American Legal History
The Constitutional Law dialogue is about these brilliant, special, unusual people whose characteristic is that their gaze pierces the immensity of the future. And you all know how this religion is indoctrinated - anyway, those of you who have been through the first year of law school know how this principle is indoctrinated. To be the people who pursue that utterly absurb bullshit way of thinking is to be the great intellectuals in law school. The people who pursue the discipline which consists entirely of getting it wrong from start to finish are the people everybody is supposed to respect. They are the big domes.If you're in a really good law school like Yale you should start with the subject that consists of getting everything wrong from beginning to end. It should be in the first semester.

because you should meet the Gods right away and of course you should meet also the Gods who are introducing you to the gods right away. The whole thing is nonsense from beginning to end. There's nothing about it which is true because its underlying proposition - the reason that it's all being said - is that it depends upon the belief that these are the people whose gaze pierces the future. They are the unusal politicians looking ahead. They're nothing of the kind.

So you spend weeks now understanding the chaotic and profoundly culturally disparate and politically entirely unifiable bunch of small societies living on the margins of the first British empire on the Atlantic literal of N America. We can see a few evident things about them. We can see them as constrained within an evolving sociopolitical and commercial system in the Atlantic basin which is the European extansion of the systems of sociopolitical reasoning that governed the Ancient Mediterranean. The Atlantic is becoming to the European world what the Med was to the Roman world.

And we can see them attempting in the geopolitical context of imperial push and shove in the western hemishpere. We can see these societies penned by the French and their Indian allies between the mountains and the sea. We can see them attempting to reason their way towards the possession of a continental empire. And we can see them experiencing the consitutional development of Britain and of England, in particular, the development of Parliamentary supremacy, in particular, as a consequence of 17th c developments. We can see those developments in English constitutional thinking being both theoretically and practically oppressive to these fractious little N American societies.

The scale model of what will happen, as I had pointed out last week and was trying to sum up yesterday, is the late 17th c circumstances themselves - the Revolution of 1688 and what follows from it in N America. But the crisis of the center of the 18th c, the thing misnamed the American Revolution and its prologue, the crisis of the 18th c is the crisis of the breaking down of the imperial constitution of the British empire as a consequence of the changes in the British constitution - the constitution of the metropolis and party as a consequence of geopolitcal change. The breakdown in the constitution of the empire is the conservative American response to Parliamentary supremacy.

As I pointed out last time, the primary nexus is the tax law of the empire which raises from the imperial point of view, two fundamental problems. From the imperial point of view, North America in fact the western hemishpere most importantly the parts of N America integral to its existence but forgettable to us because they're outside the constitutional boundaries of the replacement empire, namely the sugar islands of the Caribbean. The western hemispheric empire is strategically very difficult to maintain and very expensive to hold on to. It has profound costs.

From the British point of view, the 18th c empire consists of a very expensive sugar production system in the Caribbean and an extraordinarily expension trading system in India. Both of which require enormous expenditures of strategic effort because this is an empire gurgling the naval world requiring force to be projected at the very outside of European material possibility under enormous difficulties of extended lines of communication. You can give next year's orders in the spring in London and hope that in the Indian Ocean they will be dealt with next Dec. And you can decide in the winter what you want to have happen in Wester N American waters in the course of the following spring and early summer but that's all you can do. You can send your ships across the Atlantic having in mind what you think the other fellow's going to do next season. And you can hope that you can do it yourself. But once you've committed yourself there is no way to know what's going to happen and there's no way to deal with the contingencies that are going to arise. You are at the mercy of your commanders. In the Indian Ocean this is true ? because you've got a full year's delay between the formulation of orders and their execution.

In the middle of the 18th c the British are going to win two crucial naval engagements on opposite sides of the world on the same day. Or rather, they're going to sustain one enormous crushing defeat and gain one enormous crushing victory turns out to be not important. They're not even going to know about this, let alone about the simultaneity of it for months. In addition to the difficulties and the expenses, there are the facts that the costs are socialized and the benefits are capitalized. This is the problem presented by warfare under capitalism at all times.

The Iraq war costs us. It benefits Hal? All of the expenditure that is produced in winning an Indian empire has the sole beneficiary of the East India Co.

And what is being won in N America is plain put in the hands of planters and sugar processors and merchants. The only thing that makes it possible to set off against the socialized expenses of empire and the capitalized gains to traders is the taxes.

And the taxes are so massively evaded as to raise an actual issue of the presence of what from Parliament's point of view is the rule of law.

If N American juries won't convict for smuggling. IF there's widescale fundamental noncompliance with the revenue law of the empire then you're going to have to use force increasingly to maintain what you're going to consider to be the rule of law which given the choices in N AMerica means you're going to have to do one of two things. You're either going to have to occupy places with Red Coats or you're going to have to drag people out of N AMerica and try them elsewhere, no in front of juries of their visinage.

IF you leave them there, then they're going to nullify the federal law of the empire.

Now up to some point this problem will be moderated by the fact that it is only British Imperial power, or at least the little dribs and drabs of resources that can be made available that prevents the massacre of these people of savages set on by the French.

The presence of the French empire in N AMerican disciplines the colonists.

They're incapable of providing among themselves either adequate rest, resources, or adequate political will to engage in concerted common defense. It's not that they're unwilling to take casualties. IT's that they don't know how to get anybody to pay for wagons. Of course the New Yorkers aren't willing to take casualties why should they? They have pretty much the same attitude that Tory opponents of Williams wars have at home. Why don't we just have a navy, make money in the Atlantic, hold ourselves apart from all of this? We don't need to engage in widespread work. The Valley of the Hudson is perfectly holdable against misbehavior from Canada and Iroquois is not going to desert the interests of NY, not completely. That's what Sir William Johnson's out there for. So we've got the gateway to the continent. We have everything, we can make money in the Atlantic stealing other people's shipping. Fuck you.

