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To Alter Or To AbolishChapter 37Lessons LearnedWritten by Darrell Anderson. Your system was liable to periodical convulsions . . . business crises at intervals of five to ten years, which wrecked the industries of the nation. Edward Bellamy, Looking Backward Using the philosophy of statism and the illusion of a “social contract” theory, politicians today embrace a vague “mandate” of protecting the general health, safety, and welfare of all people. This approach is merely a mechanism for creating virtual perpetual motion through the captured labor of other people. Understanding this philosophy explains in large part the types of legislation enacted today, and, to those individuals who still value the concepts of free association and voluntary exchange — above health, safety, and welfare — why today’s legislative and judicial decisions might seem incredibly corrupt. Politicians no longer see the protection of individual boundaries as a foundational goal, but as a secondary one. Court judges provide lip service to protect boundaries, but if a controversy exists with promoting general health, safety, and welfare, the latter political philosophy usually prevails. Political agendas almost always trump property rights — the energy flows of those within the political system must be sustained. Many individuals wonder what happened to the Constitution. The idea of a fixed written constitution was intended to overcome the deficiencies of an unwritten one.[1] Most people fail to realize that, in reality, the Constitution never existed. Because of compromises and inherent vagueness,[2] the Constitution means whatever the powers-that-be have interpreted that document to mean.[3] Feudalism never truly disappeared, but converted by name into statism. The name of the social system changed, but the effects remained. This is a challenge with any written or unwritten political document or covenant — ambiguous words are subject to misinterpretation, and those who are empowered to do the interpreting will tend to promote self-interests at the expense of others. Attempting to manipulate the political system is apparent from the beginning. The attendees of the Constitutional Convention ran around the Articles of Confederation requirement for unanimous vote to ratify changes. John Marshall regularly interpreted the new document such that national interests trumped regional interests. Although many individuals believe the Constitutional ratification essentially was a coup d’état, such events should not be fully viewed as usurpation if people possess at all times the right to self-determination and secession — the right to alter or to abolish. However, for many individuals the challenge with such changes is restricting their worldview to embrace flawed concepts such as social contracts and statism. The Reconstruction congressional legislators bypassed the requirements of Article V and rammed the 13th, 14th, and 15th Amendments down the defeated southerners’ throats. New Deal Democrats didn’t even bother with amending the document, and merely found new ways to “reinterpret” its meaning. In his first inaugural address, Franklin D. Roosevelt declared, “Our Constitution is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form.” Court judges today routinely “interpret” the document to satisfy an illusionary “compelling interest” of “the state.” Mere documents never will deter individuals who seek the thrill of political power to gain their way. If all people possess the right “to alter or to abolish” their societies, then one must wonder why scholars and intellectuals justify these described changes as legitimate yet ridicule any modern talk of peaceful individual or collective secession. These examples show what happens when people place trust in fundamentally flawed concepts such as “parchment barriers” and “social contracts.” Despite the punctuating transitional moments of American history, many individuals fail to realize that a centralized process of statism existed from the beginning of the Constitution. Arguably the American system rejected the concepts of monopoly guilds and mercantilism,[4] yet hindsight demonstrates the emptiness of that claim. Some individuals might argue that this original political system was impotent and designed to be self-checking, but that argument fails because by definition a political system is an organization of people who use force and coercion to sustain energy flows. An alligator newly hatched from the egg might be cute and harmless, but nonetheless grows into a terrifying creature. Thus, the Great American Experiment failed. The experiment failed for many reasons. The nation-state and all constitutions are built upon the flawed foundations of a concept known as the “implied social contract.” In actuality, no such contract exists. Nor can any such “contract” ever exist because the concepts of free association, voluntary exchange, and explicit consent, taken to a logical conclusion, denies any uninvited association. Political constitutions fail because of a flawed foundation that a “limited government” can exist only through an entity known as the “the state.” Although many individuals recognize that “limited government” begins with self-government, few people have considered ending the discussion at that point. Despite an understanding of fundamental rights, many people nonetheless presume that because of human nature, some semblance of Hobbesian statist political system is necessary to limit the actions of people. Read any typical civics or economics textbook to validate that presumption. The American experiment failed because the foundations were flawed. To be more specific, the foundations were compromised the moment the national Constitution was ratified.