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Is the United States of America under Siege?

Following the storming of the United States Capitol on January 6, 2021, in the ordinary course of legislative business, one must ask the place of this event in history. To what does it give rise, where does it lead America, and what does it indicate for its citizenry?

One could argue that there is too much hostility within the American majority, too much dissension, for America to continue with a republican form of government, for the United States Constitution to remain. A democratic military relies upon patriotism and a caring respect for government. Its military is derived from the majority population. If the majority no longer believes in justice and freedom under the U.S. Constitution, the military will not possess the moral force to protect the government from threats both at home and abroad.

The storming of the American Capitol was a rebellion, a failed revolution. The cause cannot be deemed that of madness or irrationality. Rather, it must be acknowledged to be an expression of a competing ideology. For, regardless of the methodology of the acts of violence against a government, such acts embody and express an ideology.

Consequently, diplomacy is required to reach agreement and compromise, to heal a country and the world. Denial of the existence of the beliefs and positions of the rebelling entity begets further uprisings and intermittent rebellion. An inclusive truce is necessary. Moreover, in the world’s history, uprisings, rebellions and revolutions, including the American Revolution, have long been subjected to the ad hominem of madness and irrationality, without their being evidence of proof other than reference to acts embodying a competing ideology.

Why Did the Attempted Revolution Occur?

Throughout the world’s existence, history’s development and progress has exhibited great hardship and horror. The storming of the American Capitol could be an example of the development of the world by means of such hardship and horror. Many deem this to be development through the reason and spirit in history, the Hegelian dialectic. According to Georg Wilhelm Friedrich Hegel, in the world there is the existence of the status quo; the critique or destruction of the status quo; and then the collective synthesis of a new, positive result in history. One would attribute to this phenomenon, the slow but developing and evolving state of human progress.

In some sense, Hegel deemed this the actualization of the known and preexisting universe and cosmos by the spirit of history. Yet, those living in each intermittent era of unknowing naivete ask why the negative, destructive critique of the status quo is necessary to evolve and develop, regardless of the result produced. Does it have to do with human nature and the mind of man? Does reasoned critique possess limits necessitating a reliance upon negative destruction? If a destructive negation is not necessary, perhaps society should strive to divert destructive animosity toward reasoned discussion.

In the thought of Hegel, we ask what is the positive result of the negative undoing and destruction of the U.S. Capitol. Does the storming indicate that, in addition to criminal penalties, some form of political reform will or should result? Could the rebellion give rise to either the creation of third and or fourth political parties, or a parliamentary form of government?  

If third parties are cultivated, ideology through rebellion could express itself lawfully in the form of party platforms and representatives in elected office.  If transition into a parliamentarian form of government, the United States would no longer rely upon a separately elected executive with a greater concentration of power in the form of a right of veto over the legislative body. Parliamentary government would require a significant reform of American government. Yet, rebellion and attempted revolution are significant acts.

There must be a humane and positive response by government and society to the rebellion, regardless of what one believes to be its cause. Rebels seek an answer to their demands. They seek their definition of justice. We cannot loft above them an ideal, utopian definition of justice which has been long deemed beyond reach by the world’s greatest elected officials, academics and philosophers. We must seek and strive toward a viable definition of justice: the right of all people to political participation through peaceful expression.

If America abided the principles and text of the Constitution, specifically, and rule of law, generally, differences and disagreements would be settled in the context of traditional political debate and law making. The United States must maintain the quality of its existence as a representative democracy governed by a natural aristocracy. It must act according to law and include the concerns and needs of all within the course of day-to-day debate. Ignoring any segment of the public results in an emotional response such as rebellion. Providing justice to all will avoid such in the future.

America should not attempt to avoid Hegelian peaceful critiques of the status quo, for debate and critique are the basis of the American political system. But, Americans must channel critique within structural modes of expression. From the ordinary member of the public to those occupying the highest office in the land, political participation and the ability to self-govern combine to avoid the recent cathartic event witnessed in the storming of the American Capitol. For, no rebellion or revolt takes form in short order. No one person could be responsible for persuading so many to act against their country. Revolt and rebellion result from a long felt disheartening of many people with their country. The only remedy is to provide a sense of enfranchisement and receptive, meritocratic government.

