The Constitutional equation

TWO DEAD CANARIES, TWO CANDIDATES, A COALMINE AND AN ELECTION

In this article we look at the recent controversies regarding Judge Lori B Jackson and Prosecutor Mary N Kellett, and place them in the context of the US Constitution and its relevance in the coming elections. We believe that the candidate that gives these issues their due will gain an upper hand in the debates and ultimately, the elections.

OBAMA AND ROMNEY ON THE US CONSTITUTION

On his official website, Mitt Romney provides his take on the US Constitution [1]. Beginning with his opening sentence, “…its words have meaning”, it becomes apparent that he takes the Constitution seriously. Romney’s intention is to “…therefore appoint wise, experienced, and restrained judges who will take seriously their oath to discharge their duties impartially in accordance with the Constitution and laws — not their own personal policy preferences.”

President Barack Obama also recognizes the relevance of the US Constitution [2], though the specifics of what he actually thinks of it have been somewhat more difficult to track down. In assorted news articles and video clips, he makes references to the document as “extraordinary” and “remarkable” with the occasional qualifiers like “imperfect” and “flawed”. But words like extraordinary and remarkable can be open to interpretation, depending on who it is that one is trying to impress.

You can describe one person as extraordinarily intelligent and another as extraordinarily stupid. One decision can be remarkably astute, while another can be remarkably incompetent. So what exactly does Obama mean when he describes the US Constitution as “extraordinary” or “remarkable”? We would like Obama to be more specific and open about this. What is his sincere take on the US Constitution? Barack Obama on The Constitution [3] provides the most detailed overview that we could find, but as this is not the barackobama.com website, it is not a clear indication of what Obama personally stands for on the topic in 2012.

Thepoliticalguide.com makes reference to comments that Obama has made about the Constitution in books that he has written, but his stand is none the clearer. What does Obama’s take on democracy as “a conversation to be had” mean? The few references to the US Constitution that we have been able to track down on the barackobama.com website have been made in passing, and not addressed directly. Clearly, he understands that the US Constitution matters, but beyond that?

The Democrats have something of a stronger tradition for systemic thinking. For example, the social sciences (their weakness with respect to rigor notwithstanding), are systemic sciences. When Bill Clinton said “it’s the economy, stupid,” he was demonstrating his appreciation for the systemic problems that impact on the culture. Is President Obama able to express his understanding of the US Constitution within the context of systemic thinking?

The Republicans, on the other hand, have a stronger tradition with respect to religion and faith. Questions of religion are also systemic questions, though the tendency to defer to a Creator creates something of a blind-spot that prevents them from recognizing the practical relationship between culture and moral values. That Romney has committed himself to making a stand for the Constitution and abiding by its principles is reassuring. But does he really understand how and why the principles work?

The Unites States of America is often described as a republic, not a democracy [4]. What do the two candidates have to say about this?

There are sciences available for Americans that synthesize the systemic issues that are relevant to both Democrats and Republicans. For example, the semiotics of perhaps America’s greatest philosopher, Charles Sanders Peirce [5] (who was also a scientist and a Christian), would go a considerable distance in explaining how and why the principles in the US Constitution work, and how they might be reformulated to make the US Constitution an even more remarkable document than it has ever been. This semiotic science conflicts with neither the Democrat interpretations of Democracy and rights nor the Republican interpretations of Republic and religion.

Yet for all the richness of this established science and its relevance, neither candidate has made clear what their understanding of the US Constitution really is. There is no reason for either candidate to shirk the responsibility of demonstrating their understanding of the principles of the US Constitution. It is disappointing that the science of a uniquely American genius has never become a part of the conversation. We wonder if this is an opportune time to introduce the genius of Peirce into the debate.

It is true that the US Constitution, as an imperfect human creation, has its flaws, and Obama is sensible in recognizing them. Slavery in America may indeed be a blind-spot, but in what way? Specifics please. The onus is on Obama, in 2012, to spell it out. Are there biases against African-Americans today that the Democrats are better placed to address, without harming the culture? Does Obama believe that the US Constitution helps or hinders the rights of African-Americans? Why?

Within the US Constitution, there are principles involved, and the candidate who can best demonstrate a proper grasp of what those principles are and how they relate to a culture’s cohesion, sanity, efficiency, fairness and health will gain significant leverage. It won’t be enough for one party to confine their side of the argument to higher moral, biblical values or free-market efficiencies as surely as it won’t be enough for the other party to focus on rights or the fair redistributions of wealth – regardless of where they stand in their claims to respecting the Constitution.

But all this talk about the Constitution is academic, isn’t it? What’s the bottom line? How does this affect us? Let us get specific about the systemic problems, the sorts of problems that the US Constitution and its principles were designed to tackle. By applying the metaphor of the canary in the coalmine [6] we can illustrate our point without getting bogged down in the detail. A dead canary tells us everything that we need to know about the presence of noxious gases that might wipe out a team of miners.

