 2018)).

As the Notice states:
“[an] Agency may exercise its authority to rebut the presumption of compliance and require the banking entity to comply with the requirements of the rule applicable to banking entities that have moderate trading assets and liabilities. The purpose of this presumption of compliance would be to further reduce compliance costs for small and mid-size banks that either do not engage in the types of activities subject to section 13 of the BHC Act or engage in such activities only on a limited scale.”

83 Fed. Reg. 33432, 33437 (July 17, 2018). I support the stated objectives of the Agencies in formulating the amendments to the Volcker Rule in theory, yet I am uncertain and quite doubtful that these objectives will be fully achieved in practice without too great a compromise of the public interest.

As published in the Federal Register, with respect to the Volcker Rule:

“the Agencies are issuing this proposal … to amend the 2013 final [Volcker] rule [promulgated pursuant to section 13 of the Bank Holding Company Act, the “BHC Act”], in order to provide banking entities with greater clarity and certainty about what activities are prohibited and [the Agencies] seek to improve effective allocation of compliance resources where possible. The Agencies also believe that the modifications proposed herein would improve the ability of the Agencies to examine for, and make supervisory assessments regarding, compliance relative to the statute and the implementing rules. While section 13 of the BHC Act addresses certain risks related to proprietary trading and covered fund activities of banking entities, the Agencies note that the nature and business of banking entities involves other inherent risks, such as credit risk and general market risk. To that end, the Agencies have various tools, such as the regulatory capital rules of the Federal banking agencies and the comprehensive capital analysis and review framework of the [Federal Reserve] Board, to require banking entities to manage the risks associated with their activities. The Agencies believe that the proposed changes to the 2013 final rule would be consistent with safety and soundness and enable banking entities to implement appropriate risk management policies in light of the risks associated with the activities in which banking entities are permitted to engage under section 13.”

(83 Fed. Reg. 33432, 33434 (July 17, 2018))(emphasis added). The proposed Volcker Rule amendment proposes to balance the principles governing the substantive public rights granted by federal law to the banking entities with public concern for the safety and soundness of the American banking system. The public interest includes the wellbeing of the global macroeconomic economy of the United States in the world, as well as the wellbeing of the microeconomic economy of the small community depository institution in rural and provincial American geographic areas. To achieve the purpose of the proposed Volcker Rule, the Agencies must safeguard both the American economy and individual financial institutions.

The Rationale for the Volcker Rule

The Volcker Rule is founded upon the perceived need to prevent depository institutions and their defined affiliates from engaging in speculative, proprietary trading, deemed inherently too risk averse for the banking system. The Agencies offer a revision of compliance obligations incumbent upon banking entities engaged in certain proprietary trading activities which are expressly exempted from the general prohibitions by law. In doing so the Agencies would lessen the compliance and reporting requirements of banking entities concerning information regarding their proprietary trading activities
Still, the proposed amendment of the Volcker Rule remains conservative in that it would reinforce the time honored prohibitions begun with the Banking Act of 1933 (popularly known as the “Glass-Steagall Act”). (83 Fed. Reg. 33432, 33436 (July 17, 2018)).

The Agencies expressly state that the new rights as to proprietary trading reporting compliance must abide preexisting prohibitions regarding certain types of securities activity. Most importantly, no trading activity by a banking entity may: (1) create a conflict of interest between the banking entity and a customer; (2) directly or indirectly create a material exposure to a high-risk asset or high-risk management strategy; nor (3) create a threat to the safety or soundness to the banking entity or the United States. Id.

The Glass Steagall Act provided, in Sections 2 and 20, that a depository institution, or bank, could not affiliate in any manner with any corporation engaged primarily in the issue flotation, underwriting, public sale, or distribution of stocks, bonds or other securities. This created the existing barrier against conflict of interests by prohibiting an officer or director of a corporation involved in such securities activity from serving as a bank officer or director. Similarly, Sections 16 and 21 of the Glass Steagall Act created a reciprocal prohibition by preventing banks from issuing securities and by preventing underwriters from accepting deposits.

The Volcker Rule Amendment Lacks Guidance for Small Banking Entities

Even with the continued conservatism as to small banking entities, there is an absence of concern in both the Notice and the proposed regulation for the extent to which the amendment leaves small banking entities without the didactic guidance of federal regulation and compliance. The Agencies offer in explanation that the small banking entities do not in engage in proprietary trading to an extent necessary to merit the cost, time and effort required in complying with current regulation. And, foremost, little regulation of the smaller entities is indicated for the sake of the safety and soundness of the banking industry and American economy. The practices of small banking entities have not proved a source of economic risk and loss with systemic implications, as have, to a truly great extent, the commercial activities of the mid and larger size banking entities.

The safe harbor presumption of compliance provides small banking entities with reduced cost of compliance, for reasons that reducing their compliance burdens as well as reducing and more greatly systematizing compliance of the mid and larger size banking entities will promote profit and economic growth without risk. Yet, small banking entities more greatly defer to and rely upon agency expertise. Small entities have reduced access to the information gleaned from periodic compliance as well as the due diligence periodic compliance requires. The Agencies should supplement the newfound freedom from affirmative regulatory compliance, which the presumption of compliance provides, with greater oversight, guidance and public education as to the role and function of small banking entities in cities and their communities. The Agencies should transition the small banking entities, which with the larger entities merit the reduction in regulatory compliance, into the greater commercial activity and profit envisioned by the amendment.

Adhering to and satisfying the detailed requirements of regulations has over many years provided learning through compliance for the smaller entities beyond the information and management resources of larger entities, regardless of market. Such remains true for the larger banking entities. For example, the amendment requires the larger banking entities to self-tailor an in-house reporting system that would require analysis of regulation and the entity’s commercial activities, a six-pillar compliance program. (83 Fed. Reg. 33436 (2018)) (proposed to be codified at 12 C.F.R. § 44.20(a)) and (83 Fed. Reg. 33560-33563 (2018))(proposed to be codified at app. to 12 C.F.R. Part 44). The larger entities would be required to analyze: (1) written policies and procedures; (2) internal controls; (3) managerial structures; (4) independent compliance reviews; (5) training and recordkeeping; and (6) metrics reporting requirements. (83 Fed. Reg. 33432, 33439 (July 17, 2018)). The Agencies provide guidance to the larger entities in imposed regulatory obligations found in the Appendix as published in the Notice and proposed rule. Yet, if the small entities are expected to be guided by these provisions without obligation, the level of their regulatory burden is not minimized, yet presumably increased as the financial markets changes over time and they must self-regulate.

While small entities are not so anonymously amorphous as to require as extensive a review and reporting system as those much larger, the small entities will no longer conduct business under the same incentive for compliance as once before. Even without an inability to self-govern and delegate in-house measures for avoiding improper proprietary trading, the small banking entities should be encouraged to work promptly upon the effective date of the amendment with the business school centers of the institutions of higher education in their areas to provide a national view of compliance in the ordinary course of business, Thus, if a routine audit generates an Agency request for documentation of compliance over many years, the small entity may comply.

The Agencies might ask the effect of replacing a detailed and stringent regulatory burden with a “presumption of compliance” in a small banking entity. Perhaps the Agencies should encourage: (1) the development of prudent market sophistication among competitors and customers as well as (2) collaboration among the administrators and staff of small banking entities with members of institutions of higher education on topics of financial institution regulation and management. Promoting sound self-governance would permit the amendment with all requisite safety and soundness in even the most remote and smallest of regions in the United States. For, a small banking entity might well be inadvertently less than conservative and less risk averse than it should be in its investments if it believes its only risk of noncompliance is in the course of its ordinary periodic audit. Evolving standards governing the presumption of compliance during after-the-fact reviews permit agency discretion, yet without some transition small entities may not as readily self-regulate to produce a revision of the compliance standards being removed with changes in the marketplace and the effectiveness of the presumption.