As J. Hector St. John de Crèvecoeur stated: from soil values grow. American democracy is premised upon the dignity of the individual and respect for all. A storming of the bastion of the people’s government indicates that an overwhelming number of citizens require that government be restructured to meet their needs. The United States needs to bring democracy closer to the soil of America.

Third Parties May Be an Answer to America’s Current Debate

Third parties are often factions that leave major parties over certain issues. America must discern the grievances possessed by America’s rebels. They ostensibly are supporters of former President Donald Trump. However, such violence coalesces and surrounds more than one person. It evolves over time and involves a plentitude of issues.  The Capitol revolt was not the temperance party, the women’s suffrage movement or Teddy Roosevelt’s Bull Moose party. These ideological expressions were serious and longstanding. Yet, they did not reach the level of violence as the recent storming of the American Capitol. Consequently, the deep seated, violence inducing concerns and grievances of the Capitol rebels rely on more than what might be offered by one person. For, in expressing their grievances, they sought to destroy the very government former President Trump represents. 

Permanent realignment of the two major political parties in America into third parties may require some phenomenon such as a rebellion or near revolution. Broad based, grassroot rebellion expressed in the form of movements such as the Capitol rebels could coalesce to form a third party. Some of the rebels could be akin and ideologically similar to the Libertarian party which acknowledges an expression of faction and inter-party strife within the two major parties in America, with the Libertarian party combining fundamental American ideals with conservative economics.

Despite the dramatic events of January 6th, would the Capitol rebels fail as a third party as have most others in American history? The two major parties in America could adopt the ideological grievances and positions of the Capitol rebels and thus lessen any incentive to form new parties. Yet, the Capitol rebels may be so long underrepresented in politics and government that they cannot avail themselves of traditional forms of political participation that a political party offers. Perhaps, for the sake of democracy and diplomacy, citizens who agree and are sympathetic with the positions of the Capitol rebels should lead a new party to which the rebels could belong. This would transcend typical obstacles to formation of a third party such as inadequate financial resources and local and state support. And, a greater increase in popular participation in politics would benefit the emergence of a new party.

The Capitol Rebels Are Due the Benefits of Political Association

Regardless of punitive sanction, the civil self-government of the Capitol rebels should be cultivated. Political parties provide an opportunity for self-expression and civil debate in pursuit of principles and public policy goals. Parties provide a didactic function in educating their members in the art of civics and government. Most importantly, parties foster trust among members by encouraging members to self-govern in a trustworthy manner. Political parties permit representation in a republican form of government. Political parties diffuse the tyrannous majority. This is the guidance the Capitol rebels need.

Political parties embrace general philosophies and thus permit inclusion of as many people as possible. As a result, over time America has evolved into a two-party system.  The party of traditional moral values and business interests is the Republican, and the party supporting working class labor and minorities is the Democratic.  To transcend this duopoly, third parties must draft a broad-based philosophy that is not a single-issue attraction. In what way do the two major parties not offer ideals, principles and ideology appealing to the Capitol rebels so that a third party would not be a viable alternative?

Is the American experiment in democracy more democratic, more fair and more just with two, adverse political parties willing to expand and be more inclusive? To return to sound and civil government, America must enumerate the possible philosophical bases for third parties, including the Capitol rebels.

In what way do the Capitol rebels represent diversity within the United States? Are they urban and rural, of higher education and not? What are their unifying principles and concerns? In what way did the ideology of Donald Trump find expression in the rebellion of January 6th? Could the Capitol rebels support the theories of meritocracy and natural aristocracy upon which the United States is founded?  Promoting a third-party expression of fascist rebellion could be avoided in a free democracy. Listening to and incorporating itinerant concerns into the political structure would be preferable to forcing violent forms of expression. Third parties possess grievances often expressed through violence when the subject of structural exclusion.

Supporters of former President Donald Trump indicate that they are considering forming a third “Patriot Party.” This demonstrates the perceived need for structuring the public support he possesses into a viable form of expression. Whether one considers Donald Trump to be a “cult of personality” leader or not, he cannot utilize his support unless it assumes effective form. Also, he must create a generational legacy amassed around his positions, opinions and ideology that transcends his being deemed a mere one election figurehead.

Perhaps, the Capitol rebels will create a fourth party. Another grassroots movement may become as entrenched and as well-known as the Patriot Party.  Would such a fourth party readily follow on the coattails of the Patriot Party if it quickly announced its existence?

