Category Archives: Legal/Constitutional

Come the (Green) Revolution, Please!

The Green Party of England and Wales is extraordinary. Whilst I’ve no idea whether it’s very different to other Green Parties around the world, it is totally different to any other large political organisation in Britain. Full disclosure: I’m a member of the Greens, so obviously I have some partisan interest. Nevertheless, I think I can prove beyond reasonable doubt that it is extraordinary.

Arguably the single most important extraordinary feature about it, compared with other large political parties in Britain, is that it has a written set of guiding principles, together with a multitude of written policies that it claims it would implement in the event of a Green government coming to power. This body of work, titled “Policies for a Sustainable Society” (PSS), is wholly controlled by the membership, and cannot be altered on the whim of its leaders. This alone sets the party aside from the Labour Party, for example, which has the biggest membership in the country, but no equivalent of the Greens’ PSS.

I couldn’t believe this when I was briefly a member of Labour – the fact that it has no written core principles. All it has is whatever the last election manifesto was. The shallowness of this situation is obvious: Labour “principles” are determined by a handful of people just prior to an election, and are wholly dependent on those few people. That’s why its leaders often refer to it as a “broad church”, suggesting that no matter what your political beliefs are, Labour will welcome you with open arms. It’s also why two people as ideologically far apart as Tony Blair and Jeremy Corbyn, for example, can somehow lead the same party – and preside over the preparation of two totally different election manifestos, and hence two totally different, and opposing sets of principles.

So the mere existence of the Greens’ PSS, making the party fairly impervious to the weaknesses and fallibility of leaders, is truly exceptional. It creates a party where written verifiable ideology trumps vague and vulnerable personality cults. But that’s just the start. The actual contents of the PSS are nothing short of breathtaking.

I recently completed a short summary of the PSS. It’s about twenty thousand words long, and I reckon it has only about 10% of the detail. I did it because the PSS is such a large piece of work that I’m sure most GP members probably haven’t read it, and therefore possibly don’t understand the full extent of the beauty of their own party. And “beauty” is the right word for it, because what it describes is a world that’s so completely different to the one we know, and so infinitely better, that it is indeed a beautiful creation. Far from being something of an ordeal to pore over a detailed political ideology, I found myself savouring what I was doing, frequently smiling, feeling uplifted, and thinking this is exactly the sort of world I want to live in.

The PSS opens with two short sections that in my summary I’ve called the “key facts”. The very first words state that:

The Green Party isn’t just another political party. Green politics is a new and radical kind of politics.

Ten Core Principles follow, summarising the Greens’ commitment to rescuing our dying planet, pacifism, economic justice for all, and constitutional reform based on direct democracy.

Next comes a slightly longer section about the Greens’ Philosophical Basis, which obviously supports their Core Principles, but with a little more detail, such as:

A system based on inequality and exploitation is threatening the future of the planet on which we depend, and encouraging reckless and environmentally damaging consumerism. A world based on cooperation and democracy would prioritise the many, not the few, and would not risk the planet’s future with environmental destruction and unsustainable consumption.

It’s interesting to note that the slogan the Labour Party used so successfully in last year’s elections, “For the many, not the few”, is remarkably similar to what the Greens have been saying for many years.

Those ten Core Principles, and the couple of dozen points in the Philosophical Basis, run like a golden thread linking every one of the hundreds of sections that comprise the full PSS.

Constitutional Reform

Arguably the most significant section of the Greens’ policies are those around constitutional reform, because what the Greens propose is not just a change of actors performing the same play on the same stage – which is the only purpose of most general elections – but a major reformation of the way politics works in Britain. Take, for example, two of the opening principles in the section on Public Administration and Government:

Britain still has many of the elements of its feudal past, including some remnants of the royal prerogative. We believe that the basic principle of Government should be the reverse of this, that is that power flows upwards from the people, and from their most local levels of Government to the higher levels…

All decision-making and action throughout all levels of government, including international government, shall be governed by the principle of subsidiarity: namely that nothing should be done centrally if it can be done equally well, or better, locally…

The highest form of democracy is direct participation.

To help achieve this the Greens further propose:

The basis for a decentralised society and the establishment of a Bill of Rights must be laid out in a clear and accessible written constitution.

This is no trivial point for a country that has never had a written constitution, and a country which, although no longer the global power it once was, is still a significant player on the world stage. But the Greens are not proposing just any old constitution that just perpetuates the ancient and very corrupt status quo:

A written constitution will describe a new system of government based on direct democracy and Green values…

Elections will be decided by proportional representation…

The City of London Corporation to be abolished, together with its institutions and all the special rights and privileges it has, to be replaced by administration similar to the rest of London…

Monarchy shall cease to be an office of government, and hereditary peers will not have hereditary rights to sit in Parliament…

The Church of England shall be disestablished and will have no role in the government of the UK…

Those few words propose unbelievably seismic changes for Britain. If they were carried out Britain would cease to be controlled by the corrupt and tyrannical elites that have not only oppressed British people for centuries, but also hundreds of millions of people around the world. For the first time in its history Britain would become a real democracy. But that’s just the start.

The Greens do not yet have, in my view, very strong policies regarding public information services, and this issue would have to be addressed in any written constitution. Good and trustworthy information is absolutely essential to the proper functioning of direct democracy; and it should be the responsibility of, firstly, the education system, and secondly, a state public information service to ensure good information is provided.

Green Britain

The Greens are, first and foremost, about protecting and improving the environment, and rescuing and restoring to full health our planet’s fragile and rapidly dying ecosystems. This principle underpins, explains and justifies every one of the hundreds of policies that comprise the PSS. In other words, there isn’t a separate section about “The Environment”; the whole thing is about the environment and the planet’s non-humans, and the way human beings could and should interact with them. Take, for example, the section on Animal Rights:

The prevailing assumption that animals can be used for any purpose that benefits humankind is not acceptable in a Green society…

To eliminate the wholesale exploitation of other species, foster understanding of our inter-relationship in the web of life and protect and promote natural habitat…

Other sections are designed with the environment at heart. Take the section on Transport, for example, which includes:

The Green Party believes that some of the greatest damage to local communities and the environment has been done by the transfer of freight carriage from water and rail to road and air, and the increasing size of road vehicles used. The Green Party’s aim will be to reverse this trend by:

(a)  Reducing the need for freight movement by the implementation of policies to alter the current culture of over consumption.

(b)  Promoting the provision of products from local sources;

(c)  Using financial incentives to bring large-scale freight carriage back onto water and rail.

(d)  Local or regional authorities planning freight movement within their areas on the principle of small-scale delivery vehicles servicing from rail and waterside depots.

(e)  Establish facilities for inter-modal freight movement, such as rail depots and waterside wharves.

Or Housing…

Building regulations to be changed to reflect the needs of a green society and green economy. Local authorities to have the means to properly police the regulations…

Or Education…

All schools to provide environmental education through academic and practical work. Schools to practice high standards of environmental welfare…

Or Industry…

The development of a sustainable zero carbon industrial infrastructure as a basis for a sustainable zero carbon society. This will free the UK economy from a reliance on endless growth in the production of commodities and financial transactions…

The Green Economy

One of the most important (and longest) sections in the PSS is The Economy. Unsurprisingly, the health of the environment assumes primary importance:

To conserve natural planetary resources and to maintain the integrity of natural life-sustaining cycles; to regenerate areas made waste and take steps to avoid further ecological disaster; to reduce demand for energy and raw materials; to favour low energy non-polluting processes based on renewable resources…

British Greens are sometimes referred to as watermelons – green on the outside, and red in the middle. A quick glance through The Economy section soon explains why:

To devolve economic power to the lowest appropriate level, thereby rendering participants in the economy at all levels less vulnerable to the damaging effects of economic decisions made elsewhere and over which they have no control…

To liberate and empower all sections of society to meet their needs as far as possible from their own resources through activities which are socially enhancing; to encourage all to contribute to society according to their abilities, recognising as they do so, responsibility for themselves, for others, for future generations and for the planet…

Appropriate national public expenditure will be necessary for the regeneration of the supply side of the economy to achieve the green objectives. Extensive investment is required to repair the damaged natural environment; to restore infrastructure; and to develop re-skilling and retraining in socially and environmentally-friendly production and services…

As for the big and very obvious question: where would all the money come from? The Greens have some fine answers. Obviously, given the scandalous tax evasion by the super-rich that’s been going on for centuries, there is need for considerable tax reform, and Green taxation policies do propose doing that. However, of far greater importance is a total overhaul of monetary policy, and that section in the PSS is several times larger than the section on taxation. For example:

The existing banking system has failed and is no longer fit for purpose. The Green Party believes that the power to create money must be removed from private banks. The supply of our national currency must be fully restored to democratic and public control so that it can be issued free of debt and directed to environmentally and socially beneficial areas such as renewable energy, social housing, or support for community businesses…

Of course, you have to allow for slight inaccuracies – like in the above wording, “our national currency must be fully restored to democratic and public control” – which obviously wrongly suggests that at some time in the past our currency once had democratic and public control. But such small slips aside, this is a proposal that’s every bit as seismic to the British economy as scrapping the monarchy, hereditary peers in the House of Lords, and political power of the Church of England is to the so-called English constitution.

There are a few other economic policies which at first glance might seem quite trivial, but which are, in fact, highly significant, such as:

The Green Party would replace conventional [economic] indicators with those that measure progress towards sustainability, equity and devolution…

This is, once again, revolutionary stuff. The global economic system is based entirely on a system of measurements designed by, and for, the super-rich. It’s interested only in profits for the super-rich. The costs of those profits in terms of human misery, animal suffering, and environmental catastrophe, are entirely irrelevant. Changing the way economies are measured to not only take those factors into account but to prioritise them above the profits of the super-rich is Earth-shaking stuff.

The Bigger Picture

There’s only so much a country can do by itself. Sooner or later it has to co-operate with others in order to achieve mutually desirable results. Even if the Green Party managed to turn Britain into the greenest, happiest, and most self-sufficient country in the world it would be pretty ineffective if the rest of the planet continued along its man-made road to disaster. So the Greens are also committed internationalists, striving to help other countries make the essential changes they’re also going to need in the very near future.

To this end the PSS spells out its policies in its International section, and in the section on Peace and Defence. Unsurprisingly, some of these policies are nothing less than revolutionary:

The Green vision also involves a fundamental restructuring of the global economy to reverse the unsustainable trend of globalisation (i.e. ever increasing trade between ever distant nations with the primary goal of maximising profit) and a democratisation of the systems of global governance…

The United Nations should be reformed and democratised. The current national basis for membership should be extended to include regional (sub-national) representation and all representatives should be democratically selected. The WTO, International Monetary Fund, World Bank and similar bodies should also be reformed, democratised, or replaced…

To support the establishment and maintenance of ecologically sustainable and democratic communities throughout the world, and progress towards a world in which all people are equal in both their economic potential and their political rights…

The nature of conflict in the twenty-first century is highly complex, involving state and non-state participants at every level. Much international conflict today arises directly or indirectly from the abuse of power by rich Northern nations…

The United Kingdom has not been under significant threat of armed invasion since 1941 and such an event is unlikely to occur in the foreseeable future…

“Defence” is the protection of homeland against attack and does not justify pre-emptive strikes against nations and organisations. Military intervention for peacekeeping or conflict prevention cannot be justified unilaterally. It is irrational and immoral [and often illegal] to continue activities that exacerbate threats to international and local security…

The defence budget needs to be adequate to ensure security, but no more so…

The Green Party is committed to pursuing immediate and unconditional nuclear disarmament…

Green defence policy will be consistent with international law and the UN Charter.

