RUDY GIULIANI THANKS FIREFIGHTERS FOR MAKING HIM RICH, FAMOUS AND MORE POWERFUL THAN EVER BEFORE

By : Mr. Rudolph W. Giuiliani, “America’s Mayor;” Former Mayor of the City of New York (1994-2001); Senior Partner, Bracewell & Giuliani LLP, A Law Firm Specializing in Service to the Fossil Fuel Energy Industry (2005-present); Director and Founder, Giuliani Partners LLC, a Leadership Consulting Firm Specializing in Courage & Integrity for Corporations and Governments (2002-present); Director, Founder and Shareholder, Giuliani Capital Advisors LLC, an Investment Bank Specializing in Bankruptcy Consulting (2002-present); Desirable Speaker on the Lecture Circuit (2002-present); United States Attorney (1981-1989); Presidential Candidate (2008); Leader; Orator; Hero; Scholar; Author of the Bestseller Leadership; Enemy of Enemies of Freedom; Crimestopper; Graduate, New York University School of Law cum laude (1968); Millionaire; Republican; Yankee Fan.

I have lived a great life. It’s amazing, but my career just keeps getting better. I thought I had reached the top as New York City Mayor. Then September 11, 2001 happened. On that terrible day, many heroes died. But I stepped up to the plate and gave this Nation hope. I provided determined leadership at a time when the country seemed lost. At the time, it looked like I genuinely cared about the tragedy that befell the City and the Nation. I told the press that we had lost more people in the attacks “than we could bear.” That struck a chord. My words and actions told people I was not only a great leader, but also a caring human being with feelings. The whole world was looking at me. Overnight, I became a superstar.

After the smoke cleared, my term as Mayor ended. I suddenly found myself a national celebrity. My career boomed like never before. I have been very successful in my life (look at my resume), but I have never been as successful as in the years after September 11. People wanted to hear me talk about leadership, courage, dedication, honor, self-sacrifice and perseverance. This suited me fine; I wasn’t mayor anymore, so why not go into private business? I just give the people what they want. I get phone calls from everyone. They all want me to speak out at some function or other. They all want to hear my voice. They want inspiration from “America’s Mayor” to guide them through tough times. Everyone from South Adelaide Children’s Cancer Hospital in Australia to Belt Parkway Community College in Brooklyn books me for speaking engagements. I am always happy to oblige. Since 2002, I have become a regular on the speaking circuit. I talk about September 11, freedom, terrorism, sacrifice, vigilance, leadership, principle, high ideals and other values that make people feel all gooey and proud. I enjoy it, too, even if the coffee and food is bad in some lecture halls.

But inspiration costs money. I don’t speak for free; hiring “America’s Mayor” for a lunch chat is a major expenditure. My speaking fees start at $100,000 per engagement, plus travel expenses. If a school can’t fork over the cash, the students do not get to hear me talk about nail-biting emergency response, vigilance and security measures. I won’t even talk about how I reduced crime in New York using Federal money in the 1990s. In fact, without full payment in advance, my lips are sealed; I won’t even show up at your campus. I have more lucrative business to address.

People have criticized me for charging too much. But not everyone is “America’s Mayor.” When you hire me, you are not hiring some two-bit “motivational speaker” with a polyester jacket and a toupee. You are hiring the King of New York, the man who took on bin Laden and won. When I speak, you hear real words of wisdom, not corny slogans recited from a cheap overhead projector. In short, I am worth every penny, because not everyone is a leader like me. How can you criticize me? I defeated the terrorists. I protected you. Don’t I deserve some compensation after a lifetime serving this country? And how can you criticize my speaking fees when a crook like Bill Clinton racks in mucho speech cash every day? Sure, he might donate his fees to charity, but the fact remains: He charges a lot, too. And let’s be honest here about making money: Don’t hate; appreciate. I am just living the American dream.

Since 2002, I have averaged about $8,000,000 gross from my speaking engagements. But that is not my only income source. After realizing how much people liked me, I decided to start some consulting firms. Giuliani Partners LLC offers top-notch professional advice on leadership, crisis management and organizational culture for business and government. After all, companies like take-charge guys like me. When CEOs and business managers saw me on TV marching through dust-covered streets on 9/11, they said: “Now look at him! That’s a can-do guy! We need guys like that in our boardrooms!” Sure enough, once I left the Mayor’s office, my phone started ringing off the hook. Just about every Fortune 500 Company wanted some leadership tips from Rudy. I brought in some old hands from the Mayor’s office and we started giving private speeches to business leaders all over the country. We taught them about emergency procedures, integrity, values, security, accountability and ethical organizational structures based on principles. And I believe in equal opportunity: I even provide advice to companies I used to prosecute as U.S. Attorney. I have a good heart; I can let bygones be bygones. I love this country because we forgive even those who trespass against us.

Our consulting fees begin at $1,000 per hour per consultant or $125,000 per month for straightforward cases. Most companies don’t complain about the cost; they can afford it. And quite honestly, we provide real value. After all, wouldn’t you love to know that Rudy Giuliani certified your corporate culture and emergency response protocols? Wouldn’t you love to know that Rudy Giuliani gave his seal of approval to your security measures? Of course you would. That is why we deserve to be well compensated for our services. To be blunt, I know what I’m talking about. Not everyone can claim to have single-handedly defeated al-Qaeda, taken down the mob in New York, inspired a Nation, banned bad art from Brooklyn museums, imprisoned slander-spewing “artists,” stopped crack dealing in Washington Heights, cleaned up the streets, brought tourism back to Times Square, jailed the junk bond swindlers and chased the homeless from Manhattan. But guess what? I have done all these things and more. I have cultivated a culture of success. And when I consult, I put that culture to work for my clients. If you can’t afford me, well, what can I say? You can’t afford the best. You’ll have to take your chances or hire some low-grade hustler to manage your security needs.

Since September 11, I also have had time to write. In 2002, I published Leadership, a biographical memoir detailing my response to the terrorist attacks and the values that make me so great. I highly recommend reading my book. You might learn something about character, values, determination, integrity and purpose for your life. It is essential to be modest; but it is also essential to give credit where credit is due. Put simply, all the critics agree that Leadership is a tour de force from “America’s Mayor.” It is a “must-read” for anyone who wants to learn “effective management strategies” from America’s most experienced manager. These are their words, not mine. Don’t take my word for it; I am just telling you what the critics said. Do yourself a favor: Read Leadership. Be a leader. Learn from the best.

Sometimes I wonder: How would my life have turned out if September 11 had never happened? Would I be charging $100,000 per speech in North Dakota if my career as Mayor ended quietly? Would I have written bestsellers about crisis management, leadership skill, national pride and terrorism? Would I have been speaking at the Republican National Convention in 2004, then running for President myself in 2008? Would people have sought me out as a consultant on leadership issues? Would I have started my own investment bank? I readily admit that 9/11 boosted my image beyond all recognizable bounds. Before 9/11, people criticized me as a mean-spirited, boastful, unrepentant, petty, oppressive tyrant with a Napoleon complex. After 9/11, my critics vanished and I became an unassailable American hero in the same league as Nathan Hale and George Washington. No one dared say anything bad about the man who saved this country from terror. Perhaps if September 11 had never happened, I would have faded into relative obscurity as “just another former New York Mayor,” like poor old Abe Beame or—worse—David Dinkins. That thought bothers me. That is why I am grateful to all those who helped me win my fame. I am talking about the firemen.

Who can forget the firemen? I honor you for rushing into those burning towers. People remember you. When they think 9/11, they think about you. Your sacrifice provides me with endless material for speeches, anecdotes and consulting strategies. When I talk about courage, integrity and dedication, I mention you. Sure, I was courageous, dedicated and fearless when I coordinated disaster relief on 9/11. But you are the real heroes. You charged into burning buildings and died trying to save people. What a story. People always respond to it. It is a rhetorical gold mine; it just keeps on giving. I have been telling your story for almost 8 years now and I still get phone calls asking me to tell it again. I am a hero, too, but your bravery allows me to illustrate my theories about heroism, sacrifice, honor and freedom with real examples. Your bravery allowed me to write a bestseller and pursue my political ambition to the highest levels of American government. I am eternally indebted to you. I am not indebted to you in a legal sense, but you know what I mean.

I fought al-Qaeda on 9/11 and gave a Nation hope. You died to save others. Nonetheless, you are not as successful as I am. I use your stories to win consulting jobs and gain oil industry clients for Bracewell & Giuliani. Everyone wants to hear about the firemen. I tell them what they want to hear. When I talk about leadership and courage, I mention you. You have propelled me to national stardom. Thanks to you, I am at the top. I have never been so rich or famous; and I am not coming down. On the other hand, assuming you survived the collapse, you likely have life-threatening respiratory illnesses. You live on meager pension checks. You probably suffer from depression, anxiety and post-traumatic stress disorder. I am very sorry for that. But that’s the way life goes. I cannot offer you employment at this time, nor can I support you financially or medically. All I can say is that I am doing fine. My prostate cancer is in remission and I am doing extremely well financially.

My heart and my thanks go out to all the New York firefighters who participated in rescue efforts on 9/11. You made my career what it is today. I wish you the best of luck in all your future endeavors. God bless you.

If you wish to hire me for a speaking engagement at a Fire Department function, please contact my agent to discuss fees.