Former President Donald Trump holds grassroot Republican support and must maintain its trust. He must do so by cultivating civil participation. A rebellion or attempted coup is an indication that the cultural voluntary servitudes of entertainment and athletics are no longer an effective panacea. They are enjoyed but do not support or supplant reasoned self-government. Rebellion indicates the cry for a remedy, and the rebels themselves have no answer. Exchanging attributions and projections of blame by governing officials will only result in continued public negativity. People must be encouraged from a grassroots level to engage in traditional political participation.

Representative Democracy Is the Answer

As a republican form of government in the modern era, America is a great, expansive experiment. In merely three hundred years, it has demonstrated a slow but effective development toward justice, fairness, equality and inclusion. A small yet painfully effective rebellion cannot undermine three hundred years of history. Rather, violent uprisings indicate a need for even further progressive democracy.

A democracy must be premised upon trust held by the people in each other, among themselves as they engage in self-government, as well as trust evoked by the government between it and its citizenry. A political party must similarly remain true to its principles and party platform. Promises unkept are hypocrisy. In the recent era of duopoly, no competition exists between the parties. They each have turf dominated by party leadership and no incentive to honor promises made each election. As a result, elections flip flop with exchanges in elected figureheads with no real change in power possessed.

As a result, the U.S. Capitol was stormed by the partyless and unrepresented. They are ostensibly amassed by and the adherents of Donald Trump. But, do they know anything more than that he sought their support. What specifically do they stand for given that they sought to destroy the government they sought for him to lead? The only answer for the rebels is their participation in the American government in some structured form. And, this means participation in the form of a political party, one currently existing or a new, third party. Or, do they remain American citizens who feel that they will always be outside the bounds of government, always unrepresented.                                  

Lori Gayle Nuckolls

Philosophy, Law and Politics

Judicial Determination of City Council Suspensions is a Good Thing

City of Cincinnati Council Member Betsy Sundermann has offered an amendment to the City Charter which would permit the Cincinnati City Council to sanction council members for alleged criminal activity. The proposed amendment is a comprehensive and extensive exercise of Home Rule. The amendment contends that the current disciplinary procedure is lengthy and complex, and that the proposed Charter amendment will provide an efficient and expedient method for removing council members. However, the proposed amendment overlooks several fundamental democratic principles.

 The Charter amendment would eliminate the current right of voters to sue a council member for removal from office when the council member may have received illegal compensation for official duties, been interested in the profits of a city contract, have acted in a capacity in addition to being a council member with respect to work of the city, or been guilty of misfeasance or malfeasance in office. The proposed Charter amendment replaces this procedure with one that includes several potential sources of political impropriety.

The amendment permits City Council to suspend one of its own members under a state or federal indictment or charge of a crime of moral turpitude by vote of Council.  A council member facing suspension is subject to the unfettered discretion of City Council, for the proposed procedure does not offer a standard governing Council’s suspension power other than the alleged misconduct of the council member.

Rather, the amendment permits a suspension to be determined by a mere majority vote of Council as if it were any other ordinary legislative act of the representative body. Matters such as suspension from office should be subject to a standard striving toward nonpartisanship. Since suspensions are not mandatory or automatic, the disciplinary procedure should seek to prevent the possibility that a suspension may be based upon reasons other than the alleged misconduct. By way of example, in the instance of the United States Congress, each House may expel a member only upon a two-thirds vote. Similarly, the Senate may convict an executive or judicial official on trial in the impeachment process only upon a two-thirds vote. Council must even itself admit that important, extraordinary and extreme acts such as the Charter amendment by emergency ordinance being used to initiate this disciplinary reform may only be approved upon a two-thirds vote of Council. Even the present authority given to municipalities by Ohio Revised Code Section 731.45 to expel one of its own members for disorderly conduct requires a two-thirds vote. Yet, Council asks for the power to oust one of its own by only a majority vote.

The two-thirds, supermajority standard for important measures was chosen historically for two reasons. First, measures which transcend and supplant the will of the people, such as suspension of an elected official, should require more than an ordinary exercise of the power of the representatives. And, second, a supermajority places acts initiated for mere political objectives beyond the reach of collaborative faction. Suspension should not be a political matter.