The (vegan) buttering of parsnips

There’s an old saying that goes “fine words butter no parsnips”. This makes the vital point that there’s a world of difference between words and deeds. The history of politics is nothing if not a very long and depressing saga of false hopes and broken promises. It’s one thing for the Green Party to have all these wonderful world-changing ideas, making them reality is something else entirely.

To me, the answer is very simple. Write a draft constitution based almost entirely on the Greens’ PSS, and from then on, in every single election campaign, promise to pass that constitution into law within the first six months of a Green government coming to power. (Failure to do so would constitute a breach of promise to the electorate and require the Greens to quit office.) Ensure that the constitution is the supreme law which supersedes all other laws and renders invalid any conflicting law. Build into the constitution the sovereignty of the people, so that only the people can change the constitution – not some new and reactionary future government. Concern that such an action would be undemocratic is groundless: if the Greens openly campaigned for constitutional change and won a general election on the basis of that campaign, it would obviously be the democratic choice of the people to implement it.

I do not see any realistic alternative to this method. If the Greens were to try to introduce their policies piecemeal and individually they would either be quickly defeated by their rich and powerful opponents; or the partial changes would not be able to function alongside existing systems, and hence render them apparent failures; or they would simply run out of time. We are living through the sixth mass extinction of species – unique amongst previous extinctions in that this one was entirely man-made and was largely preventable. We are long past the point of “doing something before it’s too late”. Too late came and went some years ago; we’re now in the business of crisis control and damage limitation. The time is not very far away when no matter what we do it will be in vain. Like Easter Island, our fragile planet is rapidly becoming uninhabitable, solely because of human beings.

As an anarchist I’m not much of a fan of political parties. But what should an anarchist do if a political party comes along which promotes anarchist values? I’ve waded through almost every one of the Green Party’s hundreds of policies. There are some that I’m pretty indifferent to – like Citizen’s Income, for example – but not a single one that I strongly disagree with. Individual anarchists are not going to change the world for the better, but the Green Party just might.

Canadian Legal System’s Complicity in Genocide

[T]he US government no less than the government of Canada is required to obtain the consent of the Indian nations’ before assuming jurisdiction to invade, occupy and govern the yet unceded Indian national territories.

– Bruce Clark, Ongoing Genocide caused by Judicial Suppression of the “Existing” Aboriginal Rights (2018), p 25-26

I have only been physically inside a courtroom once, and that was to support a falsely accused colleague. It struck me that a typical western courtroom is set up not to exude justice but to intimidate, not just the accused but all people present, with the power of the State. The judge is invariably seated centrally on a dais, able to observe all that transpires below in the courtroom. When the judge enters, all present are required to stand, and none may be seated until permission is granted by his “honor.” When the proceedings are displeasing to her honor, she may strike a gavel on the dais to summon order in the courtroom.

Witness the power of the State: the power to mete out punishment for persons found guilty of something the State has determined to be illegal. It is a power that may be, and has been, wielded in what would be construed to be a thoroughly criminal manner in a moral universe. After all, gift giving and dancing were once deemed illegal by the Canadian State, and thus the tradition of First Nation Potlatches were banned until a sense of sanity and seeming propriety prevailed.

Such legal chicanery is not surprising to those who subscribe to Emery Dahlberg’s admonition that power corrupts.1 When law is unjust or when the punishment for wrongdoing is unjust, then the State has abused its power. The State’s power to prescribe justice can, moreover, be argued to represent State violence – in that the threat of punishment is used by the State to coerce behavioral compliance with the societal norms as dictated by the State.

To any informed person, Canada is undeniably a nation state erected on pre-existing nation states. The founding of Canada was unquestionably rooted in the genocide of the Original Peoples of the territory.2 Genocide is a heinous act often rooted in racism and supremacism. One group of humans considers itself privileged and accords itself rights, god-given or not, to the land and resources regardless of whichever people inhabit such territory or how long the territory has been the domain of its inhabitants.

That the law is not a moral construct is adduced by the fact that it has served as a vehicle for carrying out great crimes. The so-called New World was gifted by the Papal Bull Inter Caetera (1493) for division among the Spanish and Portuguese. Non-Christian savages had no rights according to the papacy. Albeit this was later superseded by the Papal Bull Sublimis Deus (1537). Nonetheless, the entirety of the western hemisphere remains controlled by elitist European settler-colonialists.3 Hence, Original Peoples find themselves stripped of sovereignty, ethnically cleansed from gargantuan swaths of unceded territory (reality check: who knowingly agrees to ceding a people’s territory anyway?), marginalized from decision-making regarding their lands, with many people having been forcibly assimilated into the dominating culture.

How to achieve actual justice for the dispossessed?

Bruce Clark is a man who made his living in the courtroom as a lawyer. He is an expert in law as applied to Indigenous peoples, having achieved a doctorate in comparative jurisprudence. Clark believes in the notion of applying law to achieve justice. Justice is a concept that is higher than the self, thus Clark took on the establishment to seek justice for his Indigenous clients. In the end he was punished for his zeal for justice.

I first became aware of Bruce Clark when he was providing counsel to the Sundancers at Ts’Peten (Gustafsen Lake). To protect the claimed rights of an American rancher to property on unceded Secwepemc territory, the provincial government resorted to para-military measures to evict the Sundancers; it was astoundingly reprehensible to me. Natural law was stood on its head by the provincial authorities. It is a matter that all “British Columbians” and “Canadians” should make themselves deeply informed about and act thereupon according to their consciences.

Bruce Clark is speaking and writing words extremely discomfiting to many non-Indigenous people. He is the author of Justice in Paradise and Native Liberty, Crown Sovereignty: The Existing Aboriginal Right of Self-Government in Canada. Just published is a collection of Clark’s subsequent writings, Ongoing Genocide caused by Judicial Suppression of the “Existing” Aboriginal Rights. In Ongoing Genocide Clark presents the legal case for Indigenous sovereignty such that the layperson can readily grasp the arguments.

Clark examines the constitutional law, international law, and case studies based on the law of the invaders. When interpreted without bias, the compelling arguments of Clark strongly refute any credence to the newcomers’ doctrine of discovery, especially over lands previously inhabited for millennia. That invader courts should have any authority in the territory invaded is, on its face, risible.

While constitutional and international law should be preeminent, in Canada writes Clark, “The modus operandi of the legal establishment and its collaborating Indian accomplices is the suppression of the constitutional and international law that the establishment intentionally is breaking.” (p 15)

The corruption in the system is political, economic, and legal. Clark finds that the legal profession and the judiciary are complicit in misprision of treason, fraud, and genocide. (p 31) The legal system has politicized law through artifices such as “the rule of judicial discretion” substituted for “the rule of law.” (p 40) Clark criticizes, “The lie, recently invented by the Supreme Court of Canada in willful blindness, is that the aboriginal right is no more than ‘the right to be consulted’…” (p 142)

The legal system has shielded itself from scrutiny in its complicity with crimes committed. Writes Clark,

Immunity anywhere signifies the non-existence of the rule of law everywhere. But again that will not happen, because like Canada the legal establishment of the United States practices the same willful blindness to the unconstitutional genocide at the historical heart of its legal system. (p 50)

A number of court decisions are mistakes, per incuriam, and are not a binding precedent, writes Clark.

Clark cites legal documents and precedents, in particular, the Royal Proclamation of 1763 which sets aside the Hunting Grounds to Indian nations in which the Indians are to be unmolested.

Clark has tried to challenge the constitutionality of Canada’s usurpation of Indigenous territory. A Catch 22 has been designed to block this. Clark relates how the Supreme Court demands a lower court ruling on the matter while the lower courts insist it is a Supreme Court matter. (p 127) It is clear to Clark that an independent, third party adjudication is required, this having already been established in the 1703 case of the Mohegan Indians v. Connecticut for Indian land claims throughout British North America.

Pressing to have his legal arguments heard and a decision rendered in court ultimately cost Clark his career as a lawyer. But this was not the end of Clark or the quest for justice.

Clark remains dangerous to the system that upholds the dispossession. A Vancouver Sun diatribe against Clark revealed this. Clark is described as “too radical for B.C. courtrooms, and too rambunctious for the Ontario bar,” and “a colourful but fatally misguided militant zealot.” Yet the critic acknowledges, “… Clark’s well-articulated ideas are definitely threatening to the status quo.”

Clark touches upon many topics in Ongoing Genocide among them the effects of Indian Residential Schools, the Indian Act, the Truth and Reconciliation Commission (“… an expensive fraud upon the public but a cruel imposition upon the victims, who are encouraged to air their innermost suffering in the mistaken belief that it will lead to closure.” [p 20]), the so-called 60’s scoop of Indigenous children, and more.

The book concludes by pointing out an error in the Supreme Court Case Tsilhqot’in v. British Columbia, 2014 that is at odds with precedents such as the Royal Proclamation of 1763 and section 109 of the Constitution Act, 1867. In recent years the BC provincial government and federal government have apologized for the wrongful hanging of six Tsilhqot’in chiefs.4 Despite this, the BC government and Taseko Mines have continued to undermine Indigenous sovereignty, with repeated attempts to set up and operate a platinum mine in the Tsilhqot’in nation.

Ongoing Genocide caused by Judicial Suppression of the “Existing” Aboriginal Rights puts forward the case over which Canadian law courts dare not deliberate. That should not preclude people of conscience becoming informed. Is Canada a just society? Read the book and judge for yourself. Then do something about it. Humanity requires many more brave warriors like Bruce Clark.

  1. I hold that Dahlberg’s aphorism should not be considered too simplistically – that it has many layers. E,g, there is probably something already present in the nature of many humans that leads them to covet power.
  2. See Tom Swanky, The Great Darkening: The True Story of Canada’s “War” of Extermination on the Pacific plus The Tsilhqot’in and other First Nations Resistance (Burnaby, BC: Dragon Heart Enterprises, 2012). Read review.
  3. A noteworthy exception is Warisata (Bolivia) which has been governed by an Indigenous president, Evo Morales, since 2006.
  4. Emilee Gilpin, “Minister Carolyn Bennett says exoneration of Tsilhqot’in chiefs opens door to reconciliation,” National Observer, 27 March 2018; Tom Swanky, “Exoneration of the Chilcotin Chiefs,” 10 September 2015.

Court in Crisis: How Much Partisan Justice Is Too Much?

This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.

— Judge Brett Kavanaugh’s Senate testimony, September 27, 2018

The integrity of the US judicial system is actively, albeit quietly, in play. A sitting federal judge, or more likely a panel of sitting federal judges, will be required in the near future to render an assessment of the honesty, integrity, and fitness of a Supreme Court justice to retain his lifetime appointment. The process and the result of the federal judges’ decision will, together, render a judgment as to the integrity of not just one Supreme Court justice but the federal courts as a national institution.