AMERICA MUST SWEEP PIRATES FROM THE INTERNATIONAL SEALANES

CONSIDERED OPINION

By : The Right Honorable Admiral Sir Hercules Robinson, Acting Governor General of Her Imperial Majesty Queen Victoria in the Crown Colony of Cape Town, SOUTH AFRICA; Former Governor General of New South Wales in the Crown Colony of AUSTRALIA; Former Supreme Commander of Her Majesty’s Naval Forces in and around the Crown Colony of FIJI in the PACIFIC ISLANDS; Former Governor General in and for the Crown Colony of HONG KONG, a City wrested from the savage and barbaric CHINESE EMPIRE; Deceased 1897.

International commerce depends on secure transport by sea. Our great British Empire understands that sea power translates readily into economic power. When our merchant ships pass freely across the world’s oceans, British power grows. But it is no easy task to secure the sea. Nothing is vaster—or more perilous—than those great oceans over which our valuable cargoes must travel. Danger lurks everywhere. Captains must weather brutal storms on the Indian Ocean. They must navigate harrowing crosscurrents near the Cape of Good Hope. They must skillfully avoid shoals and reefs in the Caribbean. And no matter where they sail, they must keep vigilant watch for PIRATES, those enemies of all humanity.

I have recently learned that pirates hijacked the American container ship Maersk Alabama near the Somali Horn in Africa. According to reports, these vicious buccaneers took the Captain hostage and imprisoned the crew in the boiler room. Thankfully, the crew sent a distress signal, alerting the American Navy destroyer USS Bainbridge that they required immediate assistance. The pirates abandoned their quarry in a lifeboat, taking the captain with them at gunpoint. Bainbridge secured Alabama, then made chase after the cowardly pirates as they fled in their lifeboat. Bainbridge swiftly overtook the pirates. Marines stationed aboard Bainbridge eliminated the pirates with sniper fire, captured one surviving pirate and rescued the captain.

I am at heart an Admiral. I must say this was a highly effective naval intervention. Jolly good work, gentlemen.

Despite the happy result in the Alabama case, I write today to urge the American government to crush the pirate menace once and for all. As a fellow colonial power with overseas interests, I cannot overemphasize how important it is to secure the sea-lanes. The attack on Alabama was no fluke; these brazen African pirates have long harassed international sea traffic along the Somali coast. Piracy did not die in the 18th Century. We must recognize that pirates still prowl the waves, threatening vital sea commerce between colonial outposts and home ports. More than any other transport method, our economies depend upon intercontinental sea carriage. Ships transfer the largest amount of material at the lowest cost. Without reliable sea transport, costs for goods ranging from Chinese umbrellas to African coffee beans to Vietnamese rice will skyrocket. Merchant captains will fear to leave port, increasing crew costs and insurance expenditures. Our troubled economic outlook will only worsen if we do not seriously address the pirate menace.

I am no expert in American or British law. I am a Governor General and an Admiral by trade. But I understand that piracy harms overseas interests. And I understand that America—like Great Britain—depends on overseas interests for continued economic strength. Nonetheless, there are established legal mechanisms in place to deal with these seaborne brigands. Any Nation on earth may seize pirates and try them in their own courts under a universal jurisdictional principle. Pirates are hostes omnes humanis—enemies of all humanity. By taking arms against ships under any flag, pirates exclude themselves from the brotherhood of Nations. As such, all Nations have a right to seize and punish them, for they are equally hostile to every Nation. Furthermore, your American Constitution empowers Congress: “To define and punish Piracies and Felonies committed on the high Seas[].” U.S. Const. Art. I, § 8 cl. 9. In short, do not hesitate to take harsh action against pirates. Both American law and international law regard them with contempt. I urge you to launch a determined effort to sweep these thankless rogues from the oceans.

We must protect our commercial interests. Let us be honest: We maintain a military presence on many continents in order to protect our trade all over the world. For example, Her Majesty would not maintain a garrison in South Africa were it not for the mineral resources British companies exploit here, nor would your American President maintain a garrison in Iraq were it not for the mineral resources American companies exploit there. We invest military force when necessary to expand and protect significant commercial interests. Yet our investments on land would be for naught if we did not control the sea. In that sense, we may win commercial rewards on land across the globe, but we cannot truly realize our bounty unless we can freely ship our treasure from port to port. Just as the military protects commerce on land, so too must it protect commerce at sea. Consider the sea the circulatory system of international commerce. Without clear, healthy arteries, the whole organism dies. To that extent, our military must jealously guard the sea-lanes. We owe it to the merchants who make our countries as great as they are.

I suggest aggressive action on both land and sea. In my experience, I have learned that restless natives are dangerous. Applying that lesson, I have found that it is always best to strike first. When it comes to naval action, “striking first” means choosing the place of engagement. Do not wait for pirates to attack you; attack the pirates when they least expect it. Patrol their known launch areas. Assemble rapid strike forces. Do not wait for them to put to sea; bombard their harbors and put marine parties ashore to round up their leaders. If you prefer sea action, I suggest using decoy ships to lure pirates onto the water. Once they commit themselves to piracy, deploy a fast fleet and destroy them. The American Navy has massive resources. Use them aggressively. There is no point wasting national treasure on warships if you do not use them for their intended purpose: Sea combat.

We must match aggressive measures on the high seas with aggressive actions on land. When we capture pirates, there is no time for legal nicety. Pirates are not ordinary criminals; they are enemies of all humanity. As such, they do not deserve the same legal process as other prisoners. In the British tradition, Royal Navy Captains hanged pirates from the yardarms or threw them overboard for shark fodder. If they did transport them back for trial, justice was swift. After all, what legal defense can a pirate offer? That he did not take up arms against a defenseless merchant ship? That he mistook the merchant ship for a man-o-war? Rubbish. Pirates have no legal defense. If they are taken in arms on the high seas, they are pirates. Pirates are enemies of all humanity. That ends the legal debate. The fact that British authorities put pirates to death indicates the seriousness of the crime. We do not tolerate interference with our colonial or commercial interests. We did not invest our national toil and blood creating an Empire to sit by and allow bloodthirsty robbers to plunder our bounty at will.

In 2009, you Americans occupy much the same position we occupied in 1890. You have the largest economy in the world. Your commercial interests stretch across the globe. Your merchant fleet supplies your wealth. In that light, I must urge you to protect your bounty. No Nation in history has ever cultivated commerce as masterfully as the United States. It would be a tragedy if piratical scallywags shook faith in American economic might. Your military power is unmatched. Start using it for its proper purpose: To protect American commerce worldwide.

We cannot afford to lose the war against piracy. World commerce depends on safe sea traffic. To that extent, I urge you not to give in to “humanitarian” concerns when prosecuting captured pirates. I am informed that you already hold one pirate in custody. It is admirable that you wish to put him on trial, but you cannot let him win. Pirates have no legal defense. Do not let pirates hoodwink you. Do not encourage future atrocities by allowing pirates to believe they can escape punishment. This suspect says he was “forced into piracy” by “intimidating local warlords” who “promised him money.” He also claims he is only 16 and speaks no English. You must put aside your sympathy and remember what this man did. Your Navy captured him on the high seas after he forcibly boarded a merchant ship and threatened the crew with a rifle. That is piracy. It would not matter if he were 16 or 6 or 600. It does not matter why he did it; it matters that he forcibly boarded a ship while armed. If we start treating pirates like “regular criminals,” we put our entire colonial economy in jeopardy. Our overseas commercial interests are simply too important for us to accord civil liberties and legal process to pirates determined to interfere with those interests. After all, Nations exist to engage in world commerce. Pirates undermine our very raison d’etre as independent sovereignties. That distinguishes them from common robbers. Pirates make war on the very foundations of our national identity. Thus, we must have no qualms about treating them in a peremptory manner.

I wish you good fortune in your enterprise against the pirates. We must act quickly. If you require support from the Royal Navy or Royal Marines, please do not hesitate to enlist my assistance. Together, we can sweep these curs from the oceans for all time. On that happy day, goods will travel unimpeded—at low cost—from Shanghai to Montevideo to New York to Hamburg to Vladivostok and beyond. When we secure the seas, we secure commerce. And when commerce is secure, Nations prosper.

JUSTICE ALITO REAFFIRMS HIS COMMITMENT TO SENSIBLE AMERICAN CRIMINAL LAW

WISDOM FROM OUR LEARNED SUPREME COURT JURISTS

By : Mr. Samuel A. Alito, Associate Justice, United States Supreme Court (2006-present) ; Former Circuit Judge, United States Court of Appeals for the Third Circuit (1990-2006); United States Attorney for the District of New Jersey (1987-1990); United States Department of Justice (1981-1987); Federal Prosecutor (1977-1981); Graduate, Yale Law School; Clear Moral Visionary; Charter Member, The Federalist Society; Founding Member, The Anti-Drug-Offender Institute of New Jersey; Board President, The Association of Justinian Lawyers for the Immediate Execution of Child Molesters Upon Suspicion Alone, Constitutional Qualms Notwithstanding, et alias honores.

Every day, I learn to love our American Republic more because Americans understand how to treat criminals. I have dedicated myself to public service since early adulthood, and the longer I live, the more I learn to respect our justice system. Put simply, American criminal law is great because it disrespects criminals—and criminals deserve no respect because they have banished themselves from society.

