Category Archives: Legal/Constitutional

Juan Guaidó: The Man Who Would Be President of Venezuela Doesn’t Have a Constitutional Leg to Stand On

Donald Trump imagines Juan Guaidó is the rightful president of Venezuela. Mr. Guaidó, a man of impeccable illegitimacy, was exposed by Cohen and Blumenthal as “a product of a decade-long project overseen by Washington’s elite regime change trainers.” Argentinian sociologist Marco Teruggi described Guaidó in the same article as “a character that has been created for this circumstance” of regime change. Here, his constitutional credentials to be interim president of Venezuela are deconstructed.

Educated at George Washington University in DC, Guaidó was virtually unknown in his native Venezuela before being thrust on to the world stage in a rapidly unfolding series of events. In a poll conducted a little more than a week before Guaidó appointed himself president of the country, 81% of Venezuelans had never even heard of the 35-year-old.

To make a short story shorter, US Vice President Pence phoned Guaidó on the evening of January 22nd and presumably asked him how’d he like to be made president of Venezuela. The next day, Guaidó announced that he considered himself president of Venezuela, followed within minutes by US President Trump confirming the self-appointment.

A few weeks before on January 5, Guaidó had been installed as president of Venezuela’s National Assembly, their unicameral legislature. He had been elected to the assembly from a coastal district with 26% of the vote. It was his party’s turn for the presidency of the body, and he was hand-picked for the position. Guaidó, even within his own party, was not in the top leadership.

Guaidó’s party, Popular Will, is a far-right marginal group whose most enthusiastic boosters are John Bolton, Elliott Abrams, and Mike Pompeo. Popular Will had adopted a strategy of regime change by extra-parliamentary means rather than engage in the democratic electoral process and had not participated in recent Venezuelan elections.

Although anointed by Trump and company, Guaidó’s Popular Will Party is not representative of the “Venezuelan opposition,” which is a fractious bunch whose hatred of Maduro is only matched by their abhorrence of each other. Leading opposition candidate Henri Falcón, who ran against Maduro in 2018 on a neoliberal austerity platform, had been vehemently opposed by Popular Will who demanded that he join their US-backed boycott of the election.

The Venezuelan news outlet, Ultimas Noticias, reported that prominent opposition politician Henrique Capriles, who had run against Maduro in 2013, “affirmed during an interview that the majority of opposition parties did not agree with the self-swearing in of Juan Guaidó as interim president of the country.”  Claudio Fermin, president of the party Solutions for Venezuela, wrote “we believe in the vote, in dialogue, we believe in coming to an understanding, we believe Venezuelans need to part ways with the extremist sectors that only offer hatred, revenge, lynching.” Key opposition governor of the State of Táchira, Laidy Gómez, has rejected Guaidó’s support of intervention by the US, warning that it “would generate death of Venezuelans.”

The Guaidó/Trump cabal does not reflect the democratic consensus in Venezuela, where polls consistently show super majorities oppose outside intervention. Popular opinion in Venezuela supports negotiations between the government and the opposition as proposed by Mexico, Uruguay, and the Vatican. The Maduro administration has embraced the negotiations as a peaceful solution to the crisis facing Venezuela.

The US government rejects a negotiated solution, in the words of Vice President Pence: “This is no time for dialogue; this is time for action.” This intransigent position is faithfully echoed by Guaidó. So while most Venezuelans want peace, the self-appointed president, backed by the full force of US military power, wrote in a New York Times op-ed that it was possible to “end the Maduro regime with a minimum of bloodshed.”

The Guaidó/Trump cabal’s fig leaf for legitimacy is based on the bogus argument that Article 233 of the Venezuelan constitution gives the National Assembly the power to declare a national president’s “abandonment” of the office. In which case, the president of the National Assembly can serve as an interim national president, until presidential elections are held. The inconvenient truth is that Maduro has shown no inclination to abandon his post, and the constitution says no such thing.

In fact, the grounds for replacing a president are very clearly laid out in the first paragraph of Article 233 of the Venezuelan constitution and do not include fraudulent or illegitimate election, which is what the cabal has been claiming. In the convoluted logic of the US government and its epigones, if the people elect someone the cabal doesn’t like, the election is by definition fraudulent and the democratically elected winner is ipso facto a dictator.

The function of adjudicating the validity of an election, as in any country, is to be dealt with through court challenges, not by turning to Donald Trump for his approval. And certainly not by anointing an individual from a party that could have run in the 2018 election but decided to boycott.

The Supreme Tribunal of Justice (TSJ), which is the separate supreme court branch of the Venezuelan government has certified Maduro’s reelection, as have independent international observers. Further, no appeal was filed by any of the boycotting parties, while all participating parties – including opposition ones – signed off on the validity of the election after the polls closed.

The far-right opposition has boycotted the high court as well as the electoral process. They contest the legitimacy of the TSJ because some members of the TSJ were appointed by a lame duck National Assembly favorable to Maduro, after a new National Assembly with a majority in opposition had been elected in December 2015 but not yet seated.

Even if President Maduro were somehow deemed to have experienced what is termed a falta absoluta (i.e., some sort of void in the presidency due to death, insanity, absence, etc.), the National Assembly president is only authorized to take over if the falta absoluta occurs before the lawful president “takes possession.” However, Maduro was already “in possession” before the January 10, 2019 presidential inauguration and even before the May 10, 2018 presidential election. Maduro had won the presidency in the 2013 election and ran and won reelection last May.

