Monthly Archives: January 2011

Notes Towards a Seminar on Civil Rights in 2011

I would like to take this Seminar Around the Country but I would need sponsors and venues…  Anyone willing or able to Sponsor or offer a venue should contact me or Peyton Yates Freiman at 512-968-2415 (or if voicemail is full or phones otherwise down), write to Peyton at freimanthird@gmail.com or to me at charles.lincoln@rocketmail.com.  I think Bob Hurt may be trying to organize a first presentation in Clearwater: bob@bobhurt.com, (727) 669-5511.  I would like to present this coast-to-coast!

“Civil Rights in the 21st Century: To Whom do the Rights Belong? Who is Entitled to Remedy?”

RACE AND AFFIRMATIVE ACTION: STRICT SCRUTINY: THE HEART OF THE PROBLEM

FROM DRED SCOTT TO GRUTTER v. BOLINGER—Bakke v. Regents of the University of California, Richmond v. Croson, & Aldarand v. Pena

A HUNDRED AND TWENTY YEARS OF SILENCE 1857-1977

An Introduction to the 13th and 14th Amendment:

Justice Taney decided Scott v. Sanford correctly in 1857—so correctly it took three constitutional amendments to overturn it.

13th Amendment: Involuntary Servitude and the origin of the American “Prison Planet”.

14th Amendment: “Persons” and Citizenship redefined (myth and jurisprudential reality

14th Amendment: Due Process

14th Amendment: Equal Protection

14th Amendment and the “incorporation” of the Bill of Rights

14th Amendment: Privileges & Immunities—how to resucitate

14th Amendment: Implementing Statutes:

42 U.S.C. Section 1981—-Equal Access to the Courts (to protect the rights to make and enforce contracts)

42 U.S.C. Section 1982—-Equal Rights to Own Property

42 U.S.C. Section 1983—-Civil Rights Action

42 U.S.C. Section 1985—-Affirmative Action or General Rights (see also Sections 1981-1982)

42 U.S.C. Section 1986—-the Duty to Prevent Civil Rights Injury

42 U.S.C. Section 1988(a)—Incorporation of the Common Law into the Constitution to create remedies

15th Amendment: The Right to Vote and Political Participation

The Relationship Between the State and Federal Judiciaries

(A) Civil Rights Removal

Rachel v. Georgia (1966)

Greenwood v. Peacock (1966)

Johnson v. Mississippi (1975)

(B) Civil Rights Injunctions

Dombrowski v. Pfister (1965)—Sidebar: Jim Garrison and the JFK Story

Younger v. Harris (1971)—California—why is this a DOCTRINE and Dombrowski forgotten?

Mitchum v. Foster (1972)—Florida—why is this the Final Element of the Trilogy….

(C) Federal Civil Rights in the State Courts

Texas & Montana

Florida

California

Massachusetts, Michigan, & New Jersey

(1) Application of Civil Rights Law to Mortgage Challenges and Credit generally

(2) Application of Civil Rights Law to Florida Mortgage Foreclosure Procedures & Customs

(3) Application of Civil Rights Law to California Mortgage Foreclosure Procedures & Customs

(4) Application of Civil Rights Law to Massachusetts & New Jersey Foreclosure Procedures & Customs

 

(5) The Interface of Family Law and Constitutional Law: State Licensed Marriage

(6) The Interface of Family Law and Constitutional Law: Raising and Caring for Children Children

(7) The Interface of Family Law and Constitutional Law: Religious Freedom and Establishment

(8) The Interface of Family Law and Constitutional Law: Dissolution Procedures

(9) The Interface of Family Law and Constitutional Law: Post-Dissolution State Involvement in the Family

(10) Full Circle—Family Law and Involuntary Servitude: How to Resuscitate Chief Justice Taney’s Due Process of Law without repealing the 13th Amendment and with only minor modifications to the 14th….

Charles Edward Lincoln, III

The Dark Sexual Meta-Politics of the “Black Swan”

Once again availing myself of the pleasure of New Orleans’ Prytania Theatre, I saw Darren Aronofsky’s “Black Swan” for the first time last night (opening night at the Prytania….pre-Oscar run I suppose). The line between the dreamworld and the real world is blurred—readers of this blog may have noticed that this is my favorite movie and dramatic theme and subject line, from Plato’s Cave (Republic Book VII) through Calderon de la Barca’s “La Vida es Sueno” to Lewis Carroll “through the looking-glass”, C.S. Lewis’ Narnia through the Wardrobe and the Lake between the worlds, Matrix, and Total Recall.  Black Swan follows in this tradition as a dark movie with very little light.  I confess that as of the writing of this I haven’t read any other reviews of it so the thoughts here are my own, untethered by other critical thoughts. The subtitle of this movie could be either: “After many seasons dies the swan” or “The Tragic Ritual of Divine Kingship: succession and passion, murder and sacrifice, among the heirs of Pavlova.”

Arguably my alma-mater’s most beautiful and talented alumna ever, at least of anyone whom I ever chanced to encounter at Lamont, the Fogg, Sackler, Tozzer, Peabody, or Agassiz at any time during any of my many and varied Cantabrigian years, Natalie Portman plays Nina Sayers, an aspiring ballerina in a City never expressly identified as New York, but where the blazes else could it be?  with a company never expressly identified as the New York City Ballet, but what other ballet troop uses Lincoln Center as its symbolic and practical home base?

Natalie’s character Nina seems to be a victim attacked and probably doomed from every angle.  The tension from the beginning seems to be: who is Lena’s evil Wizard? Her sharply ambitious mother Erica Sayers (played flawlessly by Barbara Hershey as a kind of evil twin to “Leave it to Beaver’s” mother—there are a lot of light/dark pairings in this movie—but that’s not really one of them) with her increasingly piercing eyes and comments?  The potentially and historically predatory Ballet Director Thomas Leroy with his aggressive, but apparently (possibly?) merely heuristic sexual aggression??  Or the obvious competitor, another more relaxed, laid back and highly sexual balerina Lily?

In other words, this movie invokes every major cliche of sexual politics in the modern world.  It is beautifully filmed and focused in alternating light and shadows and quite simply could not have been completed with any other actress, because I cannot think of any other young actress whom I personally (or the world) could stand to look at from every possible angle up close….  But it is impossible to get bored with Natalie Portman’s face, even when her expressions are ambiguous-to-inscrutable.  As it turns out, the incomprehensible nature of Natalie’s character Nina turns out to be no mistake, but the essence of the story.

I have long been extremely suspicious of sexual politics as an explanatory device for human failure and self-destructive tendencies.   I am most suspicious of stories of sexual harassment and sexual predation against younger females by male superiors and supervisors.  Up to a point, I think that such hierarchy is fairly natural and normal in the world.  But refreshingly, in this movie at least, the “outward and visible signs” of Director Tom Leroy’s sexually aggressive moves towards Nina are entirely instructional—as a Director, and only as a director, Tom wants Lena to put more passion into her dancing, and he feels she cannot do this unless she “feels” sexual desire more deeply herself.  Beside a couple of kisses, which seem just to end up as demonstrative professorial exercises trying to awaken something inside of Nina, nothing happens between them.  Director Tom simultaneously abjectly fails and even more abjectly succeeds, to no good end.   The line in St. Francis’ prayer “only in dying are we born to eternal life” comes to mind.