Criminals have no place in American society. We have an obligation to punish criminals severely. If individuals violate the ground rules that hold our society together, they deserve no grace from our State. In fact, our State has a duty to harshly punish criminals for several reasons. First, we want an orderly society. When the law harshly punishes criminals, we not only remove dangerous threats from our midst; we also send a clear message to other would-be lawbreakers that we will hunt them down and make them suffer. Second, we want a moral society. As an avowed Federalist, I believe the People have the right to enshrine their moral ideals in law. They have a right to criminally punish immoral vagabonds, ruffians and people who do not fit in. As a Federal judge, I respect the States. I refuse to interfere with States’ efforts to punish vicious thugs, porn peddlers, crack pushers and public urinators, except in cases in which the States do not punish conduct I find morally disgusting. In such cases, I do not support the States; rather, I punish criminals consistent with my own values as a Catholic, Republican, Yale-educated jurist in public service. In brief, American criminal law targets recalcitrant rebels who lost the right to live among us. We view criminals as dangers to be expunged. We have a great system. I am proud to serve it.

Yet there are Nations on earth that do not see the light. As a scholar, it is my duty to learn different perspectives about the law. Although America is the greatest country in the world because we believe in "freedom and the dignity of every life" (see State of the Union Speech of President George W. Bush, January 29, 2002), we can learn various new approaches to issues by studying other countries. Occasionally, Europe will devise a good idea about electronics or internet commerce. But in most cases, I have found that European ideas are dangerous, especially in legal and social fields. I read legal texts from many legal traditions. Thanks to my study, I have learned that American criminal law is definitely the best. European approaches to criminal law shocked me. And they should shock every American. Nonetheless, I am glad that I studied European law. In the end, I learned that there is no place like home—especially when it comes to dealing with criminals. Europeans forgive and forget. In America, we crucify and bury our scum. That’s the difference.

To illustrate, consider Germany’s Criminal Code (Strafgesetzbuch). In recent decades, Germany transformed from a National Socialist dictatorship into a liberal, federal republic that prizes self-determination, human dignity, social welfare and progressive thought. In so doing, it repealed harsh criminal laws and replaced them with mild, weak social “controls.” Through my extensive study, I learned that Germany prefers to tap criminals on the wrist rather than make them suffer. In so doing, the State disrespects morality, insults crime victims and lets wretched hooligans escape justice. In my view, this is a national disgrace. And the Germans should be ashamed of themselves, especially given their proud tradition of strict, effective penalties for even minor crimes (i.e., guillotine for distributing critical political leaflets; shooting in the back of the head for communist leanings, etc.).

To understand why German criminal law is so bad, we must uncover its stated principles. In his Introduction to the German Criminal Code, Dr. Thomas Weigend, a law professor at the University of Cologne, provides a good beginning: “When the law provides for the deprivation of liberty or property if certain rules are violated, it shows that society considers it absolutely necessary to adhere to these rules.” Einführung, Strafgesetzbuch, 45. Auflage (München: Deutscher Taschenbuchverlag 2008)(hereinafter “Introduction to the Criminal Code”) p. 9. I cannot argue with this assertion. In America, too, we believe that every society has a right to imprison or fine people who transgress against “extremely important” social rules. Dr. Weigend correctly points out that: “Every society needs an opportunity to express its moral disapproval for severe violations against the protected interests of others or the interests of the community.” Id. I could not agree more. Every society has both a right and a duty to condemn those who deviate from acceptable community standards. American communities must punish lawbreakers to remind everyone what is right and wrong.

Yet after a promising beginning, Dr. Weigend veers into dangerous territory. Concerning punishment objectives in the German system, he writes: “Criminal convictions…do not devalue the perpetrator's person,” and that criminal penalties serve the “notion that a convict should not be permanently excluded from society; rather, the State should make it easier for him to make his way back to a responsible life. In this sense, modern-day criminal law in the Social State of the German Constitution is unconditionally obligated to the principle of humanity.” Id.

This is utter nonsense. In America, we do not look with munificence on convicted criminals, nor do we accord them “humanity.” By deviating from fundamental social rules, criminals lose their right to be treated as citizens, let alone with humanity. They are no longer humans; they are criminals. Unlike the Germans, we believe that social miscreants should be permanently excluded from society; we reject wholeheartedly the idea that the State owes criminals the duty to “make it easier for them to make their way back to a responsible life.” In America, the State does not give anything to anyone, even to law-abiding citizens. If anything, the State takes away. It defies imagination to suggest that the State has an obligation to provide criminals a way “back to a responsible life.” The State does not even have an obligation to provide education or health care, let alone the “social means to get your life together.” In short, you only get one shot at life in America. If you mess it up, that’s your problem, even if you are not a criminal. The State does not help anyone find their way in life, let alone lawbreakers who trample on society. The State does not exist to help its citizens; it exists merely to provide a stable environment in which to do business. In short, I find it beyond absurd that Germany “obligates” itself to “humanity.” Criminals do not deserve such indulgences. They are the worst of the worst. If anything, they should be treated inhumanely, not humanely.

I hate criminals. It gets me really angry when I learn that foreign law treats them with respect. We have a duty as a civilized people to make criminals suffer for visiting harm upon our society. They do not belong among decent people. Criminals violate everything sacred about American life: Decency, hard work, thrift, sexual propriety, moral living, financial responsibility, honesty, goodness, compassion, generosity, forgiveness, mercy and Christian caring. When criminals rape, kill, steal, defraud and defile, they do not care about the pain they inflict on their victims. Yet the Germans overlook that pain and slap these barbarians on the wrist like naughty Kindergarteners. In my view, this denigrates both crime victims and American values. But according to Dr. Weigend: “[T]he prosecution of criminal law in Germany is understood to be the task of the governmental community; its purpose is not to provide satisfaction to crime victims.” Introduction to the Criminal Code, p. 11. So the victim is voiceless? What about terrified baby girls who have been burned, raped, tortured, sodomized and traumatized? What about the mother of a 17-year-boy killed by brutal gang thugs? What about a man paralyzed by a drunk driver? Are you telling me that the law should overlook these people’s profound outrage against the criminals who destroyed their lives?

In my view, the law has a duty to listen to victims—and their loved ones—in order to assess the true impact of criminal conduct. Unlike the Germans, we care about people in America. The criminal law is not an abstract encounter between a perpetrator and cold, neutral laws; it is a superheated emotional crucible in which the community expresses its outrage, sorrow and desperation against antisocial monsters. In our law, we care about a mother’s anguish when she loses a daughter to a savage rapist-murderer. We care about a brother’s sadness and loss when a vicious thug kills his sibling in a fight. It is not enough to merely show that a killer intended to kill a victim. We want to hear about the misery, terror, pain, loss and anger in the victim’s family. We want to express our outrage against those who author tragedy in society, even if that outrage has nothing to do with the narrow circumstances surrounding the criminal act. Crime affects the entire community; in America, we are determined to make criminals suffer for the horrific results they inflict on everyone, not just the immediate victim. We revisit the full quantum of pain, horror and misery on criminals that they visit upon their victims. This is true justice, not weak German “resocialization.” In a word, we do not want criminals back in our society. We want them to rot and die in rancid cells after writhing in pain on cold, hard floors for several decades.

Yet the Germans do not understand this. Dr. Weigend writes more about “humanity:” “The principle of humanity…obligates the State to treat even those who have grossly violated the rules of peaceful human coexistence as citizens and brethren, as well as to make every effort to win them back into the community.” Introduction to the Criminal Code, p. 10. If “humanity” means treating criminals like “people” and “winning them back” into our midst, we do not want “humanity” here. Quite the contrary, we would rather be “inhumane” than offer “humanity” to criminals. In America, we believe in fair deals. In our “social contract,” you promise to behave. If you break your promise, you pay the price. You do not get a second chance. Forevermore, you are a “criminal,” not a “person.” The Germans call this “inhumane.” We call it “responsibility.” We do not believe it is difficult to live a normal, law-abiding life. All you need to do is refrain from raping, killing, stealing, lying, defrauding and acting badly. It is not difficult. Just be quiet, live normally and do not make mistakes. It is not brain surgery. The State does not owe an “obligation” to be “humane” to anyone. Nothing in the United States Constitution or any State Constitution requires an American State to be humane. States maintain roads and collect taxes. They imprison criminals and assess parking fines. They operate schools and mental clinics. They have no further obligation; and they certainly have no obligation to act “lovey-dovey” with convicted mass murderers, child rapists, thieves, scoundrels and Bernie Madoff-style fraud artists. In response to any German invitation to introduce “humanity” into American criminal law, I say: “Hell no, we won’t go.”

There is nothing wrong with American criminal law. After studying German criminal law, I am reassured in my belief that we have the best system on earth. We are getting along just fine, thank you very much. In fact, I believe that America is the greatest Nation on earth because we understand that criminals are garbage to be discarded, not “recyclables” to be “re-used.” We understand that criminals are not “regular people.” These are people who have broken the social contract and thus deserve worse treatment than others. Criminals hold nothing sacred; they do not want to reintegrate into our society. We have no desire to “win them back” or “resocialize” them. If anything, we want to eliminate them. And we want them to suffer the same pain they inflicted on their victims. As a Federalist, I am not opposed to State efforts to execute criminals who do not cause death. See Kennedy v. Louisiana, 554 U.S. __ (2008)(Alito, J., dissenting, slip opinion at pp. 43-66). States have a right to decide whether conduct represents such a deviation from acceptable community standards that perpetrators deserve to die for it. Whether States decide to kill to jail criminals, the result is the same: We believe that criminals are worthless pieces of unwanted garbage. We do not try to “resocialize” garbage; we want to throw it away—permanently. This is how we view criminals in America. They are nothing but disgusting, worthless, nauseating trash; and States have a right to dispose of it as they see fit.

