Monday, September 22, 2014

Hippies were right all along

As we approach the 50th anniversary of the Summer of Love, which brought thousands of young people to San Francisco, we should acknowledge that many of the opinions that the hippies were vilified for are today mainstream. The first event in the hippie movement was the Human Be-In, which took place in San Francisco's Golden Gate Park on January 14, 1967.

The timing was critical. The war in Vietnam was claiming up to 1800 deaths a week. Students and young men of draft age staged frequent protests, mostly peaceful, against the war. African Americans asserted their citizenship rights in similar protests. Young African Americans, frustrated by the slow pace of the civil rights movement, rioted in Newark and Detroit, two of the most hopeless and poverty-stricken communities in America.

Hippies were less violent than the rest. They only wanted to be left alone to enjoy life. But the mainstream society found ways to harass the hippies at every turn. Older white men threatened to kill them, calling them Communists--in those days an insult taken seriously. Communities enforced laws against marijuana and LSD as well as rousting the homeless. These police activities united the hippies with homeless people and radical African Americans.

College students, the children of the newly affluent middle class, felt alienated as well, as the government drafted them into the army to serve in the unpopular war in Vietnam.

At this juncture, a new current of history created the Counter-culture. Music groups sprang up everywhere, using the electronic instruments that transformed them from folksingers into bands that competed with symphony orchestras for sheer volume. These newly minted bands became the cheerleaders of the counter-culture, urging their fans to turn on, tune in, and drop out.

Underground newspapers, like the Oracle, the Rolling Stone, and the Berkeley Barb, found a ready audience, fed up with the way the establishment press was whitewashing the Vietnam War. There had been a steady stream of good reports from the front. The government kept claiming the war was almost over at the same time they raised the number of inductees. Soon there were 500,000 US soldiers in Vietnam, most of whom did not want to be there.

Hippies viewed all these developments calmly. They adopted peace and love as their watchwords and eastern religions as their philosophy. In many ways, they emulated hindu and buddhist monks, who took vows of poverty and lived together communally. But they also took advantage of scientific advances, such as the birth control pill, that made free love a possibility. They used drugs developed by science, such as LSD, that provided much stronger ecstasies than traditional alcohol and nicotine.

The most important achievement of the Hippies was that they broke away completely from the pr-driven culture. They rejected popular music in favor of indie rock bands. They rejected alcohol in favor of marijuana, which they believed provided a better experience with fewer side effects. They rejected traditional marriage and experimented with new forms of sexual activity, including open relationships and communal marriage.

As set out by the speakers at the Human Be-In, the goals of the counter-culture--aka hippies--were simple yet profound.

Personal empowerment

Hippies believed in self-expression, no matter what form that expression took. This conforms with the First Amendment to the Constitution, which guarantees freedom of speech. The government attempted to jail hippies for burning the flag and profanity. Today: Court rulings have largely favored hippies, finding that you can't ban speech for one group without banning it for all.

 Cultural and political decentralization

Hippies objected to the society and mass media telling them what music they should listen to and what the definition of "art" was. They made their own music and art, which they used as a unifying principle. They also refused to accept the candidates that major political parties nominated if those candidates were not sympathetic to their views. This led to the rejection of Hubert Humphrey as a presidential candidate. The establishment resorted to force to put this rebellion down, but without success. Richard Nixon became president and proceeded to mock every ideal the Republicans held. Today: Elections have become more open, with primaries that nominate candidates, not political party bosses.

Communal living

Hippies rejected the suburban lifestyle, which leads to single adults living in houses intended for families and wastes resources. Hippies lived in cities and on communal farms. Today: Middle class people are moving back to the cities, abandoning their suburban utopias. This trend will undoubtedly continue as oil and coal become less acceptable for ecological reasons. 

Ecological awareness 

Hippies were mocked for their opposition to clear-cutting and experimentation with live animals. They believed in the interrelatedness of all living beings, so favored vegetarianism and organic gardening. Today: The world is coming around to the hippy position. Whole foods are good; coal and oil are hazardous. Extinction of species has taken on a more serious meaning. Environmental groups are influential in politics. Continued awareness of global warming is likely to make people even more concerned about the environment.

