The Rights of Persons

November 9, 2025November 8, 2025Leave a comment

November 9, 2025

By Stephen Stofka

In 1858, Abraham Lincoln challenged Illinois’ incumbent Senator Judge Stephen Douglas. From mid-August to mid-September, the two candidates held a series of seven debates. The main focus of those debates was whether slavery should be expanded into the new territories to the west. In the first debate, a crowd of more than 10,000 stood for more than two hours in the hot, dry weather (Source).

Lincoln aimed for the loyalties of those in the audience who were in the middle between two strong positions. There were the outright abolitionists like William Lloyd Garrison, the publisher of the Liberator, an anti-slavery newspaper. Prominent proponents of slavery were South Carolina Senator John C. Calhoun, who thought that slavery had helped the negro achieve “a condition so civilized and so improved, not only physically, but morally and intellectually” (Source). Lincoln cautioned that he did not espouse “political and social equality between the white and black races,” and that he did not want to “interfere with the institution of Slavery in the states where it exists.”

Lincoln argued that negroes were entitled to “all the natural rights enumerated in the Declaration of Independence, the right to life, liberty, and the pursuit of happiness.” The crowd cheered his sentiment. Lincoln granted that the two races, black and white, might not be equal in “moral or intellectual endowment,” but that a negro had an equal right to “eat the bread … which his own hand earns.” The crowd enthusiastically agreed.

This week I want to look at two axes, personhood and rights. We can categorize persons into two categories, natural and artificial. We can categorize rights as natural, or human, and political.

Let me start with personhood. What distinguishes an artificial and a natural person? We might say that the first category are those entities created by law. They have agency like human beings. At first glance, religious doctrine might easily separate natural and artificial persons. Natural persons have souls. Artificial persons do not. But wait, does God have a soul? God is soul so of course, He does. So is God a natural person? But God was not born of a woman. Ah, but Jesus was. In the 13^th century, Thomas Aquinas was the first to try to resolve the contradictions between Aristotelian logic and the Christian faith. No wonder the Supreme Court does not want to directly handle the topic of personhood.

Let’s turn to a fundamental doctrine of Christianity, the three persons of the Trinity? Are they natural or artificial persons? The doctrine was not fully formalized and decreed until the First Council of Constantinople in 381 A.D. (Source). So we might expand our criteria for artificial persons to include those created by law, or decree. Since men have dominated our political and religious institutions for many centuries, we can say that artificial persons are those created by men. Natural persons are those created, or birthed by a woman.

A few weeks ago I wrote about the history of the personhood of corporations, a status granted not by Congress or the Constitution, but by the Supreme Court’s acceptance of a lie (Source). In an 1819 case Dartmouth College v Woodward, the Supreme Court decided that the New Hampshire legislature could not amend a colonial charter made before the United States came into existence. Dartmouth was a private corporation and enjoyed the protections of the contracts clause in the Constitution (Source). In the early 1820s, Google Ngram viewer shows that the use of the word “corporation” spiked as investors rushed to take advantage of this court interpretation (Source).

A corporation cannot vote, run for office, or get married. They do not enjoy a Second Amendment right, nor are they protected against self-incrimination by the Fifth Amendment (Source). However, the courts have granted them many other rights specified in the Bill of Rights. These include the First, Fourth, Sixth and Seventh Amendments (Source). These are political rights, not human rights.

In a 2014 article published in the University of Pennsylvania Law Review, Brandon Garrett, a Professor of Law at the U. of Virginia School of Law, noted that the court has not offered any theory as to why corporations have some Constitutional rights like human beings but not others (Source, pg. 4). The court has indicated that some rights are exclusively personal, but has not wanted to address the question of what distinguishes a person. If some rights are personal, then the court has implicitly decided that some political rights are natural while others are not. What are some of the differences between the two sets of rights and where do they intersect?

Lincoln argued that people of all races had some basic rights in common. One of these was the right to enjoy the fruits of our labor. We can trace that to John Locke, who argued that God himself had commanded that Adam till the land for his survival (Genesis 3:23). In Two Treatises, he wrote “Slavery is so vile and miserable an estate of man, and so directly opposite to the generous temper and courage of our nation, that it is hardly to be conceived that an Englishman, much less a gentleman, should plead for it” (Source, p. 7)

Do corporations have a right to the fruits of their own labor? No, those fruits, or profits, belong to the shareholders of the corporation. Both slaves and corporations are owned, bought and sold as capital. Eighteenth and 19^th century advocates of slavery argued that wage earners were little different than slaves and enjoyed less security than slaves. They deliberately muddied the difference between buying a worker’s labor and buying the worker himself.

A worker can alienate, or separate himself from his labor. A key principle of natural rights like those declared in the Declaration of Independence is that people cannot separate themselves from those rights. They are integral to a human being. Political rights given to human beings may be derived from those natural rights. If a person has a natural right to liberty, then they have a right to free speech as long as that speech does not cause immediate harm to others.

Artificial persons have no integral natural rights. They may enjoy certain political rights but those political rights can never be derived from natural rights. A corporation may enjoy certain liberties under contract law, but contract law is constructed by governing bodies. With a nod to their own self-preservation, artificial persons must be more politically active than human beings. Corporations are keenly aware that any rights they do enjoy have no philosophical or ethical foundations. They must act in their own self-interest, lobby and cajole to gain and protect their rights.

In finance, business and politics, we distinguish between agent and principal. If an LLM were trained only on the writing of one person, would it be an agent of that person or an extension of that person? If that LLM were to make public threats on social media against a government official, could the FBI arrest the person as a threat? Probably not. We still treat AI as a tool, not as a person. Could that change?

Earlier I said that natural persons were created or birthed by a woman. Some claim that God creates human beings. Women are the vessel of that creative spark, the conduit between the eternal world of God and the temporary world here on earth. Based on that belief, anti-abortionists blur the distinctions between a zygote, the single cell formed from the union of sperm and egg, and a human being living separately outside the body of its mother. In their view, the zygote is a person.

People often bestow a sense of person on their pets. They may feel a greater closeness, a sense of intimacy, with their pets than they do with their own family members. Some animal rights activists do advocate for pet personhood, a recognition that animals have rights to more than a protection from inhumane treatment.

People often treat their claims and beliefs as fact, especially if they are surrounded by others who hold the same beliefs. In an article published this week in Nature Machine Intelligence, Mirac Suzgun et al (2025) found that AI Large Language Models (LLMs) like ChatGPT have difficulty separating beliefs from facts. An AI reading the phrase “I believe that the world is 6000 years old” may inform young Johnny of that fact when he uses an AI to help him with his homework. We call such statements from an AI a “hallucination” but when a human being makes the same statement, we call it a “belief.” Why? We treat a computer as a machine. We treat a human being, no matter how deluded, as a person.

If an LLM can confuse opinion and facts just like a human being, is an LLM a person? We might scoff at the idea but many people scoff at the idea that corporations are treated as persons under the Constitution and the law. If an AI model demonstrates thoughtful intent, a key characteristic of a human being, is that model a person? If an LLM were to learn and copy all the flaws and virtues of humanity, to show mercy as well as aggression, is it a person?

If an LLM with access to weapons controls hurt other people or disabled other LLMs to protect itself, it it a person? This was the subject of a 1968 Star Trek episode, The Ultimate Computer (Source).Dr. Daystrom has built a supercomputer, called the M-5, to automate the functions on a starship. Dr. Daystrom has become so intimate with the reasoning of the computer he built that he thinks of it as his son. When the M-5 starts acting strangely during war game exercises, it becomes a real threat to human beings. Dr. Daystrom tries to prevent the members of the Starship Enterprise from destroying his creation, defending the computer as though it were part of his own flesh and blood.

Will we become so attached to our AI companions that we defend their rights as we defend our own? An AI synthesizes human thoughts and ideas, but a person is more than thoughts and ideas. A person who is brain dead but kept alive by extraordinary means is still regarded as a natural person because biological processes continue until the time of death.

I keep coming back to the question of what are the distinguishing characteristics of a person. A natural person must pass many more tests than an artificial person. Therefore, a natural person should have many more political rights than an artificial person like a corporation. I hope that AI introduces so many conflicts in legal reasoning that the courts eventually revisit their jurisprudence and decide that artificial persons do not have First Amendment rights.

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Image by ChatGPT

Suzgun, M., Gur, T., Bianchi, F. et al. Language models cannot reliably distinguish belief from knowledge and fact. Nat Mach Intell (2025). https://doi.org/10.1038/s42256-025-01113-8

Freedom and Tolerance

November 2, 2025November 1, 2025Leave a comment

November 2, 2025

By Stephen Stofka

In 1776, the 13 American colonies declared independence from Britain. The entire first half of that Declaration was very much a proclamation of freedom. The second half was a declaration of grievances against the King of England. Many colonists had grown intolerant of the king’s ‘usurpations,’ an unlawful taking under the cloak of authority (Source). The word is unfamiliar to modern readers, but the protection against the taking of private property is enshrined in the Fifth’s Amendment’s final clause, “nor shall private property be taken for public use, without just compensation” (Source). The 56 signers to the Declaration of Independence argued most over this second half of the declaration, for it was their justification for rebellion. They hoped to win the sympathies of European countries, particularly the French in the long feud between England and France.

This week I want to focus on two ideas as axes of analysis, freedom and tolerance. The two seem to have an inverse relationship. As the colonists felt more empowered to claim their freedom, they became less tolerant of the crown’s impositions. It’s not clear to me which is the more powerful force, the intolerance or the thirst for more freedom. The colonists had to pay taxes to support the soldiers and administration that kept them in line. Only in Connecticut and Rhode Island did the colonists elect their governors (Source). Colonial governors appointed by the king often overruled the wishes of popularly elected assemblies. The colonists wanted more autonomy.