Of course, the Germans do not execute criminals because they want to “win them back” into society. They think they have “intrinsic worth” as human beings. See, e.g., Basic Law (Grundgesetz) Art. 1 ("The worth (or "dignity") of every human being is inviolable. It is the obligation of all governmental authority to respect and protect it."). That is their prerogative. All I can say is that Americans are smarter than Germans because we know where our garbage belongs. We do not bring garbage back into our living rooms. We toss it onto the trash heap or burn it. If something is worthless, you get rid of it. You do not keep it hanging around your house.

Americans will always face criticism. Europeans will always contend that forgiveness and “humanity” are better policies than draconian criminal penalties. They will even invoke Christianity to support their theories, including Jesus’ dictum: “How you treat the least of my brothers is how you treat me.” Matthew 25:40. I am a devout Christian and I fervently believe in Christ. Yet Christ’s words do not apply to criminals, because criminals are not “my brothers.” Moreover, criminals are not even people. They are lawbreakers. As such, different rules apply to them. In this sense, America faces no religious quandary when it mercilessly hunts down and punishes criminals. We can treat them as poorly as we wish without violating Christ’s word, because criminals are not “Christ’s brothers.”

I am reassured in my commitment to American criminal law. We view criminals as we should view them: As garbage to be discarded. Although we will always face criticism for what some perceive as repressiveness against criminals, we take refuge in the knowledge that we are right. America is dedicated to liberty, equality and justice for all. But as soon as you break the law, you have no right to anything but suffering and pain. You lose your worth and your status as a person. This is justice. We owe it to the victims. As a Supreme Court Justice, I will never deviate from these principles, no matter what the Constitution says. There are citizens and there are criminals. They are not the same. I will never treat them the same, either. In a word, I know what to do with my trash: I throw it away.

QUICK BREAK

I debated whether I would have enough time to properly write this weekend. Circumstances have been hectic lately and it looks like I will have to take a break until tomorrow or Monday. Between my health and new pressures, I have been interrupted more often this past week than usual. Still, I am amazed to see how many readers--from all over the world--have found my essays and satires through the internet. This may be a flawed world, but at least technology makes it easier for curious people to locate ideas more quickly than ever before. I have noticed especially that readers in Central and South America have been searching for U.S. writers' perspectives on the "promise:" "All men are created equal." I am glad that my essays on that subject appear through Google. If my voice can contribute anything at all to the age-old debate over equality in the United States, I am happy for that.

Thanks again to all who seek Reason, Commerce, Justice & Free Beer to sate your daily hunger for truth! I can tell you that once this weekend is over, I have a completely free schedule, and that means more time to post.

I do not want to give too much away, but I am informed that our sources have received a statement from learned U.S. Supreme Court Justice Samuel Alito concerning an important legal issue. We will bring you more on this as it develops.

Oesterhoudt

CREDIT CARD DEBT CONSOLIDATION IS THEFT : STAND UP FOR FREEDOM

CONSIDERED OPINION

By : Mr. Paul J. MacGrabbin, Jr., Chairman and Chief Advocate, Americans for Free & Fair Financial Services, Inc., a For-Profit Advocacy Group Specializing in Lending Issues from the Banker’s Perspective

Credit cards make Americans’ lives easier. They allow people to pay bills when cash runs short. They allow people to buy that special gift for a loved one when there is not quite enough money in the bank to cover the cost. In a word, they allow Americans to make essential purchases responsibly, from education to health care and beyond. Credit cards build upon trust. We trust Americans to be responsible and to pay us back—fair and square. We trust the American people. We believe that Americans are responsible people who deserve respect. Trust is good. Credit cards help Americans keep money moving through the economy. And when money moves freely through the economy, everyone wins.

Credit cards make money available to everyone. Our economy falters when people do not make credit purchases. Stocks plunge when Americans live within their means. Yet not every bank is willing to loan money to every American. We here at Americans for Free & Fair Financial Services, however, believe in the American people. We believe in one important word: Freedom. We believe there is value in credit purchases, and we believe that Americans should be free to buy what they want. In that spirit, we believe that every American should have a credit card to buy things when and where they want them, provided they can make minimum monthly payments subject to the maximum applicable interest rate under State or Federal law. Unlike banks, we trust in the American people’s ability to make payments. If you have a monthly income stream, we will give you credit—guaranteed. We do not need to see assets. We do not need to see real estate ownership. All we need to see is an income and some payment history. If you have an income, you can buy that television today. You can buy those sandals today. You can buy those sunglasses today. And you can finally pay that overdue child support installment today. Isn’t it time to stop letting bank balances rule your life? Worry about the bill later. Enjoy your life. We trust you. Just remember the magic letters:
J-C-I: Just Charge It™.

Credit cards help Americans get what they want. They embody the spirit of independence and freedom that makes America great. Despite this, there are individuals out there who do not trust the American people. They say that “unscrupulous” credit card companies prey on innocent Americans, enticing them to “get into debt over their heads.” They say that credit cards lure Americans into making bad financial decisions, ruining their financial lives. They say that our companies draft unfair contracts and charge unconscionable interest rates, then harass debtors with vicious telephone calls and legal action if they default. Put simply, these party poopers say that credit card companies exploit Americans’ naïveté, gullibility and hunger for quick material gain. And they call on government to “regulate” credit card companies to protect “innocent Americans” from credit card “scammers.”

We reject these criticisms. We are not scammers. We are bankers. We believe in the American people to make wise, informed and prudent financial decisions. We reject the contention that Americans are stupid, naïve or gullible. On the contrary, we believe that Americans make financial decisions only after due and reasonable deliberation. Americans do not use credit cards unless they fully read our rules and disclosures. Nor do they use credit cards unless they know they have the financial resources to pay their bills when they are due. Americans do not charge purchases if they know they do not have the money to pay for the items. Americans are responsible. They are grown-ups. They know what they are doing. They need freedom, not regulation. When government starts telling adult Americans how to spend their money, what’s next? Telling them what color socks to wear? When they should wash their underwear or use the toilet? If we allow government to intrude on freedom, there is no endpoint. Once government intrudes on one freedom, all freedom is worthless. We refuse to allow government to wage war on freedom. We believe in liberty. We trust in the American people; we do not believe they are stupid, naïve or gullible. Nor do we believe they are so weak that they require “special protection” from credit card companies. Far from it: We believe Americans should have more access to credit cards, not less. After all, Americans should have the freedom to make whatever economic decisions they wish without interference. That is American freedom.

Government is hostile to freedom. In recent years, government has forced us to make disclosures to the American people about our financial products. We have to tell them about the interest rate, the default rules, the assignment process and our collection practices. We have to tell them which banks participate in our funding pool, and which State’s law governs disputes. They even tell us that we must print these “facts” and make them “conspicuous,” so that even the dumbest customer could understand what we say. We find these regulations oppressive. We believe that two private parties should be free to bargain however they wish; we find it oppressive that the government forces us to tell our customers certain things that might turn them away or give them the wrong impression about our products. Freedom means saying what you want and selling what you want. These government regulations take our freedom away. And when our freedom suffers, so does the American people’s. When banks lend with fear, everyone loses. When banks are not free to bargain on terms they deem fit, costs increase for everyone. This is the price of government meddling in private contracts. In short, we believe in deregulation because we believe in freedom.

We generally reject government meddling in credit card affairs. Nonetheless, we call upon government to take action against dangerous private actors who undermine freedom and damage contract rights. In recent years, certain private businesses have sought to make a profit on debts owed to us. These so-called “credit card debt consolidators” offer to assume credit card debt from us at a reduced rate, then charge a higher rate to the debtor for a profit. These merciless profiteers seek to capitalize on the idea that credit companies tyrannize hard-working Americans and exploit their stupidity. At the same time, they blackmail us into thinking that our outstanding accounts are worth less than their face value, sell us short, then reserve the profits for themselves. Meanwhile, these ruthless bottom feeders advertise endlessly in print and on the airwaves, telling Americans that they “can overcome credit card debt” and “restore freedom to their lives.”

We find these developments perverse and abominable. For one, we resent the implication that “credit card companies” tyrannize Americans. The opposite is true: We believe in freedom, fairness and economic choice, not compulsion and tyranny. We also resent the assertion that these so-called “consolidators” represent “freedom” against us, the “big, bad credit card companies.” If anyone represents freedom, we do. We stand for free economic choice and unfettered credit opportunities. It is perverse for these Johnny-come-latelys to claim that they stand for freedom, when in fact we have defended freedom since day one. Third, consolidators wage a deliberate war on our contract rights. When we lend money to consumers, we have a right to receive repayment plus interest. It is in the rules. It is perfectly legal. Our consumers read the rules and respect the law; they knew what they signed. To that extent, we have a legally enforceable claim against our consumers for every dollar we lent to them, plus all accrued interest, penalties, fees, costs and collection expenses pursuant to applicable contract provisions under the State law of our choice. Now, consolidators come along and try to buy out our rights for a fraction of their value. What good is freedom if we cannot reap all the legal rewards from our hard work? If a consumer owes us $45,612.19 for purchases made (and accrued interest thereon) between 2005 and 2008, we want that amount, not something less. Yet if payment proves difficult to collect, these consolidators step in and offer us $10,000 for the account and all the rights. We resent this pressure. We want more money, not less. If we sell, we get the $10,000, but the rapacious consolidators run off with our legal right to demand $45,612.19 from the consumer. We would rather have our rights than a measly $10,000. And we believe in the law. Contract rights are sacred. We resent any attempt to steal what we earned through hard work and toil.