Under the proposed Volcker Rule, small banking entities in small cities and towns may no longer rely upon the overarching policies of federal agencies to temper the autocratic micromanagement of CEOs and Officers. The Agencies give rise to an affirmative vision of the banking industry within an international context through regulation and compliance review. The presumption of compliance requires a new approach by the Agencies in guiding the business decisions of the small banking entities with similar agency efficiency. This should be neither difficult nor costly for small banking entities possessing worldwide assets of less than $1 billion constitute only 2% of America’s banking entities according to the Notice. 83 Fed. Reg. 33432, 33440-33441 (July 17, 2018).

In Conclusion

I suggest that the small banking entity not be abandoned by the regulators and that the Agencies provide some guidance in behest of the public interest concerns of fair, just and equal commercial development throughout American cities, states and regions. A different systemic risk exists if an absence of regulation for those least able to self-regulate promotes fear among small banking entities and their customers and then, not for reasons of evasion or misplaced or imprudent motives, transactions are made merely for want of deference to the metaphysical guidance once perceptible above.

The Agencies together govern a complex and diverse financial industry, composed of many types of financial institutions and entities created by right and privilege under the laws the Agencies administer. The Agencies may only continually seek to achieve an equilibrium in the burden of regulatory compliance to be borne themselves as each a governing agency, and as to that burden to be borne by the public. In doing so, the Agencies guide all market stakeholders and thereby produce national prosperity and capital growth. The proposed amendment is a result of what the Agencies have gleaned from the marketplace and the amendment may readily promote public participation, research, discussion of policy making, examination and enforcement.

I thank you greatly for considering my comments on this rule. And, I may certainly be contacted as indicated above.

Sincerely,
Lori G. Nuckolls
Lori Gayle Nuckolls

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When is Personal Status a Crime?

Is it moral, ethical and or proper to criminalize personal decision making that does not challenge the individual identity and or personhood of another? Does a right of citizenship or even of the individual exist if one is unable to disclose the structure of one’s social existence because the structure is proscribed by law and criminalized by the government under which one collectively lives?  This question applies to all attributes of the individual, whether it be gender, marital structure, race, source of income, and many other common and current practices of modern existence.

 

If harm is not imposed upon another, in the thinking of John Stuart Mill (1806-1873), these personal attributes are expressions of liberty and freedom, derived from existence and nature, and may not be ethically restrained by the government. Persons exist within the fellowship of existence. Law and government which encroach upon one’s personal individuality, liberty and freedom are ensured only by prejudice according to Mill.

 

Even the most liberal and inclusive of elected statesmen has not yet remedied all such personally experienced difficulties in which one is unable to disclose the structure of one’s existence by virtue of one’s life structure being, in some aspect,  prohibited by law. We can know the spoken and written words of our governing officials and candidates. Yet, how can we fairly evaluate their demeanor if the material source of their identity, their life structure, is prohibited from being disclosed to the public. Their temperament, regardless of intensity, may not unilaterally be determined by matters in discussion before them.

 

In his Thoughts on the Present Discontents, Sir Edmund Burke (1729-1797) expressed the view that:

Government is deeply interested in everything which, even through the medium of some temporary uneasiness, may tend finally to compose the minds of the subjects, and to conciliate their affections. I have nothing to do here with the abstract value of the voice of the people. But as long as reputation, the most precious possession of every individual, and as long as opinion, the great support of the State, depend entirely upon that voice, it can never be considered as a thing of little consequence either to individuals or to Government.

(emphasis added). Under American law, as derived from the words of Edmund Burke, as well as countless additional voices of all hues and genders, all should have full, complete, and unfettered participation with one voice. The voice of the individual, not that of the abstract “tyrannous majority” is the founding principle of our government.

 

Some indicia of personal status, which upon actus reus, or effectuating conduct, constitute a crime in virtually all of the 50 American states are a noncriminal personal status of mental intent, such as a personal yet unconsummated devotion to a career of prostitution or the intent to engage in multiple marriages upon reaching the age of puberty without equal treatment under formal legal acknowledgment of the marital union. If, upon the effectuating act, traditions of liberty in America exist untranscended, is there an ethical rationale for this criminalization?

 

Sir Burke agrees that a nation is merely the composite of the individuals comprising it in cellular diversity. The principles of respect and ethics by which our nation of individuals is governed are derived via prescription from the very principles by which individual humans share and comport with one another. In the words of Burke:

 

Nations are governed by the same methods, and on the same principles, by which an individual without authority is often able to govern those who are his equals or his superiors, by a knowledge of their temper, and by a judicious management of it; I mean, when public affairs are steadily and quietly conducted: not when Government is nothing but a continued scuffle between the magistrate and the multitude, in which sometimes the one and sometimes the other is uppermost — in which they alternately yield and prevail, in a series of contemptible victories and scandalous submissions.(emphasis added). Anglo-Saxon, conservative thought upon which America was founded provides due precedent for legalization of many American civil privileges long acknowledged and many that might be.

 

Such support in the writing of Burke long preceded the day and era of American poet Emma Lazarus (1849-1847) and her poem The New Colossus, in which she wrote:

Not like the brazen giant of Greek fame,

With conquering limbs astride from land to land;

Here at our sea-washed, sunset gates shall stand

A mighty woman with a torch, whose flame

Is the imprisoned lightning, and her name

Mother of Exiles. From her beacon-hand

Glows world-wide welcome; her mild eyes command

The air-bridged harbor that twin cities frame.

“Keep, ancient lands, your storied pomp!” cries she

With silent lips. “Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!”

 

 America lives by a written social contact of enlightened popular democracy. All participate equally. Participation requires an equal voice. A voice hindered and encumbered when such encumbrance is not materially required is unjust. Conservative theorists suggest that persons come together in society when encouraged and implored by a subconscious sense of order, even in present times.

 

In the thoughts of our President Franklin Roosevelt, democratic patriotism is the right of all on American soil, to seek freedom from prejudice and unkindness, which he deemed an affront not only against the one but also as against the many within the American public. Declaring life structures that are harmless to another to be harmful to the general public when the argument declaring such is  not based upon an understanding of the manner in which the rights of individuals and of the government are compromised is invalid.  Such assertions of criminal conduct deprive all of liberty and freedom. It is not patriotism under any theory of a respect for our constitutional rights or the national security of our nation, domestic or abroad. For, most importantly, government that is open is government that is most wise, most fair and most just. The people professing life structures we currently criminalize such as:  prostitution, multiple marriages, and controlled of substance use, are currently the people we regulate from the criminal and noncivil side of the line as currently drawn. If no injury to others, why not the civil side of the line?

 

 Legal right to the privilege of government acknowledgment of our personal identity and personhood are prerequisites to a constitutionally acknowledged right to speak freely and participate in government.  Men and women who offer sexual services for monetary compensation, and sister wives and brother husbands are currently deemed status criminals as to the social contacts to which they are a party. If the multiple wives and brothers seek formal written and governmentally filed licenses of marriage, they are illegal by virtue of intent to misrepresent their family structure and chosen social contract. If men and women who trade currency for sexual favors do so they consummate written and or oral contracts that contravene governing law. If the only proper and ethical concerns of American government are the respect for the rights of our citizens and America’s founding principles of justice and fairness, and not the various tenets and principles long ago giving rise to various proscriptions against certain social contracts, upon what proper bases are these proscriptions founded? For, they continue to exist in numerous and myriad informal and unregulated forms that have been deemed to readily devolve into abuse in previously no longer criminally contexts.