In addition to the probate court removal power the Charter amendment seeks to replace, the primary disciplinary method under Ohio law is also judicial. It provides that suspension from office before a council member is proven guilty undermines our democracy unless done by the highest court in the state with the assistance of a lower court in filling any vacancy. This is closer to an innocent until proven guilty standard.

This primary disciplinary procedure only permits a council member’s suspension from office if the council member is charged with a felony under state or federal law and the alleged crime relates to performance of the council member’s official duties or is adverse to the rights and interests of the public at large. It also requires participation by two branches of Ohio government, the Attorney General or the Council’s county prosecuting attorney in the Executive Branch and the Supreme Court in the Judicial.

Under this method, the Attorney General or Council’s county prosecutor determines whether the alleged felonious conduct relates to the council member’s official duties or is otherwise adverse to the public. If, so the Attorney General or prosecutor informs the Chief Justice of the Supreme Court who then convenes a special commission of three retired justices or judges, one of the same political party as the council member in question. The special commission then makes a preliminary determination as to whether the council member’s conduct adversely affected the member’s office or the rights and interests of the public, and, consequently, whether the official should be suspended from office. 

If the special commission finds that the allegedly illegal conduct does not pose a threat to the member’s office or the public interest, the council member is not suspended from office. If, instead, the special commission reaches a preliminary finding that the council member’s conduct does adversely affect the office or the public rights and interests and that the council member should be suspended from office, the council member is given an opportunity to appear before the special commission and contest the preliminary determination of suspension. The special commission makes a final determination after the meeting and the council member is suspended immediately if the special commission finds that the council member’s conduct was adverse to the office or the public’s rights or interests. The final determination of suspension by the special commission has the same force and effect as a court judgment. The council member may appeal the special commission’s finding to the Supreme Court. The official remains suspended until there is a reversal by the Supreme Court or the council member is found not guilty of the allegedly illegal conduct.

Judicial determination of suspension of a legislative official possesses the traditional “checks and balances” of dividing government to avoid abusive concentrations of power and to mitigate partisan exploitation. It seems unwise to replace a judicial determination of suspension with a procedure that could result in a partisan vote of the legislature within which the member in question sits.

One would hope that one motivation for the proposed Home Rule amendment is not to lessen the burden on the judicial docket, generally, and with respect to suspension cases, specifically. We need a preventative solution to the problem of corruption in government, greater care in local government, not merely a transfer of power for remedying corruption.

Lori Gayle Nuckolls

Investment is Participation

As residents of a democratic republic, we self-govern and participate in ways other than merely through the ballot box. Participation in our market economy is required to safeguard the freedoms and liberties of a just democracy. Consequnelty, I am sharing a comment I submitted today to the Securities and Exchange Commission regarding investments of a type with which we are all familiar.

Lori Gayle Nuckolls

April 26, 2020

Sent Via Email to:rule-comments@sec.gov

Vanessa A. Countryman

Office of the Secretary

Securities and Exchange Commission

100 F Street NE

Washington, DC 20549-1090

                                                                                                Re: File No. S7-04-20

Dear Secretary,

I write with interest in Securities and Exchange Commission (the “SEC” or the “Commission”) Release Nos. IC-33809; File No. S7-04-20, dated March 2, 2020 (the “Release”) concerning the Request for Comments on Fund Names (the “Request for Comments”) and the discussion therein of the possible amendment of the Commission’s regulation of names of registered investment companies and business development companies (hereinafter referred to as “Funds”), specifically 17 C.F.R. §270.35d-1, promulgated under section 35(d) of the Investment Company Act of 1940 (15 U.S.C. 80a-34(d)) (hereinafter referred to as “Rule 35d-1” or the “Name Rule”). The essential purpose and rationale for the Name Rule, as stated in the Commission’s release announcing its adoption dated January 17, 2001, remain unchanged. (Release No. IC-24828; File No. S7-11-97)  (66 Fed. Reg. 8509-8519)(as corrected at 66 Fed. Reg.14828-29) (the “Adopting Release”). Consequently, I recommend that there is no need for significant amendment or revision. Rule 35d-1 continues to meet the Commission’s regulatory objectives in the main.