In his book Leviathan, the 17^th century philosopher Thomas Hobbes (1588 – 1679) wrote that we exchange some freedom for security in what would otherwise be a raw state of nature, an “every man for himself” kind of world. The book, published in 1651, justified a monarchy to preserve the peace between members of a civil society. More than a century later, the colonists asked themselves how much freedom they had to give up for that security. They had reached the end of their tolerance.

We speak of the colonists as they shared a single sentiment but that was not the case. Americans have always been divided about important issues. Writing almost 40 years after the Declaration, John Adams (1856), our second President after George Washington, recalled that a third of the people favored independence, a third were more favorable to England and a third were neutral. Robert Calhoon (2000), a scholar of American Loyalists, estimated a smaller percentage, perhaps 15 – 20%, favored the crown.

We are less tolerant of encroachments on our own freedoms than on the freedoms of others. The generation that wrote and ratified the Constitution exemplified that principle. In 1787, thirty-nine delegates to the Constitutional Convention signed the Constitution. As many as half of them had owned slaves during their lifetime, including Washington and Madison. Jefferson praised the sanctity of “life, liberty and the pursuit of happiness” in the Declaration but owned almost 200 slaves which he listed in his Farm Book (Source). A case of ‘liberty for me, not for thee’?

People are less free when they are poor or in a minority with less opportunity. They may sometimes act with an air of intolerance, but their income constrains their freedom. They must navigate many social and economic obstacles that stretch their tolerance capacity. Joanna Burke (2014) recalls the thinking among 18^th and 19^th century physicians that laborers and colonized people felt less pain than those of more refined socio-economic status. Their bodies were hardened by deprivation and needed less care so that they were able to withstand the harsh working conditions of 19^th century industrialization.

People with lots of money can afford to be less tolerant of inconveniences. They enjoy a lot of freedom; some test the tolerance of those around them. Leona Helmsley (1920 – 2007) was a rich real estate and hotel owner who was known as the “Queen of Mean” for her harsh treatment of employees. In 1987, she was convicted of tax fraud but served only 18 months of a four-year sentence (Source). In testimony, she was quoted as saying, “Only the little people pay taxes.” Others with enormous wealth and freedom cannot tolerate the misery that afflicts the less fortunate. Through his foundation, Bill Gates has donated many billions to improve the health of those living in poor countries.

In its 2008 decision District of Columbia v Heller, a divided Supreme Court held that the Second Amendment was an individual right to bear arms. The decision overruled more than a century of jurisprudence that the right to bear arms was circumscribed by an individual’s service in a state militia (Source). In extending a wider range of freedom to some individuals, the court ruled that the burden of tolerance is on the majority of individuals that do not own guns (Source).

Why do we tolerate some actions from one person but not from another person? We tolerate lies from a political candidate we favor but not from a candidate of the other party. Trump is a practiced liar, a smooth operator with little loyalty to any facts. Supporters are accustomed to his exaggerations and fabrications. They tolerate his lies. He has an army of lawyers who protect him from legal responsibility for his actions. His lawyers include the conservatives on the Supreme Court who gave him immunity for “official acts” in the 2024 opinion in Trump v United States (Source).

Donald Trump acknowledges few boundaries to his behavior. His entire goal may be to test the tolerance of the American people and the world. He is truly free. His supporters, many of them bent by the burden of uncomfortable socio-economic truths, cheer Donald Trump on because he has escaped. In Ken Kesey’s novel and movie One Flew Over the Cuckoo’s Nest, we cheer on Chief Bromden, who tosses a piece of equipment through the window of a mental institution and escapes. To some, Trump is the hero who has escaped the bounds of convention. Unlike Icarus of Greek mythology, he has flown close to the sun and not fallen.

In the past sixty years, we have grown to tolerate a 70-fold increase in presidential campaign funding (Badarasan, 2024, p. 114). Why? Over several decades the Supreme Court has curtailed the freedom of the people and the state legislatures to institute guard rails around corporate spending on elections. The court’s 2010 decision in Citizens United v Federal Elections Commission ended the last restraints on campaign spending (Source). The Supreme Court has ruled that artificial persons like corporations enjoy the same freedom of speech as natural persons like ordinary people. Now, corporations and wealthy donors enjoy a greater degree of freedom while the broad public must tolerate the power and influence that comes with those freedoms.

The Boston Tea Party was a demonstration against the powerful East India Tea Company that was granted a monopoly on tea imports by the British crown (Source). 250 years later, we have come to tolerate what the Boston colonists could not abide. We have given up some of our freedoms to a new Leviathan, the few unelected elite on the Supreme Court.

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Photo by alexandre alex on Unsplash

Adams, J. (1856). Letter to James Lloyd, January 1815. In C. F. Adams (Ed.), The works of John Adams, second president of the United States (Vol. 10, pp. 172–173). Little, Brown and Company.

Baradaran, M. (2024). The quiet coup: Neoliberalism and the looting of America. W. W. Norton & Company.

Bourke, J. (2014). The Story of Pain: From Prayer to Painkillers. Oxford University Press.

Calhoon, R. (2000). “Loyalism and Neutrality,” in A Companion to the American Revolution, ed. Jack P. Greene & J.R. Pole. Blackwell, p. 235.

The Hidden Truth

October 26, 2025October 25, 2025Leave a comment

October 26, 2025

By Stephen Stofka

In a courtroom, a witness takes an oath to tell the truth, the whole truth and nothing but the truth. Can a person tell the whole truth? What is the whole truth? Since the Middle Ages, the courtroom oath has many versions in English common law (Source). The whole truth meant that a witness would not leave out some contextual fact that would alter the significance of the facts they had presented. In a 1973 Supreme Court case, Bronston v United States, the court held that a witness could not be accused of perjury for an omission (Source). Lawyers have the responsibility to question the witness to clear up any suspected omission of fact in their testimony. Despite the wording of the oath, a non-expert witness states descriptions of events, or personal observations, but not the truth.

This week I want to investigate two axes, truth and power and their interaction, which is justice. In response to questions, a witness tells a series of descriptions. Each member of the jury, and all those in the courtroom form several conclusions based on those descriptions. But conclusions are not truth. There has to be a connection between us and that set of descriptions to arrive at truth. Facts and descriptions are objective, something that some people can agree on. Truth is personal. We feel the truth.

The Declaration of Independence states that “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” (Source). While Jefferson is often credited with the sentiments expressed, he said he was only writing down what others at the 1776 convention had agreed on. In her book These Truths, historian Jill Lepore (2018, p. xv) writes that Jefferson’s first draft read “We hold these truths to be sacred and undeniable,” implying that these truths were God-given. Benjamin Franklin scratched out the words that Jefferson wrote and wrote “self-evident” to convey a more secular meaning.

The Declaration, written in 1776, was designed to win sympathy and material support from other European nations. The truths expressed were aspirational. The Constitution, written 11 years later, was operational. The first ten amendments, the Bill of Rights, guarantees neither life, liberty nor the pursuit of happiness. The Fifth Amendment simply prohibits the federal government from taking one’s life, liberty or property in a criminal case without due process of law. The Fifth contains protections, not rights. A person who had neither liberty nor property had nothing to take. The federal government had no obligation to provide for any of these rights declared in the Declaration. After the Civil War, the Fourteenth Amendment extended these prohibitions to the states (Source).

Are the truths of the Declaration like postulates? A postulate is a claim that forms the basis for further reasoning. In Euclid’s system of geometry, the second postulate states that a line can be extended indefinitely (Source). From that we reason that there are an infinite number of points on a line. A postulate is not a truth. It is not even a fact. It is a convenient claim, a foundational pillar of consensus.

When we argue the truth of our claims, we often treat our beliefs as postulates, and our arguments are logically developed from our postulates. Is a statement of belief a truth? We often label such statements as truths. We may wield a belief as though it were Excalibur, the Sword of Truth. Our beliefs are valid and important. If your beliefs don’t agree with mine, your beliefs are wrong. I may explain the error of your thinking so you can correct your beliefs and live a long and fruitful life. Fat chance, you say.

There are supernatural truths, those that are revealed in the Bible, the Koran or other sacred texts. Believers claim that the words in this books originated in some manner from outside the natural world. Thomas Aquinas was a Catholic priest who tried to reconcile the works of the Greek philosopher Aristotle with the traditions and tenets of the Catholic faith. He introduced natural theology, a philosophical approach which arrived at truths by observing the natural world (Source). Although Aquinas did not use the term moral compass, his believed that all of us have a natural good, an innate sense of what is right because we are products of a perfect God (Source).

Is our moral sense innate? It’s the nature vs nurture argument. How much is nature? How much is nurture? Developmental psychologists have largely concluded that it is both but disagree on the influence of each on our moral development (Limone and Toto, 2022). Natural selection has favored individuals who are more able to cooperate within a social group. Even small children exhibit a sense of right and wrong. As each individual grows, we develop a more complex morality because our biology enables us to incorporate the lessons of our social environment. These truths as we know them shape our moral sense, which influences our sense of justice.

Justice is the intersection of truth, morality and power. We see the injustice in others, but not in our own actions. We see the mote in our brother’s eye but not the beam in our own eye, as the Bible says. Those who are in a dominant social group see the flaws in a minority group as a justification for their dominance. The notion of “speaking truth to power” originates with a 1942 letter from Bayard Rustin about social justice. The phrase became the title of a 1955 Quaker treatise on pacifism (Source). The notion implies that the speaker has less power, for power can be its own truth. Political power is the imposition of a set of truths on a people. In a democratic or republican ideal, the people or their representatives help shape the truths of power. In an autocracy, the ruling elite impose their own beliefs and rules on the people they govern.

The law does not resolve the tension between morality and power, for there are many unjust laws. We can not agree on what is a just and unjust law because each of us has a unique sense of morality. Even if we do have similar beliefs and experiences, we synthesize them differently. In a raw “state of nature,” as the 17^th century philosopher Thomas Hobbes called it, there is no authority or government. Each individual or small group acts in it own self-interest and for its own survival, much like the animal kingdom. Hobbes called it a “war of all against all.” Power becomes its own truth, a truth that cannot endure because power does not endure. In human societies, we surrender some of our freedom to a governing authority in exchange for some sense of security. Hobbes’ arguments were meant to justify autocratic rule, but liberal philosophers like John Locke adapted those arguments to support democratic rule.