Higher consciousness

Hippies rejected traditional religion. They were looking for a deeper and more personal connection with the divine. They frequently used psychedelic drugs to achieve this end. Today: The interest in meditation and eastern religions is much wider-spread and more main-stream than in 1967. Polls reveal that 16% of Americans meditate daily using a secular meditation practice, while another 9% use an eastern meditation practice.

Counter culture drugs

Hippies used marijuana and many other drugs. The establishment responded with increasingly harsh sentences for marijuana use. Their severe laws filled the prisons with prisoners whose only crime is taking a relatively harmless drug that is not approved by the establishment. Today: The prisons are still full of non-violent drug offenders, but states are beginning to legalize marijuana. Some states, notably Mississippi, have recognized the folly of locking up non-violent drug users and paying for their upkeep, sometimes for years. The great logjam of strict drug laws is starting to break up.

Hippies triumph

Fifty years ago, hippies were attacked and mocked for their eccentric views. Today, their views are either mainstream or becoming so rapidly. The Tea Party are the same folks who mocked the hippies then. These latter-day bigots seem to be dying out and leaving the hippies to inherit the world.

Saturday, September 20, 2014

Robert E. Lee is the most shameful American of all time

Note: This post was written in response to a discussion on the Quora website, where participants elected Andrew Jackson the most shameful American of all-time. I disagree.]

Robert E. Lee was the most shameful American. The Civil War was started in South Carolina. The slave owners who desired the war mostly resided in the deep south, where cotton was grown. At the time of the war (1860), Virginia no longer had a serious slave economy.

Virginia is filled with remembrances of the Lee family, who undoubtedly helped found the United States and win the war of Independence. Robert E. Lee was born into this family of great fame and wealth. He attended West Point, where he was trained to be an officer in the United States Army. He took a solemn oath to preserve, protect, and defend the United States.

Lee broke that oath. He joined the Confederacy and led the Army of Northern Virginia for 5 years. His army slaughtered hundreds of thousands of American soldiers who came to fight against him. In return, his soldiers died by the hundreds of thousands in a brutal bloodbath for which Lee alone was responsible.

When the southern states began to secede, President Lincoln asked Lee to lead the Union Army. Lee was the best general officer in the army and was duty bound to accept the offer of his Commander In Chief, President Lincoln.

If Lee had accepted the leadership of the Union Army, the Confederacy would have had no general who could take his place. Every other Confederate Army was defeated by 1863. The Battle of Vicksburg, which ended the war in the West, was won on the same day that Lee lost the Battle of Gettysburg. Lee could have surrendered at that time and saved the country, his country, and Virginia from 2 more years of pointless slaughter. But Lee fought on.

Although Lee has enjoyed a great reputation as a general, in one aspect at least he was greatly deficient. He fought his battles using Napoleonic tactics, for he had learned in school that massed infantry charges should be employed against massed artillery. 

The Napoleonic wars ended in 1815. The United States Civil War began 45 years later. During those 45 years, technical improvements in rifles and cannon had rendered the earlier tactics obsolete, even inhuman. In particular, rifles carried by infantrymen during the Civil War were far more accurate than they had been 50 years earlier. 

A musket fired during the battle of Waterloo was only accurate at a distance of 35 to 50 yards. In addition, the smoke created by firing muskets so obscured the battlefield that little could be seen beyond a few feet. This made the bayonet, which was attached to the end of the rifle, as important as the bullets fired from the rifle.

By the time of the Civil War, muskets had been replaced by rifled muskets, which had grooves inside the barrels that gave them superior accuracy. Accuracy was improved for both hand-held rifles and cannon. A rifled musket was accurate up to 200-300 yards. In the hands of an expert, it was accurate at 500 yards. 