Which is perfectly understandable in a largely sensible point of view. The only thing is that as long as the French are in Canada there is some limit to how far you can go with that.

So suppose they're not in Canada.

That's what's decided on the Plains of Abraham. That noble General Wolf shot through the lungs. Victory of America at the point of death. Beautiful paintings. Grand moment.

Parkman can make anything beautiful but if you can still imagine having an attention span long enough for even one of Parkman's volumes, let alone all of them. Reading all of Francis Parkman from end to end is like reading William Shakespeare from end to end. It's a thing you should do once in your life but I couldn't flog even my own graduate students into doing it anymore. Stories that actually unrole on a canvas that large? We're not interested. OK fine. We'll give you only General Wolf dying in the middle of victory in the Plains of Abraham. Makes a beautiful painting. But what's really being decided is, as Parkman knows, that's the whole point, that's the climatic moment of the entire effort year after year writing with eyes that won't work after an hour or two a day troubled by vast hysterical blindness. Unable to leave his house, quivering with anxiety in every limb - a boy who was out riding with the Shayan and the Wyoming at the beginning of his grown up life feverishly trying to complete the history of France in the New World. That's what PArkman's waiting for - that climactic moment when what is finally decided is shall fRance remain on this continent or shall she not as he says in the prologue. That is what's being decided.

After 1761 the answer is not. which means from that moment the separation from the British empire is inevitable.

Because now there are no longer any limitations to the Americans' desire to use their disunion to prevent themselves from paying the cost of empire. Why should they? They're not receiving the benefits. Not at any rate, in their view. Still, every piece of gold that's here has to be shipped abroad to pay a merchant in London who won't get paid any other way. Still, there laws are hampered in every direction by the needs of creditors at home. Still, after all, the situation is really one of mere convenience with respect to their self-government.

Now the king says "You can't go west of the mountains." Why does he say this? because they have no way to control the imperial situation west of the mountains. With all the effort and resource they could squeeze out of the colonials on the other side, with all the force that came from having the French breathing down their necks and threatening to massacre their children with a Huron hand. Still it was barely possible to squeeze out of them enough to make some kind of defense of the country's east of the mountains. And now there are no French out there.

What do the Americans want to do? They want to pour over the mountains and possess the valley of the Ohio and down to the Mississippi.

What's King George want? Not to have to provide more military defense than he can afford, which at the end of the supply line in the European world is not a very good bet. Americans should have to pay. Well what should we do? Make them pay taxes on molasses. Well you can't make them pay taxes on molasses cause the juries won't convict smugglers. Ok screw their juries. The logic is inexorable.

What could we do? Well we could use the vice admiralty courts. We could try people in admiralty for maritime offense including maritime offenses against the revenue laws. No juries in admiralty.

Let's drag them to Halifax. Convict them there. Merely the threat is sufficient to overturn everybody's apple carts. In NY you merely talk about the Governor revising jury verdicts by turning them into an equity court and it pretty much basically facing a strike by the lawyers and a walkout by the bankers. Nobody will deal with you for such things. Jurors sacrosanctity has to do with the belief that they can localize the revenue law of the empire; otherwise, there is taxation without representation, and no liberty according to law. Otherwise, they are deprived of the rights of Englishmen. They have a right to determine in their representative legislatures how much they will be taxed and by whom. If Parliament insists upon insisting upon the supremacy of its right to levy confiscatory taxes that will suppress the entire trade, there is no reason why they should be compelled to knuckle under to foolish legislation. If you set a tariff that nobody can afford to pay the trade will crash. EVerybody will lose. The port cities will go dead. Nobody would be stupid enough to suppressing the entire trade of the east coast of N America in order to make a point about the rule of law. That is, nobody would be so stupid except Thomas Jefferson.

Who's going to do it in the first decade of the 19th c and he's going to ruin the economy in consequence. It's a decider is Massa Tom. He's a decider. Unlike more recent deciders, every coin doesn't come up tails but mostly they do.

So they're heading for a collision that is not going to be readily avoided and both sides fundamentally believe that the other side is trying to escape the rule of law. And so the conversation that they're having is essentially a legal conversation because it's about two things that should never be discussed except by well trained lawyers - constitutional theory and political reality.

They, at least, have the justice to admit that constitutions don't look forward. They only look backward. They're fundamentally conservatives. They're basically saying "You can't do this. There have been rules for 500 years that say you can't do this." Americans are not taking revolutionary positions. They are busy arguing essentially antiquarily legal propositions. You can't do this, it's against the tradition of our people and our law. You made a deal with us when we came to the N American continent. You made a migration compact with us. You made a deal in the sense that you guaranteed us the rights of Englishmen. We have vindicated those rights. We hold those rights by custom. We hold those rights by authority. We hold those rights by contract. You can't take them away from us. Parliament says "WE're supreme." That's what we fought the wars for. Did you notice we won? Do you understand that the monarchy of England is now an elective monarchy? DO you understand that we have hobbled the crown by rules that we have made? Do you understand it is our statutes which determine the content of the constitution? And do you understand that that which is not constitutional is not therefore, illegal? WE determine what is legal. Constitutional is some kind of merely an expression. Parliament's realistic. The Americans are dreaming.

But they think they have rights and they have a damn good question which is Stalins question: How many divisions has the Pope?

So it's going to come to that. It's going to come to that one way or another.

The victory over France is the proposition which pushes it. The only thing better than being an empire which wins a war which almost always involves its dissolution, the only thing better being the empire that loses the war.