If the falta absoluta is deemed to have occurred during the first four years of the presidential term, the vice president takes over. Then the constitution decrees that a snap election for the presidency must be held within 30 days. This is what happened when President Hugo Chávez died while in office in 2013. Then Vice President Nicolás Maduro succeeded to the presidency, called for new elections, and was elected by the people of Venezuela.

If it is deemed that the falta absoluta occurred during the last two years of the six-year presidential term, the vice president serves until the end of the term, according to the Venezuelan constitution. And if the time of the alleged falta absoluta is unclear – when Maduro presided over “illegitimate” elections in 2018, as is claimed by the far-right opposition – it is up to the TSJ to decide, not the head of the National Assembly or even such an august authority as US Senator Marco Rubio. Or the craven US press (too numerous to cite), which without bothering to read the plain language of the Bolivarian Constitution, repeatedly refers to Guaidó as the “constitutionally authorized” or “legitimate” president.

As Alfred de Zayas, United Nations independent expert on the promotion of a democratic and equitable international order, tweeted: “Article 233 of the Venezuelan constitution is inapplicable and cannot be twisted into legitimizing Guaidó’s self-proclamation as interim President. A coup is a coup.”

The State of the Union: These Are Dangerous Times, and the Government Is To Blame

As I look at America today, I am not afraid to say that I am afraid.

— Bertram Gross, Friendly Fascism: The New Face of Power in America

These are dangerous times.

Mind you, when I say that these are dangerous times, it is not because of violent crime, which remains at an all-time low, or because of terrorism, which is statistically rare, or because our borders are being invaded by armies, which data reports from the Department of Homeland Security refute.

No, the real danger that we face comes from none other than the U.S. government and the powers it has granted to its standing army to rob, steal, cheat, harass, detain, brutalize, terrorize, torture and kill.

The danger “we the people” face comes from masked invaders on the government payroll who crash through our doors in the dark of night, shoot our dogs, and terrorize our families.

This danger comes from militarized henchmen on the government payroll who demand absolute obedience, instill abject fear, and shoot first and ask questions later.

This danger comes from power-hungry bureaucrats on the government payroll who have little to no understanding of their constitutional limits.

This danger comes from greedy politicians and corporations for whom profit trumps principle.

You want to know about the state of our union? It’s downright scary.

Consider for yourself.

Americans have no protection against police abuse. It is no longer unusual to hear about incidents in which police shoot unarmed individuals first and ask questions later, such as the 16-year-old teenager who skipped school only to be shot by police after they mistook him for a fleeing burglar. Then there was the unarmed black man in Texas “who was pursued and shot in the back of the neck by Austin Police… after failing to properly identify himself and leaving the scene of an unrelated incident.” And who could forget the 19-year-old Seattle woman who was accidentally shot in the leg by police after she refused to show her hands? What is increasingly common, however, is the news that the officers involved in these incidents get off with little more than a slap on the hands.

Americans are little more than pocketbooks to fund the police state. If there is any absolute maxim by which the federal government seems to operate, it is that the American taxpayer always gets ripped off. This is true, whether you’re talking about taxpayers being forced to fund high-priced weaponry that will be used against us, endless wars that do little for our safety or our freedoms, or bloated government agencies such as the National Security Agency with its secret budgets, covert agendas and clandestine activities. Rubbing salt in the wound, even monetary awards in lawsuits against government officials who are found guilty of wrongdoing are paid by the taxpayer.

Americans are no longer innocent until proven guilty. We once operated under the assumption that you were innocent until proven guilty. Due in large part to rapid advances in technology and a heightened surveillance culture, the burden of proof has been shifted so that the right to be considered innocent until proven guilty has been usurped by a new norm in which all citizens are suspects. This is exemplified by police practices of stopping and frisking people who are merely walking down the street and where there is no evidence of wrongdoing. Likewise, by subjecting Americans to full-body scans and license-plate readers without their knowledge or compliance and then storing the scans for later use, the government—in cahoots with the corporate state—has erected the ultimate suspect society. In such an environment, we are all potentially guilty of some wrongdoing or other.

Americans no longer have a right to self-defense. In the wake of various shootings in recent years, “gun control” has become a resounding theme. Those advocating gun reform see the Second Amendment’s right to bear arms as applying only to government officials. As a result, even Americans who legally own firearms are being treated with suspicion and, in some cases, undue violence. In one case, a Texas man had his home subjected to a no-knock raid and was shot in his bed after police, attempting to deliver a routine search warrant, learned that he was in legal possession of a firearm. In another incident, a Florida man who was licensed to carry a concealed firearm found himself detained for two hours during a routine traffic stop in Maryland while the arresting officer searched his vehicle in vain for the man’s gun, which he had left at home. Incidentally, the Trump Administration has done more to crack down on Second Amendment rights than anything the Obama Administration ever managed.

Americans no longer have a right to private property. If government agents can invade your home, break down your doors, kill your dog, damage your furnishings and terrorize your family, your property is no longer private and secure—it belongs to the government. Likewise, if government officials can fine and arrest you for growing vegetables in your front yard, praying with friends in your living room, installing solar panels on your roof, and raising chickens in your backyard, you’re no longer the owner of your property.

Americans no longer have a say about what their children are exposed to in school. Incredibly, the government continues to insist that parents essentially forfeit their rights when they send their children to a public school. This growing tension over whether young people, especially those in the public schools, are essentially wards of the state, to do with as government officials deem appropriate, in defiance of the children’s constitutional rights and those of their parents, is reflected in the debate over sex education programs that expose young people to all manner of sexual practices and terminology, zero tolerance policies that strip students of any due process rights, let alone parental involvement in school discipline, and Common Core programs that teach students to be test-takers rather than critical thinkers.