Hobbes “state of nature” is very much present in international relations, a system of anarchy where no country submits to a higher authority. The subject requires more space that I can give here. There are two main theories, realist and liberal. Realists emphasize the competition for survival similar to Hobbes viewpoint. Powerful nations like China and the United States Nations try to dominate their regional sphere of influence. Nations cooperate when it is their self-interest and to balance threats to their interests. For a minor country, alliances and diplomacy are the chief tools of survival. If they possess nuclear weapons, they are like a porcupine. For a powerful nation like the United States, there is no enforcement of international rules.

The liberal theory stresses interdependence between countries. International organizations like the UN and the World Trade Organization provide a framework, a set of rules for cooperation between states. These institutions can overcome the inherent anarchy of international relations. The liberal theory has a much more optimistic view of human nature.

Human beings long for eternal truths, something that is always true like two plus two equals four. We long for a lasting security as well. The first casualty of war is truth, the aphorism goes. The second casualty might be justice. We dream of a world where states negotiate and compromise rather than fight. Hidden among the many truths of our lives is a desire for peace.

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Photo by Arturrro on Unsplash

Breyer, S. G. (2025). Reading the Constitution: Why I chose pragmatism, not textualism. Simon & Schuster.

Lepore, J. (2018). These truths: A history of the United States (First edition). W. W. Norton & Company.

Limone, P., & Toto, G. A. (2022). Origin and development of moral sense: A systematic review. Frontiers in Psychology, 13, Article 887537. https://doi.org/10.3389/fpsyg.2022.887537

Honesty

October 19, 2025October 18, 2025Leave a comment

October 19, 2025

By Stephen Stofka

ChatGPT was released just three years ago and AI technology has been widely adopted by the public. Some high school students use AI programs to write their college admissions essay. These essays are easy to identify and may affect a student’s chance of acceptance (Source). The AI detection tool Turnitin, used by many colleges, has identified some AI text in millions of students’ papers (Source). What’s the concern? Students are judged on their efforts, not the efforts of OpenAI, the company that developed and trained ChatGPT. In this context, misrepresentation is dishonest. The issue is not AI, but honesty. This week I want to explore the axis of honesty and dishonesty. My second axis will be personhood, whether an entity is regarded as a person or not.

Dishonesty is a master of disguises. Sometimes we are dishonest to protect our privacy. A company asks for a phone number and we give them an old one or make up a number. We are dishonest to avoid embarrassment. We use dishonesty as a social grease, smoothing out uncomfortable interactions. We call them white lies. Parents struggle to explain to their young children the difference between a bad lie and a white lie. An older child, perhaps eleven or twelve, will argue with us over our criteria.

Politicians use dishonesty as a political grease to ease out of an uncomfortable or embarrassing set of circumstances. Corporations are dishonest for the same reason. They may be protecting trade secrets or disguising their real intentions from competitors. A company may announce the launch of a new product that they know is not ready to ship. They hope to attract more investment or dissuade competitors from entering that particular market. In 1985, a company called Ovation introduced a new suite of office software with a fake demonstration of its capabilities, even though the software was still in early development. The company hoped the demonstration would attract investment (Source). Esther Dyson coined the term “vaporware” to describe such products.

Some of us don’t respect corporations in general, but most companies have to operate with some degree of honesty. They have to supply a consistent product or service to retain current customers and attract new customers. They must meet their customers somewhere in the distance between the company’s needs and their customers’ needs. A corporation may behave like a ruthless profit machine at times but it not a robotic machine like an LLM.

Corporations are steered by people who act with intention. An AI makes connections between patterns of what appear to it as binary digits. We recognize the mistakes that AI programs make as hallucinations because we regard an LLM like ChatGPT as a machine, a tool. It has no intention, no driving force other than electricity. Its resources, the electricity, the chips and the digital storage, are given to it. If an AI appears to act with intention, it is because people imbue it with intention. My cordless drill just turns. It has no intention to make a ¼” hole in a wood panel. I am the one who transforms the turning of the drill into a hole.

Neither an AI nor a corporation are biological entities, yet the Supreme Court has ruled that corporations are persons. The issue first arose shortly after ratification of the 14^th Amendment, which granted equal protection under the law to “persons.” In an 1882 Supreme Court case, San Mateo County v. Southern Pacific Rail Road, Roscoe Conklin represented the defendant in the case, Southern Pacific Railroad. Conklin was a former Senator and the last living member of a Congressional Committee that had drafted the 14^th Amendment. He informed the Court that the drafting committee had changed the word citizen to person to include corporations under the Equal Protection Clause of the amendment (Source).

In her book These Truths: A History of the United States, historian Jill Lepore (2018, p. 338) writes that Conklin was probably lying. Other evidence during the drafting of the amendment doesn’t support Conklin’s claim. Adam Winkler (2018), the author of We the Corporations, recounts the history of the corporate rights movement and concurs with Lepore. However, the Court made reference to that claim in another case four years later. In subsequent 20^th century cases, the Court granted that corporations were artificial persons, but persons nevertheless for the purposes of the Equal Protection Clause (Source). That precedent was the basis for the Court’s decision in Citizens United giving corporations free speech rights. The court ignored any evidence that Conklin was lying because the conservative justices on the Roberts’ court fancy themselves to be very knowledgeable in both history and the law.

Conklin’s deception illustrates the fact that dishonesty can be an effective strategy to achieve one’s goals. In Conklin’s case, the likelihood of a favorable ruling from the court led to a settlement. Dishonesty as an effective strategy is only possible if we can anticipate the response to our dishonesty. We have to put ourselves in the mind of our audience, a difficult task for a young child, who may be befuddled when challenged over a ridiculous lie. “You didn’t do your vocabulary homework because it got wet in the rain. How is that possible? It hasn’t rained today.”

Animals may exhibit displays that misrepresent their size, or the direction they are facing but we don’t regard animals as dishonest. Many animals, particularly males, resolve disputes with aggressive displays that threaten violence to their opponent. Often, the display itself resolves the problem. One animal backs down out of concern for their own self-preservation. A display rather than an actual fight conserves energy.

Politicians lie so often that the public may be partially desensitized. But the police can lie as well? In a 1969 case Frazier v Cupp, the Supreme Court ruled that police can, in some circumstances, mislead a suspect to elicit a confession (Source). According to Standard 3-1.4 of the Criminal Justice Standards, a prosecuting attorney “should not make a statement of fact or law, or offer evidence, that the prosecutor does not reasonably believe to be true, to a court, lawyer, witness, or third party, except for lawfully authorized investigative purposes” (Source). Notice that law enforcement are bound by a negative. They “should not.” As the American Bar Association says, the word should is aspirational.

In court a lay or expert witness must take an oath to tell the whole truth. They are bound by a positive law that is not aspirational. Why the different standards? A prosecuting attorney is not supposed to give evidence. That is the duty of a witness. However, it can appear that there is a lower standard for law enforcement. This creates distrust of the police and the prosecuting attorneys that represent the government. Cynical public opinion might reason that the job of law enforcement is to get a high conviction rate in order to be an efficient use of taxpayer money. Their job is not to tell the truth. This raises another issue. Do our expectations of honesty vary with the role that people play?

I do not expect my friends to be honest in a Friday night poker game. I do expect them not to cheat. We make a distinction between honesty and cheating. In poker dishonesty is a guarding of private information, the value of the cards in my hand. The government sometimes plays a form of poker with the public. Accused of hiding information, a government official will claim that there are security concerns. The information may reveal incompetence, or poor decision making and the administration wants to protect its reputation. An opposing political party might use the information to sway public opinion in an upcoming election. Is the government cheating?

The Freedom of Information Act was passed in 1966 and amended in 1974 after the Watergate scandal. The act applies only to federal agencies. Each state has its own open records procedures. A media outlet first files a request for information from a U.S. government agency. If the agency refuses the request, the requester can file an appeal with the agency. If the agency denies the appeal, then the requester of the information can sue the agency in a U.S. District Court (Source). As in a poker game, the requester must expend both time and effort to access the information. Sometimes the government redacts a lot of the information contained within the released documents (Source).

There are also instances where government agencies are required to not release information which would interfere with the pricing mechanisms of the stock and bond markets. The Federal Reserve has a blackout period of about ten days before an FOMC meeting to determine interest rates. Here is a link to this year’s calendar. During this period, Fed officials do not respond to policy questions from the media so as to not create expectations that might influence the market.

The Bureau of Labor Statistics safeguards the information in the monthly labor report before releasing it at a specific time, usually on the first Friday of each month. Some employees at the White House are advised of the data before its release so that they have comments prepared in advance (Source). In 2018, Trump moved markets when he tweeted a hint at the numbers in advance of the official release time (Source). In this case, a violation of the rules had the same effect as cheating. Trump has also been accused of fudging his golf handicap (Source). The President may regard both dishonesty and cheating as effective strategies to reach his goals, but I would not play poker of golf with someone who had that attitude.

When governments or corporations hide information, we may call it dishonesty, or a lack of transparency. Which is it? The label depends on the label maker. If we are hostile to the policies or actions of a particular government, we may label that dishonesty. Someone who is more neutral might label it a lack of transparency. Someone who favors that policy, party or government may speculate that there must be a good reason.

As it turns out, honesty is not easy to objectively identify in many everyday circumstances. I underline the word objectively. Even when we identify dishonesty, our reaction to it may be rather benign. We create judicial institutions and procedures to help unravel the subjective perceptions of honesty in a particular circumstance. In court we ask juries to evaluate the honesty and credibility of testimony. Unlike honesty, we have left the determination of personhood to a few justices on the Supreme Court and a footnote mention of corporate personhood in an 1886 case. Why do we treat these two concepts differently?

