Tuesday, June 30, 2009

Manifesto for the Unfinished American Revolution.

"I have sworn eternal hostility against every form of tyranny over the mind of man [and woman.]"
--Thomas Jefferson.

"The Americans are the best politically educated people in the world. It is worth one's while to go to a country which can teach us the beauty of the word FREEDOM and the value of the thing LIBERTY."
--Oscar Wilde.


My primary sources for this essay are:

Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986).
Ronald Dworkin, "Pragmatism and Law," Justice in Robes (Cambridge: Harvard University Press, 2006), pp. 36-49.
Mark Tushnet, Red, White and Blue: A Critical Analysis of American Constitutional Law (Cambridge: Harvard University Press, 1988).
Duncan Kennedy, A Critique of Adjudication (fin de siecle) (Cambridge: Harvard University Press, 1997).
Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System (New York & London: NYU Press, 2004).
Michael Perry, The Constitution, the Courts, and Human Rights (New Haven: Yale University Press, 1982).
Laurence Tribe, American Constitutional Law (New York: Foundation Press, 1988), (2nd Ed., there are probably more recent editions and updates, but there is no better single treatise on American Constitutional law that I know of even today.).
Roberto Mangabeira Unger, The Critical Legal Studies Movement (Cambridge: Harvard University Press, 1986).
Martin Luther King, Jr., "Letter From a Birmingham Jail," in Why We Can't Wait (New York: Signet, 2000), Afterword by Reverend Jesse L. Jackson, Sr.
The Invisible Committee, The Coming Insurrection (New York & Paris: Semiotexte, 2009).

"You say you want a revolution?"

I like to think of myself as a kind of revolutionary.

I am not waging a military struggle of any kind and have no plans to do so. I do not place bombs in post offices. Such tactics are not helpful in the type of revolution in which I believe and to which I am committed. I am dedicated to non-violence as a strategy of "resistance and opposition" to social injustice. Nevertheless, I remain passionate about the struggle against oppression, in all of its forms, by the only means open to me and to persons such as myself -- through protest, advocacy, and argument. My appeal is to the "better angels of our natures." (Abraham Lincoln.)

Among the things to be protested and fought against, in fact, is the placing of bombs in post offices, trains or buses, whatever the political or other causes of those who would do such things.

For an argument from the opposition, anarchists, nihilistic enemies of American society in its entirety, I refer the reader to the pamphlet: The Coming Insurrection. 

Despite all of my disagreements with Republicans I am much closer to any Republican than to the people who are absolute nihilists. I say this as a person of the Left.

No one should be permitted to commit crimes to dramatize a political ideology. For example, no one is licensed to blow up an airplane filled with innocent people or allowed to crash a plane into a skyscraper. ("American Hypocrisy and Luis Posada Carriles" and "Babalu and Free Speech Too.")

My revolution is a revolution of ideas. It is not a new revolution. They are not new ideas. Yet it is a revolution that is always threatened, especially now, and always in need of renewal and fresh commitment.

The ideas that I defend are always timely.

The key word here is, of course, "resistance." We all resist domination in the ways that we can. No form of resistance should be underestimated by anyone, since any resistance is better than none.

Some of us may resist oppression by taking dramatic action in the streets; others resist by refusing to remain silent about the contradictions and rationalizations that would have us legitimate oppression in our own minds.

The struggle for social justice begins within the self, only after one achieves a sense of one's own values does the struggle move out into the world.

Perhaps a good indication that we are engaged in a worthy moral struggle is the hostility to our beliefs and actions by extremists at both ends of the political spectrum. It is not possible to act constructively in the world if one's inner freedom is compromised. For those of us willing to state our beliefs and feelings publicly, at the risk of offending everyone and inviting reprisals, the right to think and speak freely is not negotiable.

Freedom will not be surrendered by Americans (all Americans have this much in common) under any circumstances. Duncan Kennedy writes:

" ... it is not only possible, but also meaningful to resist anywhere and at any time -- at upper middle class dinner parties and at the bank as well as in ... classrooms, faculty meetings, on the assembly line and in welfare offices. It is valid because wherever you are situated, the system of [social] hierarchy hurts you. It is valid because the other people situated as you are are also hurt. It is valid because all the different struggles are connected by the analogy of the structures of the different cells, and therefore [reinforce] one another."

Martin Luther King, Jr.'s words from a prison cell in Birmingham, Alabama will always be an inspiration for those struggling for human rights and the realization of America's promise:

"Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can stand cured."

My goal is to be an "intellectual guerilla fighter" launching verbal "hit-and-run" missions aimed at subverting the bundle of banalities that passes for a sophisticated stance among the decadent and smug "children of comfort," of all ages in the United States of America and throughout the world -- especially here and now, in Internet discussions, where we all meet. (See Stephen Spielberg's "Amistad.")

I am creating my own "bloodless revolution."

I am opposed to the stifling conformity that is the death of imagination and that is becoming nearly universal, particularly in the richest societies.

I dislike the facile self-satisfaction of intellectually comfortable people who are at ease with the suffering in the world.

None of us should be reconciled to the appalling amount of avoidable suffering in the world.

"It is better to light a candle," President John F. Kennedy said, "than to curse the darkness."

My writing is my candle.

I can hear the cynics grumbling and chuckling about my idealism and lack of sophistication. It is "all about power," or "money is the meaning of life," or "everything is a deal," are the most recent forms of this so-called worldly wisdom.

The court systems of some states -- like New Jersey -- are riddled with corruption and possibly controlled by organized crime. Reform is said to be worthless. Corporations are "known" to control the politicians that control the country. And the American population is said to be stupefied by the mass media. I am told that America is a lost cause. ("What is Law?")

I refuse to believe this about the United States of America.

I will always continue to hope that things can be made better and to believe that the United States, with all its faults, is and will continue to be the greatest society in the world.

Despite my experience of torture in New Jersey and the apathy of public officials to daily censorship and harassment efforts directed against me I continue to believe in the Constitution's guarantee of the dignity of every person in the land and in the world:

"Another mode of empowerment consists in our relative success," Roberto Unger comments, "at diminishing the conflict between the need to participate in social life for the sake of material, emotional, and cognitive sustenance and the impulse to avoid subjection to other people."

We are divided by an instinctive need for community and the temptation to reject communal pressures to "conform" and sacrifice individuality.

Community is always possible, I believe, and so is freedom. We insist on both. America, like Modernity, is a project that is still "underway."

The American experiment (like all of us) is gloriously "unfinished."

It is with regard to this Romantic aspect of the American political "adventure" that today's young people's movements for liberation from all over the world -- including Latin America -- can find sustenance in American culture, especially cinematic and popular culture.

If something were to happen to me -- if I die from an accident or some other cause -- this essay is the one that I wish to have read at my funeral because I am not the only American to put his or her life on the line today for these ideas:

"The present production apparatus is therefore, on the one hand, a gigantic machine for psychic and physical mobilization, for sucking the energy of humans that have become superflous, and, on the other hand, a sorting machine" -- like the Sorting Hat at Hogwarts? -- "that allocates survival to compliant subjectivities and rejects all 'problem individuals,' [like Mr. Jefferson?] all those who embody another use of life and, in this way, resist the machine. On the one hand, ghosts are brought to life, and on the other, the living are left to die. This is the properly political function of the contemporary production apparatus."

The Coming Insurrection, p. 51.

Today's popular "despair" is only from the point of view of the ideology that we are rejecting as a betrayal of America's and Modernity's revolutionary creed.

The original American ambition was (and must still be) to make room for differences, uniqueness, creativity, for persons with inviolable dignity coming together to define themselves against even the power of government.

The Constitution is resistance to the machine.

The Constitution is an organic entity, a living document for a changing (or evolving) society of free men and women of all races, ethnicities, religious beliefs or lack of theological beliefs, genders and sexual-orientations.

America was made by and for the free subjects that emerged with Modernity, no longer fettered to class systems, landed gentries, prescribed social roles, or "preordained" eternal destinies.

Postmodernist efforts to shirk off binding gender roles or racial identities and class systems fit right in with this revolutionary project of self-invention for a free people in a new world.

America's revolutionary theory of free and equal men and women served by (not the slaves of) government is more alive and necessary today than ever before.

Hostile perceptions of Americans are often based on definitions created by others and not ourselves. The American mythology of "the little guy or gal" against the system is nearly religious in its invocation of our Constitutional values to uphold the dignity of dissenters, individualists, eccentrics or those with unpopular opinions, rebels with or without a cause.

What a wonderful opportunity we have, right now, to bring the American revolution a little closer to completion. This is our first "invitation" in the new century to define ourselves to the world as a free people who are respectful of human rights. Thus far, we have not done a very good job in that task of self-definition.

My view of politics involves a fundamental commitment to the objectives of the unfinished American and also English revolutions -- my revolution is one that I yearn to see brought a little closer to successful completion. (For one source of my position, see Gore Vidal's essay "The Second American Revolution.")

What is the unfinished American Revolution?

In the hot summer of 1787, in Philadelphia, a group of revolutionaries initiated a struggle for human rights that was and remains profoundly radical -- much more radical and worthwhile, I suggest, than many of the revolutions that have been fought since.

These original American revolutionaries fought for ordinary persons (yes, I know that they were wealthy men, but bear with me) to be secure against the power of the State in speech and expression, in worship or in the decision not to worship, in assembly and in the choice of political structures as well as in the guarantee of democratic representation within the institutions of government, whatever the institutions of government might be in their respective states. Elected officials in America once represented ordinary people and not just corporations or organized crime. ("Does Senator Menendez Have Mafia Friends?" and "Senator Bob, the Babe, and the Big Bucks.")

All of the critical biographies and demythologizing histories of the period have failed to destroy these simple historical claims. This first Modern revolution was intended to guarantee "the rule of law and not of kings." The American revolution was, and always will be -- in its best self-understanding -- a true people's revolution.

The antithesis of the values of this American revolution is Star Chamber-like secrecy that shelters the torture of citizens and/or public censorship whatever rationale may be offered for such crimes combined with public lies and denials. ("Is truth dead?")

Americans are not "objects" subject to the desires or commands of powerful officials acting secretly upon their lives.

Americans are free persons with a moral and political dignity that must be respected by tribunals because it is protected by law. ("Is there a gay marriage right?")

The American revolution was fought in the belief that all human beings are entitled to freedom and equality. Admittedly, the framers understood the concepts of "human beings" and "citizens" in terms of white males only.

We now see that the logic of the framers principles, correctly interpreted, clearly encompasses all persons. They believed that persons are naturally endowed with a value that, today, makes torture and enslavement, for example, anathema.

The Constitutional concept of human dignity, I believe, should also be understood to make hunger and desperate poverty unacceptable in a wealthy society. Dignity under law begins not with an abstraction, but with the concrete, suffering and afflicted human being that is my neighbor, also my brother or sister. It is to insist, in other words, that even the humblest person is not expendable in a just society.

No one in America is "collateral damage."

No human being must be seen as a pawn in a secret U.S. government chess game.

The violation of one person's fundamental rights is the violation of the rights of all. Each time a letter is removed from one of my words or any other defacements of these writings take place with the cooperation of legal officials in an American jurisdiction a section of the Constitution is shredded.

Constitutional scholars -- like Professor Kathleen Sullivan now of Stanford University -- will wish to interrupt in order to point out that the word "dignity" does not appear in the text of the document and was not a prominent feature of the Supreme Court's language until after the Second World War when the full horror of the Holocaust became apparent.

On a day when many of my essays have been vandalized, again, as I struggle against censorship, it is important to remind myself of why I must persist in this effort to be heard. It is especially sad that my articulation of fundamental American values of tolerance and diversity can be destroyed, publicly, with the cooperation of corrupt officials from one American jurisdiction because the symbolic significance of this spectacle is ominous for America's future. This symbolic meaning (America's contradictions) will not be missed in many places in the world.

My view of the task of interpretation in the context of fundamental legal documents, especially the U.S. Constitution, borrows from the tradition of hermeneutics in philosophy. At issue in construing legal language is understanding the text as a whole, as a linguistic and political-jurisprudential or philosophical project, as a message from our forefathers and -mothers to ourselves and our progeny ragardless of where we are from "originally" as Americans.

