Monthly Archives: September 2010

All the world’s a stage, and all the men and women merely players: but on that stage, are courtroom dramas sometimes pre-scripted to produce results and/or social effects? Do these scripts negate due process of law? A Northern California Example.

In the eight years since AAMES Vice-President Deborah S. Gershon in Los Angeles explained to me that AAMES loans could not be modified because they did not belong to AAMES…. strike that, in the 17 years since I first participated in the preparation of an SEC-acceptable registration statement for an MBO (Mortgage Backed Obligation, actually a Mortgage Bundled-Bond, in that case) IPO on Wall Street at Cadwalader, Wickersham, & Taft, I have been almost obsessed with trying to understand and undo the evil caused by securitized mortgages.  It’s a lonely obsession, like so many of my interests: from Wagnerian Opera, Gilbert & Sullivan’s operettas, Tom Lehrer’s and Weird Al Yankovich’s “comic pop-cultural folklore”, to the reconstruction of Proto-Indo-European Language, Culture, and Mythology, the calibration of the Maya and Christian calendars by and through archaeological stratigraphy and ceramic seriation, the comparative structural analysis of dual, tripartite, and quadripartite forms of religious and social organization, and then over to the comparative American graveyard organization and iconography of Colonial New England and the South, especially New Orleans, the detailed history of the Oracle at Delphi, the best approximation of Moses’ route through the Sinai Peninsula in Exodus. But of all my interests and obsessions, only securitized mortgages have become not merely a national but a worldwide crisis and obsession as well.   Since my happy days as a young (or at least a much younger) judicial extern clerk for Stephen Reinhardt (Ninth Circuit, Los Angeles) and later a judicial law clerk for Kenneth L. Ryskamp (Southern District of Florida, Miami & West Palm Beach), on the opposite coasts of America, since those days when I believed that Federal judges all worked late hours into the morning with their clerks sifting through pleadings and motions and agonized over the proper disposition of cases, never “pre-judged” anything, and that federal judges in particular were basically among the hardest working and most honorable members of society at large, never mind the much maligned legal profession, I have learned a lot and become very cynical.

Sadly, I have to say that I repeatedly, and with increasing frequency, see evidence that at least some federal judges either manipulate or fix cases, and that the putatively adversarial attorneys may sometimes participate in this process.   I have neither the time nor the energy to review all the cases where I have suspected this, except that I saw the process directly for the first time in September 1997 in Austin, Texas, when I saw Judge James R. Nowlin take charge of a case (ALL sides), primarily for the purpose of attacking and ultimately destroying me (well, actually, my “ordinary” legal career: which by ending that very ordinary phase of my life began the “extraordinary” phase in which I have been living ever since).  But I’ve seen some evidence of staging and restructuring cases many times since, though no one has ever been quite as outrageously blatant about it as Judge James R. Nowlin of the Western District of Texas (that was one for the Guinness Book of World Records), until perhaps right now, September 2010, in the Northern District of California.

A couple of weeks ago, I became aware that a respected an experienced attorney by the name of Michael Pines had filed a truly extraordinary lawsuit against the foreclosure and eviction consequences against the securitization of mortgages, and in particular against one marvelously slimy fellow by the name of Steven D. Silverstein who operates a rather vicious shark tank out of Tustin, Orange County, California.  Michael Pines’ complaint was, frankly, music to my ears: as eloquent as Wagner while as socially apt, “right on the mark” and stinging as the comedies of Gilbert & Sullivan, or the satires of Tom Lehrer and “Weird Al.”  Everything that Michael Pines said was true, or at least reflected MY version of truth and reality to a very reassuring degree: Michael T Pines’ NDCA Complaint for FDCPA-Wrongful Foreclosure 10-02622 Class Action

Finally, a non-disbarred, currently licensed attorney with community respectability, standing had become so thoroughly acquainted with the truth as even to go record as giving CLE Courses to other lawyers on the topic, see e.g.: 1268337159.html

Surely a lawyer like this knows at least as much as a pathetic disbarred attorney such as myself would know.  Inception of a major lawsuit, especially a class action, means that you must design your litigation according to a very careful strategy, frame issues to match your defendants, and you must thoroughly research every topic prior to launching litigation.  Above all, before you file your complaint, you must anticipate vigorous and violent opposition—especially if you’re suing other lawyers, but even if you’re “ONLY” suing certain major banks and loan servicing companies in the largest financial industry in the WORLD in a state (California) whose, by itself, would rank right after that of France and just above Italy’s if California were a separate and independent nation, apart from the rest of the US.  Anyone who goes into Federal Court knows that the first thing to expect is the ALMOST inevitable 12(b)(6) Motion.  Few and far between are the cases where anyone just files an “answer” in Federal Court, when Federal judges, even the good ones, LOVE to throw out cases without allowing a jury trial if they possibly can, because all Federal judges are “judged” and rated by their “case statistics” which rewards a LOW case load (which requires less work) than a HIGH case load (conscientious management of which would require MUCH more work).   Congress has built in some VERY perverse incentives for Federal Judges but that is, as they say, a “Political Question” which we need not address here.

SO how can it be that Michael T. Pines, a distinguished lawyer known for speaking on this topic, had not filed (by September 2010) even a single answer to the motions to dismiss his complaint filed in June, 2010?  CAND-ECF-10-02622 Michael T Pines v Silverstein Docket 09-19-2010 Michael T. Pines did the almost unthinkable: he filed and served a major, complex lawsuit in his special field of expertise and advocacy and then, faced with the totally predictable barrage of motions to dismiss and for sanctions, never filed any responses and finally, on September 21, 2010, VOLUNTARILY DISMISSED HIS CASE.  09-21-2010–PINES AND ASSOCIATES—Notice of Voluntary Dismissal.  The Notice provides no explanation whatsoever why Plaintiffs’ Counsel so utterly and completely failed to file any response or contest to the Defendants’ Motions to Dismiss, but only lamely “advised the court:”

2. Further investigation is occurring and will be helpful.

3. Many new party defendants need to be added.

4. The case may be re-filed in a court where other class actions are pending as this

case is related to other similar actions not only in California, but in Florida,

New York, and Seattle.

5. In an attempt to further conceal their wrongful conduct, with the exception of a

few defendants, no demand for defense was made to insurance carriers and

plaintiffs wish to make sure this occurs.

6. If the case is re-filed in this court, this action will be brought to the attention of

the court so it can be reassigned here if the court desires such.

Steven D. Silverstein’s lawyer Larry Rothman responded  09-27-2010 10-cv-02622-RS Case Status Report in a more mild-mannered and civilized way than I would have thought possible, because Larry Rothman is nothing if not a fairly consistent shark in the tradition of his client (and mentor?) Silverstein—and yet Rothman pounced on 09-22-2010 THE VERY DAY AFTER Michael T. Pines’ Notice of Voluntary Dismissal and demanded that jurisdiction to impose sanctions be retained.  Judge Seeborg of the Northern District could do nothing other than comply with Rothman’s request: 09-27-2010—10-2622 McComas order re pending motions—Rule 11 Sanctions Remain.

