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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 6^th, 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 6^th? 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

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 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.

Philosophy, Law and Politics

Law Is Our Only Legally Required Social Didactic

Do we only garner community support and respect when we firmly plant our feet in the soil, or, in our concrete of modern times, and discuss our world from top to bottom. Those concerns of science are most significant and are necessary to our daily, quotidian existence. They are on top and are accorded a greater priority than those related to aesthetics and art. We respect our civilized lives, culture and government, as our governments have arisen from more, primitive versions of written governing documents: federal, state and local. We defend the rights and privileges our democratic republic grants and pledges to ensure to citizens and, in some cases, residents not yet citizens.

Every citizen, and those not yet citizens, in America, possess details that give rise to abstractions as attributes of personhood. Our American soil and modern concrete imparts into our indicia of personhood, and synergizes within our American populace and guests, a refinement of our civilization.

Americans will refine society until achieving natural extinction of our planet. America’s continuing writing of its history, and the contributions of its history makers, will share within the pages. In learning how to make and share history, we must explain the puzzles as we solve them. We mature within the course of both our history and our future, and the varied social institutions. More importantly, we must explain our popular lawmaking, both within the formal, authorized bodies of government, as well as lawmaking through the informal popular influence of citizens and residents.

Each law in America is an historical fact, from our legislatures as statute, and as common law and law at equity from state and federal judiciaries. (See, Maine, Henry Sumner. Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas, Chap. IX.) As the history and nation grows and refines, commerce advances, and our world increasingly becomes more complex as do the contracts governing transactions. Legislatures enact and reform statutes. Governmental agencies study and regulate specialized subject maters. Our courts define words, review state action and rule upon issues of law and fact.

The communities we live in grow to more and more contain aesthetics, literary attributes, sciences, and technologies. Our laws increase to permit our use, and our continued revision of our laws permit their continued use. Most of our new laws arise from contracts between two or more parties. Contracts impart principles of fair and honest dealing, which Judges — elected and appointed — review and interpret, with justice and fairness to the parties, the legal community and society. The contracts increase in complexity and sophistication.

Generationally, each of us, as did our predecessors and as will our future descendants, gleans a sense of self. This sense of individual, personal morality exists distinct from our popular majority’s collective value system we voluntarily self-impose. (See, Twain, Mark. The Adventures of Huckleberry Finn, Chap. I.) All the laws of the community, as well as the values embodied within us, create a sacredness we and government respect. (See, Maine, Henry Sumner. Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas, Chap. IX.)

In the words of my father, Charles Butler Nuckolls, Jr., a retired history teacher: “patriotism is a love of country not for what it is, but for what it is able to become.” Our personal and collective morality, and the laws arising from them, are to be revised and remedied if we are to be properly accorded respect thereunder.

Lori Gayle Nuckolls, Esq.

Philosophy, Law and Politics

Partisan Politics Be Damned!

I am no longer registered to vote in the United States. I formally resigned my registration in writing last year. I decided that I could no longer be silently accountable for the opinions of any one candidate or office holder for whom I may have voted.

My own political views are not of any one political party nor of any one political party platform. Last year, at 56 years of age; as a lifelong Democrat; as a former student President of the Wellesley College Democrat Club; as an eldest child and only daughter of a retired History teacher who “rubber stamps” the Democratic Party sample ballot at the polls, and who once served as a Democratic Ward Chairman; and as, myself, a former Democratic Precinct Executive who served by appointment in an unrepresented district in which I did not reside and, consequently, in which I could not stand for election, I formally switched parties and now pay national dues to the GOP (the “Grand Old Party” or the Republican National Committee).

I believe that the Republican Party in America professes and is held accountable for a belief in fundamental principles and the rule of law. Thus, their members must offer arguments and critiques based upon an assertion of fundamental principles and reasoning, supported by fact. My personal views and opinions will always differ in some respect from those of others, regardless of political party. Yet, neither candidates nor the rank and file members of any political party should deem themselves possessing a right to deny the necessity and merit of method, regimen, logic, and procedure, for without these guiding principles of democratic society and government, we will not have justice, equity or fairness, no less an equal right of participation.

American Democrats do profess these notions. Though, even with the Clintons, Obamas, and U.S. Attorneys General Reno, Holder, and Lynch, American Democrats expect to be believed and supported merely upon offering time honored liberal sermonizing, without reasoning, without a demonstration of fact, and without a suggestion of specific future action, conduct or policy reform proposals to support their time honored liberal sermonizing. For all the Democratic colleagues across the nation, one would imagine that every Democrat standing for election might easily obtain a great, new legislative proposal for his or her back pocket that could be brought before the public for discussion during the campaign season. The long honored Democratic Senator Robert C. Byrd carried a popularly available edition of the American Constitution in his breast pocket. Where is theirs? Most Republicans are not so flawed.

Lori Gayle Nuckolls, Esq.

Philosophy, Law and Politics

Promoting Reasonable and Consistent State Agency Regulation in Ohio

Proposed new regulations of Ohio Executive Agencies are reviewed for adequacy by the Ohio Joint Committee on Agency Rule Review, composed of members of the Ohio Senate and House. In the current proposed revision of Ohio law governing the Joint Committee on Agency Rule Review (SB 221, amending Ohio Revised Code 106.021), perhaps it should be made mandatory that JCARR undertake review of whether a proposed regulation is contrary to law and similarly be required to request an invalidation of a proposed rule by the Ohio General Assembly upon making a finding that a proposed regulation is contrary to law. Under current law, both are left to JCARR’s discretion.