Credit card consolidators are dishonorable, profit-hungry thieves. They promise “relief” to “downtrodden consumers” from “vicious credit card companies.” In fact, they are avaricious charlatans who want to pilfer our investments. We created these accounts, not them. Just because we occasionally have some trouble strongarming payments from a few bad apples does not mean we should just roll over and surrender our rights to these carrion-crows. Put simply, we chased the quarry and killed the game; now we want the meat. We will not just fork it over to a bunch of cash-crazed vultures circling overhead. In this country, we reward hard work. Yet consolidators make a living stealing what belongs to others under the pretense of “contract assignment.” We find this contrary to freedom and contrary to everything America stands for. We call on Congress to take action against these nefarious bandits. No longer will we tolerate theft and plunder. No longer will we tolerate slanderous attacks against our good names. Banks provide freedom to millions. We do not unfairly exploit “weak Americans.” To the contrary, we believe in the American people with all our hearts. We believe in freedom for all. And we stand opposed to any effort to label our business “tyrannical.” There is nothing tyrannical about two sane adults bargaining out a fair credit arrangement, no matter what the interest rate may be. Sane adults freely and fairly agree to contract terms. That is all that matters, because that is real freedom.

Take a stand against credit card debt consolidators. They assume that you are weak, gullible and naïve. They say they want to help you, when in fact they merely want to plunder our bounty and make a dollar on your back. In so doing, they raise the costs for everyone, making it more and more difficult for everyday people like you to get credit. You want to buy that new computer, don’t you? Well, unless you tell your Congressman to put an end to the consolidators’ reign of terror against private contract rights, we will not be able to help you. In that sense, it is in your interest to help credit card companies. When you make it easier for us to lend to you, you make it easier to get the things you want, even if you do not have quite enough in the bank to buy them on your own. And you want the computer now, don’t you?

What are you waiting for? Get on the phone right away. Let’s make government work for us. Put consolidators out of business once and for all—and let’s make freedom mean something again.

WHY PEOPLE WORK : THE "MONEY IS KING NARRATIVE"

AN ESSAY

Last week, Frank Rich published an editorial in the New York Times titled “Awake and Sing!” See N.Y. Times, April 12, 2009. In essence, he puts blame for the financial crisis on a money-obsessed culture that works for solely for money, not higher principle. He intimates that while Americans have always to some extent worked for money, something happened over the past 30 years: Americans allowed money to completely dominate their outlook. Now, according to Rich, the cycle is ending in disaster. Our relentless fixation on money has led to ruin. Now, according to Rich, we must look for “good work,” not just work that offers the highest salary or most toys. Rich says we need a “counternarrative” to the life program that has—according to Rich—reigned for the past 30 years: “Money is King.”

I sympathize with Rich’s assertions. Although I question the metaphysical judgments implicit in such terms as “good work,” I agree that Americans focus far too heavily on money as an end, rather than as a means. I also agree that there has been an “intensification” in Americans’ quest for money in recent decades, denigrating more lasting values. But I differ with Rich on a key issue: No one will change Americans’ minds about money. They like money. They like things. They also have more debts to pay now than ever before. Money was always King, and it will always be King. In fact, in our pervasively commercial world, it must be King. Without it, we could not eat, pay rent, stave off collectors or drive to work. People would have no ambition to get out and compete with each other. Without monetary enticements, they would not invent iPods, super computer chips or fuel-efficient cars. When we depend on money for everything in our lives, how can we condemn people for dedicating their lives to acquiring as much money as possible? For better or worse, our society expects us to have money and we cannot survive without it—lots of it. In these circumstances, how can we ask people to construct a new “life narrative?” If they did, they could not afford their rent, their credit would evaporate and they would go homeless. This is how we live now.

Rich points out that larger and larger percentages of college graduates opt for “high-dollar” careers over “more meaningful” but “less lucrative” pursuits. He attributes this to a recent cultural phenomenon that spurs people to greater and greater earnings as a goal in itself. He remarks that this trend has spiked within the last 20 years. I agree with this analysis because I see its effects. In New York City over the past 20 years, average apartment rental prices have skyrocketed. In 1989, it was possible to rent a 1-bedroom apartment in Manhattan for well under $1,000 per month. Now, the same apartment would cost $4,000 or $5,000 per month. Why the dramatic increase, far beyond the rate of inflation? I argue that the recent expansion of the “money culture” resulted in a “money flood,” in which relatively large numbers of people began making very large amounts over a relatively short period. This “expanded prosperity” increased the number of people with sufficient money, which in turn forced up prices. With more and more college graduates opting for high-dollar careers earlier in life, every industry catering to them could freely raise their prices. This is what happened in New York. This is the practical result when there is a massive popular quest for more money, more quickly: Prices go up; and they stay up. After all, there is always another high-paying customer to take your place if you yelp: “Too much!”

And the damage is done. New York rents will not come down, nor will the cost of living decrease in any area that benefited from the “big money culture” that has flourished over the past 30 years. Now, anyone who does not opt for a “big money” career has no chance to survive in a world tailored for those who opt for “big money” careers. Now, people do not choose “big money careers” because they want to make a lot of money; they choose high-paying careers because that is the only way to pay the bills these days. Put simply, making a lot of money has gone from an ambition to a necessity. Consider lawyers. When a lawyer finishes law school with $120,000 in debt (plus interest) and at least $2,500 per month in rent, do you really think he can contemplate taking a job as a “poverty advocate” for $39,000 a year? Or even as a prosecutor for $49,900? It is simply not financially possible for him to take these “good” jobs. He needs to work as an associate at a “big” firm for at least $135,000 a year; that is the only way to pay the bills and save a little bit for tomorrow. But even that is easier said than done, because competition for those “big” jobs is ruthless. Not everyone gets them; far from it. Lawyers have no choice here. They must either find a high-paying job or default on their loans, ruining their credit for life. There is no other way. In this sense, we see how the seismic “increase in prices” caused by the new “money culture” transformed “big money careers” into necessities, not unique achievements.

Against this background, how can Frank Rich ask students today to find “good,” but low-paying work? I wish it were that easy. I wish it were possible to depose money from his throne. But the King’s rule has become so pervasive that new graduates have little choice but to submit. They must either make a ton or none at all. Expenses and living costs have risen so drastically that low-paying “good” jobs simply do not cut it anymore. This is not the students’ fault; Americans’ intensifying obsession with higher and higher salaries over an entire generation caused this mess. Now the new generation must deal with the consequences, and it is not pretty. In times past, Americans seemed to make do with less, go to work and raise families with some degree of life balance. Now, Americans need more, make more and have far less time to do anything but work. Balance is gone. Money dictates everything; there is always an unpaid bill hanging around. In short, “Money is King” because he must be King. If a person revolts against the King, he goes into bankruptcy or loses his home.

In the past, people seemed to live for something beyond their jobs and their debts. Now, people work on weekends, at night and then wear clothing with the company logo on it when they are off. Do they really want to do this? Probably not. But this is the only way to meet extremely high living costs and crippling debts. In the past, debt was not nearly so much an issue as it is today. Now, young Americans find themselves in a vicious, semi-indentured cycle: To make enough money to pay high living expenses, you must have a good, high-paying job; to get a good, high-paying job, you must have a good education; to get a good education, you must take out student loans; to get student loans, you must go into debt for 10 years or more; if you fail to make payments, your credit is destroyed and your financial future is ruined. When Americans emerge from their educational experience and begin working, they have a debt boulder tied to their backs. They are literally forced to make money; if they do not make enough to pay the bills, the boulder crushes them. In a word, the King’s rule is well established; and it is self-enforcing.

I say again: Who can refute the life narrative “Money is King?” There will always be fanatically ambitious entrepreneurs in our society who will sacrifice their lives in a quest to make millions. But everyone else just wants live comfortably. They just want “enough to pay the bills.” To do that, it is very difficult to succeed without putting faith in the King. To live comfortably in today’s commercial world, new graduates must live for money. If they do not, they must live 5 to a room and share money for heat. And if a student wishes to take “good” work and “make a difference in the world,” he must prepare himself for poverty. No job today that “advances social causes” or even “stimulates the spirit” will pay the sums necessary to overcome overwhelming living costs. In short, “paying the bills” has become a tall task in our society. Frank Rich is rightly concerned about this. I am too. After all, our society suffers when the only reason people live is to pay bills. Nonetheless, Rich is unrealistic to suppose that people will suddenly turn away from money in order to see “the better things” in life. If they did that, they would go bankrupt and lose their homes. Not everyone in our society can be—or wants to be—a martyr for principle.