The stakes are as high as they are simple: Will our court system choose to defend the position of its own members or will it choose to defend the integrity of the US judicial system? There is no possibility it can do both with any credibility.

This is a morality play that began at a time uncertain, reaching back decades. The curtain opened as the president named Brett Kavanaugh to fill a seat on the Supreme Court despite – or because of – his long history of playing Republican hardball against the Clintons over Whitewater, against the Clintons over Monica Lewinsky, for George Bush over the Florida vote count in the 2000 election, for fake intelligence in the lead-up to the Iraq War, and for the White House in its efforts to spy on or torture anyone they chose. On occasion even as a federal judge, Kavanaugh has proved the perfect partisan.

Kavanaugh’s history was a concern when he was first nominated for the federal bench in 2004, but he managed then to get confirmed with only limited doubt about his ability to tell the truth under oath. This year, when his Senate confirmation hearings began on September 4, the concerns about his integrity were still there, but Kavanaugh was protected from his own record because the White House kept most of it secret. Kavanaugh’s refusal to give full and complete answers to questions about his career as a political operative prompted the first formal ethics complaints (even before the Dr. Christime Blasey Ford story broke). One of those complaints, filed by attorney J. Whitfield Larrabee on behalf of two clients – all “under penalty of perjury” – summed up the case against Kavanaugh this way:

Kavanaugh received stolen information taken from Democratic members of the Senate Judiciary Committee while he worked in the White House and he perjured himself while testifying about the matter in Congress in 2004, 2006 and 2018. Kavanaugh violated Canons 1 and 2 of Code of Judicial Conduct by committing crimes of dishonesty while he was a federal judge, by obtaining confirmation of his appointment as a federal judge by false and perjurious testimony, by concealing and covering up his criminal actions and by obstructing justice. He is unfit to serve as a judge by reason of his corrupt, unscrupulous, dishonest and criminal conduct.

This indictment is followed by five pages of factual allegations citing chapter and verse of some of Kavanaugh’s perjurious representations. The complaint concluded with a call for an investigation leading to a recommendation to Congress:

… that Kavanaugh be impeached in accordance with Rules 20 and 23 of the Rules for Judicial-conduct and Judicial-Disability Proceedings.

This is only one of a reported 15 or more formal ethics complaints made about Kavanaugh before the Dr. Blasey Ford farce or his confirmation to the Supreme Court. All the complaints made their way to the chief judge of the Court of Appeals, DC Circuit, on which Kavanaugh then sat. That chief judge is Merrick Garland, whose own appointment to the Supreme Court in 2016 was stonewalled by Mitch McConnell and Senate Republicans (illegitimately making the seat available to usurper Neil Gorsuch). Garland, faced with the complaints against Kavanaugh, did the non-partisan thing and recused himself, leaving the first assessment of the complaints to someone else.

According to an October 6 press release from DC Circuit judge Karen LeCraft Henderson (a Bush appointee and Kavanaugh’s colleague on the bench):

After the start of Judge Brett Kavanaugh’s confirmation hearings, members of the general public began filing complaints in the D.C. Circuit about statements made during those hearings. The complaints do not pertain to any conduct in which Judge Kavanaugh engaged as a judge. The complaints seek investigations only of the public statements he has made as a nominee to the Supreme Court of the United States.

This characterization is misleading if not just false. The complaints may only refer to false public statements (most of the complaints have not been made public), but those false public statements were, in fact, made by a sitting judge (just not while he was in court, apparently). Judge Henderson is implicitly arguing for a judicial standard that allows judges to lie whenever they want when they’re off the bench. This is not the standard of judicial temperament most of us thought we signed up for.

According to a letter from Chief Justice Roberts on October 10, he first heard officially about the Kavanaugh complaints starting on September 20. By October 6 he had received 15 complaints that were deemed worthy of review (it’s uncertain how many, if any, were dismissed as frivolous). In conveying the complaints to the chief justice, Judge Henderson, concerned “that local disposition may weaken public confidence in the process,” requested that the complaints be transferred to another circuit (as provided by Rule 26). In his October 10 letter, the chief justice did exactly that:

I have selected the Judicial Council of the United States Court of Appeals for the Tenth Circuit to accept the transfer and to exercise the powers of a judicial council with respect to the identified complaints and any pending or new complaints relating to the same subject matter.

The chief judge of the 10th circuit, based in Denver, is Timothy M. Tymkovich (a Bush appointee). He was also on the White House short list with Kavanaugh. And now he is, at least for the moment, in charge of 15 or more Kavanaugh complaints. As of October 15, he had not yet announced how the complaints would be handled. Nor has he publicly addressed his own political bias or his clear conflict of interest in the matter. Early reporting on the Kavanaugh complaints has been somewhat sketchy and sometimes dismissive.

On October 4, the House Progressive Caucus sent a letter to the president in a last-ditch effort to have the Kavanagh nomination withdrawn. The letter, signed by 39 members of Congress, outlined Kavanaugh’s partisan political past and his efforts to minimize or hide it. The letter demanded a full investigation of Kavanaugh’s record and promised impeachment proceedings if the Senate’s accusations of lying under oath were borne out. The letter concluded: “The credibility and reputation of the country’s highest judicial body is at stake.”

Even if the Kavanaugh complaints continue to get scant media coverage, the issue seems unlikely to go away. The Supreme Court is on trial and the chief justice knows it. He also knows that Rules for Judicial Conduct say unambiguously: “As long as the subject of the complaint performs judicial duties, a complaint alleging judicial misconduct must be addressed.” [emphasis added] The chief justice also knows that Kavanaugh’s partisan outburst (quoted at the top) seems to clearly violate the judicial conduct rule against “making inappropriately partisan statements.” The Supreme Court, led by a man with a reputation for defending institutional integrity, is faced with finding a way to justify its own probity – or join the rest of the wreckage of the Trump era.

Unmasking Phony Values Campaigns by the Corporatists

Corporatist candidates like to talk up values without getting specific and without drawing attention to how their voting records put the interests of big financial backers against the interest of most voters. This election season is no exception, from Florida to Texas to California to Ohio to Wisconsin. In 2004, I wrote the following article for the Louisville Courier-Journal comparing Kentucky values to the starkly opposing record and behavior of Senator Mitch McConnell.

All current candidates for elective office who stand for “we the people” and believe that big corporations should be our servants, not our masters, may find this list of values applicable in their states. Corporatist opponents’ voting records, positions, and their campaign contributors’ interests can be clearly compared with civic values and any other values voters and candidates wish to highlight. This kind of comparison can only help to turn out larger numbers of voters who want to elect candidates who will champion consumer, worker, children, and small taxpayer causes.

*****

From my travels throughout Kentucky, starting with the late ‘60s campaign for coal miners’ health and safety laws, I’ve observed that Kentuckians would like their politicians to be driven by Kentucky values. This election season, voters must be wondering: How has Sen. Mitch McConnell lived up to key Bluegrass State commitments?

  1. Rewarding hard work

Kentuckians don’t want handouts — they believe in working for a living. That’s why they believe in a fair day’s wage for a fair day’s work.

Mitch McConnell is worth more than $27 million, but has blocked efforts to prevent the minimum wage from seriously eroding due to inflation. He would rather allow McDonald’s and Walmart have taxpayers, through the earned income tax credit, pay for their workers’ public assistance than raise their minimum wages to meet workers’ basic needs.

  1. Honoring your elders

Many Kentuckians follow the Fifth Commandment: Honor thy father and thy mother. They believe our elders, after a lifetime of work, deserve a decent living standard.

Mitch McConnell dishonors our fathers and mothers when he says that the government should cut funding for Social Security and Medicare, programs that give Kentucky elders, who paid into these safety nets, much-deserved security in their golden years.

  1. Practicality

Kentuckians want politicians to have the same practical problem-solving spirit that they and their neighbors exhibit in daily life.

Mitch McConnell has called himself a “Proud Guardian of Gridlock” in Washington and, as the Washington Post wrote, has “raised the art of obstructionism to new levels.”

  1. Respecting women

Kentucky women have made sure that respect and equality for women is a pillar of Kentucky culture.

Mitch McConnell has shown where he stands on disrespecting women: He has voted against helping mothers take leave for sick children, domestic violence victims seeking justice, and working women seeking fair pay.

  1. Being forthright

Kentuckians don’t like politicians talking behind their back — saying one thing to them in public and another in closed rooms full of fat cats.

Mitch McConnell does just that, meeting privately with the multi-billionaire Koch brothers and promising even more Senate opposition to raising the minimum wage, extending unemployment benefits and helping students pay for college.

  1. Responsibility

Kentuckians believe people should be held responsible for how they treat others. They believe corporations should be held responsible for the harm they cause to their workers.

Mitch McConnell has helped roll back safety measures that hold corporations responsible for worker safety. At the urging of business groups, he helped pass a resolution declaring that Clinton administration safety rules protecting against repetitive-stress injuries “shall have no force or effect.” The United Mine Workers of America’s legislative director Bill Banig said McConnell has “not done anything to help us with mine safety.”

  1. Love thy neighbor

Kentuckians don’t want their neighbors in hard times dying because they’re struggling to make ends meet. That why they don’t want their neighbors subjected to “pay or die” health care, whether it is because of the staggering prices of drugs, operations, emergency treatments or health insurance.

Mitch McConnell stands opposed to the most efficient health care system, single payer, or full Medicare for all: everybody in, nobody out, with free choice of doctor and hospital. He even campaigned vigorously against Kynect, which has helped hundreds of thousands of Kentuckians sign up for health care.

  1. No one being above the law

Kentuckians do not believe anyone should be above the law. They want Wall Street crooks who crashed our economy and were bailed out by taxpayers to be prosecuted and put in jail.

Mitch McConnell is an avid Wall Street protector in Congress while he takes campaign cash from Wall Street bosses who he works to keep above the law. He has pledged to “go after” Dodd-Frank financial protections and has been a vocal opponent to the law-enforcing Consumer Financial Protection Bureau. According to the Center for Responsive Politics, Wall Street was the No. 1 contributor to McConnell’s campaign committee from 2009-14.

  1. Defending the Constitution

Kentuckians defend the Constitution and especially believe in its first phrase: We the People. They believe that corporations are supposed to be our servants, not our masters.

Mitch McConnell has said that the “worst day” of his political life was when Congress passed the bipartisan McCain-Feingold campaign finance reforms aimed at limiting corporate influence on governance. He proudly told a group of billionaires that the Citizens United decision allowing floods of corporate money into elections was a victory for “open discourse.”

  1. Patriotism

Kentuckians love the commonwealth and the nation. They honor our soldiers and the fallen for their loyalty to America.

Mitch McConnell has allied with disloyal, unpatriotic corporations who are abandoning America. He voted against laws that would help stop outsourcing and voted for tax breaks that perversely reward corporations for shipping American jobs overseas.

McConnell also voted in 2003 to defeat an amendment to provide $1 billion in life-saving body armor for the National Guard in Iraq and later in 2005 voted against an amendment to provide $213 million for more protective Humvees from roadside bombs in Iraq.

As Kentuckians head to the polls this November, I hope they keep these facts in mind about how McConnell has opposed these longstanding Kentucky values.