This story is clearly not yet “over”—it remains to be seen what Judge Seeborg will do about the motions for sanctions and the administration or implementation of Rothman’s California “anti-Slapp” motion in Federal Court.  (The idea that Silverstein’s use of the California Superior Courts of Limited Jurisdiction [solely to eviscerate the rights and lives of hundreds of thousands of Californians] could be protected against a “Suit to Limit Access to Public Process” [a “SLAPP” is usually conceived of as a harassing lawsuit designed for no purpose except to silence environmentalists or civil rights advocates, or historic or coastal neighborhood preservations—NOT as a vehicle to insulate criminals like Silverstein from very meritorious lawsuits] is beyond preposterous and downright offensive.   I believe and have submitted in two lawsuits of my own that California Anti-SLAPP legislation is the “mother of all First Amendment Constitutional Violations”—even more reprehensible for its vagueness and obviously realized potential for overbreadth than the “Vexatious Litigant” index which I can only imagine Silverstein would like to have me registered on).

It also remains to be seen whether Michael T. Pines actually WILL refile his class action against Silverstein and his cronies and seriously litigate the Complaint once he DOES file it again.

In the meantime, Michael T. Pines has voluntarily dismissed his very fine complaint without even attempting to defend it.  And I have never seen anything this suspicious in my life, except for Judge Nowlin’s conduct towards me in September 1997 [footnote/sidebar: it was a civil case, but Judge Nowlin appointed a very expensive downtown Austin lawyer, a former law clerk of his, to represent the crook I was suing as Defendant, who was proceeding pro se —when I say “crook” I mean Donald Richmond was a forger, an interstate racketeer in real estate before it was even fashionable, and we had the certificate from the North Dakota Secretary of State confirming that he had forged a notary seal—and then he arranged to have me fired as counsel for the Plaintiff by strong-arming my housekeeper into giving outrageously and obviously false testimony against me, and on that occasion expressed his gratitude in open Court, on the record, to her and anyone else who would assist him in procuring evidence leading to my disbarment…..]

I submit that this all looks just a little bit too STAGED to me.   Even if it were true, as Michael T. Pines so weakly claims that:

1. Counsel is working with several agencies including the State Of California to

coordinate proceedings against named defendants and others (and criminal proceedings in other states).

2. Further investigation is occurring and will be helpful.

3. Many new party defendants need to be added.

4. The case may be re-filed in a court where other class actions are pending as this

case is related to other similar actions not only in California, but in Florida,

New York, and Seattle.

These facts SIMPLY do not excuse Michael T. Pines failure even to defend himself for filing the Complaint in any way, shape or form.  (Aside from submitting the Complaint, Pines had submitted a TRO and motion for reconsideration of denial of TRO, and no other substantive papers in the case WHATSOEVER).

And frankly, all of it would be pretty inconclusive and not nearly so suspicious if it were not for the judgment obtained in the California Attorney General’s case against a certain Mitchell Roth in Los Angeles in August of this year.   I wrote a critical letter to the Attorney General immediately after learning of the Mitchell Roth judgment, saying that I did not believe that the Attorney General had acted in the best interests of the people of California in attacking Mitchell Roth’s abortive crusade against non-judicial foreclosures and evictions.  CEL to EDMUND G BROWN CAL AG 08-26-2010.  I feared then and still fear that the end result as far as the public is concerned will be that everyone who pushes the “securitized note” issue, as a defense to wrongful foreclosure and the evictions that follow therefrom will be lumped with “the scammers” and the filers of frivolous lawsuits, such as Roth and, I’m going to predict, Michael T. Pines.  I note in the attorney general’s summary of Roth’s conduct the disturbing sentence: “Roth filed lawsuits on behalf of homeowners, pushing a novel legal argument that a borrower’s loan could be deemed invalid because the mortgages had been sold so many times on Wall Street that the lender could not demonstrate who owned it.” Isn’t THIS suit, by the Attorney General of the State of California, the ultimate “SLAPP” in the face to the movement of which I am apart, the advocacy in which I believe and have fought ever since it effectively cost me my high-paying, high-prestige job at the (they claim) oldest lawfirm in the United States (allegedly traceable back to a law office founded in lower Manhattan near the battery in 1792).

However, even more suspicious and odd, California Attorney General Edmund G. Brown had made precisely the same claim against Mitchell Roth as the demonstrable reasons for the voluntary dismissal of Plaintiffs’ case in the NDCA: “Once the lawsuit was filed, Roth did next to nothing to advance the case and often failed to make required court filings, respond to legal motions, comply with court deadlines or appear at court hearings.”

Honestly, it just doesn’t get much more suspiciously coincidental than this: on or about August 12, 2010, the Attorney General enters into a consent judgment with Mitchell Roth preventing Mitchell Roth from “pushing” his novel legal argument that a borrower’s loan could be deemed invalid because the mortgages had been sold so many times on Wall Street that the lender could not demonstrate who owned it”—Mitchell Roth’s alleged “M.O.” was to file lawsuits and then never do anything else about it.

Slightly over a month later, on or about September 21, 2010, Michael T. Pines, supposedly one of the leading advocates AGAINST SECURITIZED MORTGAGES, voluntarily dismisses his very strong complaint against wrongful foreclosures, after having identified the issues correctly, named all the right defendants, after initiating a lawsuit and never filing any other papers or attempting even taking steps towards the serious prosecution of the lawsuit, (i.e. (without ever answering the Defendants’ Motions to Dismiss or defending his complaint in any way) .  (Perhaps it is significant that Pines’ Complaint named too many plaintiffs and defendents to be practically combined into a single suit, especially one seeking class certification, where “identity of injury and identity of nature of causation of injury” must be proven, but that’s a quibble about strategy).

Two nearly identical case histories, flawed legal strategies, associated with the same legal issue, both leading to potential legal sanctions or stigmatization of the very meritorious legal issues involved in attacking the securitization of home mortgages as the direct and proximate and therefore legal cause of the present mortgage foreclosure crisis.

The end result of both the stories of Mitchell Roth and Michael T. Pines’ case histories, as of Tuesday, September 28, 2010, is that two “seasoned” lawyers in the State of California who wanted to push that self-same “Novel Argument” about securitization leading to unenforceability of mortgages have both bit the dust without adequately developing or examining the legal theories or factual evidence which could be marshaled in favor and support of either Roth’s Complaint or Pines’ Complaint.  This is going to lead to a lot of “See, I told you so” comments which those trying to dissuade homeowners from fighting foreclosure on this issue will now be able to use.   Litigation on the scale of the Pines’ now voluntarily dismissed complaint or (I assume, without ever having looked at an example) Roth’s Complaint supposedly filed (???) 2,000 times without a single genuine litigation is expensive and difficult, and scares away even many serious people, but that is because it must be fought against all odds against such tough enemies—the international banking & finance industry, its attorneys, and its servicers.

In other words, I charge, without any inside knowledge, that Mitchell Roth’s cases and Michael Pines’ case were both staged, fraudulent situations specifically staged to discredit and destroy the causes which I so passionately support: the abolition of securitized mortgages and the modification of the foreclosure and eviction laws in the state of California and elsewhere, especially in those Western U.S.A. states which tend to slavishly copy California Codes, by inertia and gravity, as physical factors relating to size and proximity, rather than virtue or success of theoretical arguments.

And that, therein, is the biggest problem.  In almost all pro se complaints, the systems-loyal state and federal judges all have an easy time throwing out the desperate homeowners who demand to see the note or ask how their property can be taken from them by a party who appears to have no relationship to them or their original mortgage application and promissory note whatsoever.

The continuing lack of argument and exposition of evidence and theories is perhaps the most devastating consequence of the Mitchell Roth judgment and the Michael T. Pines’ voluntary dismissal (with continued exposure to punitive sanctions under both Rule 11 of the Federal Rules of Civil Procedure and the ABSURD California “Anti-SLAPP” Motion filed by Rothman for Silverstein).

