Yale Constitutional Law Series Review. It’s Postwar Positive Law Propaganda


1. The constitution wasn’t pro-slavery, it was just politically impossible to eliminate it AND unify the north and south, and it was economically impossible for the south to give it up, the north wouldn’t pay for the repatriation of the slaves, or subsidizing the costs of the south to abandon them, and north and south were substantially different civilizations because the south was agrarian Scotts-Irish and the north commercial anglo-dutch, as different as anglo and french canada today and this genetic and cultural difference remains. Likewise, while the civil war propaganda was over slavery – the pc/woke movement of the day – the causal debate was over the fact that the south paid all the federal taxes on the one hand, and that the western expansion after the Louisiana purchase put the agrarian south in a position to dominate the west, and the combined south and west would dominate the north.

2. The constitution was not democratic in design it was republican, with Jefferson trying to limit the power of the state by maximizing inclusion – not empowering the bottom – without producing the historical failing of democracies maximizing the power of the ‘less able’. So democracy was specifically not the model they sought, because of the repeated and rapid failure of every democratic experiment in history, as the people maximize rent-seeking and the primary means of self-improvement evolves into competing over rents instead of productivity, and the people, city-state, kingdom, nation collapses from inability to adapt to demographic, ecological, climatological, plague, disease, or technical change, or from shocks from the loss of trade routes, from mass migration, or from war or conquest.

3. The confederation was not designed as an indivisible union it was a reflection of 1000 years of germanic civilization under the Holy Roman Empire (HRE) of loosely federated Germanic states. The semi-religious effect of the french revolution – which is arguably a failed experiment, not only because it destroyed the HRE, obscures our historical understanding, that England was a germanic nation and part of german civilization, and that only changed after 1830. So the USA was formed as a traditional germanic state, using the common law of germanic states, using the loose federation of the germanic states, but with the more advanced institutions of the English germanic state. Without that understanding, the audience does not grasp the 5000 years of the organization of western civilization under the trifunctional with law as the first institution, the state, second, and the faith last, and that America, like England, like the greater germanic civilization, like the roman and greek, like the pre-city states, back to the steppe, have relied on a continuous, evolving legal tradition, that preserved individual self-determination, by sovereignty, and reciprocity of all those who were capable of purchasing that right by demonstrated loyalty to the polity.

4. Democracy is a luxury that is the product of successful construction of rule of law, and a majority middle class (demonstrating self-determination by self-determined means) as a result.  India cannot escape endemic corruption and poverty because it tried to ‘skip’ the necessary developmental sequence (Fukuyama): was not first fully militarized, then from the military a professional bureaucracy, and from that professional bureaucracy rule of law, and once military, state, rule of law were established gradually enfranchising groups until a middle class emerged that was capable of sustaining rule of law out of pure self-interest before opening the franchise to all.

5. Democratic government is useful only for the distribution of spoils (earnings) of war, conquest, shipping routes and lanes, stable resulting currency, and the wealth that accumulates from the new opportunities therefrom. Democracies have a terrible record of Strategic, Military, Political, and Economic rule – the via positiva. Democracy like the jury only have utility in ending confidence of the people in the legislature and assent or veto of appropriations or traditional and normative alterations.

6. Rule of Law, and Constitution, Legislation, Code, Regulation, Case Law, serve as a TECHNICAL operating system for large scale division of labor in human cooperation, and it does NOT serve (as this professor demonstrates by the frame of his arguments) as a secular religion that provides mindfulness, shared metaphysics, manners, ethics, morals, norms, and traditions – those are low-resolution low-precision social rules to assist in cooperation on shared strategy. Not high-resolution legal rules to prevent or resolve disputes. Democracy has never produced a good. Rule of law has always produced a good. The only known function of democracy that provides a continuous good is the jury for the judgment of conflicts, a parliament as a market for the production of commons, and the commercial market for goods, services, and information, and the geographic market for the production of polities. The idea that the common people are capable of self-rule is a pseudoscientific claim in order to create a pseudoscientific secular theology. I love the feeling of voting. I also recognize that the cost of that feeling is permanent internal political conflict over rents rather than permanent internal personal, marital, commercial, and social cooperation in the production of LOCAL harmony and preference.

7. We live in an era where most people are literate (whether or not informed), and only a minority of people directly participate in the market and survive entirely by market competition. We have lost the frequent visibility of people who are illiterate, or semi-literate, have only agrarian and religious experience and knowledge, and whose frame of reference is self-sustaining agrarian production, where even the least able of farmers is a small business owner with small business interests. The founders were very clear that they were institutionally and technologically advanced compared to the rest of the world, and extremely clear that they had left behind the parasitic nobility and the parasitic church, and the parasitic underclass, to create a ‘wholly middle class’ society – which means ‘eugenic’ society – which is why the eugenics movement took root in America. So chastizing the founders for limiting political participation to those with demonstrated capacity to make decisions of common interests, and for preventing the rent-seeking that they had just succeeded in escaping in Europe, or for having to tolerate slavery, is intellectually dishonest. “We the People” meant ‘We the people of virtue, who are not the parasitic nobility, church, or underclasses’.

