Update no.583

Update from the Heartland

No.583

11.2.13 – 17.2.13

Blog version:  http://heartlandupdate.blogspot.com/

To all,

On Monday, the President of the United States of America hung the Medal of Honor around the neck of Staff Sergeant Clinton LaVor “Clint” Romesha, U.S. Army, 31, for conspicuous gallantry and intrepidity in combat action on 3.October.2009, at Combat Outpost (COP) Keating, Kamdesh district, Afghanistan, while serving as a section leader, Bravo Troop, 3-61 Cavalry, 4th Brigade Combat Team, 4th Infantry Division.  Romesha is only the fourth living recipient of the Medal of Honor from the War on Islamic Fascism, and the 3,460^th recipient in the history of this Grand Republic.

“The Art and Politics of ‘Zero Dark Thirty’ – The man behind the film about the hunt for bin Laden talks about how he combined facts with imagination and calls his Senate critics ‘intellectually dishonest.’”

by Matthew Kaminski

Wall Street Journal

Updated February 15, 2013, 7:15 p.m. ET

http://online.wsj.com/article/SB10001424127887324162304578306292338216514.html?mod=djemEditorialPage_h

We have discussed and debated Enhanced Interrogation Techniques (EIT) used in the War on Islamic Fascism.  No one in this humble forum has raised the controversy surrounding the movie, “Zero Dark Thirty,” as noted in the Kaminski article above.  The movie received an ample amount of negative criticism for their portrayal of EIT and the contribution to Operation NEPTUNE’S SPEAR {2.May.2011} [489, 490, 503]. Kathryn Ann Bigelow did a magnificent job as director of the film.  Mark Boal wrote a masterful screenplay of a contemporary, complex event that required an artist’s conjecture to produce a compelling storyline.  I understand the political and public revulsion to the brutality of war, but that cannot and must not lessen the awesome creativity of Boal and Bigelow; they deserve honors . . . not disdain.

Regardless of our political leanings or whether we appreciate the message, President Obama’s rhetorical style remains awe-inspiring and formidable.  For those of us who appreciate fine-rhetoric, Tuesday night’s State of the Union speech was quite enjoyable.  Unfortunately, I am afraid the days of words inspiring a nation expired with Sir Winston Churchill.  President Obama has taken a more aggressive path of late, using his authority to issue executive orders; however, the proof of the pudding rests with his ability to herd the cats of Congress for the greater good of this Grand Republic.  We shall see how all this works out . . . I suspect in short order.

Now, we hear the Senate Republicans intend to mount a full-scale filibuster to block the confirmation of Senator Charles Timothy “Chuck” Hagel of Nebraska as Secretary of Defense.  This is just flat-assed wrong and spiteful in the worst way.  Senate Majority Leader Reid called for a cloture vote to conclude debate and failed [Senate: 58-40-1-1(0)]; Vitter of Louisiana was not present for the vote, and Hatch of Utah was present but abstained.  Republicans maintained their block integrity.

            I am not and never have been a fan of Chuck Hagel.  As a citizen, I laud his service to this Grand Republic, however I doubt I would ever vote for him for anything.  If I was a U.S. senator, charged with responsibility by Article II, Section 2, Clause 2 of the U.S. Constitution, I would have to vote, yea, for Hagel as President Obama’s nominee to be Secretary of Defense; there is no question he is qualified and capable of performing as a key national security advisor and Cabinet officer to the President.  This is not a vote for Hagel; it is a vote for the President’s nominee; there is a significant difference the senate has apparently forgotten.  And, they are dumbstruck in utter ignorance as to why We, the People, hold them in such disdain and low esteem.

Would you be so kind to indulge me for a smidgen of significant history?

            Myra Colby was born in 1831.  She married an aspiring law student, James Bolesworth Bradwell, in 1852, against her parents’ wishes it seems.  James was admitted to the Illinois bar three years later, and opened a law firm in partnership with Frank Colby, Myra's brother.  Myra found her affinity for and studied the law in her husband’s firm.  No law school of the time admitted women.  In 1869, Myra took and passed the Illinois bar examination with high honors.  Per state law of the day, having met all the requirements, she petitioned the Illinois Supreme Court for admission to the state bar.  The court denied her application, noting among other things, “That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth.”  Not satisfied, Myra appealed to the Supreme Court of the United States of America.