[5] In short, the Framers sought a “limited government,” but did so within the mindset of the philosophy of statism. They believed a political state was a necessary evil. With that belief, the Framers proceeded to form something called “limited government,” but through compromise provided a document that in later years proved too ambiguous to provide meaningful structure and limitations. The experiment failed because the right to consent and secession were ignored and violently quashed. Perhaps the first mistake committed by the southerners was not firing upon Fort Sumter, but forming a second confederation of states. The people within each seceding state should have remained as unique and separate societies. Northerners and Lincoln then would have had to attack several “nations” or “peoples” rather than one. Politically, morally, and logistically that would have been difficult to do. The experiment failed because of a flawed concept that the United States Supreme Court judges are the ultimate interpreters and arbiters of the Constitution,[6] thereby allowing politicians to seek and justify their own existence. Anti-Federalists predicted the then-new constitution provided opportunities for Supreme Court judges to usurp their position, and that Court judges eventually never would be overturned. No less than the Supreme Court judges themselves have claimed this illusionary power. Chief Justice Marshall “officially” began the policy in Marbury v. Madison,[7] declaring, “It is emphatically the province and duty of the judicial department to say what the law is.” In a 1907 speech, Charles Evans Hughes, then governor of New York, declared that the “Constitution is what the Supreme Court says it is.”[8] Hughes later became a Supreme Court judge. In 1958, in Cooper v. Aaron,[9] the Supreme Court judges punctuated that illusion by stating, “This decision [Marbury] declared the basic principle that the federal judiciary is supreme in the exposition of The Law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” The debate never has been about judicial review, but judicial supremacy.[10] Logically, if members of the judicial branch claim supremacy, then there are no inherent checks and balances. The psychological effect of such a policy effectively granted both legislative and executive enforcement powers to the judicial members of the political system. Court judges today routinely (and incorrectly) issue “court orders” prohibiting and compelling specific performance; and issuing “contempt” rulings if those “orders” are ignored. Long lost is the idea that in a system of so-called “checks and balances” court judges provide a declaratory purpose only, enforcement being the domain of an executive branch or the awarded claimant. The experiment failed because the ideas of nationalism, centralism, industrialism, and protectionism opened the doors to almost unlimited regulation of everyday life in trade and commerce, substituting license and monopoly for liberty. Opportunities abounded for creating virtual perpetual motion through the captured labor of other people. The guild system, mercantilism, and feudalism hardly were dead. The modern age of science convinced many people that perfect laws could be written, and that statutes and regulations could be efficient and “self-executing.” As administrative law increased, legislators could not keep pace and soon were delegating legislative and judicial power to administrative bureaucrats. Court judges could not keep pace, and eventually sanctioned those same agents with newfound judicial power, as long as they followed nominally sanctioned procedures of due process. The nightmare forewarned by Montesquieu[11] and the Anti-Federalists rose from its shallow grave as all three branches of the political system were woven into the administrative agency.[12] The modern bureaucracy was born. Add the presumption of being guilty and having to prove innocence, as well as internal police enforcement agencies, and no individual or property was safe. The concept of self became meaningless. The tyranny of the philosophy of nationalism ruled.