8. The federation was a treaty between states. The constitution was an economic and military necessity of the time, given that Americans perceived european great powers like the Arab world views the American empire today. It needed to defend itself, but also create the opportunity to capture the rest of the continent. It was NOT a mere ideological preference, as this professor implies. ADULTS WITH RESPONSIBILITY AT SCALE DO NOT MAKE IDEOLOGICAL DECISIONS. They only speak ideologically (in ideals), or theologically (ideals), to simple people who are (as today) ignorant of strategic, military, economic, and political necessities. And the idea of federation was as unpleasant then as the disputes between Latin, Germanic, and Slavic Europe today. People want sovereignty. (ok…he starts correcting himself at 1:05, by stating the strategic incentives of the founders.

9. The idea that Congress was a parliament (place of parley) and functioned more as a war council is correct and well explained. (at this point I’m seeing his shift out of secular theology). The senate was expressly designed to preserve the independent interests of the state. Converting to direct election of the senate was a tragedy. Washington wouldn’t take the position of king, so they made a presidential executive instead (a mistake) a house of commons (parliament), the senate (house of lords), an independent judiciary.

10. Yes, bicameralism both makes it harder to make laws as well as reverse laws. But it is true they will produce fewer unconstitutional laws. But the failure in the constitution is requiring the assent of the supreme court prior to the ascent of legislation into law. This is partly because in the common law model of the English system the house of lords traditionally fulfilled that role, and the senate and the house of lords have both been eliminated from that by parliamentary sovereignty in England, and by attempts to impose democratic and legislative sovereignty in the states, rather than preserving rule of law by the common (natural) law of ancestral Germanic peoples.
11. The parliament is a jury. The number of the jury (historical jury, thang, senate, parliament, electorate) reflects (a) the number of people it is impossible or difficult to bribe, (b) the importance of the question before the jury, (c) the number of ‘houses’ (families, clans, tribes, nobles, kings) that must assent (or dissent) to eliminate defection from the alliance. Yet this has in our maturity resulted in the institutions and special interests ‘bribing’ politicians (the jury) rather than individuals or groups.

12. To overcome this problem of ‘bribing’ or ‘influence’ in history, juries (thangs) were and can be selected by lot (random). At present there is no reason for any politician or legislature, because of widespread communication, natural statesmen will emerge in the market for information without statesmen being elected. (But that would require liability for public speech in matters public). There is a need for a standing cabinet, and a need for a house of governors, but there is no longer a need for a sitting federal legislature. And it is the sitting federal legislature that is the cause of conflict.

13. A senator was appointed by the state legislatures. Not elected. that’s why the regulations on criteria for senators were flexible. The House was directly elected so it had tighter controls to limit the fashion of the people. And these short two years guaranteed a rotation thereby limiting their ability to accumulate power. This is again, a modification of the jury model. It’s semi-random, not selection by lot (random). But as close as possible to selection by lot.

14. Property then (farmers, small business owners) as now (employing others) remains the only objective measure of demonstrated interests and demonstrated ability to productively contribute to political decisions. The mistake, when extending the franchise, was not adding a lower house for unpropertied (non-employing) vote. The lower classes, for over a thousand years, had been represented by the church and the church leadership had been educated nobility (middle and upper classes with demonstrated experience). This would have restored the legislature as a market for commons between the classes.

15. Again. The USA was NOT established as a democracy, but as a republic like Rome, like Athens, under rule of law.  The purpose of inclusion was not to enact the will of the people to implement activist policy that would externalize costs onto others (privileges), but to prevent another emergence of nobility or priesthood, or peasantry, that would enact privileges that would deprive them of sovereignty, repeating the corruption of the state and church.

16. This professor is again, treating the founders as conducting an ideological and secular theological or even moral project when it was purely rational and empirical method of replacing the crown government given the British naval, agrarian, commercial, financial revolutions leading up to the industrial revolution in 1760’s. These accumulated revolutions, especially the beginning of the industrial revolution, were creating opportunity and prosperity and potential unseen before. And so the new middle class that emerged by the Hanseatic trade, the restoration of Aristotle and the renaissance in european thought, the age of sail (in response to the Muslim conquest of Constantinople and closure of eastern ports) was taking power from legacy church and nobility, and this new class as we see in Americas, was looking to divest itself of the burdens of the aristocracy, nobility, state, and the church and the ‘undesirable’ peasantry. This was their goal. Their concept of equality was in people who were industrious protestants.

16. Dishonest representation of the purpose of the three methods of selecting political representation (a) The Electoral College to Select the President, balancing the states in selecting president,  (b) the State Legislatures to appoint the Senators balancing the fashions of the people, and (c) the people to Elect Representatives, to reflect the fashions of the day.