The elder “Dying Swan” Beth MacIntyre (it is insinuated without being articulated) was once Director Vincent’s lover.  But what does this mean or matter?  Nina longs to be like her.  Nina even steals Beth lipstick and other objects, but later guiltily returns them. Within the portrayal of Swan Lake, and the Ballet–she is the former star—back to Lake Nemi she is the only Priest, awaiting the new arrival of the next Rex (Regina?) Nemorensis.

Nina’s mother figure is likewise ambiguous.  Erica Sayers is domineering but kind, commanding but caring.  She claims to have sacrificed herself and her own ballet career.  She is an obsessive painter but above all she has invested her maternal and creative energies in her daughter Nina.  Erica restrains and represses Nina and does not want her to achieve the passionate release which Tom considers necessary to Nina’s apotheosis into a “Diva” of the Ballet.

Most intriguingly: Lily—Lily and Nina are a pair most reminiscent of Faith and Buffy in the Season III of Joss Whedon’s TV Series Buffy the Vampire Slayer (1997-2003). Faith was Buffy’s dark, sexual, rule-breaking and authority disrespecting “instinct rather than training-based” twin slayer.   The nightclub dance seen prior to Nina’s final “seduction” could be clipped and merged, almost seamlessly, with the parallel nightclub dance scene in Season III of BtVS called “Bad Girls” where Buffy and Faith go wild (or, rather where Faith tempts and draws Buffy into the wild scene for a while, and almost into Faith’s plunge towards the Dark Side).

The context of the story of Lena Thayer is the competition for the leading role in Peter Ilyich Tchaikovsky’s “Swan Lake” with all its magic and romantic intrigue made real in the modern City and Ballet company.   Lily, like Tom, tries to awaken lust and a sense of looseness in Nina, and her success parallels Tom, with equal ambiguity.

Ultimately, the story reveals Nina as her own black swan, her own shadow in the mirror, her own crowning achievement and tragic undoing in denouemente.

The Metapolitical message here is that yes, Freud was right that we are all screwed up in the head by our sexuality, but no, we can’t escape the consequences of our choices of our other actions.  None of us can see clearly, we see only through a glass, darkly, because we think, act, and speak only as children.  Also consistently Freudian is the message that sexual repression is the root of all evil.  What can we do but laugh and cry at the insistent repetition of these assertions throughout the world?

If there is a “moral” it must be that we all must engage in self-discovery, but that there is no necessary triumph or salvation through self-mutilation and death, even when it helps us achieve amazing goals which otherwise we could not have realized.  Our dreams reflect our dark side—our dreams shape our dark side—but without a proper control of light and shadow, we can neither see who we really are no who we ever should be, nor do what we should, nor know what we need to know without fully encountering our dark shadow selves—and this is why Freudian Psychology is eternally inferior to that of Carl Gustav Jung.

January 24, 2011: Boy Scouts-1908, Casablanca-1943, Churchill-1965, Ted Bundy-1989

Today in History — Monday, Jan. 24 (Stephanie Romanov/Lilah Morgan on Angel)

By The Associated Press

Today is Sunday, Jan. 24, the 24th day of 2010. There are 341 days left in the year.

Today’s Highlight in History:

On Jan. 24, 1848, James W. Marshall discovered a gold nugget at Sutter’s Mill in northern California, a discovery that led to the gold rush of ’49.   Now “All the Gold in California” has been outlawed as ordinary currency, so that somehow the Constitutional mandate that only gold and silver be used as tender for all debts, public and private, has been precisely turned on its head, yet no one seems to care.

On this date:

In 1742, Charles VII was elected Holy Roman Emperor during the War of the Austrian Succession.  The Supreme Court, in a landmark ruling last year about this time, held that large corporations and millionaires will be entitled to spend all that they want on future “wars of succession” in the United States.

In 1908, the Boy Scouts movement began in England under the aegis of Robert Baden-Powell.   I was a Cub Scout who made it into Webelos, but never into a full Boy Scout.  My Charlie son started as a Bear (I had started as a wolf, the year before) but made it into full Boy Scout-hood and finally just before graduating High School (about this time last year) became a full-fledged Eagle Scout—so far as I know he is the first Eagle Scout in our family.  It is ironic to think of the conceptual relationship between Scouting and “Hitler Youth” and various communistic youth groups, as Baden-Powell’s own name seemed to transcend the Anglo-Germanic cultural and linguistic line.   The younger girl’s equivalent “Brownies” (pre-Girl Scouts, but allies in the famous cookie sales) are even in color coding reminiscent of the “Brown Shirts” of the 1920s and ’30s, and even more recently a commentator on Buffy the Vampire Slayer referred to the “Potential Slayers” in Season VII as “Brown Skirts”—in that Vampire Slayers exist to make war on a disfavored ethnic minority who hate and shun the Cross and are burned by Holy Water (and the general association is such that LA Jewish Weekly, in December of 2009, felt compelled to run a front page article, “Jews are not Vampires.”

In 1924, the Russian city of Petrograd (formerly St. Petersburg) was renamed Leningrad in honor of the late revolutionary leader. (However, it has since been renamed St. Petersburg.)   No country on earth (except I suppose Germany between 1914-1989 and/or the American South from 1856-1976) has ever gone through anything like the 75 year convulsions and roller-coaster ride through political and economic systems that Russia experienced moving from Tzarist rule at the beginning of 1917 through the foundation and elaboration of Soviet Communism in the LEAST developed nations of Europe to the final collapse of that system by 1992.  Yes, 75 years that saw several levels of civilization wiped out and rebuilt over the corpses of millions.  Not as bad or brutal as the cultural revolution in China, the irony is that China is now generally seen as the more successfully capitalistic of the two countries that (when I was a kid) were emblematic of the struggle for world communism.  If had to be a Russian and could choose, I think I would have liked to have lived as an adult in the first quarter of the 20th century, because the hopes and aspirations of revolutionary communism were so noble, before the horrors of the Stalinist purges wiped out all illusions of communist decency.

Trotsky was the last decent communist, but he died at the hands of  Stalin’s agents in Mexico City during August of 1940, one year after the Stalin-Hitler Pact.  Trotsky had fled and finally settled in Mexico after being expelled from the Communist Party after Stalin’s rise to power.  As summarized in Wikipedia (as the entry existed at 9:00 pm on Monday, January 25, 2010)(I appreciate the commentator who pointed out that in my original version I had mistakenly given the year of Trotsky’s death as 1938—sorry folks, I do these things from memory and I wasn’t thinking—I wonder how many college students in the United States today know anything about Trotsky or the Socialist Internationals or for that matter, how many college students or other Americans can recall or imagine what Mexico City was like before it was choked by overpopulation and automotive pollution.