Since the Commission’s creation almost a century ago during the administration of President Franklin D. Roosevelt, the Commission has maintained a two-fold purpose: serving a perceived need for investor protection and facilitating our nation’s commerce through guidance of public and private companies. The Name Rule is a recent regulation that achieves both of these objectives. As a primary example, the United States has long recovered from the economic catastrophe of the Great Depression and the existence of unregulated markets that inspired the Commission’s creation.  Both those selling securities and those investing in securities have learned to not misuse or misread, respectively, terms including the name United States, U.S. Treasury, etc., in the description of financial instruments. Thus, the proscription against doing so contained in §270.35d-1(a)(1) has long achieved its didactic purpose and it should remain as drafted.

The Commission has noted a concern regarding the Name Rule’s current requirement that any Fund whose name suggests that it “focuses its investments in a particular type of investment or investments” or in a particular industry or type of industries must adopt a policy to invest at least 80% of the value of its assets in the particular type of investment or type of industry suggested by its name “under normal circumstances.” 17 C.F.R. §270.35d-1(a)(2). If fund management decides to vary from the investment policy suggested by the fund name it must provide its shareholders with at least 60 days advance notice of a change in the policy governing its investments. 17 C.F.R. §270.35d-1(a)(2).[1] If the Fund does not comply with these requirements, the name of the Fund is considered to be “a materially deceptive and misleading name.” 17 C.F.R. §270.35d-1(a).

 The Adopting Release of the Name Rule sets forth the Commission’s position as to the proper interpretation of the “80% requirement.” As stated at 66 Fed. Reg. 8516:

“Only those investment companies that have names suggesting a particular investment emphasis are required to comply with the rule. In general, to comply with the rule, an investment company with a name that suggests that the company focuses on a particular type of investment will either have to adopt a fundamental policy to invest at least 80% of its assets in the type of investment suggested by its name or adopt a policy of notifying its shareholders at least 60 days prior to any change in its 80% investment policy. The 80% investment requirement will allow an investment company to maintain up to 20% of its assets in other investments. An investment company seeking maximum flexibility with respect to its investments will be free to use a name that does not connote a particular investment emphasis.”

In the absence of comment by Funds that the 80% requirement proves too burdensome a restriction since its adoption in 2001, this percentage should be maintained. The public as well as the ordinary investor perceives in the ordinary course that the stated purpose of Rule 35d-1, that of providing the public with an accurate understanding of fund policies and objectives, requires a significant commitment to the investment objective suggested by the Fund name.  The 80% requirement is one readily understood by investors and lessening it is not indicated. Investors are expected and do alter investment allocations under the theory of the 80% requirement. The leeway provided funds to depart from the 80% requirement when incurring other than ordinary market conditions is an exceedingly permissive exception to the 80% requirement, for it defers to the discretion of Fund management as governed by fiduciary duty subject to SEC review on a case-by-case basis. Lastly, while the 60 day notice to shareholders requirement places the burden upon the ordinary investor to alter investments upon a change in Fund investment policy, a longer period would undermine the purpose of providing some profitable market flexibility to Funds.

Market conditions have changed in both the increased growth and diversity of potential investments. Consequently, emerging markets and their attendant risks are numerous. There is an even greater need for the 80% requirement. It provides Commission guidance in defining the information to be provided investors as well as apprising Funds of potential liability. By maintaining the 80% requirement, the Commission discourages abstract and vague Fund names through requiring acknowledgement of a need for specificity in the marketplace. For, an investor should know and expect to be informed as strictly as possible as to the nature of the Fund’s investments and the 80% requirement achieves this end.

As the Commission suggested in the Request for Comments, market conditions pose issues of whether regulation is needed for Funds devoted to “qualitative” policy objectives, such as investments guided by environmental, social and or governmental concerns. 85 Fed. Reg. at 13224. Such lack of regulation may lead to investor confusion and the avoidance of investment. To ease investment, compliance and enforcement, the Commission could require that a Fund engaged in such qualitative objectives comply with a standard similar to that currently governing Funds whose investments are tied to certain countries or geographic areas. 17 C.F.R. §270.35d-1(a)(3). In doing so, the Commission could require that the Fund enumerate a qualitative criterion or set of criteria that are set forth in the governing documents of the entities in which it invests. The criteria would reflect the Fund’s qualitative objective or objectives and aptly be reflected in the Fund’s name. Restricting a Fund to one qualitative factor or criterion in its name might unduly restrict market activity and competition and result in a multiplicity of Funds in order to achieve several qualitative objectives. Requiring disclosure of the criteria would avoid the vagueness and abstraction of the “ESG” (environment, social or government) termed Funds.