A rifled cannon was accurate up to a mile. A Confederate soldier at the battle of Atlanta reported that a 3-inch cannon, made from wrought iron, could hit the top of a flour barrel at any distance up to a mile. The deadliest projectiles fired by cannon were canisters filled with shot and accurate up to 400 yards.

As a General who had experienced many such battles, Lee knew the deadly accuracy of the modern arsenal. Yet he persisted in ordering his soldiers to attack entrenched enemies in massed groups, as prescribed in the old manuals he had studied at West Point. 

Lee's reluctance to change tactics led most famously to Pickett's charge at the battle of Gettysburg (1863), where Lee ordered 15,000 infantrymen to charge at the center of the Union lines. The soldiers had to cross 3/4 of a mile of open fields and broken ground.

Pickett's charge was caught in a crossfire of musketry and cannon. On that one afternoon, 5,000 Confederate soldiers died without gaining a single inch of enemy ground. 

Brigadier General Longstreet had warned Lee several times that morning and in the previous days that the charge would fail. Lee persisted.

Longstreet, it turned out, had been right. The extent of the slaughter caught everyone by surprise, though. The Confederate soldiers, when they fought through to the stone wall which sheltered the Union soldiers, turned around, expecting to see battalions of men behind them. But no one was there. The isolated vanguard either surrendered or were killed where they stood.

The deaths of the men who followed his orders should have weighed heavily on Lee, but in his reports of the battle he mostly blamed others.

Obviously others had responsibility for the secession of the Southern states. But without Lee the war might have been over in a few weeks, because there was no general officer even close to him in skill, experience, and military talent. So Lee must bear major responsibility for all the people who died in the war, which amounted to between 850,000 and 1,100,000 people.

All of this death and destruction should be enough to make Robert E. Lee the most shameful American, but one fact alone carries more shame than all the others: Lee had taken an oath of allegiance to the American flag. When he arrayed his troops against it, he became a traitor to his country.

Friday, September 19, 2014

Ferguson Demonstrators Face Trial

The following is a summary of the legal situation stemming from the ongoing protests in Ferguson and around St. Louis County taken from a report by National Lawyers Guild Legal Worker, Kris Hermes. Missourians Organizing for Reform and Empowerment (MORE) has been instrumental in not only providing excellent legal support under pressure, but also compiling and accessing information to be able to make sense of it all.

Since protests began in early August after the murder of Michael Brown, there have been more than 200 arrests:
  * Over 100 reported municipal arrests (mainly failure to disperse, resisting arrest)
  * 35 reported felony/misdemeanor arrests (mainly felony burglary, combined with misdemeanor theft)

We have not been able to track all of the arrestees (due to people not contacting the hotline), which is why the reported numbers are less than the overall arrest numbers. If you know of someone seeking support or who needs an attorney, please get them to call the MORE legal support hotline at 314-862-2249.

Most recently, after a crowd of protesters (and police) blocked a freeway last week in an act of civil disobedience, as many as 36 people were arrested mainly for unlawful assembly and trespass, with one person charged with felony assault on a police officer.

We know of five people still in jail stemming from protests across St. Louis County, and we are actively working to get all of them released as soon as possible. At least two people were shot during protests by unknown assailants, including one person who spent weeks in the hospital but is now home and recovering.

There are three primary organizations currently collaborating on legal support: <>MORE, <>NLG, and <>ArchCity<> Defenders.

With the help of resources from MORE, ACD has agreed to take on all of the municipal cases at no charge to the defendants (so far, however, municipal charges have been filed against only 10 people). One meeting of municipal arrestees was recently hosted by MORE/NLG/ACD to discuss political and legal strategies moving forward, including a discussion on the goals of reforming the bench warrant system in St. Louis and regaining the right to jury trials (a right currently denied municipal defendants facing potential jail time). If anyone knows a municipal arrestee that wants representation, please encourage them to call ACD at 314-827-5062.

With the help of a local Guild fellow, almost every felony defendant who sought representation from Guild or Guild-affiliated attorneys has been provided legal counsel. This work of finding attorneys to represent felony defendants is ongoing, in order to address the continued arrests of protesters on felony charges.