“Due Process” never occurs on stage.  It is true that the language used to describe and explain legal “representation” and thespian performance is sometimes eerily similar:  the lawyer “acts on behalf” of another by “representing him” as accurately as possible in his “presentation” to the Court.   An actor, like an attorney in court, is to be judged on the “quality” or “accuracy” of his representation of both the character and the “original intent” of the author of the movie, the play, the book (before being made into a movie or play), or of the statutory and constitutional provisions underlying the lawsuit brought to be “put on” in Court—under the best of circumstances to a small, non-paying, poorly paid, “captive” audience of 12, and more often, to an even smaller audience of one judge, one or two bailiffs or courtroom deputies, and one-or-two law clerks.

Meaningful argument, substantial dialogue or “Due Process” on stage is impossible, except of course in completely “ad libbed” dramas (where no preset script is to be followed), because all the arguments and outcomes are normally predetermined (“Shear Madness” is a notable exception).

What aggravates so many Americans who get caught up in one or more aspects or elements of the litigation system in this country is how “pre-set” and “pre-determined” the outcome of all proceedings seems to be.  There is no room for open or free argument or debate—there is no “due process” for the free development of ideas or evidence—there are rote formulas and outcomes which in some courts seem totally fixed—the opposite of freedom.

In Florida for several years now I’ve been working intermittently with Dr. Kathy Garcia-Lawson on the question of why every divorce litigation must end in a divorce.   Why are there not multiple, possible outcomes, as unique as the individuals and families involved?  Why can one not question the “pre-fixed” outcome that all divorce proceedings must end in a divorce?   There is no such thing as a “not guilty” verdict.  As Kathy and others have said—every marriage is doomed once it goes to court—there are no pardons and no hung juries, every marriage must die.

Likewise, in California Unlawful Detainer Courts—the outcome is even more fixed.  In divorce court, there is at least some diversity of outcome with regard to who gets the house and who gets the house, the shares of Bristol-Myers-Squibb, the kids, the dog, the parakeet, and all those ancient plates inherited from one spouse’s great aunt who collected Royal Doulton (but whose eyesight was so bad in her old age that every set is hopelessly mismatched in the China cabinet).

In Unlawful Detainer Court, as in California non-judicial foreclosure, there is no diversity of outcome, and Judges have been known to tell defendants out right that only one outcome is possible—the homeowner must lose and be evicted.  Contractual defenses are not allowed.  Defects in property title are not allowed.  Violations of due process and allegations of fraud are not allowed—or if a good humored judge allows these arguments, the Plaintiff still wins, anyhow.

Accordingly, “due process”, has become meaningless in many American Courts: there is a “prix-fixe” menu of “notice and opportunity” whereby you have notice of some dire event—either your marriage is about to be torn apart or your home is about to be sold (and possession delivered) to the Mainland Chinese and/or Saudi Arabian investors who’ve been stalking your neighborhood or both.

“Due process” is ordinarily defined as “meaningful notice and reasonable opportunity to be heard” but even those qualifying words are extravagant compared to what’s really given in most American Courts of limited and/or specialized jurisdiction (i.e. Divorce/Family/Domestic Relations Courts or Courts of Limited Jurisdiction/Municipal Courts/Justice of the Peace Courts specializing in evictions/foreclosures).   The State of Florida is setting up special “foreclosure courts” just to speed the destruction of private property in that state along at a merry pace.

But then there are the real problems—where the Courts are of unlimited jurisdiction, like the Northern District of California—but a “show” is apparently planned and put on to discredit an idea.   A case is made up and then litigated in such a way that one side must lose.  It is exactly like fixing a boxing match or a baseball game so that the “gamblers” and “bookies” will be happy, or make money, or both.

When lawyers participate in the fixing of cases, they betray their clients and themselves, but they also betray the concept of due process and the constitutional meaning of the courts as a part of government.

When judges participate in the fixing of cases, well, it’s just too horrifying for words.

Did any of these happen either in the Mitchell Roth case in Los Angeles or the Michael Pines case in the Northern District of California?   Similar fact patterns, similar outcomes, identical legal-factual subject matter relating to the effect of securitized mortgages.

I think that “due process” should be redefined as meaningful dialogue concerning all facts and issues.  The Judges would be primarily responsible for enforcing the Court as an arena for such discussions.   Last year I was involved in an unfortunate case of ill-repute in Orange County wherein I worked with a lawyer who brought some very controversial claims of great national interest, and that lawyer then intentionally sabotaged her own claims on several levels by rushing the process, and then by ignoring it once she had a chance to get into court.  The judge granted this particular lawyer an extraordinary opportunity to correct some past mistakes, the attorney made more.  The judge then wrote an opinion outlining everything that this attorney needed to do to make her case and claims stronger, and the lawyer called the judge a traitor on the internet.  It was all just tragic and disgusting, because this one particular judge really DOES get that “meaningful dialogue” is at the heart of due process.  “Due process” is simply not satisfied by summary executions where the doomed defendant has a few words to say by way of complaint before his head is lopped off or he is thrown bodily out of his house.

The world goes faster and faster, and it is time to slow some things down.  Legal process, for instance, should NEVER be streamlined.  It should ALWAYS be slow and deliberate and give adequate opportunity for thought, reflection, and debate both on legal theories and evidence.   Above all, there must be no fixed or pre-determined outcomes.

I hope that Michael Pines did not intentionally “throw” his case by failing to answer the Defendants’ Motions to Dismiss, but I’d say it looks very suspicious.  I hope that there is nothing more than great  and random coincidence between the allegations made (and established by a consent judgment) against Mitchell Roth in Los Angeles and the obvious conduct of Michael Pines’ case in the Northern District of California.

Full and open debate and exposition of evidence is absolutely critical both to resolving important issues facing the country and for the future of the free rights and enforceability of contract and the maintenance of the right to keep and own private property.  In other words, due process, by which I mean “well-developed and meaningful dialogue” (i.e. dialectical reasoning and process) in the evaluation of petitions for redress of grievance concerning impairments of the rights to enforce and maintain obligations of contract, for the benefits of acquiring and maintaining ownership of private property, and the presentation of these arguments to juries, is key to the future of the United States of America, and there is some evidence that such dialectical debate and the adversarial process itself is being regularly subverted in these United States as we teeter on the verge of a major transformation in our country, as one economy, the “capitalist mode of production” gasps for air and tries to survive against creeping socialism and collectivism which deeply threatens our way of life.

In Plato’s Republic, Book VII, men are chained to a wall and never see the sunlight, and they believe that their shadowy reflections in the torchlight is the only reality of life, because they either never knew or have forgotten the sun and how the world looks by day.  We in America are chained in our caves by lack of due process in court, lack of full debate on important aspects of our lives, such as WHERE and HOW we live.  The judicial courts need to be a radiant source of light for all people to see evidence and theories concerning what is right and what is wrong, what is true and what is false, especially in the economy, especially in regard to the essential elements of life, such as food and shelter.

Ninety-Days Until Christmas—A story about a Heroic Girl and Her Ponies—Give Now to Support her Freedom!

I have no idea how many regular readers of this blog there may be (if any!) but I hope there are at least a few who will read and hear this plea for a little bit of Christmas Giving on this 90th day before Christmas 2010.  However, Anyone who IS a regular reader of this blog will know of my intense admiration and affection for Nancy Jo Grant, a 60-something grandmother, resident of Arcadia (De Soto County) Florida, at the north end of the Everglades and just northwest of Lake Okechobee (on a more-or-less straight line between Sarasota and Stuart/Palm Beach Gardens Florida).