Americans are powerless in the face of militarized police. In early America, citizens were considered equals with law enforcement officials. Authorities were rarely permitted to enter one’s home without permission or in a deceitful manner. And it was not uncommon for police officers to be held personally liable for trespass when they wrongfully invaded a citizen’s home. Unlike today, early Americans could resist arrest when a police officer tried to restrain them without proper justification or a warrant—which the police had to allow citizens to read before arresting them. (Daring to dispute a warrant with a police official today who is armed with high-tech military weapons and tasers would be nothing short of suicidal.) As police forces across the country continue to be transformed into outposts of the military, with police agencies acquiring military-grade hardware in droves, Americans are finding their once-peaceful communities transformed into military outposts, complete with tanks, weaponry, and other equipment designed for the battlefield.

Americans no longer have a right to bodily integrity. Court rulings undermining the Fourth Amendment and justifying invasive strip searches have left us powerless against police empowered to forcefully draw our blood, strip search us, and probe us intimately. Accounts are on the rise of individuals—men and women—being subjected to what is essentially government-sanctioned rape by police in the course of “routine” traffic stops. Remember the New Mexico man who was subjected to a 12-hour ordeal of anal probes, X-rays, enemas, and finally a colonoscopy—all because he allegedly rolled through a stop sign?

Americans no longer have a right to the expectation of privacy. Despite the staggering number of revelations about government spying on Americans’ phone calls, Facebook posts, Twitter tweets, Google searches, emails, bookstore and grocery purchases, bank statements, commuter toll records, etc., Congress, the president and the courts have done little to nothing to counteract these abuses. Instead, they seem determined to accustom us to life in this electronic concentration camp.

Americans no longer have a representative government. We have moved beyond the era of representative government and entered a new age, let’s call it the age of authoritarianism. History may show that from this point forward, we will have left behind any semblance of constitutional government and entered into a militaristic state where all citizens are suspects and security trumps freedom. Even with its constantly shifting terrain, this topsy-turvy travesty of law and government has become America’s new normal. It is not overstating matters to say that Congress, which has done its best to keep their unhappy constituents at a distance, may well be the most self-serving, semi-corrupt institution in America.

Americans can no longer rely on the courts to mete out justice. The U.S. Supreme Court was intended to be an institution established to intervene and protect the people against the government and its agents when they overstep their bounds. Yet through their deference to police power, preference for security over freedom, and evisceration of our most basic rights for the sake of order and expediency, the justices of the Supreme Court have become the architects of the American police state in which we now live, while the lower courts have appointed themselves courts of order, concerned primarily with advancing the government’s agenda, no matter how unjust or illegal.

I haven’t even touched on the corporate state, the military industrial complex, SWAT team raids, invasive surveillance technology, zero tolerance policies in the schools, overcriminalization, or privatized prisons, to name just a few, but what I have touched on should be enough to show that the landscape of our freedoms has already changed dramatically from what it once was and will no doubt continue to deteriorate unless Americans can find a way to wrest back control of their government and reclaim their freedoms.

There can be no denying that the world is indeed a dangerous place, but what you won’t hear in any State of the Union address—what the president and his cohorts fail to acknowledge—is that it’s the government that poses the gravest threat to our freedoms and way of life, and no amount of politicking, parsing or pandering will change that.

So what do we do about this dangerous state of our union?

How do we go about reclaiming our freedoms and reining in our runaway government?

Essentially, there are four camps of thought among the citizenry when it comes to holding the government accountable. Which camp you fall into says a lot about your view of government—or, at least, your view of whichever administration happens to be in power at the time.

In the first camp are those who trust the government to do the right thing, despite the government’s repeated failures in this department.

In the second camp are those who not only don’t trust the government but think the government is out to get them.

In the third camp are those who see government neither as an angel nor a devil, but merely as an entity that needs to be controlled, or as Thomas Jefferson phrased it, bound “down from mischief with the chains of the Constitution.”

Then there’s the fourth camp, comprised of individuals who pay little to no attention to the workings of government. Easily entertained, easily distracted, easily led, these are the ones who make the government’s job far easier than it should be.

It is easy to be diverted, distracted and amused by the antics of politicians, the pomp and circumstance of awards shows, athletic events, and entertainment news, and the feel-good evangelism that passes for religion today.

What is far more difficult to face up to is the reality of life in America, where unemployment, poverty, inequality, injustice and violence by government agents are increasingly norms.

As I make clear in my book Battlefield America: The War on the American People, the powers-that-be want us to remain divided, alienated from each other based on our politics, our bank accounts, our religion, our race and our value systems. Yet as George Orwell observed, “The real division is not between conservatives and revolutionaries but between authoritarians and libertarians.”

Court Uses Law’s Absurdity to Allow Unfit Kavanaugh to Remain as Justice

The allegations contained in the complaints [against Judge Kavanaugh] are serious, but the Judicial Council is obligated to adhere to the Act. Lacking statutory authority to do anything more, the complaints must be dismissed because an intervening event – Justice Kavanaugh’s confirmation to the Supreme Court – has made the complaints no longer appropriate for consideration under the Act…. Because it lacks jurisdiction to do so, the Council makes no findings on the merits of the complaints.

— Order of the Judicial Council of the US Tenth Circuit, December 18, 2018

That is the sound that eight federal judges make when they know full well they’re doing something rotten but can’t bring themselves to defend the integrity of their own judicial system.