My grandparents visited regularly from the 1920s-1980s described it as one of the most climatically perfect spots on earth—until about the year I was born, unfortunately, so I never saw it that way either, although they continued to visit the opera there until the year after my grandfather died—they knew Placido Domingo when he was a student at the Conservatorio Nacional de la Musica in Polanco, Mexico City, in the 1950s and were instrumental in bringing him to Dallas, where he performed in the Dallas Civic Opera in 1961—they took me to New York when I was 8 for his Metropolitan Opera Debut…I later became a great fan of Domingo myself and think he has far outshown Pavrotti and Carreras throughout his career….especially in his performances of Wagnerian opera, of which, ironically enough, anti-Fascist Leon Trotsky was supposedly a great fan):

As the head of the Fourth International, Trotsky continued in exile to oppose the Stalinist bureaucracy in the Soviet Union, and was eventually assassinated in Mexico by Ramón Mercader, a Soviet agent. Trotsky’s ideas form the basis of Trotskyism, a term coined as early as 1905 by his opponents in order to separate it from Marxism. Trotsky’s ideas remain a major school of Marxist thought that is opposed to the theories of Stalinism. He was one of the few Soviet political figures who were never rehabilitated by the Soviet administration.

(But to return from this lengthy digression to the historical record for January 24….):

In 1943, President Franklin D. Roosevelt and British Prime Minister Churchill concluded a wartime conference in Casablanca, Morocco.

In 1965, Winston Churchill died in London at age 90.

In 1978, a nuclear-powered Soviet satellite, Cosmos 954, plunged through Earth’s atmosphere and disintegrated, scattering radioactive debris over parts of northern Canada.

In 1985, the space shuttle Discovery was launched from Cape Canaveral on the first secret, all-military shuttle mission.

In 1987, gunmen in Lebanon kidnapped educators Alann Steen, Jesse Turner and Robert Polhill and Mitheleshwar Singh. (All were eventually released.)

In 1989, confessed serial killer Theodore Bundy was executed in Florida’s electric chair.   People like Ted Bundy definitely make capital punishment seem like an attractive option, but there is some irony that rare serial killers and their execution are such iconic events in the history of mankind, while the mass imprisonment of hundreds of thousands, in fact millions, of other Americans hardly makes the news at all.  The Federal government can indict and convict almost anyone of almost anything, because the Federal prosecutors so closely control the grand juries and Federal Judges so closely control the petit juries that independent thought among jurors is probably rarer than death by drowning in showers….  Anglo-American juries were historically not so impotent, and all Americans should reflect on what can be done to restore the power of juries.

I have very little that’s good to say about the jurisprudence of Supreme Court Justice Antonin Scalia, but he does consistently favor restoration of power to juries.  Of course, he probably does so only because of a slavish dedication to popular and legislative choice and decisions that it is almost impossible to find a legislatively enacted statute which is so bad as to be found “unconstitutional” in Scalia’s eyes.

In 2003, Tom Ridge was sworn in as the first head of the new Department of Homeland Security.  The spirits of the Stalin’s NKVD and Himmler’s SS were present at this inauguration, and they applauded loudly.   Nothing should be higher on any Patriotic American’s list of national priorities than the abolition of Homeland Security and most of its components and powers, as well as the full and 100% repeal of the 2001 Patriot Act (as amended through this day) and its predecessor the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) which together have all but outlawed the Constitution, not only for the living, but I discovered today, even for the dead: corpses and other “human remains” entering the United States are controlled and regulated by Homeland Security and private parties cannot arrange such transportation—only government licensed funeral homes!  We live in a Maoist version of America—and this particular amendment to the Patriot Act and the powers of Homeland Security was only enacted 7 months ago, according to what they told me at “Delta Care” (the division of Delta/Northwest Airlines that is responsible for the “cargo” transportation of “human remains”…..).  As Ronald Reagan said, and as I always quote: “The most terrifying phrase in the English language is: ‘we’re from the government and we’re here to help you.'”  RUN do not walk when you hear any version of those who support such policies…..

Ten years ago: Republican George W. Bush and Democrat Al Gore posted victories in the Iowa caucuses.

Five years ago: Authorities in Iraq said Sami Mohammed Ali Said al-Jaaf, an al-Qaida lieutenant in custody, had confessed to masterminding most of the car bombings in Baghdad.

The United Nations broke with years of protocol and commemorated the 60-year anniversary of the liberation of the Nazi death camps, directly linking its own founding with the end of the Holocaust in some of the strongest language ever.   This is, I think, a very real direct link.  It is not too much to say that the Nazi Holocaust is the foundation for modern Globalist “Religion.”  It is the credo and the sanctus of the modern political “eucharist” of Thanksgiving for Globalism and World Peace.    The U.N., of course, is the Agnus Dei (lamb of God) that taketh away the sins of the world by enforcing world uniformity and peace.    The Communist Chinese Government of Mao Tse Tung replaced the Free Chinese remnants of Chiang Kai-Shek on Taiwan in 1971 thanks to Henry Kissinger and Richard Nixon’s efforts. Despite the nominal commitment of the United States in general and the Republican Party in particular to the defeat of world communism, the man who was then U.S. Ambassador to the United Nations states as follows:

Ambassador George H. W. Bush: “Fellow Delegates, the issue is clearly marked now: inclusion or expulsion; impartiality or one-sided and arbitrary punishment. If this is not an important question, what is?”

Was George H.W. Bush a “sleeper” agent for the Communists?  His career and that of his son can be described in large part as the arc of the final triumph of Globalist Internationalism in the United States over the isolationist patriotism of Senator Barry Goldwater who proposed again in 1971 that the United States withdraw from the U.N. or at least cut all funding.   Nixon and Kissinger created and sponsored the political career and advancement of Ambassador George H.W. Bush.  Goldwater created and advanced the career of Governor Ronald Reagan, but when Reagan became President, it was the Nixon-Bush “moderate” approach which seemed to dominate the government, and prevent Ronald Reagan from keeping any part of his 1980 campaign promises to turn back the disastrous effects of Franklin D. Roosevelt’s New Deal and Lyndon B. Johnson’s Great Society.   Richard Nixon had started out his political career as a virulent anti-communist but achieved his plaee in history by legitimizing Mao Tse-Tung and Chou En-Lai, the greatest criminal murders in world history, whose least effective and lowest henchmen make Ted Bundy look like one of Baden Powell’s Boy Scouts…. much (I feel certain, without knowing for sure) to the misery of Winston Churchill’s ghost…..accompanied by much spinning in the grave….

One year ago: Pilot Chesley “Sully” Sullenberger, who safely landed a crippled US Airways jetliner in the Hudson River, received a hero’s homecoming in Danville, Calif. President Barack Obama met with his economic advisers after asking Americans to support his economic package as a way to better schools, lower electricity bills and health coverage for millions who lose insurance. Brazilian model Mariana Bridi, 20, died after contracting an infection that forced doctors to amputate her hands and feet.  Alissa Czisny won the women’s title at the U.S. Figure Skating Championships in Cleveland. Katie Stam of Indiana was crowned Miss America.

Today’s Birthdays: Actor Ernest Borgnine is 93.  I will always remember him as Quentin McHale in McHale’s Navy—always one of my favorites as the son of a Navy man and the grandson of another who made worldwide shipping safer and cleaner….