You Want to Make America Great Again? Start by Making America Free Again

If the freedom of speech be taken away, then dumb and silent we may be led, like sheep to the slaughter.

— George Washington, Address to the Officers of the Army, Saturday, March 15, 1783

Living in a representative republic means that each person has the right to take a stand for what they think is right, whether that means marching outside the halls of government, wearing clothing with provocative statements, or simply holding up a sign.

That’s what the First Amendment is supposed to be about.

Yet through a series of carefully crafted legislative steps and politically expedient court rulings, government officials have managed to disembowel this fundamental freedom, rendering it with little more meaning than the right to file a lawsuit against government officials.

In the process, government officials have succeeded in insulating themselves from their constituents, making it increasingly difficult for average Americans to make themselves seen or heard by those who most need to hear what “we the people” have to say.

Indeed, President Trump—always keen to exercise his free speech rights to sound off freely on any topic that strikes his fancy—has not been as eager to protect the First Amendment rights of his fellow citizens to speak freely, assemble, protest and petition one’s government officials for a redress of grievances.

Not that long ago, in fact, Trump suggested that the act of protesting should be illegal. The president has also suggested demonstrators should lose their jobs or be met with violence for speaking out.

Mind you, this is the man who took an oath of office to uphold and defend the Constitution.

Perhaps someone should have made sure Trump had actually read the Constitution first.

Most recently, the Trump Administration proposed rules that would crack down on protests in front of the White House and on the National Mall.

According to the Philadelphia Inquirer:

The rules would restrict gatherings that now take place on a 25-foot-wide sidewalk in front of the White House to just a 5-foot sliver, severely limiting crowds. The NPS [National Park Service] also threatens to hit political protesters on the National Mall with large security and cleanup fees that historically have been waived for such gatherings, and it wants to make it easier to reject a spontaneous protest of the type that might occur, say, if Trump fires special counsel Robert Mueller.

Imagine if the hundreds of thousands of participants in the 1963 March on Washington for Jobs and Freedom, which culminated with Martin Luther King, Jr.’s “I Have a Dream” speech at the Lincoln Memorial, had been forced into free speech zones or required to pay for the “privilege” of protest.

There likely would not have been a 1964 Civil Rights Act.

What is going on here?

Clearly, the government has no interest in hearing what “we the people” have to say.

It’s the message that is feared, especially if that message challenges the status quo.

That’s why so many hurdles are being placed in the path of those attempting to voice sentiments that may be construed as unpopular, offensive, conspiratorial, violent, threatening or anti-government.

Yet the right of political free speech is the basis of all liberty.

It’s the citizen’s right to confront the government and demand that it alter its policies. But first, citizens have to be seen and heard, and only under extraordinary circumstances should free speech ever be restricted.

No government that claims to value freedom would adopt such draconian measures to clamp down on lawful First Amendment activities. These tactics of censorship, suppression and oppression go hand-in-hand with fascism.

Efforts to confine and control dissenters are really efforts to confine and control the effect of their messages, whatever those might be.

That’s the point, isn’t it?

The powers-that-be don’t want us to be seen and heard.

Haven’t you noticed that interactions with elected representatives have become increasingly manufactured and distant over the past 50 years? Press conferences, ticketed luncheons, televised speeches and one-sided town hall meetings held over the phone now largely take the place of face-to-face interaction with constituents.

Additionally, there has been an increased use of so-called “free speech zones,” designated areas for expressive activity used to corral and block protestors at political events from interacting with public officials. Both the Democratic and Republican parties have used these “free speech zones,” some located within chain-link cages, at various conventions to mute any and all criticism of their policies.

This push to insulate government officials from those exercising their First Amendment rights stems from an elitist mindset which views them as different, set apart somehow, from the people they have been appointed to serve and represent.

We have litigated and legislated our way into a new governmental framework where the dictates of petty bureaucrats carry greater weight than the inalienable rights of the citizenry.

With every passing day, we’re being moved further down the road towards a totalitarian society characterized by government censorship, violence, corruption, hypocrisy and intolerance, all packaged for our supposed benefit in the Orwellian doublespeak of national security, tolerance and so-called “government speech.”

Indeed, while lobbyists mill in and out of the homes and offices of Congressmen, the American people are kept at a distance through free speech zones, electronic town hall meetings, and security barriers. And those who dare to breach the gap—even through silent forms of protest—are arrested for making their voices heard.

On paper, we are free to speak.

In reality, however, we are only as free to speak as a government official may allow.

Free speech zones, bubble zones, trespass zones, anti-bullying legislation, zero tolerance policies, hate crime laws and a host of other legalistic maladies dreamed up by politicians and prosecutors have conspired to corrode our core freedoms.

Indeed, the Supreme Court has had the effrontery to suggest that the government can discriminate freely against First Amendment activity that takes place within a government forum, justifying such discrimination as “government speech.”

If it were just the courts suppressing free speech, that would be one thing to worry about, but First Amendment activities are being pummeled, punched, kicked, choked, chained and generally gagged all across the country.

Protest laws are not about protecting the economy or private property or public sidewalks. Rather, they are intended to keep us corralled, muzzle discontent and discourage anyone from challenging government authority.

The reasons for such censorship vary widely, but the end result remains the same: the complete eradication of what Benjamin Franklin referred to as the “principal pillar of a free government.”

If Americans are not able to peacefully assemble for expressive activity outside of the halls of government or on public roads on which government officials must pass, the First Amendment has lost all meaning.

If we cannot stand silently outside of the Supreme Court or the Capitol or the White House, our ability to hold the government accountable for its actions is threatened, and so are the rights and liberties which we cherish as Americans.

Free speech can certainly not be considered “free” when expressive activities across the nation are being increasingly limited, restricted to so-called free speech zones, or altogether blocked.

If citizens cannot stand out in the open on a public sidewalk and voice their disapproval of their government, its representatives and its policies, without fearing prosecution, then the First Amendment with all its robust protections for free speech, assembly and the right to petition one’s government for a redress of grievances is little more than window-dressing on a store window: pretty to look at but serving little real purpose.

What most people fail to understand is that the First Amendment is not only about the citizenry’s right to freely express themselves. Rather, the First Amendment speaks to the citizenry’s right to express their concerns about their government to their government, in a time, place and manner best suited to ensuring that those concerns are heard.

The First Amendment gives every American the right to “petition his government for a redress of grievances.”

This amounts to so much more than filing a lawsuit against the government. It works hand in hand with free speech to ensure, as Adam Newton and Ronald K.L. Collins report for the Five Freedoms Project, “that our leaders hear, even if they don’t listen to, the electorate. Though public officials may be indifferent, contrary, or silent participants in democratic discourse, at least the First Amendment commands their audience.”

As Newton and Collins elaborate:

“Petitioning” has come to signify any nonviolent, legal means of encouraging or disapproving government action, whether directed to the judicial, executive or legislative branch. Lobbying, letter-writing, e-mail campaigns, testifying before tribunals, filing lawsuits, supporting referenda, collecting signatures for ballot initiatives, peaceful protests and picketing: all public articulation of issues, complaints and interests designed to spur government action qualifies under the petition clause, even if the activities partake of other First Amendment freedoms.

There’s more.

Even more critical than the right to speak freely, or pray freely, or assemble freely, or petition the government for a redress of grievances, or have a free press is the unspoken freedom enshrined in the First Amendment that assures us of the right to think freely and openly debate issues without being muzzled or treated like a criminal.

Just as surveillance has been shown to “stifle and smother dissent, keeping a populace cowed by fear,” government censorship gives rise to self-censorship, breeds compliance and makes independent thought all but impossible.

In the end, censorship and political correctness not only produce people that cannot speak for themselves but also people who cannot think for themselves. And a citizenry that can’t think for itself is a citizenry that will neither rebel against the government’s dictates nor revolt against the government’s tyranny.

The end result: a nation of sheep who willingly line up for the slaughterhouse.

Still, as Supreme Court Justice William O. Douglas advised in his dissent in Colten v.Kentucky, “we need not stay docile and quiet” in the face of authority.

The Constitution does not require Americans to be servile or even civil to government officials.

Neither does the Constitution require obedience (although it does insist on nonviolence).

If we just cower before government agents and meekly obey, we may find ourselves following in the footsteps of those nations that eventually fell to tyranny.

The alternative involves standing up and speaking truth to power.

Jesus Christ walked that road.

So did Mahatma Gandhi, Martin Luther King Jr., and countless other freedom fighters whose actions changed the course of history.

Indeed, had Christ merely complied with the Roman police state, there would have been no crucifixion and no Christian religion.

Had Gandhi meekly fallen in line with the British Empire’s dictates, the Indian people would never have won their independence.

Had Martin Luther King Jr. obeyed the laws of his day, there would have been no civil rights movement.

And if the founding fathers had marched in lockstep with royal decrees, there would have been no American Revolution.

In other words, if freedom means anything, it means that those exercising their right to protest are showing the greatest respect for the principles on which this nation was founded: the right to free speech and the right to dissent.

Clearly, the First Amendment to the Constitution assures Americans of the right to speak freely, assemble freely and protest (petition the government for a redress of grievances).

Whether those First Amendment activities take place in a courtroom or a classroom, on a football field or in front of the White House is not the issue. What matters is that Americans have a right—according to the spirit, if not always the letter, of the law—to voice their concerns without being penalized for it.

Frankly, the First Amendment does more than give us a right to criticize our country: it makes it a civic duty.

Let’s not confuse patriotism (love for or devotion to one’s country) with blind obedience to the government’s dictates. That is the first step towards creating an authoritarian regime.

One can be patriotic and love one’s country while at the same time disagreeing with the government or protesting government misconduct. As journalist Barbara Ehrenreich recognizes, “Dissent, rebellion, and all-around hell-raising remain the true duty of patriots.”

Indeed, I would venture to say that if you’re not speaking out or taking a stand against government wrongdoing—if you’re marching in lockstep with everything the government and its agents dole out—and if you’re prioritizing partisan politics over the principles enshrined in the Constitution, then you’re not a true patriot.

Real patriots care enough to take a stand, speak out, protest and challenge the government whenever it steps out of line. There is nothing patriotic about the lengths to which Americans have allowed the government to go in its efforts to dismantle our constitutional republic and shift the country into a police state.

It’s not anti-American to be anti-war or anti-police misconduct or anti-racial discrimination, but it is anti-American to be anti-freedom.

Listen: I served in the Army.

I lived through the Civil Rights era.

I came of age during the Sixties, when activists took to the streets to protest war and economic and racial injustice.

As a constitutional lawyer, I defend people daily whose civil liberties are being violated, including high school students prohibited from wearing American flag t-shirts to school, allegedly out of a fear that it might be disruptive.

I understand the price that must be paid for freedom.

Responsible citizenship means being outraged at the loss of others’ freedoms, even when our own are not directly threatened.

The Framers of the Constitution knew very well that whenever and wherever democratic governments had failed, it was because the people had abdicated their responsibility as guardians of freedom. They also knew that whenever in history the people denied this responsibility, an authoritarian regime arose which eventually denied the people the right to govern themselves.

Citizens must be willing to stand and fight to protect their freedoms. And if need be, it will entail publicly criticizing the government.

This is true patriotism in action.