[13] The experiment failed because the political system was allowed to become a living creature, rather than remain a mere collection of humble human servants. Political systems at all levels were incorporated, rising out of the ashes to pronounce themselves living, breathing entities — legal fictions. Such legal fictions opened doors to introducing vague and uncertain doctrines, such as “a clear and present danger” or a “rational basis.” The Constitution itself is filled with legal fictions,[14] beginning, for example, with the first three words “We the people . . . .” Politicians and bureaucrats hid behind these veils, declared themselves “sovereign,” and with corresponding illusion of fiat statutes and ordinances became immune to most legal actions. The experiment failed because of a cultural shift from objectively protecting rights, property, and contracts to subjectively protecting “health, safety, and welfare.” Although protecting “health, safety, and welfare” is rather straightforward when rights, property, and contracts are defined, the reverse is not necessarily true. Often the protection of rights, property, and contracts suffer when the former is the focus. The concepts of free association and voluntary exchange become meaningless. For those individuals who believe the Contract Clause of the Constitution has clout,[15] read the Legal Tender Cases,[16] Muller v. Oregon,[17] Home Building and Loan Ass’n. v. Blaisdell,[18] Gold Clause Cases.[19] For more modern cases, read Energy Reserves Group v. Kansas Power and Light Co.,[20] or Exxon Corp. v. Eagerton.[21] “Rights” that did not exist soon appeared and rights that had been commonly acknowledged disappeared. The concept of self became meaningless. Consider sterilization laws that were upheld in Buck v. Bell,[22] where Justice Oliver Wendell Holmes, Jr. opined that “Three generations of imbeciles are enough”; or Skinner v. Oklahoma.[23] Private business owners[24] soon found themselves regulated in order to accommodate the illusion of “public” mandates and “needs.” Limits on excluding — a fundamental attribute of property rights — eventually were rechanneled into “affirmative” rights.[25] The shift from protecting property rights to endorsing “civil rights” (privileges) was caused by the concern of many people that the propertied elite throughout history often benefited the most from political processes and typically at the expense of others.[26] However, that response only exasperated the problem because the root cause never was attacked — the political processes that create those privileges. The desire to enslave other people permeated almost every aspect of the entire political and social system. Adversarial raw acquisition prevailed. These continual shifts enabled the endless “wars” on drugs and terrorism; expansion of imperialistic thinking in foreign policy; numerous “victimless crimes” resulting in asset forfeitures that benefit primarily those individuals doing the seizing; the substitution of political license for liberty; the taking of property through regulation, eminent domain, and direct confiscation; the seemingly endless attempts to redistribute wealth and resources; and recently the abatement of liberty for the illusion of security. Today, legal plunder and social disorder are the norm. The experiment failed because of defective definitions. The lack of definitions created many gray and hazy areas through which numerous factions found their standing. Every human is a subjective individual living in a world of interpretation, and language is an extension of that process. The process of language requires some agreement of the terms being used. A lack of definitions or vague definitions invites confusion. Without some effort at providing fundamental definitions, people have no foundations to avoid many conflicts. The history of America is evidence of this lack of foundation. The Constitutional Convention’s committee on style did a lot of revising to provide a shorter, tighter-reading document. They wanted a poetic sounding document. They did well — too well. Without a few additional words, huge doors were later opened to obscure any possible hope of comprehending original intent. Within a few short years some attendees of the convention no longer could say for sure what certain words meant. In an effort to provide a simpler, easily implemented document,[27] important details were left aside, focusing instead on broad principles. Perhaps a document of only underlying principles can be written, but ignoring definitions and foundational statements merely provides opportunity for abuse. The experiment failed because along the way the door was removed from the hinges so that intentional trespasses against an individual or property were no longer seen as torts but became a special breed of statutory offense, and thus became an offense against “the state” and “the people” rather than correctly being a trespass against another individual’s person or property. Some of American law is rooted in English law. Contrary to widespread belief, English law did not evolve separately from European law. There were many influences affecting English law. Some English law is rooted in Norman and Anglo-Saxon law. Most notable was the influence of canonical law.[28] Yet, originally, offenses against an individual largely were recognized as torts — offenses were considered personal matters.[29] Even resolving violent trespasses was considered a local dispute to be resolved by clans, tribes, or families.[30] Understandably, because in many ancient communities the fundamental unit of society was the family or clan, a handful of acts were considered more than a mere private matter, some acts were considered serious enough to threaten the overall stability and security of an entire community.