 

Sex commerce and multiple marriage partners deserve the ordinary rights of citizenship under state and federal law. These rights include the centuries old rights to: real property ownership and management; state and local tax treatment; business commerce and  investments; banking privileges; family and juvenile law; no less participation in voting and elections; expressions of faith; and public education, with its long acknowledged absence of truancy compliance, and the aggregations of proceeds brought to America, etc. Only with open access to government and society, that legalization brings, may many honest people not live in fear.

 

Lori Gayle Nuckolls, Esq.

 

 

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Philosophy, Law and Politics

Is the Mandatory Reporting of Convictions to Relevant Agencies Necessary for Fairness and Justice in Our Courts?

Adequate diligence and complete information are necessary for fair and sound decisions by judges, in both civil and criminal matters. Might States benefit from an enhanced requirement that criminal convictions of licensed professionals, for both  lesser and more severe offenses, be reported to the State agency governing the defendant’s profession?

A measure before the New York State Legislature, Assembly (A11057-A) and Senate (S8909-A), would amend the New York education law to require reporting to the governing  New York State Education Department the criminal convictions and determinations of professional misconduct of persons licensed by the Education Department.  The District Attorney for each county within the State of New York would be required to report each conviction of a licensee to the Professional Conduct Officer of the Education Department. The licensee is similarly bound by an obligation of self-reporting. The licensee must self-report criminal convictions to the Education Department. The licensee is also required to report determinations of professional misconduct to the Education Department, regardless of jurisdiction.

A statutory system of fair reporting and due information provides those governed, such as those licensed by the New York Education Department, with both an incentive for proper professional conduct and a deterrence of nonprofessional conduct, before any ill deed is done. Professional codes provide learning within one’s professional disciple throughout one’s career, long after one’s formal academic training. And, a system of fair reporting insures that employers and the courts make fair, adequate and just determinations.

In founding the first American newspaper,  Publick Occurrences, first  sold in Boston on September 25, 1960, Benjamin Harris stated in his prospectus:

“That something may be done toward the Curing, or at least the Charming of that Spirit of Lying, which prevails amongst us, wherefore nothing shall be entered, but what we have reason to believe is true, repairing to the best fountains for our Information. And when there appears any material mistake in anything that is collected, it shall be corrected in the next. Moreover, the Publisher of these Occurrences is willing to engage, that whereas, there are many False Reports, maliciously made, and spread among us, if any well-minded  person will be at the pains to trace any such false Report, so far as to find out and Convict the First Raiser of it, he will in this Paper (unless just Advice be given to the contrary) expose the Name of such Person, as A malicious Raiser of a false Report. It is suppos’d that none will dislike this Proposal, but such as intend to be guilty of so villainous a Crime.”

Neither the public nor the courts benefit from acting upon an absence of information. And, no one subject to a mandatory reporting requirement benefits if deprived of the rehabilitative purpose of ostensibly putative measures by inadequate information.

Lori Gayle Nuckolls, Esq.

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A Return to Etiquette and Civility, Revisited. Or, Do Hate Speech Laws Conquer Hate Crimes?

In America, should we accept as expressions of public opinion speech and conduct that defy our traditions of etiquette and civility?  Is civility a word with a definition that is, or should be, coextensive with the public peace and order. In the future, perhaps we could encourage thought and discussion about our world in a kind and peaceful manner by requiring every licensed driver in the State of Ohio be automatically registered to vote upon mere renewal of the State issued drivers license. But, until such legislation, we might consider the propriety of the exercise of prosecutorial discretion in regulating hateful speech and conduct under Ohio law. At a minimum, State law, and eventually Federal, should be invoked to criminalize speech, and similarly expressive conduct, either intended, or likely, to evoke a harmful or violent response from nearby persons, in general, or one given person to whom a hateful or derogatory comment is directed.

Under longstanding Ohio judicial precedent, a criminal charge may be brought against a person for words, even by virtue of their content. Words may be deemed “likely, by their very utterance, to … invoke the average person to an immediate retaliatory breach of the peace.” State v. Turner, 2007 Ohio 5449, ¶ 109 (Ct. App. 8th Dist. 2007)(citing, State v. Hoffman, 57 Ohio St. 2d 12, at ¶ 1 (1979). In offering this view of the First Amendment, the Court in Turner, was commenting upon Ohio Revised Code § 2917.11(A), effective Jan. 25, 2002, which was enacted after the statements of the Ohio Supreme Court in Hoffman.  The Court in Turner also concluded that such speech, regardless of content, had been previously found to be “fighting words” under Ohio law.  Turner, 2007 Ohio 5449, at ¶ 109.

Since 2002, Ohio courts, State and Federal, have not been asked frequently to rule upon the manner in which Ohio Revised Code § 2917.11 regulates “hate speech” or “fighting words.” In the advent of the many complicated political and social discussions during this time in American history, we should look to the long extant legal provisions that have been reviewed across the country.   § 2917.11 is such a statute. For, this law expressly deems actus reus both: (1) “offensively coarse utterance [and] gesture[,]” as well as (2) “insulting [or] taunting [conduct] … likely to provoke a violent response.” § 2917.11(A)(2), (3).  Chapter 2917 of the Ohio Revised Code designates this criminal law “Disorderly Conduct,” as one of many “Offenses Against the Public Peace.”

As citizens in our communities in the State of Ohio, the recognition and proscription of fighting words and hate speech derive from the foundations of our democracy, and their requisite respect for the individual.  Our laws against speech and gestures that invoke either a fear of violence, violent urges, or violence itself deter those inclined to so act. Even more importantly, these criminal laws serve as a didactic to instill a code of conduct we rely upon in a community in which the people govern. Social activity and public debate should not provoke violence. We should, instead, look to partisan politics and the creation of third parties in our traditional two-party system, as well as the judicial third branch of government for adversarial resolution of disputes by courts and arbitrators.

Though the United States separated itself from England, our law owes much to the earlier enacted hate speech law in the United Kingdom, Public Order Act 1986, Chapter 64, Part I, Section 4, as amended (http://www.legislation.gov.uk/ukpga/1986/64/section/4). In its broadest provision, this law prohibits acts “whereby [a] person is likely to believe that … violence would be used or it is likely that …. violence will be provoked.” This does not impose an element of criminal intent upon the actor. Moreover, it also declares a person guilty who “distributes or displays to another person any writing [or] sign … threatening, abusive or insulting.” Id.

This British law would meet Justice Scalia’s requirements for constitutional restrictions upon speech in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). Essentially, R.A.V. prohibits restrictions upon speech and conduct which treat speech on one topic or within the one category differently, by virtue of viewpoint. In its Syllabus, R.A.V. states:

The ordinance, even as narrowly construed by the State Supreme Court, is facially unconstitutional, because it imposes special prohibitions on those speakers who express views on the disfavored subjects of “race, color, creed, religion or gender.” At the same time, it permits displays containing abusive invective if they are not addressed to those topics. Moreover, in its practical operation, the ordinance goes beyond mere content, to actual viewpoint, discrimination. Displays containing “fighting words” that do not invoke the disfavored subjects would seemingly be useable ad libitum by those arguing in favor of racial, color, etc. tolerance and equality, but not by their opponents. St. Paul’s desire to communicate to minority groups that it does not condone the “group hatred” of bias-motivated speech does not justify selectively silencing speech on the basis of its content. Pp. 391-393.