Never in American history has there been a more pressing need to maintain the barriers in the Constitution erected by our Founders to check governmental power and abuse.

Not only do we no longer have dominion over our bodies, our families, our property and our lives, but the government continues to chip away at what few rights we still have to speak freely and think for ourselves.

 If the government can control speech, it can control thought and, in turn, it can control the minds of the citizenry.

My friends, let us not be played for fools.

The government’s ongoing attempts to suppress lawful protest activities are intended to send a strong message that in the American police state, you’re either a patriot who marches in lockstep with the government’s dictates or you’re a pariah, a suspect, a criminal, a troublemaker, a terrorist, a radical, a revolutionary.

Yet by muzzling the citizenry, by removing the constitutional steam valves that allow people to speak their minds, air their grievances and contribute to a larger dialogue that hopefully results in a more just world, the government is deliberately stirring the pot, creating a climate in which violence becomes inevitable.

When there is no steam valve—when there is no one to hear what the people have to say, because government representatives have removed themselves so far from their constituents—then frustration builds, anger grows and people become more volatile and desperate to force a conversation.

Then again, perhaps that was the government’s plan all along.

As John F. Kennedy warned in March 1962, “Those who make peaceful revolution impossible will make violent revolution inevitable.”

The government is making violent revolution inevitable.

How do you lock down a nation?

You sow discontent and fear among the populace.

You teach them to be non-thinkers who passively accept whatever is told them, whether it’s delivered by way of the corporate media or a government handler.

You brainwash them into believing that everything the government does is for their good and anyone who opposes the government is an enemy.

You acclimate them to a state of martial law, carried out by soldiers disguised as police officers but bearing the weapons of war.

You polarize them so that they can never unite and stand united against the government.

You create a climate in which silence is golden and those who speak up are shouted down.

You spread propaganda and lies.

You package the police state in the rhetoric of politicians.

And then, when and if the people finally wake up to the fact that the government is not and has never been their friend, when it’s too late for peaceful protests and violence is all that remains to them as a recourse against tyranny, you use all of the tools you’ve been so carefully amassing—the militarized police, the criminal databases and surveillance and identification systems and private prisons and protest laws—and you shut them down for good.

Divide and conquer.

It’s one of the oldest military strategies in the books, and it’s proven to be the police state’s most effective weapon for maintaining the status quo.

How do you conquer a nation?

Distract the populace with screen devices, with sports, entertainment spectacles, political circuses and materialism.

Keep them focused on their differences—economic, religious, environmental, political, racial—so they can never agree on anything.

And then, when they’re so divided that they are incapable of joining forces against a common threat, start picking them off one by one.

As I make clear in my book Battlefield America: The War on the American People, what we’re witnessing is just the latest incarnation of the government’s battle plan for stamping out any sparks of resistance and keeping the populace under control: censorship, surveillance, battlefield tactics, military weaponry, and a complete suspension of the Constitution.

Act Now To Protect Our Right To Protest

The radical attack on our constitutional right to protest in Washington, DC needs to be stopped. The National Park Service (NPS) has published proposed rules that would curtail First Amendment rights to assemble, petition the government and exercise free speech in the nation’s capital. Together, we can stop this proposal from going forward.

Popular Resistance submitted comments to the National Park Service and is working in coalition with numerous organizations in Washington, DC to protect our constitutional rights. We will be joining with other organizations in submitting coalition comments. We need everyone to participate, submit a comment this weekend, the deadline is Monday.

Tell the NPS why protest in Washington, DC is important, your experience with protest and why these new restrictions will make it difficult to exercise your constitutional rights. Your comment will be the evidence courts will consider in reviewing these proposed rules.

Submit your comment here. The deadline is Monday, October 15th. More specifics are provided below. Please act today. 

This is part of the effort to curtail dissent in the United States

The proposal would result in people being charged fees if they hold a protest. That means in order to exercise your constitutional right, the government can charge you for the police barricades, the Park Service police time and even their overtime. And, if you hold a concert with your protest where people make speeches, play music or use spoken word, you can be charged for that exercise of Free Speech as well.

While the “pay to play” rules have gotten some attention in the media, that is just the beginning of the restrictions. The area around the White House would basically be off-limits as they would close the walkway and sidewalk in front of it. This area that was used by suffragists to appeal to President Wilson for the right to vote would no longer be available. There are hundreds of protests every year around the White House as this iconic spot has been used for protests on civil rights, opposition to war, protection of the environment, urging climate justice, for economic fairness and so much more. It is used to get the attention of the president to use the presidential power to pardon, as we did in the campaign for Chelsea Manning directed at President Obama.

In this time of immediate news coverage and the ability to use social media for breaking news as it happens, NPS proposed restricting “spontaneous demonstrations.” Rather than the current rule, which presumes a permit is granted if it is not denied within 24 hours, the NPS would now put such requests in limbo and have until the last minute to deny the permit. And even if a permit is granted, the proposed rules would allow a permit to be revoked for any infraction of the permit.

Under international law, no authorization should be required to assemble peacefully, and a system of prior notification should only be intended to allow authorities to facilitate protests and peaceful assemblies. This standard would be a standard consistent with the US Constitution which forbids the abridgment of the rights to assemble, petition the government and to speak freely. The permit process already violates international law, making it more restrictive moves the United States further into the territory of a rogue nation that ignores the law even though it ratified the International Covenant on Civil and Political Rights in 1992.

The proposed rules would also limit the size of signs and banners in many parts of the city and asks whether more parks should be labeled as parks that do not allow protest. And, in response to the Occupy protests, the NPS would limit vigils and encampments to one month — letting the people in power know that long-term protests are only a short-term threat.

Read the twelve ways that the proposed protest rules would restrict our constitutional right to protest in our call to action.

Protests are increasing and will continue

Protests have been escalating in the United States since the 2009 economic collapse. That collapse was followed by a wide range of protests at banks and the Federal Reserve as well as in state capitals across the country. That was followed by the sustained multi-month protest of the Occupy encampments in hundreds of cities across the country. Out of police violence and killings of black people came the Black Lives Matter movement, and out of the poverty wages of low wage workers came Our Walmart and Fight for $15. As the US moved to become the largest oil and gas producing nation in the world — at a time when climate change science said we should build no oil and gas infrastructure — protests across the country against pipelines, compressor stations, export terminals and other infrastructure grew. This climaxed in the No DAPL protest at Standing Rock, and continues to build.

There has been a dramatic increase in protests since President Trump was elected president. In the last year, one-fifth of people in the United States say they have participated in a protest, rally or other First Amendment event. A recent poll found, “One in five Americans have protested in the streets or participated in political rallies since the beginning of 2016. Of those, 19 percent said they had never before joined a march or a political gathering.”

This is a time to be protecting constitutional rights, not curtailing them. People understand the government is not listening to them or meeting their needs and are protesting in order to be heard as they face economic insecurity – high debt and low pay.

Efforts to curtail protest are a sign that the movement is having an impact. We are building our power and are getting more organized. We have the power to stop these unconstitutional restrictions on our right to protest.

We urge you to join us in taking action today. Submit a comment explaining why the right to protest matters to you. It can be brief or long or somewhere in between.

Together we can keep building a movement for transformational change. Economic, racial and environmental justice as well as an end to war can be achieved. We are closer than we realize, efforts to stop us are a sign that the power structure is afraid of the people organizing to demand change.

Brett Kavanaugh Is Long Past His Sell-by Date as a Credible Human

I have been speaking with a number of people on the other side. We’ve had conversations ongoing for a while with regard to making sure that we do due diligence here….

— Senator Jeff Flake, Arizona Republican, September 28, 2018

When Jeff Flake says he’s been talking with people on the other side about doing due diligence regarding the Brett Kavanaugh Supreme Court nomination, that’s the sound of hypocrisy talking. Flake’s party destroyed due diligence the moment it decided to keep most of the records of Kavanaugh’s government service secret. Think about that. It doesn’t seem the Democrats thought much about it. They made some token complaints before rolling over and saying, in effect, that’s OK, this guy worked for the executive branch on polarizing, partisan issues for years, but we don’t really need to know what he did even though taxpayers were paying him to do it. Seriously, whatever his involvement with Vince Foster’s suicide or the Starr investigation into Monica Lewinsky or shutting down the vote count in the 2000 election or building a bogus case for an illegal war in Iraq or developing justifications for torture and other war crimes, we don’t need to know about any of that. And so we don’t.

A bipartisan conspiracy of silence was treated as a reasonable approach to vetting a chronic liar whose known views would take this country in the opposite direction from where a majority of the people appear to want it to go. With that corrupt two-party bargain in place, the risk of an actual, factual record for the candidate was too great a risk to take. And then Dr. Christine Blasey Ford finally emerged with a credible tale of Kavanaugh and Mark Judge, both drunk and laughing hysterically, trying to rape her in an eerie enactment of a “devil’s triangle” (which Kavanaugh, with presumably unintended irony, would later testify falsely was a “drinking game” – a game for the drinkers, perhaps, but not so much the victim). This was one of the lesser dark areas of Kavanaugh’s case that persuaded Jeff Flake to play both sides of the aisle to no clear purpose (continuing his September 28 statement):

And I think it would be proper to delay the floor vote for up to, but not more than, one week in order to let the FBI continue—to do an investigation, limited in time and scope, to the current allegations that are there, and limit in time to no more than one week….

Acting as if he were proposing something brave, Flake suggested postponing the floor vote, not the committee vote, a gesture that is so antithetical to itself as to be a moral cypher. If there is reason to postpone the floor vote, then there is at least as much reason to postpone the committee. The committee vote by definition pre-judges the floor vote. The committee vote maintains the nomination’s momentum, even as Flake pretends to pause for reflection while the FBI investigates.

But his proposal isn’t a good faith postponement. Flake does not seek a serious, credible FBI investigation that follows the facts wherever they might lead. Acting in patent bad faith, he calls for an investigation of limited time and scope, conditions that increase the likelihood of an inadequate investigation. And Flake calls for an investigation limited “to the current allegations,” which is tantamount to calling for a cover-up of any future allegations, or any further allegations developing out of current allegations. Having called for a process that could appear as fairness without significant risk of actual fairness, Flake concluded his statement:

And I will vote to advance the bill to the floor with that understanding.

Flake’s fellow Republicans professed to be shocked – shocked! – by his resort to subterfuge while moving the Kavanaugh nomination forward. Then they promptly went along with it. As did the president, with a still secret order implementing it. Flake may have imagined himself as the subject of a profile in courage, even though his action accomplished nothing. It was a profile in cowardice cloaked in hypocrisy. Little wonder this plan has been unraveling almost since it was put in place. Actual courage would have led Flake to vote against sending the nomination to the floor of the Senate until all Kavanaugh’s dishonesties, anger issues, and judicial temperament questions had been satisfactorily answered. A relatively simple example, when Kavanaugh says in his opening statement under oath:

Dr. Ford’s allegation is not merely uncorroborated, it is refuted by the very people she says were there, including by a longtime friend of hers. Refuted.

