The Economic Question, an Answer

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

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

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

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

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

Lori Gayle Nuckolls

The Economic Question

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

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

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

Lori Gayle Nuckolls

Judicial Review and the Separation of Powers

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

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

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

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

Lori Gayle Nuckolls, Esq.

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

The American Public has transformed in the past 50 years into a continent and attendant states and territories of true understanding, education and complexity. The talent, training and acuity of virtually each individual are virtually discernible at a glance.

In a time of increasing obligations of self-government, we owe much to our young people. Academic tracking with the very young is ethically feasible. College preparatory education, based in Classical Greek and Latin, should begin during preschool years. The children are there and so is the curriculum.

Lori Gayle Nuckolls

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

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

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

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

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

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

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

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

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

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

Lori Gayle Nuckolls

The Modern Democracy and The American Common Law

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

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

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

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

Society and Government?

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

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

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

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

Lori Gayle Nuckolls, Esq.

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.

The Purpose of a Constitution

The primary goals of American criminal law are, in an order most severely an exercise of state power and authority: (1) revenge, (2) retribution, (3) deterrence, (4) restitution and (5) rehabilitation. One must, thus, conclude that our country imposes a “moral law” upon all within its boundaries which sets forth absolute proscriptions and imposes certain duties and obligations. (Kant, Immanuel. Fundamental Principles of the Metaphysic of Morals, Preface.) Yet, these specific purposes and principles underlying American criminal law are not literally found in either the constitution of any state or of our nation. Rather, these constitutions set forth many more abstract principles and purposes, to establish a rule of, and by, law in behest of general good government, justice and the common weal.

This November election, a proposed amendment of the Ohio constitution, which dates, in its present form, from as early as 1851, would provide credit for time served if an inmate agrees to participate in rehabilitation and guidance. Only those convicted for possession and or use and not sale of a controlled substance would be eligible. This amendment would also revise the Ohio constitution to prohibit the criminalization of mere possession and or use at a level of severity accorded the treat of felony crimes, and, instead, deem mere possession and or use within the classification of misdemeanor.

The purpose of this and other specific provisions requested in the amendment would constitutionalize the governing principle that mere possession and use of illegal drugs, without the intent to sell, is a crime only against oneself and without the motive to profit from the criminal acts and self-flagellation of others. The premise is that the public good and public interest do not benefit from strict penal treatment based upon public motives of revenge or retribution. Rather, the public good is better served when those found only in use or possession are guided toward rehabilitative reform and a form of social inclusion not premised upon drug use.

One would deem these thoughts to be the moral philosophy or moral principles of the amendment, Issue 1 in Ohio on November 6th. But, should such specific purposes and principles rise to the level of a part of a state constitution?

Some suggest that the proper drafting and interpretation of a constitution should remain derived from the meaning of its original text at the time of adoption. Some suggest that the interpretation and amendment should view the original text in our current era; that, the three branches of government should serve the public good by empirically revising a constitution’s text and principles to reflect subsequent human facts and events. An empirical view distinguishes from the a priori view of originalists. Both views utilize wisdom and judgment.

Our nation upon its founding, and later the State of Ohio, constituted a democratic republic. Yet, constitutional amendments, state and federal, have made America more representative and more democratic. America once resembled the world of the Lords, Barons, landed gentry and serfs of Europe, when inheritance determined one’s whispering in the ear of the divine right monarch. On November 6, 2018, one need not own an interest, in any form, in real property in order to cast a ballot.

Then, should our view of state constitutions change? Our representatives are still our representatives. Yet, they are no longer per se, by virtue of social and economic class alone, the only ones among us with sufficient access to education and information to properly effectuate the duties and responsibilities of an elected official in our three branches of state government.

Should and must state constitutions provide greater and more specific guidance to our state legislators, should the constitutions “pull on the reins?” In modern times, not all state legislatures are comprised by America’s natural aristocracy, as the founding principle of American government envisioned and still required by Sir Edmund Burke. The great distribution of residents and commerce over the breadth of the American states and territories is so great that there are not enough formally educated natural aristocrats to go around. State Representatives are diverse, and their districts are more self-governing and self-sustaining than in the times of land baron dominance. They are no longer elected from rural areas without academic resources needed for participation in state government.

Consequently, our complex society requires that even the most educated among us must look to theories of specialization and expertise. Our three branches of government, state and federal, rely upon career legal counsel and formal substantive divisions in each branch.

In returning to Issue one, should the Ohio constitution be more responsive to the changes in our society since its founding? Are the proposed revisions of Ohio law needed to guide a state legislature whose members will forever be less well versed than practitioners? Or, with greater funding to provide additional legal counsel and substantive personnel, could the Ohio General Assembly readily delineate a similar program, itself, with fair review by its diverse representatives as provided in a democratic republic? In modern times, what is the purpose of a democratic constitution and what should it contain?

Lori Gayle Nuckolls, Esq.