This amounts to reading abstract phrases such as "due process" or "equal protection," "liberty" or "freedom of speech," in terms of the total linguistic project of the Constitution that includes the tradition of judicial interpretations and amendments of the original text.

I ask the reader to compare Paul Brest, "The Misconceived Quest for the Original Understanding," in S. Levinson & S. Mailloux, eds., Interpreting Law and Literature: A Hermeneutic Reader (Illinois: Northwestern University Press, 1988), pp. 69-97 with Hans Robert-Jauss, Towards an Aesthetic of Reception (Minneapolis: University of Minneapolis, 1982), pp. 139-185, translated from the German by Timothy Bahti, with an excellent introduction by Paul de Man.

The underlying debate concerning interpretive rationality and jurisprudence dates from antiquity. For example, see Hans Georg-Gadamer, The Idea of the Good in Platonic-Aristotelean Philosophy (New Haven & London: Yale University Press, 1986), pp. 7-33, translation from the German original by P. Christopher Smith. American versions of the discussion of hermeneutics that began with the Greeks and continues today are plentiful: Lloyd L. Weinreb, "Kosmos," in Natural Law and Justice (Cambridge: Harvard University Press, 1987), pp. 15-42. ("Liberty and equality are normative expressions of the conflict between freedom and cause.")

This legal-hermeneutic effort is necessarily a moral project, grounded in religious traditions, and to pretend otherwise is foolish. The basis for the assertion of an ontologically special status attaching to subjects (you and me) only makes sense in terms of the "higher law background" of the American Constitution.

This point has nothing to do with public neutrality concerning specific forms of worship or religions under the First Amendment.

Why were persons or legal subjects regarded as "special" at the dawn of Modernity?

Religious ideas concerning the spiritual essence of men and women were (and remain) foundational to these beliefs that were translated into a secular language of legality or rights.

It is up to all of us to decide what these values require today.

I am sure that these values provide a right to marriage protected by the Constitution for all Americans, including gays and lesbians. Five U.S. Supreme Court justices recently agreed with me.

Ideas of tolerance and human dignity are always controversial and endangered: Dana Cloud, "The Fight for Academic Freedom in Changing Times," International Socialist Review, May-June, 2009, p. 4 and "The Eavesdropping Continues," (Editorial) The New York Times, June 18, 2009, p. A36 then James Risen & Eric Litchtblau, "Extent of E-Mail Surveillance Renews Concerns in Congress," The New York Times, June 17, 2009, p. 1. (Out-of-control security apparatus violates civil rights of Americans long before Edward Snowden.)

This interpretive theory is the opposite of "originalism" since it views the Constitution as enacting "principles" (see Dworkin's Law's Empire) which the framers themselves may not have understood in their full implications given the contexts that might arise centuries after the writing of the text. I favor a form of "interpretivism" in Constitutional jurisprudence. Professor Lawrence Tribe of Harvard Law School explains:

"Chief Justice Marshall once wrote that we must remember that 'it is a Constitution we are expounding.' It is the grand charter of a democratic republic, the philosophical creed of a free people, and it was written in broad, even majestic language because it was written to evolve. The statesmen who wrote the Constitution meant the American experiment to endure without having to be reinvented with an endless series of explicit amendments to its basic blueprint. There is a message in the common adage 'Ours is a [government] of limited powers.' ... Thus the Constitution tells us, both implicitly and explicitly, that what it does not say must also be interpreted, understood, and applied."

God Save This Honorable Court (New York: Random House, 1985), p. 45 (emphasis added).

The silences between the grand sentences in America's organic documents are as beautiful as the sounds of any English texts, including the writings of the greatest poets. In American Constitutional Law, Professor Tribe further stated:

"Such passing finality as judicial pronouncements possess is an essential compromise between constitutional order and chaos: the Constitution is an intentionally incomplete, [emphasis added] often deliberately indeterminate structure for the participatory evolution of political ideals and governmental practices. This process cannot be the special province of any single entity." Ibid.

The American project of communal "self-becoming" must remain unfinished, for it is a cultural "space" of evolution and revolution, transformation and transcendence where every person counts and must be respected.

The U.S. Constitution creates a collective space of encounter to which ALL of humanity is invited provided that persons choose reason and language rather violence as the means of communication.

If you destroy or deny the communicative efforts of others then you are forcing them to express their anger through violence rather than peaceful and rational argumentation.

Will you seek to destroy these words? Do you believe that these words and promises can be destroyed?

I think that this message is indestructible and true.

The American Constitution enacts a "hermeneutics of freedom" as a dynamic community's challenge (primarily) to itself and (secondly) to the world.

This is the "War on Terror" that matters. Choosing reason over violence.

I argue that the struggle today is between those who dismiss what I have written here as "sentimental" and reach for their weapons against those who reason and use language to express dissent (also resistance against violence or terror, if necessary).

You are either on the side of life and shared reasoning aimed at improving things or you are for death and nothingness. There are few points between these attitudes to human conflict. However, civilization is compatible with only one of these views. Trust in reason is essential to civilized life.

I am confident that most of humanity will always prefer dialogue to mutual or indiscriminate destruction.

The principles and values to which the Constitution refers may be discovered in the text. What the principles mean or require of us, in our ever-changing contexts, is for the courts to decide on the basis of the values of this document and interpretive tradition belonging to the American people and not to any one individual or corporation.

There is no final, complete, finished or "perfect" reading of the U.S. Constitution. There should not be. Anything "finished" or "complete" is incapable of development and, therefore, dead.

Those who will dismiss these remarks by placing them with Mr. Bush's so-called "simplistic" talk of good and evil are incapable of reading the English language. There are any number of nuanced positions and understandings possible -- even with extremist adversaries -- but not with those who decline all efforts to communicate ideas in favor of violence and sabotage.

Reason and words are crucial to the project of understanding and negotiation. Those who deface and censor texts rightly fear words and reason for they must live with violence and a kind of moral squalor that defines their lives. Impatience with ideas, thoughts, words usually characterizes "terrorists" or terrorism.

Hitler's mistake is repeated by tyrants always and everywhere. Hitler's blunder was to mistake a willingness to discuss complex views for weakness (or lack of resolve) in his English and American enemies. This error by bigots and terrorists is usually lethal as it was for Sadam Hussein. I am sure that the same mistake will result in the capture or eventual death of Ossama bin Laden.

Justice Breyer's view of "active liberty" in Constitutional interpretation may be invoked as, in some ways, compatible with what I say. There are no absolute rules of interpretation, but there certainly are valid, objective principles of politics and law found in our Constitution, such as freedom of speech and religion, privacy and equal protection of the laws. The TRUTH of those principles is objective, real and universal emerging from or discovered through judicial reasoning. Nihilists will never win elections in America because, in the final analysis, they offer people (literally) "nothing" but despair. ("John Finnis and Ethical Cognitivism.")

The U.S. Supreme Court is responsible for interpreting and applying or for "following" such principles in more modest language.

When the Supreme Court gets things wrong -- as it did in Bowers v. Hardwick -- this becomes obvious quickly enough.

There can be no such thing as getting a decision wrong, however, if it is impossible to get a decision right, even absolutely right.

The Constitution is not an invitation to anarchy, jurisprudential relativism or nihilism, nor is it a "suicide pact." (Oliver Wendell Holmes.)

The Constitution is also not infinitely elastic nor without constraining meanings.

There is no contradiction between saying "we are without absolute standards of interpretation" and "truthful interpretations may emerge from objective and universal canons, internal to disciplines, canons which are absolute where they apply."

I am sure that the text and tradition of this great document serve as genuine limitations on interpretation. This is most true in terms of the total vision or architecture of the document and tradition as a whole. Furthermore, I am confident that (over time) the Court and the American people, sometimes painfully, arrive at the right answers.

We find the best solutions, eventually, to the problem of government for a free people, who are concerned to preserve social equality.

If I were to say what the U.S. Constitution means in one sentence while standing on one foot I would say:

"Freedom and equality with due process of law for everyone under a government of limited powers."

The men who framed the Constitution were sometimes slave holders and blind to the historical contradiction between their Enlightenment principles and this horrible practice. However, they were products of their times, who should be credited -- at the very least -- for recognizing and formulating those principles which provided the foundations for the legal reforms that abolished slavery, even at the cost of a bloody civil war, and that set the nation on the path towards achieving full equality among all of its citizens even if this is something which has yet to be achieved entirely.

It was these principles that served as a model for the people of the world for over two centuries concerning what was possible in self-government for free people whose fundamental rights were placed beyond the reach of powerful "bosses" or governments or priests and/or clerics of any kind.

Your rights are not a "gift" of government. "Inalienable rights" are part of what it means to be a person.

The Bill of Rights contains an outline of American legal identity for each person in this nation.

We will not give up a single one of these hard-won rights.

I fear that the U.S. is in danger of losing its exemplary political status. The American people's freedoms are threatened as never before. It is important to understand when people speak of interpreting the Constitution in accordance with the intent of the framers that the framers may have intended us to be free in our interpretations today -- free even of their own original intentions in drafting that great text.

Thomas Jefferson was skeptical of any attempt to bind future generations to the letter as opposed to the spirit of any written legal text. Jefferson likened such a notion to an adult man's attempt to wear the same jacket that he wore as a child. Jefferson suggested a "revolution" in Constitutional understanding every twenty years or so.

Benjamin Franklin was approached in Philadelphia shortly after the drafting of the U.S. Constitution and asked by a young woman:

"What have you given us, Mr. Franklin?"

"A Republic, madam ..."

Franklin smiled before walking away, according to biographers, and added:

"A Republic -- if you can keep it."

Gore Vidal, Inventing a Nation: Washington, Adams, Jefferson (New Haven & London: Yale University Press, 2003), pp. 30-31 and A.J. Langguth, Patriots: The Men Who Started the American Revolution (New York: Simon & Schuster, 1988), pp. 542-564 ("1781-1783 and Beyond").

We will keep our Republic.

Respect for rights of property is no obstacle to this counsel of compassion and charity. The framers believed that with great good fortune and privilege comes equally great responsibility.

Do we still believe in this duty to be charitable if we are fortunate? Mr. Trump?

Among the most important champions of private charity and the responsibilities of wealth in this world are members of both parties in the U.S., including President George W. Bush. Despite demonizing Bill Gates and Microsoft, for instance, it was Mr. Gates who recently donated $780 million-$1 billion to health care and education efforts in Africa as one part of his charitable contributions for the year.

Do the 1% today believe in something other than tax cuts?

Many of the advances in biotechnology made possible by the enhanced calculation capacity provided by computers are the direct result of developments at Microsoft. It is difficult to argue that the world would be better off without Mr. Gates or Microsoft, or without the information explosion and technologies that make this "blog" possible.

I am very well aware that the United States, like every other human society, has its share of offficials guilty of crimes and foreign policy decisions that are subject to moral censure. I know that there is corruption, hypocrisy and evil in every nation. No intelligent person disputes these points.

I continue to believe that American ideals of human rights as embodied in the Bill of Rights, for example, which we believe are based on the unique ontological and ethical significance of all human beings -- human beings who take precedence over and above the methods and tactics of politics, over instrumental goals, over collectivist values -- that these ideals are, essentially, the right political ideals and values.

Respect for the individual is the direction for real progress in Latin America, Africa, and elsewhere in the world, including Asia.

We must move towards recognition of human dignity and respect the freedom of every person.

Americans must not forget the miracle that is this living American Constitution that is always endangered, both from tyrants or "bosses" at home and from enemies in the world.

There are many kinds of terrorism. The tyranny of opinion by powerful and (often) ignorant political bosses is among the worst of these forms of tyranny.

If the choice is between idealism and romanticism against cynicism or nihilism -- sometimes disguised under the terms "realism" and "pragmatism" -- then the most American choice is always "for" the idealism and romanticism that is essential to this youthful nation.

Does this account for the success of Barack Obama's candidacy for the Presidency of the United States?

Democrats are in danger of forgetting that "you can't beat something with nothing." To regain the White House it will not be sufficient for Democrats to oppose Mr. Trump, but it will also be necessary to articulate values that include everyone, including Mr. Trump's supporters, who often feel betrayed and abandoned (for good reason) by trendy liberals. 