Mandatory review and invalidation is necessary because JCARR should be precluded from permitting unreasonable proposed rules and regulations to become effective. A regulation must be reasonable to be lawful. Agencies should adequately justify their decision making with sufficient analysis and explanation. It is the duty of JCARR to ensure as a balance and check on government that the agencies make wise and reasoned policy choices. JCARR does not supplant its policy choices for that of the agency, rather it only looks to the due and proper procedure and basis upon which the agency relies for the rule its seeks to promulgate. Such a requirement of reasonableness would result in regulation that is consistent with and does not conflict with governing law, without first relying upon a court for judicial review after the harm has been done. No committee of a state legislature should have within its discretion non-action upon arbitrary and capricious proposed agency regulation.

A review of the possible “adverse impact” of a proposed regulation is a preexisting requirement as to Ohio Revised Code 106.021(F). Usually neither an analysis nor finding of a possible adverse impact is reported for consideration as to the validity of a proposed regulation. Review of potential adverse impact usually merely addresses fiscal, business considerations, and not the substantive analysis required in legal drafting.

SB 221, Line 103, amending Ohio Revised Code 101.352, proposes to permit JCARR to seek an agency’s appearance to explain whether current rules reflect the principles and policies of the agency, or rather whether the agency should propose new rules that establish its present basis for regulation. Yet, this duty is permissive and subject to JCARR’s discretion and is not mandatory, even if JCARR is on notice that an agency’s regulations are not up to date? Would a mandatory provision place too great an administrative burden upon JCARR?

SB 221, Line 134, amending Ohio Revised Code 101.352, similarly permits that upon initiating review of an agency’s regulations and receiving an agency’s testimony at a hearing, JCARR “may” but is not required to vote upon whether to recommend that the agency review its regulations. Would making the vote mandatory create a violation of the separation of powers among the legislative, judicial and executive branches? Or, would it no more enhance the power and authority currently permitted JCARR than the creation of its power to review proposed executive agency regulations in the first instance?

SB221, Lines 1541-1619, amending Ohio Revised Code 121.931, permits a person to petition an agency to request a review of whether the agency has not properly revised or restated its regulations. If the agency denies the petition, the petitioner may appear at an agency hearing. In such a proceeding, how is the agency’s standard of review – that the petitioner has shown that the agency’s action in not revising its regulation is “erroneous” – to be defined? Is the burden of proof borne by the petitioner – that the agency’s previously stated “intention to deny the petition [for revision] is erroneous” — the same as a required showing of erroneousness by the petitioner as to the agency’s rationale for not granting the petition and undertaking a revision or restatement of the rule? Does an inquiry as to whether the agency’s action is erroneous go only to questions of fact or also to whether the agency may have committed an error of law? Is a finding of erroneousness too high a standard for the petitioner to bear? Given that a petitioner may not appeal a denial of a petition within the agency, is an agency denial of a petition a final agency action permitting judicial review?

America Relies Upon a Learned and Informed Public

In the United States, as a country of a majority population that is not indigenous to its North American soil, how do we reconcile nationalism and democracy? As a community of diverse ethnic origins and heritages, diverse faiths, and diverse periods of time resident within the county, can an existence of a nation-state community ever be achieved? Does the theory of the “melting pot” of an immigrant nation undo properly existing cultural lines of identity that are distinct, have merit and are centuries old?

We should encourage a community diverse in cultural identity that lives under the governing principles of American democracy: equality, freedom, and justice. In America, its people have freely chosen to reside under America’s governing principles. Citizenship and the rights of noncitizen residents transcend the diverse cultural identities of national origin. America’s governing principles, constitutions and laws create an equal right to personhood and identity that transcends governmental decision making based upon stereotypes and, especially pejorative, presumptions. The rule of law does not look to one’s culture, ethnicity or religion.

The governing principles of America are created, respected and maintained by an academically learned intelligentsia that exercises a just governance of the majority. An educated public and deference to individual merit and ability are the foundations of a democracy. A state cannot survive without an educated public, whether possessing one or many national identities.

In our world, only representative democracies are viable forms of government. Direct democracies defy the economy of scale required for complex decision making and regulation in the modern age and are not even attempted. Dictatorships, with the veil of legislative and military decision-making especially during the post-colonial period the 1900’s, can neither demand nor evoke a legally compliant population of self-governing individuals.

Without a public that understands the principles of America as a country from a young age of early education between grades 4 to 6, with reaffirmation in between both grades 7 to 9 and grades 10 to 12, our public will not be able to participate as citizens and residents as they engage in specialized careers of science, business and nonpublic policy fields. Thus, all college students should have a required course in the fundamentals of American government.

All in America bear the responsibility of treating all among us as free and equal, with rights and privileges of fairness and justice. Our world is complex, and all Americans must be sufficiently learned to debate and understand America and their own place in the world.

Lori Gayle Nuckolls, Esq.

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We Should Share Our Political Faith

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

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

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

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

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

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

Lori Gayle Nuckolls