[31] Resolution was provided by “hue and cry,” trial by battle, ordeal, or compurgation.[32] When canonical and secular law separated, and as the secular political system grew, trespasses were seen more and more as breaches against the “king’s peace” as the king and his court judges interfered and became more involved in adjudication.[33] To maintain revenues (energy flows), many trespasses were seen less as torts and more as “statutory offenses.” Eventually, almost any act could be converted easily into an act that disturbed the “king’s peace.”[34] This distortion has existed for centuries. In early America, although continuing to distinguish crimes as an offense against “the people,” restitution was more common for many legal actions. Modern administrative and statutory law has merely compounded the Norman thinking. Instead of being classified as intentional trespasses against an individual, crimes today are offenses against “the state” or “the people.” Today, individuals within the political system collect the revenues and restitution is meaningless. Along the way common law procedures merged with equity procedures, and common law merged with civil law. Generally, civil law today means any litigation that is not criminal, both public, private, and personal. Whereas originally public law was law common to all humans, such as restrictions against murder, theft, and rape, civil law described a system of private and personal law (contracts, inheritance, etc.) and included procedural starting points to help resolve disputes.[35] The most well known civil code is the ancient Roman civil law, providing guidance to resolve disputes in legal actions between Roman citizens. Praetorian law guided legal actions for foreigners who sought relief within Roman jurisdiction.[36] Praetorian law was guided by the principle of natural law and equity — law common to all humans.[37] The Roman code was not fiat legislation, but largely codified customs to govern disputes arising from normal human interactions.[38] The Roman civil law was codified and made openly knowable (the Twelve Tables) and only partially legislative in nature. The published Roman civil law distinguished between what was enforceable law and what should serve as expected “moral” or “good” behavior.[39] Unlike modern legislative statutes that are intended to be generally written and broadly interpreted, however, Roman law typically remained confined to specific actions.[40] Under Roman civil law, magistrates determined both fact and law. The English common law, often referred to as a judge-made law system established in post Anglo-Saxon England, separated the functions of the trier of fact (jury) from the trier of law and procedure (judge). For a long time, the jury actually did all the fact finding in an action, unlike today where the jury is only passively active. Modern civil law allows for appeals of both fact and law, English common law procedures established that jury verdicts were final and the only appeals possible were on procedural errors and conclusions of law, not the facts. In American law the seeds for the transitions for these mergers were embedded within the Constitution, Article III, Section 2:[41]
These potential conflicts between civil and common law systems, eventually weakening the right to trial by jury, allowing political prosecutors to seek legal action in a civil suit and thereby avoid juries, were recognized in the constitutional ratification debates.[42] All future legislators had to do was classify an action as a civil action. A glaring problem with the merger of common law and civil law was not the fact that private law was legislated or codified — the Roman civil law successfully legislated and codified private law, but that procedurally a legal action could be initiated without fully declaring and articulating the nature and cause of an action. As the common law in England matured, litigation procedures became painfully precise, enough so that the typical layman rarely could be expected to master the intricacies. Most people could not read or write, let alone understand the formalities of a legal system. There were many procedural structures to know and recognize. Although having some effects, that procedural precision never took firm hold in the American colonies. However, under such procedural exactness, justice easily could be swept aside in favor of procedure. Merging all legal actions into one action simplified the procedural process, but also opened the door to vagueness. Under the English common law, once the proper form and procedure was established the enjoined parties rarely failed to understand the exact nature and cause of an action. Not so under the current system. Procedural simplification performs to the advantage of the layman, but vagueness functions to the advantage of the well-trained and artful. This is especially conspicuous when one of the parties is an invisible legal fiction known as “the state,”[43] and particularly when judges (employed by the same invisible legal fiction) refuse to honor a defendant’s right to know the nature and cause of an action and to be fully informed. This process is noticeable particularly in administrative and municipal law, where straightforward challenges such as applicability of the law, nexus, jurisdiction, reasonable evidentiary support, and verification of exhausting available remedies often are swept under the judge’s bench. Without knowing the nature and cause of an action, there can be no clear distinction between “public” and private law, and both subject matter and personal jurisdiction become moot points. With aggressive prosecutors, people can be charged with acts that might have caused damage and injury.