Actor Jerry Maren (“The Wizard of Oz”) is 91. Actor Marvin Kaplan (“Top Cat”) is 83. Cajun musician Doug Kershaw is 74. Singer-songwriter Ray Stevens is 71.

Singer-songwriter Neil Diamond is 69. Singer Aaron Neville is 69. Actor Michael Ontkean is 64. Actor Daniel Auteuil is 60. Country singer-songwriter Becky Hobbs is 60.

Comedian Yakov Smirnoff is 59. Bandleader-musician Jools Holland is 52. Actress Nastassja Kinski is 51.

Rhythm-and-blues singer Theo Peoples is 49. Country musician Keech Rainwater (Lonestar) is 47. HUD Secretary Shaun Donovan is 44. Comedian Phil LaMarr is 43.

Olympic gold medal gymnast Mary Lou Retton is 42.  I will never forget her performance and personality in the 1984 Los Angeles Olympics if I live to be 120 years old….

Actress Stephanie Romanov (Lilah Morgan on Angel) is 41. Rhythm-and-blues singer Sleepy Brown (Society of Soul) is 40. Actor Matthew Lillard is 40.

Actress Merrilee McCommas is 39. Actor Ed Helms is 36. Actress Tatyana Ali is 31. Rock musician Mitchell Marlow (Filter) is 31. Actress Mischa Barton is 24.

Thought for Today: “God gives us relatives; thank God, we can choose our friends.” — Addison Mizner, American architect (1872-1933). It’s not necessarily the same thought, though it’s related, but my grandmother always used to say that the police really shouldn’t investigate or prosecute interfamily murders at all, “because if next of kin don’t know who deserves to live or die, nobody does.”  I think Oscar Wilde might have been sympathetic to this philosophical position…..

The King’s Speech—January 17, 2011—Prytania Theatre, New Orleans 70115

The personal tragedy of an individual of marginal importance in history can be quite moving.  King George VI was not one of the mover’s and shakers of the 20th century, although he sat on England’s throne during World War II and was the last to wear the Crown of Emperor of India created for his great-grandmother Victoria a bare 67 years before his reign.  This movie shows Prince Bertie/King George VI: in perhaps the truest light, not only was he not one of the century’s (or even two decades’) movers and shakers, he manifests himself most sympathetically as one who was profoundly moven and shaken by the events of his time, in spite of his high rank and title.

The Duke of York’s personal tragedy was a speech impediment which so moved the people of the United Kingdom, Canada, Australia, and all the other English-speaking dominions that it is engraved on the minds of anyone who lived in that era (even Americans) if they were at all aware of England’s role in the world war.  Colin Firth captures the King’s stuttering as a result of childhood abuse and the film encapsulates it rather well for what it was really symbolic of—the hesitant stuttering of the British Empire as it muddled on through its last decade of existence.

Throughout my youth my conservative parents and grandparents (all Americans born in either Louisiana or Texas, but excessively enthusiastic Anglophiles) drilled into my head that Edward VIII had betrayed his heritage and his empire by marrying the heiress Mrs. Wallis Warfield Simpson from Baltimore.  That aspect of the tragedy is covered in this movie which also tacitly concerns how Princess Elizabeth became so popular, and ultimately queen.

For the first time made public (at least to my mind) is that Prince Bertie (George VI) spent years trying to overcome his speech impediment by and through the loyal services of a Harley Street (City of Westminster) Australian-born speech therapist (who actually lacked any formal medical credentials) named Lionel Logue who very sympathetically put up with the King’s (also to me heretofore unknown) arrogant bad temper.   Lionel Logue saw George VI as a friend, which (again reflecting the personal tragedy) apparently no one else did see.

It has been one of the most interesting points of hypothetical speculation about 20th century history to wonder what would have happened if King Edward VIII had aggressively “taken charge” in 1936 and insisted on marrying Wallis Warfield Simpson in the face of the Prime Minister’s opposition.  Would it perhaps have saved the British Empire if the monarch had been stronger and taken a bold modern step?  As one who watched the fairytale marriage of Prince Charles and Princess Diana blossom and then decay into a nasty modern divorce of simply sleazy series of episodes involving reference by HRH Charles of Wales to tampons and Diana ultimately dying in Paris in the company of the son of a slimy Arab purchaser of the quintessentially English Harrod’s Department store probably as a result of reckless driving by a drunken chauffeur—I think England could have benefitted from the much more minor scandal of Prince David (Edward VIII) insisting on marrying whomsoever he pleased, even if she were not royal, was a commoner in fact, from one of the (former) colonies, and twice divorced.  Such a revolt against religious strictures relating to marriage has at least as distinguished an English history as Henry VIII (It could have been said that “VIII is the number for royal marriage revolt—Henry VIII to Edward VIII”). (Or alternatively “VIII is the number for revolting royal marriages…”).

But the simple truth is that Edward VIII eschewed his education and birthright, became Duke of Windsor, flirted with Nazis and Naziism, and generally was an embarrassment to England and the Empire, living in self-imposed exile and (all but social) obscurity until his death in Paris in 1972.

The movie is wonderful “history lite” with one of the worst likenesses I’ve ever seen of Winston Churchill playing the Lord of the Admiralty and World War II PM.  All the characters are charming and unoffensive, even Wallis Warfield Simpson, and the sidebar references to Hitler and the War are as innocuous as those old newsreels of the Fuhrer speaking to the assembled hundreds of thousands in Nuremberg could possibly be.  There is even a cameo appearance of the actual 1937 Coronation itself embedded in the movie.  I think my grandmother and grandfather would have poked lots of holes in the historical fabric just because “they were there” and knew about so much of the historical context, and they would complain bitterly about the action of the movie ending on September 3, 1939, at the beginning of World War II rather than showing the harsher wartime reality of the stuttering King’s reign.

But it was good to be back at the old Prytania Theatre near Jefferson in Uptown New Orleans close to Audubon Park and Tulane, and to feel that history lives on in one form or another.  The really important point here is to preserve the memory of the last decade of the British Empire in all its stuttering, hesitating reality as embodied by its unwilling, stuttering, hesitating King, who loved his daughters and endearingly describes himself to the little princesses Margaret and Elizabeth as a Penguin who transforms into a gigantic Albatross (go figure?) early on in the movie.

Janus—January—Ganesha—REL & MLK—Liminality and Transition in Modern Holidays

As Jadis, the White Witch/Queen of Eternal Winter in Narnia once said, “A door from the world of men; I have heard of such things; this may wreck all”.  Clive Staples Lewis, “The Lion, the Witch, and the Wardrobe.”

If there ever were a god who personifies the door from or to the world of men, or any other portal, it would be the Roman god Janus, the two-faced deity who looked forward and backward through time and space.   Janus was among the most ancient of the distinctively Roman gods, one of my earliest girlfriends/ crushes in life was named “Jana”—Janus’ female counterpart and closer cognate to the Hindu Ganesha-Jayanti.   Ganesha is the elephant-god whose “pachydermal” strength and size permit him to remove all obstacles from the way—like an elephant charging through the forest (or anything else, I guess).  Janus personified and presided over the obstacles themselves—especially barriers, passages, and doorways in particular.