The party and person embodying hopefulness or optimism about the future (over and above fear of any enemy or politician) will win U.S. elections every time.

No individual political leader, no abstract ideology, no promise of a future utopia justifies the violation of the rights of a single human being, however humble that person may be, or the abandonment of the rule of law.

The fact that a person's rights are sometimes violated by particular government officials over a period of years does not diminish the validity of these principles but provides me with the basis for criticizing such violations which can never be for the "victim's own good."

Rights trump social utility; they trump the will of tyrants and kings; they are more important than money. Rights are individual "zones of MORAL entitlement" they are not based on the will of majoritites; rather, LEGAL rights result from a recognition of the unique moral worth of persons. (For opposing views on rights see Duncan Kennedy's book cited above then Ronald Dworkin's works.)

No government, legitimately, may deprive persons of the right to life or liberty (including liberty of expression and autonomy of relationships), nor of the effort to improve the material conditions of their lives, nor of the pursuit of their own spiritual quests, however they may be understood or defined, nor of the right to love as persons see fit and whom they see fit.

For this reason -- based on the religiously-based concept of the dignity and equality of persons -- I favor gay marriage rights.

I say this as a heterosexual man who is the father of an adult woman and a husband for many years. (Again: "Is there a gay marriage right?")

Government must never interfere with a person at all without good cause and/or in denial of due process of law, NEVER in secrecy, for "unstated" paternalistic reasons, nor in violation of rights to confrontation and notice.

Government always has the power to do these things and some individuals will always be tempted to do them.

The core principles of American politics always makes violations of human rights illegitimate, criminal, and evil.

I deplore and I am outraged by the events at Abu Ghraib or Guantanamo because the tortures at Abu Ghraib involving the use of psychological techniques and physical abuse of detainees in order to extract information from them are "unamerican."

Repetition of such horrors within the United States against innocent migrants and their children is just as evil or worse. No person is a "thing" or laboratory animal to be "used" or conditioned by others for paternalistic reasons, secretly, in violation of fundamental human rights.

America's Constitution does not contain a charter of trendy "politically correct" platitudes, but it does adopt into law fundamental and open-ended principles of adjudication (or government) that, when read together, place the dignity of "the" individual (however humble that person may be) above the power of the State.

Government exists to serve citizens.

Citizens do not exist as the property of government.

Persons can not be dismissed as "collateral damage" when injured by officials.

Human rights are at the heart of the Constitution. Some politicians have difficulty grasping this point:

"It is better that a thousand guilty men go free than a single innocent person be convicted falsely."

These ideas are both more threatened and more needed now than ever before in parts of the developing world but also in the nations where they originated. This is not dreamy idealism. It is not Utopian. This is not impractical.

Vigilance is always necessary to ensure that fundamental civil rights are preserved. Clarence Darrow said that concern for the individual is also "social":

"You can only protect your liberties in this world by protecting the other [person's] freedom. You can only be free if I am free."

As events in Iran and elsewhere have taught us universal principles are always timely and radical. In the words of the Cuban poet and statesman Jose Marti:

"Like bone to the human body, and the axle to the wheel, and the song to the bird, and air to the wing, thus is LIBERTY the essence of life. Whatever is done without it is imperfect."

Marti's comments concerning freedom were offered in recognition and celebration of the United States of America's political achievement which (again) is always threatened.

We also must not forget that the pre-conditions of liberty are social. They require a concern for the basic material conditions of persons' lives, so that freedom may be meaningful both for the poorest as well as the wealthiest persons in a community. To be a free person is to accept responsibility to fight for that freedom every day. Moreover, it is also to accept responsibility for the freedom of our suffering neighbors.

To be a free person, man or woman, is to be a revolutionary in a world filled with political oppression and social injustice.

Freedom requires and must be balanced against equality in every nation. It is that balance that the U.S. Constitution seeks to achieve in an ever-shifting and dynamic rather than static way.

To assert these claims of right is to find oneself dismissed as a dreamer or a fool and to have these beliefs regarded, in Duncan Kennedy's phrase from a different context, as no more credible than "a child's tortured dream."

I am sure that these assertions of human dignity remain true. They remain worth dying for in a world that is often experienced, especially by affluent young people today (as much or more than the poor!) as empty of value and without meaning. ("Whatever.)

It is not "all relative." "Might does not make right." It is not enough of a response to the reality of evil and suffering for so many people in the world to say: "whatever." There are values and meanings worth struggling for. True values make great demands of us which we must be willing to satisfy. There are genuine meanings and values "out there," but they are not easy values and meanings, only true ones. For me, these values begin with a concern for the humanity of others and the avoidance of cruelty, including a visceral opposition to economic cruelty and psychological torments and torture.

How do we live with the knowledge that at least 25,000 people in the world will die of hunger today?

Richard Rorty -- despite his skepticism about the concept of "human nature" -- writes:

"The traditional way of spelling out what we mean by human solidarity is to say that there is something within each of us -- our essential humanity -- which resonates to the presence of this same thing in other human beings."

These values and meanings are not "unrealistic." We alone decide what is realistic. They are not mere possibilities for a distant future. We ordinary persons re-make the world every day.

We are in need of a William Wordsworth to assure us that "bliss is it in [this] dawn to be alive ... but to be young [is] very heaven."

Americans believe (believed?) that others in the world can make this choice to live and fight for the future with us.

Now young people seem to feel that things will be worse for them than they were for their parents. Optimism has faded. Apathy too often is the dominant emotion. Nihilism has replaced commitment to the Constitution or to anything else.

The Constitution is always new because it is always true. Like all revolutionary manifestos or creeds America's fundamental law is future-oriented, optimistic, filled with ideals and hopeful about humanity's prospects for self-correction.

I wish there were some way to convey this truth and passion immediately to the bored, alienated, and listless young people I sometimes encounter in college campuses in the U.S. or on the Internet. I hope that they will understand that every generation lives in a "revolutionary age" and theirs (your generation) is no exception. If you are a university student or young person in the U.S. today then think of Wordsworth's poetry as a message to you to fight the evil represented by terrorism and by Abu Ghraib, over there and right here at home.

The struggle called for in America's Constitution is for the freedom that is compatible with equality for others including (especially) the least fortunate and most powerless persons in the world.

The postmodernist turn in culture (more inclusion not anti-humanism) is, arguably, the realization of promises and hopes found in the American Constitution that have to do with respect for difference (freedom) and compassion for those who suffer (equality).

At the dawn of a new century and millennium everything is possible again, believe it, because politics is being reinvented -- precisely so that everything will be new again, so that we may hope once more, recreating American society in order to "keep" our republic as the "property" of everyone in this country committed to citizenship and community.

Postmodernist thinking in theology and jurisprudence (Ricoeur and Unger) has allowed for renewal of ideas of narrative, self, and reasoned argument that take account of the acid-like critiques of the French Nietzscheans and others while seeking to transcend and overcome such critiques in a new secular or religious humanism.

We can be "Moderns" today by hoping and working for things to be better tomorrow.

Five Freedoms of a New Age.

What are the challenges facing a new generation of American revolutionaries?

There are at least five particularly worrisome challenges for all of us -- challenges that merit special consideration along with an immediate response:

1. Terrorism
2. Torture
3. Ignorance
4. Dehumanization
5. Poverty

1. Terrorism.

"Terrorism is the intentional use of, or threat to use, violence [including psychological pressure associated with the threat of violence] against civilians or against civilian targets in order to attain political aims." (Boaz Ganor.)

Nothing justifies the use of this tactic, including the sense that many persons have in many places in the world of hopelessness, of being ignored by the wealthy and powerful nations and peoples. The suffering of people should not be ignored and must be subject to redress through peaceful means. Nothing entitles a person to take revenge upon others because of their membership in a class, race, or ethnicity. No ethnic, racial, religious group or nation has an exclusive claim on moral virtue nor a sanction to injure others even if they are seen as somehow, by their mere existence, threatening American security. Even in our anger we must recall that there are no "generic" persons.

The interest of the developed world, and of all of us, in ensuring the existence of democratic and juridical institutions -- at the international level -- that actually function effectively, or at all, to respond to the grievances of the poorest nations and persons is simply the interest in avoiding future terrorism.

The international community must either address the concerns of the "wretched of earth" in a forum where these grievances and arguments are expressed peacefully, heard and responded to with seriousness and attention as well as concern, or we -- all of us -- are likely to face more incidents like the 9/11 attacks.

Dr. King struggled with these issues and expressed eloquently his passion for justice:

"Oppressed people cannot remain oppressed forever. The yearning for freedom eventually manifests itself, and that is what has happened to [African-Americans and all of us]. ... Will we be extremists for hate or for love? Will we be extremists for the preservation of injustice or for the extension of justice?"

The angry and injured people of the world will reach for either a gun or a pen. I am suggesting that it is in the interests of all parties to make it clear that the pen will be the more effective instrument for redressing social injustices and righting wrongs. This is all the more true when, instead of a pen, the would-be revolutionary reaches for his or her computer keyboard, or a movie camera, for that matter, or a paintbrush, maybe even a basketball.

What does it say about America that these thoughts have been subjected to suppression, censorship and destruction? Are we still faithful to our Constitutional commitments? Can other countries in the world believe that our pronouncements of tolerance and freedom of speech are sincere?

I cannot blame Cubans (and others) for regarding America's public defense of freedom of speech today, much too often, as a lie and a betrayal of America's own fundamental principles of tolerance and protected free expression which, if respected, will always make us the greatest nation on earth.

Having said this it should also be clear that nothing justifies the 9/11 attacks and/or the murder of children anywhere. Those responsible for such actions, together with the States that sanction and promote such tactics -- or wink at them, as New Jersey does, and lie about having done so -- must pay a heavy price for complicity in atrocity.

I am sure that persons of good faith in the Middle East, including concerned officials in Syria, will agree with this principle. No more robot-bombs. No more suicide bombers.

The global community may still come together to stop international terrorism in the interests of global civilization. The one thing which no one must reach for is that gun or a bomb to place in an airplane. Responsible officials from the Cuban-American community must agree on this point. The real reason for killing innocent people in an airplane is that some sick people enjoy the surge of power that comes with such horrible acts. Whoever commits a terrorist action and for any reason is guilty of great evil. Such crimes cannot be tolerated anywhere in the world. They must not be tolerated in the United States of America. ("American Hypocrisy and Luis Posada Carriles.")

Terror is not compatible with civilization nor with scientific and technological achievement, nor with commercial and artistic progress; terror is not compatible with the feeding and clothing of persons, nor with the care of the sick and dying. It is everyone's responsibility to promote civilization, to feed and clothe the poor, to care for the sick and dying. Hence, terror will not be permitted to prevent the international community from striving to accomplish these humanitarian objectives.

You will certainly not terrorize, threaten, or torture me into giving up my free speech rights which is something that New Jersey officials and lawyers are still trying to accomplish.

There is too much that needs to be done in the world on the basis of cooperation and trust for a few homicidal extremists to be allowed to frustrate and obstruct global humanitarian efforts. Even the humblest and least significant persons, like me, can contribute in some ways to such efforts, if only by arguing for them at every possible opportunity, in every forum. Those who delight in ridiculing such hopefulness and all forms of social meliorism will always remain only cynical observers irrelevant to the administration of law and politics.

Ad hominem insults directed at me are only attempts to avoid the truths confronting you, New Jersey, truths symbolized by the Statue of Liberty or the Lincoln Memorial.

To express what we all know to be true is not "pointless."

We have reached a moment when persons are more concerned to avoid being seen as naive by articulating ideal moral truths than to be regarded as shrewd by voicing fashionably cynical opinions.

If ever moral truths were needed, then it is now; if ever it were necessary to say these things, then it is necessary to do so now. Please feel free to consider me an "idealist" on these issues.

2. Torture.

"Torture is deliberately causing severe suffering, whether physical or mental, to another human being for the sake of causing such suffering or for pleasure" or for any other reason, such as to gather information for the State or to control "unruly" intellectuals.