505 U.S. at 378.  And, the municipal ordinance at issue in R.A.V. proscribed conduct that “one knows or has reason to know ‘arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.’” Id. Arguably, this imposes a criminal penalty without a requirement of criminal intent.

Both the UK statue and R.C. § 2917.11 prohibit the act of improper speech or conduct, in itself, regardless of intent or an effect of actually producing a violent response. This is in the nature of a balancing of the interests of the public good in the guarantee of our right to free speech versus the proper regulation of speech and conduct harmful to the public good and the public peace

Speech likely to incite violence may possess noteworthy ideas we seek to have fully presented before us. And, we may not censor speech or conduct potentially deemed fighting words or acts because they exhibit a certain content or view. Rather, to be hate speech, the words, gestures or conduct used may not be found to be essential to the ideas sought to be conveyed. Instead, the words or conduct must go beyond free expression to communicate via a means not proper for civil discussion within a representative democracy of a self-governing people.  R.A.V., 505 U.S., at 385.

In Ohio Revised Code § 2917.11, we do not justify the criminalization of acts and speech with reference to their viewpoint. Turner; Hoffman; State v. Cunningham, 2006 Ohio 6373, at ¶ 22 (Ct. App. 10th Dist. 2006); accord, R.A.V.,  505 U.S., at 389. In the thought of Justice White offered in his Concurring Opinion in R.A.V.:

Fighting words are not a means of exchanging views, rallying supporters, or registering a protest; they are directed against individuals to provoke violence or to inflict injury. Chaplinsky, 315 U.S. at 572. Therefore, a ban on all fighting words or on a subset of the fighting words category would restrict only the social evil of hate speech, without creating the danger of driving viewpoints from the marketplace. See ante at 387. 

 

In light of the many creative legislative proposals in Ohio regarding Sanctuary State and Sanctuary City status, as well as the mandatory voter registration of licensed drivers, would Ohio political subdivisions benefit from more stringent fighting word or hate speech provisions. Such local laws could be tailored to their unique popular demographics, topics in discussion, and independent concerns of State and Federal law.

The First Amendment exists to ensure that when the popular majority imposes its lawful preferences as to the obligatory manner of public debate, and specifies and restricts certain categories of speech, it does not penalize the speech or conduct it specifies and restricts by topic content or viewpoint. We must enact our restrictions and adjudicate each defendant presented as possibly guilty with the requisite sensibilities of other than the hateful, resentful and tyrannous majority.

Lori Gayle Nuckolls

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Law Students Before the Judiciary, Revisited

On Christmas Eve, last, I asked if the Rules formally adopted by the Ohio Supreme Court to govern the Ohio Bar might be amended to improve the educational opportunities of Ohio’s law students prior to their graduation. Supreme Court Rules for the Government of the Bar of Ohio, R. II., “Limited Practice of Law by a Legal Intern.”   Perhaps, all Ohio law students should be permitted to share in providing formal legal representation to clients when mentored by a supervising attorney. This is something Cincinnati’s current Mayor John Cranley did as a student at Harvard Law School. He participated in a student practitioner program in the Massachusetts court system as a member of the Harvard Legal Aid Bureau, as I had done myself many years before. The Supreme Judicial Court of Massachusetts permits Second Year law students to engage in supervised civil representation, and Third Year law students to engage in both supervised civil and criminal representation. S.J.C. Rule 303.

Currently, when mentored by an Ohio attorney, the Ohio Supreme Court permits Ohio law students to act as student practitioner legal interns in both civil and criminal matters, and before courts, administrative boards and government agencies. Gov. Bar R. II. Sec. 5.   Yet, the Ohio Supreme Court only permits law student practitioners to do so in their Third Year of law school. Gov. Bar R. II. Sec. 2.

Support truly exists for permitting Ohio law students to begin student legal internships in their Second, or even First, Year of law school. Ohio’s law students are usually employed part time while full time law students, as law clerks in law firms, corporations, governmental agencies, as well as in the offices of State and Federal partisan elected officials. Student practitioner duties would not diminish attention given legal studies.

Paid part time legal employment supplements participation in law school Moot Court and Clinical programs. Many students engage in law related employment before entering law school. Both the practice customs and economic structure of Ohio’s legal community would encourage the Ohio Supreme Court to expand upon its own court rules, and those of other States, to permit student practitioners to provide formal legal representation to clients. Currently, Ohio’s Third Year law students may only represent the financially needy and governmental entities, though in both civil and criminal matters.  Gov. Bar R. II. Sec. 5.

If the clear majority of Ohio law students currently work in a for profit or personally interested capacity during law school, for law firms, corporations and partisan elected officials, why would an ethical concern arise if their current for profit or personally interested client work product were accorded the formal sanctioning of Rule II legal intern status? The for profit or partisan attorneys by whom they are currently employed are subject to the same professional ethical duties as are the government and public interest attorneys presently sanctioned by Rule II. The due and proper incentive of government should enable students to derive the most from the structure, both formal and informal, of their academic environment during their tenure as students.

We should agree that if law students maintain employment begun before enrollment through their First Year, law school studies would not suffer if they were given Rule II student practitioner privileges for this, or similar, work during First Year. Rather, our theories of client interest and adversarial practice, as the guiding principles of our judicial system, indicate that formal legal representation during law school enhances understanding of both law school studies and substantive for profit work product.

Acknowledgement by the Ohio Supreme Court of the substantive, for profit legal work currently incumbent upon law students in the private sector would enhance the depth of their legal study, and they would then more greatly succeed upon graduation into private practice.  In for profit law clerk employment, law students research and draft, with the obligatory duty incumbent upon a practitioner, as do  the current Rule II law students with governmental and public interest entities.  The formal right to appear in a representative capacity, in deference to a mentoring attorney, allows a law student to fully understand the burden of client representation regardless of the economic status of the client.

Law students rely upon law school course work and law clerk employment to develop required skills in legal methods, specifically, analyzing judicial opinions, conducting Federal and State legislative histories, and the comparative analysis of both primary and secondary legal sources. With the addition of formal practice during First and or Second Year, Ohio law students would make a more informed choice of practice areas, and more readily begin their practice after graduation. Even our best known legal practitioners in Ohio, and we need not name names, would, I am sure, concede that, as graduates of Ohio law schools, they would have truly benefited from such an Hohfeldian right and privilege.

Lori Gayle Nuckolls

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We Should Share Our Political Faith

This November, we determine our choices for government. And, we should look to the momentous advances in American society over the past few decades to guide the decisions we make as to our State, County, City, Town, and Village governments. In the minds of many, the great English philosopher John Locke expressed the concern that, without the ownership of property, a member of society does not live with justice and fairness. One would imagine that this would include both the due and proper definition of property, and its enforcement. Thus, justice and freedom require that one first have a government upon which one may rely in order to possess and own property.

Americans live in the hypothetical, as to our right, power, and privilege of self-governance. Our personal decisions and life choices are individual, yet based upon a common understanding about the world in which we live. We each possess a theme, an abstract view of ourselves, our family and our community. This theme guides our particular opinions, both negative and positive. It constitutes our political faith.

So, how do we achieve political faith? Our individual tenets of political faith are derived from our social customs, and our understanding of how we relate to society and our community. All of our governmental leaders: national, state and local, are empowered to invoke the authority of government. And, in doing so, they should look, collectively, to our individual tenets of political faith. Thereby, they enact the federal laws and regulations, state statutes, and local ordinances that create and enforce our rights of property. This might constitute a Lockean sense of justice, for our political beliefs and opinions create and provide the property we bequeath to our children, and how we participate generationally in our country.