17. There are no countries of 350M people there are only empires, or low trust tribal alliances at continuous war under an authoritarian government. The average size of a non-imperial country is 22M people. The optimum size of a democratic polity is closer to 10m because otherwise, interests, and especially interests in commons, are heterogeneous. Only ethnically homogenous countries survive at scale. China, India, USA are empires not nations, and Brazil, Indonesia, Pakistan, and likely Nigeria haven’t yet reached development, maturity, or normalization producing sufficient pressure to break down. So the chances that we would convert a continental empire (the USA) into a nation are near zero. And present conflict illustrates that fact.

18. There is no higher authority than self-determination, and no judge other than violence. Countries, Constitutions, governments are only useful until alternatives are more useful. Any state or territory can secede by the application of sufficient stress, conflict, or violence. There is no method of justifying the war of aggression against the south unless you are claiming some supernatural theology or supernormal ideology.

20. There are at least these failures in the constitution:

1) not articulating the common law, and it’s origins in a natural law of tort. This was taken for granted. It shouldn’t have been.
2) they put no defense to prohibit undermining from within by social construction of false promises baiting the people into hazard, as the Jews and Christians had to Rome, just as the Muslims destroyed every great civilization of the ancient world, and just as the Jews, Christians, Marxists, and Postmodernists have use social construction of false promise in the 19th, 20th and 21st centuries. This professor does perhaps not realize he is part of that project to undermine western civilization.
3) they failed to articulate the difference and importance of free public testimonial speech, vs free speech, especially given the economics of spreading truths and falsehoods – falsehoods are cheap and almost always win at least in the short and medium-term. (My work solves this problem). The west is unique in that it developed truth before face, and the institutionalized in norms and tradition military reporting and testimonial speech, taking this ‘asset’ for granted without recognizing that no other people in the world had achieved this social behavioral success. And that it was counter to Semitic civilization for who deceit and cunning are heroic, and sinic civilizations where truth is offensive and disharmonious, or Indian civilization for which truth and wishful thinking are indistinguishable, and for subsaharans for which the concept itself is incomprehensible.
4) they failed to limit religion to freedom of Christian religion. They failed to understand the long war of Judaism and Islam against western civilization, and all civilizations and they could not imagine an unchristian west, and had no knowledge of the relationship between civilizational strategies and values and organized (artificial) religions, and that while west had practiced trifuctionalism separating church and state Semitic civilization had done the opposite and was naturally hostile to western civilization.
5) they failed to provide a means of returning legislation undecidable by the court, back to the legislature,
rather than enabling the usurpation of the legislature by the court, and the circumvention of the legislative process by artful appeal to the courts.
6) they failed to understand that constraining the monarchy under rule of law but preserving the monarch as judge of last resort in the restoration of rule of law, and the incentives of the monarchy, are superior to the parliamentary order and prime minister alone, and the parliamentary order and prime minister superior to the congress and presidency. So that Americans ended up with the worst system. Worse, they failed to protect against clientelism in administration – which even Frederick the great of Prussia understood and Germany continues to benefit from.
7) they could not and did not consider the formal catholic, or informal protestant church as a wing of government representing the common people so that when the church failed to adapt to the Darwinian revolution (or rather all of greater Germania failed to complete the romantic and classical restoration), they did not add a new house of government for the underclasses. instead, in a foolish surge of populism weakened the senate, and undermined the house, by effectively creating a single house government, completely destroying the function of the parliamentary houses as a market for exchanges between the classes, and instead delivered the government to the bottom on one hand and elites on the other – therefore reversing the entire purpose of the framers: to prohibit the parasitism of the nobility, church, and peasantry.

21. Americans weren’t trying to ‘create a more open society’ by reforming Japan and Germany, they were trying to prevent another world war by limiting countries to the pursuit of internal gains rather than external conquest, by policing the world’s patterns of finance and trade and borders under the presumption that market cooperation would create more peaceful states. And that forcing countries to focus on human rights – a code word for rule of law that would produce equally commercial societies – was a positive direction to the world by which we would limit wars, by forcing states to focus not on wealth by agrarian expansion, but wealth by commercial production and trade.  (Note: this set of lectures illustrates why one must know economics, behavioral economics, and economic history of the world before one can teach anything other than the hard sciences. Because you see this kind of secular theological nonsense coming from a stuttering professor with no worldly experience – where that means (a) running a group of soldiers, (b) running a small business (c) running an industry (d) running a polity (e) functioning as a statesman. This fellow is a bit of a clown. and he’s the kind of clown typical of Yale. Although not as bad as Stanford.  Law schools can assist in rule or law schools can teach how to undermine rule of law, and this professor continues the campaign to undermine rule of law.)

22. at this point he’s justifying positive law and majoritarian tyranny and the presumption of the competence of the massses, so it’s pointless to continue.

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