The use of torture as an instrument of State policy is condemned everywhere. Yet it continues to be used by most, if not all, nations in the world. This sometimes means physical torture: beatings, maimings, blindings and similar horrors. More often, these days, it means psychological torture: the use of hypnosis, drugging, sensory and other deprivations, the entire behaviorist arsenal, in order to circumvent conscious mechanisms of defense and reach the subconscious mind.

Sexual violations are very useful for these purposes. Frustrations and anxiety are excellent weapons in the arsenal of psychological torturers. Hence, the "errors" inserted and corrected in my writings on a daily basis. ("What is it like to be tortured?" and "Psychological Torture in the American Legal System.")

It is difficult to describe the agonies that can be inflicted on persons in such a state of mental helplessness -- agonies of self-doubt and torment, fear of harm to loved ones, humiliation, frustration, rape and far worse, can only be called unspeakable. Those who have experienced such terrors are scarred for life, but they can also emerge from such experiences both more integrated, harder than steel, and more firmly committed to their struggles -- also more compassionate -- as in the case of a great inspirational leader like President Nelson Mandela. Please see: John Miller, Aaron Kenedi, eds., Revolution: Faces of Change (New York: Thunder's Mouth Press, 2000) and Mary Joe Frug, Postmodern Legal Feminism (New York & London: Routledge, 1992).

Any nation or people indifferent to such torments or tolerant of them, despite public denials and protests, has become a lie, as I say, that will be seen as such by the world.

I will not accept that America's Constitution has become a lie.

We must fight for that Constitution to remain a reality.

Article 5 of the Universal Declaration of Human Rights, which is based on the American Constitution and French Declaration of the Rights of Man (or persons) and other similar documents, states unequivocably:

"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

The United States Constitution, Amendment VIII, similarly prohibits "cruel and unusual" punishments.

All persons accused of wrongdoing are entitled to judgment by way of a fair legal process and an opportunity at a meaningful legal defense.

Secrecy and cover-ups are the enemies of legality and justice. Victims of such "secret" proceedings insist as I do:

"Tell us the truth about what has been done to us and by whom it was done, so that we may confront torturers with the moral consequences of their actions."

There is no nation or faction in the world that will admit to engaging in such practices of torture and censorship.

Most powerful entities do make use of such tactics. The result of these methods is to reduce human beings to the status of objects, "things" or "chattle" intended to serve purposes that are not their own. Torture is a reversal of the Kantian injunction, leading to the treatment of persons as "means" and not as "ends."

I am not and will not become a "means" to the undisclosed ends of others including any and all governments.

I am not a slave.

I am not a laboratory animal.

In the United States, as with any other society, there is no guarantee that individuals will refrain from such acts, but there is a guarantee under the American Constitution and legal tradition that those who can be shown to have done such things will be punished in accordance with the law.

If it is true that "America is sometimes a disappointment," as I once heard a debater express it, "then this is only because America is a hope."

I refuse to believe that torture will ever be (or will remain for long) a matter of policy in the United States of America.

I can not agree that torture will be regarded with indifference by those entrusted with responsibility for protecting the rights of all citizens. The American -- and also the global "rights" revolution -- will not be complete until such methods of torture and censorship are no longer used by anyone, not against any human being, not in any country.

"Waterboarding" will not make us safer.

The obstruction of my television signal will not change my mind on this matter.

I hope that New Jersey's Supreme Court is capable of grasping this point.

If American Constitutional principles are only a hope (I believe that they are an actuality), then they are my hope and no one will take them from me, or ridicule them to me, or prevent me from fighting so that they will be more than a hope in as many cases as possible, for as many persons as possible, in as many parts of the world as possible.

3. Ignorance.

In a world that is becoming increasingly complex and subject to technological innovation scientific training and sophistication become precious commodities:

Ignorance is a "deprivation of education or knowledge" that leaves a person in a condition of unawareness, undeveloped, intellectually immature and incapacitated for meaningful participation in the cultural, intellectual and political life of his or her society.

Ignorance is a terrible injury or harm suffered by billions of persons who are unjustly denied even basic education or literacy and also necessary scientific knowledge for the twenty-first century.

Article 26 of the Universal Declaration of Human Rights provides:

"Everyone has the right to an education. ... Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, ..."

For the United States of America to walk away from the United Nations Commission on Human Rights is a terrible blunder that harms everyone.

I fervently hope that the Trump administration will reconsider the decision to abandon America's commitment to international human rights laws.

I believe that the "liberty" interest protected in the Fourteenth Amendment of the U.S. Constitution -- together with "equal protection" under the Fifth and Fourteenth Amendments -- mandate a societal commitment to enhancing educational opportunities, especially for the African-American community which is still coping with the legacy of slavery, but also for every person in the nation.

The availability of university education for African-Americans must be seen as a national moral obligation.

It is the absence of education that often leads to problems of international crime as well as complicity by nationalist groups in ethnic and racial hatreds.

Education is the ultimate reparation for slavery. ("Freedom for Mumia Abu-Jamal.")

4. Dehumanization.

The dissemination of commodities and media images all over the world has created a situation in which persons are often identified with reified categories of objects or fantasy images. ("'Westworld': A Review of the TV Series.")

The worth and dignity of persons is made dependent upon the market value of the "things" that they own or their capacity to resemble media icons which designate (or "code") membership in one class rather than another.

Media "icons" are often generated and controlled by only a few persons, in a few centers of cultural power, located in a tiny number of enclaves within the wealthiest countries.

This lack of balance in the production of media imagery (or books) deprives entire populations of their voices, of their ability to communicate, of the legitimacy of their experiences and stories, of their forms of beauty, which may not resemble the images generated by the major "media-makers," with the result that these forms of beauty may be devalued and delegitimated.

The solution is not to censor or silence the makers of media images in the developed world, but to facilitate -- through new partnerships that are mutually profitable and educational -- the expressions of all persons in the global community.

I recently examined magazines and newspapers in a bookstore and found it impossible to discover a single Latino name on the cover of the most prominent magazines and newspapers in the United States of America.

Latinos (Muslims?) who are permitted to appear in such publications are lap dogs of political figures and anything but journalists or writers.

No wonder newspapers are losing readers.

All persons and cultures have an interest in self-expression.

World media centers should be created so that the plural images of beauty and the many mythic meanings created and shared by the human family, in all of its diversity, will find outlets and mechanisms of articulation as opposed to only those of a privileged few located in the wealthiest nations on the planet. This pluralism will enrich all of us, and not only in material ways.

5. Poverty.

Billions of persons in the world are burdened with grinding poverty that has the effect of denying them the fundamental dignity to which every person is entitled by virtue of his or her humanity and negating the meaningfulness of their right to freedom as a result of grotesque inequality. ("Innumerate Ethics.")

Article 25 of the Universal Declaration of Human Rights states:

"Everyone has a right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood ..."

No one should be permitted to starve to death as tons of food are wasted.

No one should be denied access to health care because of a lack of ability to pay large sums of money for such services.

No one should be denied access to education through the university level exclusively on the basis of economic status or race.

Some of the great disproportion in wealth in the world should be redirected, voluntarily, to alleviate dreadful conditions unnecessarily burdening the lives of billions of persons.

It is incumbent on the wealthiest nations to contribute to redressing the balance in as "reasonable" a degree as possible on behalf of the poorest nations.

"Redressing of the balance" may be done through international mechanisms, or privately, as the United States -- which is the world's largest donor nation -- is currently seeking to do in the Sudan and elsewhere in Africa, Asia, and in the world generally.

Mr. Trump has made America far less generous and more greedy in controlling global resources.

American charitable efforts rarely receive the publicity that they deserve. They are as important as any other aspect of American foreign policy. Responsibility for wealth-sharing must also be accepted by more of the wealthiest nations.

All of these basic rights-claims are feasible.

They are not far-fetched.

It is possible for us to achieve these things within our lifetimes if we really wish to see these goals achieved.

The founding ethical principle (for me) is not an abstraction or a future Utopia, but a focus on the specific individuals that we know and with whom we interact every day, like the person on the bus or commuter train who asks for spare change, or the person we see sleeping on a park bench, or the child extending an open hand to us on the street.

We must recognize ourselves in the faces of all suffering human beings.

This recognition is the essence of the religious insight found in Judaism, Christianity, Islam and all of the great religions of the world.

Identification with others is one lesson derived from the scientific account of the common origins of the human species. ("Drawing Room Comedy: A Philosophical Essay in the Form of a Film Script.")

"A Specter is Haunting the World."

The first edition of "The Communist Manifesto" appeared in Germany in 1872. In concluding that pamphlet Marx and Engels said:

"We shall have an association in which the free development of each is the condition for the free development of all."

From our perspective more than a century later, the crucial word in that sentence is "FREE."

The freedom and rights or the moral and legal dignity of every person must come before the grandest plans of States or collectivities of all sorts, especially the right of persons to security and to their creative development.

Nearly a century before Marx and Engels Thomas Paine -- who was both an Englishman and an American revolutionary -- spoke of the human need for liberty and the unwillingness of individuals in any society to give up on their yearning for it:

"Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph."

In the final analysis it is that fundamental freedom to struggle for a better world (or revolutionary impulse) that is a person's kernel of humanity whose protection is the purpose of a legal system. ("A Commencement Address by Secretary of State Hillary Rodham-Clinton.")

Viktor Frankl wrote of his experience in a Nazi concentration camp:

"We who lived in concentration camps can remember the men who walked through the huts comforting others, giving away their last piece of bread. They may have been few in number, but they offer sufficient proof that everything can be taken from a man [or woman] but one thing: the last of human freedoms -- [freedom] to choose one's attitude in any given set of circumstances -- to choose one's own way."

Our "interpretive" freedom that is concerned with meanings is indestructible and irremovable from our lives.

This indestructibility of freedom is more true than ever in an age of images and spectacle when the ultimate responsibility to decide on truth and value rests with us.

The films we see, books we read, societies we create must belong to all of us as equal recipients of the greatness we inherit and to which we must contribute for the sake of our children.

The increasingly global rights revolution that, I believe, is expressive of the deepest values of the United States of America as expressed in the U.S. Constitution will be complete only when no one is deprived of the right to choose his or her own "meanings" in life and has an equal chance to acquire the tools with which to do so.

The American Revolution will be fully "successful" or complete only when each of us can count on the support of our neighbors in seeking self-realization through love in a community of equal citizens.

This ultimate individual and communal "self-realization" is what Thomas Jefferson meant by "happiness" in the Declaration of Independence.

Tuesday, June 23, 2009

What is Law?

Pictured above is U.S. Supreme Court Justice Anthony M. Kennedy. The image may be blocked by New Jersey legal officials in criminal violation of the Constitution and your civil rights.

MSN groups is still "closed" or so I am told. I am unable to see my books on-line. One book will not be sent to on-line booksellers; "errors" are routinely inserted in my writings; crank calls from New Jersey -- possibly made with police protection or by police officers and/or other officials -- are a daily experience, for me, as is the vandalism and alterations of my copyright- and Constitutionally-protected writings.

Is "Lulu" also The New Jersey Law Journal and/or N.J. Supreme Court?

A fraudulent ISBN number(s) and thefts by "ethical" New Jersey attorneys at the OAE are seemingly O.K. with the state's Supreme Court.

I have no idea of the true number of readers of my blogs (or books) not even "approximately."

It is estimated, however, that readers of all of my writings at blogger and elsewhere may be well in excess of 100,000.

A number of these texts have been (and are being) translated into other languages. ("An Open Letter to Cyrus Vance, Jr., Esq.")

I wonder whether "Publish America" or "Lulu" are still contaminated by "state action" in their censorship efforts against me? Is there a "link" between these sites and New Jersey's government officials as individuals? OAE? Senator Menendez? ("How Censorship Works in America" and "Censorship and Cruelty in New Jersey.")

Are Justice Kennedy's writings altered by hackers? Would Mr. Kennedy like it if his works were defaced (or destroyed) by persons disagreeing with him and, hence, denying him the right to hold or express his opinions?

I doubt that he would like it.

Censorship is still my daily nightmare.

It is my fervent hope and ardent wish that all citations in this essay will not conform to the strictures of any Blue Book nor to the stern admonitions of something called: "The Chicago Manual of Style."

The words "Chicago" and "Manual of Style" are rarely associated in my life.

Attacks on this essay will be constant. I will do my best to make corrections as they are needed.