In an effort to better coordinate legal support from this point forward, there are folks working in St. Louis to form a collective of legal workers that can provide this longer term support (i.e. better coordinate and expand the Legal Observer pool, continue to organize pro bono legal representation, track the status of people's criminal cases, organize court support, etc.).

MORE/NLG/ACD and others will continue to provide legal support as long as people continue to be arrested protesting the murder of Michael Brown.

Thursday, September 18, 2014

The Constitution isn't just obsolete: It's completely broken

Francis Fukuyama is releasing a new book describing the dire quagmire of the American republic and what we can do to fix it: Nothing, apparently. Fukuyama is a Fellow with a PhD at a think tank at Stanford University. No, not the Hoover Institute. Fukuyama is miles ahead of the Hoovers, who characteristically pontificate on how great America is and how exceptional it is. Fukuyama has given the matter some deep thought and come to the conclusion that the Constitution isn't just broken, it can't be fixed. In an article in the September/October issue of Foreign affairs, Fukuyama writes:
Political decay...occurs when institutions fail to adapt to changing external circumstances, either out of intellectual rigidities or because of the power of incumbent elites to protect their positions and block change.
And there you have a concise description of what has been happening to the American government for the past 50 years. The entrenched elites (the one percent) have been blocking every attempt being made to share their power with the rest of us. Political decay has set in with a vengeance. Fukuyama goes on:
A combination of intellectual rigidity and the power of entrenched political actors is preventing [American] institutions from being reformed. And there is no guarantee that the situation will change much without a major shock to the political order.
Fukuyama is neither politician (hence incapable of making a decision) nor a diplomat (hence incapable of speaking his mind). He ignores the criticism of Obama's use of executive power. Instead, he argues that the executive branch does not have enough power to do its job and that this lack of power is the source of much recent dysfunction. The United States, he says,
has returned, in certain ways, to being a state of "courts and parties," that is, one in which the courts and legislature have usurped many of the proper functions of the executive, making the operation of government as a whole both incoherent and inefficient.
Readers of Masrizone know how concerned I have been about our decrepit constitution. I am glad to report that one scholar, at least, supports my position.

Wednesday, September 17, 2014

Socialism or Democracy?

Capitalism has failed everywhere it has been tried. The US is the last bastion of corporate capitalism, and everywhere we look we see failures to comprehend and resolve the issues of the day. Yet in one important way, capitalists have succeeded. The top capitalists, the one percent, control more than one third of all the wealth in the country. The rich have succeeded by a series of political maneuvers that have each left a residue of wealth on them, like the ring in a bathtub.

1. The ultra-rich have defeated trade unionism.

The unions once challenged the ultra-rich at the ballot box and won concessions that led to a higher standard of living for all. The ultra-rich countered by passing laws like the Taft-Hartley Act, that nullified New Deal legislation favoring unions and made it possible for companies to kill unions outright. The ultra-rich blamed big unions for the loss of jobs in heavy industry, like steel production, automobiles, and the garment industries. Common people believed the propaganda against unions and stopped supporting them.

2. The ultra-rich have harnessed the government like a mule.

While they decry big government, the ultra-rich are the ones who profit most from it. The war-mongers in congress pay $500 billion or more annually to the ultra-rich to provide guns and bullets and other materials of war--when there is no war going on! The super-rich also get subsidies for various industries like farming and oil extraction. 

Passing democratic social programs will mean unemployment benefits that don't get cut off, living wages determined by unions, medical care for all, day care for working parents, controls on Wall Street and hi-tech entrepreneurs, rent support, and other improvements in the lives of ordinary citizens.

No doubt conservatives will oppose these reforms the same way they oppose gay marriage, by saying that these democratic measures will harm business in some utterly vague way, without giving any details about how that harm will happen or how it will happen. Trouble is, conservatives will have a tough time selling these fears because their policies over the last 20 years have resulted in stagnant wages, permanent unemployment, urban disintegration, and jobs being created everywhere in the world but here.