As through the barriers of time we fly on our annual travels to and from the dimensions of one year to another, we pass each year through the month of “January” named for this particular god of most apparently ancient and revered antiquity in the Indo-Germanische Ur-sprach und Ur-Gesselschaft as they (the proto-Indo-European language and society) might have existed in some vague yet certain to have been real at one time Indo-Arisches Ur-Heimatland.

New Year’s Eve-to-New Year’s Day is the generally recognized boundary or liminal moment between one year and the next, but I would suggest that the joint celebration of General Robert E. Lee’s birthday together with Reverend Martin Luther King’s birthday this coming Monday January 17, 2011, is a much more profoundly liminal, Janus-like moment—Robert Edward Lee’s birthday (January 19, 1807) looking backwards towards the Old Confederacy, and the Old Constitutional Federal Union from which it sprang, and Martin Luther King’s Birthday (January 15, 1929) which (at this point in time also looks back) albeit on the Post-Robert E. Lee South of Reconstruction and Jim Crow more than on the early Republic.

I grew up taught to love and revere General Robert E. Lee as the brilliant military commander under whom my ancestors fought in 1861-1865.   And although I’m sure that MLK and I would have disagreed on many particular questions of policy, I cannot help but feel deep and profound awe when I re-read Reverend Martin Luther King’s letter from the Birmingham Jail, to which I can personally relate so many times more than his “I have a Dream” speech which is by far the best known of his speeches.   I do believe that Martin Luther King was a man after Jesus Christ’s own heart—the heart of a revolutionary bludgeon against legal tyranny and hypocrisy on the part of a self-centered elite.  But I see so much of myself in Robert E. Lee’s life, internal conflicts, and career that I cannot help but feel closer to the Confederate leader—even though my life, frankly, is more that of a civilly or uncivilly disobedient activist.   Does it have anything to do with my status as a white man, son of the South?  Of course it does.  And it tortures my mind and conscience, because I realize the contradiction—-Lee was a product of the Establishment who remained an instrument of the establishment.  MLK was a product of the underclass who always remained an instrument of the underclass struggling for some measure of equality.  I am a product of the establishment and child of upper class (read “rich”) family who, having lost it all or most of it all to what he perceives as serious injustice and governmental-corporate malfeasance has dedicated his own life to the assisting struggles of the underclass, of all underdogs, and of the disenfranchised.

When recently in Baltimore I went to several of the Thurgood Marshall exhibits scattered around Thurgood Marshall’s home city and was similarly moved by the struggles of the First African-American Justice of the United States Supreme Court.  I do not think he was a good lawyer, and he was frankly an abysmal justice—but he was definitely in the right place at the right time, and his struggle for freedom is much like mine.  The airport between Baltimore & Washington, located closer to Annapolis where my son studies at St. John’s college than anywhere else, has one of these exhibits and in fact the BWI Airport is called the “Thurgood Marshall” International Airport.  Strange that there is no airport named after John Marshall, Chief Justice of the United States from 1801-1835, even though this Justice Marshall is justly credited with forming and shaping the modern Anglo-American tradition of constitutional jurisprudence in the United States.  John Marshall was former and shaper to the same degree that Thurgood Marshall was formed and shaped by the times in which he lived, and was an effective and competent participant in those times and events.

When checking out how the transition in my lifetime had occurred between the mid-January celebration of Robert E. Lee’s Birthday and the Mid-January celebration of Martin Luther King’s Birthday, I was more than mildly surprised to learn that Alabama, Arkansas, Georgia, and Mississippi all jointly designated the Third Monday in January as Robert E. Lee day AND Martin Luther King Day.   In Florida, January 19, is still Robert E. Lee Day, but not a paid holiday, so nobody gets an extra day off, while in Virginia the day is jointly Robert E. Lee, Thomas “Stonewall” Jackson’s birthday.  I’ll bet there are a lot of racially segregated parties this weekend with very few crossover members attending both.

In a very real sense, that is too bad I guess—in the spirit of Janus and Ganesha, the lives of both Robert E. Lee and Martin Luther King represented (and up to a point, constituted) the ritual re-enactment of boundaries.  One of the great boundaries that Robert E. Lee had to cross in his life was the boundary between the blue and the grey.  He was a graduate of West Point and up to a point the founder of the effective U.S. Army Corps of Engineers.  He built up the levees around St. Louis—a kind of boundary maintenance between dry land and riverbeds—and he retained his U.S. Army commission until the secession of the State of Virginia, to which he felt a primary loyalty traditional in those early days of the Federal Republic.  He believed he was a Virginian more than an American, so he respected the boundary between the State and Federal government more than most of us can imagine possible in this modern era.

For Martin Luther King, the primary boundary was one of color, between black and white, of all the symbolically and physically cordoned spaces which separated black and white in the buses, trains, schools, parks, restaurants, and movie theaters of the Southern United States and many other parts of the country as well.  (In the Northern part of the United States, where de jure segregation was less rigid, de fact segregation by residential areas was much stronger.  As former California Senator (and Japanese-American linguistic/semanticist) S.I. Hayakawa once explained it to us when he addressed my high school in 1973, “Southern Whites don’t care how close the Black man gets so long as he doesn’t get too high; the Northern Whites don’t care how high the Black man gets so long as he doesn’t get too close.”

So Robert E. Lee’s life was all about boundary maintenance, and Martin Luther King’s life was all about boundary destruction.  Some say that Robert E. Lee’s strategy for fighting for Southern Independence in 1861-65 was hampered by his excessive respect for boundaries: when the Northern will and organization was low during the two earlier years of the war, Lee several times stood back in Northern Virginia and failed to invade Maryland and seize Washington D.C.  By the time Lee finally decided to cross the boundary and go—I’ve never quite understood why—into Southern Pennsylvania (did he expect an uprising of the Pennsylvania-Dutch/German Amish in favor of the Confederacy? probably not….for Lee was a very smart and well-educated man) it was too late.  The Northern Armies had become stronger and better organized and even if Lee had won Gettysburg, he could not have realistically conquered Pennsylvania—so as I say, I’ve always wondered why he bothered at all—it’s as if he was afraid frontally to attack Washington—too close to the “boundary” of his own home in Arlington perhaps?  If so, his respect for boundaries really did “cost him the farm” for Arlington was seized and made forfeit.

In my world, as I’ve said so often before, I am interested in boundaries, albeit in very different ways.  With regard to the law—I want to crash the remaining boundaries between Black and White in regard to the enforcement of Civil Rights—I think that the idea that Civil Rights Law is primarily a welfare program for racial minorities is just AWFUL—both un-American and Anti-American—and it is wholly inconsistent with what the Supreme Court has been preaching about affirmative action and racial categories in the law since at least 1978.  I would love to see the Civil Rights Laws completely removed from their Public Welfare location in Title 42 and moved perhaps to Titles 4, 5, or 28, or perhaps entirely into Title 18.  It is evil to associate constitutional rights with Welfare programs in my opinion: equally evil to using access to civil rights laws to maintain racial conflict and competition in the U.S.