Nancy Jo Grant is a true American Patriot and Heroine, an Anti-Establishmentarian afraid of absolutely nothing, former Christian Missionary to Honduras and the Florida Prison System, still the embattled President of JAIL-for-Judges in Florida and several time Christian Party Candidate for Governor. Owing to a preposterously unjust August 2007 trial and conviction for “Unauthorized Practice of Law” (applied to and characterizing her Prison Missionary Work), Nancy now desperately needs to file a writ of habeas corpus challenging her 15 year probation sentence (12 years left!, or 11 years and 4 months, something like that).   Because of the 1996 AEDPA (Anti-terrorism and Effective Death Penalty Act) and misnamed 2001 “Patriot Act”, Habeas Corpus has now been all but obliterated the formerly rich jurisprudence in support of relief from wrongful conviction for all but non-existent crimes such as that of which Nancy was convicted (without a single victim EVER complaining…. in fact, everyone who has ever commented, including all who testified at her month-long trial, PRAISED her inspirational work with Florida’s most hated, wretched, and despised and socially ostracized prisoners).

I just talked to Nancy tonight for the first time in a long time and she wants to sell some of her Shetland Ponies to raise funds to pay for filing a Habeas Corpus proceeding—under the new AEDPA “reform” laws [enacted by Newt Gingerich and other members of the “Contract on America” Congress—-which set the stage and pave the way for 9/11 and the abuses of the Soviet-Maoist NIGHTMARE decade that has followed], Nancy gets exactly ONE post-conviction shot at this which must be filed AFTER exhausting her Florida State Remedies AT THE LATEST by the end of this year).

Nancy is thinking of selling her beloved ponies at local auction in Arcadia.  I hate to see her do it—anyone who has ever known an equestrian lady knows that a girl and her ponies should never be parted….  But if they must be sold, they should be sold to sympathetic supporters who will cherish the opportunity to have helped one of America’s premier “Ladies of Liberty” by purchasing one of her prized possessions.

I think Nancy could do MUCH, MUCH better by selling them on-line or to people who might buy to support her.  I know a little something about keeping horses—I have seen Nancy’s ranch, her ponies, and I have seen Nancy caring for and grooming her beloved Shetlands, and I know that this is a terrible thing for her to have to do.  So Will you help out?  Will you buy one or two of her ponies yourself or else put Nancy in touch with someone who might be willing to support a truly Patriotic Lady who has been the victim of massive injustice in Florida.

Except for the time when she was a Missionary in Honduras, Nancy has lived in Arcadia all her life and is just….not very worldly or aggressive and she really has nobody helping her—and I am so far away and have no place to put any ponies myself—although if I did, I would definitely buy some.

I want to help Nancy obtain her liberty from this RIDICULOUS conviction, but there is no simple way—her conviction was “per curiam” affirmed by the Florida District Court of Appeals just last year.  NO OPINION means NO DISCRETIONARY REVIEW in the Florida Supreme Court.   Habeas Corpus is her ONLY hope.  Accordingly, Nancy’s Petitions need to be both OUTSTANDING and prepared quickly.  She has really delayed too long already in getting going on them.  I’m going to put up something on my website/blog.  My son Charlie is in Maryland and maybe there are some good DelMarVa equine establishments near St. John’s College, but you guys are RIGHT THERE and so close….I hope you know someone who raises Shetlands or would even just be willing to talk to Nancy….she’s a wonderful lady…and if you call me, Peyton, or Bob Hurt at the numbers below, we’ll put you in touch.

Peyton’s parents live on a ranch way out in the lower Hill Country in Texas and although they don’t raise horses they may know some people who do.

We just need to find some fans of Nancy who’d like to help her out.  Everyone SHOULD be Nancy’s friend:  She’s a sweet, kind, and gentle Southern Lady and country grandmother, a self-less Christian Missionary to the Damned, a friend to all the friendless, hated, rejected, and despised people in society.  And yet she’s serving a probated sentence longer than some people get for vehicular homicide, even second or third degree murder….

Here is a website I found just by googling “Shetland Ponies for Sale.”

If you’d be willing to call Nancy and help her out with this project, please call me or Peyton at the numbers below, or else call Bob Hurt at 727-669-5511.

It’s 90 days until Christmas—but this can work so many ways—if you know someone who loves Shetland ponies, or would like to give one as a gift, if you love Shetlands, or if you love horses in general and love freedom and liberty and can appreciate and admire this woman who has essentially given her entire life to other people, and now has to sell some of her prized possessions—well, the ideal would be if you could just give her the money to hire a top-notch lawyer and try to put together a team to beat this one—but if not, buy one of her ponies on an early Christmas Plan—it is the Christian thing to do!

(And as any readers of this blog know—as I know–that some of the most generous and “Christian” people I have met in my life are Jewish—in the two months before Nancy was arrested in Florida I was for 54 days including Christmas 2007 and New Years 2008 as YOUR GUEST, i.e., the guest of you, the American taxpayers, at several Federal Institutions in California, Oklahoma, and Texas on equally [or if logically possible even more] spurious charges as or than those lodged against Nancy Jo Grant.  During that dark and dreary time time, at the Metropolitan Detention Center in Los Angeles, there was a older Jewish fellow by the name of Moshe Leichner who was like a cross between Santa Claus and Jesus Christ to his fellow-prisoners.  I examined this man’s case file in some depth and feel sure that he was innocent of the charges which had brought him into Federal Custody for 20 years.  Moshe is still in prison.  Moshe Leichner v USA et EDCV09-6 SFW (CW) and 09-cv-6 Moshe Leichner v USA Docket Report as of 9-25-2010.  Later back among the living, I was privileged to meet a Dr. Dennis de Leon, M.D., of South Pasadena, a man of slightly confusing nationality and ethnicity but claiming a Jewish identity, who like Moshe is among the kindest, gentlest, most generous, and wonderful “Christian” in the sense that he behaves with the same regard and care for his fellow human beings as a certain post-Old Testmanent “Rabbi” named  Yeshua/Yesu/Joshua or Jesus instructed us all to behave.  When I think of the antagonism that some people would assume between supporting Nancy Jo Grant, a southern Lady who founded her own “Christian” party to fight against the Hypocrites and False Judges our time, with supporting Jewish inmates in Federal Custody and admiring Jewish Doctors in Los Angeles County, I am moved to remember that Jesus and all his followers described in his “Gospels” of Good News for Modern Man were Jewish, so that all Christians are, at their core, Jews whether they call themselves that or not, while many Jews are in fact good Christians who follow the teachings of the Rabbi and the Gospels, whether they think of themselves that way or not…  In all these senses, too, Nancy Jo Grant is a Christian, and like Rabbi Jesus of Nazareth, whose Crucified Epitaph “King of the Jews,” was as politically sarcastic as the charge of Unauthorized Practice of Law leveled against Nancy, Nancy fights against the Hypocrites and Liars who claim to follow the law but do so only for their own enrichment and glorification.)

But in any event, I digress: the point of this Post is—Please buy a Country Girl’s ponies, one or more, to Help Nancy Jo Grant fight for freedom!  Back in the Political Arena, back out of probation where she can again speak freely—Nancy will be back fighting for YOU, the American people.  She simply can’t help it, it seems to be in her very core nature.  The powers that be want us all to be scared and afraid of their false monopolies on virtue and the right to speak for ourselves and others.  Helping to free Nancy Jo Grant will be a great way of aligning yourself, this year and this Christmas, with one of the truest heroines of our time….