This is false. None of Dr. Ford’s allegations were refuted by anyone. Dr. Ford’s allegations have not been effectively rebutted by anyone. Kavanaugh has denied them. His supporters have said, in effect, I can’t imagine he’d do such a thing. But there is NO evidence that counters Dr. Ford’s allegations. And Kavanaugh knows that: right before claiming “refutation” Kavanaugh himself acknowledged that “the very people she says were there” have all said they don’t remember anything. Kavanaugh doesn’t mention that the “longtime friend” has said she believes Dr. Ford.

Why does this matter?

Any decent judge should know the difference between “refute” and “rebut,” and should take care not to assert refutation where none exists. If Kavanaugh is deliberately lying here, that should be disqualifying for service on the Supreme Court, or any court. If Kavanaugh is not lying, the dishonesty with which he presents and evaluates evidence should be disqualifying for his holding any judgeship.

Kavanaugh made a point of saying he wrote his own opening statement, with help from no one. He says he showed it to one former law clerk (who apparently had nothing to say about the misuse of “refute”). Kavanaugh insisted that it was all his own work, as was this passage:

This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.

That’s a pretty remarkable charge for a sitting judge to make without offering any supporting evidence. The record suggests it’s not entirely true (at best), since Dr. Ford tried to come forward in July, when Kavanaugh first appeared on the short list of possible nominees. The fact that Dr. Ford’s name was not public until September 17 was not her doing, and nothing in the record supports the notion that these events were “a calculated and orchestrated political hit.” Kavanaugh’s statement here smacks of raw, right-wing partisanship based not on fact but bias.

We do not want any more judges acting on bias rather than facts. We should have the FBI investigate Kavanaugh’s fervent claims. We should begin by believing him. We should provide a public hearing in which he may put forward any factual basis for his claim that he is the victim of an attempted political rape by unnamed attackers.

Kavanaugh Is The Wrong Nominee For Our Times

Demonstrators protest outside of Supreme Court after Judge Brett Kavanaugh was chosen by President Trump as his nominee for the high court. From FOX 45 DC twitter.

The Kavanaugh confirmation process has been a missed opportunity for the United States to face up to many urgent issues on which the bi-partisans in Washington, DC are united and wrong.

Kavanaugh’s career as a Republican legal operative and judge supporting the power of corporations, the security state and abusive foreign policy should have been put on trial. The hearings could have provided an opportunity to confront the security state, use of torture, mass spying and the domination of money in politics and oligarchy as he has had an important role in each of these.

Kavanaugh’s behavior as a teenager who likely drank too much and was inappropriately aggressive and abusive with women, perhaps even attempting rape, must also be confronted. In an era where patriarchy and mistreatment of women are being challenged, Kavanaugh is the wrong nominee for this important time. However, sexual assault should not be a distraction that keeps the the public’s focus off other issues raised by his career as a conservative political activist.

A demonstration against the Supreme Court nomination of Judge Brett M. Kavanaugh outside the Capitol this month. Credit Erin Schaff for The New York Times

The Security State, Mass Spying and Torture

A central issue of our era is the US security state — mass spying on emails, Internet activity, texts and phone calls. Judge Kavanaugh enabled invasive spying on everyone in the United States.  He described mass surveillance as “entirely consistent” with the US Constitution. This is a manipulation of the law as the Constitution plainly requires probable cause and a search warrant for the government to search an individual.

Kavanaugh explained in a decision, “In my view, that critical national security need outweighs the impact on privacy occasioned by this [NSA] program.” This low regard for protecting individual privacy should have been enough for a majority of the Senate to say this nominee is inappropriate for the court.

Kavanaugh ruled multiple times that police have the power to search people, emphasizing “reasonableness” as the standard for searching people. He ruled broadly for the police in searches conducted on the street without a warrant. He ruled in favor of broader use of drug testing of federal employees. Kavanaugh applauded Justice Rehnquist’s views on the Fourth Amendment, which favored police searches by defining probable cause in a flexible way and creating a broad exception for when the government has “special needs” to search without a warrant of probable cause. In this era of police abuse through stop and frisk, jump out squads and searches when driving (or walking or running) while black, Kavanaugh is the wrong nominee and should be disqualified.

Kavanaugh also played a role in the Bush torture policy. Torture is against US and international law, certainly facilitating torture should be disqualifying not only as a justice but should result in disbarment as a lawyer. Kavanaugh was appointed by President Trump, who once vowed he would “bring back waterboarding and … a hell of a lot worse than waterboarding.” Minimizing torture is demonstrated in his rulings; e.g., not protecting prisoners at risk of torture and not allowing people to sue the government on allegations of torture.

Torture is a landmine in the Senate, so Kavanaugh misled the Senate, likely committing perjury on torture.  In his 2006 confirmation, he said he was “not involved” in “questions about the rules governing detention of combatants.” Tens of thousands of documents have been kept secret by the White House about Kavanaugh from the Bush era. Even so, during these confirmation hearings documents related to the nomination of a lawyer involved in the torture program showed Kavanaugh’s role in torture policies leading Senator Dick Durbin to write:

It is clear now that not only did Judge Kavanaugh mislead me when it came to his involvement in the Bush Administration’s detention and interrogation policies, but also regarding his role in the controversial Haynes nomination.

Durbin spoke more broadly about perjury writing:

This is a theme that we see emerge with Judge Kavanaugh time and time again – he says one thing under oath, and then the documents tell a different story.  It is no wonder the White House and Senate Republicans are rushing through this nomination and hiding much of Judge Kavanaugh’s record—the questions about this nominee’s credibility are growing every day.

Perjury allegations should be investigated and if proven should result in him not being confirmed.

This should have been enough to stop the process until documents were released to reveal Kavanaugh’s role as Associate White House Counsel under George Bush from 2001 to 2003 and as his White House Staff Secretary from 2003 to 2006. Unfortunately, Democrats have been complicit in allowing torture as well; e.g., the Obama administration never prosecuted anyone accused of torture and advanced the careers of people involved in torture.

Shouldn’t  the risk of having a torture facilitator on the Supreme Court be enough to stop this nomination?

Protesters show there are a lot of reasons to reject Kavanaugh (Photo from NARAL Twitter)

Corporate Power vs Protecting People and the Planet

In this era of corporate power, Kavanaugh sides with the corporations. Ralph Nader describes him as a corporation masquerading as a judge.  He narrowly limited the powers of federal agencies to curtail corporate power and to protect the interests of the people and planet.

This is evident in cases where Kavanaugh has favored reducing restrictions on polluting corporations. He dissented in cases where the majority ruled in favor of environmental protection but has never dissented where the majority ruled against an environmental interest. He ruled against agencies seeking to protect clean air and water. If Kavanaugh is on the court, it will be much harder to hold corporations responsible for the damage they have done to the climate, the environment or health.

Kavanaugh takes the side of businesses over their workers with a long history of anti-union and anti-labor rulings. A few examples of many, he ruled in favor of the Trump Organization throwing out the results of a union election, sided with the management of Sheldon Adelson’s Venetian Casino Resort upholding the casino’s First Amendment right to summon police against workers engaged in a peaceful demonstration — for which they had a permit, affirmed the Department of Defense’s discretion to negate the collective bargaining rights of employees, and overturned an NLRB ruling that allowed Verizon workers to display pro-union signs on company property despite having given up the right to picket in their collective bargaining agreement. In this time of labor unrest and mistreatment of workers, Kavanaugh will be a detriment to workers rights.

Kavanough opposed the Federal Communications Commission (FCC) ruling in favor of net neutrality, which forbids telecom companies from discrimination on the Internet. He argued net neutrality violated the First Amendment rights of Internet Service Providers (ISP) and was beyond the power granted to the FCC. He put the rights of big corporations ahead of the people having a free and open Internet. The idea that an ISP has a right to control what it allows on the Internet could give corporations great control over what people see on the Internet. It is a very dangerous line of reasoning in this era of corporations curtailing news that challenges the mainstream narrative.

In 2016, Kavanaugh was asked if he believed that money spent during campaigns represents speech, and is protected by the First Amendment and answered: “Absolutely.”  Kavanaugh joined in decisions and wrote opinions consistent with efforts to oppose any attempt by Congress or the Federal Elections Commission to restrict campaign contributions or expenditures. His view that free speech allows unrestricted money in elections will add to the avalanche of big money politics. Wealthy elites and big corporations will have even greater influence with Kavanaugh on the court.

Kavanaugh will be friendly to powerful business and the interests of the wealthy on the Supreme Court, and will tend to stand in the way of efforts by administrative agencies to regulate them and by people seeking greater rights.

Kavanaugh protesters call for his rejection over sexual assault call to Believe Survivors (Photo by Carol Kaster Associated Press)

Women’s Rights, Abortion and Sexual Assault

Judge Kavanaugh has not ruled on Roe v. Wade and whether the constitution protects a woman’s right to have an abortion. In 2017, Kavanaugh gave a Constitution Day lecture to the conservative American Enterprise Institute where he praised Justice Rehnquist and one of the cases he focused on was his dissent in Roe. Rehnquist opposed making abortion constitutionally protected, writing, it was not “rooted in the traditions and conscience of our people.”  Shortly after that speech, Kavanaugh wrote a dissent that argued an immigrant minor in government detention did not have a right to obtain an abortion.

On the third day of his confirmation hearings, Judge Brett Kavanaugh seemed to refer to the use of contraception as “abortion-inducing drugs.” It was a discussion of a case where Kavanaugh dissented from the majority involving the Priests for Life’s challenge to the Affordable Care Act (ACA). Kavanaugh opposed the requirement that all health plans cover birth control, claiming that IUDs and emergency contraception were an infringement of their free exercise of religion.

Multiple accusers have come forward to allege Kavanaugh’s involvement in sexual assault and abuse. While Dr. Christine Blasey Ford is viewed as credible — she was the only witness allowed to testify — it is not clear these allegations will be thoroughly reviewed. After being approved by the committee, the Republican leadership and President Trump agreed on a limited FBI investigation. It is unclear whether the FBI will be allowed to follow all the evidence and question all the witnesses. As we write this newsletter, the outcome has yet to unfold. If there is corroborating evidence for the accusers, Kavanaugh should not be approved.

A Republican Political Operative As A Justice?

Kavanaugh has been a legal operative for the Republican Party involved in many high profile partisan legal battles. He spent three years working for Ken Starr on the impeachment of Bill Clinton where he pressed Starr to ask Clinton sexually graphic details about his relationship with Monica Lewinisky. He tried to expand the Starr investigation into the death of Vince Foster, whose death had been ruled a suicide. He was a lead author of the infamous Starr Report—widely criticized as “strain[ing] credulity” and being based on “shaky allegations.”

Kavanaugh was one of George W. Bush’s lawyers in the litigation after the election in 2000, which sought to block a recount of ballots in Florida, resulting in a decision that handed the presidential election to Bush. In the Bush administration, he was involved in pushing for conservative judges as well as controversial policies like torture.

During his confirmation process, in response to the accusations of assault, he claimed they were “a calculated and orchestrated political hit” and “revenge on behalf of the Clinton’s.” He demonstrated partisan anger and displayed a lack of judicial temperament, making him unfit to serve on the Supreme Court.

Kavanaugh exposes the true partisan nature of the highest court, which is not a neutral arbiter but another battleground for partisan politics. The lack of debate on issues of spying, torture and more shows both parties support a court that protects the security state and corporate interests over people and planet. Accusations of sexual assault must be confronted, but there are many reasons Kavanaugh should not be on the court. The confirmation process undermines the court’s legitimacy and highlights bi-partisan corruption.