Which is not to say that there should not be competition between the races, or even some degree of separation.  Readers of this blog will also recall that I am a constant critic of the failed doctrines of “diversity” which suggest that everyone should mingle and mix and get together and physically as well as culturally obliterate all the boundaries between different cultural, economic, ethnic, occupational, racial, and social groups.   I submit that the real appreciation and maintenance of diversity, and all the socio-economic an cultural (as well as physical) evolutionary and competitive-stimulus benefits which real diversity provides—mandates that we encourage and foster the ability of the people to test out alternative ways of life and see which ways work better for different people—and to watch these ways of life compete for the betterment of each cultural, economic, ethnic, occupational, racial, and social group.  Why should we NOT want a diversity of ideas fomented by separate but parallel development?  Why would we, how could we, really want a world characterized by bland homogeneity in which everyone shops at Walmart and CVS, the Gap, Starbucks, and maybe a MAXIMUM of a dozen other name-brand stores throughout the world.  Such drab uniformity to me as a nightmare, but also an inevitable consequence of promoting “diversity” meaning “shake-and-bake-hamburger helper-mixed-powdered just add water world global society.”

In conclusion the Mississippi proclamation of the joint holiday we celebrate this weekend seems to me worth quoting, even if it is last year’s proclamation which I just found  (Martin Luther King’s & Robert E. Lee’s Birthday):

Martin Luther King’s Birthday
Robert E. Lee’s Birthday

Print Holiday Notice

TO THE OFFICERS AND EMPLOYEES OF THE STATE OF MISSISSIPPI: WHEREAS, the Legislature has designated the third Monday in January as the day for the observance of the birthdays of ROBERT E. LEE and DR. MARTIN LUTHER KING, JR., and under the provisions of Section 3-3-7, Mississippi Code of 1972, is a legal holiday in the State of Mississippi; 

THEREFORE, all officers and employees of the State of Mississippi are authorized and empowered, at the discretion of the executive head of the department or agency, to close their respective offices in observance of the holiday on

MONDAY, JANUARY 18, 2010 GIVEN under my hand and seal of office at Jackson, Mississippi, this the 4th day of January, 2010.


C. DELBERT HOSEMANN, JR.
SECRETARY OF STATE
STATE OF MISSISSIPPI

January 9, 2011—Thoughts on Private Property vs. Communism/Communal Ownership as the Battle of New Orleans day marks end of Christmas and the New Year has begun in earnest

Yesterday (January 8, 2011) was the 196th Anniversary of the Battle of New Orleans, fought in 1815.  The Battle of New Orleans is extremely important in the history of the United States of America because it is the only battle of the War of 1812 which the Americans won.  It is extremely unimportant in world history except insofar as it launched the political career of Andrew Jackson and crystalized the legend of the (already nearly legendary) Pirate Captain Jean Lafitte, whose career spanned from France to Barataria Bay and Grand Isle, Louisiana, to Galveston, Texas, to Tzilam Bravo, Yucatan, Mexico, where there is a monument to him (as well as the marvelous [German Refugee owned] Bungalow Hotel Capitan Lafitte south of Cancun—one of my favorite resorts in the entire world).

But the War of 1812 was an unmitigated catastrophe for the United States, and might well have ended the country’s history all together.  Washington, D.C., was not only captured and burned but briefly occupied by the British Troops. How the Fall of the Capital City and Capitol buildings to the former rulers of the land, did not spell the end of the not even 38 year old nascent Federal republic can be answered in one word: Napoleon.

The British army and navy were so tied up during the years 1812-1814 trying to dethrone the Corsican Emperor of the French who also wanted to be Emperor of  Europe that they really just couldn’t be bothered to invest the time and energy it was going to take to discipline the rowdy colonials in America.

In any case, just before the British occupied the White House, First Lady Dolly Madison had the foresight (did she know the British were going to burn the entire city?) to cut a famous picture of George Washington out of its frame and take it off somewhere safe.  Dolly Madison might otherwise be forgotten to history, so this was her great moment, but so far as the War of 1812 goes, it was just a disaster, and didn’t reflect too well on the stability of the young nation known as the USA.

The British won all the significant conflicts “on the land and on the sea” and it was just pure preoccupation with Napoleon that led them to make peace in November of 1814—which leads us to the funniest part of the great American Victory in New Orleans—it was won two months after the war was over…. But you see, since the war had been so terrible for the Americans, they were terribly happy about Colonel Andrew Jackson’s victory over the British, led by General Edward Michael Pakenham (Brother in Law of Arthur Wellesley, the Duke of Wellington, who is most celebrated in history for a battle he won in a muddy field in Belgium, known by the appropriately grody name of “Waterloo”—which coincidentally was the end or “Waterloo” for Napoleon Bonaparte himself—so had the war of 1812 gone on any longer—America MIGHT have been lost…)

Anyhow—my Nachitoches, Louisiana-born and New Orleans educated grandmother Helen always made sure we celebrated Battle of New Orleans day—it was kind of the last day of the Christmas holidays—2 days after the Feast of the Epiphany, 5 days after her husband’s (my grandfather’s, the head of the household’s) birthday, and a week after New Year’s.

Since Elena and her mother and Charlie and I had celebrated Christmas at Tujague’s Restaurant (Founded 1856), and I did very little after December 25 to celebrate any of the twelve days of Christmas, not even 12th night or epiphany, and only went to see fireworks by the artillery in front of Jackson Square on New Year’s Eve, I decided to celebrate the Battle of New Orleans Day there, albeit sadly alone and without Elena and Charlie—and it was great again…. their spicy Briskette between dishes is one of the most distinctive things they’ve got… but everything there is wonderful. According to one of the many family legends about him, my grandmother’s father “Judge Benny” in New Orleans (once of the Louisiana Supreme Court and a mentor of a young lawyer named Huey Pierce Long, but who died the year I was born) told stories about Tujague’s at the turn of the LAST century—when they didn’t charge for food but had oysters piled up and only charged for liquor…. And so the late Autumn—Winter Solstice Holidays ended and yesterday *January 9, 2011* was indeed a dull dreary day in New Orleans—rainy and as wintery as it gets around here.  Worst of all, Charlie got on an aeroplane and flew back to drab, dreadful Baltimore, from whence he returned to dull but not quite so drab and dreadful Annapolis to begin his second term as a Freshman at St. John’s College—but he loves that little red-brick colonial college and town—and the classical education in language and philosophy he is getting there, so he’s happy.

I suppose the holidays of the end of the year really begin with Halloween, then All Saints then All Souls, then Guy Fawkes November 5 & Veterans’ Day/Remembrance Day/November 11, then Thanksgiving, then St. Andrews’ Day and Christ the King, then Advent with its Wreathes and multi-windowed, day-by-day Advent Calendars followed by December 25, St. Stephens’ Day, St. Johns’ Day, Holy Innocents, and the remainder of the Twelve Days of Christmas—-and for us as a family it all ended with this strange celebration of Battle of New Orleans Day—the battle that the Americans won that decided nothing because the war was over (*but I always used to wonder, what if the British HAD captured New Orleans? well, the food here probably wouldn’t have been nearly so good for one thing).