3. The ultra-rich have set up a system of propaganda that includes a TV Station (Fox News(, a once-proud newspaper (Wall Street Journal), a bunch of loudmouth radio hosts, a sizable number of front groups masquerading as think tanks, and the finest Congress money can buy.

4. The ultra-rich have used defects in the US Constitution to control the government without actually winning elections. They have an unelected Supreme Court doing their bidding, dozens of gerrymandered house districts, and a bunch of Senators representing the trees in small states.

When liberals try to change the way things are today, the ultra-rich raise cries of socialism, which sounds ominous but which has lost all meaning. Socialism is actually the result of democracy, where the majority gets to govern.

NY Post publishes fictional article on war in the middle east, calls it news

An article has appeared in the New York Post, presumably to convince us all how dangerous ISIL is. They have lots of money, see?

This article uses a lot of guesswork. It says ISIL is smuggling oil by paying off border guards. Smuggling oil is awfully hard by truck and oil trucks make easy targets in the middle of the desert.

The article says ISIL controls "up to 11" oilfields. In other words, the "intelligence sources" have no idea how much oil ISIL has or whether ISIL are successful pumping it and selling it. Maybe ISIL, primarily an army of thugs, can pump oil. Maybe they can't. In any event, the oil fields can be shut down quickly with a couple of drone strikes.

The article says ISIL is getting money through extortion and other criminal enterprises. That is entirely believable. But money is hard to hide and ISIL won't have an easy time buying weapons with it


The US goes ahead with its idiotic plan to arm anti-Syrian rebels, who are known to be allies of ISIL. Then the anti-Syrian rebels, our supposed allies, will be able to sell weapons to ISIL, and the US will find itself giving weapons to the group it claims to be fighting.

War Against ISIL: The arms merchants can't survive without another decade of war

The Islamic State of Iraq and the Levant (ISIL) is an Islamic military group that has seized a large area of land that used to belong to Syria and Iraq. ISIL has a Sunni Muslim orientation, not coincidentally the same orientation as Saddam Hussein, former dictator of Iraq. Many people do not realize that ISIL has the same basic religious philosophy as Saudi Arabia, Wahhabism, although ISIL takes it to a different level of violence and intolerance.

Wahhabism is a fundamentalist strain of Islam. The Saudis adopted Wahhabism because they needed to kill other muslims to take over the Arabian Peninsula, and Wahhabism gave them the philosophical excuse to do so. According to Wahhabism, many traditional practices of ordinary Muslims are sacrilegious. So, although the Koran forbids the killing of a Moslem, Wahhabism practically advocates it.

Saudi Arabia has used its treasure from oil to spread Wahhabism throughout the muslim world. Wahhabism preaches the responsibility of Jihad against muslim heretics. The Saudi royal family has done this to cement its self-proclaimed role as guardians of Islam and protectors of Islam's holiest sites: Mecca and Medina.

It was only a matter of time before other groups jumped on the Saudi's extremest bandwagon and started to play the favorite game of conservatives, "Who's the most regressive?" Osama Bin Laden played this game by attacking the "great Satan", the Saudi family's close ally, America. Now ISIL is playing the same game, this time by advertising itself as a pure form of Islam that will not tolerate any foreigners on the soil of the Caliphate.

The Caliph was called the Protector of the Two Sanctuaries, i.e., Mecca and Medina, the role that the Saudis have played for the last century. The Saudis are much more concerned about ISIL as rivals than they were about Saddam Hussein, because Hussein was no threat to supplant them as a religious leader. They did not join George Bush's war against Saddam, but they have already promised air support for the war against ISIL.

While ISIL is a threat to the Saudis and to Syria, they are not much of a threat to the US. ISIL has only regional appeal and power. They are not much worse than the Saudis in terms of their oppressive laws. Look at the laws of Saudi Arabia and you will see that ISIL is their clone.