This order deals with complaints against federal judge Brett Kavanaugh, whose reputation for perjurious testimony is documented at least as far back as 2004. Last summer, the US Senate gave only cursory attention to whether Kavanaugh had repeatedly lied under oath on a variety of occasions, including the Senate judiciary committee hearings of 2018. Kavanaugh was a federal district judge from May 30, 2006, until October 6, 2018, when he was sworn in as a Supreme Court justice. At that time, the majority of 83 ethical conduct complaints addressing his behavior as a district judge had already been filed. In an unusual procedure, the Tenth Circuit Judicial Council has made these 83 complaints public on its website, while concealing the identities of the complainants.

The first batch of Kavanaugh complaints went to the DC Circuit, which passed them to Supreme Court Chief Justice John Roberts, who passed them on to the Tenth Circuit on October 10. At that time I wrote in Reader Supported News that the credibility of the US judicial system was the core issue in the Kavanaugh case:

The stakes are as high as they are simple: Will our court system choose to defend the position one 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 still true, as the Kavanaugh complaints appear headed back to the Chief Justice’s lap for further action, or inaction.

It took the eight judges of the Tenth Circuit Judicial Council just over two months to decide to do nothing about any of the 83 misconduct complaints against Judge Kavanaugh. Worse, the court’s order asserted in a strained legal argument that there was nothing that could be done legally about the 83 misconduct complaints against Judge Kavanaugh for one reason, and one reason only – because he had become Justice Kavanaugh. That’s the whole argument: that Kavanaugh gets to escape judicial accountability, and his getaway car is his seat on the Supreme Court. This is cultural madness and legal absurdity. What were those Tenth Circuit judges thinking?

What they actually do is create a legal fiction, starting with a false assertion in the first sentence: “Complaints of judicial misconduct have been filed against Supreme Court Justice Brett M. Kavanaugh….” In fact, most of the complaints were filed against Kavanaugh when he was a district judge. All the complaints cite judicial misconduct by Kavanaugh as a district judge. The false statement of reality is necessary to support the wonderland the judges need to escape dealing with what the court saw as the substance of the charges:

… that Justice [sic] Kavanaugh made false statements during his nomination proceedings to the D.C. Circuit in 2004 and 2006 and to the Supreme Court in 2018; made inappropriate partisan statements that demonstrate bias and a lack of judicial temperament; and treated members of the Senate Judiciary Committee with disrespect.

Much of this is beyond reasonable dispute. Both professional and lay witnesses abound. More than 2,400 law professors are on record opposing Kavanaugh as unfit to serve on the Supreme Court. Even Kavanaugh has acknowledged and quasi-apologized for some of the behavior in the 83 complaints. The Tenth Circuit judges acknowledge that the complaints are “serious” but then choose to make “no findings on the merits of the complaints.” How is this not deliberate judicial malpractice?

The answer to that is a legal quibble. According to the Tenth Circuit judges, the applicable statute for federal district judges is not applicable to Supreme Court justices. This is certainly true in the sense that if the complaints made against Kavanaugh referred to his behavior as a justice, the statute would not apply. The statute is the Judicial Conduct and Disability Act, 28 USC 351 et seq., which applies specifically to federal circuit judges, district judges, bankruptcy judges, and magistrate judges. It is one of the abiding scandals of American government that the Supreme Court is subject to no rules of ethics of its own and that Congress has done little to remedy the ridiculous result: that those with the most authority are held the least accountable. Or as the Tenth Circuit judges put it:

… the complaints must be dismissed because, due to his elevation to the Supreme Court, Justice Kavanaugh is no longer a judge covered by the Act. See 28 USC 352(b)(1)(A)(i). [emphasis added]

The court thereby creates a reality in which:

(1)  Over a period of 13 years as a judge, Kavanaugh committed objectionable acts;

(2)  Complaints were lawfully filed in response to his objectionable acts;

(3)  Some complaints were based on objectionable acts Kavanaugh committed before he was a circuit judge and subject to the Act, but these complaints were not dismissed;

(4)  Despite unambiguous jurisdiction at the time of the acts and unambiguous jurisdiction at the time of the filing of the complaints, the Tenth Circuit claims it’s helpless to act.

The Tenth Circuit does not explain, or even address, this absurdity. The court’s order argues that “The Act thus applies only to complaints that allege that one of those covered judges [which Kavanaugh was] ‘has engaged in conduct prejudicial to the effective and expeditious administration of the courts’ “ [which Kavanaugh patently did as a circuit judge]. The court holds that whatever Kavanaugh did as a judge that was complained about while he was still a judge can all be ignored because of an “intervening event,” such as a judge’s death. Kavanaugh did not die, although he kind of went to heaven. The court cites Rule 11(e) to justify its abdication of anything like the rule of law. Rule 11(e) in its entirety says:

Intervening Events. The chief judge may conclude the complaint proceeding in whole or in part upon determining that intervening events render some or all of the allegations moot or make remedial action impossible.

Kavanaugh’s elevation to the high court did not make any of the complaints moot. If anything, his elevation made them more pertinent than ever. Kavanaugh’s elevation to the high court hardly made remedial action impossible, although it probably makes remedial action more difficult. The court’s order cites four precedents for its action, three of which are irrelevant (involving judges who were transferredretired, or whose objectionable behavior was before becoming a judge). The one relevant citation involves several judges for whom the dismissed complaint is ruled “frivolous” as well as Supreme Court Justice Clarence Thomas, who is dismissed “for want of jurisdiction” as a sitting justice. The relevance here is about as slim as it gets, comparing one “frivolous” complaint to Justice Kavanaugh’s 83 complaints acknowledged by the court to be “serious.”