So anyhow, the Battle of New Orleans was a key event in U.S. history along only one axis or dimension: this was the battle that more than anything else launched Andrew Jackson of Tennessee towards the Presidency (he was the first President from “the West”, in his case Tennessee).  Jackson’s rise and the associated socio-cultural and political processes doomed (1) the Bank of the United States, whose demise was a good thing, and (2) the Five Civilized Tribes of the Cherokee, Choctaw, Chickasaw, Creek, and Seminole Indians, which was a very bad thing, but very important in the history of the U.S. and the Southern States in particular.   Because of his role in the Battle of New Orleans and as Seventh President, Andrew Jackson presides over the main square of New Orleans in front of St. Louis Cathedral, with an inscription on the pedestal “The Union must and shall be preserved” which he not only never said but never would have said (it was inscribed there by the occupying Yankee General—“Butler the Beast,” after New Orleans’ somewhat cowardly if rationally self-preservative surrender during 1862—the first full year of the War Between the States).  Jackson was a dedicated “states rights” democrat—a true Jacksonian in fact—and that is why, among other things, he dismantled the Bank of the United States in an effort to decentralize credit.

But the removal of the Southern Civilized Tribes was a different and very sad story.  Much shame and no glory to Jackson on that account.  But oddly enough it was just as symbolic and representative of the transformative economic debates and struggles of the 19th Century as the Bank itself. The truth about the Cherokee of Georgia, in particular, was that they were almost completely acculturated.  They had been agriculturalists for a thousand years before the arrival of the white man and lived in essentially stone-age/palaeo-technological urban centers like Etowah not one iota less sophisticated than most of the templed sites of Mexico—excluding only the Maya and Zapotec who exceeded the others by their public literacy, albeit elaborately naturalistic hieroglyphs which were ornate, baroque, and cumbersome, even compared to Egyptian hieroglyphs, never mind cuneiform or alphabetic writing…. But the Cherokee under Anglo-influence even developed their own alphabet in the 19th century for legal and literary purposes.

So just how acculturated were the Cherokee?  More than 60% of the lowland Cherokee population in Georgia had converted to Christianity by 1810, their chiefs lived in large neo-classical “Plantation” homes—and the Cherokee people held, per capita, as many African slaves as white people did and employed them in exactly the same way—slavery having been a long-standing tradition among all the Five Southern Civilized Tribes.  The Cherokee had instituted Anglo-style courts and jury-trials and newspapers and schools and churches. There was only one regard in which the Cherokee, Choctaw, Chickasaw, Creek, and Seminole refused to acculturate to the Anglo-American ways—and it turned out this was fatal.  Despite heavy intermarriage and adoption of Western customs of dress and commerce (in movable property and goods), the Cherokee refused to adopt private property.

This feature of North American aboriginal land tenure—primitive communism—and this feature alone of the Anglo-Cherokee lifestyle meant that the two cultures could not exist in Georgia, nor the Choctaw in Mississippi nor the Creek in Alabama.  This was a classic example of the Marxist confrontation between two dialectically opposed “modes of production”, and “primitive communism” and private property regimes simply are incompatible, apparently—they cannot peacefully coexist within the same society. In terms of cultural evolution, it may be interesting to note that the Maya, the most advanced and literate of all Native American cultures, had a strong tradition of private property—and litigated legal disputes over land that continued from pre-Hispanic times through and beyond the Spanish colonial period.

And so it was (and still is) that the private property holding and accustomed Yucatec Maya and Aztec of Mexico survived in much greater numbers than their illiterate and “communistic” North American cousins—despite so many other symbolic and structural similarities between the political, economic, and cultural manifestations between North and Middle America.

Nowhere in North America did population grow as large as in Mexico, but Alabama and Mississippi had even higher density and more elaborate and deep historical roots for the civilized tribes than Georgia—though even Hernando de Soto was overwhelmed with the riches of the Natives of Georgia when he arrived in the 1540s—but Moundville in Alabama is considered one of the most elaborate of pre-Hispanic urban centers in North America.  And the dozens of elaborate mounded Mississippian sites from Natchez and Vicksburg to Winterville and the Yazoo Basin and  Teoc in Carroll County, ancestral Plantation (and Indian mound site) home of the family of Senator John McCain, at which later place I have had the privilege of participating in Harvard-Lower Mississippi Survey archaeological research all attest to a widespread sophisticated culture which was worthy of more place in world history than Ancient Native Mississippian society has retained, in large part thanks to Andrew Jackson.

Still, as the last Christmas season vanishes and the New Year begins in earnest, and I renew my own war to preserve the private property “mode of production” from the creeping modern communism of today’s centralized banks, I look back on the history of the Battle of New Orleans and impetus it gave to the Seventh President’s career with a mixture of awe and sad wonder: the Cherokee had every right to remain in Georgia and it was a crime to deprive them of THEIR property rights.  The Choctaw homelands of Mississippi and the Creeks of Alabama the same.  Why could the white settlers NOT have worked out a compromise between private property ownership on Anglo lands and communal ownership within the Indian Nations—as they were called, and as they rightfully were?  Or would the compromise have been one of extensions of credit by which the Cherokee would have been further assimilated into Anglo society, but not removed by force, and would this credit economy, if centralized by a Bank of the United States (such as the Federal Reserve ultimately became?) not have ultimately led to a general imposition of communal land tenure such as that towards which the United States appears to be tending at the present time….communal except owned not by Indian tribes controlled by friendly chiefs, but by far off bank bureaucrats who work together with the government…..

Civil Rights Removal: A SCOTUS Petition for Writ of Certiorari to the Eleventh Circuit Court of Appeals

Readers of this blog know of my long-standing fraternal affection for and ideological and spiritual collegiality with Dr. Kathy Ann Garcia-Lawson of Palm Beach Gardens, Florida 33410.  Kathy suffered terribly this year when after 5 years of valiant and courageous resistance, she was at last unable to prevent the entry of a devastating (and for many reasons completely illegal and improper) final judgment of dissolution of marriage on April 29, 2010.   In this Order, Judge Richard L. Oftedal sought to criticize and punish Kathy for standing up to the system and objecting to it.  Kathy’s Final Judgment Oftedal 4-29-2010.  People like Judge Oftedal really dislike people like Kathy (and me) who stand in the way of the fully perfected implementation of the “Brave New World” Envisioned by Aldous Huxley in 1930 and largely incorporated as the “New World Order” being born before our very eyes.

Whether, like Kathy and I are, you are horrified by or quite entranced by the fluidity, instability, and impermanence of human relationships, human rights, and the complete and utter corruption of the institutions of government entrusted to protect and promote both, it is a reality that the most sacred of all contracts, the contract of marriage, into which most people would ever dream of entering is guaranteed to be breachable by the government with little or no “per se” penalty.  If there is an estate, much of it will be confiscated by the lawyers, and the rest of it will be divided and slaughtered like Solomon’s baby (if the true mother had not intervened—because in the modern scenario the mother may well WANT the baby to die….that, too, is a constant background feature of modern life—the abortion meat-grinder).