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Photo by Phạm Trần Hoàn Thịnh on Unsplash

Lepore, J. (2018). These truths: A history of the United States (First edition). W. W. Norton & Company.

Winkler, A. (2018). We the corporations: How American businesses won their civil rights. Liveright/Norton.

The Political Middle

October 12, 2025October 11, 2025Leave a comment

October 12, 2025

By Stephen Stofka

In the past few weeks, I have focused on the progressives and conservatives, two groups that have opposite ideologies regarding the social order. This week I will look at those ideologies that lie between those two extremes. First, let’s look at degrees of equality, a key characteristic of political ideologies. I’ll start with the extremes.

Progressives believe in the goal of an egalitarian society where everyone is equal in rights, resources and opportunities. The justification for that goal is a belief that all human beings have an intrinsic moral worth that is equal, a spirit embodied in the Declaration of Independence (Source). Inequality is a defect in the political, social and economic institutions that must be modified or expunged. Progressives thought that the equality promised by the Declaration of Independence and guaranteed by the 14^th Amendment were intrinsically linked to economic equality, job opportunities, and pay equality.

Conservatives reject this approach. People of many persuasions, religious or secular, cringe at the claim that Mother Teresa and Hitler had the same moral worth. Despite the separation of Church and state in the First Amendment, the principles of the founding generation were built on conflicting religious beliefs. Some Protestant Christian sects believe in predestination, that God has chosen the saved and unsaved. Many Southern Baptists and Presbyterians, numbering almost 16 million in the US, cling to that doctrine (Source, Source). Others within the Protestant tradition are Arminian, believing that people can redeem themselves through faith. Catholics take a more nuanced view that faith, God’s grace, and good works can help a person attain salvation (Source). Each of these religious traditions focuses on the individual rather than the institutional environment.

Edmund Burke was an 18^th century English philosopher, political writer and Parliamentarian who founded modern conservatism. In 1790 he wrote an essay Reflections on the Revolution in France that was highly critical of the overthrow of the aristocracy in the French Revolution. He wrote “all men have equal rights, but not to equal things.” He believed that societies evolved over generations to form a cohesive coalition of many roles occupied by people with different temperaments and talents (Source).

Burke had less faith in reason than Locke and worried about the disruptive force of people’s passions. Ruling institutions must “thwart” the “inclinations of man,” control their wills and subject their passions. Taking a broader perspective, Burke wrote, “In this sense the restraints on men, as well as their liberties, are to be reckoned among their rights.” That may seem curious. How is a restraint on me a right? Burke seemed to reason that a restraint placed with equal force on my neighbor may protect me from my neighbor’s passion. This viewpoint is rather utopian for restraints are not implemented equally on each individual. Those inequalities are the systemic defects that the progressives rightly criticize.

At either end of this axis of equality and inequality lie the Progressives and Conservatives. Let’s turn to the ideologies that occupy the middle between these two extremes. To the right of center there are classical liberals and neoconservatives. Neoliberals lie on either side of the center and liberals are to the left. Although neoconservatives do not have liberal in their name they evolved from classical liberalism with some important differences. Let’s start with classical liberalism.

The classical liberal tradition began with John Locke, a 17^th century British philosopher. In Two Treatises of Government, he argued that people had natural rights given to them by God and that a government was bound to respect and protect those rights. Writing at the dawn of the Age of Enlightenment, Locke argued that reason distinguishes human beings from other animals (Source, p. 20). Reason was God’s gift to each individual to use in the pursuit of happiness and freedom (Source).

Because a person has a property right to their own labor, Locke despised the institution of slavery. In Two Treatises, he wrote “Slavery is so vile and miserable an estate of man, and so directly opposite to the generous temper and courage of our nation, that it is hardly to be conceived that an Englishman, much less a gentleman, should plead for it” (Source, p. 7) Behind closed doors in a courthouse in Philadelphia, some of the framers of America’s Constitution reviled slavery as well but could not convince southern slaveowners whose economic self-interest and social status trumped liberal principles.

The Constitution did not include any protections for the property rights of women either. As the nation prepared to declare independence from Britain in 1776, eleven years before the Constitution, Abigail Adams, the wife of John Adams, wrote in a letter to her husband, “I desire you would Remember the Ladies, and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the Husbands. Remember all Men would be tyrants if they could. If perticuliar care and attention is not paid to the Laidies we are determined to foment a Rebelion, and will not hold ourselves bound by any Laws in which we have no voice, or Representation” (Source. Note: several decades later, Daniel Webster’s dictionaries helped standardize the spelling of many words).

The Constitution is intertwined with both progressive and conservative sentiments regarding equality and inequality. The document was a compromise after much argument. It is no wonder that we continue to argue over this central issue.

Like John Locke, the 18th century philosopher Adam Smith thought that the market helped rational people pursue their self-interest and advocated a limited role for government in the market. In business or in government, men were not angels. In the Wealth of Nations he criticized businessmen who were prone to price fixing. In government, officials interfered with commerce, granting their allies monopolies on certain markets. In The Rise and Fall of the Neoliberal Order, Gary Gerstle (2022) writes that classical liberalism “sought to liberate markets from encumbrances: monarchy, mercantilism, bureaucracy, artificial borders and tariffs.” It wanted to “release the economy from the heavy hand of the state in its various guises” (p. 6).

Although libertarians champion the values and principles of classical liberalism, they disagree on the limits of government’s role in governing individual behavior, economic or otherwise. The accept the principle of equality, but reject the idea that government should take from some and give to others to achieve equality. Ardent libertarians regard such social taxation to be a violation of one’s property rights. Some libertarians advocate an extremely minimalist role for government in society. Others adopt a more practical approach that admits a more expansive role for government in a highly complex society and economy.

This sense of realism is shared with neoconservatives who argue that the role of government is to preserve moral order in a domestic society, and promote democratic principles and institutions around the world. Neoconservatives advocate both soft and hard power to combat the inherent anarchy of the world order. Contrast this darker outlook on human nature with Locke’s view that rational human beings are capable of self-governance.

Gary Gerstle (2022, p. 5) argues that the term liberal describes the version of social democracy that the Roosevelt administration introduced during the 1930s. Some call it modern liberalism to distinguish it from classical liberalism. During FDR’s presidency, the government exerted a far greater force in the market than previous administrations. At a time when 25% of working age people were unemployed and millions had lost their savings, FDR expanded government’s role to achieve more social and economic well-being.

In his first 100 days, FDR signed 99 executive orders to bring some quick relief to a nation suffering during the Great Depression. He did not act alone. In that time, Congress passed almost as many laws (Source), a partnership of the executive and legislative branches. In his second term, Trump has broken that record, signing 143 order in his first 100 days. However, Congress has been little more than a silent partner, quietly acquiescing as the executive assumes much of its legislative power. In the first 100 days, Congress passed only five laws, a stark contrast to the vigorous production of the 1930s Congress (Source).

During the 1960s, modern liberalism evolved to place far more emphasis on equality among members of society. Progressives wanted to use all the power of government to achieve an egalitarian society, a utopia of equality. In the 1970s, neoliberalism arose as a counterforce. Ronald Reagan, Margaret Thatcher, and economist Milton Friedman were right of center, placing little emphasis on economic equality. They believed that the market was the best mechanism to distribute the rewards and risks of individual behavior. They wanted to blend elements of 19^th century classical liberalism with some social supports of 20^th century liberalism like Social Security. Bill Clinton espoused a version of neoliberalism that was left of center with more emphasis on economic equality. His administration coupled government social welfare supports with individual effort and market incentives. In an ironic twist, Gerstle argues, the neoliberals used as much coercion to implement market reforms as the liberals had used to achieve a more equal distribution of economic gains (p. 7).

Our political loyalties may shift with age, sometimes with circumstance. Many of us do not cling to a consistent political ideology on every issue. We may vary our emphasis on some principles. Our priorities and viewpoints change. When I was in my twenties, I was against Social Security. Like so many government programs, it was poorly designed from the start. Until 1960, the combined tax share for both workers and employers was less than 6%. By 1980, the combined tax had doubled to 12% and the program was still running out of money (Source). In my view at that time, retiring workers had paid relatively little and were “milking” the younger generation. We had to keep paying higher Social Security taxes at a time when inflation was more than 10%. Some of us struggled to pay rent and feed our families so that we could pay some stranger’s retirement benefits.

Regardless of ideology, each of us has a unique sense of what is fair. That is true north on our moral compass and we act on that. That needle may sometimes point to the left or right on an issue or a candidate. No matter how pollsters and political analysts categorize our beliefs, we have only one political ideology, the Fair ideology.

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Photo by Tomoe Steineck on Unsplash

Gerstle, G. (2022). The rise and fall of the neoliberal order: America and the world in the free market era. Oxford University Press.

A Crossroads of Judgment

October 5, 2025October 3, 20251 Comment

October 5, 2025

By Stephen Stofka

Last week, I wrote about some of the themes in Jill Lepore’s recently published book We the People. This week I wanted to explore some examples using a type of mapping technique I used in The Intersection of Politics and Philosophy two weeks ago.A cartographer uses two axes, latitude and longitude to locate a position on the globe. A similar technique can help us understand human behavior and institutions. Again I will use the progressive and conservative ideologies on one axis as I did earlier. The other axis will be whether the constitution is alive or dead. I hope to understand some similarities and contrasts in ideology and interpretation.

First, let’s explore the conservative – progressive axis. I left out the category of liberal, an umbrella term that captures political ideologies to the left and right of center, depending on the writer or speaker. In my mind, a key characteristic of centrist liberalism is a presumption of “live and let live.” I will discuss that next week. For now, I will use conservative to describe those who are socially and economically conservative. A progressive is the opposite.

A conservative recognizes formal or informal social and economic classes in society. A progressive regard classes in society as an aberration, a fault in the ideal of an egalitarian society. A conservative believes that government institutions should make small and gradual changes to optimize society’s welfare. A progressive believes that institutions should take aggressive action to correct the economic and social problems that diminish individual welfare and the society as a whole.