TWO DEAD CANARIES AND A BROKEN SYSTEM

Family court biases against men are now routine, policies that eviscerate the due process rights of men and boys accused of sexual misconduct [7] are being implemented, VAWA insists on protections for women and not men, all the while ignoring women as the primary abusers of children, and so on… need we list them all? All these are designed to make women feel all warm and gooey inside, but they are fundamentally unconstitutional. The breakdown in the rule of law has come to a head in brazen breaches of due process that AVFM has identified in the criminal conduct of Judge Lori B Jackson [8] and Prosecutor Mary N Kellett [9].

The stories around Jackson and Kellett are the two canaries in the coalmine. They provide the litmus test proving that the system is broken and needs fixing. Obama needs to move beyond his take of democracy as a conversation, and make clear his understanding of how it works. Romney, on the other hand, needs to lay on the table his understanding of the constitutional principles and why he respects the Constitution. How do the two candidates intend to fix a broken system in the application of their respective takes on the US Constitution and its principles? More importantly, have either of them identified the problem to begin with, and do they intend to fix it?

What are the implications of the stories behind these two “honourable” – or more correctly, dishonourable – members of the bar/judiciary? Their stories are symptomatic of systemic problems throughout the entire judicial system. That they can make the judgements they did, and at least thus far get away with it, suggests something fundamentally broken in administration and management. Can we confirm that the system is broken? That depends on how Jackson and Kellett are dealt with in the coming weeks and months.

A COUPLE OF PREDICTIONS

To highlight the gravity of the situation that Americans face, we’re going to make a couple of predictions. We have reason to question the ability of the judicial system to provide a proper response in these matters. Jackson and Kellett might be thugs, but the powers-that-be within the bar, the judiciary and their administration, who are ultimately accountable for their antics, are not stupid. If the system is broken and Jackson and Kellett finish up getting away with their misdeeds with a slap on the wrist, then we can be sure that there will be reasons. The powers-that-be won’t be sticking their necks out, taking absurd levels of risk to support corrupt members, for no reason. Even when they take great delight in destroying the lives of men, they will think twice if there is some kind of risk to their livelihoods. They have a lot to lose. Supporting these two shysters, if it should come to that, would come with considerable risk. So what could they possibly be hiding? We anticipate two possibilities:

1) Constitutionality of judgements

They are trying to nip an emerging precedent in the bud. Once this kind of precedent is set, that is, once Jackson’s and Kellett’s odious conduct goes on the record and is set as case-law precedent, then it sets the stage for calling all their judgments into question. Furthermore, it raises serious questions regarding the constitutionality of all prior judgements of perhaps even others in the judiciary and the rest of the legal system. We should expect that this kind of resistance with respect to Jackson and Kellett will go all the way to the top… to the level of Attorney General. What is at stake is the very integrity of the judicial system.

2) Intractable systemic problems

Perhaps it doesn’t make sense to many of us why an agency or government would allow such a situation, as has emerged in the Jackson/Kellett debacle, to arise. To anyone who has been a whistleblower in an organisation and who has had exposure to the way that people behave when their conduct is called into question, there are many possible reasons. Maybe the entire system is so corrupt and so broken that it is beyond repair – hence emphasis on the word “systemic”. Maybe people in high places are scared to death that once one domino falls, others are destined to fall. Maybe people in high places are scared to death that their failure to meet performance indicators is about to be divulged. Maybe they are scared to death that a can of worms is about to be opened.

Maybe they are scared to death of being held to account for both the mistakes of the past, and new demands placed on them in the future. Maybe they are scared to death of being ousted from their privileged status as indulgent, opportunistic fat-cats, being denied their freedom to loll about in the mud, and having their entitlements stripped from them. Maybe they are scared to death of the possibility that they might have to work for their livings in the future. There is only one way to test this, of course. Let’s see how the system responds to the two dead canaries.

Of course we hope that the system is not broken and that the bar/judiciary and their administration conduct their duties and obligations lawfully and fairly. But in the event that they don’t, then our predictions above can provide the basis for further investigations and analysis.

Here’s another prediction, more long-range. We take on board Rod van Mechelen’s interpretation [10] suggesting a conspiracy towards some kind of New World Order, but ultimately we are inclined to the view that people are not that smart and not that organised. Rather, we proffer that the symptoms we observe indicate a system breaking down, with cowboys in positions of influence jockeying for opportunities. Our reality is not conducive to incubating any kind of conspiracy. To begin with, people are too focused on seeking returns on their investments within timeframes that are too short to deal with 4-year terms of office and compulsory elections.