Charles Edward Lincoln, III

“Ich bin der Geist der stets verneint”

Deo Vindice/Tierra Limpia

Telephone: 512-968-2500

In case of emergency call Peyton Yates Freiman (Texas)

at 512-461-8192

The Yucatan Goes Dark: The AP reported on Sunday, September 26, 2010, that “The remnants of Tropical Storm Matthew drenched parts of Central America and southern Mexico on Sunday, a day after it weakened to a tropical depression.” Janet Claire Phelan reported from somewhere North of the 20th Parallel:

And it rains like this

and I go scampering in the half light

up calle 78

with a quick left

on calle 41

sloshing down a couple of flooded blocks

wide open/ without overhang or shelter

from what is now clearly a deluge

unlocking the gate and up the stairs

into what approximates

my dwelling

my casa

my place of residence

though I have not bothered to learn

its actual street address

and it is dry inside

and a small black cat

watches intently

as I pull off soaked shirt


and I am so relieved!

Nearly ecstatic

as the power goes down

block by block

blinking off in a jigsaw succession

obedient to the grid

and the city goes dark

and I am overjoyed!

lighting the candles

I bought last week

for your birthday (I always

celebrated you twice a year,

once on yours and again

on mine, because didn’t we

both have a fundamental part

in getting me out of your belly

and into what we call, here,


and I am almost besides myself

upstairs as my ersatz expat

lodging flickers and glows

a globe of candlelight in the expanding darkness

which is now storming up the coast

Chuburna, Chelem, Progreso, Chicxulub,


as town after town goes dark

rendered to speechlessness, sightlessness


as the storm gathers

in force and intention

spreading out from its center

its ancient, irrevocable seed

and I am free! Dancing

and laughing and spinning and singing

for there is nothing I can do

all research modalities stutter and stall

no emails to be sent

no phone calls to be made

and the utter weight of my commission

falls away

at last


The eyes of the small black cat

glow with alien knowledge

He knows what I

with more intricate wiring

could not

although it is encoded in our DNA

it is written in our breath

we just could not know quite


Some of us heard the call

and have risen

out of our deepest slumber

to answer

and thus assume this

the unbearable weight


Through the night

the small black cat and I

keep our vigil

Through the night/

we continue to keep

our vigil

~~Janet Phelan

Chichen Itza, Yucatan, Mexico, June 27, 2010, by Janet Phelan

As I stepped down off the bus at the entrance to Chichen Itza, the sky unfurled an apron of rain.  It has rained every afternoon at least for the last week, when I landed in the Yucatan.  I paid my entrance fee and pushed through the turnstile into a veritable Disneyland of culture-seekers and pirates, hawking plastic jaguars on key chains and fluorescent long-dead ceramic gods, ripe for hanging from a rear view mirror.

There was majesty here once, but it is obscured now, folded back into itself, dormant and cocooned. The stones will not speak.  The sheer weight of decades of the curious filing past with Nikons and fair-headed children in tow has not diminished the indignity of having withstood the onslaught of European colonization. Better to have crumbled into undecipherable dust than to endure the daily parade of vacationers.

An instructional tablet announces that the bas relief stonework depicts jaguars and warriors eating hearts.  My mind leaps across thousands of miles to your unmarked graveside, where you were quickly and furtively stuffed in the ground before I could discover that you had died. The dreams had already started–you being eaten alive, you being dissected with a geneticist´s antiseptic curiosity and swabbed onto slides for categorizing and filing away.  When it actually happened, I should have been prepared. Standing in the rain now, I wonder–again–if they devoured your heart.

Is that the secret? That the old invocations, the subterranean channel running darkly through history, has never been obliterated, only fancied up to appear contemporary and respectable?  Flesh-eaters and graverobbers roam the courthouses of our democratic societies, while those sitting in the courtroom pews are only suckered in to their eventual dismemberment by dapper dark sutis with briefcases and polysyllabic lingo.

I´m trampling on some kind of artifact of some kind of state of suspended metaphysic.  The man in the coat room told me that the secrets were destroyed by the conquistadores, that there is nothing left of the sacraments. The Mayans were experimenting with time and dimensions and all that we have left, he said, are a pile of stones and the prophecies, unfurling now in relentless succession.

I walk through the Colonnade, my hand lingering on the stones.  It is the only way I know to say I was here, I walked through these places, I saw clearly and without fear the impetus and direction of intended impact and I cried out a warning and I was helpless to change it, any of it and I left behind a few moist molecules in the cracks between the rocks before I walked out into the deluge and was gone forever.

On Judge Bolton in Arizona, District Court Jurisdiction to hear Constitutional Challenges to State Laws, and other Jurisprudential and American Historical Puzzlements.,

Oh, with all due respects to our Canadian student of jurisprudence (quoted herein below from the Canadian Free Press and “Publius Huldah”): if only it were that easy, “no suits against the constitutionality of state statutes in U.S. District Court, only the Supreme Court,” well, if it were THAT easy, things in this country would definitely be different. This is what’s known, I think, as an example of how “a little knowledge is a dangerous thing.”  There are MANY problems with the Arizona lawsuit, which I happened to be studying precisely because I am interested in the “state of the art” of how to litigate against the constitutionality of state statutes, but failure to bring this case in the United States Supreme Court is NOT one of those problems.  United States v. Arizona (Complaint re: State Immigration Law)

28 U.S.C. Section 1331 would seem to be a pretty much irrefutable basis for jurisdiction, unless 28 U.S.C. Section 1331 itself is unconstitutional, and I’m guessing that would be the subject of a separate lawsuit, and to outlaw “Federal Question” jurisdiction in the Federal Courts would probably be deemed frivolous quicker than you can say, “Rule 11.”

So application of Federal Question jurisdiction and the Supremacy Clause seems appropriate.  If not, maybe the State of Arizona should simply be dismissed as a party, and the Arizona A.G. and Governor left in. (Compare “Ex Parte Young“….where the State is immune from suit under the 11th Amendment, State Officers must take responsibility….the 11th Amendment doesn’t cover Federal-State lawsuits, and neither does the 14th, but there have been literally HUNDREDS OF THOUSANDS of lawsuits during MY lifetime alone questioning the constitutionality of various statutes, many millions during Jon Roland’s life (lol!), and I’ve never heard this argument raised before).

So the First Answer is that the Congressional award to the U.S. District Courts of “Federal Question Jurisdiction under 28 USC 1331” has never been seriously questioned before, in the entire history of our government and court system.

The Federal Civil Cover sheet that we have to fill out every time we file a lawsuit has a box I’ve checked at least several times: Under Part IV. “Nature of Suit” (Place an “X” in One Box Only) over at the right hand side there is a category called “Other Statutes” and the very last item entry on that right hand column underneath “400 State Reapportionment”, “410 Antitrust”, “430 Banks and Banking”, “450 Commerce”, “460 Deportation” (hmmmm…. that’s interesting), “470 Racketeer Influenced and Corrupt Organizations” (everyone’s favorite?  If not, it’s mine)….way down at the bottom of the list under “893 Environmental Matters”, “895 Freedom of Information Act”, and “900 Appeal of Fee Determination Under Equal Access to Justice”, is “950 Constitutionality of State Statutes.”  Obviously, somebody in the clerk’s office thinks that U.S. Courts have jurisdiction. See also: Civil Cover Sheet United States v. Arizona

So no, I think the answer is more prosaic: in this case, the State of Arizona is not REALLY a party; no penalties are sought against the state, no fines to be imposed, no diminution in the state boundaries.  (Seems as though every few years there are boundary disputes under the Original Jurisdiction of the Supreme Court between California and Arizona over the Colorado River or some change in the course of the Mississippi or Ohio).