Regulation of Funds whose name connotes global or international investments is probably not necessary. For, the ordinary investor would understand the wording used in these types of Funds. If greater specificity is needed by investors, market competition would result in more narrowly designed Funds. Requiring greater specificity in a Fund name and disclosure materials as to the type of international investments would, however, shift the primary burden of review from the investor to the Fund.

Similarly, in governing derivatives, Rule 35d-1 ably meets the Commission’s primary concern of disclosure of risk to the investor. Use of the asset-based test of market value rather than notational value to determine whether a Fund is in compliance with the 80% requirement instructs the investor without further inquiry and also guides the Fund in compliance. Marker valuation better indicates price sensitivity.

In conclusion, investors properly rely fundamentally upon Fund management and its due diligence, judgment and maintenance of fiduciary duties. The Commission, and Rule 35d-1 specifically, ably guide Funds and investors in market participation. In reviewing the Name Rule, the Commission must decide how much diligence should be borne by the ordinary investor.

 I thank you greatly for the opportunity to comment before you. And, if additional information might be of assistance, I may be contacted as indicated above.

Sincerely,

Lori G. Nuckolls

[1] If the Fund is a tax-exempt fund, such a policy is deemed a “fundamental policy” and may not be changed without a vote of fund shareholders. 17 C.F.R. §270.35d-1(a)(4).

The Hegelian Dialectic Of Capitalism And Socialism In The American Bureaucracy

Socialism may be impossible yet it is unavoidable and must occur in cycles of reform with Capitalism. In the Hegelian theory of dialectical materialism of existence, critique and synthesis in remedy and solution, Capitalism is destroyed in part periodically by Socialist reform and then reborn again. In the United States, Capitalism is structurally restrained by bureaucratic reforms based upon theories of the public interest, nationalism and the commonweal, all theories of Socialist empathy.

The U.S. Constitution creates three branches of government: the Legislature, the Executive and the Judiciary. The President, as a modern Executive, is empowered with an enormous regulatory bureaucracy which is overseen in a manner of checks and balances by the other two branches. This modern bureaucratic state has placed upon the private sector a primary motive of being that departs from the for-profit motive of Capitalism and imposes that of ensuring legal compliance. In a complex era of high technology and big industry, this Socialist leaning is unavoidable if Capitalism is to survive. And, such regulation, though democratic and Capitalistic in spirit and theory, is Socialist in result.

This dualism, the points along a continuum of Capitalism and Socialism, in the philosophy of G.W.F. Hegel, is humankind’s striving toward the absolute freedom of the species in actualization of an unknown Idea, the consummation of evolution. Regardless of one’s belief in the source or definition of the Idea, humans evolve incrementally, improving life in their community. The various elements of the community each evolve along the Hegelian dialectic from existence to critique to synthetic improvement. The many elements include: religion, science, philosophy, art, literature and education. An additional element is the economic Capitalist-Socialist continuum which evolves in dialectical form and is expressed in the governing structure of the community.

Through rational, reasoned reform of its Capitalist governing structure overtime, America has achieved its current bureaucratic state. This bureaucratic state is currently in a period of contraction, with the undoing of some Socialist theories and returning to earlier thoughts of Capitalism. Much of the current trend toward a rebirth of Capitalism is a result of new technology and the creativity it has inspired in the area of commerce. Entrepreneurs are emerging in all business sectors. Americans who enjoy new goods and services and a sense of patriotism economic creativity engenders ask for reforms in government to facilitate further business development.

The current expression in America of this phenomenon, of a demand for government and economic creativity, is not a full destructive critique of Socialist expressions in the American government and economy. Rather, it is an expression of the Janus dualism in human nature. As history indicates, humans are innately inquisitive and acquisitively self-interested. Humans as a species are also affectionate and emphatic. From the beginning of Colonial America until the current presidency, America has evolved in cycles of “boom and bust,” high surges in Capitalist creativity and profit absent imposing regulation to despairs of economic failure and the lessening burden of governmental business safe harbors and social safety nets. This is an example of the philosophical construct of dialectical materialism.