Now Barack Obama has promised to destroy ISIL. On the face of it, this promise appears less ambitious than Bush's promise to destroy all terrorists, everywhere. Certainly the campaign to destroy ISIL has a stated goal. Like the Iraq War, however, the war against ISIL could be long and costly, once again playing a role in the politics of the Middle East.

While the war against ISIL has a goal and a definite purpose, it is just as open-ended as the Iraq War and the War in Afghanistan. It is a war against an ideology, not a political state. Weapons that kill people have little effect on ideologies other than to intensify them.

Obama should have refrained from making war on ISIL. It's not clear why he chose to fight openly against ISIL but not against Syria. Perhaps he is afraid that ISIL will defeat Syria in the bloody civil war they have been fighting in that country. If so, he has made a critical error, committing America to a war because he is afraid of the consequences of not fighting.

The US should not be fighting in the Middle East, or anywhere else for that matter. To do so will further erode our national treasure and push our people further into poverty and despair. Money that should go to help the people will instead to to the arms merchants and their pawns in the Congress. This is a dark day for America, only the latest in a series of dark days.

Saturday, September 13, 2014


Since the end of the Middle East wars, Americans have been adrift. The neocons had an easy time convincing us to go to war because Americans have a mission to have a mission. We feel in the core of our being that there is something important in the world that needs doing, and we have elected ourselves to do it.

Our attitude toward religion has something to do with our missionary fervor. Our religious leaders are always pressing us to go out in the world and do good. About one-third of the 400,000 Christian missionaries in the world are American.

It used to be argued that the American frontier shaped our psychology. But the frontier was closed over a century ago. Something else, more fundamental and as yet unknown, impels us always to strive, to invent, to investigate.

The list of possible jobs outside the fossil fuel industry is amazingly long. Many are already available: making houses energy efficient, building solar electrical generators and windmills. Money invested in mass transportation creates several times as many jobs as money invested in traditional energy sources. The US has excelled in innovation, and there is plenty of room for innovation in new materials for batteries and electric vehicles.

Rich countries will need us to build giant power plants. Poor countries will need us to continue developing small, efficient power generators, especially for remote areas not connected to a grid. All the opportunities are there, waiting for investors, but instead of investing in new, exciting technologies, the energy industry is spending money to convince people that change is frightening, expensive, and unnecessary.

The adverse publicity, the joining together of a minority to attack the interests of the majority, the vast amounts of money spent to preserve an economic advantage (rent-seeking). These are common Republican tactics. They are always rent-seeking instead of innovating.

Change will come, but we need it to come faster, especially at a time when the economy is still staggering from the loss of all the money that disappeared into Wall Street. We need a large project, like the New Deal, the Interstate Highway system, and the Apollo Space program all rolled into one. We need someone like JFK, LBJ, or FDR to inspire the American people to once again achieve greatness.

Those who have inspired us: John Kennedy with the New Frontier, Lyndon Johnson with the Great Society, and Franklin Roosevelt with the New Deal. Each of these presidents united the people to work toward a higher purpose.

No surprise that they're all Democrats.

Response to Robert A. Hall

[This post is a response to this post]

To Robert A. Hall,

Thank you for your response. I am doubly grateful because you pointed out several inaccuracies in my original post. I always like to be as accurate as I possibly can.

I sympathize with your personal problems. I am 61 and have a grandson. I also love people who seem incapable of caring for themselves. Your problems are not unique.

My post was not written as a personal attack on you. It was written in response to the person who sent it to me, also a former marine. He was depressed and troubled by your opinions, which have been circling around the internet for some time now in the form of a chain mail. I know you are not responsible for that. Our creations go forth and live their own lives apart from our intentions.

You express some very harmful opinions in your original post. The result of these opinions will be to demoralize many people and prevent them from voting. Your post is being circulated by people who wish to influence the upcoming election by keeping people away from the polls. A strong example of this is the ad run against Senator Reid in Nevada which explicitly tells hispanics, in both the English and Spanish versions, that they should not vote in this election.