As described by the court’s order, the judicial council held no hearings, examined no evidence for its probative value, or otherwise investigated any of the 83 complaints against Kavanaugh. The court dismissed those complaints solely on the tenuous jurisdictional basis that they were out of the court’s reach. The court chose not to discuss any other possibly more judicious responses to the prickly Kavanaugh case, leaving the country still saddled with a justice palpably unfit for his office.

The court defended its conclusion by noting that Congress, in other instances, had indeed included justices under its statutes and offered as an example 28 US Code 455 – “Disqualification of justice, judge, or magistrate judge.” This statute is likely to become increasingly important as long as Kavanaugh remains on the bench, since it mandates that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Kavanaugh’s televised performance of personal bias against Democrats and his stated conspiracy beliefs should be enough to disqualify him from a wide range of political cases. With 83 serious conduct complaints to be examined, it might take less time to assess what cases there are where Kavanaugh could reasonably avoid disqualification.

Nor is the impeachment of Justice Kavanaugh off the table. That’s a distant outcome under present circumstances, but as the court’s order notes in its penultimate paragraph:

The importance of ensuring that governing bodies with clear jurisdictions are aware of the complaints should also be acknowledged. See Nat’l Comm’n on Judicial Discipline and Removal, “Report of the Nat’l Comm’n on Judicial Discipline & Removal,” 152 F.R.D. 265, 342-43 (1994). Accordingly we request that the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States forward a copy of this Order to any relevant Congressional committees for their information. [emphasis added]

For now, the Republican judicial atrocity represented by Justice Kavanaugh sits undisturbed. The Tenth Circuit’s order is subject to appeal until January 29, 2019. As of January 9, a Tenth Circuit court spokesperson declined to say if any appeal had yet been filed, citing appellant confidentiality. One of the self-identified complainants, retired attorney Larry Behrendt, filed his five-page complaint October 2, concluding:

Judge Kavanaugh made repeated, inappropriate partisan statements to the Senate Judiciary Committee during his testimony on September 28, and is thus guilty of misconduct under the Act [28 USC 351ff] and the Rules. This misconduct is particularly egregious, as it took place in front of millions of people, at a time when scrutiny of the law and the judiciary is at its highest, and where Kavanaugh had a clear duty to display judicial temperament and deportment.

After the Tenth Circuit Judicial Council skirted any serious consideration of Behrendt’s complaint or the 82 others, the attorney published an op-ed explaining why he thought the court was wrong. He noted that the law is silent on how to handle a nexus of offenses under transitional circumstances like Kavanaugh’s. That hardly makes it likely that the intent of Congress was to give a lying partisan a free pass to the Supreme Court. Behrendt says he hasn’t decided whether to appeal the Tenth Circuit order. Maybe the Tenth Circuit will find some backbone. Maybe the chief justice will care more about his court’s integrity than the slippery hack who is its newest member. Until someone finds the courage to confront the truth of this legal fiasco the rest of us are stuck with a lifetime travesty of justice.

Glossip v. Gross: the Eighth Amendment and the Torture Court of the United States

On June 29, 2015 the United States Supreme Court argued in Glossip v. Gross that executions may continue with the use of lethal drug cocktails including the use of midazolam, an extremely painful drug, which in effect, burns to death the condemned by scorching internal organs. The use of midazolam, according to the Court, does not constitute “cruel and unusual punishment” under the Eighth Amendment. The Court found that condemned prisoners can only challenge their method of execution after providing a known and available alternative method.

In dissenting views justices opened the legal door for future challenges to the death penalty. In a meticulously crafted dissent Justice Stephen G. Breyer joined by Justice Ruth Bader Ginsburg initiated a timely counterargument to capital punishment. This was joined by Justices Elena Kagan and Sonia Sotomayor in diverging dissents of their own. The dissents were significant in that they outline the legal framework for the abolition of the death penalty based on the Eighth Amendment. Nevertheless, Sotomayor and Kagan argued in separate opinions that the use of lethal chemicals in executions was intolerably painful.

In turn this begged the question, for many, as to whether or not executions could ever be legitimized since executions must necessarily involve physical or mental pain. In all democratic societies, intentionally inflicting pain on another human being is torture.

This article addresses the Court’s concerns, expressed in Justice Samuel Alito’s majority opinion, that protests against Glossip’s anticipated execution was a “guerilla war” against the death penalty and that inflicting physical or mental pain intentionally on a human being is an acceptable component of execution and consistent with the U.S. Constitution.

*****

In Gregg v. Gerogia (1976) the Supreme Court of the United States ruled in a 7-2 decision that capital punishment did not violate the Eighth Amendment. This, in effect, reversed Furman v. Georgia (1972) which placed a moratorium on capital punishment in the United States. Robert Bork argued the case for the United States, that capital punishment and judicious use of the death penalty may be appropriate if carefully used. The Supreme Court argued that the Court was not prepared to overrule the Georgia legislature who has by law defined capital punishment an effective tool in the deterrence of future capital crimes and as an appropriate means of social retribution (retributive justice) against the most serious offenders

On April 29, 2015, the Supreme Court heard oral arguments in Glossip v. Gross, a case which challenged the use of the anti-anxiety drug midazolam in lethal injection executions. Petitioners argued in their brief to the Court that there is “undisputed evidence . . . that midazolam cannot reliably ensure the ‘deep, coma-like unconsciousness’ required where a State intends to cause death with painful drugs” (Brief for Petitioner at p. 29). Use of this drug to carry out executions by lethal injection does not comport with the Eighth Amendment’s prohibition on cruel and unusual suffering. In the last year alone, midazolam was used in several botched executions. Then on June 29, 2015, in a 5-4 decision, the Supreme Court issued its opinion in Glossip v. Gross, ruling that the anti-anxiety medication midazolam is constitutional for use as the first drug in a three-drug lethal injection formula. The case was brought by death row prisoners in Oklahoma, who argued that the state’s use of midazolam in this manner creates an “objectively intolerable risk of harm.”