In example, the legislature acts in response to changes in popular will with developments in human history. Citizens ask for a repeal of burdensome laws in times of business prosperity and, in turn, for social measures in times of hardship. Unlike legislators, judges are bound by codes of ethics to abide the rule of law first and foremost as it embodies theories of democracy, fairness and justice. These theories should be immutable regardless of the nature of economic times, regardless of boom or bust. So, to what do we attribute judicial repeal of time honored legal precedent, especially when these changes in the law coincidentally parallel new economic events and changes in popular will?

Judges exercise independent judgment absent partisanship. Yet, in the spirit of Ludwig von Mises and great thinkers from time immemorial, judges acknowledge the essential qualities of human nature – self-interest, greed, empathy and affection. So, too, judicial opinions reflect changes in history and socio-economic developments over time which avail themselves of the Hegelian dialectic as expressed in Capitalist and Socialist theory. An essential question exists as to whether the judiciary must respond to the import of the human creativity these qualities produce and the effect of human creativity upon the community the judiciary governs?

The American public should discuss the nature of governmental reform as expressed by changes in rights and privileges incumbent within the rule of law. The primary focus is the Hegelian dialectic of the Capitalist-Socialist continuum.

Colonial America expressed the dialectical continuum with the beginning point of the existence of the individual rights possessed by Native Americans. The discoverers of the New World were encouraged by developments in the means of maritime travel to conquer the Native Americans and, in Capitalist fashion, usurp their property in a theory of survival of the fittest. Yet, the Colonials stepped away from their own usurper, the English monarchy, through many acts and demands of social welfare, namely the survival of humans as individuals, possessing equal rights of individual self-governance and self-determination in a communal environment. The history of Colonial America is one of synthesis for England imposed tariffs as a large, usurpations government providing for English citizens. Yet, the Colonial and Early Americans, themselves, engaged in a Capitalist plantation economy with Socialist theories of paternalism in the maintenance of the institution of slavery and indentured servitude. Native Americans, even today, benefit from theories of Socialism.

The American Civil War began a critique of the Capitalism of the slave economy. It began with individuals forming the Underground Railroad and the act by predominately Northern slaveholders of permitting slaves to purchase their freedom through learning gainful labor or acts of unrestricted emancipation. The Socialist critique of the then existing Capitalist American economy consummated with the act by President Lincoln of emancipation.

In response, to newfound competition of Americans of African descent, the judicial opinion of Plessey v. Ferguson was issued imposing business restraints upon Black Americans. This, too, is a dualist, synthetic critique expressing Capitalist and Socialist theories. For, it provided a Socialist business subsidy to White Americans thereby encouraging competition at the expense of Black Americans. The Socialist correction was Brown v. Board of Education. Intervening was extensive public reform in the creation of the American Bureaucratic State in the form of the New Deal.

America continues the challenge of the bureaucratic state in the modern era. Much regulation is currently challenged to permit new forms of industry. The Hegelian dialectic provides material synthesis of contradiction and paradox to form new laws from new customs and new legal developments in the private sector of contract law and business formation.

The remedies proposed for the laws currently governing bureaucracies in America are equally along extreme points in a continuum. Some purveyors of conservative legal thought seek a return to theories of non-delegation which would extensively negate the power of Congress to delegate “legislative” power in the form of rulemaking to bureaucratic agencies. More liberal points of view on the continuum would support agencies by expressing great deference to their exercise of rulemaking and adjudicative powers owing to their expertise in highly specific subjects requiring centuries of experience.

In America, we rely upon the judiciary to honor a truly just midpoint along the Hegelian dialectic of Capitalist and Socialist reform. With the U.S. Constitution in place, we will never return to an economy that is too Capitalist or evolve into one that is too Socialist.

Lori Gayle Nuckolls

Are We Changing The Law Governing The Presidency?

Must we acknowledge that previous presidents over the course of American history abided practices, strategies and customs similar to those of Presidents in the modern era? And, similarly, if these principles and practices are centuries old, must we acknowledge that we are imposing a revision of the legal standards governing the presidency if we sanction modern presidents for ages old conduct?

One example of the foregoing would be the foreign policy of President John Tyler, the 10th president from 1841 until 1845. President Tyler confronted the issue of possession by the United States of only part of the Northern American continent and not the Pacific Northwest which was occupied by Britain and Mexico. President Tyler sought these territories, Oregon from Britain and California from Mexico.