I have published your email as a blog post to ensure that your objections are registered. I do not consider any of my comments as lies, but rather inaccuracies that have now been corrected.

Your original post, however is laced with inaccuracies that can't be corrected because the email containing it has gone viral. You need to be more careful of what you say. You have a great deal of anger that you seem to direct without reason at Democrats, the poor, Muslims, and latinos.

You blame Democrats for the decline of the stockmarket, which you state began when they regained control of Congress. This coincidence of timing is no proof at all. You can't claim that something caused something else just because it followed after it in time. You are intelligent enough to know that many books and articles have been written explaining the financial meltdown. You are the only one I know of that blames the Democrat's electoral success for it. Although you are intelligent, others may not be. They may accept your opinion and act upon it.

You also claim that the press has been less critical of Obama than it was of Bush. This is nonsense. Fox News spends all day every day criticizing Obama, for everything from his haircut to the shoes he wears. There was no similar relentless attack on Bush at any time during his administration, as studies have shown.

You claim that you must be right because more people agree with you. Your blog has many more followers than mine. This is true. But you use spam to increase your readership, and you pander to the ignorance of your readers. I consider both of these techniques unethical and I would not use them.

Thanks again for your response.

Allan Masri

Monday, September 8, 2014

The Right of Return: Israel's Argument Against Palestinian Rights

A major obstacle to peace in the Middle East is Israel's refusal to admit the existence of a "Right of Return" for Palestinians. Since its war of independence (1947 -1949), millions of Palestinians have been living in an uncertain state, without a country and without a knowable future. Many of these people were living within the limits of the current state of Israel before they fled their homes and took up residence abroad, mostly in areas today known as Gaza, the West Bank, and the Kingdom of Jordan.

The right of Palestinians to return to their homes would seem relatively straightforward under international law. The Cambridge Journal of International Law lays out the case with seven different lines of argument:

  1. Inter-State Nationality Law, which states that a refugee has a right to return to the place where he habitually resided before he left that place;
  2. law of State Succession which grants to a refugee (or resident) citizenship in a newly-formed country where he habitually resided before that country was formed;
  3. human rights law: the Universal Declaration of Human Rights states that everyone has the right to leave a country, including his own, and return to his country;
  4. International Humanitarian Law: The fourth Geneva Convention outlaws forced transfers of individuals or groups from one state into another. The denial of return amounts to deportation and deportation is considered by the same Convention (section 147) as one of the grave breaches or war crime;
  5. refugee law;
  6. UN law; and
  7. Natural/customary law.
These arguments would appear to be convincing and persuasive on their face. But lawyers and politicians can find a fault with almost any argument. Israel has developed a line of reasoning under which it is not required to let refugees who left Israel to return to their homes, or to receive compensation for property that was taken from them.

These arguments are, as set out in Wikipedia* (along with my comments):

  • Those Palestinians who were living in Israel at the time of its independence should not be considered citizens of Israel because most treaties do not require a state to give citizenship to all its inhabitants. The question of citizenship almost invariably involves the person's birthplace. A country should have a valid reason for denying citizenship to someone who was born within its borders.
  • The Universal Declaration of Human Rights was adopted solely by the United Nations General Assembly and is non-binding. Non-binding is a technical legal term that means a court does not need to accept an authority as absolute. It does not mean that a court must reject the authority, however. In English law, a court would be free to accept another authority instead, but in the present case, the other authority is missing.
  • That UN Resolution 194, which states that residents wishing to return to their homes, is non-binding.
  • That UN Resolution 194 states that those residents willing to live at peace with their neighbors should be allowed to return home. This argument is meaningless, since Israel has never permitted any residents to return under any circumstances.
I don't find all of the Israeli arguments persuasive, although I recognize that they should not have to accept treaties they did not ratify nor UN resolutions that were passed to stigmatize and isolate them. Nevertheless, all these legal arguments will convince no one who is not already convinced; they are only so much air that ruffles the waters but fails to raise a decent wave.