Suspending the Constitution

That was when they suspended the Constitution. They said it would be temporary. There wasn’t even any rioting in the streets. People stayed home at night, watching television, looking for some direction. There wasn’t even an enemy you could put your finger on.

— Margaret Atwood, The Handmaid’s Tale

We can pretend that the Constitution, which was written to hold the government accountable, is still our governing document.

The reality we must come to terms with, however, is that in the America we live in today, the government does whatever it wants, freedom be damned.

“We the people” have been terrorized, traumatized, and tricked into a semi-permanent state of compliance by a government that cares nothing for our lives or our liberties.

The bogeyman’s names and faces may change over time (terrorism, the war on drugs, illegal immigration, etc.), but the end result remains the same: our unquestioning acquiescence to anything the government wants to do in exchange for the phantom promise of safety and security.

Thus, in the so-called name of national security, the Constitution has been steadily chipped away at, undermined, eroded, whittled down, and generally discarded to such an extent that what we are left with today is but a shadow of the robust document adopted more than two centuries ago.

Most of the damage, however, has been inflicted upon the Bill of Rights—the first ten amendments to the Constitution—which historically served as the bulwark from government abuse.

A recitation of the Bill of Rights—set against a backdrop of government surveillance, militarized police, SWAT team raids, asset forfeiture, eminent domain, over-criminalization, armed surveillance drones, whole body scanners, stop and frisk searches (all sanctioned by Congress, the White House, the courts and the like)—would understandably sound more like a eulogy to freedoms lost than an affirmation of rights we truly possess.

Here is what it means to live under the Constitution today.

The First Amendment is supposed to protect the freedom to speak your mind, assemble and protest nonviolently without being bridled by the government. It also protects the freedom of the media, as well as the right to worship and pray without interference. In other words, Americans should not be silenced by the government. To the founders, all of America was a free speech zone.

Despite the clear protections found in the First Amendment, the freedoms described therein are under constant assault. Increasingly, Americans are being arrested and charged with bogus “contempt of cop” charges such as “disrupting the peace” or “resisting arrest” for daring to film police officers engaged in harassment or abusive practices. Journalists are being prosecuted for reporting on whistleblowers. States are passing legislation to muzzle reporting on cruel and abusive corporate practices. Religious ministries are being fined for attempting to feed and house the homeless. Protesters are being tear-gassed, beaten, arrested and forced into “free speech zones.” And under the guise of “government speech,” the courts have reasoned that the government can discriminate freely against any First Amendment activity that takes place within a government forum.

The Second Amendment was intended to guarantee “the right of the people to keep and bear arms.” Essentially, this amendment was intended to give the citizenry the means to resist tyrannical government. Yet while gun ownership has been recognized by the U.S. Supreme Court as an individual citizen right, Americans remain powerless to defend themselves against SWAT team raids and government agents armed to the teeth with military weapons better suited for the battlefield. As such, this amendment has been rendered null and void.

The Third Amendment reinforces the principle that civilian-elected officials are superior to the military by prohibiting the military from entering any citizen’s home without “the consent of the owner.” With the police increasingly training like the military, acting like the military, and posing as military forces—complete with heavily armed SWAT teams, military weapons, assault vehicles, etc.—it is clear that we now have what the founders feared most—a standing army on American soil.

The Fourth Amendment prohibits government agents from conducting surveillance on you or touching you or invading you, unless they have some evidence that you’re up to something criminal. In other words, the Fourth Amendment ensures privacy and bodily integrity. Unfortunately, the Fourth Amendment has suffered the greatest damage in recent years and has been all but eviscerated by an unwarranted expansion of police powers that include strip searches and even anal and vaginal searches of citizens, surveillance (corporate and otherwise) and intrusions justified in the name of fighting terrorism, as well as the outsourcing of otherwise illegal activities to private contractors.

The Fifth Amendment and the Sixth Amendment work in tandem. These amendments supposedly ensure that you are innocent until proven guilty, and government authorities cannot deprive you of your life, your liberty or your property without the right to an attorney and a fair trial before a civilian judge. However, in the new suspect society in which we live, where surveillance is the norm, these fundamental principles have been upended. Certainly, if the government can arbitrarily freeze, seize or lay claim to your property (money, land or possessions) under government asset forfeiture schemes, you have no true rights.

The Seventh Amendment guarantees citizens the right to a jury trial. Yet when the populace has no idea of what’s in the Constitution—civic education has virtually disappeared from most school curriculums—that inevitably translates to an ignorant jury incapable of distinguishing justice and the law from their own preconceived notions and fears. However, as a growing number of citizens are coming to realize, the power of the jury to nullify the government’s actions—and thereby help balance the scales of justice—is not to be underestimated. Jury nullification reminds the government that “we the people” retain the power to ultimately determine what laws are just.

The Eighth Amendment is similar to the Sixth in that it is supposed to protect the rights of the accused and forbid the use of cruel and unusual punishment. However, the Supreme Court’s determination that what constitutes “cruel and unusual” should be dependent on the “evolving standards of decency that mark the progress of a maturing society” leaves us with little protection in the face of a society lacking in morals altogether.

The Ninth Amendment provides that other rights not enumerated in the Constitution are nonetheless retained by the people. Popular sovereignty—the belief that the power to govern flows upward from the people rather than downward from the rulers—is clearly evident in this amendment. However, it has since been turned on its head by a centralized federal government that sees itself as supreme and which continues to pass more and more laws that restrict our freedoms under the pretext that it has an “important government interest” in doing so.

As for the Tenth Amendment’s reminder that the people and the states retain every authority that is not otherwise mentioned in the Constitution, that assurance of a system of government in which power is divided among local, state and national entities has long since been rendered moot by the centralized Washington, DC, power elite—the president, Congress and the courts. Indeed, the federal governmental bureaucracy has grown so large that it has made local and state legislatures relatively irrelevant. Through its many agencies and regulations, the federal government has stripped states of the right to regulate countless issues that were originally governed at the local level.

If there is any sense to be made from this recitation of freedoms lost, it is simply this: our individual freedoms have been eviscerated so that the government’s powers could be expanded.

Yet those who gave us the Constitution and the Bill of Rights believed that the government exists at the behest of its citizens. It is there to protect, defend and even enhance our freedoms, not violate them.

It was no idle happenstance that the Constitution opens with these three powerful words: “We the people.” As the Preamble proclaims:

We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this CONSTITUTION for the United States of America.

In other words, we have the power to make and break the government. We are the masters and they are the servants. We the American people—the citizenry—are the arbiters and ultimate guardians of America’s welfare, defense, liberty, laws and prosperity.

Still, it’s hard to be a good citizen if you don’t know anything about your rights or how the government is supposed to operate.

As the National Review rightly asks, “How can Americans possibly make intelligent and informed political choices if they don’t understand the fundamental structure of their government? American citizens have the right to self-government, but it seems that we increasingly lack the capacity for it.”

Americans are constitutionally illiterate.

Most citizens have little, if any, knowledge about their basic rights. And our educational system does a poor job of teaching the basic freedoms guaranteed in the Constitution and the Bill of Rights. For instance, when Newsweek asked 1,000 adult U.S. citizens to take America’s official citizenship test, 44% were unable to define the Bill of Rights.

A survey by the Annenberg Public Policy Center found that a little more than one-third of respondents (36 percent) could name all three branches of the U.S. government, while another one-third (35 percent) could not name a single one. Only a quarter of Americans (27 percent) know it takes a two-thirds vote of the House and Senate to override a presidential veto. One in five Americans (21 percent) incorrectly thinks that a 5-4 Supreme Court decision is sent back to Congress for reconsideration. And more than half of Americans do not know which party controls the House and Senate.

A 2006 survey by the McCormick Tribune Freedom Museum found that only one out of a thousand adults could identify the five rights protected by the First Amendment. On the other hand, more than half (52%) of the respondents could name at least two of the characters in the animated Simpsons television family, and 20% could name all five. And although half could name none of the freedoms in the First Amendment, a majority (54%) could name at least one of the three judges on the TV program American Idol, 41% could name two and one-fourth could name all three.

It gets worse.

Many who responded to the survey had a strange conception of what was in the First Amendment. For example, 21% said the “right to own a pet” was listed someplace between “Congress shall make no law” and “redress of grievances.” Some 17% said that the First Amendment contained the “right to drive a car,” and 38% believed that “taking the Fifth” was part of the First Amendment.

Teachers and school administrators do not fare much better. A study conducted by the Center for Survey Research and Analysis found that one educator in five was unable to name any of the freedoms in the First Amendment.

In fact, while some educators want students to learn about freedom, they do not necessarily want them to exercise their freedoms in school. As the researchers conclude:

Most educators think that students already have enough freedom, and that restrictions on freedom in the school are necessary. Many support filtering the Internet, censoring T-shirts, disallowing student distribution of political or religious material, and conducting prior review of school newspapers.

Government leaders and politicians are also ill-informed. Although they take an oath to uphold, support and defend the Constitution against “enemies foreign and domestic,” their lack of education about our fundamental rights often causes them to be enemies of the Bill of Rights.

So what’s the solution?

Thomas Jefferson recognized that a citizenry educated on “their rights, interests, and duties” is the only real assurance that freedom will survive.

As Jefferson wrote in 1820:

I know no safe depository of the ultimate powers of our society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.

From the President on down, anyone taking public office should have a working knowledge of the Constitution and the Bill of Rights and should be held accountable for upholding their precepts. One way to ensure this would be to require government leaders to take a course on the Constitution and pass a thorough examination thereof before being allowed to take office.

Some critics are advocating that students pass the United States citizenship exam in order to graduate from high school. Others recommend that it must be a prerequisite for attending college. I’d go so far as to argue that students should have to pass the citizenship exam before graduating from grade school.

Here’s an idea to get educated and take a stand for freedom: anyone who signs up to become a member of The Rutherford Institute gets a wallet-sized Bill of Rights card and a Know Your Rights card. Use this card to teach your children the freedoms found in the Bill of Rights.

If this constitutional illiteracy is not remedied and soon, freedom in America will be doomed.

As I make clear in my book Battlefield America: The War on the American People, we have managed to keep the wolf at bay so far. Barely.

Our national priorities need to be re-prioritized. For instance, some argue that we need to make America great again. I, for one, would prefer to make America free again.

As actor-turned-activist Richard Dreyfuss warned:

Unless we teach the ideas that make America a miracle of government, it will go away in your kids’ lifetimes, and we will be a fable. You have to find the time and creativity to teach it in schools, and if you don’t, you will lose it. You will lose it to the darkness, and what this country represents is a tiny twinkle of light in a history of oppression and darkness and cruelty. If it lasts for more than our lifetime, for more than our kids’ lifetime, it is only because we put some effort into teaching what it is, the ideas of America: the idea of opportunity, mobility, freedom of thought, freedom of assembly.

