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

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.

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.

Featured

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.

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.