One word was deleted from the foregoing paragraph. I have now restored that word to the sentence from which it was taken.

I wish that I could make use of the image of a young woman murdered in Iran as she protested for the very free speech rights that she (and I) have been denied today -- rights that are now endangered for all of you.

American officials, evidently, are preventing me from posting images at these blogs in 2019 and beyond.

My primary sources for this essay are listed below:

Angela Y. Davis, Are Prisons Obsolete? (New York: Seven Stories Press, 2003).
Ronald Dworkin, The Supreme Court Phalanx: The Court's New Right-Wing Bloc (New York: NYRB, 2008).
Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986).
Ronald Dworkin, "Justice Sotomayor: The Unjust Hearings," in The New York Review of Books, September 24, 2009, at p. 37.
John Finnis, Natural Law, Natural Rights (Oxford: Clarendon Press, 1980).
Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1964).
H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961).
Duncan Kennedy, A Critique of Adjudication (fin de siecle) (Cambridge: Harvard University Press, 1997).
Roberto Mangabeira Unger, The Critical Legal Studies Movement (Cambridge: Harvard University Press, 1991).
Roberto Mangabeira Unger & Cornel West, The Future of American Progressivism (Boston: Beacon Press, 1998).
Michael S. Moore, "Law as Justice," Ellen Frankel Paul, Fred D. Miller, Jr., Jeffrey Paul, eds., Natural Law and Modern Moral Philosophy (Cambridge: Cambridge U. Press, 2001), p. 115.
Michael Perry, The Constitution, the Courts, and Human Rights (New Haven: Yale University Press, 1982).
Richard A. Posner, The Problems of Jurisprudence (Cambridge: Harvard University Press, 1990).
Lloyd L. Weinreb, Legal Reason: The Use of Analogy in Legal Argument (Cambridge: Cambridge U. Press, 2005).

Morris B. Hoffman, who is identified as a state trial judge in Denver, writes in The New York Times, October 21, 2005:

"Does a judge's obligation begin and end with the law, or is the law merely an instrument through which judges should strive to achieve greater social good[?]"

Judge Hoffman concludes:

"... truly restrained judges follow the law no matter how politically or socially unpleasant the destination."

Judges are usually appointed in America. Only elected officials who reflect the values and will of the people should write laws which are to be applied, with impartiality (we hope), by appointed judges.

Judge Hoffman, along with most critics of judicial activism, fails to ask the crucial question: "What is law?" And what exactly are you asking a person to do, as a judge, who is to "apply" or "follow" the law? "Law" is a big word:

"Few questions concerning human society have been asked with such persistence and answered by serious thinkers in so many diverse, strange, and even paradoxical ways as the question 'What is law?' Even if we confine our attention to the legal theory of the last 150 years and neglect classical and medieval speculation about the 'nature' of law, we shall find a situation not paralleled in any other subject systematically studied as a separate academic specialty."

H.L.A Hart, The Concept of Law, p. 1.

If it is clearly and obviously true that law has to do with power and legitimacy -- meaning adherence to rules -- then it also seems clear that law is concerned, importantly, with morality and justice which may require limitations or exceptions to rules.

The issue of what rules are "for" is never irrelevant to the judicial task.

Values (or goals) of a legal system (especially certainty and justice) may and usually do conflict.

The greatest value served by any legal system is justice. The very idea of legality depends upon a notion of justice. (See Lon Fuller's writings above.)

Authority is not enough. Law must be concerned with legitimate authority. ("New Jersey's 'Ethical' Legal System.")

Lawyers are mostly unaware of the vast literature concerning the philosophy of law, jurisprudence, which is a course offered in law schools that is usually ignored by students who are unconcerned about the meaning of what they plan to do for the rest of their lives, but troubled about how to use tax laws to save wealthy persons and corporations lots of money in their future law practices.

Legal culture or the history of law, international and comparative law, law and literature -- all of these areas of scholarly endeavor are neglected in the education of American lawyers. Legal ignorance may have tragic consequences for all of us. ("Law and Literature" and "Ronald Dworkin On Law as Interpretation.")

Most of the lawyers involved in rationalizing the tortures of detainees at Abu Ghraib and Guantanamo had little or no experience (or knowledge) of international law and practice when they were asked by President Bush to analyze legal options with regard to detainees.

I am aware of how absurd and ridiculous is this ignorance and lack of experience among analysts in a nation with America's unrivaled or always available legal talent and scholarship: Phillipe Sands, Torture Team: Rumfeld's Memo and the Betrayal of American Values (New York: Macmillan, 2009), pp. 56-71. ("In situations like this you don't call in the tough guys, you call in the lawyers." -- George Tenet.)

I chose to attend all of the following courses in an accredited American Law School: International Law; International Commercial Transactions; Conflicts of Laws; Jurisprudence; Advance Jurisprudence Seminar; Independent Study-"Right to Die" (Honors); and Comparative Legal Systems.

If I were among the lawyers and researchers Bush's Justice Department assigned to the legal analysis of torture policies I would have been (by far) the most experienced or knowledgeable of all of them with regard to international law and human rights conventions. This should frighten you.

I received the highest possible grade in each of these courses, including "best paper" in the class in two of them sometimes against Ivy League competition.

I also served as a guest judge in an international law moot court competition involving several law schools.

I was a guest lecturer on more than one occasion at my former law school and at other schools.

Not bad for a so-called "retarded person." ("New Jersey's Office of Attorney Ethics.")

How many of the demonized Bush lawyers ("retarded"?) writing infamous memos can say the same? ("What a man's gotta do" and "Burn Notice.")

Bush's torture lawyers would have been defeated by all of the law students that I saw at that competition.

I find it impossible to avoid the conclusion that this astonishing ignorance of the relevant areas of law -- among those who were asked to provide "expert opinions" for the U.S. Chief Executive -- is one important factor in the resulting absurdities and evil of military torture and murder in America's notorious and still operative concentration camps.

The torture scandal is not a display of American political or legal thinking at its best. For example, Mr. Jamadi was "killed" pursuant to interrogations -- i.e., beatings -- while in U.S. custody without ever being charged with committing a crime. The murder is now admitted, evidently, by U.S. authorities who feel no need to apologize to the victim's family for the crime.

Assassination of a foreign political leader is a policy explicitly renounced by America after the killing of Patrice Lumumba by the CIA in the nineteen-sixties that may be restored to U.S. practice early in the twenty-first century with disastrous consequences for all of us in the years to come.

This is a crime -- the murder of Mr. Jamadi -- that should be charged against Mr. Holder and President Obama and not Mr. Trump. Hence, there will be no expressions of outrage in America's "liberal" media because President Obama is "one of us."

I voted for Mr. Obama and would do so again, given the available options, but I would not hesitate to criticize any president over human rights violations.

Suppose that it were possible to program a supercomputer with every law in the land. If you commit an offense "X" then you will receive punishment "Y". No exceptions. All risk of discretion is eliminated. You are guaranteed the uniformity of result and predictability, absolute certainty of outcomes, that is much valued by many legal theorists.

Is it likely that such a machine would be an ideal judge? If not, why not? If you were accused of a crime, would you wish to be brought before such a mechanical judge functioning like an automated Tarot card reader? Do federal guidelines provide "mechanical jurisprudence" in District Courts?

Talk of "flexibility" in such guidelines is not very convincing or reassuring when you become the person to be sentenced.

My guess is that you would not wish for a "mechanical" judge.

You would wish for some human understanding from a judge, some capacity for empathy, for moral (yes, moral) discrimination and intelligence in the administration of laws.

Until computers can be programmed with a capacity for empathy and moral discernment they will not be of much assistance in the human task of judgment.

I believe that judges should have substantial discretion. I did not say "absolute" discretion. They should have, appropriately enough, some talent for "judgment" (think of what the word means), discernment and perceptiveness, ideally, even wisdom.

"Empathy" is not a dirty word. It is not a "bad thing" for a judge to be empathetic or "concerned" -- including being "concerned" for the victims of crimes and for criminals who are usually also victims.

I suggest that this capacity for moral and political reasoning is part of what we mean by law.

Law includes a kind of natural morality of legal processes. ("Roberto Unger's Revolutionary Legal Theory.")

This tentative definition that owes much to Aquinas may be illustrated in what follows.

Please understand that this is to see law as a political, ethical, metaphysical concept with a kind of epistemology that is unique to the enterprise of "lawyering." Lord Coke called this method the "artificial reason of the law."

Law is always concrete and universal and also both ideal as well as practical.

Despite all of the obvious exceptions nowhere are legal practice skills more sharply developed than in America and Britain.

I say this as someone who has met British solicitors and barristers.

There are persons who find it disturbing that so many of the writers and thinkers I admire happen to be British or New Englanders. I am criticized because I do not quote a sufficient number of Latinos/Latinas.

I make decisions about the writers, thinkers, artists that I admire based on how good they are and not based on ethnicity or race. Among those I admire are quite a few Latinos and Latinas, also African-Americans. My home in thought is language -- really, languages -- so that persons who use words with skill are (and will remain) my teachers.

I am not distressed that many of these persons happen to be British.

All laws are expressed in words. All languages are made up of ambiguous, uncertain, and imprecise words -- words that require interpretation. Any human situation is only imperfectly captured in the language of the law. ("Is it rational to believe in God?" and "John Finnis and Ethical Cognitivism.")

"Words are like the arrows," Oliver Wendell Holmes said, "that I use to bring down the bird of thought."

Unfortunately, many of the arrows that lawyers and judges fire miss their targets -- often by a wide margin.

This is especially true of legislatures or committees drafting rules. Any meaning contained in law requires an interpreter acting or reading in "good faith," intelligently, and with an understanding of the purposes of communication in each context.

Never secretly, out of animosity, or for the delight of wielding power over others and causing pain.

Holmes was, of course, the founding father of American legal realism and a positivist. But then Holmes wrote his dissents and legal theories, mostly, before the experience of the Holocaust.

The Holocaust reminded humanity that something more than order or "positivity" is at stake in the legal systems of our societies. This recognition (good word!) of law's nature leads to the development of concepts of "crimes against humanity," such as torture, murder, and rape or genocidal policies of fascist states or the practice of strategic political assassination.

"Recognition" means "seeing again" or "knowing again" which is what appellate courts should try to do especially when human lives are at stake or the integrity of the system is at issue. ("Drawing Room Comedy: A Philosophical Essay in the Form of a Film Script.")

There was no positive legal basis for the Nuremberg trials. No precedent existed in international legal doctrine for the punishment of Nazis after the war. No rules. However, the world recognized that certain crimes may not be committed, not even -- or especially not! -- by those entrusted with legal authority in any society, certainly not in the United States of America.

Torturers must be punished and their crimes must not be legitimated with the "sanction" of law. It is bad enough for lawyers to betray their principles and commitments to the Constitution, but when combined with the surrender of medical ethics as in the recent torture crisis the result can only be evil. ("An Open Letter to My Torturers in New Jersey 'Terry Tuchin' and Diana Lisa Riccioli.")

Jane Mayer, "The Secret History: Can Leon Panetta Move the C.I.A. Forward Without Confronting its Past?," The New Yorker, June 22, 2009, pp. 50-59. ("This is arguably the single greatest medical-ethics scandal in American history. We need answers.")

Philippe Sands, "Torture -- The Complicit General," The New York Review of Books, September 24, 2009, p. 20. (" ... prolonged stress positions, deprivation of light and sound, [social isolation,] hooding, forced grooming, removal of clothing, and 'manipulation of individual phobias' [such as fear of dogs] to 'induce stress.' ...")

Ronald Dworkin speaks of adjudication as, essentially, an interpretive activity in which a judge should seek the "best" reading of the law in accordance with the integrity of the legal system as a whole. A key difficulty concerns one's view of human nature, especially when it is dressed in judicial robes. There is a process of ego-enhancement that comes with elevation to the bench. Some people can handle it, others can't. The question is whether, on the whole, the best persons available for such positions are to be trusted with generous discretion in the application of laws, especially when it comes to the broad and open-ended provisions of the U.S. Constitution, because we can be sure that they will (mostly) be able to cope with the ego trip associated with the judicial role. ("Jay Romano and Conduct Unbecoming to the Judiciary in New Jersey" and "Sybil R. Moses and Conduct Unbecoming to the Judiciary in New Jersey.")