The Glossip ruling evidenced two Justices directly challenging the legal foundation of capital punishment based on the Eighth Amendment which prohibits “cruel and unusual punishment.” Indeed, states such as Nebraska have recently abolished the death penalty based on the Eighth Amendment, making it the nineteenth state to do so, and the seventh to abolish capital punishment since 2007. Nonetheless, a majority of justices on the Supreme Court at the time – John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito – still maintain the constitutionality of the death penalty, as argued in Glossip.

In Baze v. Rees (2008), the Supreme Court reviewed the three-drug protocol then used for lethal injection by at least thirty states, in which the first drug, an short-acting barbiturate, rendered the prisoner unconscious, and the second and third drugs, a paralytic and potassium chloride, paralyzed the prisoner and stopped the heart. The Court noted that the first drug, the barbiturate, causes a “deep, coma-like unconsciousness” and therefore “ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs.” The Oklahoma drug protocol challenged in Glossip was also a three-drug protocol that uses a paralytic and potassium chloride as the second and third drugs, but it substitutes the benzodiazepine midazolam for the first drug, creating risk of “severe pain, needless suffering and a lingering death.”

As the Brief for Petitioner states:

In Baze, there was consensus that sodium thiopental, if properly administered, would produce deep coma-like unconsciousness. With midazolam, the opposite is true. Midazolam is not approved for use as the sole anesthetic for painful surgery. Clinical studies showed that midazolam does not reliably induce deep unconsciousness; when used in surgery, patients felt pain. The medical consensus is that midazolam cannot generate deep, coma-like unconsciousness. There is also no substantial practice among the states of using midazolam for lethal injections. Although sodium thiopental was widely used in lethal injections for years, only four states have used midazolam in an execution, and only two have tried to use it as anesthesia. On these undisputed facts, the use of midazolam to create deep coma-like unconsciousness presents an “objectively intolerable risk of harm” (Baze, 553 U.S.).

*****

Midazolam is not a barbiturate, but a benzodiazepine commonly used in pre-operative settings to alleviate anxiety. It is the shortest-acting drug in the same class of anti-anxiety drugs as Xanax, Atavan and Valium. All of the experts who testified in a three-day hearing in Oklahoma in December 2014, including the state’s expert, agree that midazolam has a ceiling effect, above which additional dosing has no additional effect, and no analgesic (pain-relieving) qualities (Joint Appendix to Brief for Petitioner, medical testimony from three-day hearing at pp. 199, 256, 274). The four states which have used midazolam in lethal injection executions are Arizona, Florida, Ohio and Oklahoma. Three executions that used midazolam triggered formal state investigations into why they did not go as planned (Brief for Petitioner at p. 31). In all of these botched executions, the prisoners initially appeared to lose consciousness, but then started moving and demonstrating signs of struggle and suffering.

Glossip v. Gross originated in federal court in Oklahoma as a response to the botched execution of Clayton Lockett on April 29, 2014. Charles Warner was originally one of the Petitioners, but the Court denied a stay of execution in his case, and he was executed using midazolam in a three-drug formula on January 15, 2015, just eight days before the Court accepted this case for review. On January 28, 2015, the Court stayed the executions of the three Petitioners, Richard Glossip, John Grant and Benjamin Cole, who are Oklahoma death row prisoners. In their Petition for Certiorari, Petitioners asked the Court to “provide urgently needed guidance” to prisoners and courts addressing new, experimental lethal injection protocols.

In her dissent from the denial of a stay for Charles Warner, Justice Sonia Sotomayor, joined by three other justices, recognized that the district court relied on a “single purported expert” who testified from suspect sources and in a manner that contradicts empirical data. Justice Sotomayor explained, “In contending that midazolam will work as the State intends, Dr. Evans cited no studies, but instead appeared to rely primarily on the Web site www.drugs.com. Here, given the evidence before the District Court, I struggle to see how its decision to credit the testimony of a single purported expert can be supported given the substantial body of conflicting empirical and anecdotal evidence.”

Justice Breyer, who has served twenty years on the Supreme Court, never argued that the death penalty was unconstitutional. What both Breyer and Ginsburg argued was that new evidence over the past two decades had convinced them that the death penalty is costly, ineffective, and unreliable, not that it was necessarily inhumane. Their argument was based on cost-effectiveness, efficiency, and the real possibility of wrongful execution. More than one hundred death row inmates had their convictions or sentences dismissed in the last decade.

Nevertheless, in the majority opinion Justice Alito countered Sotomayor and Kagen’s view arguing that pain is simply part of what constitutes an execution. He states, “Because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”1 Breyer, nevertheless argued, that the broader issue of wrongful convictions takes greater precedence since executing innocent people can never be remediated. Moreover, Breyer and Ginsburg argued that “increasingly lengthy delays” of several decades between convictions and executions undermined the deterrence argument that executions deter crimes.2

Prior to Glossip, Justices Breyer and Ginsburg, in essence, echoed the opinion of Justice Harry Blackmun who, in 1994, argued that the death penalty in the United States was unable to be impartial toward minorities, specifically African Americans. Likewise, in 2008, Justice John Paul Stevens concluded that the death penalty was arbitrary and unreliable as a deterrent and ineffective in terms of punishment. However, in Glossip, Justices Sonia Sotomayor and Elena Kagen, while not joining in Breyer and Ginsburg’s dissent, nevertheless wrote what could arguably be the strongest dissent. The two justices claimed that the majority on the court allowed a “method of execution that is intolerably painful – even to the point of being the chemical equivalent of burning alive.”