SO what's about to happen? The French lost the world war. AFter 1763 they're out of India and N America. Now they're going to win it back or die trying.

As I have pointed out, the French king has a problem. He has power sufficient to extract revenue sufficient to cuase debt sufficient to collapse his social order. If he resolves upon doing it it will happen. But of course, he believes his social order is eternal because never has any French king administered a degree of oppression to the French that he couldn't get away with, yet.

The British empire is in a much weaker position and therefore it has won. And it will die of its victory pretty munch the way that the US will die of the victory it had over the Soviet Union and it is beginning to have already the experience of. The decay results from the victory.

English imperial policy becomes directly contrary to American understandings of constitutional propriety as it becomes incompatible with American understandings of political reality. The problem is that the Americans are unable to unify themselves to make that good. The only thing they can do is win by disunity.

The point of coercion is going to be Boston, nobody doubts that. As you see, essentially, that's what happens. The rule of law crisis in Boston ultimately is the coercion of Boston. The Ports Act, the Massachusetts Government Act, the Quartering Act. In fact, both the first and second Quartering Acts, but I had the act of 1774 in mind. If you want to understand the structure of the legal give and take and the statutory responses of the British empire to American resistance the Gibson coming of the Revolution that I offered you is recommened reading is the locus classicus for this generation. IT's a good account. Best way of understanding that particular piece of the story in a short compass. But the essence of it is the one I've given you. Two things are the pivots on which this turns: the attempt to coerce Boston by everything including in the end military occupation and the closure of the courts, which yields the kind of thing you're going to ultimately have - shooting in the streets.

And the question of the Ohio Valley which is ultimately going to be answered in the English view by the Proclamation of 1763 saying that the Americans cannot move west of the mountains and the Quebec Act providing enlightened imperial administration of Quebec. The Quebec Act is the best thing done by the British empire before the dominion for Canada in 1867. It is an enlightened 19th c imperial policy. Let people have their religion and law, give them limited self rule, encourage them over time to become independent. It's all the things that enlighted 19th c imperialism is about among white people. Therefore, it is totally an anthem to the Americans. Tolerate Catholicism? You must be jesting. Where's all this religion toleration? It's the Union of Protestants. They have no intention of permitting Catholics any kind of legal privilege. That's out of the question. They're tools of the Pope. In NY in 1741 they're going to burn a man alive they think is a Jesuit priest who has come to cause their negros to rise up burn and kill them all. He's not a Jesuit or anything. He's not Catholic. HE's an Englishman. He has nothing to do with any plot to destroy NY but they're not going to allow as the Attorney General of NY tells the jury that these simple unthinking brutish people could have devised a plot to take over NY all by themselves. They had to be white people organizing it for them and this guy has to be one of them and he has to be a secret Jesuit because that's where evil comes from.

So no of course they won't tolerate Catholicism out there in the Ohio Valley, call it Quebec. No they're not going to allow the heathen civil law.

There are no juries in the civil law. You're not going to take juries away from us in the Ohio Valley. We have the rights of Englishmen and we carry them west of the mountains. No we're not going to allow the presence of some independence Quebec on the other side of the mountains. We have charters that say that our land was given to us from sea to sea and even though we have no idea where the sea is it's obviously not between here and Ohio. So we have claims. We are granted this. You can't give it away in some statute you make in London. You certainly can't give it away to Catholics. You're out of your fucking mind. We would go to war before we'd let that happen. Where's our gun?

So the British learn that occupying Boston is a bad idea. You can't coerce them by putting soldiers down on top of them They'll actually shoot back. The empire loses a army in Boston. Now the jig is up. Let's go take that army and occupy someplace in N America where we can put the iron fist down on Boston again if we need to. But where we won't have all that trouble. Let's go take NY.

Washington tries to stop them but he's only got one army. He'll never have a second army. He cannot afford to lose that army. They chase him off Brooklyn Heights where of course the hope is you can control access to the harbor enough to keep the army from landing. They chase him off and run him up Manhattan stopping here on Morningside as you know because it's a good place on which to shoot back while running.

Stay a night at the Quaker Morris's house up on 163rd St. Still there. Aaron Burr nearly died there, married rich, then had to leave again cause she threw him out. He'd done her wrong. They kept the bed G Washington slept in. You understand, even then Burr doesn't think particulary well of Washington. He was a Quebec.

But the widow is not going to throw away a bed slept in by Washington. That's like when the emperor Augustus stayed. So you stay one night in the Quaker Morris's house and you push your army up to Whiteplains and then quick across the river into the Hudson highlands where the folding of the ground makes it absolutely impossible for anybody to come after you anywhere ever. They think to themselves we should put offices training school here. This place where the Hudson highlands meet the river. This Westpoint. It's a critical place. If you can hold that you hold the interior of the continent. The British can put as many soldiers as they wanted in NYC. You hold the Hudson highlands they can forget about it.

So Washington's going to put the very best and most assiduous hardfighting general he has there and tell him "Hold Westpoint." Benedict Arnold says "Yes sir I'll do that."

Which is why that's the only place where it's really important for a secret sevice engagement to be fought. Major Andre's doing the only thing that really matters.

Buying the general holds the one place on the continent which you cannot possible afford to have remain in George Washington's hands. The Hudson highlands fall, he can race around NJ all he wants because what he's doing is saying "I'm going to turn this into a war in which your only conceivable objective is the army in the field." I'm going to run away from you until you drop. Which works sort of.