Initially, President Tyler proposed a tripartite treaty wherein America would forego 2 million dollars of its claims against Mexico in exchange for California, north of the thirty-second parallel. Britain would be asked to support these terms in exchange for a favorable determination of the Oregon boundary without warfare, one at the Columbia River. Yet, this treaty proposal was not successful. Mexico sought to retain California, and British officials did not wish to unduly pressure Mexico to accept America’s terms.

President Tyler still wished to resolve the issue of ownership of the Northern American continent without warfare. He proposed a tripartite commercial treaty involving the lowering of tariffs. President Tyler sent a private citizen, Duff Green, at government expense to Britain. He informed the American Ambassador to Britain, Edward Everett, that it would be Green’s role to be of substantial service in negotiations.

Even earlier, President Tyler and his Secretary of State, Daniel Webster, contracted with a private entrepreneur, Alfred Benson, to transport Americans seeking residence in Oregon. They were transported with government funds.

In sum, President Tyler engaged in significant acts of foreign relations without Congressional approval or oversight. If we in the 21st century, rather than those of Tyler’s 19th century, are to assert that these types of entreaties into formal resolution of policy issues and disputes are improper, we should have an understanding that we are imposing a new legal standard upon existing custom.

Lori Gayle Nuckolls

How Does America Participate In An International Legal Community?

How do we reconcile our commitment to our capitalist economy with the true underpayment of attorneys in America?  Capitalism possesses a theoretical basis in quality through competition. Yet, our private, corporate sector disavows its obligation to engage professional development through adequate and equal compensation. For, a great disparity exists between executive salaries and those of private sector attorneys, as to both in-house counsel and private law firms. This exists despite the fact that attorneys must attend graduate school at a younger age.

An argument posed by the corporate sector is that business persons, young and old, are paid more because they generate more business, more value added in a capitalist economy. Yet, the business sector must acknowledge that private sector attorneys are within a profession that lofts the overarching common law under which our world exists and under which corporate transactions and technological developments occur. The common law has existed from time immemorial and our modern world recognizes it in an international sphere.

A structural solution must be created that acknowledges that not only do young, private sector law firm attorneys not benefit from term-in-years employment agreements as do corporate employees. They, instead, work on an at-will basis with no employment security. Also, attorneys are governed by ethical codes imposed by law that result in the quality of thought we readily discern. This, in addition to inadequate compensation, creates anxiety and stress in a profession but for the quality of which we would not possess the talents and abilities upon which we rely.

The answer is to begin from the top with our multi-national corporations. These corporate entities employ law firms and pay far less in compensation for the legal services they receive than is acceptable. The stress and professional hardship incurred by law firm attorneys and staff must be mitigated by payment of higher legal retainers by corporations. In turn, government attorneys would also receive greater compensation. For, our society must realize that our taxes paid are necessary for life essentials. If higher taxes are required, so be it.  

How Do We Keep Our Republic?

Should all leaders in all three branches of American government have the same abilities in prudence, wisdom and judgment? And, if so, what would or should be the threshold requirement for those abilities? Further, how should the abilities of a leader be evaluated? And, how may citizens compare the abilities of one with those of another?

The Presidency of the United States of America is one of the three branches of government. Yet, the President exercises powers and functions that comprise a combination of those of the other two branches. As a means of executing the laws enacted by the Congress, the President administers and guides many very large bureaucratic agencies which exercise both legislative and adjudicative functions. As a result, citizens should ask if the President must possess the ability and talents we expect of the other two branches of government in exercising the executive powers? Judges should be wise, prudent and focused upon the rule of law as they deliberate and issue opinions. And, legislators should focus upon the views and will of the public as guided by our Constitution and existing Public Laws as they make new law. Perhaps, all three branches must place justice, fairness and the common weal above the interests of the United States in exercising their functions and duties.  For, though we are citizens of an international community, no one is above the law, the international common law.  

In the words of Edmund Burke, a member of the British House of Commons, a democracy should be led by its natural aristocracy and not by an inherited gentry. The American Constitution similarly founds our republic upon the theory that it is a creature of the people, “We the People.” Yet, the governing majority is deemed a tyrannous majority whose temperament and flaws must be mitigated by the rule of an educated representative stratum. The very existence of the land and government upon which we depend relies upon learned decision making by fairly elected members of America’s best and brightest. By this means, we can keep our republic.  

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