*****

Alito’s position is one in which the inflicting of pain on others, as torture, is a necessary component of execution. This is a plausible position to hold. However, in that Alito and the majority argue that torture does not contradict the U.S. Constitution and the Eighth Amendment is subject to serious question.

*****

As stated earlier, torture is the act of deliberately inflicting severe physical or psychological pain on a human being by another as a punishment or in order to fulfill some desire of the torturer or force some action from the victim. Torture, by definition, is a knowing and intentional act; deeds which unknowingly or negligently inflict suffering or pain, without a specific intent to do so, are not typically considered torture. But under U.S. law, ignorance of the law is no excuse.

Torture has been carried out or sanctioned by individuals, groups, and states throughout history from ancient times to modern day, and forms of torture can vary greatly in duration from only a few minutes to several days or longer. Reasons for torture can include punishment, revenge, political re-education, deterrence and even coercion.

Alternatively, some forms of torture are designed to inflict psychological pain or leave as little physical injury or evidence as possible while achieving the same psychological devastation. The torturer may or may not kill or injure the victim, but torture may result in a deliberate death and serves as a form of capital punishment. Depending on the aim, even a form of torture that is intentionally fatal may be prolonged to allow the victim to suffer as long as possible, such as half-hanging or even inadvertently seizing in pain from lethal injections.

In other cases, the torturer may be indifferent to the condition of the victim or simply take delight in the sadistic gratification of torture in whatever form.

This indifference best fits the Alito majority. On one hand, indifference may be its most compassionate form of torture, while on the other it very well could mean that sociopaths exist on the highest court in the land. And in Glossip the Eighth Amendment is once again desecrated and Alito’s majority decision exalts the deviant status of the Torture Court of the United States.

  1. Glossip v. Gross, June 29, 2015, No. 14-7955, SCOTUS, I, A, Majority Opinion, Justice Alito, Roberts, Thomas, Kennedy, Scalia, Oyez, ITT Chicago-Kent College of Law, Illinois Institute of Technology.
  2. Death Penalty Focus, Working for Alternatives to the Death Penalty, May 31, 2013.

Canada’s Respect for the Rule of Law and Its Sacred Obligation to First Nations

It is time for a renewed, nation-to-nation relationship with First Nations peoples, one that understands that the constitutionally guaranteed rights of First Nations in Canada are not an inconvenience but rather a sacred obligation.

— Canadian prime minister Justin Trudeau speaking to First Nation leaders, 8 December 2015

In Part 1, it was noted that Canadian politicians repeatedly claim that Canada is a nation bound by the rule of law.

People can claim whatever they want; that does not make the claim true. Likewise anyone can pooh-pooh a claim. But that doesn’t refute the claim. Bogus claims are revealed by providing sufficient evidence to counter the deceit.

Although there are myriad examples to adduce that Canada is not a country bound by the rule of law, this article will focus on one current example.

It is important to first acknowledge the irrefutable fact that Canada is a nation established through the denationalization of other states. This was wrought by genocide and dispossession.1

Canada’s Respect for the Rule of Law and the Wet’suwet’en

Located in the central interior of the province colonially designated British Columbia are the people of the Wet’suwet’en First Nation. Coastal GasLink considers this terrain as the most suitable to lay a pipeline. This, though, has not received the consent of the Dinï ze’ and Ts’akë ze’ (Hereditary chiefs); in fact, the proposal from Coastal Gaslink was unanimously turned down.

However, a recent Supreme Court of BC decision granted an injunction permitting pipeline corporations to the enter the unceded territory of the Wet’suwet’en. Consequently, the Wet’suwet’en erected a second checkpoint farther down the road on Gitdumt’en Territory. The injunction was then expanded to encompass the entire forest service road, including the second checkpoint.

The below Real News network report makes clear that the legal process was a sham.

The Wet’suwet’en interpret the 1997 Supreme Court of Canada Delgamuukw v. Queen decision as conferring them the right to meaningful consultation which they say has not happened in the current case.

Freda Huson, the Spokeswoman for the Unist’ot’en stated,

The plaintiffs in the landmark Delgamuukw Supreme Court of Canada case are the Hereditary Chiefs and their members. Government and Industry are breaking their own laws when they choose to only consult with Indian Act band councils. The propaganda writers for the Pacific Trails Pipeline like to say that they have 15 First Nation People’s support, when in fact they have only been talking to Indian Act communities. That has to stop. This struggle to protect our lands is not about holding out for financial gain. It is about protecting our lands from destructive practices from industry. Our actions will not only benefit our future generations but everyone’s future generations.

The United Nations Declaration on the Rights of Indigenous Peoples

Initially, Canada was among four Anglo-Saxon settler-colonial countries that refused to sign on to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007 — the others being Aotearoa (New Zealand), Australia, and the United States. 144 countries did sign. Finally, Canada agreed to adopt the UNDRIP in 2016. However, the UNDRIP still awaits full implementation, and that process has its skeptics.

Mi’kmaq lawyer Pam Palmater sees the federal government ss mostly talk and little action.

“Canada is fooling people when it says it unconditionally supports UNDRIP,” said Palmater.

The UNDRIP has already had legal implications elsewhere. On 18 October 2007, the Supreme Court of Belize ruled in Cal v. Attorney General that the national government must recognize the indigenous Mayans’ customary tenure to land and refrain from any act that might prejudice their use or enjoyment of this land. This reversed the Belize government’s 2001 decision to give rights to resource industries on traditional Mayan lands thus preventing Mayans from farming.