Under Rule 5.1 of the Federal Rules of Civil Procedure, a State Attorney General (and/or Governor) are entitled to NOTICE of a lawsuit involving the Constitutionality of a state statute, if they are not named as parties.

That’s the second answer—and it is somewhat surprising that the attorneys for Arizona have not asked for the State to be dismissed as a party.”

“Prospective relief is always relief, even against parties otherwise immune from suit” would be the third answer.

When I first saw this article, I almost cried because it seems like, my whole life all I have seen is one after another state statutes being stricken down (and I grew up in a combined DAR-SCV-UDC family where the 10th Amendment was a frequent and well-known topic of dinnertime conversation).

The basic premise of the argument is specious: the mere mention of a state in a case regarding the Constitutionality of a state statute under the national charter has never invalidated lower court jurisdiction, even before the adoption of the 11th Amendment in the case of Chisolm v. Georgia (1793)(which was a state action or inaction case, default on a contract, rather than a statutory review case) or after the adoption of the 11th Amendment in McCulloch v. Maryland (1819) which was clearly focused on a state statutory scheme to tax the Bank of the United States.  My favorite quote from John Marshall’s opinion in this case was “the power to tax is the power to destroy.”  Sorry!  But if it didn’t occur to the Supreme Court in either 1793 nor 1819, when signatories to the Constitution of 1787 were still alive and quite active, Article III, Section 2, Clause 2 almost certainly, beyond any reasonable doubt, cannot be used to invalidate lower court jurisdiction over constitutional challenges to state statutes.

History is a pain, it often, like gravity, really “gets us down and keeps us down”, when we’d rather be flying……

From my perspective, there are much more recent historical cases when the doctrine of exclusive jurisdiction in the U.S. Supreme Court WOULD have been raised if it COULD have been raised……

I imagine that we all have our own special litigation heroes in this group. One of my special heroes is John W. Davis of West Virginia, the 14th United States Solicitor General and the 6th United States Ambassador to the United Kingdom, who argued over 140 cases before the United States Supreme Court, including one of the most stunning judicial rebukes ever delivered to a sitting President of the United States (prior to Nixon in relation to Watergate, anyhow): namely Youngstown Sheet & Tube Co., v. Sawyer in May of 1952.  Representing the Steel industry, and protesting President Truman’s seizure of the nation’s steel plants, Davis stated that “Truman’s acts were an usurpation of power without parallel in American history.”  In a 93 minute oration worthy of Marcus Tullius Cicero, Davis was asked only one question by the justices—this may have been the last such uninterrupted oral argument in U.S. history.  I have cited Youngstown repeatedly over the past two years as the forgotten precedent for overturning 100% of Obama’s socialistic seizures and interventions in national industries from finance to automobiles to real estate

Two years after winning Youngstown, we can be fairly certain that if the defense existed, which our Canadian colleague suggests, John W. Davis would surely have raised the simple and straightforward Article III, Section 2, Clause 2 objection to the mass of cases he faced again in the U.S. Supreme Court in 1953-54.  Obviously, NAACP lawyer Thurgood Marshall knew all about Ex Parte Young and knew that it was better not actually to NAME the states as defendants when attacking the constitutionality either of state action or state statutes.

Indeed, if John W. Davis did not raise this jurisdiction defense when arguing on behalf of the State of South Carolina against integration in Brown v. Board of Education’s basically forgotten companion case Briggs v. Elliot, and if neither Harvard Law graduate Senator Sam Ervin of North Carolina nor any other Senator or Congressman in signing the “Southern Manifesto” of 1956 ever raised that objection to the Warren Court’s program in the Senate, I think it is safe to say that the objection is a hopeless one to raise now.  There was never a stronger constitutionalist and “States Rights” movement in the 20th century than Senators Harry F. Byrd, Price Daniel, Sam Ervin, Walter George, John Stennis, Strom Thurmond, and all the rest who joined together in that fight.  They were not unthinking racist bigots, but civil libertarians who opposed the break down of privacy and civil rights which “liberals” like Kennedy and Johnson pushed for—Ervin was particularly famous for his opposition to “No Knock” police break-ins during the 1960s and ’70s.

If these men who “didn’t like what Earl Warren did to the Constitution” couldn’t find such a simple objection to the litigation that swept the Old South out of existence, it seems unlikely that Arizona will have an easy time objecting to anything other than the inclusion of its name as a party to the Government’s suit.

Charles E. Lincoln, III Tierra Limpia Tel: 512.968.2500

Deo Vindice “God be with you,and with thy spirit!”

Von: Jon Roland <>
Gesendet: Samstag, den 31. Juli 2010, 23:39:38 Uhr
Betreff: Fw: Judge Susan Bolton has no jurisdiction in ruling on AZ Law

In a stunning development that could potentially send the nation into a Constitutional crisis, an astute attorney who is well-versed in Constitutional law states that the ruling against the state of Arizona by Judge Susan Bolton concerning its new immigration law is illegal.

The attorney in question submitted her assertion in a special article in the Canada Free Press.  Her argument states in part,

“Does anyone read the U.S. Constitution these days? American lawyers don’t read it. Federal Judge Susan R. Bolton apparently has never read it. Same goes for our illustrious Attorney General Eric Holder. But this lawyer has read it and she is going to show you something in Our Constitution which is as plain as the nose on your face.

“Article III, Sec. 2, clause 2 says:

“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction.”

In other words, the Judge in the Arizona case has absolutely no Constitutional jurisdiction over the matter upon which she ruled.  As the Constitution makes abundantly clear, only the U.S. Supreme Court can issue rulings that involve a state.

This means that neither Judge Bolton nor the 9th Circuit Court of Appeals in San Francisco , to which the case is being appealed, have any legal standing whatsoever to rule on the issue.

Thus, U.S. Attorney-General Eric Holder filed the federal government’s lawsuit against the state of Arizona in a court that has no authority to hear the case.

The attorney whose heads-up thinking concerning the Constitution provides the legal remedy for dealing with this blatant disregard for Constitutional law in the article at Canada Free Press, which can be accessed at the link above.

In a related development, another explosive discovery was made by those who actually take the Constitution seriously.  The Constitution specifically allows an individual state to wage war against a neighboring country in the event of an invasion, should there be a dangerous delay or inaction on the part of the federal government. This information was cited by United Patriots of America.

From Article I, Section 10 of the U.S. Constitution, we find these words:  “No State shall, without the Consent of Congress, engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

No one who is actually familiar with the crisis at the southern border can deny that Arizona is endangered by the relentless assault of lawless Mexican invaders who ignore our laws, inundate our schools and medical facilities with unpaid bills, and even endanger the very lives of citizens with criminal drug cartels that engage in kidnapping, murder, human trafficking, and other mayhem, including aiming missile and grenade launchers directly at U.S. border cities from just across the Mexican border.

This is every bit as much of an invasion as the nation of Iran sending in a fleet of warships to the Port of Charleston.

The Constitution that forms the basis of the rule of law in this country says that Arizona has legal right to protect itself in the case of inaction or delay on the part of the federal government, including waging war in its self-defense.

This, when coupled with the clear Constitutional mandate that only the Supreme Court hear cases involving the states, should be ample legal basis for attorneys representing Arizona to go after the federal government with a vengeance.