In evaluating candidates and referenda this election season, we should ask certain questions. First, how do I view the relationship between the candidates offered for my political subdivision and our American governing officials? Second, in what manner do the offered candidates express a view on the ownership and development of my property rights? Third, do the offered candidates look to our nation’s reliance upon principles of capitalism and the marketplace to enhance and secure my property and prosperity, and that of my political subdivision? Fourth, which of the offered candidates for my political subdivision may best collaborate with the officials of our State and Federal governments to so revise and enforce definitions of property?

In asking these questions, so that we may participate and comment upon society and government, we must each individually have a sense of our own property. We could look to a sense of the traditional Anglo-American common law definition of property as derived from John Locke, namely, that individual property rights are created from our individual investment of labor in the act of property creation. In this sense, how is our labor to be defined and described, and what is the property it creates? Our property rights as individuals determine our political and social power.

We must each provide a description of our property, both to share amongst ourselves in the course of ordinary conversation, and in offering our comments to candidates and elected officials.  Our definition of our property is determined by what we know and how we know. As Locke might say, these rights are based upon each individual’s perfect control and dominion in right of ownership of property. As to property, this would be a tenet of political faith.

Lori Gayle Nuckolls

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Should the Federal Government Pay Tuition for Higher Education to All for All?

Admission to American colleges and graduate schools is duly regulated by several nongovernmental organizations, notably, entities such as The College Board, the Educational Testing Service and the American Bar Association. And, our secondary and elementary schools are similarly reviewed and ranked as to merit, both within political subdivisions and across the nation, by educators, journalists and governing officials.

Would an assumption of tuition payments for all American college and graduate programs by the Federal government undermine current private governance by those currently governing and affiliated with America’s private schools of higher education?  Would it undermine the aura and efficacy of local history and culture within our publicly owned and governed colleges and universities?

Perhaps, the objectivity of the nongovernmental organizations responsible for admissions testing and school ranking in American higher education already provides and requires obligatory accuracy and fairness as to merit and quality across the nation in a way that state, local and private control of funding currently may not affect. Private and state decision-making in higher education must currently yield to duly enacted legislation and promulgated regulation, and a replacement of the monetary source for tuition, from the student, parent and or school to the Federal government, could not transcend present governmental procedures. Our schools would, in every respect, remain fully self-governing and retain due and fair competition.

The question then is whether Federal tuition runs only to the public good and public interest, and if the American economy can afford to pay the tuition of all college and university students? There seems to currently be neither an economic necessity nor an economic value in requiring students and parents, as the recipients of the goods and services of American colleges and universities, to make the tuition payments, when the ultimate beneficiary of educated Americans is America. Educated Americans determine America’s reputation and goodwill and the relative efficacy and value of its democratic government.  In doing so, the American public receives goods and services provided by those who do not earn the true value of the service they provide over the course of their careers.

Salaries of ordinary citizens and residents barely pay living expenses, no less do these salaries provide for college tuition. And, it is hoped that American families contain more than one child. College graduates and licensed professionals earn less than professional athletes and corporate executives. Our governing officials, doctors and lawyers provide more to keep America sane and rational than do CEOs, pitchers and quarterbacks. How can CEOs and athletes work day-to-day without professionals and government officials overhead. And, non-managerial employees and traditional small business men and women, who would receive college tuition for their children, would still benefit from American capitalism. Students and graduates of the long existing 2-year colleges, who receive learning in the technical arts and vocations, would certainly provide more to the public good as interns during school years in subjects related to their studies than as employees of those within their community who offer the highest pay in part-time employment regardless of the task.

A parent’s future payment of tuition to American colleges and universities is a for-profit incentive in the American and international marketplace. Currently, parents look to a child’s academic achievement, and the competitiveness of admission to America’s colleges and graduate schools, as an incentive for business success. Federal tuition would lessen stresses unrelated to achievement, regardless of parental income. And, the once thought long entrenched competitive advantage of students attending private elementary and secondary schools, is, now, rarely a concern, for advances in teaching, curriculum and college recruiting have provided economies of scale within local governing political subdivisions, and create a just capitalism in education.

If America’s professionals and college graduates are deemed, as our governing principles intend, to grow and raise children who make the most of our academic institutions, how do these professionals provide for their children’s tuition, even in two professional households, and even if with only one child? How does such a family pay for its children’s college and graduate school attendance, even if they are, themselves, among the American socio-economic elite? And, are not these very children of American professionals and college graduates socially obligated, themselves, by our social contract as citizens and residents, to not squander what has been provided to them by their parents and secondary school educators?

The centuries-old legal principle of discerning the merit and value of prospective legal and or governmental reform, as I profess to personally coin and denominate: “experimentation among the States,” may be in order. For, it provides that, if not all Americans are ready for a proposed reform, one State, or a few, in the Federal Union might enact a variation upon the proposed reform, for review and evaluation by citizens and judges. Today, governmental payment of tuition to public colleges and universities, especially as recently announced in the State of New York, may provide a basis for Federal reform, especially by our current President and noted businessman Donald Trump. For, President Trump professes a belief in the economic competition, efficiency and small government that Federal tuition payments to all American schools of higher education would provide. This may be achieved by President Trump from now through the inauguration of his successor in 2025!

Lori Gayle Nuckolls

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Are Our Politics Determined by Money or Self-Reflection?

As someone with a theoretical, rather than a practical understanding of our political system, I ask how we reconcile the popular view that money is ever present in the Republican party with the popular view that money dominates both the Democratic and Republican political parties? Some believe that only with the overturning of the U.S. Supreme Court decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), and the enactment of new Federal campaign contribution limits on individuals and corporate entities, will American government be accountable to the electorate. The influence of the wealthy does dominate and determine our elections. Yet, there are large donors on both sides who are benevolent and offer a view of the common good in which they sincerely believe. And, some on both sides are less sincere and more self-interested.

Journalists covering campaigns do bring controversies to the public regarding those who are influential by virtue of political power derived from financial assets and not a given expertise or experience. So, the public is aware that the views of the majority do not determine elections, and that voters defer to those with known views who they feel have a better vantage point from which to decide what is best for the country. Even in the American history of not long ago, the public conceded to the Railroad Tycoons and the FDRs with an appreciative deference, though a resentment resulting from socio-economic status. Since that time, the majority has sought to cast off the yoke of paternalism. Our society possesses a more equal sense of opportunity, as well as of access to information and knowledge.

In America today, there is a greater sense of adequate materialism and a secure safety net. Yet, are the American working and middle classes of today more familiar with the profound blessings and power of the highly educated who have an understanding and role in society which they will never achieve themselves? They do not truly have economic want and they possess opportunities for their children of which they could not dream. Is their resentment, though existing without want, producing a disrespect for hierarchies and authorities generally?

Do those of the working and middle classes now resent the very academic institutions which produced their individual freedoms and the ability to exercise them? Are they not voting because they feel truly unable to duly consider the issues of government for want of formal education in the very complex and specialized subject matters citizens consider when evaluating candidates and reaching decisions on issues of referendum? As they do not participate, they cease to have a vested interest in the growth and development of their communities, commerce suffers, new residents are sparse and the communities decline.

In “off-year” elections, when voters are not moved by the issues of a Presidential campaign, few vote. In 2014, 40% of those eligible to vote in Ohio voted. This is local government by an interested few. Would more have a sense of personal interest in government if we brought before them the ideals and lessons on the manner in which they can affect government and their communities? With a sense of personal efficacy, would they then appreciate what they have amassed, can amass and what their children can amass.?