What, then, is the alternative? Can anything break the “Money is King” narrative? In any capitalistic society, this is an extremely difficult task. Money surrounds us and offers us all the things we want and need. It provides an avenue to power and a symbol for success. Against that backdrop, it is hard to argue against a life program that opens a path to get all those things. In American society, at least, we will never fully replace “Money is King.” The best we can do is to temper it. But even that is difficult, since in good times, people just want to have their money, ignore everyone else and be left alone with their toys. In bad times, however, there is an opportunity for change. When not enough people have money, they get frustrated and angry. That provides an incentive to embrace new ideas. In my view—and I think Frank Rich would agree with me—the financial crisis provides such an incentive for self-reflection and change. If enough people lose their money, they will start questioning their lives. They will ask why they so fanatically pursued money. And perhaps they will ask whether that quest led to their problems in the first place. If the “Money is King” narrative causes misery and poverty for millions, then perhaps it is time to make something else King. If enough people feel this way, values will slowly change. People will actually want to live for something beyond money. They will always need enough money to survive, but if they see that narrow-minded money hunting leads to popular ruin, they will temper their allegiance to the narrative. Perhaps they will even place value on larger ideals than mere material gain.

Still, this is all hypothesis. It is hard to imagine that enough Americans would make these insights, especially when they have so much debt and worry that they rarely think about anything except going to their jobs and opening the mail. This is American life in 2009. Money is King, and it likes to be King. Relentlessly living for money may be superficial and spiritually bankrupt. But it pays loan debt bills. Principle and “good work” don’t. Until “good work” and principle offer as many opportunities to pay bills as money does, do not count on a sea change in American values any time soon.

I’m sorry, Frank, but no one is going to “Awake and Sing” in the near future. Not with $100,000 in debt, they aren’t. No, they are going to go make money to pay those bills, whether the work is “good” or not.

All Hail the King!

OUR PROUD COLONIAL TRADITIONS : WHAT IS THE SUPREME COURT THINKING?

AN ESSAY

Justice Antonin Scalia fancies himself an “originalist.” In other words, he interprets the United States Constitution as men understood it at the time it was written, whether in 1787 or at the time each Amendment was ratified. In essence, Scalia fossilizes his interpretive craft. In case after case, he praises the “Framers” for their wisdom. Even if he disagrees with some archaic provisions in the text, he implicitly praises the “Framers” by refusing to take a principled stand against outdated values. Scalia—along with his adherents Justice Thomas, Justice Alito and to some measure, Chief Justice Roberts—basically fetishizes this Nation’s Founding Era. They look the to “Framers” as the source of all wisdom and constitutional truth, imputing to them foresight, strength and eternal relevance to modern-day affairs. In so doing, they fetishize men whose values would shock us today. These “jurists” are caught in a “value time warp.” Rather than engage in meaningful dialogue concerning contemporary social questions and their relationship to constitutional order, these backward-looking “scholars” fix their gaze on 1787.

What is so special about men who lived in 1787? Were George Washington, Thomas Jefferson and James Madison really smarter, more noble and more clairvoyant than people living today? It is quite difficult to say. Yet so much mythology surrounds these men that it is nearly impossible to fault them for anything. But if we dare to slice through myth and look hard at values, we might not like the image we see. I do not deny that the United States Constitution embodies many great principles. It was revolutionary for its day; it replaced a living sovereign with a paper one. Nonetheless, it contained monumental flaws, too. And it tacitly underscored values that would horrify an average man today.

But Justice Scalia and his minions are hypnotized. They mindlessly accept most founding values without a second thought. They constantly “look to the Framers” for guidance. While the “Framers” may help us understand how to read 18th Century English, they should not instruct 21st Century Americans how to understand their own values. Justice Scalia has publicly said that people misunderstand his originalism. He says he “believes in Democracy,” and that his own values have “nothing to do with constitutional interpretation.” Rather, he says, the Constitution provides an overall structure for government, and if the people have not spoken on an issue, then the Constitution controls as it was originally written. Quite simply, the people have not spoken on many issues; it is purposely difficult to amend the Constitution. See U.S. Const. Art. V. This leaves plenty of room for interpretation on murky questions. On these questions, according to Justice Scalia’s formulation, “the original text” should control—along with all its colonial-era values.

Why is this troublesome? What is wrong with “colonial-era values?” In popular understanding, Americans romanticize colonial-era values in much the same way they romanticize the “Framers.” When Americans think about the colonial era, they think about “freedom,” the “Boston Tea Party,” “patriotism,” “The Declaration of Independence,” “self-determination,” “ambition,” “liberty,” and the “pursuit of happiness.” True, these values motivated men in colonial era. But men at this time had values we would prefer to forget, too. They executed virtually everyone for any crime, no matter how minor. They enslaved Africans and butchered Native Americans. These were perfectly legitimate values at the time. They existed alongside the quest for “freedom of the press,” and “representative government.” This is not to say that the “Framers” were bad. It is merely to say that they had very different values than Americans have today. In fact, there is no way to compare life in the 18th Century to life today. Even the English language was different. English speakers used “f” to mean “s;” they spelled words differently. A “hanger” meant a “sword” and a “strand” meant a “beach.” Is it any surprise that our “jurists” on the Supreme Court have difficulty divining meaning in a text written in this antiquated English? Whom can they really consult to understand it? Every generation uses language differently. With each passing generation, it becomes increasingly difficult to decipher the words of earlier ones. Try reading Shakespeare and you get the point. Yet in constitutional interpretation, the stakes are higher than in paraphrasing Macbeth. In short, it is hard enough to understand constitutional language. And mimicking 18th Century values underlying that language is a fool’s quest.

All this makes little sense without an example. I say that four members of our Supreme Court are caught in a “value time warp” that fetishizes 18th Century ideals. Consider Baze v. Rees (2008), the case in which Chief Justice Roberts, for a Court majority, concluded that Kentucky’s lethal injection execution “protocol” did not amount to “cruel and unusual punishment” under the Eighth Amendment (“…nor cruel and unusual punishments inflicted.”). Under that “protocol,” the State administers three drugs: one tranquilizes the prisoner, the second paralyzes his muscles and the third stops his heart. The prisoner argued that the first drug sometimes does not fully tranquilize the condemned, then the second drug causes excruciating pain. But no one notices the prisoner’s plight because it paralyzes all his muscles, making it impossible for him to speak or even move his eyelids. The Court rejected this evidence, concluding that the “chance” of an insufficient first dose did not render the entire procedure “unnecessarily cruel.” For its part, the Court said that punishments are “cruel” if they are “intended to result in unnecessary pain,” “involve torture or a lingering death,” or are otherwise “inhuman and barbarous.” If an execution method, viewed in the abstract, is not “sure or very likely” to result in “needless suffering,” then it is not “cruel,” even if safer alternatives may be imagined.

In essence, then, punishments will never violate the Eighth Amendment if they are not calculated to inflict “needless pain” on the prisoner. The focus lies upon the execution method in the abstract. The question is not application; the question is intention: Does the State want to inflict “torture or a lingering death” on the prisoner? If the answer is “no” to the “intent” question, the execution method will survive constitutional scrutiny.

In crafting its “analysis” in this case, the Supreme Court looked to the “Framers.” What did they understand to mean “cruel and unusual punishment?” Chief Justice Roberts was unwilling to use his own conscience to define the word “cruel,” even in the face of evidence that numerous prisoners had suffered unnecessarily before dying at the State’s hands. No, it did not matter what the Chief Justice thought “cruel” meant in 2008; it mattered what the “Framers” thought “cruel” meant in 1791. Justices Scalia, Thomas and Alito happily concurred in the Chief’s allegiance to 18th Century ideals. Justice Thomas pointed out that the Court had never struck down any challenged execution method, including hanging, the firing squad and the electric chair. Each of those methods was “intended” to bring about the “mere extinguishment of life,” and according to 18th Century thought on that question, that “intent” was enough to remove it from constitutional scrutiny. In the 18th Century, “cruel” punishments were intended to inflict “slow, agonizing” torture on the prisoner, “superadding” terror to inevitable death. Baze v. Rees (2008), Slip. Op. at p. 68 (Thomas, J., concurring in the judgment), quoting Blackstone’s Commentaries on the Laws of England (1769). Only “hanging drawing and quartering” (i.e., live castration and disembowelment, then beheading and mutilation) would have violated this definition. Anything else would have passed the “cruel” test under “18th Century values.” Hanging? No problem—it is “intended to cause only death.” Burning? No problem—it is “intended to cause only death.” Firing squad? No problem—it is “intended to cause only death.” Electrocution? Certainly no problem—it is “intended to cause only death,” even if it does not kill you on the first zap. Under this analysis, the question is not the application; it is the method alone.

“Cruel” meant something entirely different to the “Framers” than it should mean to a 21st Century citizen. Frankly, I find it indefensible to categorically stand behind 18th Century values on this issue. No matter how much we extol our colonial forebears, we should look a little more closely into history before adopting their values wholesale. Put simply, we would likely recoil when we hear what passed for “normal” in colonial America. I found a passage this morning in an old history book (Historic Mansions and Highways Around Boston at pp. 169-170 (Samuel Adams Drake 1899)) that encapsulates everything wrong with 18th Century values. According to the book, in 1749, three “negro house servants” allegedly poisoned their master, Captain John Codman, “a respectable citizen and active military officer.” To conceal the crime, they allegedly set fire to his house, attracting suspicion and leading to their arrests. One servant testified against the other two. One was burned alive. The other was hanged, then put on public display—or “gibbeted”—“on the northerly side of Cambridge Road, now Washington Street, a little west and very near the stone quarry now there.” Id. The man’s rotting corpse was allowed to publicly decompose until “just before the Revolution” in 1775—26 years.