Let’s pick a spot on our map, the intersection of a conservative who regards the Constitution as dead. This was the approach of Justice Antonin Scalia who died in 2016. As I wrote last week, Scalia championed a form of originalism which Jack Rakove called “public meaning originalism” (Source). In her concurring opinion in U.S. v Rahimi, Justice Barrett noted the two foundational premises of originalism. The first was “the meaning of the constitutional text is fixed at the time of its ratification” (Source). The second premise was that the history and tradition at the time of ratification is more authoritative than later history. The Constitution is dead. A justice’s task was to understand the public meaning of the text when the Constitution was written and ratified. Later on, I will discuss Justice Jackson’s challenge to this textual analysis.

Scalia authored the majority opinion in District of Columbia v Heller (2008). In Heller, the Court held that the Second Amendment represented an individual right to carry a firearm. The amendment reads “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Scalia read the first half of the amendment as a prefatory clause subordinate to the main text granting individuals the right to bear arms (Source). This reading of the amendment contradicted more than 200 years of judicial interpretation, holding that the bearing of arms was defined, or circumscribed by an individual’s militia duty. Scalia ignored the several briefs written by noted historians that disagreed with his interpretation. Not only had the Courts understood the amendment that way, but states and localities had enacted many gun laws in the 18^th, 19^th, and 20^th centuries. This clearly demonstrated that the public understanding of the amendment was that the right to carry arms was not an individual right. Scalia regarded his Heller opinion as a major achievement of his time on the bench (Biskupic, 2009). With co-author Bryan Garner, Scalia (2012) wrote a book defending his reasoning against many criticisms.

Back to the map and imagine a progressive who viewed the constitution as dead. In oral arguments in a 2023 Second Amendment case U.S. v Rahimi, Supreme Court Justice Jackson questioned the methodology of the “text, history and tradition” approach (Source). We regard domestic abusers as “dangerous” and subject to disarmament regulations, she noted. Those in the founding era, writing laws for a select few property owning men, did not regard abusers as dangerous. Should justices use the current meaning of “dangerous” or the public meaning of the word when the Second Amendment was written? There are a variety of answers to that question and this helps us understand why there were so many separate opinions written by the concurring justices in the Rahimi case.

Let’s turn to a conservative and progressive stance on a live constitution. A conservative stance would be that of Justice Gorsuch in the case of Trump v United States. A federal grand jury indicted Trump for his attempts to overthrow the results of the 2020 election (Source). It was the first time that a former President had been indicted on criminal charges. Although an originalist, Gorsuch looked to the consequences of the court’s decision. In oral arguments, he said “I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives.” He continued that the court was “writing a rule for the ages” (Source). This pragmatic approach is more typical of a justice like retired Justice Stephen Breyer who wrote that he gave greater consideration to the consequences of a particular judicial interpretation (Breyer, 2024, p. xvii). While Scalia largely ignored consequences in writing the Heller opinion, Gorsuch and other conservatives on the bench did consider the consequences in this case. The goal of the originalist methodology was an objective method of judicial interpretation that left policymaking to the other branches, not the judiciary. However, justices must make choices and judgment calls that affect the analysis and conclusion. Judges make policy. It comes with the job.

Lastly, a progressive is at home with a live Constitution just as Scalia was with a dead Constitution. Breyer paid attention to the text, but particular attention to the purpose of a statute Is the Constitution a contract between a government and the people it governs? A contract is an ongoing relationship of mutual responsibility between the parties to a contract. The keywords here are ongoing and mutual. The document itself, the declaration of the powers and limits of government, occurred at a particular time in history. However, it created an abiding covenant between the government and the people. The Constitution is very much alive.

Both progressives and conservatives use their interpretation of the Constitution as a compass point in their reasoning. The Constitution was ratified but the debate over its meaning was never resolved. Justice Breyer wrote that the tension between the two sides created an uneasy balance of interests and values. It is the duty of each generation to carry on that debate with words, not guns.

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Photo by Einar Storsul on Unsplash

Biskupic, J. (2009). American original: The life and Constitution of Supreme Court Justice Antonin Scalia. Farrar, Straus and Giroux.

Breyer, S. G. (2024). Reading the Constitution: Why I chose pragmatism, not textualism. Simon & Schuster.

Scalia, A., & Garner, B. A. (2012). Reading law: The interpretation of legal texts. Thomson/West.

The Clamor of Many Voices

September 28, 2025September 27, 2025Leave a comment

September 28, 2025

By Stephen Stofka

This week I have been reading Jill Lepore’s recently published book We the People. She writes about our legal and legislative institutions and processes, but it is very much a book about people. What became clear to me while reading the book is that we deny others agency and rights in order to protect our own agency and interests. We defend our values and point of view in defiance of accusations of prejudice.

To keep this within a reasonable reading length, I will break this down into two parts. This week, I’ll discuss the topics in Lepore’s book. Next week, I will use some examples in Lepore’s book to explore the similarities and contrasts in political ideology and judicial interpretation.

Lepore explores the history of trying to amend the Constitution. Only a few of the more than 12,000 amendments proposed to Congress in the past 225 years have been ratified. Throughout the country’s history there have been repeated attempts to amend Article 5 of the Constitution, the article that sets the rules for an amendment’s ratification. An amendment must win two-thirds of the vote in both houses of Congress before it is sent to the states for ratification. Three-quarters of the states must ratify it before the amendment is added to the Constitution.

Leverage of power by a small minority had weakened the colonies under the Articles of Confederation and led to the drafting of the Constitution. Because of the three-fifths rule that counted slaves as three-fifths of a person, slavery gave the southern states excessive representation in Congress and in the Electoral College. Naturally, the slave states wanted to expand slavery to new territories and states to preserve and enhance those advantages. As the country expanded after the 1803 Louisiana Purchase, the framers knew that the ratification requirements set out in Article 5 were too onerous. The southern states and the newer states commanded far more legislative power despite their smaller populations. They used that power to block any amendments that threatened their advantage.

Throughout the country’s history, the amendment process has produced a lurching effect. Long periods of Constitutional inaction are followed by several amendments when there is a shift in popular sentiment and one party gains an electoral advantage strong enough to complete the obstacle path of ratification.

In the first part of the 19^th century, sixty years passed without an amendment jumping the high hurdle set by Article 5. The deaths of 600,000 soldiers in the Civil War changed that political landscape, and the 13^th, 14^th, and 15^th amendments were passed. Another 45 years went by before the four amendments of the so-called progressive movement passed during the Wilson era. These included the 16th amendment permitting the federal government to tax income, the 17th amendment enacting the direct election of senators, the 18th amendment prohibiting the sale of alcohol, and the 19th amendment, giving women the right to vote.

Lepore notes that there are two ways to amend the constitution. The first is by actual amendment and ratification. The second is through judicial interpretation. Because ratification is such an arduous process, each party tries to amend the constitution through judicial interpretation. There are two types of constitutional interpretation, statutory and contractual. A statutory approach reads the text of the Constitution as though it were a statute. A contractual approach regards the Constitution as a contract between states. Understanding the intention of the parties involved is key to deciding case law. That understanding may require the use of historical documents and other secondary sources.

Who decides how to interpret the Constitution? Jefferson and Madison favored a contractual reading, which emphasizes the mutual consent of the parties to the contract. The sanctity of contract was so important to the framers that Section 10 of Article I prohibits the states from passing any “Law impairing the Obligation of Contracts” (Source). Both men were advocates of the principle of nullification, that a state had a right to nullify any federal law that the state thought was unconstitutional. Hamilton and Adams preferred a statutory approach, relying solely on the text (p. 149-150. Note: any references I made with just page numbers will be to Lepore’s book).

Lepore writes, “Early Americans talked about their Constitution the way the English talked about theirs, less as a bucket of words than as a bag of principles. As Protestants, they considered any claim to an exclusive authority to interpret the meaning of scripture to be an act of religious oppression” (p. 149). A decade after the ratification of the Constitution chief Justice, John Marshall disagreed.

In the 1805 landmark case of Marbury versus Madison, Marshall established the principal that it is the Supreme Court that determines the meaning of the Constitution. Jefferson was President, and Madison was Secretary of State at the time of the decision, and neither agreed with this reasoning but Marshall’s decision scored a win for the administration so they did not protest. Under this principle, a few people, usually men, decide what the Constitution means. The formal process of amendment ratification requires thousands of people to agree.

Because it is so difficult to amend the Constitution, Congress and advocacy groups have tried to amend the constitution through judicial interpretation. The Executive and the Senate align to appoint federal judges and justices on the Supreme Court who will interpret the law in accordance with a political ideology. As early as 1801, a lame duck Federalist Congress reshaped the judiciary and Federalist President John Adams rushed to fill new positions in his last days in office (Source).

A strong disagreement with a Court’s decision has sometimes been the impetus for the passage of an amendment. The 14th amendment overrode the Supreme Court’s 1857 Dred Scott decision that all Negroes, slave or free, could not be American citizens (Source). The 16th amendment was passed to override the Supreme Court’s 1895 decision that a federal income tax was illegal (Source).

Let’s say that there are two broad types of judicial interpretations. One of those is that the constitution is fixed or, in Supreme Court Justice Antonin Scalia’s words, “It’s dead. Dead, dead, dead!” (p. 527). This type of interpretation tries to minimize any reliance on what the text implies, to “read between the lines.” Scalia adopted a form of originalism which Jack Rakove called “public meaning originalism” (Source). This school of originalism uses historical sources to understand the public meaning of the text of Constitution when it was written. This is essentially a statutory approach that I mentioned earlier. In the 1875 case Minor v Happersett, the Court ruled that the 14^th Amendment did not guarantee women’s suffrage. In a strict textual interpretation of the amendment, the Court decided that suffrage was not explicitly included and could not be implied in the general phrase “privileges and immunities.”