The Bourgeois Conception of “Free Speech” in the U$

In Part 1, I talked about the power of social media giants and claims of “free speech” on their platforms. Again, I am referring just to the U$, as I am most familiar with the debate on “free speech” there. In the future I may expand this analysis to other capitalist countries. The bourgeois conception of “free speech” is so ingrained that Nadine Strossen, a former president of the ACLU, can spout on The Real News about a “we the people” government in the U$, while declaring that government regulation through net neutrality and antitrust laws, along with consumer pressure, and “free speech” (or counter speech) can stop the bigots in their tracks. This is a laughable notion from a person who says porn should be tolerated (not restricted or banned), is currently a contributor for the Federalist Society, criticized campus speech restrictions, and was a friend and fan of Antonin Scalia! She also, infamously, defended the actions of former ACLU president Anthony Romero, who had agreed to “screen the organization’s employees against terrorist “watch lists”…in order to qualify as an officially approved charity for federal employees,” advising the “Ford Foundation to “parrot” the Patriot Act in formulating controversial new restrictions on the speech of its grantees,” and trying to impose “very broad confidentiality agreement and technology rules on ACLU employees,” as argued by former ACLU board member Wendy Kaminer, who also harshly criticized the organization for its policies on civil liberty. As The Onion joked in one article, when Strossen was president, the ACLU declared that it would “”vigorously and passionately defend” the Georgia chapter of the American Nazi Party’s First Amendment right to freely express its hatred of the ACLU by setting its New York office ablaze on Nov. 25.” That’s how ridiculous the ACLU is, without a doubt.

Last year, the Supreme Court held in Packingham v. North Carolina that a North Carolinian law that restricted access of sex offenders to social media violated the First Amendment. More than that, this case, which was the first major case on the topic since the Reno v. ACLU case in 1997, opens the floodgates for “free speech” to apply to the internet as the latter is considered analogous to a public forum, perhaps leading to further jurisprudence. But more than being a supposed victory for “free expression,” which was likely cheered on by the ACLU, Justice Anthony Kennedy’s majority opinion raises the question of what parts of the internet would fall under First Amendment protection. In this opinion, followed by a blistering dissent from Samuel Alito, Kennedy, clearly a tech optimist, wrote that the First Amendment is a “fundamental principle” meaning that “all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more,” adding that this now applies to cyberspace, including social media, with users engaging in a “wide array” of “First Amendment activity” that is “legitimate” and “protected.”

He added that the digital age has a “vast potential to alter how we think, express ourselves, and define who we want to be” which can quickly change, while implying that the First Amendment may offer some protection for access to social media and the internet. As for social media, he argued that it not only allows “users to gain access to information and communicate with one another about it on any subject that might come to mind” but that it is the “modern public square” that, in his view, allows for people to explore “the vast realms of human thought and knowledge…mak[ing] his or her voice heard.” This is clearly an optimistic view of social media which often is filled with utter and mundane garbage. I think social media includes many more pictures of people showing off their dogs, newborn babies, and silly cat videos, than those who engage in discussion that opens “human thought and knowledge.” What is Kennedy smoking here?

With this decision, the arguments of those like the ACLU that want “an uncensored Internet, a vast free-speech zone,” the EFF that wants “sufficient legal protections for users and innovators,” and Strossen, are clearly boosted. Still, this does not mean there will be “free speech” on the internet anytime soon. While the general conception is that “anyone can say anything online,” this is not only changing but it is inaccurate because intimidation is not protected speech on the internet, along with inciting violence, making threats of violence, privacy invasion, defamation, copyright infringement, inciting a riot or inducing lawbreaking, “fighting words,” false advertising, and disrupting school activities, to name a few. While some say that the First Amendment asserts that one can express themselves “without interference or constraint by the government,” the fact is that a government can “place reasonable restrictions on free speech, such as those that restrict the time, place, and manner of the speech.”

Some have tried to use the Packingham decision to declare that there should be “free speech” on the internet. Others, like White nationalists and Neo-Nazis, have gone even further to draw a parallel between private shopping centers and social media platforms! If this connection was to be made, which is a remote and absurd possibility, those on social media would not be able to “unreasonably intrude” on the private property rights of these platforms, having to “reasonably exercise” their rights while their ideas would not be allowed to have “free rein.” Additionally, their words and actions would have to be deemed peaceful, orderly, and not disturbing the functioning of these platforms, with the latter allowed to restrain the “time, place, and manner” of user’s speech. They could be prohibited from imposing “blanket and total prohibition on the exercise of First Amendment activities” of users but they would also be allowed to restrict those engaging such speech so they did not obstruct or unduly interfere with “normal business operations” or does not impede, distract, or interfere with the business itself.

Furthermore, anyone who engaged in substantial damage or physical obstruction of social media could be restricted or banned, along with being prohibited from annoying and harassing individuals. At the same time, while users could have the right to “freedoms of speech and religion” they could also be restricted if there was a public space where they could use their rights apart from social media, and by the fact that the U$ Constitution provides no protection or redress from a private person or corporation, with the 1st and 14th Amendment not applying to action “by the owner of private property used only for private purposes.” This is not what the bigots would want! Even with these interpretations, Twitter could still say it is a private sector company, which requires users to abide by their rules. Additionally, it is worth noting that these social media platforms are not public since the “supposed public square is actually a small group of digital platforms owned by an even smaller group of giant transnational corporations,” a fact that should be obvious.1. Even Mozilla, which says that “the principle of free speech is a foundation of Western democracy” admits that “free speech gets more complicated in private spaces – that is, spaces not owned by the government…private businesses have every right, legally, to refuse service to individuals who don’t adhere to their stated policies.”

Jimmy Dore and others have said the First Amendment should be applied to Facebook (and other social media) because they see it as a public space and have also said that such outlets should be public utilities. Now, in order to be a public utility, these social media companies would have to be classified the same as other companies providing “a service to the public such as transport, energy, telecommunications, waste disposal, or water and any other public goods and services.” The question arises: are companies like Facebook, Twitter, and YouTube, to give a few examples, public service corporations that engage in operations that “serve the needs of the general public or conduce to the comfort and convenience of an entire community,” which currently includes “railroads, gas, water, and electric light companies”? Well, we know they are clearly private companies with operations which are “executed by private individuals,” comprising some of those in the corporate (or private) sector which is “responsible for the allocation of the majority of resources” within a capitalist economy.

Now, to be a public service company, they would have to “provide a service to the public” which includes “transport, communications and the like.” These social media platforms likely would fall into the category of public service company rather than a public service corporation because they do not necessarily serve the needs of the general public or conduce convenience or comfort of an entire community. Instead they gather private information and make it public, selling it for profit, having great power over people’s lives. Likely such efforts to make social media a public utility will fall flat because the U$ government is legally obligated to “preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation” even with other provisions on civil liability.

The bourgeois conception of “free speech” is broadly held across the Western World. Even the Universal Declaration of Human Rights that recognizes the “right to freedom of thought, conscience and religion” (Article 18) and “right to freedom of opinion and expression” (Article 19) is limited by the fact that everyone can be subject to legal limitations to secure respect and recognition for freedom and rights of others, along with meeting “the just requirements of morality, public order and the general welfare in a democratic society” (Article 29).

There are many laws across the world when it comes to speech, with some countries trying to experiment different levels of censorship online, irking those who defend the bourgeois conception of “freedom of speech,” with some even bringing in anti-communist rhetoric to complain about “the lack of transparency found in Soviet-style governance structures” disappearing in Eastern Europe. Some, like the horrid organization, FIRE (Foundation for Individual Rights in Education) have declared that “the best antidote to tyranny is free and spirited debate, not suppression of speech,” which Jimmy Dore basically expressed on his show, while others like HRW or The Guardian complain about the “Great Chinese Firewall” and challenges “journalists, bloggers and dissidents” have to undertake. This has led to a list of “enemies” of the internet and efforts to break through claimed “closed societies” (one organization gives the examples of Iran and China), believing that making these societies “open” will bring goodness to the world. This id despite the fact that the internet has “been a revolution for censorship as much as for free speech” as The Guardian admitted back in 2008, which anyone with sense would recognize.

Clearly, the majority of those in the Western Left are indoctrinated to think they are free, leading them attack other leftists across the world who holding power as noted by Andre Vltchek. However, his analysis is faulty since he incorrectly describes China, part of the revisionist triad (the other two countries in this triad are Laos and Vietnam), as communist when it has actually been on the capitalist road since 1976, with a form of state-supported form of capitalism which is different from that of the West, and saying that Russia’s policy is “clearly anti-imperialist” when it is actually just nationalistic.

Clearly, some individuals have more of an ability for speech than others. As the subreddit of /r/communism puts it rightly, which I still agree with even though I was ousted as a mod after I began criticizing China as capitalist rather than saying it is socialist (consensus of the subreddit’s mods), “speech, like everything else, has a class character, and that some speech can be oppressive.” This is something those who believe in the bourgeois conception of “free speech” cannot and will not acknowledge. As one person put on Twitter, after responding to a story that the court system in the U$ repealed a law forcing porn companies to “prove that their performers are of age,” that the principle of “free speech” in the U$ almost seems that it is “inherently bourgeois.”

In the capitalist society of the U$ this bourgeois conception of free speech manifests itself by capitalists like Robert Mercer, the Koch Brothers, George Soros, Pierre Omidyar, Mark Zuckerberg, Elon Musk, and many others, having the ability to publish and project their speech more than those on meager budgets. Basically, this means that ordinary people, the proletariat, have no influence (or power in) on the decision-making and politics of the U$ despite all rhetoric claiming they have such influence. How this manifests itself in the world of “free speech” is it means that those capitalists who are hatemongers can spread their horrid message far and wide while those who try to counter them get less exposure.2

We do not have to give such speech “respect” as some have declared we should, since there is the idea of the heckler’s veto, where a public event is canceled or suppressed due to “interruptions, protests, or violence” or the threat of such actions, one of the many tools, apart from de-platforming (not by social media outlets, but literally in person or by organizing against them online) which can be used to fight against bigoted or otherwise detestable individuals. In the end, there should be criticism (and efforts to counter) corporate control over information but this does not mean we have to defend hateful speech. Instead, those who speak truth to power, especially on the political Left, should be vigorously defended. As Michael Parenti once put it, “democratic victories, however small and partial they be, must be embraced…We need to strive in every way possible for the revolutionary unraveling, a revolution of organized consciousness striking at the empire’s heart with the full force of democracy, the kind of irresistible upsurge that seems to come from nowhere while carrying everything before it.” Victory to the proletariat! A socialist world is possible!

  1. Paul Blumenthal, “The Problem Isn’t Alex Jones’ Free Speech, It’s Digital Platform Monopolies,” HuffPost, August 11, 2018.
  2. The U$ is standing against principles outlined in many international agreements like the UN’s Millennium Declaration (in its section about equality between men and women and “participatory governance), the Vienna Declaration (has a section saying that the international community should comprehensively and speedily elimination all forms of racism, racial discrimination, xenophobia, and other intolerance), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (which says that all states have to pursue a policy of eliminating all forms of racial discrimination, promoting racial understanding, condemn racist propaganda, eradicate all incitement to discrimination, and declare those organizations that engage in racist propaganda illegal), and the International Covenant on Civil and Political Rights (1966) (with a section about how freedom of religion and beliefs is protected by subject to certain limitations, and that “propaganda of war” along with any “advocacy of national, racial or religious hatred” has to be prohibited).