Was this “cruel” in 18th Century America? Apparently, no one in Boston really cared that the State burned one black man and hanged another in a tree for 26 years. Perhaps such penalties would have aroused some outcry if practiced upon white colonists. But should that matter? What does it say about 18th Century values if citizens—in the North, no less—did not speak out in disgust against such savage governmental conduct? We gain insights here into what passed for “normal” in the 18th Century. We begin to see how people really “thought” about issues at the time. In this example, we see two things. First, we see a value system that universally treated Africans as an inferior race. The fact that the law dealt so harshly with African “criminals” reveals that contemporary values judged their crime a “revolt against the natural order,” namely “service to their white masters.” Second, we see a value system that did not wink at brutal punishments. In 18th Century America, the State readily meted out death. It burned people. It clapped dead bodies in chains and displayed them for decades. Put simply, we see a value system that viewed race and death in a completely different light than ours does.

Should we so valiantly defend these values, then? It is easy to selectively glean values from our “founding Fathers” without remembering how very different they were. It is even easier to simply say that the “Framers knew best” and now deserve special intellectual indulgences because “they wrote the Constitution.” I venture that this is both foolish and dangerous. We should be skeptical of “18th Century values” because they have a very troubling “dark side.” They include far more than the “good stuff” we learn about in 8th Grade American history classes. And we should never elevate them to guiding principles on matters of broad contemporary importance, such as the death penalty or race. It is no answer to say: “Until the Constitution is changed, I will continue to apply the words as people understood them at the time.” In my view, it does not require much courage to refuse to follow values that condoned burning black men without a trial and public displaying their corpses for 26 years. In fact, I find it perverse to defend a value system that tolerated such atrocities. Yet this is precisely what the “originalists” do. In perpetuating their categorical love affair with colonial values, they put themselves in a regressive—and absurd—intellectual position.

To be blunt, we cannot go back to 1787. If the “originalists” really understood how people acted in those days, I doubt they would want to, either, especially Justice Thomas. We can look to history for clarifications from time to time. But we should never simply blindly imitate ancient values when resolving contemporary problems.

GENERAL RULES FOR GOOD, LEGAL & PROFESSIONAL LIVING (SEE BELOW FOR DETAILS)

By : Mr. Mr. Thomas O. Otherthan, Esq., Attorney-at-Law, Otherthan, Onalesser & Maybee, Attorneys and Counselors at Law Specializing in Property Law (Except Personal Property) Rated “Highly Qualified” and “Highly Ethical,” The Abraham Lincoln Association of Fair-Dealing Law Practitioners

As an attorney, it is essential to maintain healthy rules for good living. But it is also essential to maintain meaningful exceptions thereto, subject to law, notice and good cause shown. In general, I live a healthy life. But in no event do I live healthily when “healthy living” would materially interfere with firm financial objectives or client confidentiality. Except as otherwise provided, I concentrate my practice on real property matters, provided in all events that I do not represent both the buyer and seller of a single piece of real property in the same transaction, unless such buyer and seller consent thereto in a writing subject to applicable ethics rules. To be blunt, I take my responsibilities as a professional seriously, except on Friday afternoons.

I legally support my wife and my children in all events, subject to qualifications under law. I love my wife, unless and until my wife acts in a manner inconsistent with my personal taste or mood, in which case I do not love my wife. To the extent permitted by applicable family law standards, I detest my wife consistent with the level of inconvenience she inflicts upon me. I support my children to the extent necessary to satisfy applicable family law standards, including, and strictly limited to: the provision of housing, clothing, nourishment and financial support until age 18. I honor semi-monthly conjugal duties on my wife’s behalf, except when fulfillment of such duties would pose a public health hazard and/or aesthetic risk. Fulfillment of aforesaid family support obligations under law satisfies my legal duties and thereby absolves me from all other duties to my wife and children, whether spiritual, emotional or otherwise.

I tell the truth in all matters in which it is both legally necessary and pragmatic to tell the truth. When it appears as a matter of professional judgment that telling the truth would harm client goals or injure firm financial integrity, I do not tell the truth; provided in all events that it appears to a reasonable certainty that no enforcement authority would ever know the difference between the truth and a lie. It is essential for lawyers to tell the truth, unless it would harm their business to tell the truth. Except as allowed under law and modified by opportunity, I am an ethical lawyer. In general, I maintain appearances sufficient to satisfy all applicable legal and professional standards. Pursuant to law, I do not engage in sexual intercourse with clients unless such sexual intercourse predates the formation of the attorney-client relationship. In all ethical questions, I consult the Model Rules of Professional Conduct and tailor my behavior to comply in good faith therewith. In all cases not covered by the Rules of Professional Conduct, I act in a manner consistent with client objectives and firm financial goals, but not on Fridays.

I am a competent attorney specializing in property law, but not personal property law. In all cases involving purchase money mortgages, I defer to my colleague, Mr. Byron H. Onalesser, Esq. But I do not defer to my colleague, Mr. Byron H. Onalesser, Esq., in any case involving both purchase money mortgages and contract questions in the State of Missouri. Pursuant to said qualification, Mr. Byron H. Onalesser, Esq. handles all real property cases involving purchase money mortgages to the extent permitted by law. In real property cases other than purchase money mortgage cases not involving contract questions in the State of Missouri, Mr. Byron H. Onalesser, Esq. is competent to offer reliable representation. Except as otherwise provided by agreement, executive decree, judicial order or statute, I observe such rules.

I respect grammar as disclosed in Barken’s Manual on Legal Writing (4th Ed. 2007), except in such cases as variation is appropriate under law, but not on Fridays. Consistent with aforesaid Manual, I use the word “pursuant” in all cases in which I mean “according to,” notwithstanding the syntactical and grammatical identity between aforesaid words. But I use the words “according to,” not the word “pursuant” on weekends. In the spirit of general practice, I use the word “pursuant” to mean “according to” even in nonprofessional settings, including, but in no wise limited to, family dinners and outings. For example, when recounting an anecdote, I do not say: “According to your uncle, e&c, e&c.” Rather, I say: “Pursuant to your uncle, &c, &c.” In my view, and subject to both law and fact, consistency is essential in grammar and life; provided in all events that consistency does not materially interfere with client objectives or firm financial goals, ethical considerations notwithstanding.

I take my continuing legal education responsibilities seriously to the extent necessary to fulfill annual filing requirements. Pursuant to rules promulgated by the Supreme Court, I attend all required lectures and retain all attendance receipts as required by law for the applicable filing period; but in every case permitted by the regulations, I purchase lecture CDs in lieu of actual attendance, then claim (under oath) to have listened to aforesaid lectures. My general rule is compliance; I comply with all professional rules, regulations and requirements, even if such compliance undermines the philosophical intent behind such rules, regulations and requirements. Unless compelled by threat of force or property deprivation, I comply with minimal effort and time expenditure; and I always comply pursuant to law, no further.

As a general matter, I enjoy weekends and vacations on the beach, but never on cold days, or on Fridays, whichever comes first. I enjoy weekends and vacations on the beach on the strict condition that: (1) all reasonably attainable firm financial goals have been met; and (2) a reasonable degree of client satisfaction has been reached (subject to law). I enjoy weekends and vacations on the beach so long as aforesaid conditions (1) and (2) have been unconditionally satisfied, except in cases of war (but not African war), famine (but not among African-Americans), piracy (except in Las Vegas), civil unrest (but not among Hispanics), terrorism (not committed by Buddhists, Shikhs or the Portuguese) or rebellion (other than slave rebellions). Subject to said conditions, exceptions and qualifications, I enjoy weekends and vacations on the beach; provided in all events that such enjoyment is consistent with State, Federal and local law, other than municipal ordinances hitherto deemed unconstitutional on or before July 15, 1877.

I have beliefs, thoughts, opinions and desires to the extent permitted by law and firm financial goals. To the extent that such beliefs, thoughts, opinions and desires contravene and/or are inconsistent with law and firm financial goals, I hereby expressly disavow any such belief, thought, opinion or desire as if I had never held such belief, thought, opinion or desire, so help me God. Under oath, and under penalty of perjury, I hereby solemnly swear (or affirm) that I have never held any belief, thought, opinion, desire or expressed any conscientious sentiment that has—or in any way could have been construed to have—violated law, good manners or adversely affected firm financial goals. I hereby solemnly swear (or affirm) that I am a “good person” as defined by the Committee on Character & Fitness of the Bar of this State, except to the extent disclosed by evidence never brought before aforesaid committee. In general, I solemnly swear (or affirm) that I lead my life in the appropriate manner, subject to all applicable rules, regulations, ordinances or injunctions (whether mandatory or preliminary, equitable or constructive); provided in all events that “appropriate living” does not include all conduct taking place outside the country; or on Fridays. Subject to these qualifications, limitations and restrictions, I hereby swear (or affirm) that I am a “good person” as construed by the Committee on Character & Fitness of the Bar of this State, pursuant to all admissible evidence under applicable law, the truth of the matter notwithstanding, and making no allowance for common decency, honor or courtesy. It is my contention that such matters as “decency,” “honor” or “courtesy” cannot be definitively proved without reference to subjective taste, and consequently cannot be admitted as evidence of “good” or “bad” character in Character & Fitness evaluations. In short, I solemnly swear (or affirm) that I have “good character” and I am “fit” consistent with all rules, regulations and judicial decrees legally applicable thereto (but no more).