What emerged as a particularly important issue in Kathy’s case, however, was at best tangentially related to the institution of marriage.  That issue was: does any judicial procedure whose outcome is absolutely assured or guaranteed, even as to the one single repetitive but common issue uniting all such procedures, qualify as a fair procedure?  Specifically, since divorce is not expressly and overtly guaranteed by law: does a judicial process which grants it automatically as if it were expressly and overtly guaranteed, as a result of an overwhelming state-wide custom, practice, or policy having the force and effect of law, violate equal protection of the law?  The classes of persons involved are determined only at the time of the initiation of judicial proceedings: petitioners for dissolution must always win their petition for dissolution.  Respondents (like Kathy) to a petition for dissolution must always lose.

As it happens, there is at least one Supreme Court case which seems to say that automatic resolution in favor of one party, any outcome determinative law or custom having the force of law, is unconstitutional.  That case is Greenwood v. Peacock (1966).  Greenwood v Peacock 1966

I worked with Kathy for a long time on trying to get the U.S. District Court for the Southern District of Florida to accept Kathy’s removal of her dissolution proceedings on Civil Rights Grounds pursuant to 28 U.S.C. Section 1443(1). We sought reconsideration of the Order of Remand pursuant to the unique provisions of 28 U.S.C. Section 1447(d). April 13 2010 KAGAL Rule 59(e) Motion for REVOCATION OF REMAND.doc- Kathy’s draft Judge Kenneth A. Marra would not accept it, although he did finally acknowledge that Civil Rights Removal was an express congressional exception to the “Well-Pled Complaint” rule that the grounds for removal must plainly appear on the face of any complaint for the case to be removable.  Document 9 Denying Rule 59(e) KAM KAGL

The key issue in Civil Rights Removal is a judicially formulated interpretation, functioning as a custom, practice, or policy having the force and effect of law, which prevents most courts from allowing removal under 28 U.S.C. Section 1443(1) is that it is an affirmative action program: available to minorities only, and available to them only where specifically anti-minority (racially oppressive) state legislation is specifically overridden by affirmative federal legislation. Needless to say, the number of cases fitting this particular paradigm can be counted, well, on the thumb and forefinger of one hand, because that is precisely the number of civil rights removals the Supreme Court has ever allowed to stand.  Rachel v Georgia 1966 Rachel held that where a specific Federal statute (the Civil Rights Act of 1964) guaranteed equal access to restaurants for persons of all races specifically overrode Georgia “Jim Crow” law mandating segregation of the races, removal of Georgia state prosecutions for trespass against black diners would be permitted under 28 U.S.C. Section 1443(1).

What the judicial policy of affirmative action means is that what SHOULD be a powerful tool for correcting abuses in state courts is all but useless.  The language of 28 USC 1443 as enacted by Congress neither mentions race nor color nor any aspect of black-white minority-majority tensions in America, but the Supreme Court has construed the statute so as to mean absolutely nothing to anyone for going on 44 years now.

I suggested to Kathy and Kathy agreed that the Supreme Court’s construction of Civil Rights Removal is nothing but a blatant affirmative action program, a positive form of racial discrimination in favor of a racial minority or racial minorities generally which cannot pass the “Strict Scrutiny” test formulated for all equal protections and fundamental rights issues by the Supreme Court in the late 1970s and consistently applied ever since.  Quite simply: rendering 28 U.S.C. Section 1443(1) nugatory by imposing a racial gloss on racially neutral language is neither the simplest nor most narrowly tailored route to achieving or maintaining any compelling governmental goal or purpose.  In fact, no governmental purpose (aside from limiting the number of cases removed from state to federal court—hardly a “compelling” governmental purpose in any sense of the term) has ever even been mentioned.

So, following Marra’s orders, the Eleventh Circuit Court of Appeals ignored Kathy’s appeal and summarily affirmed Marra’s Order of Remand, without even MENTIONING the question of strict scrutiny for all race-based schemes even those called “benign.”  10-12369 Lawson v Lawson 201012369 10-06-2010

I think the most amazing aspect of the Eleventh Circuit’s Order was its complete refusal to address our strict scrutiny attack on the Judicial Policy of Implementing or Constructing the BROAD, ALL-INCLUSIVE language of 28 U.S.C. Section 1443 as an extremely narrow racial affirmative action program which really serves no one, black, white, yellow, brown, red, or completely indeterminate.   The normal Supreme Court rule is that courts must give full force and effect to EVERY WORD of any congressionally enacted statute.  Here, completely reversing that norm, the Supreme Court ruled that courts must not give effect to any words in the statute at all, but only to the Supreme Court’s gloss on the statute.  In essence, what the Supreme Court admitted in its 28 USC 1443 jurisprudence was this: the Civil Rights movement and reform of the 1950s and 1960s was really great for keeping African-Americans out of the clutches of communist infiltrators in the United States, who had gained so much of a foothold in the Black community (north and south) during the 1920s, 1930s, and 1940s, but once we had obviously won the Cold War, it was perfectly reasonable to forget about Civil Rights for any other segment of the population because, well, if Federal Courts had to police the several State’s compliance with equal protection and due process, two terribly undesirable things would happen: (1) Federal Judges would have to work really hard, because lots of cases would be removed from state court, and (2) Civil Rights might actually be upheld as applying to all people, regardless of race, creed, or color, and to allow everyone, even white people, to assert civil rights would just, really, radically, and perhaps definitively limit the power of government—and the Warren and Burger Courts certainly had NO interest in limiting the power of the Central Government (or, really, any other government for that matter—the Rehnquist and Roberts Courts really have not been significantly better—Justice Scalia has always amazed me for his jurisprudence of, “a democratically elected legislature cannot enact an unconstitutional statute unless I really don’t like it.”

So, to complete this little essay, I offer you now Kathy’s SCOTUS Petition for Writ of Certiorari to the Eleventh Circuit.  01-04-11 Petition for Writ of Certiorari Final CRR-KAGL This is a single issue petition focusing on the scope of Civil Rights Removal and the question of whether the original Congressional language adopted by the Democratically elected legislature OR the judicial construction, gloss, and interpretation imposed by the Supreme Court in 1966-1975 should prevail despite the fact that the Supreme Court in so doing designated Civil Rights Removal as a positively discriminating affirmative action program which is irrational in that it benefits almost nobody and renders Congress’ statutory language completely nugatory.

I for my part am interested in Civil Rights Removal because of my involvement in another field of American law whose outcome is almost as uniformly determined as dissolution of marriage/divorce cases: namely, judicial foreclosure and eviction and judicial eviction following non-judicial foreclosure.   Many homeowners have attempted to use Civil Rights Removal only to be told that if the state statutes apply equally to blacks, whites, hispanics, and all other racial groups, Civil Rights Removal is not available no matter how many non-racially defined civil rights and fundamental constitutional guarantees are violated.  Kathy and I would welcome any and all commentary on this Petition, to be sure. I would also like to express my deep gratitude to Edward Villanueva of San Diego who has underwritten the continued litigation of this and many other issues, and to the newest member of Tierra Limpia/Deo Vindice, S. P.,  who ably assisted in the preparation and editing of the Petition under rather astounding circumstances and short notice while I was otherwise incapacitated.