Governor Jan Brewer and the stalwart members of the Arizona legislature have ample legal reason to stand firm against the illegal bullying of an arrogant, lawless federal government.

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The Complete Canadian Free Press Article follows:

Case Against Arizona & Governor Brewer

ONLY the US Supreme Court has Constitutional Authority to Conduct the Trial

By Publius Huldah Thursday, July 29, 2010

Does anyone read the U.S. Constitution these days? American lawyers don’t read it. Federal Judge Susan R. Bolton apparently has never read it. Same goes for our illustrious Attorney General Eric Holder. But this lawyer has read it and she is going to show you something in Our Constitution which is as plain as the nose on your face.

Article III, Sec. 2, clause 2 says:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction…

“Original” jurisdiction means the power to conduct the “trial” of the case (as opposed to hearing an appeal from the judgment of a lower court). You all know quite well what a “trial” is – you see them all the time on TV shows: Perry Mason, Boston Legal, The Good Wife, etc. Witnesses testify and are cross-examined, etc.

The style of the Arizona case shows quite clearly that the named defendants are:

State of Arizona; and Janice K. Brewer, 
Governor of the State of Arizona, in her 
Official Capacity, Defendants.

Judge Susan R. Bolton has no more authority to preside over this case than do you

See where it says, “State of Arizona”? And “Janice K. Brewer, Governor of the State of Arizona, in her official Capacity”?  THAT (plus Art. III, Sec. 2, clause 2) is what gives the US Supreme Court “original Jurisdiction”, i.e., jurisdiction to conduct the trial of this case. THAT is what strips the federal district court of any jurisdiction whatsoever to hear this case. Judge Susan R. Bolton has no more authority to preside over this case than do you (unless you are a US Supreme Court justice).

In Federalist No. 81 (13th para), Alexander Hamilton commented on this exact provision of Art. III, Sec. 2, clause 2:

…Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the Union. The Supreme Court is to be invested with original jurisdiction, only “in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party.” Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. Though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal….[boldface added, caps in original]

Yet Attorney General Eric Holder filed the case in a court which is specifically stripped of jurisdiction to hear it!

So! Counsel for the State of Arizona should consider:

1. File a Petition for Removal before federal district court Judge Susan R. Bolton demanding that the case be removed to the Supreme Court on the ground that under Art. III, Sec. 2, clause 2, US Constitution, only the Supreme Court has jurisdiction to conduct the trial of this case.

2. If Judge Bolton denies the Petition for Removal, file a Petition for Writ of Mandamus in the Supreme Court asking that court to order Judge Bolton to transfer the case to the Supreme Court.

A Petition for Writ of Mandamus is an old common-law “extraordinary writ”: It asks a court to ORDER a lower court or other public official to something which it is its duty to do. In Kerr v. US District Court for Northern District of California (1976), the Supreme Court said, respecting the propriety of issuing writs of mandamus:

….the fact still remains that “only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.”…(para 13)

When a federal district court judge presides over a case which the Constitution specifically prohibits her from hearing, and even issues a ruling enjoining the enforcement of a State Law, then that federal district court judge usurps power. She is specifically stripped – by Art. III, Sec. 2, clause 2 – of jurisdiction to preside over the case against the STATE of Arizona and against THE GOVERNOR of the STATE of Arizona.

For procedures for filing the Petition for Writ of Mandamus, see Supreme Court Rule 20.

Article IV, Sec. 4, requires the federal government to protect each of the States against invasion.Not only is the Obama regime refusing to perform this specific Constitutional duty – it seeks to prohibit the Sovereign STATE of Arizona from defending itself! This lawlessness on the part of the Obama regime is unmatched in the history of Our Country.

OK, counselors – Go for it! PH

Publius Huldah Most recent columns

Publius Huldah is a retired lawyer who lives in Tennessee USA.  She writes on the U.S. Constitution and posts her papers at Before getting a law degree, she got a degree in philosophy where she specialized in political philosophy and epistemology (theories of knowledge).  
Using primarily The Federalist Papers, which were written during 1787-1788 by Alexander Hamilton, James Madison & John Jay, in order to explain the proposed Constitution to the American People and induce them to ratify it, Publius Huldah explains the true & original meaning of the U.S. Constitution.  She also shows how modern day judges on the U.S. federal courts have completely abandoned the U.S. Constitution and have substituted their own personal views and opinions for The Constitution.

Publius can be reached at:

It is the Autumnal Equinox and the First Day of Fall.

Greetings and salutations to all as the days grow shorter and cooler.

Democracy and Laissez-Faire: A New York Case Study (Arthur A. Ekirch, Jr., von Mises Daily)

Democracy and Laissez-Faire: A New York Case Study

Mises Daily: Monday, September 20, 2010 by Arthur A. Ekirch Jr.

Charles E. Lincoln Likes This! [Journal of Libertarian Studies, 1977.]

Well back in its history, in the late 1830s, New York State was spending and lending money lavishly. By the early 1840s, the rapidly mounting debt had occasioned a severe financial crisis. To avert the imminent possibility of bankruptcy and default, the state legislature in 1842 passed what was known as “the stop and tax law,” a levy of one mill on each dollar of taxable property. The new revenue helped the state meet its most pressing obligations.

But, even more importantly in terms of the future, New York decided to take steps to prevent another such fiscal disaster. Ambitious projects for internal improvements — mostly canal construction and loans for railroad building — were cut back or abandoned unless there was a reasonable expectation that they could be funded from tolls or taxation. And the legislature also issued a call for a constitutional convention.

The new constitution adopted in 1846 placed strict limits on the state’s ability to borrow money. Thus the people of New York found the answer in an old-fashioned program of reduced spending and new taxes. What is surprising, however, is that such policies had the popular support of the most democratic and liberal elements in the state.

To understand the unusual sequence of events that culminated in the New York State Constitution of 1846, one must go back in history to the Jacksonian era and the political struggles between the Democrats and the Whigs. In New York the Jacksonian Democrats included a wide-ranging constituency of radical workingmen, Irish immigrants, farmers, intellectuals, and representatives of the new, rising business or small-capitalist class. The preponderance of the older, landed aristocracy and wealthier classes, together with the most English or Anglo-Saxon elements in the population, gravitated toward the Whig Party.

The Whigs, united nationally by their opposition to Andrew Jackson’s presidency, were the ideological heirs in New York State of DeWitt Clinton, five-time governor and the father of the Erie Canal. Like Clinton, the Whigs supported the generous use of state funds for internal improvements as well as for various cultural, humanitarian, and educational endeavors. The Whigs’ belief in positive government and social reform reflected their paternalistic conception of politics and economics.[1]

Quite different were the ideas of the Democrats, who, in contrast to their Whig opponents, stood for a strict construction of the US Constitution, limiting the governing power to its least essentials. Both nationally and in New York State, the Jacksonian Democrats adhered to the Jeffersonian agrarian maxim that the least government is the best government.

In New York the leader of the Democratic Party was Martin Van Buren, head of the famed Albany Regency, which controlled the state governmental machinery through most of the 1830s and 1840s. The most radical Democrats, known as Locofocos, were somewhat to the left of Van Buren and the Regency. They included an interesting collection of intellectuals and politicians who espoused a negative, antistatist democracy.