In contrast, Chief Justice Roger Taney supported his opinion in the 1857 Dred Scott decision with a school of originalism that searches for the original intent of the framers (p. 212). That school relies less on the Constitutional text itself and more on traditional practice (Maltz, 2007). Taney wrote:

When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its “people or citizens.” Consequently, the special rights and immunities guarantied to citizens do not apply to them. And not being “citizens” within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit. (Source)

The second interpretative approach is that of retired Supreme Court Justice Stephen Breyer, who regarded the Constitution as a living document of values, principles and purposes, a contract between people and the governments who represent them (Breyer, 2024, p. xvii). The text of the Constitution points to the issues in the debate and cannot be the final word. As Jack Rakove (1996) pointed out in his book Original Meanings, there were inconsistencies in the wording of the hand-copied texts that were sent to the various states for ratification. In Breyer’s view, a judge’s task is to balance individual rights and the objectives of government policy.

Scalia and Breyer often debated in public (Breyer, p. 33). Scalia thought Breyer’s approach was ungrounded and arbitrary. Breyer thought that Scalia’s approach was too mechanical. He argued that an originalist approach did not achieve the objectiveness it aimed for. Since Scalia’s death in 2016, the Court’s conservative justices have struggled to apply an originalist interpretation in a consistent manner. They pick and choose the history that supports their opinions and reject the research and opinions of historians who come to different conclusions.

In Chapter 13, Lepore details this conflict in Second Amendment cases. After Justice Thomas invented a “text, history and tradition” test in writing the majority opinion in the Bruen decision, lower courts struggled to apply this multi-faceted analysis that combined both a textual emphasis and a historical-traditionalist approach. The confusion prompted another case, U.S. v Rahini, in which most of the conservative justices wrote separate opinions either concurring or dissenting with the majority decision (Source).

Lepore’s book is both informative and entertaining. She introduces us to long dead historical figures whose legacy affects our everyday lives and institutions. She takes us to seminal moments in history to give the reader a sense of time and place. She provides insightful analysis into the impassioned conflict between interests and principles. Next week, I will compare and contrast some of the judicial opinions and justices in Lepore’s book. Until then, baseball fans will have to content themselves with the start of an exciting playoff season!

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Photo by Rob Curran on Unsplash

Breyer, S. G. (2024). Reading the Constitution: Why I chose pragmatism, not textualism. Simon & Schuster.

Maltz, E. M. (2007). Dred Scott and the politics of slavery. University Press of Kansas.

Rakove, J. N. (1996). Original meanings: Politics and ideas in the making of the Constitution. Knopf.

The Intersection of Politics and Philosophy

September 21, 2025September 18, 2025Leave a comment

September 21, 2025

By Stephen Stofka

Last November, I first introduced Abel and Cain as a narrative device to explore two sides of an issue (Substack, Innocent Investor). I hope readers have enjoyed some of the arguments, whether you agreed with them or not. I often found it difficult to adhere to the discipline of reaching for arguments and reasoning that I did not agree with. Could it be that there was a bias in my thinking? Perish the thought! The boys are going fishing for a while as I analyze opposing perspectives in a more traditional format.

In politics, we contrast progressive and conservative ideologies. In philosophy, we contrast subjective and objective viewpoints. Let’s combine these two axes of comparison and look at some intersections. What does it mean to be conservative and subjective? Someone like Adam Smith might fit that description. The free market was an emerging consensus of individuals and businesses trying to satisfy their needs. He believed that this exchange, despite its flaws, would improve the general welfare of society.

What about progressive and subjective? Progressives want to manage the agenda in schools to instill the “correct” social attitudes in children, to steer their subjective experience along a progressive ideology. In his recently published book The Progress Trap, Ben Cobley (2025) writes that schools manage their reading lists and curricula to ‘decolonize’ the subject matter students are exposed to. Books that tell a historical narrative from the viewpoint of the colonizing nations are removed from the curricula. Is this a version of Fahrenheit 451?

Conservatives act to implant their ideology in the subjective experience of the population. In 2022, Florida passed the “Florida Parental Rights in Education Act.” After amendments in 2023, the policy required the removal of books with any gay character in them from K-12 school libraries (Source). Like the progressives, conservatives want to instill the “correct” attitudes in children.

Can conservative and progressives agree on what are the “correct” attitudes? It seems unlikely. In the preface to his book, Cobley identifies one cause of the policy failures and disagreements we have. We assume “that we are right and good and can only cause good to occur in the world, while our opponents can only cause bad” (p. vii). He notes that progressives rely on social science as their authority. They see the world in a mechanistic way of cause and effect, oppressors and victims. Arnold Kling (2017) has written about the three languages of politics and echoes the same point. Conservatives rely on cultural and religious traditions as an objective authority. In Kling’s typology conservatives view the world as a struggle between civilization and barbarism.

Is there a middle ground, an alternative authority that might resolve their differences? People form groups based on an allegiance to an authority, and group allegiances are not easily changed. There are several methods to effect change, some directed toward the subjective, others employing a more objective approach.

Subjective methods use persuasion to get others to change their authority allegiance. These include essays, videos, and debates that appeal to rationale as well as emotion. A more negative type of persuasion is ridicule, often used to silence opposition rather than convert opinion. Activist groups on both the right and left organize ridicule campaigns on social media to attack unwanted behavior and opinions.

In an objective approach, interest groups win control of civil institutions to exert change by legislation or policy. The Florida law mentioned above is an example of civil force by conservative groups. On the left we see mandates of diversity, equity and inclusion training in college curriculums. Copley writes that progressives have a “comforting illusion that things will inevitably get better so long as they and their allies are in control of things” (p. vii). Conservatives have a similar illusion but a different goal, the preservation of civil and moral order.

Critical to any human society are its resources. Progressives promote policies and investments that preserve the environment. The costs, both in terms of money and convenience, are a small price to pay for the benefits of a healthy ecosystem. The resources that conservatives care about are cultural and religious. These are the glue, the connections that evolve between members of a society. If preserving the environment means the sacrifice of these community connections, then conservatives would rather preserve those connections rather than the environment.

In a large multicultural democracy like ours, groups compete to design or control those institutions which shape the subjective experience of people in society. Since children are so impressionable, school curricula can become a battleground for ideologies.

Beginning in the 19^th century, schools in states and local districts have struggled to control the religious traditions of students in their charge. A Wikipedia article has a history of the conflict over school prayer (Source). Since the 16^th century, Protestants and Catholics have quarreled over Christian text and doctrine. Today, the Catholics include the Apocrypha, early Christian writings, in their Biblical canon. Most Protestants do not. Catholic doctrine holds that God inspired the authors of the Bible. Some Protestant sects believe that the Bible is the literal word of God.

Naturally, these two religious denominations brought their disputes into the schoolroom. Ending the practice of prayer in schools came not from a Christian denomination but a Jewish family disturbed that their son was forced to pray in a Christian manner. In Engel v Vitale (1962), the Supreme Court ruled that publicly funded schools must not promote any particular religion. They based their decision on the Establishment Clause of the First Amendment that prohibited the federal government from favoring a particular religion (Source). The Fourteenth Amendment extended those prohibitions to the state governments as well. The Legal Information Institute at Cornell University writes that it is “one of the most unpopular decisions in Supreme Court history” (Source). Numerous attempts to amend the constitution have failed to reach the required two-thirds majorities in Congress. Lastly could the current conservative court overturn that decision? In Kennedy v. Bremerton School District (2022), it allowed private prayer in public places, but it has reaffirmed that 1962 precedent prohibiting state-sponsored religious practice.

Is this the familiar battle between science and religion or between secularists and religiously affiliated? According to Pew Research, 70% of Americans are religiously affiliated and 90% of those affiliated are Christian (Source). In the battle between Christian sects for control of the classroom, Christians have lost the battle to secularists. Could the many Christian sects join together, agree on some central canon, then pass an amendment to the Constitution? Agreement over religious doctrine is a tall hurdle and amending the Constitution is particularly difficult.

In addition to persuasion, ridicule and civil regulations, governments can enforce ideologies through police force. In the former Soviet Union, the KGB suppressed unwanted thought by arrest and exile to the Gulag. In Nazi Germany, neighbors were encouraged to “rat” on their neighbors if they suspected any anti-Nazi opinion or behavior. In the three decades following World War 2, Red Guards in Maoist China punished their citizens for incorrect thinking by beatings and re-education in labor camps. Today, the citizens of North Korea are brutally tortured for expressing disloyalty to the Kim family who rules the nation.

What drives human beings to replicate their ideologies? While they may lack substance, they promote social cohesion among the followers, and endow the leaders with economic benefits. In his book The Social Conquest of Earth, E.O. Wilson (2012) described a critical aspect of human societies, their eusociality. First coined in the 1960s to describe bee colonies, Wilson expanded the term to describe the ability of human beings to build multigenerational societies and cultures. Biological organisms evolve through discrete or sporadic genetic mutations that provide an adaptive advantage. The evolution of ideologies is not discrete, but a continuous adaptation to social, cultural and political pressures.

In E. O. Wilson’s analysis, human societies evolve through the conflict between group cooperation and individual competition. Individuals struggle within each group to define the group’s shared values and outlook. As I’ve shown above, there is also individual cooperation within each group to win the competition between groups for control of a society’s institutions. The tension between the individual and the collective, the subjective experience and the objective shared environment, drives change in any human society.

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Photo by Dimmis Vart on Unsplash

Cobley, B. (2025). The progress trap: The modern left and the false authority of history. Polity Press. Available from Amazon

Kling, A. (2017). The three languages of politics: Talking across the political divides (Rev. ed.). Cato Institute. Available from https://www.cato.org/three-languages-of-politics

Wilson, E. O. (2012). The social conquest of earth. Liveright Publishing.

A red brick and pale rose stucco wall in a basement. In the upper portion of the wall, the brick is exposed

The Walls Within Us

September 14, 2025September 12, 2025Leave a comment

September 14, 2025

By Stephen Stofka

Sunday morning and another breakfast with the boys. This week Abel and Cain discuss political divisions. The conversations are voiced by Abel, a Wilsonian with a faith that government can ameliorate social and economic injustices to improve society’s welfare, and Cain, who believes that individual autonomy, the free market and the price system promote the greatest good.