Even if new campaign contribution regulations are elusive in the anticipated future, I think that perhaps a sense of the efficacy of individual participation in politics might be achieved if we look to the basics of the American philosophy of government and encourage people to ask those offering ideas and public policies to explain how their suggestions are premised upon and strive to achieve our fundamental principles. To do this, we must frequently discuss the ideology of American representative democracy and ensure that all citizens and residents of our country, regardless of age, may look within and develop a sense of self-governance that believes in America. This November, and in the interim days, will you vote and or express your views and opinions?

Lori Gayle Nuckolls

What Is An American?

Horace Kallen (1882-1974) was a Polish-born American philosopher well respected for an article entitled “Democracy Versus the Melting Pot: A Study of American Nationality,” which appeared in The Nation in 1915, in two parts. In this article, Kallen discusses the principle of liberty and Americanism from the time of the revolutionary war in America to the time of his writing in 1915. He ably addresses the then and now current issue of applying the principles incumbent in the Declaration of Independence of life, liberty and happiness, over time, in a changing country and changing world.

The American revolutionaries did not demand freedom and democracy on behalf of all residing on colonial soil at the time of the Declaration. Kallen argues that the signatories were probably not “abolitionists” in tenor and temperament, and they, themselves, “owned other men.” (190) The literal text of the Declaration ably applies words of liberty and freedom to the entirety of American society. (190) In Kallen’s view, Americanization is possible and necessary if we, as citizens, adopt a shared self-consciousness and like-mindedness based upon the Declaration and its fundamental principles.

Necessary in Kallen’s mind is the “Americanization” of our society, every person in each generation. The philosophy of the Declaration and of being an American cannot be inherited. America is a country and society of diversity and, continues in existence as it began, as one of newcomers. All must be taught to be Americans, both the descendants of forefathers as well as immigrants newly arrived. Kallen illustrates the efficacy of the Declaration beyond the American Revolution.

In Kallen’s view of history, the Declaration of Independence is “an instrument in a political and economic conflict” rather than a document setting forth “abstract principles” or “formal logic.” (190) It constituted both “offense” and defense” within the context of the era of Revolutionary America. The function of the Declaration was to “shield” “national rights” from those seeking to enforce the “superiority” provided by a government founded upon a belief in authority conferred by “divine right.” (190) The political and economic peril of the colony was the “occasion” giving rise to the Declaration; the cause was the “like-mindedness” and “self-consciousness” shared by the ethnically homogenous colonials in mental peril. (191) At the time of his writing in 1915, Kallen believed that ethnic diversity, development and preservation in art, literature and culture are only possible with homogeneity, self-consciousness and like-mindedness which he found resulting in individuality and autonomy by 1915.

Yet, after the Revolution, in the 1810’s to 1820’s, the British inhabitants lessened in majority as they, themselves, migrated westward and faced relative diminution with European immigration. This resulted in ethnic and religious diversity. They, too, sought economic and political liberty and freedom. The immigrants of Ireland, Germany, France, Scandinavia and Slavic territories were present. And, in Kallen’s words, also were, in the American South, “nine million negroes, whose own mode of living tends, by its mere massiveness, to standardize the ‘mind’ of the proletarian South in speech, manner and other values of social organization.” (192)

All residents, suggests Kallen, are “Americanized” over a period of six to seven years. (192) For, those present during colonial times, new immigrants, and citizens of our modern era are included. America’s abundant environment makes this possible in permitting a free choice, laissez-faire economy. In words that are truly applicable today: “What poverty and unemployment exist among us is the result of unskilled and wasteful social housekeeping….” (192) For, “economic equilibrium” must be reached within a population steeped in abundant resources. (192) A democratic government and meritocratic, market economy establish Kallen’s America.

Our cultural and religious diversity grew as the population spanned from East to West. The once American aristocracy of the Anglo-Saxons of New England gives rise to a cultural leveling unto an equality at the highest plane through free social contracts and the imitation of meritocracy based upon a free enterprise market. (192) With transportation and mobile populations and public schools, America becomes a country of an American race. Said by Kallen as it might be said today.

Kallen describes the efficacy and value of the principles of the Declaration. He subtly states that our founding principles have been newly understood. We no longer profess that all men are equal, but, as of 1914, rather that some men are better than others. In his words, “’Human rights versus property rights’ is merely the modern version of the Declaration of Independence.” (193) Further, attention in America was in 1915 focused on the “equalization of the distribution of wealth,” in Kallen’s analysis, “not socialistically,” but presumably economically and politically as sought by the signers of the Declaration. Kallen views this the “dualism” of the “rich and poor” coming to an end. (193) For, the newfound ethnic diversity in the marketplace no longer permits ethnicity to achieve class domination or monopoly. Rather, difference is based upon achievement in a laissez-faire economy based upon merit. Legal restrictions in the marketplace would only be required to counter greed profiting improperly from child labor and illiterate immigrates, etc. (193)

The “fundamental institutions” of America are a “durable expression” of our “ethnic and cultural unity” as a “free and equal” citizenry. “’American’ is an adjective of similarity applied to Anglo-Saxons, Irish, Jews, Germans, Italians, and so on.” (193) And as Kallen’s most fundamental theory in this article, he suggests that the similarity of Americans is “one of the place and institution, acquired, not inherited, and hence not transmitted.  Each generation has, in fact, to become ‘Americanized’ afresh and, withal, inherited nature has a way of redirecting nurture of which our public schools give only too much evidence.” (193) As a result, class consciousness is not coextensive with racial division as the second generation seeks similarity. (194)

Yet, we all, for the most part, retain our ethnicity. There is no “American” race or ethnicity. (194) Rather, the forefathers of New England were aristocrats because of their being first to arrive as all such are aristocrats in Kallen’s thought. Arising are organizations looking back upon ancestors such as the Sons and Daughters of the American Revolution in face of confrontational immigrants. The homes of forefathers and noteworthy Americans are likewise enshrined, Kallen notes. We must note that such shrines have far continued since 1915 and include all racial groups long immigrated to America. Kallen foretold the result of “inevitable equilibrium between wealth and population.” (194)

In Part II of “Democracy Versus the Melting Pot: a Study of American Nationality,” Kallen shares his view that the American race arises from our like-mindedness which he professes gives rise to our nationality. (217) The English language is that of the majority, dominant classes. The weakness of the lesser classes promotes a sense of individuality and an inclination toward assimilation. A privilege of reinforcing language and religion of the lower classes lessens assimilation and Americanization, such as parochial schools. Kallen notes that President Wilson similarly objected to hyphenated identities and not referring to all citizens as Americans, though immigrants from another country. Kallen asks, though not challenging hyphenation: how do we achieve harmony within the cacophony of diversity of tunes that is America? For some “populations … national self-consciousness is perhaps the chief spiritual asset.” (217) In this respect, ethnic group self-respect grows with group cultural and economic development and the loss of the label “foreigner” and thus the becoming of being Americanized in public schools and libraries when they share their culture. These people came to America to escape persecution and or starvation and Americanization is a source of “spiritual self-respect” and inclusion within the “body-politic,” replete with the “responsibilities of American citizenship.” (218)

Americanization includes four phases. First, becoming well fed and assimilating to attain economic independence. Second, a comfortable return to one’s own sense of ancestry and nationality. Third, dissimilation begins with a focus on a group’s own art, literature and culture. Fourth, a maintenance of Americanization in political and economic relationships conducted in the English language, while cultural achievements related to nationality transcend from “disadvantages” unto “distinctions.” (219) America’s institutions are the cause and background of “cultural consciousness.” (219) In Kallen’s words: “Americanization liberates nationality.” (219)

In returning to the Declaration, Kallen reminds us that the forefathers did not possess ethnic diversity among them. In 1915, Kallen offered in contrast that democracy and federalism have encouraged the peopling of America’s land with all nationalities. Yet, in Kallen’s view, a laissez-faire capitalist economy may only be the subject of a government controlled by the plutocracy with the entire nation focused upon the country’s bountiful resources and wealth it produces. (219)

Of greater concern is ethnic unison as we sing “America” and focus on the “conditions of life” and not the “kind of life.” (219) American law and institutions are at issue. For, they do not support the unison and union required of Americanization. Kallen called for the nationalization of American educational institutions, abolition of parochial and private schools, abolition of teaching in a language other than English and the concentration of American and English history and literature. This, he believed, would achieve Americanization. For, required is a “unison of social and historic interests,” the subject matter of our existence. In part, American law and society long ago have demanded this in its academic institutions. No more is probably needed. Rather, American citizens need to defer to Kallen’s premise that each generation must learn our fundamental principles of freedom and liberty.