I think that most judges certainly can be trusted with discretion. I prefer greater flexibility to the straitjacket approach that is bound to produce unjust results in cases where mechanical adherence to rules does not fit the situation at hand. Some judges cannot be trusted with discretion or power. We have to hope that such judges are rare and (when discovered) can be removed, quickly.

Reality will always be too protean and complex for any scheme of rules, unless the rules are supplemented with abstract principles and standards, or general customs of practice, that provide flexibility at the joints of a legal system. Fortunately, there is always an appellate process and recourse to public opinion.

This is not by any means to recommend judicial "philosophizing" or "imposition of values."

We should all fear attempts by judges to resolve philosophical controversies or worse -- as with the Deborah T. Poritz and Stuart Rabner Supreme Courts in New Jersey -- efforts to legislate solutions to vexing social controversies or precise allocations of resources that go way beyond deciding specific cases or controversies involving individual litigants.

When appellate courts begin to hold "legislative" hearings by allowing experts to testify without cross examination, secretly, we should worry. Adam Liptak, "Justices Rule Crime Analysts Must Testify on Lab Results," The New York Times, June 26, 2009, p. 1. (Experts must not escape 6th Amendment constraints: "Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture.")

Judge Sotomayor has refused to go beyond her responsibilities as a judge. No doubt Judge Sotomayor has been criticized by minority groups who wish her to go further in promoting social equality. On the other hand, I hope, Judge Sotomayor is fearless in enforcing Constitutional rights of litigants and applying statutes written by legislatures when she can interpret them as containing some discernible meaning. This is not an easy challenge given the poor literary skills of many legislators, as I say, poor skills matched by so many judges. ("'The Scarlet Letter' and the #Me Too Moment.")

I enjoyed the opening proceedings of the Sotomayor confirmation hearings. I was dismayed at the letters that appeared on my television screen in the midst of the judge's statement concerning "children's programming" on WNET. This distracted, unfairly, from the judge's statement. I was reminded of the similar interruption of Mr. Giuliani's speech at the Republican Convention.

Curiously, attacks on my computer and security system during the past two days have left me with numerous inserted "errors" in my writings. My t.v. signal is routinely blocked. I am sure that my experience of censorship is only a "coincidence" that is unrelated to the contents of my writings.

I was impressed with the unanimous commitment of all speakers before the U.S. Congress to freedom of speech under the Constitution. I am sure that at least some of these speakers are sincere concerning our freedom to disagree. I can only hope that, ordinary citizens as well as politicians, will some day enjoy authentic rights to freedom of expression and worship in America. ("How Censorship Works in America" and "Censorship and Cruelty in New Jersey.")

Judge Sotomayor's concern is with the law, not with telling citizens how to live their lives. The law often requires interpretation. "Interpreting" law inevitably involves values and evaluations.

Values are inextricable from the decisions of Chief Justice John Roberts, for example, who has found the arguments of Republicans highly persuasive and who agrees with prosecutors at every opportunity when appeals in criminal cases come before him and the Supreme Court. (See the quote from Jeffrey Toobin in "Charles Fried and William Shakespeare on Interpretation.")

Suppose that a law is enacted in Washington, D.C. forbidding people from "eating food in subway trains." The purpose of the law is to promote cleanliness in subway platforms and trains. For those who are convicted the penalty is "a $100.00 fine or a week in jail for anyone who fails to pay the fine."

A twelve year-old African-American girl is arrested and charged with violating this statute after eating one "French fry" while sitting in a subway train.

Is that one French fry "food" within the meaning of the statute? Suppose that this dangerous defendant -- one of Dick Cheney's "worst of the worst"? -- did not litter and that the "evidence" is now gone. Remember that the burden of proof is on the State.

The Defendant may remain silent and win her case. She does not have the $100.00 to pay the fine, if convicted, and she cannot reach any relative to help her.

Should we torture this child in order to discourage future littering? Are we "wild-eyed liberals" if we call for a little nuance in this situation? I do not think so.

If I were asked to advise this young woman in the good old days, I would insist that she not testify and put the state to its proofs. I would walk up to the prosecutor and ask: "Where's the French fry?" If the French fry does not "testify," Paul Bergrin would say, we have it made.

Debbie Poritz or Bob Menendez would send the child to Abu Ghraib -- unless they found the girl sexually attractive. ("Neil M. Cohen, Esq. and Conduct Unbecoming to the Legislature in New Jersey" and "New Jersey Superior Court Judge is a Child Molester" as well as "We don't know from nothing!" and "Judges Protect Child Molesters in Bayonne, New Jersey.")

Like 'em young, Alex Booth? Bob Menendez? These people speak to me of "ethics"? ("Edward M. De Sear, Esq. and New Jersey's Filth" and "Menendez Consorts With Underage Prostitutes.")

Judge Hoffman, presumably, would take one look at this case and decide that the law is clear. If the Defendant is convicted, Judge Hoffman would set aside personal feelings and send the child to jail, however reluctantly:

"Sorry, but my hands are tied," is the positivist's kiss of death. "It's nothing personal." ("The Wanderer and His Shadow.")

Judge Hoffman is probably against "empathy" on the part of judges because a capacity for identification with litigants is a form of Communism or, possibly, demeaning to lesbian women in the "#Me Too" era. ("Trenton's Nasty Lesbian Love Fest.")

Suppose an ideal judge (a distant cousin of Professor Dworkin's "Hercules"), let us call her "Hillary," were assigned this case.

Judge Hillary wonders whether the purpose of this law, "cleanliness in subways," conflicts with a fundamental Constitutional principle of the society, say, "equal protection of the laws."

Clearly, this law disproportionately burdens the poor. Poor people -- who are mostly African-American and minority in this community -- will always be more likely to eat in a hurry, consuming low quality, fast food; they will be more likely to be arrested and charged; they will be less likely to be able to pay the fine, and they will be sent to jail more often. ("Foucault, Rose, Davis and the Meaning(s) of Prison" and "America's Holocaust.")

Is cleanliness in subway trains such an important social goal that we will ignore the possible frustration of other prominent social goals of the legal system, such as promoting racial equality and harmony, or Constitutional principles ensuring due process and equal protection of the laws? Does the statute suffer from impermissible "vagueness" and is it "over-broad" so as to offend the due process principle? Could the legislature have intended to frustrate primary policy goals and legal principles with legislation such as this? Was the law really aimed at twelve year-olds who eat French fries on their way home from school?

These heuristic considerations are also "legal" since they are found in case law and within the U.S. Constitution's provisions.

The Constitution governs ALL American substantive laws, regulations, or procedures for relations between legal subjects and the State. Thus, a judge must "apply" these principles of fairness in interpreting statutes. These interpretive or hermeneutic principles are "law."

Any resemblance between this hypothetical and cases heard (or decided) by U.S. Supreme Court Chief Justice John Roberts is intentional and very deliberate.

I received a grade of A+ and "best exam" in my Constitutional Law course in law school. This is not unusual among (allegedly) "retarded" Latinos who are described as "fools" in New Jersey, mostly for refusing to commit crimes on behalf of political bosses or to accept violations of their own and their clients' fundamental rights by corrupt judges even if such corrupt judges are Jewish or mob-connected or both. ("Have you no shame Mr. Rabner?" and "Does Senator Menendez Have Mafia Friends?)

Judge Hillary is doubtful that this possibility (conviction of children) was contemplated -- or desired -- by the legislature.

Notice that the law forbids "eating food" (not littering) on the subways. Prior to going on the bench -- with colleagues and also former presidents, the Honorable Judges Barack Obama and Rudolf Giuliani -- Judge Hillary served in the U.S. Senate and as U.S. President for two terms.

Judge Hillary knows politics very well. Judge Hillary is adept at "disposing" of cases from the bench with great acumen and skill, but without requesting sexual favors (like Lourdes Santiago) or cash in an envelope (like Estela de La Cruz).

The persons who wrote the law, as it turns out, were thinking of the business commuter getting on a train with a snack and tossing his or her garbage on the floor. It would frustrate fundamental social values and legislative purposes to apply the law "mechanically" to an African-American child eating "fries" when white children from the affluent suburbs will never face such a situation even if they have a three course meal in a subway train.

Judge Hillary may well reason that this law is discriminatory, as applied, and besides, that a week in jail for a twelve year-old who eats a French fry offends the "due process" clause and constitutes "cruel and unusual punishment" -- but then, so would a diet of fried potatoes perhaps.

Judge Hillary may well dismiss the charges, inviting the young lady and her mother out to lunch, where she could provide a nutritious meal while helping an overworked mother to persuade her child to avoid fried food in the future, not for legal but strictly for health reasons.

Judge Hillary may also refer the offending statute back to the legislature for possible revision and amendment, making it clear (to police officers who are not too bright) that, in the future, American law enforcement should not be overly concerned about children who eat fries in subway trains. This case falls under the "get-this-shit-out-of-here" category.

Judges should not leave their knowledge of the real world and common sense outside their courtrooms. They should read laws intelligently, looking for the meaning in what was said -- which, again, is sometimes no easy task -- and for what was not said, the intentions and purposes that are ostensibly to be effectuated by the law, presumably, in a manner most consistent with other existing legislation and public policies which is also no easy task.

Judicial responsibility involves what Aristotle calls "practical wisdom" and not just knowledge of the law or facts.

Humanity and compassion are essential attributes of a good judge. There are, I hope and believe, many good judges in the system. There are also some bad judges. A few judges are incompetent and evil. There is no way to avoid a moral component in adjudication. Restraint merely results in one set of moral consequences; activism results in another. Failure to act can be a form of Republicans' much-dreaded activism for the status quo.

Assessments of judicial performance should be based, accordingly, on results in keeping with the law, productivity in the best sense, but also on the values of law as an institution, that is, preserving "integrity in law" (Fuller, Dworkin) and even justice. Scott Shane, "Cheney is Linked to Concealment of C.I.A. Project," The New York Times, July 12, 2009, p. A1. (Did Mr. Cheney instruct the C.I.A. to "mislead" or lie to the U.S. Congress?)

Do you speak to me of "lying," ladies and gentlemen of the N.J. Bar Association? ("Is truth dead?" and "Christie and Mastro Accuse Each Other of Lying.")

Why were some observers concerned when Mr. Clinton allegedly "lied" about sex, but not terribly distressed at Bush/Cheney "weapons of mass deception" that have brought us costly military operations resulting in so much loss of life? "Whatever?" Whose lies do you worry about, Mr. Rabner, are everyone's lies unethical except for your lies to protect Ms. Poritz and/or yourself to say nothing of your soiled tribunal? Does Mr. Trump ever not lie about his conduct and adventures or the motives of his adversaries? ("Is truth dead?" and "Stuart Rabner's Selective Sense of Justice.")

America would have preferred that Mr. Bush had an affair with an intern to national involvement in multiple and stagnating military conflicts and a policy of torture as well as drone murders.

Deciding who is a good judge is not simply a matter of determining "how many files a person disposes of per day."

Determining what constitutes extraordinary judicial ability is an evaluative or partly moral judgment:

"It would be absurd to insist that the 'literature of moral philosophy is irrelevant to the proper performance of the judge's task.' ... Inevitably each justice will deal with human rights problems in terms of the particular political-moral criteria that are, in that justice's view, authoritative." (Perry, p. 111.)

The most dismal and depressing aspect of life for many lawyers, I am told, is the encounter with judges who should no longer be judges.

The most dismal experience for judges is probably meeting lawyers who should no longer be lawyers, however talented they may be.

The rigors of law practice take a toll on persons -- judges and lawyers alike -- since they are confronted with so much human suffering and evil. It should be permissible to express the need for rest and contemplation. In law practice, it is often not permissible to say: "We need to step away from this and think about what we are doing and why we are doing it." ("Law and Literature.")