The Chief Justice of Belize, Abdulai Conteh, stated that the Mayan people had preeminent rights to their land. Conteh held that Mayan rights to occupy their lands, farm, hunt and fish pre-date European colonization and remain currently in force.

Conteh also cited Delgamuukw v British Columbia, “Indigenous title is now correctly regarded as sui generis.” The fact of Indigenous peoples having inhabited a land over time had given them land title rights.

There are a number of articles in the UNDRIP that seem relevant to Indigenous peoples’ right to inhabit the land free from disturbance.2

Given the recent legal machinations against the Wet’suwet’en, among several outstanding issues dogging the federal government in its responsibilities and relations with First Nations, one would tend to regard the Trudeau government’s pronouncements about guaranteeing the rights of First Nations as a “sacred obligation” with deserved heavy skepticism.

It would seem that the same skepticism is deeply deserved for assertions of Canada’s dedication to the rule of law.

Meanwhile, the five Wet’suwet’en clans are reinforcing the second checkpoint while awaiting the expected police assault in supposed adherence to the rule of law — a rule of law imposed by settlers colonialists over a people who have never surrendered land they have lived on since time immemorial.

A 29 December 2018 email from the Unist’ot’en Solidarity Brigade warns, “When, not if, the RCMP move against the checkpoints it is not just First Nations land defenders in their sights – it is you, your family, the entire biosphere they will be attacking.”

  1. See Bruce Clark, Ongoing Genocide caused by Judicial Suppression of the “Existing” Aboriginal Rights (2018). Review; Bruce Clark, Justice in Paradise (McGill-Queen’s University Press, 1999); Splitting the Sky with She Keeps the Door, The Autobiography of Dacajeweiah, Splitting the Sky, John Boncore Hill: From Attica to Gustafsen Lake (John Pasquale Boncore, 2001). Tamara Starblanket, Suffer the Little Children: Genocide, Indigenous Nations and the Canadian State (Clarity Press, 2018). Review; 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). Review; James Daschuk, Clearing the Plains: Disease, Politics of Starvation, and the Loss of Aboriginal Life (University of Regina Press, 2013); Robert Davis and Mark Zannis, The Genocide Machine in Canada (Black Rose, 1973).
  2. See, e.g.,

    Article 3
    Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

    Article 7
    2. Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.

    Article 3
    Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

    Article 5
    Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

    Article 7
    2. Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.

    Article 8
    2. States shall provide effective mechanisms for prevention of, and redress for:
    b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;

    Article 18
    Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

    Article 25
    Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

    Article 26
    1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
    2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
    3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Canada and the Rule of Law

Canada’s fealty to the rule of law is much spoken of nowadays by Liberal politicians in regards to a current pending extradition request made by the United States to Canada. Canada became embroiled in the international trade spat between the US and China when it arrested Meng Wanzhou, the chief financial officer of telecommunications giant Huawei at the behest of the US government. Indeed, some more critical types would characterize it as nothing short of a kidnapping. Meng has been alleged to have broken US sanctions against business dealings with Iran. The charges against Meng, however, are not considered to violate any Canadian laws — nor, according to China’s embassy in Canada, any US laws.

As a justification for the high-profile arrest, a repeating media chorus is heard in the Canadian political scene:

Former foreign minister Peter McKay said, “… we are following our rule of law.”

Current foreign affairs minister Chrystia Freeland intoned, “Canadians expect me to stand up for the rules.”

Prime minister Justin Trudeau asserted, “Canada is and always will remain a country of the rule of law.”

Trudeau emphasized that “all through this and through whatever happens in the world Canada stays consistent with the rule of law and applying our judicial system and we always will.”

Mind you, these words about adherence to the rule of law are spoken by Canada’s first prime minister found to have broken federal ethics laws.

China, however, was having none of this. China’s Ministry of Foreign Affairs spokeswoman Hua Chunying forcefully stated,

The United States and Canada can’t continue to boast that they are abiding by the rule of law. But in my opinion this is simply a modern version of the emperor’s new clothes. No matter what excuse they use, they are displaying ignorance of the fact and contempt for the rule of law. They have become laughingstocks of the world.

What underpins the Rule of Law?

1. Accountability: all are accountable under the law.

2. Laws are Just: the laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights.

3. Open Government: enacts and applies laws that are accessible, fair, and efficient.

4. Accessible & Impartial Dispute Resolution1

*****

It is in-one’s-face obvious that the US sanctions law against Iran is unjust. What became an international agreement under president Barack Obama, the Joint Comprehensive Plan of Action aka the Iran nuclear deal, was shunted aside early into the Donald Trump presidency, this despite Iran always being found in compliance with the agreement. Thus it is the US which violates the terms of the agreement by its withdrawal and sanctioning Iran and other actors who deal with Iran.

Moreover, the legality of unilateral sanctions is questionable and they are considered to violate the tenets of the United Nations Charter.2

Seldom one to hold back, Trump bumbled into the legal proceeding and commented that he might intervene in the case of Meng, thereby politicizing the process. Nevertheless, given all these circumstances, Canadian officials continue to parrot the following-the-rule-of-law line

But does Canada really have a reverence for the rule of law?

In Part 2: what does the record indicate about Canada’s adherence to the rule of law.

  1. “What is the Rule of Law?” World justice Project.
  2. Rahmat Mohamad, “Unilateral Sanctions in International Law: A Quest for Legality,” in Marossi A., Bassett M. (eds) Economic Sanctions under International Law (The Hague: TMC Asser Press, 2015.)

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.