For, in addition to union, Kallen sought ‘harmony” among us. (219) We would eliminate waste and become more efficient in our social organizations and their interrelationships. By definition: “’Americanization’ – that democracy means self-realization through self-control, self-government, and that one is impossible without the other.” Our organizations must be in harmony one with another. To do so, all must be given conditions “under which each may attain the perfection that is proper to its kind.” (219) This selfhood is inalienable yet achieving it requires “‘inalienable’ liberty.” (220) We derive this from our ancestral endowment and happiness, in Kallen’s words: one’s “psychophysical inheritance.” (220) A democracy assumes that this is necessary for the self-realization of one’s innate original being. Government acts as an “instrument” to achieve democracy by liberating and protecting. To eliminate the waste and social chaos among ourselves, our organizations and our government, we must abide original principles of the Declaration and our founders. Kallen deems this the freeing and strengthening of our ethnic groups by our fundamental law and institutions and the achievement of self-realization and individuality.

Without the foregoing, Kallen believed that social and political chaos reigned, and perhaps it still does. Yet, in his optimism, Kallen suggested that government, as an instrument was flexible and subject to change and reform, in response to “changing life” and “changing opinion.” (220) “Intelligence and wisdom prevail over politics.” When our inalienable talent and ability transcend the confusion of our “common life” a great democracy emerges. Kallen stated that it is a “Federal republic in substance a democracy of nationalities, cooperating voluntarily and autonomously.” (220) This occurs as citizens self-realize unto the perfection of their kind. Do “the dominant classes in America want such a society?” (220)

(Horace Kallen, “Democracy Versus the Melting Pot: A Study of American Nationality,” The Nation, Part I (Vol. 100, No. 2590, pgs. 190-194, Feb. 18, 1915) and Part II (Vol. 100, No. 2591, pgs. 217-20, Feb. 25, 1915)).

Lori Gayle Nuckolls

 

The Economic Question, an Answer

Democratic government does not suggest limits on wealth in a capitalist economy. It suggests due compensation for work and labor, and the property produced. From the earnest of manual laborers to the highest of intellectuals and professionals the amount paid in compensation must achieve a balanced equation. All must be paid an amount sufficient to sustain their every work day.

With regard to the majority manual vocational class, America lives in an economy of two income households. Development in academic opportunities for women, schooling and childcare and commercial venues for purchasing our daily needs makes a two employee household sustainable with adequate incomes.

Similarly, with regard to the learned professions, specifically academics, the highest employees of federal and state government, and non-managerial employees of multinational corporations, such as general counsels and attorneys, a true disparity in compensation exists with that paid mid-level corporate managers without justification. The American economy is sufficiently developed so that there is no longer an argument that learned professionals not be paid a truly self-sustaining level of compensation.

Mid to senior federal and state employees, as well as law and medical school graduating students, should be paid a level of compensation that permits a balanced household budget. Currently, the salary levels paid mid-level corporate employees who do not possess an equal level of academic accomplishment or equal level of daily responsibility exceed the salary levels of those within the learned professions.

From church to social clubs, community involvements to entertainment, not to mention the day to day expenses of maintaining one’s position of employment, adequate compensation is necessary. It must be obtained by earnest development of the American economy. But, also and more importantly, we must philosophically accord parallel and equal value to our first year attorneys and physicians, our first year professors and teachers, and our federal and state executives and judges, as that accorded our mid-level corporate executives.

Lori Gayle Nuckolls

The Economic Question

How do we reform the American economy and governmental structure to provide equality as to personhood at birth and a social arrangement based upon merit? Economic and political equality look to liberty, fairness and justice within a democratic republic. Neither a fascist autocracy nor a collective state will achieve an environment for self-governing individuals. Political expressions of both the far left and the far right arise when they perceive a threat to norms they deem permanently determinative of their existence. These norms are within the innate human personality and may be only mitigated and not undone by the structures and powers of government.

Leftist and rightist autocracies seek dominating leadership that is self-serving rather than self-governing. Both are dominated by norms that look beyond the individual to the state.

Republican democrats in America assert a belief in the normative values of freedom, justice, equality and rule of law, supported by a belief in American patriotism. A belief in republican democracy is a midpoint within the spectrum. Our new economy will accord value to merit and provide for employee self-sufficiency within our republican democracy.

Lori Gayle Nuckolls

Judicial Review and the Separation of Powers

A balance of power among the governing authorities in America requires a new look. Not so much as to the three federal branches of government, but rather as to our principle of federalism and the relationship between our states and territories and the three federal branches of government.

So expansive a territory as the United States requires greater guidance from above through the equally as expansive federal system of government. Our Article III courts may readily provide an initial and comprehensive source of a consistent, uniform and ever more evolving body of governing law.

In doing so, both judges and attorneys should view the law in an imaginative and creative manner that makes the most of both precedent and our founding legal precepts. Courage to look beyond one’s jurisdiction for a supporting argument when proper and prudent provides efficiency and, more importantly, an improvement to the community in which we live by encouraging polite discussion and debate.

Citizens can discuss government and the Rule of Law over the tea and coffee cup. We do not have to wait until the throes of an election to analyze our society and government. Let’s get started.

Lori Gayle Nuckolls, Esq.

Let’s Return To The Fundamentals, Even At The Very Beginning!

The American Public has transformed in the past 50 years into a continent and attendant states and territories of true understanding, education and complexity. The talent, training and acuity of virtually each individual are virtually discernible at a glance.
In a time of increasing obligations of self-government, we owe much to our young people. Academic tracking with the very young is ethically feasible. College preparatory education, based in Classical Greek and Latin, should begin during preschool years. The children are there and so is the curriculum.
Lori Gayle Nuckolls

Should the Federal Government Pay Tuition for Higher Education to All for All?

This Story was originally published in October of 2017 and it discusses a subject matter of continued relevance. For, in an increasingly more complex society and government how do we maintain a democracy if each of our residents and citizens are not able to understand our world.

Admission to American colleges and graduate schools is duly regulated by several nongovernmental organizations, notably, entities such as The College Board, the Educational Testing Service and the American Bar Association. And, our secondary and elementary schools are similarly reviewed and ranked as to merit, both within political subdivisions and across the nation, by educators, journalists and governing officials.

Would an assumption of tuition payments for all American college and graduate programs by the Federal government undermine current private governance by those currently governing and affiliated with America’s private schools of higher education? Would it undermine the aura and efficacy of local history and culture within our publicly owned and governed colleges and universities?