[44] Today, “victimless crimes” are a multi-billion dollar business and serve no purposes other than to generate huge revenues for practitioners within the political system and to tyrannize people into specific behavioral patterns. The “victimless crime” is now fully resurrected from the days of monarchy. The only change is that instead of “disturbing the king’s peace” offenses are now against “the state” or “the people,” and are seen as a threat to the “health, safety, and welfare of the public.” The effect is nonetheless the same, as private tort law shifted to “public” crime law with restitution transformed into criminalization. This change manifested itself as “rehabilitation” during the Progressive era, then as that effort failed, “punishment” became vogue.[45] Yet, “health, safety, and welfare” is subjective, therefore defining a “crime” also became subjective and controlled by majority faction. As this subjectivity grew, so did the monster known as administrative law. Administrative bureaucrats ceased being enforcers of law and instead became benefactors and supporters of the special interests that created the agency.[46] Monopoly and regulation grew. Suddenly individuals were considered guilty and bore the burden of proving their innocence. Traffic “infractions,” drug laws, and cash transaction laws are obvious arenas where most people can visualize this transition. Monetary and fiscal policy, that is, monetary regulation combined with spending and taxation, provide two more reasons why the experiment failed. Legal tender laws and central banking create a currency monopoly and provide nefarious avenues to inflate the currency, robbing every individual of wealth and future exchange power. Monetary systems have been notoriously unstable for centuries and instability is the norm not the exception,[47] but the new system exasperates the problems. The so-called progressive income tax is a political toy that is regressive and coercively redistributes wealth. Tariffs hinder free trade and encourage monopoly and inefficiency through protectionism. Property taxes enslave everybody because no human can live without ties to the land. The experiment failed because of flawed definitions and an incorrect understanding of human exchange systems. Primarily, those misunderstandings festered by confusing wealth with currency — particularly confusing capital with currency, and not recognizing the damages of politicizing credit and currency. Adding additional misunderstanding was confusing the concept of interest — the return for leasing capital (actual wealth), and compound interest — the return for leasing currency (a token symbol representing future capital). The Industrial Age introduced a dramatic shift in how humans interacted with one another. The Industrial Age witnessed two transformations: (1) instantaneous capitalization through the political privilege of controlling credit and the currency, and (2) mass production. Human life remained relatively stagnant for centuries. Many basic scientific and technological principles that enabled the Industrial Age were already known, thus technological improvements did not solely enable the Industrial Age. The bigger hurdle to impeding large-scale material progress was the inability to create and accumulate capital.[48] Yet, accumulating capital did not enable the Industrial Age. The instantaneous creation of currency — monetization of debt, where that currency represented future capital and subsequently led to the creation of that capital, enabled the Industrial Age. The exponential effects of compound interest accelerated that progress because people confused currency with wealth and by contract, were obligated to service that debt. Instantaneous capitalization would have functioned just as adequately with nominal administrative fees and without compound interest. Compound interest largely benefited only the politically privileged. In the Agrarian Age humans consumed most of what they produced and were self-sufficient within their small communities. However, large-scale capitalization enabled mass production, and mass production quickly and easily outpaced consumption. As manufacturers overproduced, they found themselves deep in debt because of high capitalization costs, and in repaying the compound interest of servicing that debt through political privilege. Thus, they had to create new markets to encourage people to consume those overproduced goods. Mass marketing and advertising was necessary to “teach” the remaining population how to become mass consumers. People had to be taught “what they needed.” As exchange prices continued to drop because of mass production, people preferred to buy and exchange goods rather than remain self-sufficient. The Industrial Age created a distinct wedge between producing and consuming, and created a widespread social system where humans became individually dependent upon others for survival.