After awhile. REally it doesn't work at all unless the French Navy wants to spend its substance on you. In the end, you've got to find a way to make 3 things combine. You've got to find a British general stupid enough to put troops in a place where there's no way they can rescue themselves unless lifted out by water. You've got to have temporary French naval superiority. And you have to have enough troops to pen the British up in whatever foolish place they've put their backs into. Of course, if they've got two armies in N America you've got to find a general stupid enough to lose the other one first or second. Fortunately, for them Borgoyne is available and at Ticonderoga they bag one. Getting the second takes a long time.

Mostly because getting French naval superiority off the AMerican coast is one of those guessing game problems. Who's going to go where next spring and where should we send our fleet? What if things go wrong down in the Caribbean what should you do next? So you're really waiting for a French admiral to get a serious fleet out to the islands one early summer and discover that there's nobody there. The Brits are doing something else. Oops they must be up on N American coast somewhere. Now, which are my real orders, the French admiral has to say to himself. Are my real orders to stay down here and bag another good island? Or should I go chasing after them in N America and see what I can do up there?

On the whole fate of the whole future of this supposedly very well thought through business that thing depends now on the French admiral. So one summer you get a guy who thinks to himself Ok I'm going up to N America to see what I can do. Which would have been nothing if he hadn't had the other pieces fortunately in place.

British navy blown off to sea by storm off Newport. Supposed to be down in NY lifting Howe down to VA so he can support the idiot Cornwallace who looks like he might be getting himself into a problem plunging ahead. And Lafayette and a few rifelmen off with him raking around in VA trying to figure out his way to the highway. All of a sudden magically everything comes together and Lafayette signals Washington. They're down here and they've moved to the wrong side of NY. Now they're on the neck at Yorktown and Washington says "Hold them, I'll be there as quick as I can" Suddenly, there it is and the world turns upside down and Cornwallace has to surrender and a second army gets bagged in N America and that's lal the armies the king can afford. Now, of course you have an enormous diplomatic question about how the Frnech are going to try to get themselves back onto N AMerica but they're not going to get themselves back onto N America.

because the Americans are perfectly willing to sell out the French just as the French are perfectly willing to sell out the Americans and it's really about what the terms of independence for the new US are going to be.

French king drowns in debt. So he has to modernize. So he begins political modernization in order to deal with the oceans of red ink generated by the attempt to win the World war which only benefited the Americans in the end. He presses to hard and social order collapses and the world is a better place unless you can find a reason for being against the French Revolution, which right wing English speakers have been trying to do for the last 250 years.

But now you have a geopolitical situation in the US which is an entirely sustainable. The new federal empire of N America aware as it is that it is not necessarily centered on the Atlantic. Aware as it now is that it could be centered on an internal trading structure which is based on the rivers of the center of the continent. The Ohio and the Mississippi. In which NY and New Orleans are the ports at the ends and the whole cycle is constituted by the indivisible content of the river systems of N America. The Americans feel that empire at their back and their concern is keeping it.

I have pointed out how this form of Roman historical analogizing and this form of geopolitical situation and the nature of their constitutional conservatism join together to yield the syncretic mess that we love to think of as the clear eyed founding fathers. The only thing we haven't really talked about is how chaotic that mess actually is when it gets up and running. The Continental Congress is another representative institution trying to be an executive. It has no workable executive. It, too, would be staggeringly corrupt except there's no money to bribe them with. But nobody should be fooled into thinknig that they're any different from any other crowd of human beings. They are also people doing exactly what oyu would expect. The thing is that they didn't control expenditure. The states did because it was state militias lent to the Continental Congress. All they were really doing was doing the same thing that the king was doing walking around in Hesson, Brandenburg and other places - hiring excess Germans.

They're all recruiting mercenaries right? Well, of course those American troops you shouldn't think of them as mercenaries. One: they don't get paid. Two: they're fighting in defense of home and hearth which is exactly the problem. When you take those state militia and try to ship them somewhere else, when you try to ship them from MA defending home and hearth to Savanna to win a siege against the British army, when you even try to carry them all the way to Princeton let alone to VA. Now, they're unreliable mercenaries. They're no different than the Hessians. The Hessians don't get paid either unless there's enough gold to pay them and they're sometimes short. Everybody's in the same situtioan. Nobody has enough of anything. It isn't just the winning the war thing. After all, that just meant keeping an army in the field large enough for the British to beat themselves.

Situation in N American in 1780 pretty much the same as the situation in Afghanistan today. When are you leaving? Not until we win. Well, assume you're never going to win when are you leaving? We'll be here when you're gone. When are you leaving?

Now, of course, empires always try to stay because defeat implies dishonor. Every dishonor implies dissolution. How can you leave Afghanistan when it was leaving Afghanistan which caused your adversary to blow up? So you go on attempting to win a war, the essence of which is when are you leaving? There's no way to win such a war. You can listen to the smartest of your generals and they will tell you some theory how you can win a war, the essence of which is when are you leaving, but there is no way to win a war the essence is when are you leaving.

So the Americans haven't achieved anything very much and they've still got the grand problem ahead of them. They need to possess the empire of the continent. That means they need to be able to keep it from being rested from them. EVerybody knows that everybody's coming back. Americans have no idea the French king's going to lose his ability to govern. Much less an idea that he might be replaced by something even more formidable than the French king. Why should the British navy ever go away? The ATlantic is not the problem anymore. The problem ishow to maintain control of a continental empire while not being in control of the Atlantic.

Oh and of course without being in control of the Mississippi either. That's going to be the real secret issue. That's the one nobody's going to talk about. That's the one that's much too hot to touch. That's going to be a source of every kind of intrigue and trouble until it isn't true anymore.

The only reason it isn't going to be true anymore is that the French king was replaced by someting greater than himself.

But at the moment, all we're concentrating on is the total inability of the Americans for self government. They have inadequate institutions. They got a poorly constituted legislature and weak or nonexistent central executive. They have no understanding than anything larger than the states. States are themselves profoundly in debt, mostly foreign parties. The Continental Congress can't do anything without unanimity even if it has unanimity it doesn't have any way to tax. It can only ask for resources. It's not going to get them.

It has theoretical powers over internal commerce but there's no real power granted and nobody's giving them any.

And of course, it's a completely free hand to any European party that wants to meddle. And everybody does.

What the place needs is a militarized empire. It needs an empire with a central executive possessing a military capable of projecting force and capable of coercing recalcitrant memebrs of the Union because you have to be thinking about coercing recalcitrant members of the Union. You can't be thinking about a Union without the power to coerce. That's the whole problem with the government you have now and what sane state government is going to give you an empire with power to coerce it. Why would they?

Well, there's the Swiss. That's a really helpful comparison you know. The sturdy independent Cantons. That's what we need more of around here. That works if you're on top of a mountain and anybody who wants to kill you has to climb it first. Then you can afford study independent Cantons. Everybody wants to study the Swiss but it's obviously irrelevant. N America is not Switzerland. That's the poiint. Is it Holland? That's not agood story. You mean under the overwhelming pressure of external imperial massacre people sometimes are capable of acting together with enormous crossing of fingers and reserved powers? That's what we have now and look, the Dutch worked for hundreds of years to try to do better than that and they never really could.

That's why it's nice to have a queen. I always found this difficult when I lived there. It was a surprise to me. England has stuff that's only pretend Socialism but it's a republican place with a queen everybody really would just as soon we could do without. Everybody to the left of I don't know what, not even David Cameron, somewhere to the right of the Tory party is secretly Republican. The problem is Holland is the other thing. You have excellent socialism but everybody's a monarchist. Why? Well she's an excellent queen. She studies hard and works at it and really cares. But her son is a certifiable moron and skirt chaser. That's it you have to take the bitter with the sweet. Well what's the sweet? We do have a country right. Gorcom isn't trying to object to common measures anymore. Halda doesn't exist on vetoing the defense budget right?

We don't have to conduct expostulation with N every ten years in order to get the taxes passed. They have something not entirely unlike but it feels more unified. You have a symbol. The only conceivable symbol in America is the virtuous Roman general gone back to the farm. EVerybody knows this. He's also the only person you would trust with the power of the sword because he's so damn dignified. You would act dignified too if you had to wear wooden teeth. No smiling.

No sudden movements. But he's very Roman. Think of all those pictures. They can't help but put him in a toga. This is where he belongs. He has to belong there. You'd have to invent him so you do. He's not anything like that but you can make him feel like that and you need to because you could never do it except that way. And in truth, he actually has gone home. He doesn't really want to do this. There's only one thing that could bring George Washington into politics. Only one way that you could possibly get him back into politics. The only thing you could do is tell him "George, the American Revolution is going on." and then he would save no expense to get in there and stop it.

The only thing he is absolutely committed to is being an AntiRevolutionary? . Nothing else would draw him into politics. What you have to do is tell him "George it's M's revolt. The cannis of Naples have risen and fishmongers are going to execute aristocrats in the street" In order to subdue the mob, general Washington would be willing to get into politics but for nothing else because he has his dignity to preserve.

So you will have to fool him into believing that the American Revoloution is going on in which case, he will help you to stop it and he will lend you his credibility and you can build a militarized empire.

But how do you convince Anakin Skywalker that the Jedi are trying to take over the galaxy?

All this imaginary politics. Well, first of all, you have to be the men around Washington - the officers he trusts. No Othello without Iago. Here he is. This is his moment.

So there's Iago and there's Colonel Henry Knox, let's say, a great young general of artillery. Of course, there's all this chaos. All this breakdown, fanfaranade, these regulators in Carolina. These wandering anti creditor revolutionaries. All the ferment of the stirring up of a society that's been through a civil war for 5 years. And there's constant pressure from Iago and the brother officers for General Washington to come to one of their endless conferences for the reformation for the Articles of Confederation, one of their endless get togethers for the political classes and the military to get together and decide to do something about all this hovering chaos. In 1788, they tell him no "really boss the Revolution is coming. You have to come to Anapolis and open the conference with us on Union adn a stronger set of measures for finance and defense" and Washington says no and doesn't show up. The Anapolis Congress too collapsees because you can't do it without the figurehead. Nobody will trust you with the power of the sword. You're Iago for fuck's sake. Everybody knows you.

You've got this crap in western Mass, this Daniel Shays, this bologna, farmers with pitchforks tellingyou about how everything belongs on mortgage to the bankers in Boston and the courts in Pittsfield are nothing but the tools of Boston. Everything belongs to Adams and State St and stuff like that. We should get a fair deal and there should be mortgage relief and we shouldn't be losing our farms and who are these creditors anyway? So they talk good. They talk like revolutionaries but how many divisions has the pope? You could beat these guys in an afternoon even with the little bits you have. You could slay them all, it wouldn't be a problem. You could mop it up in a week.

So they spend the summer, late spring and early summer of 1787 after the collapse of Anapolis the winter before, they spend the spring and early summer of 87 in very slow motion chasing Daniel Shays. Colonel Knox and Iago himself.

Not to win too quickly. Takes them months. Emitting a constant streams of warnings to Washington. "General, it's really happening. This guy he's really dangerous. The American Revolution is coming! Meet us in Philadelphia at the end of the summer. We gotta do something about this." This time he falls for it.

So come the summer of 1787 there they all are.

We have to improve the Articles of Conferation. We have to provide ourselves with a stronger system capable of laying national signposts and controlling national borders, raising an army, making and coining money, and incurring debt.

We need a system capable of enlisting the bankers by getting them to load us money so they will have control. We need a system capable of taking all actions necessary and proper for the defense of the empire.

We need to form a more perfect union.

So the principle is that they're going to talk, these merchants and officers, lawyers and they're going to recommend improvements in the Articles to the Continental Congress. That's all they're allowed to do. You see they have no wisdom about the future. The future? Who's got time for the fucking future?

Their job is to create a military coup now. Their job is to find a way to support a military industrial complex. Their job is to find a way to take the process of getting a debt and paying it off with the income of manufactures to produce an army to possess a continent to put the state government under limits and the prevent the contined interference with just policy by holdouts. It's not fundamentally very different from what William III was doing between 1689 and 1695. It's principles are the sasme. The debt the army and of course the window dressing of respect for rights. You don't have to be shooting people, putting people in prison. You don't have to hold a lot of political prisoners, you just have to hold the levers of power - the debt and the army. Everything else will work itself out in due course.

And you've got the one thing you had to have. You have Washington.

So there's weeks of digging around and bullshit yadayadayada and on the 18th of June Iago stands up and he sings the Aria he's been waiting to sing. Hamilton's plan.

You can feel it in the eights and you can follow the moment in Madison's notes. He finishes speaking and everybody looks at him and they think you are even more dangerous than we thought you were so first thing we're going to do is make sure you are never in power. And then we're going to work on the details. But the first thing you know is it's going to be really hard to make anyone Pres of US even though they know it's going to be Washington and the second thing they do after June 18th is they're going to see to it that Alexander Hamilton cannot be Pres of US under any circumstances and they figure out how. Nothing is easier to hold than that the Pres of US has to have been born in the US. If St. Kitts had come and sought admission to the US they'd have said no.

because that must never be allowed to happen.

And I think they're right. You got to have enormous respect for him. He's a very bright man, capable lawyer, excellent politician and he knows a lot about finance. He's a Wall St guy. Well, not as much a Wall St guy as Aaron Burr whose got that lovely little house at the corner of Maiden lane and Nassau St. EVerybody talks about it. With the great barber in the backyard where they used to sit on summer nights. Hamilton does terrible things. Admittedly, Mrs. Reynold's husband was a badger game but Mrs. Reynolds wasn't the first Mrs. reynolds.

And the little slimeball publisher that Hamilton keeps in his back pocket for libeling Jefferson - Mr. Calendar. He's the one who starts the rumor that couldn't possibly be true that Thomas Jefferson's getting a little bit from someone he owns. He's got family from that. Nobody could possibly believe a thing like that and Mr. Calendar eventually goes to work for Mr. Jefferson and then we find out about Mrs. Reynolds. Nobody could believe that either. Mr. Calendar is a man who makes a very dishonest living telling the truth as it turns out.

Not all the time, however, only occasionally by accident. Even John Ewe is right twice a day. So, you gotta say Alexander Hamilton has everything you could possibly want in a great leader, including military experience and a uniform he can still almost fit into.

But they know Roman history. They know Roman history like they know no other history. So they know Alexander Hamilton. That bastard from some obscure place in hither and yondville who makes his way to the center of the empire and rises by ass kissing and general competence. Who gets himself into the right places at the right times and then suggests his way into total power. They're not having any and they're right. That's who he is. He's an adventurer. He's the greatest adventurer of his time in this quadrant of the galaxy.

But they're glad when Burr shoots him. They're glad it's over. If you go to Trinity Church garden some days you're a little suprised there isn't a stake pushing up through the turf.

But they got the USA. They have the deal. By the end of the summer they've got a deal. Only thing is, there's not a chance in the world that the Continental Congress would accept it. Nobody's going to take this. It's not going to be legally done. So you got to announce you're basically going around the CC. You've decided to change all the rules. You've thrown a thing in the document that says if 9 of the 13 legislatures accept this then it's going to happen. You basically made your own new rules for how your coups going to work and now you're going to take itout there to the state governments. There's no pretense that you're acting legally. You're not acting legally. You're obeying the law of higher necessity.

State legislatures may decide that they have to hold ratification conventions but that wasn't the position being taken by the convention itself. They didn't care. They'd a been perfectly happy if the governors signed on for the state legislatures and nobody had ever voted on anything. There are however going to be elections. As I say, the crucial question is can you get a NY to adhere? Hence, you need propaganda and Iago who's very eager to make the propaganda. Iago's a bright guy. He doesn't just have James Calendar working for him. That's just his low ranking PR.

Iago is the founder of the NY Post. They used to keep his silhouette on the cover of the newspaper everyday. Mrs. Shift's husband kept it there. Mrs. Shift kept it there. Rupert Murdoch doesn't like having the silhouette of anybody else on his newspaper so the NY Post no longer runs the silhouette of its founder Alexander Hamilton on the front page everyday.

But that's Mr. Murdoch - an adventurer if ever there was one, though he doesn't look good in uniform and he's not much of a ladies man unlike Iago.

They've got existing problems to solve and those existing problems have to do with the fact that people don't want a militarized empire. In the end, the states have to believe that they stand to gain.

And Iago has a scheme about that. He's good with finances. The states are going to agree because they're going to get their debts assumed. So at a blow, they're going to be out of the red.

In return, they're going to seed their western lands claims, none of their existing holdings, to the imperial government which is going to acquire all the land out there wherever there is and whatever it turns out to be.

In return for providing that the bankers in NY and Philadelphia, rather than the states, will hold the primary power in the federal empire because they will be the holders of the debt which used to be the state's debt and is not the debt of the federal government which Iago will be very close to. Of course in fact he will be the Sec of Treasury. Iago isn't interested in being Sec of State. That's a job which might be useful if there were a secret police to run. The assumption is that Sec of State is the Sec of Staet's job in the British empire which means the hand that writes the signatures and applies the seals to the orders and also controls secret police functions. But Iago knows there isn't going to be any secret police. So in fact, he thinks even though it is close to the presidency in some sense, it would be a weak and unimportant office. Particularly, if it could be held by somebody George Washington doesn't like. Aha! There's a spot for Massa Tom. That would work. He wasn't here during the convention. He had nothing to do with authoring this. He's not going to press it forward in VA. He's really not for a military empire mostly cause he knows Iago's going to be close to the top of it and he can be forced to go in on it and hand his weight to it using an office in which General Washington will have the gravest of reasons for keeping him totally powerless. Bingo! Iago wins.

He will take the only ministry that really counts which is the one that runs the debt.

later of course when all this is over he will be a memorialized in the best of the buildings of Washington across the street from the Whitheouse. Nobody closer to the secret antiaircraft missiles hidden under the Whitheouse than the Sec of the Treas.

And the report on manufactures is the genius plan. It is how you use the sinking fund and the presence of a national debt to sustain manufactues, commerce and the army. IT's a great state paper.

But the real problem is making good on this, making it work as a fashion for raising the empire for possessing the continent, for preventing European meddling in the system.

And meantime, General Washington is setting his dignified paces. So this is a plan. This is as far forward as you can look. This isn't about the way the system will operate. Iago isn't concerned about the system. General Washington is not concerned about the system. Massa Tom's in Paris doing whatever he does in Paris. Aaron Burr is watching but all he wants is to win the elections in NY and win his way towards to Presidency of the US. Iago won't have that but that's tomorrow's problem. Only thing dangerous would be if Mr. Burr teamed up with Massa Tom. That doesn't seem very likely.

Massa Tom is not anxious to team up with Mr. Burr. Mr. Burr is almost as devious and unreliable as Massa Tom. That's a marriage made in hell. EVerybody can see that.

The fact that it's going to win the Election of 1800 in the worst way possible so that you need a consitutional nuance to tell whether it is Massa Tom or Mr. Burr who is Pres of US. THat's not an intentional outcome. You have to understand that these guys can't see any further than next Thurs afternoon nor are they trying. Their concerns are backward looking. They are winning the last war. All of their language. Take it where you please from Article I, Article III, from how they plan to run the empire. Take it from a legislation from the first congress including the Bill of Rights. Take it where you please, they're cutting and pasting out of the constitutional history of the wars between 17th and 18thc England. They are trying to arrange the constitution of the British empire according to their view of how it should have been.

They're supposed to be thinking about what the great great grandson of a rum boiler in NY might want to do with the sick chicken code? They're supposed to be imagining an empire built on railroads using steam engines? They're supposed to imagine the consequences of a possibility of a national bank? They have nothing to think about any of these things. They're not the types. Even Massa Tom who might be interested in steam boilers is not going to be interested in all of that.

Gentleman, you remember Jack Kennedy said when he convened all the winning American Nobel Prize winners for dinner at the Whitheouse in 1962, "Gentlemen, this is the most intelligence that has ever been collected in this room since Thomas Jefferson dined here alone" Bullshit. But he as good at bullshit right?

Massa Tom's not thinking about the 22nd c. He's not an alien genius. He's a grownup liar. He's the guy who's trying to force people not to remember that when Governor of VA he ran away from the British army. He's still trying to live down the fact that he had an exceedingly bad war. That's what Paris is good for. When everybody wants a man who looked food in uniform and had a good war, Mr. Jefferson would like to be in Paris.

They're not thinking about how we would handle an empire in the Philippines. They're not even dreaming of CA.

They want what's west of the mountains. they want the valley of the Mississippi. They don't want Spain to have it and they don't want France to have it and they don't want England to have it and they assume that one of these winters even if they didn't get it in the war they'd find a way to drop Canada in their hands because there's nobody up there. Just Catholic scum.

So, their concerns are imperial and immediate. Their constitutional law is old and getting older. They're trying to restore within this system a balance they didn't have before but they're not really in favor of state governments. They're in favor of the idea of the state governments.

And everything is hedged round. None of it is hedged round enough because nobody really wants this empire. They just want their debts paid.

And so when the people have elected a House of Rep and the states have elected the Senate - that's really how it's going here - the first thing you need to do is make sure that the deals the states make within their borders aren't going to be overturned by federal executive or congressional activity and so you make what you would make under those circumstances - a Bill of Rights, which really means a bill of restrictions on the national federal empire. Congress shall make no law, you say.

And then you say the stuff about Congress shall make no law. You are not talking about nobody shall make no laws interfering with other people's human rights. Don't even begin there. Congress shall make no law respecting the establishment of a religion. What does that mean? The states have made laws respecting the establishments of religion and the national empire may not disturb them. Well of course they've got established religions. The Anglican church is established as firmly in Virginian law as the congregational religion is established in MA. Yes it is true Macetom and Mr. Madison have just huffed and puffed and carried a religious freedom law through the VA legislature and don't expect anybody else to be too quick about adopting it.

But that doesn't mean anybody else is supposed to move off the dime. Congress shall make no law respecting the free exercise of religion. That doesn't mean the states may not punish blasphemy. They do. Nothing to prevent you from hanging a Quaker in MA even now, except that you wouldn't want to have to deal with the anger of PA.

Nobody shall be forced to accuse themselves in the courts of the federal empire? Yes indeed. which has nothing to do with the fact that you're beating confessions out of people in NY, VA, or MD or anywhere else.

Cruel and unusual punishment shall not be inflicted. That certainly means you shouldn't mutilate white people. But a rule against mutilating black people made by the federal empire? You must be joking. A day without mutilated black people in VA or MD is a day without sunshine. How are you going to get the work done? We are calling this a Bill of Rights. But we are trying an experiment that wasn't tried in England in 1688. We are passing a thing we call a Bill of Rights in a nation of slavery.

English didn't do that. They are imitating an old model under new conditions.

Those new conditions have to do with the fact that this is not a deal if it is going to have any effect on mitigating our ability to dispose of our property as we see fit in slavery down here.

Save, of course, for one very important element. After 1808, the US Congress may do what VA will want it to and give VA a monopoly on sales of slaves to the rest of the empire. That would be called eliminating the Atlantic Slave Trade after 1808. The deal is VA will wait one generation and then it will install itself as the monopoly supplier of slaves to the empire which is the Virginians longterm economic interest. Tobacco is not going to be the big business of the 19th c. They can see that. Their big business in the 19th c is real estate development and breeding slaves for export so after 1808 they will be able to invoke the power of the empire to make that monopoly. SC will come in on the basis of protection against the law for its fugitive property. That is, a rule that everywhere in the empire they can get their people back if they run away using the power of coercive law of the empire itself to recapture their slaves. And if they have one generation of protection against the Virginians' attempt to force them to buy VA human beings instead of stolen African human beings. This is the Bill of Rights.

And the constitution of the US made by the farsighted framers. This is the celebrated document in which they understood the meaning of the human future more clearly and more deeply - so clearly and so deeply that even Akil Amari is awed at how smart they are. Give me a fucking break.

They're practical people. They know what they want. They want more money and more power. They cannot have it in a society falling apart or if they live in a place constantly busted up by the intrigues of empires. There is a continent out there to win and they are determined to win it.

If they think that slavery is the devil. If like poor Massa Tom they tremble for their country when they reflect that God is just, they show no sign of it. They would do a deal with the devil to possess the continent. They know they're doing a deal with the devil to possess the continent. They can see Iago across the rooom. You think that maybe the Pres of Venezuela was right that there was a hovering smell of sulfur after George W. Bush left the podium at the General Assembly. I do not. Mr. Bush is not a character made of brimstone. He's just a moron. Iago? He is made of fine stuff. Whatever devil made, Alexander Hamilton should be very proud of the work.

They don't have any doubt about what they're getting themselves into. They do think that chaos is worse. They do think that democracy is worse. They do think the mob is worse. They do think self government would be a bad thing and they know that debt equals control. And they want to hold the debt.

But the legal instruments they have available for organizing power are familiar. They look backward. And like any group of people engaged in trying to get a complex political deal made they are very careful not to talk at all about the most important things because if you talk about them you won't get your deal made. You'll leave the really hardest stuff to work itself out in practice hoping that you have set up the thing so that it will work for you.

I said long ago when I was in another law school that eery law school should have a building in it named after Tholonious Monk because it's the notes you don't play which are really crucial in the world.

The gravest error in all of the hill of errors beginning to end that is so called constitutional law, the gravest error is believing that the way you figure out what a document means is to pay attention to what it says. That's never more than half the work. The other half of the work is figuring out what a document means by dealing with what it doesn't say. If you really thought these people were human beings making political arrangements, you'd ask yourself among other things what are they talking about? What are the big things that would break the deal that they're leaving undiscussed so they can deal with it later under safer conditions once the deal is in the bag? You know under the circumstances that they are placed in making a difficult negotiation with an uncertain outcome that you want to discuss only as many propositions as are necessary in order to complete the deal and the last thing you want to do is bring up the breakers.

So the one thing you can be sure about is that constitutional law begins wrong because it assumes there'snothing being talked about except what's being written down, which is an obviously inaccurate way of thinking about any social process involving lawyers. I spent most of my practice week from Mon-Fri trying not to write down things right? I was thinking in my mind this morning how many of the pieces of email I got yesterday in my practical life I could turn into telephone calls today so there would be no record anywhere of what that email ever led to.

That's why lawyers in our society have a phrase which is pick up the phone. They understand that just as well as we do. There are things you can't talk about on the record, even the secret record, even a record that's supposed to be secret even after the secret's already exploded. You just don't talk about them. So we should think about this transition from the federal empire of the British empire to the federal empire of the US not only by thinking about what they wrote, but also by thinking about what they didn't write. In order to do that, we basically have to take the constitutional law case books and flip them because the cases that really matter are the cases that don't happen. That cases that really matter are the cases you don't bring. The disuputes that really count are the ones that don't get to court and the resolution of those cases is the one you can't see. This is the historians problem. We must live within the corners of documents and the problem with documents is that they are written by people not telling the truth.

Those are tolerable problems. We can deal with it. But the way to deal with it is not to create a system in a way in which you think the authors documents are supernatural people with extraordinary vision and a complete ability to plan and total sincerity and no interests behind the veil of ignorance thinking perfect thoughts about a perfect union resulting in a perfect constitution.

And I'm just thinking of the titles of Henry Monahan articles when I make the sentence. It's all bullshit. From beginning to end it's bullshit. It has nothing to do with the world that was and therefore, it has nothing to do with the world we live in because the world we live in has no relationship to the world of the perfect framers of the perfect constitution because there were no framers of a perfect constitution. The world we live in is the present that came after the past and that's all.

Nothing more.

See ya in a week.


Webs Webs

r2 - 12 Oct 2011 - 22:21:58 - NicholasRodriguez
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