The Israelis need to accept that they and they alone can bring about peace with their neighbors. They will have to give up the Jewish state envisioned by Zionism. But they will achieve a democratic state in cooperation with their neighbors which alone will assure their survival in a hostile region.

*I do not apologize for using Wikipedia as a reference. While Wikipedia has its weaknesses, in that articles can be altered abruptly, they can also be corrected quickly, and both sides of every argument will receive a hearing. By contrast, other encyclopedias have been published years ago, often before all the facts of an entry may be known, and always before editorial prejudice has been recognized.

Saturday, September 6, 2014

The Myth of Constitutional infallibility

Jonathan Turley, law professor at George Washington University School of Law, has recently issued some startling opinions about President Obama's conduct of the presidency. When the President ordered air bombardment of Libya in 2011, Turley represented Congress in its lawsuit, Kucinich v. Obama, to stop the exercise of the President's war powers. In his analysis of the reasons behind the suit, Turley wrote
The Framers spoke repeatedly and forcibly of their desire to bar presidents from committing the nation to war without congressional authorization and inserted an express limitation into Article I.
By invoking the Framers--i.e., the political theorists who wrote the U.S. Constitution--Turley slipped down the rabbit whole of Constitutional Infallibility. Arguments about what James Madison believed or intended to produce in the Constitution are irrelevant to modern day problems because the Framers could not foresee the circumstances of modern life.

Time in the early years of the new Republic ran much more slowly than it does today. For example, the Battle of New Orleans was fought on January 8, 1815. Hostilities continued in Louisiana until January 18. But the Treaty of Ghent, which ended the War of 1812, had been signed on December 24, 1814. So the news that the war was over took 25 days to reach the battlefront.

Under such circumstances, Congress had plenty of time for such things as declaring war and debating strategies. Today, that time lapse has vanished. The President has to make decisions within a window of opportunity of hours, not days. The mechanizations of Congress and the Courts are too slow to cope decisions that require immediate actions.

The problem with falling down the rabbit hole of Constitutional infallibility is that you are likely to meet Justice Scalia coming back the other direction. In dissenting to NLRB v. Canning, Scalia wrote
The majority's insistence on deferring to the Executive's untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a diminution of this Court's role in controversies involving the separation of powers and the structure of government.
Scalia was referring to the power of the President to make recess appointments. The Republican members of the Senate determined to oppose every appointment proposed by the president, regardless of its individual merits. They refused to let Obama appoint sufficient members of the National Labor Relations Board to make a quorum, thereby effectively nullifying the NLRB's ability to act. Scalia's opinion meant that the Constitution is obsolete, because the Senate never actually has a recess and therefore the president has no power to make recess appointments as specified in the Constitution.

Scalia and Turley may not agree on many political points, but they do share the conviction that it is very important to interpret what the Constitution says on any issue, even those on which the Constitution is silent. I contend that this agreement is facial evidence that the Constitution is broken.

The Constitution is broken because the Framers lived 200 years ago and are separated from everyday reality by 200 years of history. They are therefore profoundly ignorant of the conditions of modern life. Although possessed of massive legal expertise, the Framers were not clairvoyant. Using their opinions to make decisions today makes as much sense as calling in a spiritual medium to reveal the thoughts of James Madison.

The primary harm caused by this mummery is that the average citizen has no idea what the laws of the nation are at any time. A written Constitution made sense 200 years ago, but trying to fit modern laws to its procrustean bed makes no sense today. True, a cottage industry has grown up around such efforts, and Justice Scalia and Lawyer Turley both benefit from Constitutional controversy. But the rest of us do not. It is time to reset the scales of justice in a sensible manner and quit relying on the scribblings of the past to guide our conduct today.

The myth of Constitutional infallibility is just as injurious as the myth of divine infallibility, which supposes a supreme being who knows all things. In both cases, individual interpreters can pretend divine inspiration and contravene the decisions of legislatures and democratic elections. The nation should be governed by laws, not legends.