There are any number of judges and lawyers, right now, who are thinking and feeling exactly this despair, every day. Evil is like a flame. A small taste of the ultimate variety of this quality that we call "evil" will change you forever. You will be burned by evil. You will not recover from an encounter with absolute evil. Members of society entrusted with coping with such malignancies -- judges, prosecutors, defense lawyers, psychologists, police officers -- may be seduced by evil. Rest and contemplation are essential to such persons. (See Jane Mayer, pp. 58-59, concerning the appalling role of Joseph Matarazzo, the American Psychological Association, James Mitchell and Bruce Jessen as well as others in the development and use of "harsh interrogation methods," i.e., torture.)

There is a need to reach out to troubled legal and medical professionals like Estela de La Cruz or Maureen Manteneo who is rumored to have an alcohol problem -- professionals who often commit no crimes -- with compassion and out of concern for them as well as to meet social needs. It is important to discern the causes of such failures, especially when they become systemic, the products of the system's own sicknesses. The mechanisms for the enforcement of legal rules should not be contributing to the system's failures, through neglect and disdain for those same rules, or worse, such as deliberate criminality by so-called "ethics enforcers" as in New Jersey. John McGill? ("New Jersey's Office of Attorney Ethics" then, again, "New Jersey's 'Ethical' Legal System.")

Ethics officials should not be in the business of causing (or creating) or lying about the conduct that they discipline by committing even worse offenses against their victims (like rape, kidnapping, false imprisonment, or use of forensic hypnosis and theft) in order to punish that conduct (or to cover-up their own criminality) through soliciting grievances against their victims. They certainly should not do that "punishing" -- or act at all -- secretly while claiming a "therapeutic" mission. ("John McGill, Esq., the OAE, and New Jersey Corruption.")

For government lawyers to commit the worst possible violations of the legal and moral rights of politically targeted professionals -- for them to commit CRIMES against such professionals by causing their victims' troubles -- only results in greater disregard for the humanity of all persons in society and leads to a deserved loss of the law's legitimacy or respect and is unethical. (Again: "New Jersey's 'Ethical' Legal System" and "New Jersey is the Home of the Living Dead.")

Years of apathy (or inaction) and silence in response to government evil is fatal to the integrity of a legal system.

Many good men and women in the U.S. legal system have given up after about ten years or so (sometimes less) and are on automatic pilot looking forward to retirement and accumulating wealth, allowing for greater personal satisfactions and the neglect of the moral implications of what they do. They live for the weekends, the new 'Benz, or a sexual tryst with a twenty year-old.

All moral concerns or ambitions have been forgotten by many or most urban lawyers long before their tenth year in practice. ("Law and Ethics in the Soprano State.")

"Idealism is something you outgrow," I was told by a lawyer once. "Who wants to save the world, I want to make money," is another bit of lawyers' wisdom that is passed on to the young, usually by a future judge in the process of "acquiring" his judgeship. How's it going, Jose? How much did it cost you? $15,000 in cash for a politician like Bob Menendez perhaps? Agustin Sanchez may have spent more than that to become a Union City Municipal Court judge for reasons that are beyond my comprehension.

It is difficult to take seriously law school bromides about becoming a heroic advocate for human rights when lawyers who do just that -- often "brazenly" defeating prosecutors -- "wind up" indicted, possibly as a form of payback. I hope there was more to the Lynne Stewart case than meets the eye. See: http://lynnestewart.org/mtigarlettertosullivan.html (Michael Avenatti, Esq. is clearly being targeted because he had the courage to represent a powerless woman against Mr. Trump. If Mr. Avenatti stole from his clients he belongs in prison, but if he did no such thing and is being targeted because of fearless representation then all lawyers have an interest in his vindication.)

We need un-intimidated criminal defense counsel. The courthouse cafeteria can be a graduate school for young attorneys in the mores and unwritten rules of the profession. One such rule is that cynical comments are applauded over idealistic ones.

Real lawyers "talk money" and give you the low-down on judges -- who just got a divorce or stopped drinking, names of judges doing drugs or who like sex with young partners, that sort of thing. Politics is whispered about in such places, or in restaurants nearby, so you can "learn your way around the county" and figure out "who you have take care of."

Aside from the occasional "lunatic" who is a loner lawyers quickly learn "how to get ahead."

Lawyers in ethics agencies, for example, learn to do favors for politically powerful outsiders -- usually secretly or for cash like John McGill, Esq. of New Jersey -- enforcing rules highly selectively if not hypocritically and stealing what they can in the process of doing so. ("One of New Jersey's Highly Ethical Attorneys Has a Problem" and "New Jersey's Legal System is a Whore House.")

It would be instructive for a scholar to spend a week dawdling outside courtrooms or in a courthouse cafeteria jotting down the things said by lawyers and "legal customers" about the system. The amount and degree of nihilism and alienation, also disgust -- heard from lawyers and judges! -- may come as a shock to law professors. None of this is said publicly. It is never what you will hear at American Bar Association functions. It is the needle under the flesh when lawyers see and listen to one another making boilerplate speeches. Everybody knows when called upon to speak at such "work-related" social occasions that the purpose is to advance one's career and certainly not to speak the truth, nor to say anything that is genuinely believed, much less anything controversial (nor something true) in any meaningful or important way. This kind of after dinner speech is only another form of lying by lawyers. ("On Bullshit.")

The legal profession is highly stratified and hierarchical. There is very little real collegiality; much unspoken animosity -- even loathing -- between "segments" of it in New Jersey. Some of the worst hatred I have ever seen was in the eyes of lawyers contemplating judges from a safe distance and those favored politically-connected "colleagues" given special deference by co-opted judges.

The loathing of Judge Gallipoli and some others expressed by lawyers who then kissed their asses is something I will never forget. ("New Jersey Lawyers' Ethics Farce" and "Corrupt Law Firms, Senator Bob, and New Jersey Ethics.")

New Jersey is a bad example because the levels of corruption and incompetence among judges and OAE "lawyers" in that state is unique.  ("Deborah T. Poritz and Conduct Unbecoming to the Judiciary in New Jersey" and "New Jersey's Feces-Covered Supreme Court" as well as "New Jersey's Political and Judicial Whores" and "Menendez Charged With Selling His Office.")

There is a powerful political component -- like a cancer -- devouring the processes of American law. All kinds of things are done (secretly) and denied (publicly) by the powers that be. Often the least relevant item to examine in a case if you want to know what really happened is the transcripts of what was said on the record. These are things which many lawyers and others know, but do not say, not if they value their prospects. ("Mafia Influence in New Jersey's Courts and Politics" then "Does New Jersey's Mafia Enforcer Know Jaynee La Vecchia?" and "An Unpleasant Encounter With New Jersey's State Police" and "Joe Ferreiro Indicted Again.")

I hope to spend part of every day for the rest of my life attacking the New Jersey legal system in writing, publicly, and also broadcasting such attacks to the world.

What have you accomplished at the OAE? DRB? AG's office in Trenton? Is the cover-up of your crimes really working New Jersey?

I have serious reservations about the effectiveness of the "stone-walling" strategy pursued by the OAE in my matters. ("Judge John F. Russo, Cancer, and Corruption in the Garden State.")

The non-response to the evidence and statements that I have forwarded to U.S. officials and that are now a primary topic of discussion internationally among lawyers is an eloquent admission of the existence of a cover-up emanating from New Jersey of crimes committed against me -- a cover-up that (I hope) has now failed. ("N.J.'s Mafia Lawyers, Judges, Politicians and More Filth" and "N.J.'s 'Sad Spectacle' and 'Pathetic Farce.'")

The best proof of the accuracy of these observations is the pressure many lawyers will feel (or have imposed on them) to deny all of this in the interest of a false good cheer that is encouraged by professional organizations: "Let's all pretend to be friends and to like one another."

The response to what I say will be further threats against me and censorship of these essays: "A Letter From the DRB, in New Jersey" and "Another Letter From the DRB, in New Jersey."

Any more threatening letters Anne Milgram? Maureen Manteneo? Lourdes Santiago a.k.a. "William B. Ziff, Esq."? How about a letter asking for the keys to my apartment? ("Anne Milgram Does It Again!")

As European aristocrats in the seventeenth century attended parties with their pet monkeys so professional organizations have "pet" lawyers -- usually co-opted minority group members -- available for disarming minority or radical critiques with talk of "things getting better." Jose Ginarte, Esq.? Things are getting better -- for some people, not for most. (I enjoy Mr. Ginarte's T.V. advertisements inviting viewers to sustain injuries in order to sue their neighbors. Did Mr. Ginarte and Edgar Navarete scam insurance companies to steal fees from their colleagues as well as money from their clients? Did they bribe the OAE to look the other way? Do Ginarte and Navarete owe me money?)

http://www.judiciary.state.nj.us/supreme/images/soto.jpg

Any more ethics charges against N.J. Supreme Court Justice Rivera-Soto? Mr. Rivera-Soto may have given someone his business card. "Justice" Jaynee La Vecchia may have stolen, allegedly, or "lost," or "failed to prevent the loss" of $300 MILLION in her so-called "supervision" of the HIP fiasco, which "seems" to have involved a conflict of interest for her. Genovese? Gambino? Luchese? Are you really "connected," Jaynee? Ms. Manteneo?

No ethics or criminal charges have been brought against Jaynee LaVecchia. Maureen Manteneo?("Jaynee LaVecchia and Conduct Unbecoming to the Judiciary in New Jersey" and "Maurice J. Gallipoli and Conduct Unbecoming to the Judiciary in New Jersey" then "New Jersey Lawyers' Ethics Farce.")

Who cares about the millions of sick people ruined because they could not pay their medical bills after HIP folded? Not Jaynee. Mr. Obama, does this issue trouble you? Mr. Holder? Mr. Sessions? Is William Barr this week's U.S. Attorney General and, if so, will he do anything about this very public situation concerning my life that now humiliates the U.S. legal system and the nation's Supreme Court? ("What is it like to be tortured?")

To my knowledge these so-called N.J. "judges" and "justices" as well as many others like them (and some who are much worse) continue to sit on the state's judicial bench. Lourdes Santiago? Estela De La Cruz? Maureen Manteneo? The list seems to be endless. ("New Jersey's Political and Supreme Court Whores" and "New Jersey's Judges Disgrace America.")

Mr. Holder, why not look into this little episode of public theft and cover-ups? Too busy? If the mafia crooks in New Jersey were Republicans would you then investigate the state's corruption Mr. Holder? Mr. Sessions will be happy to know that New Jersey's crooked judges are mostly Democrats? Mr. Barr? How about a "Mueller Report" on New Jersey's judicial "collusion" with organized crime?

Mr. Christie, when did you become aware of my situation? Did you, Mr. Christie, stand idly by and observe the commission of crimes by state officials against a victim used as "bait" in a law-enforcement trap? Has Kim Guadagno visited my sites? If so, when did Ms. Guadagno first visit my sites? Did Ms. Guadagno remain apathetic to the criminal violation of my civil rights taking place, publicly, before a global Internet audience? Is this "apathy" ethical?  ("How censorship works in America" and "Kim Guadagno Subpoenaed On Hoboken Issues.")

Ms. LaVecchia is well aware of the provisions of New Jersey law calling for judges who disgrace their offices and tribunals to resign. The catastrophe and obvious "irregularities" surrounding the HIP "deal" are sufficiently scandalous that anyone with a modicum of decency or concern for public office in the Garden State should resign IMMEDIATELY rather than further disgracing the law, herself, her brethren, or the unhappy residents of the putrid cranberry fields and charming cancer-filled suburbs near Trenton. No resignation Ms. LaVecchia? Bob Menendez? Stuart Rabner?

Only Judge Tolentino was more stupid than Jaynee LaVecchia in my experience. Is Lourdes Santiago still a Superior Court Judge? Did Luisa Gutierrez pretend to be a Superior Court judge? Gilberto Garcia and Mary Anne Kriko may have done worse and stolen more. ("No More Cover-Ups and Lies, Chief Justice Rabner!" and "Stuart Rabner and Conduct Unbecoming to the Judiciary in New Jersey.")

Mr. Rabner's incompetence, at best, in the Prisco matter should have prevented him from becoming a judge let alone the Chief Justice of the most corrupt state in the union. Neil M. Cohen, Esq. should not have been provided with a computer and child porn by N.J. taxpayers to keep Mr. Cohen "amused" between sessions of the Union County Bar Association's Ethics Committee or the state Legislature. These people claim to be ethically and intellectually "superior" to me and most of their fellow citizens. I am unpersuaded by this contention. ("New Jersey is America's Legal Toilet" and "New Jersey's Political and Supreme Court Whores.")