Except as provided hereinabove, I declare that I adhere to all these rules. As an attorney, it is important to be flexible, except in cases where flexibility is forbidden by law, or where flexibility would materially impact firm financial interests. I am a consistent practitioner and a good person unless circumstances require me to be otherwise. Good rules require good exceptions; but a good exception always requires a good proviso. Subject to all qualifications, restrictions, provisos, limitations and caveats provided herein, I am a consistent and good legal practitioner. Without waiving any defense at law or equity, and reserving all legal rights appurtenant hereto, I declare that I always comply with applicable law. In short, the law guides me, unless it would be profitable and pragmatic to ignore it.

INSURANCE IS STUPID

OESTERHOUDT STRIKES

Americans spend almost 2% of the entire Gross Domestic Product on “insurance products.” Other countries do not spend nearly as much on insurance. Is there a reason for this? Do Americans really live in deathly, financial fear of lawsuits every day? Insurance comes in many types. In my view, it’s all stupid. Why? Simple: Because insurance creates an automatic adversarial relationship that fosters mistrust, resentment, dispute, uncooperativeness, bitterness, stinginess and dishonesty. I have little difficulty making this judgment because insurance kindles intensely bad relations between men. I have little doubt that insurance is “necessary” and “beneficial” for commerce. That does not mean it is not stupid. “Commercial benefit” generally involves negative emotions and conduct anyway, so it is not surprising that insurance is “good for commerce” and “bad for the spirit.”

What is insurance, anyway? Most people associate insurance with cheap salesmen who operate from faux-wood-paneled offices in bad suits. They don’t really know what it is. They just buy it so they don’t have to pay when they get in a car crash. You buy insurance to protect yourself against the unknown. Risk is out there; according to popular logic, if you have insurance, then you won’t lose all your money when “bad things happen.” Insurance acts as a shield against unforeseen dangers. The longer we live, the more we see that life can take incredibly random turns. Insurance provides a hedge against these terrifying mishaps. That is why people buy it. They think it will protect them from lurking, unforeseen disaster. Even the word “insurance” relates to the word “assurance,” meaning to soothe someone by “positively informing” him that the future will not bring ruin. Insurance “assures.” People like assurance because they know life will smack them in the face sooner or later, and they’d rather not have to both suffer and pay money when it does.

This all sounds wonderful in theory. Insurance protects people against inevitable life risks, providing “assurance” and “peace of mind” to millions. Why, then, do I say that insurance is stupid? To understand why, we must examine the intersection between “providing assurance” and “making a profit.” Insurance companies began in 17th Century England and Holland. These companies pooled together their money and offered to “cover” trans-Atlantic shipping expeditions against various risks, such as shipwreck, piracy, fire or theft. Merchant captains were terrified that these risks would strike. After all, a single pirate could bankrupt an entire merchant house, so why not pay a small sum to protect oneself against that risk? Insurance companies, however, did not provide “assurance” because it made them feel like good Christians. No, they wanted to make a profit, and they did. Historically, insurance companies have made enormous profits. Selling “assurance” against the “terror of risk” is a hot item.

Still, it may seem counterintuitive that insurance companies make more money than they pay out. After all, people buy insurance on the assumption that the company will pay some money out when a disaster strikes. Unlike other enterprises, insurance companies offer value by offering to pay for others’ damages. While they take in money on the one hand, they necessarily must pay it out on the other. It is in the nature of their product. People would not buy insurance if they knew the company would not pay for their damages. How, then, do insurance companies make so much money? Simple: They doggedly contest every assertion that they are liable to make promised payments.

Insurance companies hold sway over a tilted playing field. It is always easier to win disputes when you have more power than your opponent. Insurance companies, for example, write the insurance contracts; you simply read and sign. Many routine insurance contracts run into the hundreds of pages, spelling out every single potential liability and excluding dozens of others. They minutely define every single word, making it possible for the company to argue away anything. An insurance contract could even define “Tuesday” to mean the third Wednesday each month, but not Sunday the 23rd, then exclude coverage on “Tuesdays.” Insurance companies also have far more financial resources than an individual claimant. If a claimant does not like an insurance company’s decision, he alone must confront a massive entity with batteries of lawyers all too willing to find “reasons” to deny him.

All this plays into the insurance company’s hands. They promise to pay money when a “covered risk” happens, but they cut into their profitability whenever they pay out anything. Businesses exist to make a profit, not to suffer losses. In that light, insurance companies have an institutional interest in contesting every single claim made against them for coverage. When they cover losses, they negatively affect their bottom line. When they refuse to cover losses, they positively affect their bottom line. Which alternative do they have an institutional incentive to choose?

In legal terms, insurance represents a “contract” between the “insurer” and the “insured.” As in any contract, one party promises to do or not to do something in exchange for the other’s promise to do or not to do something. Insurance contracts, however, are slightly more nuanced. In an insurance contract, the “insurer” promises to pay the “insured” money—or provide some other service—IF a particular event does or does not happen. In exchange, the “insured” promises to pay money (“the premium”) for the right to make a claim against the “insurer” IF the particular event happens or does not happen. The law calls this an “aleatory contract.” The dictionary says that “aleatory” means “depending on a contingent event.” Dictionary.com v. 1.1. While that is no doubt true, the Latin etymology much more clearly illustrates the “insurance relationship” than the English definition. In Latin, “aleator” means “gambler.” In essence, then, insurance is gambling: The insurer bets that you will not get sick; you bet that you will. The insurer bets that you will not get into a car accident; you bet that you will. And just as the stakes are high when dice fly, so too are they high in “aleatory contracts.” Gambling implies a game, especially a game of chance. When people play games for money, they stoop to anything. That is why insurance leads to such acrimonious mischief.

Insurance relationships are intrinsically adversarial. Although insurance advertising attempts to lull people into thinking that they are “in good hands” or that they can feel “safe at home” once they pay their premiums, nothing could be further from the truth when the “chips are down.” Insurance is gambling, and when the “chips are down,” the house does not like to lose. Insurance companies are corporations; they have a duty to their shareholders to maximize profits. Paying claims jeopardizes their corporate mission. Thus, when an “insured” makes a claim, the insurance company must take sides against him. The company has a duty to enrich shareholders, and paying the “insured” would contravene that duty. This is why insurance companies fight tooth and nail to exploit any ambiguity against the “insured.” This is why insurance contracts minutely define every single word and stack advantages in the company’s favor. This is why insurance companies send investigators to probe the “insured’s” story for inconsistencies and lies. When there is no pending claim between the “insured” and the company, it is all smiles and “good hands.” But once the “insured” suffers a compensable injury, it’s war. The insurance company will attempt to pay nothing. If necessary, it will pay something, but never everything. Before the dice fly, a good gambler does not sit around and wait for the throw; he tilts the table or loads the dice first. Insurance companies can do this. And they do.

I have always reserved special cynical bile for insurance companies. One must merely understand corporations to see that insurance companies have an institutional incentive to wage war against their own customers in order to maximize shareholder returns. Insurance companies, in other words, operate under numerous conflicts of interest; and ultimately their duty to their own shareholders prevails over all other duties. Still, some will doubtlessly counter that insurance companies pay for damages on many occasions. I know they do. Nonetheless, I believe this has less to do with honor than with the threat of legal compulsion. Although the legal system clearly favors insurance companies through contract rules and common law indulgences, it does provide some recourse against particularly egregious, “bad faith” refusals to pay in unambiguous cases. After all, even an insurance-friendly court could not in good conscience refuse to compel an insurance company to pay a claimant who bought “pedestrian injury insurance” two days before being run over by a car in a crosswalk. In such clear cases, insurance companies would lose more than they would stand to win by contesting the customer. Thus, when insurance companies “pay like they are supposed to,” they have merely calculated whether it would be cheaper to pay than to contest. But their overall policy is: “Contest unless the facts warrant otherwise.” That must be the policy. We saw it at work after Allstate refused to pay Hurricane Katrina victims because they suffered “wind damage,” not “flood damage.” It is the only way to minimize expenses and maximize profit.

We all need insurance. There is no other way to spread the cost of inevitable losses in life. But that does not save insurance from being stupid and unfair. Insurance companies are for-profit enterprises that ostensibly “pay claims” to people who suffer covered losses. This creates a fundamental conflict of economic interest. This conflict, in turn, generates automatic acrimony and mistrust between insurers and their customers. It also provides an incentive for the company to pay as little money as possible to the customer. Further, it offers an incentive for the insurance company to protect itself through unfair legal processes, such as writing its own contracts and conducting its own fact investigations. In all these situations, the customer stands at a material disadvantage. He can only hope that he suffers a clear, provable injury that even an insurance-friendly court could not refuse to acknowledge. Otherwise, he must lock into a “gambling contest” with the insurance company. And in this crap-shoot, the odds are against him; the house always wins.