            The Supremes heard the appeal of Mrs. Myra Bradwell on 18.January.1873, and rendered judgment the following April – Bradwell v. State of Illinois [83 U.S. 130 (1873)].  Associate Justice Samuel Freeman Miller wrote for the Court.  “We agree with him [Matthew Hale Carpenter, counsel for Myra Colby Bradwell] that there are privileges and immunities belonging to citizens of the United States, in that relation and character, and that it is these and these alone which a State is forbidden to abridge.  But the right to admission to practice in the courts of a State is not one of them.”  It was Associate Justice Joseph Philo Bradley who decided to hammer home the applicability of the doctrine of coverture in his concurring opinion. 

     “So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States.  One of these is, that a married woman is incapable, without her husband's consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counsellor.

      “It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

      “The humane movements of modern society, which have for their object the multiplication of avenues for woman's advancement, and of occupations adapted to her condition and sex, have my heartiest concurrence. But I am not prepared to say that it is one of her fundamental rights and privileges to be admitted into every office and position, including those which require highly special qualifications and demanding special responsibilities. In the nature of things it is not every citizen of every age, sex, and condition that is qualified for every calling and position. It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence." [emphasis added]

The Court did acknowledge that Myra was qualified to practice law, other than the fact she was a woman and worse yet married.

            Beyond our contemporary disgust with the ugly face of coverture, the far more shocking reality erupts from one sentence in Justice Miller’s statement for the majority in Bradwell.  His concept of constitutional law, and by default the majority of the Supremes of the day, does not conceive of rights beyond the Constitution, as if the 9^th and 10^th Amendments are irrelevant or do not exist.  The implication of Miller’s statement noted above is far more profound than coverture.  He states that delineated rights are the only rights protected by the Constitution.  He is, of course, correct . . . there is no right to practice law; thus, there was no constitutional protection for Myra Bradwell, which means there are no rights beyond those defined in the Constitution, i.e., if it is not written, it does not exist.  This is the argument of the strict constructionists.  The status of fundamental rights is essential to our future, to our freedom, to our citizenship.  We have discussed every citizen’s fundamental right to privacy among them.  We have yet to reconcile the founding principles with the Constitution and common law.  The Supremes could have taken a far different tack by differentiating between those rights implied by the 9^th and 10^th Amendments beyond the Constitution and the overarching State interest in the public good.  The doctrine of coverture was intended to control private affairs and conduct, and clearly substantiates the subservient status of human beings; again, the notion is clearly not consistent with the founding principles.  Even though the Bradwell ruling came in 1873, the legal principles expressed are vital for public debate and shaping this Grand Republic for generations to come.

            I must note in the light of my incessant proselytizing about a citizen’s fundamental right to privacy (as well as other fundamental rights retained by each citizen), We, the People, granted to the federal government authority to regulate public conduct for the common good.  There should be no doubt the government at its many levels has the authority to control public conduct, and it is only through the representative process that we can amend public law.  Where the conflict lays in my humble opinion is the interface or intersection of private and public domains.  It can be argued in Mrs. Bradwell’s case, the government sought to regulate public conduct, e.g., the practice of law, by restricting the recognition of women.  I shall never join that argument.  We, the People, must get serious about removing government from our private affairs, if we shall have any hope of preserving our cherished Liberty.

            To conclude our journey through history, Myra Bradwell was eventually admitted to the Illinois bar in 1890, on the basis of her original application, and she was granted a license to practice before the United States Supreme Court in 1892.  Unfortunately, Myra Colby Bradwell had little time to enjoy her triumph.  By 1893, she was diagnosed with cancer, and passed away in Chicago on 14.February.1894.