New Jersey's legal establishment is the scum at the bottom of America's legal system. Somewhere below the level of inmates in the state's prisons you will find many of its lawyers and judges.

Loretta Weinberg, Esq. is a case in point being bribed with the services of female sex-workers, allegedly, to obtain her favors by the same persons "taking care of" Debbie Poritz, also allegedly. I wonder what contacts Ms. Weinberg "enjoyed" with Marilyn Straus while Ms. Straus was under hypnosis? ("New Jersey's Failed Judiciary.")

Where was the OAE when Mr. Cohen was accumulating child porn at your expense? Worried about me after my departure from the state? Is state action to violate a victim's civil rights not a federal crime John McGill? "Dr." Tuchin, how does a Jew become Mengele? Were you ever and/or are you now a physician or (specifically) a "forensic psychiatrist" at the C.I.A.? Who was paying you Terry/"David"? And for what services were you paid? Did you torture and/or "interrogate" Assata Shakur Terry/"David"? How about the "ice man" Terry/"David"? Did you torture (or "question") Mumia Abu-Jamal, secretly, under hypnosis or drugging, Terry Tuchin/"David"? How many other victims do you have Terry/"David" who will never know that you tortured them and betrayed their trust to the "authorities" and others for money? Do people not have a right to know what has been done to them against their will and by whom "things" were done? ("New Jersey's 'Ethical' Legal System.")

"Appearance of impropriety" Ms. LaVecchia? Where are the reports SECRETLY filed by Terry/"David" with the OAE and New Jersey's Supreme Court? Lost? Destroyed? Ethics? I ask you, N.J. judges, how do you remain passive observers to the psychological and physical torture or human rights violations of human beings? "Diana Lisa Riccioli" ("Jill Ketchum" or "Farai Chideya"?) what (or who) were you "providing" for Ms. Poritz? "Ladies of the night" for Debbie? What do you tell yourself in N.J. that makes it morally acceptable for you to be part of such horror? Censorship? Are you asking that we pretend that nothing happened OAE? How do you live with yourselves? How can you wear judicial robes in New Jersey and be a part of this horror which I am living and describing before the eyes of the world? Have you no shame, Mr. Rabner?

I define "hypocrisy" as any utterance of the word "ethics" by N.J.'s lowlifes and frauds who presume to judge me as they struggle to cover-up their crimes while wearing judicial robes.

Were you "paid" or rewarded by the OAE or anyone else in any way for your services against me Maria Martinez a.k.a. Barcelo of the Leonia/Verona School District? ("What is it like to be tortured?" and "What is it like to be plagiarized?" then "'Brideshead Revisited': A Movie Review.")

New Jersey's legal reality is an overstuffed toilet that has become symbolic of all the worst faults of the U.S. legal system because it continues to be ignored, apparently, by federal officials who are duty-bound to deal with this crisis but are frightened (or incapable) of doing what needs to be done even as U.S. media sources are prevented from telling the truth about all of this which has been public for at least fifteen years. The "stench of corruption, as it were, is becoming unbearable even as it contaminates the federal District Court for the Southern District of New York. ("Menendez Reelection Celebration.")

Some "honest and frank discussion" is desperately needed within the U.S. legal profession, also between lawyers and society. I doubt that such discussions will take place any time soon. Meanwhile, the system will continue to destroy and burn out good people, perhaps the best, as others -- probably those "pets" who agree to say what they are asked to say -- rise to positions of influence and/or judgeships in exchange for one measly and worm-eaten little lawyer's soul. "Lourdes-the-Lawyer" was a joke to most of her colleagues but is now a "judge' -- allegedly -- doing favors for the right people. (Again: "How Censorship Works in America" and "Censorship and Cruelty in New Jersey" then "Justice For Mumia Abu-Jamal" and "Anthony Suarez Goes on Trial.")

Gore Vidal described lawyers filling political and other positions of power in America as "energetic mediocrities." With many exceptions that Vidal would probably recognize I concur in the general point. Something in legal training and in the culture of the American legal profession is doing serious damage to the emotional capacities and intellects of persons who rise to prominence in law and government. Intelligent people make themselves stupid by giving up sensitivity to "succeed." I ask them to consider this question: What do you mean by "success"? ("'Michael Clayton': A Movie Review" and "'The Verdict': A Movie Review.")

One practical proposal is a regular opportunity for segments of the profession and public that do not usually come into contact to meet over symposiums or conversations focusing on (but not limited to) classic texts in law, politics, social sciences and/or the humanities providing an entry into debates of difficult issues both within the legal profession and in relations between law and society.

The torture issue is one such possible topic for public discussion. Separation of loved-ones is a kind of torture. ("Marilyn Straus Was Right!")

I am sure that torture takes place in the legal system and is covered up by agencies of the government and judges who wish to avoid seeing what is staring them in the face. The world sees it. Our legal contradictions and hypocrisies as well as lies are on display at this site for all of humanity to see. ("Time to End the Embargo Against Cuba" and "Psychological Torture in the American Legal System" then "Is truth dead?")

This is to make the legal system and the most important documents that are foundational to American democracy a cruel lie.

We must not allow such a thing to happen.

Even New Jersey must begin to respect the U.S. Constitution.

Dealing with torture and censorship is among the most important concerns for members of the judiciary right now, even more important than whether they manage to get a raise in the next legislative session.

School teachers in New Jersey (to take a random example) make about one third of what judges in that state are paid, but are often better educated and perform an equally valuable service. However, it is unlikely that teachers will get a needed raise any time soon. (Again: "New Jersey's Feces-Covered Supreme Court.")

The legal profession's response to Abu Ghraib has not been sufficiently intense or serious. Much more discussion and public activity is required concerning such issues from members of the bar. Thank goodness for the federal judiciary which is as much "above" politics as it can be. "Allegedly."

Law is so important to all of us that we must find a way to help the system improve itself. Secrecy and cover-ups of failures are not the answer. There is no alternative to a strong legal system in our society. Alas, this duty to challenge power and question our laws is an obligation that comes with citizenship and not one for which we may ask or expect a reward. It is how we earn the right to complain about the legal system's many failures. ("Why U.S. Courts Must Not Condone Torture" and "I am Sean Bell.")

In the Times, Stephen Holden reviews a documentary dealing with reversals of convictions on the basis of DNA evidence showing that innocent persons are routinely convicted in our courts, especially in places like New Jersey. The New York Times, October 21, 2005, p. E20. (See "How to Execute the Innocent in New Jersey" and "Driving While Black [DWB] in New Jersey.")

As for racism, "... in 1990, one in four black men [between ages 20-30] were incarcerated, or on probation or parole. [A few years] later, a second study established that this percentage had soared to almost one in three (32.2 percent). Moreover, more than one in ten Latino men in this age range [20-30] were in jail or prison ... on probation or parole." (Davis, p. 19.) ("Albert Florence and New Jersey's Racism.)

Today the numbers are even more discouraging and signs of hope are much more scarce.

In 2019 and beyond it is likely that one out of every two African-American young men will have an encounter with the criminal justice system.

Americans will spend close to $100 BILLION on prisons this year. As I write this I am 50+ years-old. I have already exceeded my life expectancy as a product of urban America.

Many young African-American men will not see their 40th birthdays, some of them living in the same neighborhoods where I lived as a child. It is close to a miracle that I have not ended up in a jail cell, mental institution, or dead, despite the best efforts of many torturers in the Garden State to bring about exactly such results for me and others.

My efforts to escape such a fate have been frustrated by legal professionals and/or "psychobabblers," whatever they may call themselves, inflicting horrible tortures on me and others. They are "disappointed" that the damage has not (yet) been lethal. Is this New Jersey's "ethics" Mr. Rabner?

I am sure that many others -- mostly women -- will be destroyed by such tactics to the delight of their proponents who see themselves as very "ethical." ("Chris Christie and Joey Torres in New Trouble.")

How many of you had sex with Marilyn Straus while she was unconscious or under hypnosis? Estela De La Cruz? Diana Lisa Riccioli? Lourdes Santiago? Maureen Manteneo? Mary Anne Kriko? Loretta Weinberg? Lilian Munoz? "Others"? Male and female? How often do you have sex with your victims "Diana"? "Farai Chideya"? Do you have to "take care of" N.J. judges and politicians for them to let you "slide" on your many sins? ("Marilyn Straus Was Right!" and "Diana's Friend Goes to Prison" then, again, "Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture.")

If you believe that a minority defendant walks into an American courtroom with the same presumption of innocence as a white defendant then you are not living in the real world. This reality is rarely mentioned in law schools.

America's Supreme Court justices seem to live in Disneyworld with regard to such matters:

"The law in its majestic equality," Anatole France says, "forbids both the rich and poor from sleeping under bridges at night."

No law is going to solve this problem of inequality. What may do so is a change in people's hearts brought about by brave members of the judiciary exercising discretion in the interests of an expansive reading of the due process and equal protection clauses of the U.S. Constitution -- a reading which is reflective of a genuine comprehension of our time in legal thought. ("Manifesto for the Unfinished American Revolution.")

The fate of President Barack Obama might easily have been the destiny of Mumia Abu-Jamal. And vice versa. All of us are losers when society throws away human lives. Every person possesses a capacity for redemption. Genius is a rare miracle that we discard at our peril.

Mumia Abu-Jamal's "crime" is political and literary genius combined with African-American revolutionary consciousness. This combination is still enough to get you killed (or incarcerated) in America. ("Justice For Mumia Abu-Jamal.")

In the twentieth century a legal revolution took place that made our society much more just.

Perhaps another legal revolution is on the way in the twenty-first century. We can always hope. You have a better chance of going to prison in many urban neighborhoods, if you are a minority group member, than of going to college or attending any university.

After my experiences in life I am not certain of which is the worse fate.

I favor reparations exclusively for African-Americans where one component involves scholarship money for young persons in the African-American community demonstrating the ability to pursue higher studies.

It is cheaper to educate than to incarcerate America's young people.

Anyone growing up in urban America knows someone -- a childhood friend or acquaintance -- who is dead or in jail and will always regard the police (at best) with skepticism. If such a person becomes a lawyer, even with the best intentions in the world, he or she may eventually see law only as a means of making money which has very little to do with justice.

Given the amounts of waste, theft, fraud and tax evasion in America sending Wesley Snipes to prison for late filings of tax returns is absurd. Jamie Dimon?

Donald J. Trump does not pay taxes because he is "smart" as he explained in the presidential debate against Hillary Clinton. Mr. Trump will not go to prison for tax evasion whatever happens concerning the collusion issue.

If YOU do not pay your taxes, however, the chances are excellent that you certainly will got to prison for a very long time.

The most common statement heard from lawyers "being real" is some variation of "it's the same old bullshit." Those who hope to save the world, sadly, do not last long in so-called "trench" legal warfare. It is also true that idealists and social-meliorists are more desperately needed now than ever before in the legal profession.

Some of us who care about the legal system are in the paradoxical situation of knowing good police officers and prosecutors doing necessary work. True believers and ideologues will be surprised to discover that we live in a "complicated world." ("Freedom for Mumia Abu-Jamal" and "Mumia Abu-Jamal and the Unconstitutionality of the Death Penalty.")

When a new Supreme Court nominee faces U.S. Senate confirmation hearings I will worry not about that person's religious beliefs or the lack of such beliefs but about the nominee's thoughts concerning pressing social issues and how they affect the Constitutional rights of victims of racism and economic injustice, or victims of crime, who are (mostly) minority persons. I will be concerned about the nominee's views of due process and equal protection, about whether that person will recognize that intelligence and knowledge of the workings of the "real world" (i.e., wisdom and understanding since "world" is now a plural concept) are relevant even to Supreme Court decisions that concern (as they should) the clarification and application of broad principles of political morality to concrete dilemmas of sociability. A nominee's practical and political experience may be virtues when it comes to such considerations of political morality.

We always need more good judges and justices who will struggle FEARLESSLY to make America into the ideal envisioned by the Framers of the U.S. Constitution.