[49] Because the Industrial Age was enabled through the political privilege of controlling credit and currency, that wedge created a high division of labor and a subsequent high dependency upon monetary currency systems. The change was from a sustainable standard of living to overproduction requiring tremendous demands on energy consumption. Along with this new ability to instantaneously capitalize ventures, grew an unsurprising desire to limit legal liability. The legal fiction of incorporation became normal. Concurrently, as large-scale capitalization became normal, a need for large tracts of land became necessary, and likewise, controlling and manipulating the political system. Although introducing opportunities for many people to greatly increase wealth, the Industrial Age never witnessed a separation from the preceding principles of feudalism — the belief in a privileged class of individuals. The process of feudalism was merely replaced with the process of political privilege, but the concept of privileged classes continued. That belief grew into something called nationalism. Like feudalism, nationalism has roots in the concepts of family, tribalism, clanship, and belonging.[50] Nationalism is a philosophy — an ideology and worldview — a form of collectivism and utilitarianism; and sometimes, even a religion. Nationalism is an extreme form of clanism, replacing both feudalism and absolutism, and is merely another means through which humans seek meaning and purpose in life.[51] Worldviews are extensions of the desire to survive. Although there are many reasons why people bond themselves to one another in groups, a high degree of common sentiments usually pervades nationalist thinking.[52] Often nationalism is collective greed, a philosophy advocating that, based merely upon the geographical location of birth, one class or race of people is considered superior to others — a sense of prestige,[53] thereby justifying how people legally plunder and capture the labor of other people. Often a collective desire to sustain energy flows beyond immediate needs and wants leads to predatory nationalism (imperialism).[54] Through nationalism, each transition contributed to a loss of enjoying liberty of action; and reinforced the philosophy of nationalism through mercantilism, monopoly, regulation, political socialism, political democracy, and fascism. To satisfy the tremendous appetite for energy consumption, these moments amplify the desire to use the force and coercion of political processes to enslave other people. Industrialism gave rise to nationalized monetary currency systems, a divisive contest to control land and resources, and opportunities to seek and control the lives of millions of people. Understanding America today does not necessarily constitute acceptance. Many individuals still treasure and respect property and rights above health, safety, and welfare. Utilitarianism, collectivism, fascism, democracy, and socialism do not receive unconditional top billing with everyone. However, not understanding fundamental principles and root causes inevitably results in much frustration when trying to change, avoid, or resist the system. With historical understanding, people can inspect more closely the impact of these changes. Currently the statist mindset and “health, safety, and welfare” considerations trump free association and voluntary exchange. This is a philosophical, cultural, and educational battle, not strictly political or judicial. Today, anything that is labeled suspect is simply too hot to handle for either the court judges or legislators. Observe, for example, the controversy surrounding the 16th Amendment and the income tax. There is a recognizable thread rambling through this history: the desire for virtual perpetual motion. As America blossomed, Americans moved and migrated throughout the land. As that expansion grew, the artificial boundaries of the several states shrank. The highly commercialized, industrialized, market-driven atmosphere rendered the state borders insignificant and impotent. As those artificial boundaries dwindled, the centralized Leviathan of the national federal political system grew, prompting efforts to nationalize laws and provide “uniform” laws that states could adopt easily. The very nature of industrialism that obscured state boundaries — combined with the current regulatory statist mindset — rendered the state’s rights argument ineffective. That industrialism contributed to the immense mobilization and movement of America is hardly surprising. The surprise is how or why Americans allowed Leviathan to grow in stature. The desire for virtual perpetual motion provides an answer. Understanding that desire goes far to explain why “parchment barriers” are not enough to hold the beast at bay. Individuals saw opportunities within the political system to enhance their own pursuit of happiness. Perhaps once the major thrust of western migration finished at the beginning of the 20th century and the option of “voting with one’s feet” dwindled, the philosophy of statism grew correspondingly.