Perhaps, the objectivity of the nongovernmental organizations responsible for admissions testing and school ranking in American higher education already provides and requires obligatory accuracy and fairness as to merit and quality across the nation in a way that state, local and private control of funding currently may not affect. Private and state decision-making in higher education must currently yield to duly enacted legislation and promulgated regulation, and a replacement of the monetary source for tuition, from the student, parent and or school to the Federal government, could not transcend present governmental procedures. Our schools would, in every respect, remain fully self-governing and retain due and fair competition.

The question then is whether Federal tuition runs only to the public good and public interest, and if the American economy can afford to pay the tuition of all college and university students? There seems to currently be neither an economic necessity nor an economic value in requiring students and parents, as the recipients of the goods and services of American colleges and universities, to make the tuition payments, when the ultimate beneficiary of educated Americans is America. Educated Americans determine America’s reputation and goodwill and the relative efficacy and value of its democratic government. In doing so, the American public receives goods and services provided by those who do not earn the true value of the service they provide over the course of their careers.

Salaries of ordinary citizens and residents barely pay living expenses, no less do these salaries provide for college tuition. And, it is hoped that American families contain more than one child. College graduates and licensed professionals earn less than professional athletes and corporate executives. Our governing officials, doctors and lawyers provide more to keep America sane and rational than do CEOs, pitchers and quarterbacks. How can CEOs and athletes work day-to-day without professionals and government officials overhead. And, non-managerial employees and traditional small business men and women, who would receive college tuition for their children, would still benefit from American capitalism. Students and graduates of the long existing 2-year colleges, who receive learning in the technical arts and vocations, would certainly provide more to the public good as interns during school years in subjects related to their studies than as employees of those within their community who offer the highest pay in part-time employment regardless of the task.

A parent’s future payment of tuition to American colleges and universities is a for-profit incentive in the American and international marketplace. Currently, parents look to a child’s academic achievement, and the competitiveness of admission to America’s colleges and graduate schools, as an incentive for business success. Federal tuition would lessen stresses unrelated to achievement, regardless of parental income. And, the once thought long entrenched competitive advantage of students attending private elementary and secondary schools, is, now, rarely a concern, for advances in teaching, curriculum and college recruiting have provided economies of scale within local governing political subdivisions, and create a just capitalism in education.

If America’s professionals and college graduates are deemed, as our governing principles intend, to grow and raise children who make the most of our academic institutions, how do these professionals provide for their children’s tuition, even in two professional households, and even if with only one child? How does such a family pay for its children’s college and graduate school attendance, even if they are, themselves, among the American socio-economic elite? And, are not these very children of American professionals and college graduates socially obligated, themselves, by our social contract as citizens and residents, to not squander what has been provided to them by their parents and secondary school educators?

The centuries-old legal principle of discerning the merit and value of prospective legal and or governmental reform, as I profess to personally coin and denominate: “experimentation among the States,” may be in order. For, it provides that, if not all Americans are ready for a proposed reform, one State, or a few, in the Federal Union might enact a variation upon the proposed reform, for review and evaluation by citizens and judges. Today, governmental payment of tuition to public colleges and universities, especially as recently announced in the State of New York, may provide a basis for Federal reform, especially by our current President and noted businessman Donald Trump. For, President Trump professes a belief in the economic competition, efficiency and small government that Federal tuition payments to all American schools of higher education would provide. This may be achieved by President Trump from now through the inauguration of his successor in 2025!

Lori Gayle Nuckolls

The Modern Democracy and The American Common Law

How do we reconcile traditional English common law principles of certainty and predictability in the law with American principles of fair and just judicial review at law and equity? Our American system of three branches of separate powers accords with the adversarial legal system of seeking impartial and objective judicial opinions. Neither the President nor the legislature imparts undue influence over the judiciary.

May we continue to ensure this unique type of good government in light of the size of the American population in current times resulting from, among many causes: modern technology and an increase in residential land ownership?  With greater access to education and information throughout the states and territories, the informal and unintended influence of the majority upon government is much greater than at the time of the adoption of the U.S. Constitution.

This debate requires a renewed inquiry into the dual purposes of American law in both resolving adversarial conflicts and in guaranteeing that the law achieves agreed upon social ends. Our community incrementally overtime determines our “ideas” and our “truths.”

 In this way, our Judge-made law fills the niches left by statute and executive policy (or one might say agency regulation).  The common law in America is derived from the public. From this our judges glean.

Society and Government?

How do we conquer the less than deserved value attributed to certain American professions, e.g., attorneys, physicians, and academics? What is the role of government and what is the role of the marketplace economy? Fair and just compensation for the value of the services provided is necessary to achieve American principles of a democratic society and government. We cannot believe that this absence of economic efficiency and economic equilibrium results from a  marketplace which will eventually find its own price. Perhaps, America should enact mandatory price-fixing and salary allocation for the learned professions to reflect costs and expenses incurred, both in academic preparation and as practitioners.  Professionals in government and the private sector represent a level of marketplace value that should be accorded value coextensive with that of business executives.

Democratic capitalism requires that corporate America self-govern in order to avoid governmental regulation, deemed more burdensome than  innovation. We must accord market value and  provide economic incentive to encourage the goods and services upon which society relies, our life necessities. Government is our primary necessity, democratic government. Without competitive economics, an economic barrier-to-entry exists and ordinary Americans cannot afford to serve as managers of our democratic republic.

Structural reform should begin with an increase in the salaries of governmental officials and learned professionals to equal that of mid-level, international corporate executives. For, the degree of productivity and quality of these two sectors of the economy could be no less than equal. In doing this, Americans, young and old, will be encouraged to more greatly participate in society and government. Productivity and achievement would bring value to the business community,  governmental subdivisions, and academic institutions.

This is justice and fairness in distributive economics. Competitive markets are guided by government toward equilibrium and this requires greater guidance in professional compensation.

Lori Gayle Nuckolls, Esq.

Economic Equality in America

Some logic and rationality must be accorded to an aged old portion of the American economy that eventually equated Hollywood celebrities and major league professional ball players with millionaire railroad tycoons and corporate barons. Initially, the musicians, singers, actors, actresses, as well as players of baseball, basketball, football and hockey, were the heroes of blue-collar, working class America. They were those the hourly wage earner and family could look up to when education, books, newspapers and magazines were as beyond reach as a college education. Today, vocational and four-year colleges extend coast-to-coast. And, cable television and the Internet bring news regarding the facts and events of America and the world to all, regardless of level of education.

So, why the socio-economic divide between celebrities and our governmental, private and public leaders and academics? Is equal treatment something their America cannot afford?

America requires that economic power be, in formation and distribution, determined by performance and quality, before nation-state, gender and or other attributes if the economy is to be maintained. For performance and quality weigh most greatly in providing the work product upon which society depends. Government, law and regulation come before and prior to materialism and wealth. For, wealth cannot be obtained, utilized, regulated or maintained without a well-regulated representative democracy.

No sole ruler, neither the benevolent dictator nor monarch, can provide an enjoyable sense of wealth and riches to the modern public. Rather, required is a distribution of wealth, monies, and funds, based upon contribution to maintaining meritocratic access to government, private and public social institutions and organizations. For, democracy and its premise upon justice and fairness applies throughout society from top to bottom, however defined.

Rules honoring the distribution of compensation and attribution of value must be as equally enforceable and enforced as rules governing participation. For, wealth as evidenced by a tenderable coin of a sovereign realm has no value without acquiescence and deference by each individual to the rules of the nation. Excessive disparity cannot logically or reasonably exist at the expense of governing officials and academics who provide a greater source relied upon within the Union.

Lori Gayle Nuckolls, Esq.