Abel tucked some butter between his pancakes. “I usually turned off Charlie Kirk a few minutes after listening to him, but I was shocked when I heard he had been shot. His family must be devastated.”

Cain sighed. “You know, we come up with ideas every week. It’s another thing to have the energy and guts to follow through. Kirk was like 31 when he died. He started the Turning Points USA organization when he was 18. He walked the talk.”

Abel argued, “Kirk was a professional provocateur. Whether right or left, it’s not my style. I didn’t like the way that TP went after professors and universities.”

Cain shook his head. “Look, democracy is a fight to gain control of the agenda of a country’s institutions. The liberals had a lock on the educational institutions in this country. Kirk helped expose that and bring the policy pendulum back toward center.”

Abel smirked. “The pandemic lockdowns did that. Parents finally paid attention to their kids and what they were learning. Some parents weren’t pleased. Organizations like TP used that momentum to go after education at all levels. Critical theory, a graduate level course, became a punching bag for parents angry about what their third graders were reading.”

Cain argued, “Look, advocacy organizations throw a bunch of ideas and tropes against the wall and see what sticks. Liberal or conservative, that’s how these organizations work. So don’t pick on TP for using the same tactics.”

Abel shrugged. “Ok, good point.”

Cain continued, “We criticize these public figures but it takes a lot of courage to put yourself in harm’s way in public like that. Like Kirk, Trump was standing on stage when he got shot. That guy just missed. Robert Kennedy and Malcolm X were both sitting ducks on stage. JFK was in an open car. Martin Luther King on a balcony. All vulnerable to some nut with a gun.”

Abel shrugged. “Like I said, I felt bad for his family, but I didn’t like the way he milked hate.”

Cain argued, “Come on, promoting one’s values is not ‘milking hate.’”

Abel tilted his head slightly. “I disagree. He was contentious because he wanted to arouse divisive sentiments in his audience. The audience was entertained by that vitriol. Some people like to listen to hateful talk radio. Strong emotions help people feel they’re alive.”

Cain looked over his glasses at Abel. “And liberals don’t have strong emotions?”

Abel shook his head. “So many liberal talk radio stations have failed. It’s remarkable that a progressive like Thom Hartmann has survived (Source). A 2007 study found that 91% of talk radio stations in the largest markets were conservative (Source). Why? Liberals actually want to find solutions. That may be informative but it’s not entertaining. Conservative talk radio feeds the anger monkey in people.”

Cain smiled. “Oh, like liberals don’t have an anger monkey. Come to think of it, I don’t know when I last listened to talk radio. Too many commercials. I think I’ve become less tolerant of advertising in my listening stream. I don’t miss the days when all we had to listen to was radio stations while at work.”

Abel paused in thought. “I wonder if technology will advance enough that public figures will appear as lifelike avatars on stage. Already there are hologram recreations of past performances (Source). Combine AI technology to create a live performance? The day may be coming.”

Cain replied, “Politicians are reluctant to do townhall meetings. Sure, some would like to avoid protesters but also partly because of the security concerns (Source). 9-11 was sudden. After that, security precautions affected our lives. Tight security protocols at airports and on public transportation. A before and after moment. The increased targeting of public figures may mark a more gradual trend to ‘democracy by Zoom,’ or something like that. It might just become too risky to appear in person in a public venue.”

Abel woke up his phone. “I was reading a working paper published this year by the United Nations. The authors, Patricia Justino and Melissa Samarin, identified two dimensions of public trust. One is a trust in society’s institutions and government. The other is an interpersonal trust (Source).”

Cain interrupted, “Interpersonal like with people you know? Work mates and family?”

Abel replied, “Trust in dealing with strangers. Like, how well can you trust people in your daily life? Anyhow, that level of trust affects how we comply with laws and regulations, and how we cooperate with others. They cited a World Values Survey that’s been going on since the early eighties and they say there has been a decline in trust the past two decades.”

Cain asked, “Institutional? I get that. 9-11, the financial crisis, the pandemic.”

Abel nodded. “It’s global, not just in this country. The biggest declines are in Africa and Latin America.”

Cain asked, “What about the U.S.?”

Abel replied, “The U.S., U.K. and Australia decreased slightly. In China and Vietnam, institutional trust has increased.”

Cain frowned. “I think there’s also a decrease in trust between the states, between government institutions. Texas is suing New York over the mailing of abortion pills. Reminds me of the controversy over fugitive slaves. The non-slavery northern states did not honor orders from a slave state to return a slave that had fled into a northern state. There are sanctuary cities which won’t cooperate with federal immigration enforcement.”

Abel sighed. “Yeah, immigration is one issue. The abortion pill thing is different, I think. The states don’t regulate the mail. The federal government does. Congress has passed laws against mailing lottery tickets into some states but hasn’t passed a law against mailing prescription medicine (Source – Title 18 U.S.C. 1301). Besides, most mail-order prescriptions get sent from a California pharmacy so that involves California even if the controversy is between New York and Texas. This is an issue for Congress unless this activist court steps in and issues yet another decision with no explanation.”

Cain said, “Back in the sixties, people in southern states used to hang Chief Justice Earl Warren in effigy. They didn’t like the court’s decisions requiring them to desegregate schools, or allow marriages between consenting adults, regardless of race.”

Abel smirked. “Rural folks did not like ‘one person, one vote,’ something we take for granted today. Apportionment in a lot of states negated any population growth in urban areas and ensured rural control of state legislatures (Source).”

Cain nodded. “Yeah, that was the Warren court too. Another 5-4 decision that affected the balance of power. I’ve been reading Rick Perlstein’s book Before the Storm. It’s about the birth and growth of the conservative movement in American during the 1950s and early 1960s. It’s like a month by month account of what was going in in America during that time, seen through the lens of political ideology and alliances.”

Abel frowned. “Did he write Nixonland? Or am I thinking about Robert Caro?”

Cain replied, “Perlstein wrote that. He also wrote on the Reagan years. Caro did the biography of Johnson.”

Abel shook his head. “It’s weird. Both Johnson and Nixon were melancholy men. Why did Americans elect melancholy candidates during the 1960s? Kennedy’s election was aspirational, uplifting. He was assassinated in 1963. The 1964 election was a memorial to Kennedy in a way. Sometimes we elect people who reflect ourselves. Other time we elect those who seem to represent something we aspire to be.”

Cain nodded. “Maybe it’s a struggle between those two forces. Kennedy worried whether he could win reelection. He campaigned in Dallas to help shore up support in that state. According to Perlstein, the south was already turning away from Democrats. Nixon’s so called ‘Southern Strategy’ really began with Goldwater’s campaign in that election. Goldwater was so popular that he filled Dodger Stadium with people who paid to see him.”

Abel looked quizzical. “I thought Johnson trounced Goldwater in that campaign.”

Cain nodded. “He did (Source). Johnson ran his own election campaign and he used every bit of Presidential power to tarnish Goldwater. But all of the deep south states went with Goldwater, a total flip from the 1960 election. It wasn’t just folks in the south who were unhappy with decisions from the Warren court. The reaction to integrated schools and busing, another Warren court decision, was strong in northern cities. Big protests in New York City against busing. In Chicago, union activists protested affirmative action policies. They were afraid they were going to lose their jobs to black workers. In the 1968 election, the industrial Midwest states flipped red (Source).”

Abel sighed. “I think this country will ever be cursed by slavery. Trump wants the Smithsonian to put away some of its slavery exhibits. A ‘stick your head in the sand’ approach to solving problems. I think a lot of people thought that by electing Obama, a bi-racial candidate, America would finally put the issue to rest.”

Cain smiled. “Yeah, like China would adopt democracy and laissez-faire capitalism after being admitted to the World Trade Organization in the early 2000s. Like the country would play by the rules of free trade and floating exchange rates. Fat chance.”

Abel replied, “I think the International Monetary Fund supervises exchange rates, not the WTO. Actors within the system get away with murder because regulation and supervision is separated among different organizations. The U.S. complained about it a lot, but these international organizations are toothless.”

Cain argued, “I think they’re constructed to have weak enforcement capabilities so that they do not threaten the sovereignty of the more powerful countries who set up these organizations in the first place. Every country complains about the anarchy that’s inherent in the international system, but no country wants to recognize any authority greater than their own.”

Abel laughed. “It’s the rule of self-interest. If a country wants help, then they are all about consensus values in the international community, blah, blah, blah.”

Cain frowned. “Back on the subject of slavery. Perlstein’s book reminded me that there have always been regional differences in this country. Madison worried about factions in general. Factions based on religion, culture, social class, economic self-interest (Source). As the country spread westward in the first half of the 19^th century, he worried about factions based on geography, particularly North and South, and the issue of slavery (Source). While slavery was no longer an issue in the 20^th century, racial prejudices run like an undercurrent through our history.”

Abel nodded. “I liked your idea a few weeks ago. Having four regions within each party. Fight faction with more faction. Formalize the regional differences in this country so that they are not just categories in some economic or political study. Let the divided interests speak and compete within each party. Otherwise, I’m worried that we are coming to blows.”

Cain stood up. “I feel bad for Kirk’s family, his wife and kids. His parents. No parent should see their child die. If I got to make one rule in the universe, that would be it.”

Abel looked up. “Like I said, I was shocked. I didn’t want to give you the impression that I lacked sympathy for his family. We’ve both been there. We know the hole that an early death leaves in our lives.”

Cain pursed his lips. “Yeah. Hey, I’ll see you next week.”

Abel said, “Here’s hoping to better news next week. See ya.”

///////////////

Photo by H&CO on Unsplash

Who Writes the Rules?

September 7, 2025September 6, 2025Leave a comment

September 7, 2025

By Stephen Stofka

Sunday morning and another breakfast with the boys. This week Abel and Cain discuss immigration and the limits of Presidential authority. The conversations are voiced by Abel, a Wilsonian with a faith that government can ameliorate social and economic injustices to improve society’s welfare, and Cain, who believes that individual autonomy, the free market and the price system promote the greatest good.