Secondly, conspirators are too dishonest to trust others purporting to share in their agenda – it is a matter of survival that they project their own dishonesty onto others, lest they too be taken for a ride or get dobbed in. No, the end result of all of this, should current trends continue, we predict, is military intervention and governance by military, perhaps along the lines of a military dictatorship [11] or stratocracy [12]. On a more positive note, at least under such a system, should it eventuate, men would be treated more fairly than they are now, though at the cost of both men and women losing all their freedoms.

DEALING WITH THE CRIMINALS WITHIN THE JUDICIARY

As custodians of their judicial/legal offices, Jackson and Kellett have abused their responsibilities. They’ve crossed a line. They are the criminals now. In their judgments and decisions detrimental to the best interests of the children beholden to them, they are the child-abusers now. Would these two criminal child-abusers dare to charge us with contempt of court? Would they dare to bring their shenanigans out into the open into the bright, disinfecting light of day? It is these thugs, in their naked abuse of their authority and the trust bestowed upon them by the people, who have shown nothing but contempt for their court and the people.

And if the system backs them up? Then that makes everyone else in the system into criminals too. If this happens, then we are no longer dealing with a judiciary but with a mafia. That’s how it is. If it so turns out, then we are dealing with a system that is well and truly broken. It signals the end of the rule of law in America.

Normally, citizens should be judged on the presumption of innocence. But how can the precondition of innocence possibly apply to a judiciary in which we have every reason to have lost confidence, and whose judgements we can no longer trust? By virtue of the assumption that judges are honourable persons, they are granted privileges, entitlements and exemptions, but one of the costs of their swag-bag of freebies, given that there is no higher authority to judge the judges, is the presumption of innocence. When we cannot trust our judges, then we have no basis upon which to regard them as honourable, no basis upon which to defer to them as “Your Honour”.

Once they cross the line into criminality, they cannot charge others with holding their cherished courts in contempt. Furthermore, given that judges are disinclined to judge themselves in the absence of media pressure, then charges of media bias prejudicing cases sub judice should have limited applicability in this kind of case – the case would never have gone to trial were the media not involved. Judges’ privileges and exemptions, bestowed on presumptions of trust and integrity as is implicit when we address them as “Your Honour”, have necessary costs associated with them, especially when said integrity is shown to be lacking. As a prosecutor, Kellett is not a judge, but she is an integral part of the very legal system whose integrity is under the spotlight – the system that is judging itself.

CONCLUSION

We’ve recognized the presence of noxious fumes in the coalmine. Our test canaries are dead. What are we going to do about it? What is Mitt Romney going to do about it? What is Barack Obama going to do about it? Do either of them recognize the principles that are relevant to the passing of the two canaries, and what has to be done in American culture and the Constitution to be rid of these dangerous, noxious fumes? Most importantly, what are the principles in the US Constitution that might serve to rectify the looming disaster? Irrespective of whether you’re Democrat or Republican, man or woman, black or white, the US Constitution and everything that America ever stood for depends on this election.

Which of the two candidates has the firmer grasp of the systemic issues that are relevant to the US Constitution? Romney has made clear his respect for the US Constitution and his intention to appoint judges who take their oath seriously. Obama needs to make clear his own views. And ultimately, both candidates need to demonstrate their understanding of the US Constitution, and how they intend to implement its principles in fixing the United States of America. If, after the elections, Jackson and Kellett finish up getting away with their reprehensible conduct, then the candidate under whose office these two thugs are set free will have failed in his responsibilities as President.

That’s why the US Constitution needs to become a part of the conversation and the Presidential debates, so that the American people can make an informed vote. If the next President fails to heed the warnings coming from the two dead canaries, then we have to conclude that the world’s most amazing experiment with democracy is finished. It will then be only a matter of time before the military comes to America’s rescue to oust those whose power is secured only on the shifting sands of spin, popularity and fashion over discipline, substance and integrity.

We believe that Bill Clinton was onto something with his campaign slogan “It’s the economy, stupid.” We believe that a similar statement is relevant to the forthcoming elections… something along the lines of “It’s the culture, stupid.” The question is, which candidate is brave enough to take it up, make it his own, and make the commitments necessary to save America?

BIBLIOGRAPHY

[1] Mitt Romney’s take on the US Constitution:

http://www.mittromney.com/issues/courts-constitution

[2] From barackobama.com – Events – Promote the General Welfare:

https://my.barackobama.com/page/event/detail/timetodelivercallparty/gpcmqv

[3] Barack Obama on The Constitution:

http://www.thepoliticalguide.com/Profiles/President/US/Barack_Obama/Views/The_Constitution/

[4] What our forefathers thought:

http://www.whatourforefathersthought.com/DemoRep.html

[5] Charles Sanders Peirce, Wikipedia:

http://en.wikipedia.org/wiki/Charles_Sanders_Peirce

[6] Canary in a coalmine, Wiktionary: