On the Role of Courts in Foreign Affairs

Throughout American history, disputes between the executive and legislative branch, in regard to foreign affairs, have often been arbitrated by the federal court system. The established role of the courts in foreign affairs has been rather transient, where the majority opinion has often been determined by the prevailing ideology of that particular court. It is without question that the function of the courts is to determine the validity of the foreign action taking place by either the President or the Congress. The Framers did not textually outline the appropriate role of the courts in foreign affairs within the Constitution; the sole reason was because they were more focused on the proper relationship between the federal government and the state governments with respect to the individual.

The Constitution does not apportion all foreign policy power into only the executive or only the legislative. Furthermore, there is no constraint on the role of courts within the Constitution. When the courts are called upon to adjudicate America’s constitutional role abroad, there is no established precedent in our founding document as to how the courts should react to these controversies. Hence, the role of the courts in foreign relations must be permitted to deviate from any and all precedent and they should be considered on a case by case basis. It seems that more often than not, judicial deference should have been ruled by court system. For when Congress and the President are in collaboration with the policy that is being pursued, it seems as though the role of the court should only be minimal. Judicial deference is pertinent to the American polity because it sustains the natural balance in the Constitution that the President and Congress are the sole proprietors of foreign relations. Yet, the one instance where judicial deference may never be applicable is when fundamental liberties of citizens are at stake.

It is interesting to note that while the Framers may have wanted to create a system of governance intended to limit the role of the President’s authority, the courts have for the most part, decidedly acted in the President’s favor in foreign decision-making. Perhaps the Founding Fathers had intended for this when they scrapped the Articles of Confederation and instead adopted a Constitution which gave the executive branch a stronger role. The Constitution details the President’s clout as having “executive Power” and that “he shall take Care that the Laws be faithfully executed.”

The Prize Cases, decided in 1862, illustrates how the President first began to accumulate power in foreign affairs in the eyes of the Supreme Court. In April of 1861, President Lincoln ordered a blockade on the southern ports of states that had seceded, even though Congress had not yet issued a formal declaration of war. Four ships were then seized before July 13th, the day Congress formally recognized a state of war. The owners of the ships sued for redress claiming that in the absence of war, the President had no authority to issue a blockade. Justice Grier wrote for the majority opinion, “Whether the President in fulfilling his duties, as Commander-in-chief, in suppressing an insurrection…will compel him to accord them the character of belligerents, is a question to be decided by him.”

The courts simply decided that the President ultimately has the final authority when it comes to the security of our nation. Even when Congress has not formally recognized the state of war between enemy belligerents, the Grier ruled that “The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name.” Here is evidence that the early decisions regarding the courts role in foreign affairs is one which abdicates most of the authority into the hands of the executive branch. In my estimation, the verdict was appropriate because Congress had authorized the President the authority to suppress insurrection in 1795 and in 1807. However, I would also go so far to say that the court had no jurisdiction in hearing this case. The ships seized were found with an enemy and belligerent insurrection of the state. The court should have issued judicial deference in this case and established a precedent that challenging the validity of a proclamation from a belligerency that attacked gives to much credence to those who have attacked. The dearth of a declaration of war from Congress was not relevant in this case because the President had an Act of Congress which allowed him jurisdiction in seizing the ships.

In U.S. v. Curtiss-Wright Export Corp. (1936), the Supreme Court again ruled not only in the President’s favor, but also in the Congress’s as well. The defendants of the case, Curtiss-Wright Export Corp, sold arms to the Bolivian government after Congress passed a Joint Resolution which stated “it shall be unlawful to sell any arms or munitions of war to the countries now engaged in that armed conflict…if the [President] makes a proclamation to that effect…” The armed conflict in question was between that of Bolivia and Paraguay. President Roosevelt issued a proclamation supporting the Congressional Resolution therefore making the sale illegal. Curtiss-Wright Export Corp. claimed that Congress had unconstitutionally delegated legislative authority to the executive branch. Justice Sutherland argued the majority opinion and claimed “It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution” In other words, the federal government has inherent or implied power in the realm of foreign affairs which is not expressly written in the Constitution. Indeed, I not only hold the belief that this decision was appropriate, but I also believe that judicial deference would have been in fact more fitting for this case. Under the circumstances prescribed, whereby the Congress has passed a Joint Resolution and the President, pursuant to the Resolution, issued a proclamation affirming it, the Supreme Court should have deferred the case and not have granted it certiorari.

A comparable case to Curtiss was Hirabayashi v. U.S. (1943). After the United States entered World War II in 1941, President Roosevelt issued an executive order which authorized military commanders to have authority over particular military areas around the United States. Congress then passed legislation making it a crime to violate any order issued by the military commanders. Subsequently, General DeWitt issued a “curfew order” for all “alien Japanese, alien Germans, …” After this order, a University of Washington student, Kiyoshi Hirabayashi, was found to have violated the curfew law and was then convicted of a criminal offense. Here is an instance where the President and Congress have once again acted in joint cooperation to determine the rule of law within the United States.

Applying the measures I have stated in the Curtiss case, it may seem that judicial deference would be the adequate role of the court in this situation. However, this case has two distinctive variables. First and foremost, Hirabayashi is an individual citizen that is arguing for fundamental liberties which our Framers intended us to have not restricted from the government. Second, the case in question revolves solely on the basis of national security during a time of war. Considering the weight of these two factors, the Supreme Court is obligated to hear the case in question. Even if this instance does affirm the government to lawfully convict this man, it is crucial to the sustenance of our republic that all personal liberties be processed accordingly through all three branches of government. Checks and balances are essential here so that not one branch may exert power and influence over the populace. The role of the courts is to not abstain, but to legitimize the other two branches of government by ruling in their favor. If the judicial branch were to defer in the controversy of restricting personal liberties during war, then the precedent set will inevitably expand the power and clout to within the executive and even legislative branches of government.

Although the courts have ruled in favor of the federal government the vast majority of instances, particularly the President, there is the occasion where the President has lost some authority. In Youngstown Sheet & Tube Co. v Sawyer the Supreme Court ruled that President Truman could not seize the steel mills for national security purposes in the midst of the Korean War. In 1950, North Korea invaded the Republic of Korea. President Truman, without a declaration of war, authorized the deployment of troops and air strikes on North Korea for these actions, and received some support from the United Nations. At this time, a crisis and strike was fermenting amongst the steel workers in America. Truman, realizing a strike could hamper the war efforts, issued a seizure of all steel mills into the government’s directives under the guise of national security.

Justice Black wrote the majority opinion and decided that what President Truman authorized was not stated in the Constitution or expressly granted from Congress. Therefore, Truman was unable to take control of the steel mills. Justice Black says in the majority, “The President’s power, if any, to issue the order must stem either from an act of Congress of from the Constitution itself.” Clearly, there is no act of Congress which permits the president to authorize these actions and there is also no provision in the Constitution which allocates this power to the President. While this case is not one which should be decided by judicial deference, it is one which should grant Truman the power to seize the steel mills.

As Justice Vinson noted in his dissent, “But neither did [the Framers] create an automaton impotent to exercise the powers of Government at a time when the survival of the Republic itself may be at stake.” In short, the role of the court is to allow certain prudence into legal thought when our nation is at war. To rely on the text and statute alone would be to handcuff the President in defending this nation at all costs. The court needs to realize that the Framers could not have foreseen the extraconstitutional powers needed for the executive branch in a growing global world of interconnectedness. Thus, the Supreme Court ruled improperly in this decision, and was liable for the inadequate supplies abroad if our troops were fighting without the necessary components to survive.

A well-thought out concurring opinion was delivered by Justice Jackson. He broke the authority of the President down into three categories: 1) Congress is in agreement, 2) Congress is silent, and 3) Congress is opposed. He believed that this case belonged in the third category. Justice Jackson says, “[The Fifth Amendment signifies] about all there is of the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.” Jackson is correct in determining that the role of the court in foreign affairs is to adjudicate under existing rule of law, yet this absolutist viewpoint, as stated earlier, restricts even the most bizarre circumstances which can never be foreseen. It is in this regard that I disagree with Jackson and argue that the courts should allow for leniency and prudence when ruling on the President’s authority during wartime or national security crises.

In Dellums v Bush the District Court under Harold H. Greene’s opinion made the correct decision in judicial deference. Fifty three members from Congress and one Senator requested that the court issue them an injunction forbidding President Bush to authorize an offensive attack on Iraq. Greene did not issue the injunction and argued that, “In short, unless Congress as a whole, or by a majority, is heard from, the controversy here cannot be deemed ripe; it is only if the majority of the Congress seeks relief from an infringement on its constitutional war-declaration power that it may be entitled to receive it.” By all accounts, this was not only the proper decision to make regarding the case, but it was a necessary one as well. Had the court issued the injunction, the legitimacy of the whole of Congress and the President’s authority to be “Commander-in-Chief” of the Armed Forces would be in jeopardy. In fact, roughly one month after the judge denied the injunction, Congress authorized the use of force in Iraq in conjunction with the UN Resolution. This authorization is exactly why Judge Greene did not usurp Congressional authority and deem it relevant when only 53 House Representatives and one Senator had come forth with the request. The judicial deference in this case was appropriate to the responsibilities of the court and upheld what the Framers had intended.

In the instances where the government detains an enemy combatant during a time of war, the Supreme Court has the inherent right to determine the legality of the detainment. During the Civil War, Lambdin Milligan and four other individuals were accused of planning to steal Union weapons and free Confederate prisoners of war in Indiana. They were sentenced to hang from a military court but were able to bring their case to the Supreme Court. The Supreme Court basically ruled that the suspension of ‘habeas corpus’ was legal, yet if there were civilian courts operating upon his detainment he could not be tried by a military tribunal. The role of the court in this case was intriguing. It seems as though they overstepped their boundary and authority by ruling that the suspension of habeas corpus was legal, considering Congress and the President had authorized it together.

The Supreme Court was in fact in its proper jurisdiction when rendering the decision upon where Milligan was to be tried at. Justice Davis argues for the majority, “One of the plainest constitutional provisions was, therefore, infringed when Milligan was tried by a court not ordained and established by Congress, and not composed of judges appointed during good behavior.” Justice Davis is making the argument that a military tribunal is not apt for trial of a citizen when civilian courts are operating. This decision was exactly appropriate for the courts to decide as there was no statue given by Congress and there was no Constitutional provision for it giving the President the enumerated power.

In Hamdi v. Rumsfeld, the role of the court was accurate in its decision to rule and negate judicial deference. Hamdi was a US citizen before being picked up in the battlefield in Afghanistan fighting for the terrorists. President Bush deemed Hamdi an “unlawful enemy combatant” and sought to detain him indefinitely. The Supreme Court held that Hamdi as a U.S. citizen could be held as an unlawful enemy combatant in indefinite detention. However, they also ruled that Hamdi be allowed to challenge the factual basis of his classification as an enemy combatant. Justice O’Connor argues, “Our opinion finds legislative authority to detain under the AUMF once it is sufficiently clear that the enemy is, in fact, an enemy combatant.” The Supreme Court could not have been more correct in its verdict. Establishing the authority for the president to suspend habeas corpus using an interpretive Congressional Resolution (a Resolution which could or could not be relevant to President Bush’s case) was in fact in the perfect jurisdiction for the court to rule a verdict upon. Judicial deference is impossible in this situation because of the differences of opinion in the actual legislative goal of the AUMF, as it was considered irrelevant by four other justices.

The Supreme Court was also correct in establishing its presence in regard to Hamdi being able to challenge the authority of the President in a court of law. It is only solely up to the President when Congress has in fact ruled by statue that citizens’ cannot challenge the validity of their status as unlawful enemy combatants. Since this is not the case, the jurisdiction and role of the federal court system is to determine whether or not the President has the inherent authority to deny Hamdi a chance to refute his charge as an enemy combatant.

Justice Thomas, a dissenter, argues “That is, although it is appropriate for the Court to determine the judicial question whether the President has the asserted authority, we lack the information and expertise to question whether Hamdi is actually an enemy combatant, a question the resolution of which is committed to other branches.” It seems as though Thomas is circumventing the outcome of the decision in which Justice O’Connor prescribed. The courts role is not whether to determine if Hamdi is in fact an enemy combatant, but rather to determine upon whether Hamdi can challenge this essential opinion of the federal government. It is a dangerous path to embark upon when the Supreme Court uses judicial deference in determining the outcome of civil liberties for US citizens. The other branches will still be determining Hamdi’s status, only they will be doing so in a court of law where Hamdi is to mount a defense for his actions. The idea of judicial deference in the Hamdi case is absurd and the Supreme Court acted with precise and accurate rulings.

In conclusion, the role of the federal court system should be one based upon some restraint. While it is important to adjudicate controversies to maintain the checks and balances, the court should not assert its role as a foreign affairs dictator when Congress and the President have both granted the policy in collaboration. The Framers did not intend for the judicial branch to exert major foreign affairs decisions, and that is why the roles are distributed between the executive and legislative branch respectively. Judicial deference should play a bigger role in the realm of the judicial system, unless it is of extenuating circumstances of civil liberties that permit the court to mandate a decision and not abstain from granting it certiorari. Judicial deference is vital to preserve the Framers intention on government, and to allow the executive and legislative deal with foreign matters which affect our national security.

Marxism According to Stalin

Historical Context:

With the abdication of Nicholas II and the successful Bolshevik Revolution in 1917, a new, radical government was emerging in Russia. Influenced on Marxian principles and led by a radical revolutionary named Vladimir Lenin, this vast empire would soon be known as the Soviet Union. Lenin’s brilliance was acknowledged by all who came in contact with him and he soon would reach the highest stature of integrity a leader could achieve with his fellow Russian people. Yet, his tenure as a leading figure in the creation of a communist state was short-lived, and just seven years after he instigated the revolution, he died of a stroke in the early part of 1924. This led to a series of political infighting in the Bolshevik Party, where ultimately one man emerged as victorious and sole leader of the party: Josef Stalin.

Stalin’s ‘Revolution From Above’: Perversion of Marxism

Although Stalin claimed to be a Marxist, and indeed studied and wrote about Marxism in the years prior to the revolution, Stalin was anything but one. Through his programs and policies Stalin had managed to go against many of the aspects which contributed to the heart and soul of Marxist theory. Stalin’s Marxism consisted of a literal, somewhat distorted realization of this ideological philosophy in which his treacherous ambition clouded all rational judgment.

The persona of Stalin portrays an interesting psychological component to Stalin’s interpretation and execution of his version of Marxism. Early on in Stalin’s life, Stalin had developed an idealized image of himself, an image which displayed his search for glory and his need to triumph over his enemies.[1] Stalin envisioned himself as the next Lenin, and even adopted the name “Stalin” because of its meaning “steel one.”[2] For Marxist theory, the characteristic of a selfish hero amongst the proletariats was to its contrary. Indeed, Stalin’s vision for a new Russia came from his mentality of trying to “outdo” or “emulate” an exalted Russian hero of the past, whether it be Lenin or Peter the Great.[3] And as Stalin so notably makes clear to all, where Peter the Great had failed in his “revolution from above” Stalin would succeed. Stalin’s pretentious attitude and his own altercation of Marxism led him on a new project. This grandiose project which would ensue under Stalin’s self-idolatry reign was his “revolution from above.”

When Stalin rose to power after Lenin’s death, Stalin quickly parted into the Right camp of the Communist Party. The main difference within the two camps in the Communist Party was the belief in the world revolution was the only way to bring about a successful socialistic state. The Left of the party, where Stalin’s archenemy Leon Trotsky ideologically lay, believed that future Communist revolutions were a “precondition for building a completely socialist society in Russia.”[4] Yet Stalin offered a plan contrary to the Left of the Party. Stalin had believed that national modernization, not international revolution, was the primary objective of the Soviet Communist Party. He firmly believed that the Bolsheviks did not need European countries to ignite revolutions in order for Russia to have a successful proletariat revolution.[5] Trotsky and many in the Communist Party felt this was a betrayal of strict Marxist interpretation. In essence, Trotsky thought that the Old Bolsheviks were internationalists, and he began criticizing Stalin for having a dangerous sense of national chauvinism in Russia.[6] To almost any strict reader of Marx or Engel, Trotsky’ position seems to be most precise. In the Principles of Communism, Friedrich Engels proclaims “the communist revolution will not merely be a national phenomenon but must take place simultaneously in all civilized countries – that is to say, at least in England, America, France, and Germany. It will develop in each of these countries more or less rapidly…”[7] Here is evidence which suggests that even before Stalin was to come to power, his notion of “socialism in one country” was already contradictory of Marxist teachings.

So it followed that in 1927, Stalin utilized his slogan of “socialism in one country” to enact his Five-Year Plan. This plan essentially sped up the industrialization and development of heavy industry, and also the collectivization of the agricultural sector of the economy. The prevailing justifications given by Stalin were to help the Soviet Union become self-sufficient; to help the Soviet Union to become adequately prepared to defend itself; and to help the Soviet Union straighten out its own backwardness.[8] According to Stalin, ridding the farms of the semi-private commercial economy under the New Economic Policy (NEP) enacted by Lenin was vital to the socialistic state which Marxists had soon hoped to achieve.[9] Yet, the strict interpretation of Marxist-Leninist theory falls directly contrary to this notion of fast industrialization and collectivization. From this Marxist perspective, the mass collectivization of farms came entirely too early. Lenin had envisioned a state which was much more advanced in its technological output capacity and a state that had transpired culturally through a theoretical “cultural revolution” of socialism and even further, communism.[10] Stalin defended his position against the Old Bolsheviks by taking a Lenin quote out of context, and began criticizing his opponents, such as Trotsky, saying they cared less about Russia than about Europe.[11]

The drive and rationalization for heavy industrialization could only silence the dissenting and opposing masses if Stalin instilled fear within the Russian people. This fear was based on Stalin’s fabricated theory of a looming global war, for which the Soviet Union must be prepared at all times to protect its people. In his 1928 Central Committee speech, Stalin asserted that it would be “impossible to uphold the independence of our country without having an adequate industrial base for defense.”[12] The “war card” was only being used to exploit a political advantage over his foe Trotsky, and Stalin amplified this war scare over and over to all the people of the Soviet Union.
Again, we see a direct contradiction between the actions of Stalin and the writings of Marx. Besides the fact that Marx believed in no one man attaining absolute political power of the state, as Stalin was attempting to achieve, but Marx also was against the psychological manipulative part in which Stalin placed over the people. Marx pictured a state where there would be absent a ruler who seeks prey upon the masses only to place them under his control. Stalin completely threw Marxism out the window with his clever exploitation of the people for his personal gain and power. The exploitation was not one of labor, but of intelligence. The frame of reference for which Stalin sought to rule from existed only because of his ability to regulate his people to adhere to his word; this was the exploitation of the mind and heart of the people.

The other aspect of Stalin’s Five-Year Plan was the collectivization of all farms. While this decision proved to be disastrous for the Russian peasants, the most interesting factor surrounding his rationale is his actual interpretation of Marxist theory. Stalin had believed that expropriating the land of the peasants must be done so by a use of coercion from the state itself. He had taken what Marx said literally, and many in the Party believed, including Trotsky and Lenin, that this was not true Marxist teaching.[13] If we observe what Marx actually wrote on the subject, Stalin’s decision to collectivize the farms was indeed an aspect of Marxist teachings.
In the Communist Manifesto Marx proclaims “Of course, in the beginning, this cannot be effected except by means of despotic inroads on the rights of property…”[14] Marx goes on further and says “The proletariat will use its political supremacy…to centralize all instruments of production in the hands of the State…and to increase the total of productive forces rapidly.”[15] At first glance, it would seem that what Stalin actually did was exactly what Marx was preaching; that is, taking away private property which the NEP had given them and to centralize the production in the hands of the state, all the while attempting to rapidly overproduce heavy industry. However, if one were to take Stalin’s interpretation, it would mean one would have to ignore the foundation Marx had laid for this process to even come about. Prior to Marx declaring these statements above, he set the pre-requisite for this change to occur, which included the proletariat already in the position of the ruling class. Marx says “…the first step in the revolution by the working class, is to raise the proletariat to the position of the ruling class, to win the battle for democracy.”[16] Not only had the Soviet Union not had a proletariat revolution, but the Soviet Union lacked the essential component in having one; they lacked an actual proletariat. For Stalin to being to collectivize and force the peasants off their private land, without the first step having been achieved in the transformation to a socialistic state, would mean disaster to any strict Marxist follower. Hence, it follows that Stalin had taken what Marx had said in the Communist Manifesto completely out of context; proof again that Stalin exploited the words and philosophy of Karl Marx.

In conclusion, Stalin warped Marxist philosophy in many ways which proved detriment to the existence of the Soviet state. His lust for power and his idealized image of himself made Stalin believe that he was above the proletariat revolutionary state, and this would play out in his authoritarian tactics of deceit and ruthlessness. With his “socialism in one country” mantra, Stalin enacted his Five-Year Plan to bring about a better Soviet Russia with heavy industrialization and farm collectivization. The coercion used to kick peasants off their farms was premature for Marxist –Leninist teachings, and he misinterpreted Marxist writings for the purpose of his own personal gain. Exploiting the masses in his need to stabilize a war defense mechanism for the Soviet Union, Stalin manipulated the Russian people to adhere to his despotic principles, something Marx only referred to as a transitional process against the bourgeois. In the end, Stalin took no part in true Marxist teaching, and for that the Soviet Union began its path toward authoritarianism and repression for the people under Stalin. Stalin’s Marxism was anything but true Marxism and for that, the people suffered.

[1] Robert C. Tucker, Stalin In Power: The Revolution From Above, 1928-1941 (New York: W.W. Norton & Company, 1990) 4.
[2] Robert C. Tucker, Stalin In Power: The Revolution From Above, 1928-1941 (New York: W.W. Norton & Company, 1990) 4.
[3] Robert C. Tucker, Stalin In Power: The Revolution From Above, 1928-1941 (New York: W.W. Norton & Company, 1990) 60.
[4] Robert C. Tucker, Stalin in Power: The Revolution From Above, 1928-1941 (New York: W.W. Norton & Company, 1990) 45.
[5] Sheila Fitzpatrick, The Russian Revolution (Oxford: Oxford University Press, 1994) 114.
[6] Sheila Fitzpatrick, The Russian Revolution (Oxford: Oxford University Press, 1994) 114-115.
[7] Friedrich Engels, “The Principles of Communism” Selected Works, Volume One, November 1847 http://www.marxists.org/archive/marx/works/1847/11/prin-com.htm (ACCESSED: October 26th, 2006)

[8] Robert C. Tucker, Stalin in Power: The Revolution From Above, 1928-1941 (New York: W.W. Norton & Company, 1990) 70.
[9] Robert C. Tucker, Stalin In Power: The Revolution From Above, 1928-1941 (New York: W.W. Norton & Company, 1990) 73.
[10] Robert C. Tucker, Stalin In Power: The Revolution From Above, 1928-1941(New York: W.W. Norton & Company, 1990) 73.
[11] Sheila Fitzpatrick, The Russian Revolution (Oxford: Oxford University Press, 1994) 114-115.
[12] Robert C. Tucker, Stalin In Power: The Revolution From Above, 1928-1941 (New York: W.W. Norton & Company, 1990) 74.
[13] Robert C. Tucker, Stalin In Power: The Revolution From Above, 1928-1941 (New York: W.W. Norton & Company, 1990) 57.
[14] Karl Marx and Friedrich Engels, “Communist Manifesto” (1848) Marx-Engels Reader (New York: W.W. Norton & Company, 1978) 490.
[15] Karl Marx and Friedrich Engels, “Communist Manifesto” (1848) Marx-Engels Reader (New York: W.W. Norton & Company, 1978) 490.
[16] Karl Marx and Friedrich Engels, “Communist Manifesto” (1848) Marx-Engels Reader (New York: W.W. Norton & Company, 1978) 490.

Democrats Win Defensive Victory

Democrats win the House. Democrats are going to win the Senate. To many Republicans, defeat and sorrow has overcome the core of their well-being, and to many Democrats, victory and hope saturate their once disheartening mentality of continuing loss over the last 12 years. It doesn’t take an expert to understand that the voting public overwhelmingly voted for change on November 7th; a seemingly subconscious national referendum on Dubya, where voters gathered inspiration from their frustration of Bush to oust his Republican cohorts. Oddly enough, the credence granted to the Democrats in the House, and possibly the Senate, was only a defensive victory.

The robust republic our Founders created made sure that a system of ‘checks and balances’ precluded any one branch from exerting too much power in the arena of federal government. Indeed, while the Democrats may have made major gains in both Houses, the Republicans should still be holding their heads up high. The presidential mandate given to Bush two years ago was not up for election, therefore the Democratic victory was marred by the fact that the Republicans still maintain the executive branch. Therefore, the only victory the Democrats inherited was a meager defensive victory; that is to say, a victory which simply disables the Republicans from passing legislation which adhered to their party principles (or what’s left of them). The offensive triumph for the Democrats can only be determined in the ’08 election where the executive branch will be up for grabs, presumably for Obama or McCain to seize.

With Bush still at the helm of government, it is safe to say that the use of his veto power will without a doubt be much greater in these next two years of office. Democrats will not have near enough voting power to overturn any of their legislative goals in the Senate, therefore the Democrats will ultimately achieve nothing for the next two years. That is the nature of representative democracy. Divided government ensures nothing will ever get done, or if something does get done, there is a cosmic compromise made between parties. This is not necessarily a negative attribute of our American polity, but rather an inevitable one which ensures our political system is working. As Madison so brilliantly noted in “Notes on Confederacy,” division in government promulgates a healthy balance and sustenance for liberty and individual freedom to be upheld. That was one of the primary reasons Madison chose a republic over the ‘mobocracy’ tendencies of direct democracy.

All in all this election established a definitive tone to the prevailing disposition of this country: change. The Democrats may very well deserve a mandate in legislating change, however this is not practical. The presence of Bush assures a Republican check on legislation coming from Congress and subsequently will obstruct the “new direction” Democrats so aspired to take America upon. Blocking the Republicans from putting through legislation is essentially all the Democrats got out of this election. This win is one which should come with some dissatisfaction, but don’t tell them that.

So to sum up, cheer up Republicans, and go easy on the celebrations Democrats, the direction of the country is not going to change with a subtle defensive victory, no matter how big.

Election Prediction

My Prediction for the 2006 midterms:

House: Democrats pick up 18 seats.

Senate: Democrats pick up 5 seats.

All in all, Democrats retake the House and just miss taking back the Senate.

Democrats Support Voter Fraud

With less than a month before the Congressional mid-term elections, the Republicans are looking less than capable to sustain their dominance in the structure of the federal government. Keeping this in mind, the Republicans are now beginning to push through legislation that cracks down on illegal immigration. The response from the Democrats has been nothing new, as they continue to reject even the most moderate of immigration reform proposals from the Republicans. The most recent of these proposals was entitled the Voter ID Bill. The recent passage of the House Voter ID Bill shows to the entire country what the Democratic Party is truly in support of: voter fraud.

The Voter ID Bill would merely require Americans to verify proof of citizenship in order to vote. It requires that every citizen show a photo ID before casting their ballot in the 2008 election. As a fellow libertarian myself, someone who neither identifies as Republican or Democrat, this seems like a pretty reasonable proposition. I figured that this legislation had passed rather easily through the House because of the practical components behind the bill. Yet, low and behold, I was proven wrong. The vote was almost directly party-line, with the Democrats voting against it and the Republicans for it, 228-196. Just when I thought the Democrats couldn’t get any weaker on the immigration debate, they go ahead and vote against a bill that protects every citizen’s right to vote. After all, a photo ID is not an unreasonable request whatsoever.

When you go to the movies, you must provide a photo ID. When you go to the airport, you must provide a photo ID. When you apply for a job, or buy alcohol, or even cash a check, you must provide a photo ID. Why then is it so wrong to ask for a photo ID before you cast a vote in an election which could determine the future of the country? If the Democrats had their way, an illegal immigrant could more easily vote in our republic and corrupt our system of governance. So allowing illegal immigrants to vote in our representative democracy is not only wrong in principle, but it also damages the integrity of our beloved republic.

Indeed, the sweetest irony of it all is the verbal outrage of the Democrats of voter fraud in past elections. They cried ‘voter fraud’ against the Republicans in 2000 and in 2004, yet now they vote against a measure which will help ensure that only citizens be allowed to vote. So who is engaging in the real apparent advocacy of voter fraud? To any rational being, it is the Democrats.

The initial criticism against the bill came straight from the Democratic playbook of plastic surgery-princess Nancy Pelosi and company. They cried, “But what about the poor people who cannot afford ID cards!” This criticism was quickly silenced when they learned that the bill stipulates that states must provide the identification cards free of charge to those who can't afford them.

So what is the real motivation behind the Democrats? It is that they want illegal immigrants’ votes to count, because they would most likely vote Democratic if given the chance. Wait, I thought the conventional wisdom taught that it was only the Republicans who would sacrifice the security and integrity of the state for their own personal interest and gain? It seems to me that the old cliché of ‘culture of corruption’ in the Republican Party has now been replaced with the Democratic Party and their ‘culture of contradiction,’ in reference to decrying voter fraud in one election, then propagating it for the next. The reprehensible actions of the Democrats are nothing but shameful and hypocritical.

Presidential Power in Foreign Affairs

From its inception, the institution and role of the American presidency in conducting foreign affairs has been one of ambiguity. The founders created a system of governance in which the presidency was one branch of an intricate three branch federal government that also consisted of a legislative and judicial branch. The doctrine which served as the driving force behind its creation was famously titled “separation of powers”; a doctrine that enables each branch to be separate in its functions, but also enables each branch to provide a check on another branch’s functions. The appropriate role of the presidency in foreign affairs is an age-old historical question that establishes its relevance once again in lieu of the recent state of affairs around the world. The role of the presidency in foreign affairs should undoubtedly be one which protects the national interests of our people. What is written in the Constitution does not and should not entail the totality of presidential power, and it very well could violate the essential principle the president assumes by taking power; that essential principle is to ensure the safety and security of our country’s citizens.

The notion that the presidency must only derive its absolute power from the existing language of the Constitution or from legislation is incredibly naïve and dangerous. One example of this reasoning can be observed from Justice Hugo Black in the Youngstown Sheet and Tube Co. v. Sawyer Supreme Court case in 1952. Justice Black argued that President Truman did not have the right to place the steel mills under governmental control because the power to make that order was not granted from Congress or expressly written in the Constitution. Even though Truman had argued that it was a necessity for the production of war materials to equip our soldiers with the supplies they needed in battle, it was of no importance to Justice Black. Here we can see an obvious dilemma amongst the belief that any power possessed by our president must comply with express consent from Congress or the Constitution. But as this universal principle may sound justified and reasonable, the circumstances surrounding every incident regarding American foreign policy can never be foreseen. Therefore, it is imperative that we must endow implied powers to the president which allow for some discretionary action upon a matter regarding national security.

Another reason that this universal principle of presidential power is troubling is because even upon its premise, that power must be expressly written in the Constitution or legislated from Congress, there still inevitably will be room for interpreting the language of both. For example, in the Youngstown case mentioned earlier, the dissenting justices based their opinion on the power the Constitution gave to the president, while the concurring justices invoked the presidential power in the Constitution as well. Even when a justice outlines what they consider as a universal principle for the president’s role in foreign affairs, there is still an intrinsic, subjective and separate matter for interpreting the legislation and Constitution itself. As you can see, invoking universality of presidential power amongst those two components, the Congress and the Constitution, handcuffs the presidency to effectively ensure safety and security to its citizens, and still provides no established dictation of presidential power.

The opinion delivered by Justice Sutherland in the U.S. v. Curtiss-Wright Export Corp. is almost directly on par with how I view the correct role for the presidency in foreign affairs matters. Justice Sutherland argued that the President has implied powers, powers not enumerated within the Constitution, regarding external affairs but not internal affairs. He says that the president has more knowledge than Congress on the conditions of foreign affairs which would enable the president a greater ability than Congress to conduct interaction in the global arena. During the opinion, Justice Sutherland seems to understand that there often is an instance where the Constitution does not permit for every circumstance, therefore it be necessary to ascertain a realm of power not expressly guaranteed by the president. This power, however, is limited to only foreign affairs, and not domestic affairs.

The other opinion for which I base my opinion on is that of Justice Jackson, in the 1952 Youngstown case. He carefully outlines three separate scenarios which detail the boundaries of presidential powers. In his third scenario of presidential power, Justice Jackson argues that “Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” This essentially says that when the president asserts his authority to use of force which is not granted to him by Congress or expressly in the Constitution, then he must be carefully watched by not only the other branches of our government, but also by the people within that government.

In 1862, an important Supreme Court decision was delivered that ultimately altered the division of power for authorizing force abroad. The Prize Cases introduced an arduous challenge for the court, essentially because neither the Constitution nor Congress had ‘expressly’ written what was supposed to be done in the circumstances that were pending. President Lincoln ordered a naval blockade on the Southern ports before the Civil War began, and Congress had not yet declared war. Hence, Lincoln seized ships entering the port, and the ships owners took this to the Supreme Court arguing that the absence if Congressional declaration of war, the President had no right to issue a blockade. Justice Grier delivered the majority opinion and argued in favor of Lincoln exercising his right to use force. This was the first time in our nation’s history we went to war without a declaration from Congress, and throughout the twentieth-century we would observe more wars being waged without any Congressional declaration of war.

Although it is true that Article I from the US Constitution says that “Congress shall have the power to declare war,” this does not specifically say that the president cannot go to war without a declaration of war. Furthermore, the Constitution specifically gives power to the president who “shall be Commander-in-Chief of the Army and Navy of the United States, and of the Militia of the several states, when called into actual Service of the United States.” From this textual understanding of the Constitution, we can infer that the president not only has authority to go to war because Congress has not restricted him from doing so, but also because it explicitly states that the president has command over the military, and using force is a discretionary measure that be up to the president. In an instance where it may seem like the president overstepped his authority upon such matters of engaged conflict abroad, then it is the duty of Congress and the Supreme Court to provide a check upon the institution of the presidency. The authority to use force and commit US soldiers abroad should unquestionably be a decision initially up to the President, and if it deemed inappropriate or abusive, then Congress or the courts should intervene revoking this authority from the president.

The deepest regret I reserve upon the idea that the president possesses no implied or inherent powers not within the Constitution, is that it fundamentally ignores the progression of ideas and of the changing nature of the world. To use the old cliché, the Constitution should be a living, breathing document, not a stagnate, irrelevant document. The justifications for the presidential use of foreign power without consent from Congress or the Constitution are present everyday. That is to say, the changing nature of the twentieth-century, and the closer interconnectedness of nation-states in trade, travel, and warfare has produced a necessity of American foreign policy to be quick, decisive, and effective. An individual cannot concede to be an individual of reason and competence if in fact they would deem it improper for President Roosevelt, if he had prior knowledge of Pearl Harbor, to stop the attack before the attack takes place. This idea is founded in philosophical principles. According to Justice Black’s theory, if President Bush had known about 9/11 prior to its occurrence, then he would not be authorized to shut down the World Trade Center activities for that day, simply because that power is not in the Constitution nor did Congress give him authority. As I stated earlier, this view is naïve and dangerous.

This analogy of the WTC collapse and attack brings us to today’s heated struggle over the president’s ability to protect national security. The proper decision regarding the external affairs of nations should not just solely rest on the shoulders of the presidency, nor can it solely rest on Congress. However, there is a distinctive gray area in which the president should have mobility in conducting affairs abroad using his mandate from the election of the republic, and his capacity of knowledge from his cabinet members. If we look back through history, we find that although Congress often times did not declare war, they nevertheless passed resolutions which granted affirmation to the president to conduct a war if necessary. Yet, even swith these Congressional Resolutions, the public and others condemn the “abuse” of power by the presidency. How can one call something an abuse of power when that power was granted to the president from Congress? Was it not the Authorization of Military Force (AUMF) which Congress passed that gave President Bush all the necessary means to fight terrorism that seemed fit for him? It is in my assertion that Bush did not even need a Congressional Resolution for fighting a hybrid enemy of war; one that adheres to no rules and establishes no guise under a nation-state. Granted, citing Justice Jackson rationale, the Congress should scrutinize what the president does, as should the courts. However, citing Grier’s rationale, the president has implied powers in external affairs that transcend any absolutist theory or universal standard for expression of foreign power.

If there is one universal truth available it is that there should be no fixed definition of the presidential power in foreign affairs. It should be subjective to the circumstances pending, and should allow for the natural changes that inevitably take place in a rapidly developing world. The institution of the presidency should have implied power that overreach Congress and the Constitution, so long that it be inspected by our other branches of government after the fact. The national security and subsistence of our state depends upon a mobile and flexible presidency in regards to national affairs.

Can Terrorism Be Defined? Part I: Terrorism as a Universal Principle: A Critique of Relativist Theory

Pursuing truth in a realm of subjective idiom is fundamentally impossible. The modern day liberal intellectuals, who wish to ponder upon such subjectivity, accept the conventional wisdom that terrorism is merely a buzzword which transcends universal truth and falls within an aphoristic boundary of interpretation. But is this notion categorically true? In other words, are we correct in saying that invoking terrorism is only a matter of perspective and that we cannot and should not have a magnitude of difference within the word itself? The relativism of today’s world now seeks to prey upon the meaning of terrorism.

It is in my opinion that relativism is prejudicial and undoubtedly propagates a societal breakdown upon three important structures. The first structure impaired is the essence of our moral compass. To investigate this further we draw upon an analogy of the idea that all civilizations and cultures are of equal value.

It is a false predication to assume that all cultures are of equal worth. That is to say, a free society is always better than a slave society. A society that endows human rights is always better than one which seeks to violate them. A culture that deals in reason and rationale is better than one that deals in sheer force. From these differing inequalities of culture, man embraces a set of ideals which hold evident in this universal moral compass. If the relativism from terrorism can be applied to culture or civilization, who are we to judge then, as a culture or civilization, one which defies the basic interpretation of man’s moral compass.

Suppose for a moment that a culture proclaims that it will enslave its masses because that is what their moral compass dictates them to do. According to the relativism doctrine, by all accounts and standards, the authorities in that civilization should have mandate to think and act that way, because of their normative theory on the existence of mankind. Under the guise of relativism, if the state can believe it wrong to enslave its citizens, then the state can also believe that it is right. What would one relativist say about the situation of enslaving African-Americans during the early to mid 19th century? If we do not adhere to a moral compass or some valued set of standards, there exists no justice in the world. Subsequently, humanity, in some civilizations, will be robbed of their subsistence. If it is beyond our capacity to project some universal truths amongst the basic rights of all beings, then the structure of our moral compass is lost. This denigrates not only our self-worth, but also threatens our very existence.

The second structure impaired within the relativist framework is the consistency of ideas. The paradox relativists find themselves in is the order of compatibility with what they advocate. Is it not a universal truth, or principle, to signify, that “there is no universal truth?” The apparent contradiction amongst relativists is so obtrusive that the elemental premise for the application of their ideas is lost. That is to say, they admit then that there are universal truths by stating this absolutist objection to universal truth.

The third structure significantly damaged is the mode of operation within the global community. Without a working definition of terrorism, in at the very least a broad sense, the international arenawould be an extremely difficult venue for two countries to effectively communicate with each other. This hampers the capabilities we have as a civilization to fight terrorism. Using a relativist’s interpretation of terrorism, the UN countries would be defining what the word means for their own standards of law. Without usurping too much of a nation’s sovereignty, the international community needs a definition of terrorism not just in terms for combating terrorism, but also to negate a struggle against two countries who would normally be allied in the fight. If Pakistan defines terrorism in a loose form different than that of the United States, any modes of operation or planning within that country which were applied or carried out in the United States would deem dangerous to the global stability of civilization. The United States would then sharpen its blade against Pakistan, and use a kind of ‘soft power’ to get the Pakistani government to crack down on their terrorist cells. This creates tension within two governments that could have been avoided by simply applying a universal principle upon a word such as terrorism.

Our existence as a society needs a universal principle for terrorism, because if the relativists have their way, September 11th, 2001 can be justified. This is not something that we, as a free society, should stand for.

The Case of the Speluncean Explorers: A Case Law Opinion by Michael O'Shea

FACTS OF THE CASE IN QUESTION:

The four defendants are members of the Speluncean Society, an organization of amateurs interested in the exploration of caves. Early in May of 4299 they, in the company of Roger Whetmore, then also a member of the Society, penetrated into the interior of a limestone cavern of the type found in the Central Plateau of this Commonwealth. While they were in a position remote from the entrance to the cave, a landslide occurred. Heavy boulders fell in such a manner as to block completely the only known opening to the cave. When the men discovered their predicament they settled themselves near the obstructed entrance to wait until a rescue party should remove the detritus that prevented them from leaving their underground prison. On the failure of Whetmore and the defendants to return to their homes, the Secretary of the Society was notified by their families. It appears that the explorers had left indications at the headquarters of the Society concerning the location of the cave they proposed to visit. A rescue party was promptly dispatched to the spot.

The task of rescue proved one of overwhelming difficulty. It was necessary to supplement the forces of the original party by repeated increments of men and machines, which had to be conveyed at great expense to the remote and isolated region in which the cave was located. A huge temporary camp of workmen, engineers, geologists, and other experts was established. The work of removing the obstruction was several times frustrated by fresh landslides. In one of these, ten of the workmen engaged in clearing the entrance were killed. The treasury of the Speluncean Society was soon exhausted in the rescue effort, and the sum of eight hundred thousand frelars, raised partly by popular subscription and partly by legislative grant, was expended before the imprisoned men were rescued. Success was finally achieved on the thirty-second day after the men entered the cave.

Since it was known that the explorers had carried with them only scant provisions, and since it was also known that there was no animal or vegetable matter within the cave on which they might subsist, anxiety was early felt that they might meet death by starvation before ac [original page number 1852] cess to them could be obtained. On the twentieth day of their imprisonment it was learned for the first time that they had taken with them into the cave a portable wireless machine capable of both sending and receiving messages. A similar machine was promptly installed in the rescue camp and oral communication established with the unfortunate men within the mountain. They asked to be informed how long a time would be required to release them. The engineers in charge of the project answered that at least ten days would be required even if no new landslides occurred. The explorers then asked if any physicians were present, and were placed in communication with a committee of medical experts. The imprisoned men described their condition and the rations they had taken with them, and asked for a medical opinion whether they would be likely to live without food for ten days longer. The chairman of the committee of physicians told them that there was little possibility of this. The wireless machine within the cave then remained silent for eight hours.

When communication was re-established the men asked to speak again with the physicians. The chairman of the physicians' committee was placed before the apparatus, and Whetmore, speaking on behalf of himself and the defendants, asked whether they would be able to survive for ten days longer if they consumed the flesh of one of their number. The physicians' chairman reluctantly answered this question in the affirmative. Whetmore asked whether it would be advisable for them to cast lots to determine which of them should be eaten. None of the physicians present was willing to answer the question. Whetmore then asked if there were among the party a judge or other official of the government who would answer this question. None of those attached to the rescue camp was willing to assume the role of advisor in this matter. He then asked if any minister or priest would answer their question, and none was found who would do so. Thereafter no further messages were received from within the cave, and it was assumed (erroneously, it later appeared) that the electric batteries of the explorers' wireless machine had become exhausted. When the imprisoned men were finally released it was learned that on the twenty-third day after their entrance into the cave Whetmore had been killed and eaten by his companions.

From the testimony of the defendants, which was accepted by the jury, it appears that it was Whetmore who first proposed that they might find the nutriment without which survival was impossible in the flesh of one of their own number. It was also Whetmore who first proposed the use of some method of casting lots, calling the attention of the defendants to a pair of dice he happened to have with him. The defendants were at first reluctant to adopt so desperate a procedure, but after the conversations by wireless related above, they finally agreed on the plan proposed by Whetmore. After much discussion of the mathematical problems involved, agreement was finally reached on a method of determining the issue by the use of the dice.

Before the dice were cast, however, Whetmore declared that he withdrew from the arrangement, as he had decided on reflection to wait for another week before embracing an expedient so frightful and odious. The others charged him with a breach of faith and proceeded to cast the dice. When it came Whetmore's turn, the dice were cast for him by one of the defendants, and he was asked to declare any objections he might have to the fairness of the throw. He stated that he had no such objections. The throw went against him, and he was then put to death and eaten by his companions.

After the rescue of the defendants, and after they had completed a stay in a hospital where they underwent a course of treatment for malnutrition and shock, they were indicted for the murder of Roger Whetmore. At the trial, after the testimony had been concluded, the foreman of the jury (a lawyer by profession) inquired of the court whether the jury might not find a special verdict, leaving it to the court to say whether on the facts as found the defendants were guilty. After some discussion, both the Prosecutor and counsel for the defendants indicated their acceptance of this procedure, and it was adopted by the court. In a lengthy special verdict the jury found the facts as I have related them above, and found further that if on these facts the defendants were guilty of the crime charged against them, then they found the defendants guilty. On the basis of this verdict, the trial judge ruled that the defendants were guilty of murdering Roger Whetmore. The judge then sentenced them to be hanged, the law of our Commonwealth permitting him no discretion with respect to the penalty to be imposed. After the release of the jury, its members joined in a communication to the Chief Executive asking that the sentence be commuted to an imprisonment of six months. The trial judge addressed a similar communication to the Chief Executive. As yet no action with respect to these pleas has been taken, as the Chief Executive is apparently awaiting our disposition of this petition of error.

Question: As a presiding judge in the case, how would do you find the defendants?


Judge Michael O'Shea's Opinion:

In rendering my opinion and concurring with a justice presiding on the bench, I first must submit my own personal analysis of this complicated and horrific case. The circumstances surrounding this case are indeed extraordinary and further investigation is required to seek the largest amount of truth and justice granted to the defendants here in Court.

One of the main textual arguments presented by Chief Justice Truepenny is that the statue under scrutiny is not ambiguous and is plainly stated for applying the law rather than interpreting the law. The statue states, “Whoever shall willfully take the life of another shall be punished by death.” Truepenny’s argument has much strength which, at face value, can be applied to this case in question. First, the language of the statue applies directly to what the defendants did to Roger Whetmore. There is no question into the matter that the men on trial “willfully” took the life of Whetmore. However, let us reflect on another aspect of this peculiar case. Since it is under the testimony of the defendants that Whetmore was in concurrence with the decision to cast lots to determine his own fate, can this case not be cited within another statue of assisted suicide? If one “willfully” committed an act taking another’s life while the both parties consented to the benefit of such destruction, does this not beg the question of the personal philosophy of the person killed in this tragic case? Could Whetmore have been following the philosophy of utilitarianism, which is derived from obtaining the greatest amount of happiness to the greatest amount of people? If we judge that these defendants are in fact murders, does all accountability of Whetmore’s death reside in the defendants alone, or should Whetmore be partly responsible as well, since he initiated the plan and accepted his death? It is my assertion that to merely apply the statue on the grounds of the text is to ignore the basic foundation of why law has become law. If we cannot and should not use prudence when looking at each separate case, our man made laws become not only obsolete but also null and void.

In this regard, I agree with Justice Foster in presenting the argument that the Law of the Commonwealth is at stake if we try to textually apply the law in this case. It is under these circumstances we can push the textual argument aside, and look towards prudence as a form of influence upon the decision.

A more careful examination of the case leads me to another pertinent point. Justice Tatting writes a rebuttal to Justice Foster’s opinion rejecting the belief that these men were not in a “state of law” when they murdered Whetmore, rather a “state of nature.” I beg to differ with Justice Tatting for several reasons. First Tatting asks the question to Foster, when did the defendants actually enter upon the “state of nature”? The “state of nature” is not concurrent with positive law rather it is a part of natural law. It is only human nature which compels us to survive if survival is indeed at stake. While inside the cave, the defendants entered into natural law when they realized that they could not survive unless they ate the flesh of one of their group members. As it is unclear to Tatting why they are in that state, it is perfectly clear to me that the reason they encountered this “state of nature” was because survival was hopeless. This “state of nature” is essential to understand because as Justice Foster says “A man whose life is threatened will repel his aggressor no matter what the law may say.” It is clear here that these defendant’s lives were clearly at stake.Upon using prudence I shall now turn my attention to another reasoning which I can use to adjudicate this tragic case. When a man made law is enacted or enforced, there is always a reason why the law was constructed in the first place. Often times however, a man may break the letter of the law but not the spirit of the law. For example, in Commonwealth v. Staymore the defendant was convicted of leaving his car parked for more than two hours when the statue clearly states that that is a crime. However, if we examine the actual reasoning behind the defendant leaving the car parked for more then two hours we stumble across the fact he was prevented from doing so because the streets were obstructed by a political demonstration in which he took no part in. If we can use the same method of reasoning in that case as in this case then these defendants are not murderers in the slightest degree because the law shall not apply to extraordinary circumstances such as this situation.

Although I am reluctant to rule based upon “judicial activism” I must follow common sense in which many of these justices, such as Justice Keen and Truepenny have grossly overlooked. The mere fact that the justices have to hear about this case and the mere fact that they have to write an opinion on the case is brought into the light by these four men’s survival in the cave. If it were the case that all five men had died of starvation, a slow and miserable death, then would we not wish that at least four of the men inside that cave could still be alive today? It is my declaration that we should be celebrating the fact that these men survived a grueling wait in a cave for more then 30 days, and we should let them move on with their lives as they have already suffered enough. If the men had not acted in the destruction of one man’s life, we would be talking today amongst ourselves the tragic case of the five men who died in a cave from starvation. One must seriously reflect on this question and ask themselves if they truly would rather have one human dead or five humans dead, for this case seeks no other option. As a firm believer in the right to life, these men have only done what is necessary to survive where death seemed inevitable. The strong analogy posed by Justice Foster seems to be extremely telling in itself. Justice Foster explains that if a society is willing to risk the lives of ten individuals to save five, is it safe to say that we can risk one individual for the sake of four other individuals? The answer should be in the affirmative.

Justice Tatting brings in an analogy which is not apt to the situation at hand. Since we can use prudence as a form of reasoning, Tatting asserts that our logic, to remain consistent, must find a man innocent if he steals bread from a store because he is starving to death. This analogy has many problems. First, the dynamics behind a man who is free to other resources and the outside world is significantly different than men who have no other options or resources readily available. Since the man who stole bread at the store could just as easily go to a church service for food, or apply for welfare, or food stamps, shows us that him resorting to stealing was not a last and dire option. To reason with prudence when breaking the law, the defendant must expound that all other options were exhausted and that there was no possible way he could have survived had he not robbed the store for bread. For the typical thief I can safely assume that in Tatting’s analogy not all other options were sought to bring about comfort to this hungry man, therefore the act of stealing is wrong by nature. The defendants on trial today not only exhausted every means possible, but they were in such dire need for food that they ate one of their friends for mere survival. This fact in itself can show you that, since these men had no prior record to cannibalism, they were desperate for survival.

The question of self-defense can also play a vital role in making a decision based upon the circumstances in the case. Justice Keen presents the argument that since Whetmore never threatened the lives of the defendants then one cannot claim they were acting in self-defense. However, I disagree with Keen and find that Justice Foster is right on this issue. When one conforms to a law, there is always a purpose or motive behind why a law becomes law. If killing in self-defense was murder then it could never fully operate in a deterrent manner because it is human nature that we choose life over death. It is self-defense because without his death, the defendants would not be here in court today. The mere fact that Whetmore agreed to his death wouldn’t classify it as murder, but more so along the grounds of assisted suicide.

Although this is a tragic and devastating case, I must admit that I am not prepared to allow more death to ensue because our positive law was not in effect within their need for survival in the realms of natural law. I must rule that these defendants are innocent of any and all murder crimes brought against them today.

Part 2 of "Learn Some History! series"- Finding James Madison

A long time ago, in an era far, far away, there lived a man of unprecedented levels of competence, versatility, virtue, and yes, brilliance. Often regarded as the “Father of the Constitution,” James Madison was considered the leading political theorist during his time on Earth; a time when our country was developing into the benevolent republic to which it hath become. Madison indulged himself into any book he could muster into his feeble hands (he weighed roughly 100 pounds!) and he constantly was researching history for practical theories of governance. His acumen transcended party affiliation and he remained America’s most principled Founding Father who fundamentally understood the system of government he wished to execute. As I gaze, dazed and confused, at the Congress of today, and the “great” politicians of today, I constantly ask myself a very unsatisfying question: Where the hell is the James Madison of today? Is it so beyond the realm of possibility that a man of great intentions, convictions, and standards who reads and understands political theory be in existence in the political arena of American politics today?

Forget James Madison for a moment, and just observe the devolution of political minds throughout our nation’s history. We once had a government being run by a crew consisting of Madison, Jefferson, Hamilton, Henry, Jay, Adams, and Washington (although he was most notably known for his ability to govern and compromise). We are now in the midst of a government run by the ilk of Bush, Frist, Pelosi, Reid, Kennedy, Cheney, etc. The very thought of this comparison leaves me sickened. As cynical as I may sound, I do have hope for our beloved republic and the optimism in me believes that this great nation may produce another James Madison to run the country.

Part 1 of "Learn Some History! series"- Napoleon: Reclamation of the Throne

Napoleon Bonaparte was an early 19th century military commander of the French armed forces who later became Emperor of France from 1804 to 1814. The final days of Napoleon’s reign were rather dismal, as he solemnly observed the monumental empire he had fought for begin to fall into the hands of other European nations. As Napoleon abdicated from the throne, he was exiled to the island of Elba in April of 1814. However, less than a year later, Napoleon had once again reclaimed the crown as Emperor of France. How did Napoleon justify his return to power and reclamation of the throne in France? There were three major factors in which Napoleon justified his reclamation of the throne. First, the friendly and unsatisfying terms of the Treaty of Fontainebleau provided him the eventual means of coming back as the agreements within the treaty were not upheld. Secondly, the location of Elba, and the lack of oversight on the island paved the way for his escape. Thirdly, the environment in France at that time allowed for not only Napoleon’s return, but also allowed for his acceptance and consent of the people.

On April 11th, 1814, Napoleon had formally abdicated from the throne as Emperor of France. The Allied European nations, Britain, Austria, Prussia, and Russia, signed the Treaty of Fontainebleau which ultimately set the stipulations for the fate of Napoleon. The treaty stated that Napoleon was to be exiled to the island of Elba where he would attain the title of Emperor of Elba, he would receive two million francs annually, paid by the French government, and his wife, Marie-Louise, would receive the Duchy of Parma, a territory in Italy. The terms of the treaty itself were undoubtedly particularly generous to a man who had conquered half of Europe through force. Yet, the French and the other Allies reluctantly agreed to the proposal.

Although Napoleon was depressed because of the abdication from his country, he requested in a letter written to then Commandant of the island of Elba, Count Dalesme, to “Announce this new order of things to the inhabitants, and tell them I have chosen the island for my residence because I know the kindness of their character and the excellence of their climate.” This is rather interesting because it shows that Napoleon was at least a little concerned about the consent of the people for his rule. Also, it portrays Napoleon as someone who took his title seriously, and that he was still capable of being an emperor in another country. These two components from this letter provide insight as to how Napoleon viewed his role in foreign affairs and how he viewed the consent of the people as something essential for his authority to be legitimately in power. His justification for coming back to power would never have been imposed on the French people had the French army not consented to Napoleon’s return.

As Napoleon remained in exile, the Bourbons, who were now ruling France under King Louis XVIII, were not following through on their promise of compensating him two million francs. One main reason as to why Napoleon was to be granted this money was because he left behind over 160 million francs of property and real estate in France. Even though Napoleon had brought 4 million francs to the island, his funds were slowly depleting, and he was unable to pay for his expensive guard which was protecting him from Polish assassins. This not only angered Napoleon, but it also prevented him from sustaining a healthy state, as the money was not a luxury, but a necessity. As Napoleon demanded the money from the French government, the Bourbons proposed that Napoleon be relocated to the Azores, an island located in the middle of the Atlantic Ocean. This was something Napoleon would not stand for, so this played a very intricate part in his beginnings of plotting to escape the island of Elba and return to France. As we can see, Napoleon justifies part of his return for mere survival.

Another source of extreme frustration with the terms of the treaty and the final decisions that were made came from Napoleon’s wife, Marie-Louise, and her decision to not join Napoleon on the island in exile. When Napoleon learned that his wife would not be joining him because she had wished not to go against her father’s wishes, he was devastated. While Napoleon was on Elba, he received news that his wife had married an Austrian general named Count Adam Albrecht von Neipperg, and Marie-Louise eventually bore two of his children, the first in 1815.9 Here were two very distinct reasons which forced Napoleon to return to the mainland: he needed money for survival, and he wanted revenge for his personal hurt. One could only imagine if these two reasons had been dealt with in Napoleon’s favor, that is to say if he were paid the money from the Bourbons and Marie-Louise had joined him in exile, he might not have sought a leaving the island to return to France.

The Treaty of Fontainebleau was somewhat generous to Napoleon in two other aspects. The first is the actual location of where he was put, and the second is the specifications for his actual oversight and containment. The location of Elba was not too distant from the southern border of France as it was situated in the Mediterranean Sea roughly 240 miles from France. This is a crucial aspect to his actual means of getting to France because it physically enabled Napoleon to reach the island before he could be intercepted by British fleets. Had the Treaty of Fontainebleau been dictated by any of the other Alliance members, such as Britain for example, the terms would have been such that Napoleon would never have practical means of even coming back to France.

The main allied country that was set in charge of Napoleon’s oversight on the island of Elba was the British. British Foreign Secretary Lord Castlereagh sent Sir Neil Campbell to accompany Napoleon to Elba where he assured everyone that Napoleon would not escape. In fact, the briefing Sir Neil Campbell received from Lord Castlereagh prior to his departure from France with Napoleon stated “Conduct yourself, as far as the circumstances will permit, with every proper respect and attention to Napoleon, to whose secure asylum in that island it is the wish of his Royal Highness the Prince Regent to afford every facility and protection.” Campbell recognized that these orders were vague and while living with Napoleon in July of 1814 he asked for more specific orders. The British responded that Campbell was a “British resident in Elba without assuming any further official character.” Campbell had in fact been absent ten days prior to Napoleon’s escape, and for the British and many others it was a clear “dereliction of duty.” Much of the blame for Napoleon’s escape was placed upon Campbell, yet nowhere in the initial briefing or specific orders did it say he was to remain on the island and guard Napoleon every day of the week. In fact, Campbell had left the island for a medical consultation, and the following day Napoleon ordered the ship Inconstant to be fixed for a voyage. The lack of oversight and location of Elba made the possibility of return, despite the justifications, very conceivable.

The mitigating factors in Europe before Napoleon’s flight from Elba also played an important role in his decision to return. The Quadruple Alliance between the four powers that ousted Napoleon were starting to subtly quarrel with one another, and dissension was no the horizon. Within six months of these four powers signing the Treaty of Chaumont, which essentially said these four powers would ally for 20 years in case France ever got too powerful, they had formed alliances within the alliance. As Russia and Prussia wished to expand their territories, Austria, Britain, and even France became increasingly suspicious of their new prospects for more power. The tensions were so hostile that Austria, Britain and France signed a secret directed against Russia and Prussia. As Napoleon observed these events taking shape he realized that the Allies might be disconnected enough for him to regain power and continue his conquest through Europe.

The primary factor for Napoleon’s reclamation of the throne was not necessarily the reasons to accomplish his goal, or even the dynamics of his actual escape; rather it was the atmosphere within France that allowed for Napoleon to actually regain the throne and lead with consent of the people. After Napoleon abdicated from the throne, the allied powers allowed for the restoration of the Bourbon dynasty and Louis XVIII was placed as the ruling King. The Bourbons had ruled France for nearly 200 years before they were overthrown by the French Revolution of 1792. The people of France did not take a liking to the restoration of the Bourbon dynasty in France. King Louis XVIII rejected one of the essential ideals of the Revolution which was the “idea of a contract between sovereign and the people.” He believed a king should rule by divinity, nothing more. To top it off, Louis XVIII changed the national flag from the tri-color blue, red and white flag of the Revolution to the white flag with yellow lilies. The legitimacy of the Bourbons was not recognized by the people simply because they were forced back to power under the guns of the allied powers. The French people saw this transformation of power to ignore the foundation and ideals of the French Revolution, something which Napoleon had represented symbolically. Napoleon was able to take back France because the people believed the Bourbons were too reactionary and were going to send France back into feudal darkness. The Official Report of Napoleon’s Return from the Island of Elba published in the Moniteur on May 23rd, asserts that the main justification for Napoleon returning to power was because Napoleon was informed “that the French people have lost all their rights…and his throne could guarantee the rights of the nation.”

Although Louis XVIII did proclaim a “constitutional monarch” the situation was extremely bleak for most soldiers and peasants. In fact, thousands of military men who had been disbanded after Napoleon’s abdication were in the midst of monarchical corruption and they faced no jobs and no future. The King of France also engaged in nepotism by placing inexperienced officers in the higher ranks, and demoting veteran officers. The massive unemployment among the lower classes and peasantry produced a climate of disdain for the legitimacy of the Bourbon Restoration and paved the way for Napoleon to receive consent from the people.

When Napoleon had finally escaped, he landed on the southern coast of France in Golf Juan with roughly 1,000 soldiers. As he marched through various cities of France on his way to Paris, the people of France rallied around him praising his return and consenting to his “liberation” of France. Upon learning of Napoleon’s return Louis XVIII ordered the military to arrest Napoleon and remain loyal to the state. As the French army sent by Louis XVIII met Napoleon and his soldiers in Grenoble, Napoleon proclaimed “Soldiers! If there is one among you who wishes to kill his emperor, he can do so. Here I am”; to which the military responded “vive l’emperour!” The massive disdain amongst the disheartened military towards Louis XVIII was quickly turned into action as the military and peasants, facing massive unemployment, decided to act upon their anger and side with their old emperor who embodied the ideals of the Revolution. Napoleon was a general that cared for his other generals and wished to gain support and legitimacy from them before them before he reclaimed the throne. Evidence of this can further be seen in Napoleon’s will, as he granted five families over 100,000 francs because their loved one was a general that perished under Napoleon’s reign.

As word reached Paris of Napoleon’s return and rally towards the city, a series of anti-Bourbon riots ensued. Napoleon soon reached Paris and took back the city “without a shot being fired or any blood spilled.” On March 1st, 1815 Napoleon made a speech to the soldiers and peasants in France. Napoleon made a speech explaining to them that he has returned and now order and what the soldiers want will be acknowledged and kept. He also cleverly used phrases that appealed to the soldiers like “Soldiers! In my exile I have heard your voice.” Napoleon further proclaims “Put on the tricolor cockade; you wore it in our great days…then will you be able to claim the credit of your deeds.” Napoleon also made other proclamations asserting that “the throne of the bourbons was illegitimate.” The main theme behind his speech was to rally the troops and establish a military foundation with the troops and reveal the fact that he is back and that France will regain its prominence in Europe. It was produced to solidify the doubts in soldiers and generals heads that Napoleon was going to restore France with order and pride.
One must also keep in mind that the theory of nationalism was a new concept and the people of France were adhering to the belief of French superiority. As Napoleon pandered to the idea of nationalism in the speech, the people and soldiers rallied around his cries who then eventually consented to his authority. This speech marked the essence of Napoleon’s brilliance to appeal to the masses and ultimately led to his reclamation of the throne. By September 1st of 1815 he was able to gather a trained army of 800,000 men and his legitimacy was enormously greater than Louis XVIII.

Although Napoleon would soon be ousted and sent to exile once again by the Allied powers, his return and escape from Elba was a great accomplishment nonetheless. Each of these dynamics are essential for understanding the major reasons as to how Napoleon came back as emperor. Napoleon’s exile to Elba was not enough to stop this overly ambitious military genius from restoring himself back to power. With the French government unable to fulfill parts of Treaty of Fontainebleau, Napoleon’s personal vendettas, the location of Elba, the lack of supervision on the island itself, and the surrounding ambiance of discontent among the French people for the Bourbon Restoration, Napoleon was able to escape from Elba and reclaim his throne and his legitimacy as rightful emperor of France.

Upon further Investigation...Marxism and Capitalism

Capitalism and Marxism are two very distinct theories and societal philosophies that have one very common thread; they are both inherently built around a system of class structure and the acquiring of capital. From the inception of these competing philosophies these two theories have shaped politics, philosophy, history, economics, social structures, and systems of governance in more ways than man can even fathom. In this regard I will define the terms were are speaking with, attempt to explain the origins of each theory, explore the differing tenets and precepts of these two belief systems, distinguish between the social and economic variations of the two conjectures, while examining the morality of each position, and finally provide criticisms of both philosophies. (Although explaining Marxism is a critique of capitalism)

It would be remiss of me to begin without defining both capitalism and Marxism in the broadest sense of terms, seeing as though there are schools of thought on both sides that project a certain magnitude to the actual belief systems. In Capitalism by David McCord Wright, capitalism is defined as "a system in which on average, much the greater portion of economic life, and particularly of net new investment, is carried on by private units under the conditions of active and substantially free competition, and avowedly, at least, under the incentive of a hope for profit." In short, capitalism presupposes that in an open society the ends are achieved by the individuals, or rather by voluntary organizations of individuals. Marxism is the reaction to such a system of capitalism, and advocates revolution of the proletariat in order to overthrow the capitalistic machinery of the state. Both systems have extreme complexities and components and each a reference point in history.

Where and when did capitalism begin? The earliest forms of capitalism were widely known as "mercantilism", which could be defined as the distribution of goods in order to realize a profit. This practice gradually evolved into an economic theory called capitalism.

Although the word itself did not come into existence until socialists coined it in the mid-nineteenth century, the principles of capitalism were first published in The National Gain, authored by Finnish parliamentarian Anders Chydenius in 1765, 11 years prior to Adam Smith’s Wealth of Nations. However, Adam Smith is widely known as the founder of capitalism today. Smith used the phrase "economic individualism" rather than capitalism to describe this philosophy. Capitalism was seen as "the obvious and simple system of natural liberty" and it began under the idea that the state was built solely to protect individual rights and freedoms. The ingenious of Smith was that he had already written a rationale for the economic system of capitalism well before the industrial revolution had even begun. Smith had uncovered a set of principles which accepted man as the "self-starter" that was good for any productive society.

The application of capitalism became present after the American Revolution commenced as the founders created a government built ideally for the economic system of capitalism. The government was there merely to protect the natural rights of man which were, "life, liberty, and property." After Smith died in 1790, the industrial revolution quickly swept America and Great Britain by storm, and the seeds of the early unfettered capitalism were taking shape. It was not until Karl Marx in 1848, with the publishing of Communist Manifesto that society had not seen such a serious and radical philosophical critique of capitalism.

As stated before, Marxism was a philosophical and economic system which was promoted as a reaction to the unfettered capitalism of the early 19th century. Writing in London in 1848 Marx published the Communist Manifesto which served as the rallying cry and justifications as to why revolution of the proletariat should soon commence. Before this publication, French intellectuals were criticizing capitalism and advocating socialism, which goes to show many that the radical ideas against the system were flourishing. The drive for Marx to publish his ideas was heavily influenced by his deep disdain for the "anarchic" economy which capitalism perpetuates, and his desire to initiate a "planned economy" for the state.

The history of Marxism does not translate into the wide misnomer of the history of communism; the system of government which failed in the USSR and China. Rather one must understand that Marxism was modified heavily by these two systems and arguably was distorted to the extremity of creating authoritarian monsters such as Stalin, Kruschev or Mao. The strictest interpretation of Marxism has really never been implemented thus there is no real empirical evidence to use to dispute Marxism as a theory of governance.

So what are the basic tenets of the economic faction of these two philosophies? The basic foundation for the economic theory of capitalism is that the accumulation of the means of production is placed into the hands of a few individuals. This accumulated wealth is called "capital" and the people who possess the capital are "capitalists." The next step in capitalism involves the productive labor of the worker to be transferred into wage labor. That is to say that the value the worker creates will not be for the product they are making, but for the wages they are given by the capitalist. The division of labor then enables capitalism to increase productivity as it lowers the skill and wages of the worker. As an economic theory, capitalism embraces the free markets and the freedom of the capitalist to attain a profit by arguing that the worker has no inherent risk involved in losing money. The capitalist takes a risk with his money; therefore he is entitled to make the profit that is owed to him.

Another support system for capitalism lies within the social philosophy and morality of such a theory. Wilhelm Ropke argues that the logic of capitalism is an intrinsically peaceful exchange between two consenting parties and because of this it is an exchange which exerts two moral parties. Within the free market, which capitalism embraces, people are able to put their ideas into practice and start a business if they wish, and it is up to the market if they succeed or fail. It promotes individual liberty and self-autonomy as the cornerstone of human existence. Capitalism offers the individual worker to attain high status in society and pursue their own goals and dreams with what they choose to make of their individual liberty. Robert Tracinski points out that "the fundamental characteristics that make capitalism practical, its respect for the freedom of the mind and for the sanctity of the individual, are also profound moral ideals."

Marxism as an economic theory takes upon a rather different approach. To fully understand the theory of Marxism, it is required that we first must understand Marx’s view of history. Marx views history as dialectical. That is to say that Marx views history as a "process of change that took place through the coexistence of two contradictory sides, their conflict and their fusion into a new category." Capitalism was a synthesis of the bourgeois fighting against the thesis of feudalism and for the antithesis of mercantilism.

Marxism argues that the value of a product being produced is nothing less than the amount of labor necessary for it to be manufactured. The capitalist in turn only pays the worker a wage and thus accumulates the surplus value, or profit, of what his laborer, according to Marx, has rightfully produced. This is the crux and main problem Marx has with capitalism; the class stratification produces an inequality amongst men and the bourgeois class is able to profit from the proletariat. For Marx, the accumulation of capital for some will often cause accumulation of poverty for many. Marx’s says the "accumulation at one pole is simultaneously accumulation of misery, work torture, slavery, ignorance, brutalization, and moral degeneracy at the other."

According to Marxism, the evolution of capitalism would lead to a dismal state of unemployment and exploitation and a severe economic crisis would ensue. Since Marx was writing Das Kapital in London, he envisioned the most advanced capitalist society to be the first system to be taken over by the proletariat. In fact, Marx’s ideal place for revolution was no other place but London. The finality of Marxism was to have a "dictatorship of the proletariat" that "was to centralize all instruments of production into the hands of the state" that would then increase productivity at a rapid rate. The endgame of Marxism is a kind of social and economic utopian ideal between the state and the workers producing the goods in harmony. As a result Marxism hopes to create a classless society in which the doctor gets paid the same as the janitor.

The interesting point about Marxism is that Marx’s himself never attempts to argue that capitalism is unjust. In fact, he even attempts to distance his scientific socialism with the utopian socialists of the day who argued that capitalism was unjust. Marx did however, use phrases such as "exploitation of the proletariat" which does have a connotative meaning of someone wronging someone else of their humanity. Yet Marx does acknowledge that "exchange is by no means an injustice." Thus many Marxists have argued that capitalism is simply not the best way for humankind to live, implying that humanity could be better served through a collective ownership that does not diminish freedom or abuse the men of society. The practice of such a society attempts to summon a utopian society where the synchronization of mankind is perfectly in tune and the eradication of poverty, unemployment, racism, sexism, and pollution will be the end result.

Since I have already outlined a Marxist critique of capitalism, I will now address the many criticisms of Marxism itself. One criticism of Marxism says that the problem of Marxism’s idea of history is that in thinks in terms of the material world and not the world of ideas, which ultimately "disvalues the idea of democracy." Using this criticism, many say that Marxism has given rise to totalitarian states. It is interesting to note that the implementation of Marxism by Lenin in the 1917 Bolshevik revolution was merely one interpretation of Marxism. That is to say that Lenin ultimately viewed the application of Marxism as the "dictatorial seizure of power by an exclusively revolutionary vanguard party of the proletariat, and taking the bourgeoisie’s and aristocracy’s property by expropriation, the denial of their political power and rights, and subsequently their death." Although it is clear that Marx would not have supported this, it does say something about the interpretation of such philosophy, and that maybe the practical application of Marxism is something which is unattainable.

If we examine Marxism from the Communist Manifesto’s perspective, we clearly see that Marx gives rather specific instructions as to how the dictator of the proletariat should govern the state. He says "the first step in the revolution by the working class is to raise the proletariat to the position of the ruling class, to win the battle for democracy." This is somewhat troubling for Lenin however. Lenin believes that since democracy was a state form, and Marx believed in the abolition of the state then democracy must perish as well. Thus a dictatorship of the proletariat commenced and soon gave rise to even more malcontent for the people then the system below. For example, the interpretation of Marxist thought has led to a restriction on personal freedom, expression of opinion, the free exchange of ideas only to achieve a utopian end of pure communism. With communism giving rise to dictators restricting these liberties, the application of Marxist thought is often seen as giving rise to a different form of dictatorship and oppression.

There is also a very interesting critique of the way in which Marx views history. If one were to apply the theory of dialectics to Marxism, then we would thus assume that the Hegelian theory of history was the thesis and the Marxist theory of history was its antithesis. But if the Hegelian theory views history as a change in ideas, and Marx argues that he is ignoring class struggle and economic order, then where is the synthesis between these two theories? If Marx truly support his own theory of dialectics then all evolving theories and change must be a synthesis of two other forms, therefore this could negate him from even believing that pure Marxism is correct.

In conclusion, capitalism and Marxism are philosophies which presuppose different tenets of human nature and from this they draw their differing conclusions as to how society should be run. Although they have much that is different, it is true to say that they have much in common with one another. Through the histories of each of these two concepts and the fundamental purposes for which they were composed, highlights, arguably, the two most influential philosophies of our day. Capitalism and Marxism are two theories that have stood the test of time in the relevance of intellectual discussion.