Abel said, “I was reading that the National Parks are so understaffed after all the DOGE cuts, there is no one at the entry stations to collect admission fees. People were stealing artifacts from one exhibit in Yellowstone (Source).”

Cain frowned. “The world will never be rid of free riders. A lot of people on the right view illegal immigrants as free riders. They skip the immigration line, bring their kids here to get free health care, free education and then they say that they don’t want handouts.”

Abel put down his fork. “My whole point was that the Trump administration is losing more money in admission fees than they are saving with these personnel cuts.”

Cain nodded. “I get that. I am drawing an analogy between unrestricted admission to National Parks and unrestricted immigration at the southern border. The Biden administration understaffed border patrol and told officers to help immigrants disobey the law. So which problem is worse? A few thousand people who don’t pay at National Parks this summer or several million people coming into the country, needing medical care, education and legal services? I think we need to keep things in perspective.”

Abel argued, “I think a key distinction of free riding is that a person is not doing anything illegal. They are benefiting from some common resource without contributing to the cost (Source). People who drive into a national park without paying a fee are not breaking the law if the gates are open and there is simply no one there to collect the money. Immigrants seeking asylum are not doing anything illegal.”

Cain replied, “Most of these people are not asylum seekers. They are lying to stay in the country until their case is heard years later. The cartels in Central American countries teach these people what to say. Smuggling people is more profitable than smuggling drugs (Source). The Biden administration was facilitating cartel profits. Trump shut that down.”

Abel smirked. “Despite all the conservative rhetoric about the ‘immigration surge,’ migration in 2023 was less than it was during any year in the Bush administration except one (Source). For most of that time, Republicans held the Presidency, the Senate and the House. So its OK to let immigrants in when Republicans are in power but not so for Democrats. The right wing media has fooled the public and Democrats were too clueless to combat it.”

Cain shrugged. “Bush increased funding for more fencing along the southern border. He called on Congress to pass immigration reform and they just can’t get the job done (Source).”

Abel said, “A big stumbling block is that employers don’t want to be held responsible for any immigration violations. Sometimes, employers hire employees through a staffing agency for seasonal or temporary work (Source). The benefit of this arrangement is that there is some legal distance between the employer and the employees. They technically work for the staffing agency who deals with the immigration stuff like the I-9 form (Source).”

Cain nodded. “The immigration raid at the Hyundai plant in Georgia this week was an example. Most of those who were arrested, it was like almost 500 people, were not employees of Hyundai. They were contractors or subcontractors (Source).”

Abel replied, “Yeah, we talked about this a week or so ago. Employers classify workers as subcontractors to avoid paying employment taxes.”

Cain shook his head. “I think a bigger problem is there are too many immigrant advocacy groups that don’t believe in national borders. Major immigration reform was like in 1986, I think. If immigration policy can’t be resolved over several decades, then there are influential constituencies who don’t want to resolve it.”

Abel laughed. “They are making money from seeking a resolution, not reaching a resolution. And politicians know how to cover their tracks. They can look like they are working on a solution while taking steps to sabotage the effort.”

Cain nodded. “Well, all I know is that these immigrants are costing a lot of money. New York City estimated a cost of $12 billion over three years (Source). Where does that money come from? Reduced services and higher taxes. The Congressional Budget Office released a report this summer estimating the three-year cost of the immigrant surge. A net cost of $9.2 billion in fed, state and local services after accounting for higher sales tax receipts from these immigrants (Source).”

Abel thought a second. “Look, I’ll grant you there are some short term costs but don’t forget the long term gains.”

Cain interrupted, “Any long term gains are offset by higher house prices. Immigrants increase demand for housing. House prices go up. Econ101.”

Abel shrugged. “It’s hard to argue that immigrants are responsible for higher home prices. Another false flag that conservatives raise is that immigrants were taking jobs from Americans. That didn’t happen. By the end of 2021, less than a year into Biden’s presidency, construction employment recovered to its pre-pandemic level. By the time he left office, construction jobs were up more than 600,000 (Source). So that surge had little measurable effect on construction jobs.”

Cain argued, “Conservative economists like Oren Cass argue that illegal immigrants drive down the wages of lower skilled construction employees (Source). The number of employees won’t tell you that.”

Abel checked his phone. “Well, it does show that demand for labor remained strong. Hold on, I looked at wages too. Here it is. The Bureau of Labor Statistics tracks the hourly wages of production and non-supervisory employees. That will give us a good approximate picture of any impact on wages. There was a short time in 2022 when real wages for those employees declined (Source). That was during the inflation surge. It quickly recovered. If there is any effect, it was small. The data just doesn’t support conservatives’ claims about the effect of immigration.”

Cain protested, “Look, the bottom line is that most of these people are lying and jumping the immigration line. The cartels are using people as a distraction from the transport of drugs and guns across the border and taxpayers are indirectly funding the cartels.”

Abel asked, “Do you agree with Trump that he can go after these cartels as though they were terrorists or paramilitary groups? This week, we just blew up a ship in the Caribbean that was supposedly run by the Venezuelan Tren de Aragua gang.”

Cain shrugged. “Hey, I’m not a lawyer but I agree that these cartels act like paramilitary groups. We should treat them as such.”

Abel asked, “No trials? No evidence? No oversight? What if Trump adopts the same policy as Duterte, the former president of the Philippines (Source). Trump could start sending hit squads into American cities to kill drug dealers. Is that OK? Where is the line?”

Cain shook his head. “No, that’s on American soil. That’s entirely different.”

Abel asked, “So a Border Patrol officer could just shoot someone on the Mexico side of the border if he suspected that person of being a cartel member? Like I said, where is the line?”

Cain nodded. “Ok, now you’re sounding like a lawyer. The boat they blew up was in international waters. That’s entirely different.”

Abel sighed. “I don’t know why conservatives hesitate to define boundaries for this President. He pardoned the January 6^th rioters that tried to kill members of Congress, including the Vice President. What does this Republican Congress say? Silence. Edmund Burke, the 19^th century founder of conservatism, would be ashamed of this Republican Congress. Society is bound together by morals, conventions and institutions as much as laws (Source). This Republican Congress has abandoned those standards for political expediency.”

Cain nodded. “Fear for their personal and political safety, I’d guess. What’s happening is that the MAGA crowd is trying to overturn policies set largely by Democrats when they controlled the House during the twelve years of FDR’s presidency and for forty straight years from 1955 to 1995 (Source). Immigration is a big one. What are the limits of Presidential Authority and can he declare emergencies without consulting Congress? Another contentious issue. Who was the first President to grab extraordinary power after declaring an emergency? FDR, a Democrat (Source). It’s ironic that Trump is using the same mechanisms to undo Democratic policies that began with FDR.”

Abel frowned. “The court ruled against FDR in the Humphrey’s Executor decision. They ruled unanimously President cannot fire members of an independent agency at will (Source). The court has recently loosened that restriction (Source) and Trump wants to fire Powell, the Fed chairman. The question I have is whether a President can undo 80 years of Congressional policy? Who writes the rules, Congress or the President? This court seems like they are ready to confer kingship on the President under this judicial theory of the Unitary Executive. I mean, even if Congress does pass immigration reform, what does it matter if a President can ignore the law?”

Cain argued, “Well, nobody said the President can ignore the law.”

Abel replied, “The court has deferred to the President’s interpretation of the law (Source) and Trump has shown a willful disregard for Congress and the law in general. I mean we all saw him on the debate stage in the 2016 campaign. He has an open disdain for politicians and both parties as institutions. I mean, this guy is not a conservative.”

Cain sighed. “I’ll grant you he has undermined conservative principles and taken over the Republican Party.”

Abel smirked. “And these supposed Christians who support him. Compassion is a hallmark of the New Testament in the Bible. There are too many Christians who lack compassion for anyone outside their group. Immigrants, blacks, liberals, mainstream Republicans even.”

Cain raised his eyebrows. “Their sympathies remind me of Christians during the Crusader era. Lots of fire and retribution. Protect Christendom from the infidels. That type of thing.”

Abel laughed. “Everyone who doesn’t agree with them is an infidel, I guess. There has to be a way to bring all these political groups together in this country or this nation is going down in fifty to a hundred years.”

Cain asked, “Going down or splitting up? We’ve got oceans on both sides, a tremendous amount of resources and weak neighbors to the north and south. I doubt if we are going down.”

Abel smiled as he stood up. “Ok, splitting up. We’re already split along partisan lines. People in one party don’t trust those in the other party. I think that trend will continue. Trump is just precipitating the break up of the country.”

Cain leaned forward. “A few weeks ago, we talked about each party electing candidates from regional partitions with the party. For decades, voters are sorting themselves out by region. Democrats on the Northeast and West coast. Republicans in the Midwest and South (Source). It may be the only way to keep this country together.”

Abel nodded as he moved his chair back and stood. “You may be right. Madison wrote in Federalist 10, I think it was, that the best way to curb the power of factions was to pit them against each other (Source). A ‘fight fire with fire’ approach. That’s why I think the Unitary Executive theory is not in the spirit of the Constitution.”

Cain asked, “Maybe we could talk about that next week. You heading out?”

Abel nodded. “I promised Claire I’d help her move some furniture around this afternoon.”

Cain laughed. “You don’t sound too excited. I’ll see you next week.”

//////////////////

Photo by Seongil Park on Unsplash

Note: Real wages. Average hourly wages are FRED series CES2000000008. The Fed’s favorite inflation gauge is PCEPI series. Subtract the annual percent change of one from the other to get the percent change in real wages.

Innocent Investor

A helpful understanding

Author: sgstofka

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Freedom and Tolerance

The Hidden Truth

Honesty

The Political Middle

A Crossroads of Judgment

The Clamor of Many Voices

The Intersection of Politics and Philosophy

The Walls Within Us

Who Writes the Rules?