            The doctrine of coverture that hobbled Mrs. Bradwell has tenaciously constrained women for centuries.  Vestiges of the doctrine still exist in our customs, traditions and practices to this very day.  While American women have overcome many of those barriers, we still have a long way to go on the journey to achieve the promise embodied in the founding of this Grand Republic.  “Long journeys begin with small steps,” and the journey continues as we are not yet home.

From the books comes another sobering morsel of history.  In December 1830, the Georgia legislature passed and Governor George Rockingham Gilmer signed a series of laws expropriating the treaty lands of the Cherokee Indians in northwest Georgia.  The state made no bones about seeking to take possession of the gold, silver, and other mines on the Cherokee land.  The tribe filed suit for an injunction against action as a violation of the Treaty of Hopewell between the Cherokee Nation and the United States, signed on 28.November.1785, as well as a series of subsequent treaties and federal law [PL 7-I-013; 2 Stat. 139; 30.March.1802].  The case made its way to the Supreme Court and was decided on 18.March.1831 – Cherokee Nation v. State of Georgia [30 U.S. (Pet.) 1 (1831)].  Chief Justice John Marshall wrote for the divided Court in what was a disappointingly shallow ruling against the Cherokees – more rationalization than scholarly jurisprudence.  Marshall decided the Cherokees were not an independent foreign nation; rather, they were a dependent state within a state of the Union.  His conclusion, the U.S. Supreme Court did not have jurisdiction, thus affirming the Georgia Supreme Court’s validation of the state relocation laws. Associate Justice Smith Thompson wrote an impassioned dissenting opinion in which Associate Justice Joseph Story joined; their argument was not sufficient to convince the majority.  Although not part of the case, we must note the federal government passed “An Act to provide for an exchange of lands with the Indians residing in any of the states or territories, and for their removal west of the river Mississippi” (AKA Indian Removal Act of 1830) [PL 21-I-148; 4 Stat. 411; 28.May.1830] [509].  The combination of state and federal laws along with associated court ruling led to what would become the Trail of Tears – the forced relocation of the “Five Civilized Tribes” – Choctaw (1831), Seminole (1832), Muscogee {Creek} (1834), Chickasaw (1837), and Cherokee (1838).  The Cherokee Nation ruling was not a high point in judicial reasoning.  In a rare acknowledgment, the Court noted public protests intended to influence the justices.  At the end of the day, the ruling set the stage for what would become the reservation system in existence today.

News from the economic front:

-- After recent statements and actions by Prime Minister Shinzo Abe of Japan [578], the Group of Seven major economies issued a joint statement that reaffirmed their commitment to let market forces determine exchange rates, and that central-bank policy will be focused solely on domestic objectives, in an attempt to avoid a potentially destabilizing round of currency devaluations, the so-called currency wars.

-- Japan reported the country’s Gross Domestic Product (GDP) fell 0.1% in 4Q2012, or 0.4% on an annualized basis – the third contraction in the last three quarters.  The disappointing economic data will give the Japanese government some support for the meeting of G20 finance ministers and central bankers in Moscow, as the newly elected government faces criticism for its economic stimulation effort and the consequent effect on global currencies.

-- The German GDP fell by 0.6% and the French GDP shrank by 0.3% in 4Q2012 – the worst performance since the lowest point of the global financial crisis in 2009.  Italy’s GDP dropped 0.9% -- the 6^th straight fall. The figure for the wider EU – all 27 member states – was a fall of 0.5% – deepening the bloc’s recession and posting its worst performance in almost four years.

London Inter-Bank Offered Rate (LIBOR) Debacle [552]:

-- The Justice Department and Commodity Futures Trading Commission are expanding their interest rate rigging investigation to interdealer brokers, including UK brokerage firms ICAP and R.P. Martin Holdings that deal in hard-to-trade assets.  While the firms are not yet accused of wrongdoing, however some of their employees played a crucial role in helping specific traders rig submissions by banks of estimated borrowing costs in different currencies.

No comments or contributions from Update no.582.

My very best wishes to all.  Take care of yourselves and each other.

Cheers,

Cap                        :-)