[55] In short, there was no longer any place to run. Simple calculations reveal plenty of available land even to this day. The problem is not insufficient land for survival and sustaining energy flows, but only that all land is incorporated into an arbitrary area and titled to political jurisdictions. History adequately explains how Americans got here today, conspiracy theories being interesting but unnecessary. The past cannot be undone but can be examined, and identifiable damage can be repaired provided Americans are willing to reverse the process. Property and rights, and the integrity of contracts, are built upon the straightforward concepts of trespass and a desire for justice. “Health, safety, and welfare” also can be based upon these precepts, but more often than not is based upon the foundations of legal plunder and a desire for virtual perpetual motion. The foundations of these two philosophies are different: protecting property and rights will invariably lead to the protection of “health, safety, and welfare” but often the reverse is a crapshoot. Furthermore, understanding the limits of law and the process of government will do much to halt the process and restore sanity and prosperity to the land and to the world. Consider a man who notices a horrid odor every time he walks into his kitchen. In every instance he exclaimed to his wife that he ought to do something. He would not, preferring instead to walk out and ignore the pungent stench. If only he would move the refrigerator a few inches he would have noticed the carcass of a dead mouse. He could have removed the mouse and saved himself and his wife much discomfort. He refused to act. Someone once said that during their lives most people occasionally bump into the truth. Most jump up, brush off, and hurry about their business as though nothing had happened.[56] The Great American Experiment has failed, but the Great American Dream continues. Production and exchange exist, but adversarial raw acquisition under the color of law now rule the day. Finis. Next: Chapter 38 — The Current Struggle Endnotes [1] Hayek, The Constitution of Liberty, pp. 177–178. [2] Livingston and Thompson, The Consent of the Governed, p. 142. [3] For example, refer to Kammen, A Machine That Would Go Of Itself; Rakove, Original Meanings. [4] Baran, Paul and Sweezey, Paul, “Monopoly Capital,” 1930, reprinted in Views on Capitalism, p. 333. [5] Kammen, A Machine That Would Go Of Itself, p. 257. [6] Kammen, A Machine That Would Go Of Itself, p. 8. [7] 5 U.S. (Cranch) 137 (1803). [8] Kammen, A Machine That Would Go Of Itself, p. 194. [9] 358 U.S. 1 (1958). [10] Livingston and Thompson, The Consent of the Governed, p. 163; Kammen, A Machine That Would Go Of Itself, pp. 31–32. [11] The Spirit of Laws, Book XI, Chapter 6. [12] Livingston and Thompson, The Consent of the Governed, p. 172. [13] Berman, Law and Revolution, p. 17. [14] Kammen, A Machine That Would Go Of Itself, pp. 13–14. [15] Article I, Section 10, cl. 1. [16] 79 U.S. 457 (1871). [17] 208 U.S. 412 (1908). [18] 290 U.S. 398, (1934). [19] 294 U.S. 240, (1935). [20] 459 U.S. 400 (1983). [21] 462 U.S. 176 (1983). [22] 274 U.S. 200 (1927). [23] 316 U.S. 535 (1942). [24] For example, read Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964). [25] Howard, The Death of Common Sense, pp. 120–133. [26] Kammen, A Machine That Would Go Of Itself, p. 336. [27] Rakove, Original Meanings, p. 342. [28] Berman, Law and Revolution, p. 18. [29] Zane, The Story of Law, p. 231; Maine, The Ancient Law, p. 218; Berman, Law and Revolution, p. 181. [30] Spencer, “The Great Political Superstition,” The Man Versus The State, p. 145; Kropotkin, Mutual Aid, p. 111, 130. [31] Maine, The Ancient Law, p. 220. [32] Rembar, The Law of the Land, pp. 91–115. [33] Berman, Law and Revolution, p. 186. [34] Zane, The Story of Law, pp. 246–247. [35] Glendon, Mary Ann, “Comment,” A Matter of Interpretation, p. 101. [36] Zane, The Story of Law, pp. 174–175. [37] Maine, The Ancient Law, p. 33. [38] Maine, The Ancient Law, p. 11. [39] Zane, The Story of Law, p. 352. [40] Berman, Law and Revolution, p. 137. [41] In England, the distinctions between common law and equity were abolished formally in 1876 — Zane, The Story of Law, p. 351. [42] For example, read the Anti-Federalist letter written by the Pennsylvania Minority of December 18, 1787. [43] Berman, Law and Revolution, pp. 37. [44] Barnard, Draining the Swamp, p. 86. [45] Naisbitt, Megatrends, p. 99. [46] Benson, The Enterprise of Law, Chapter 4. [47] Greider, Secrets of the Temple, p. 248. [48] Keynes, John Maynard, “Economic Possibilities for Our Grandchildren,” 1930, reprinted in Views on Capitalism, p. 112. [49] Toffler, The Third Wave, pp. 37–45. [50] Veblen, Thorstein, “The Theory of Business Enterprise,” 1904, reprinted in Views on Capitalism, p. 287. [51] Fromm, The Sane Society, pp. 57–58. [52] Weber, Essays in Sociology, p. 176. [53] Weber, Essays in Sociology, pp. 159–171. [54] Veblen, Thorstein, “The Theory of Business Enterprise,” 1904, reprinted in Views on Capitalism, p. 301. [55] Weinberg, “A Short History of American Capitalism,” p. 3. [56] Author unconfirmed, although often attributed to Winston Churchill. |
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