As against the paternalistic philosophy of the Whigs, the Locofoco Democrats stressed complete laissez-faire in government-business relations. For example, the introduction in 1837 to the first issue of the United States Magazine and Democratic Review, organ of the more radical Democrats, defined the party’s belief in democratic republicanism and majority rule. But the editors added:

The best government is that which governs least. No human depositories can, with safety, be trusted with the power of legislation upon the general interests of society so as to operate directly or indirectly on the industry and property of the community. Such power must be perpetually liable to the most pernicious abuse, from the natural imperfection, both in wisdom of judgment and purity of purpose, of all human legislation, exposed constantly to the pressure of partial interests; interests which, at the same time that they are essentially selfish and tyrannical, are ever vigilant, persevering, and subtle in all the arts of deception and corruption.[2]

Most forthright of the radical Democrats was William Leggett, a Locofoco colleague in the 1830s of such New York Democratic writers as James Fenimore Cooper, William Cullen Bryant, Theodore Sedgwick, and Parke Godwin. Leggett coupled adherence to the Jeffersonian natural-rights philosophy with demands for the equal right to property, not its abolition. Governments had no warrant to interfere with individual pursuits by offering financial advantages to any particular class or industry. Specially chartered banks, including the Bank of the United States, were a favorite target of Leggett’s scorn. “Let the banks perish,” he wrote. “Now is the time for the complete emancipation of trade from legislative thralldom.”[3]

“Let the banks perish. … Now is the time for the complete emancipation of trade from legislative thralldom.”

William Leggett (1801–1839)

As a part of their general laissez-faire philosophy and opposition to Whig paternalism, the Democrats were also dubious of those social and humanitarian reform movements that infringed upon individual liberty and private property. Thus they were hostile to the abolitionists even though this meant ignoring the question of freedom for the black slave. Imprisonment for debt attracted little attention from either Democrats or workingmen until public interest in the matter became too strong to be ignored. The workingmen’s parties were, however, in a peculiar position because wage earners wanted preferential creditor status through a mechanics’ lien law.

Even public schools had difficulty winning Democratic support, because their expense involved heavier taxation. Charity schools and use of the Lancastrian system[4] of pupil tutors instead won Democratic favor. A system of statewide public education would also interfere with parents’ control over their children and might undermine religious freedom.[5]

In Washington, Andrew Jackson, the Democrats’ hero, enjoyed an uneasy and controversial presidency. His years in office from 1829 to 1837 formed an era in which easy credit, cheap land, and internal improvements all contributed to an inflationary prosperity. At the same time, Jackson’s own inclinations tended toward the limitations on federal spending favored by his friend and political adviser Van Buren.

As governor of New York in 1828, Van Buren had secured passage of the Safety Fund System to safeguard the banks and assure the state of a source of credit and wealth to go along with the Erie Canal.[6] The state-chartered New York banks cast doubt on the need for the federal United States Bank, while the state-constructed Erie Canal rebuked the western states’ clamor for federal aid for their own internal improvements. Moreover, the Jeffersonian principle of states’ rights and opposition to federal centralized power, espoused by Van Buren and the New York Locofoco Democrats, was also able to gain national success by Jackson’s Bank of the United States and Maysville Road vetoes.[7]

In 1836 the United States for the only time in its history was without a national debt; a year later the federal government was briefly in a position to distribute its surplus revenues to the states. But the Jacksonians, despite the president’s efforts to moderate or level out the economic boom, were unable to ward off its financial aftermath in the Panic of 1837. Van Buren, Jackson’s successor in the White House, fell a political victim to the Panic, and in New York in 1838 the Democrats were overturned by the Whigs who elected William H. Seward as governor.[8]

Governor Seward, it should be noted, was an admirer of DeWitt Clinton, who had earlier helped inaugurate the transportation revolution in New York. Upon completion of the Erie Canal in 1825, he had urged further state expenditures for new canals, turnpikes, and eventually railroads, as well as a generous policy of chartering banks and insurance companies. Now, in 1840, the Whigs under Governor Seward called for the appropriation of $4 million for ten years to build additional canals and railroads.[9] Henceforth dubbed “the forty million dollar party,” the Whigs to their misfortune had ignored the adverse effects of the Panic of 1837 on the state’s declining credit.

Alarmed critics warned that the cost of public works would soon increase the state debt to as much as $75 million, with annual interest charges of $4.5 million. Already by 1842, when the Democrats regained control of the legislature and passed the stop-and-tax law, the state debt, which five years earlier amounted to $7 million, had grown to $27 million, and state bonds were unmarketable even at a discount of 20 percent. Instead of continuing to spend money for internal improvements, the Democrats, at a cost of $40 million in principal and interest, proposed to extinguish the state debt in 20 years. As a result of such conservative fiscal policies, within two months of the stop-and-tax law the state’s 7 percent bonds sold at par, while 5 percent bonds reached that level in 15 months.[10]

By the 1840s national opinion in regard to state aid for internal improvements was undergoing a change. The former public enthusiasm for heavy state expenditures had run its course. Some of the new states in the West were in default on their bonds. State initiative and responsibility had been necessary earlier for such ambitious undertakings as the Erie Canal, but after the return of prosperity in the 1840s, private capital, just beginning to be accumulated by American manufacturing and industry, was available for investment.

Railroads were now becoming the most important means of transportation, but railroads with their special rolling stock could not be considered public in the same sense as a canal, a river, or a turnpike. Although railroad builders frequently turned to the states to help raise the large amounts of capital they required, most of their funds in New York came from individual savings and from credit extended by American banks. Accordingly, while there was little foreign investment in, or municipal aid for, New York State railroads until after the Civil War, the New York Central by 1853 had 2,331 stockholders.[11]

The decline of public aid and intervention in economic enterprise was most marked in some of the eastern states where the old colonial concept of the commonwealth fell victim to a surge of antigovernment feeling. Although various economic and social groups continued to desire political intervention in behalf of their own self-interests, the fear of more state taxes and increasing state indebtedness blocked heavy public expenditures throughout the 1840s.

Instead of continuing to take a positive, direct role in the economy, the state granted its economic powers to private banks and stock companies. For example, the Free Banking Act passed by New York in 1838 abolished the old system requiring special legislation for each bank charter and in effect introduced competition into banking. Under general incorporation laws, state charters were now granted to all manner of enterprises that, in pursuing their own private ends, were largely freed of the public responsibility associated with governmental agencies and the earlier semiprivate corporation. Democratic reluctance to continue the specially chartered corporation for a favored few had dispersed the privilege of incorporation among many stockholders and had separated it from responsibility to the state.[12]

Legislation for free banking and general incorporation laws accordingly had the support not only of the business community but also of those opposed to all governmental aid and protection for selected enterprises. Locofoco Democrats and workingmen united in the crusade against economic monopoly and special privilege, although labor sometimes identified its own true interest with that of the whole community. In any case, the state was usually too weak in an administrative sense to either enforce its own definition of the public interest, or to give its full support to various private or special-interest groups. Thus laissez-faire and the cry of equal rights for all and special privileges for none was a more appealing political philosophy in the 1830s and 1840s than any Whiggish notions of a paternalistic and expensive government.[13]

It was in response to these views that the Democrats pushed ahead with their plans for drafting a new state constitution. William C. Bouck, the conservative or Hunker Democratic successor to Seward as governor in 1843 and 1844, favored a moderate course on internal improvements despite the Democrats’ stop-and-tax law of 1842. But when Silas Wright, a close friend of Van Buren and the staunchest disciple of Jeffersonian agrarian democracy in New York State, was put forward for the nomination of governor, Bouck and the conservative Hunker faction had to retreat.

“Democracy in the eyes of its later adherents has become synonymous with power, preferably such power as may be exercised by a strong executive in the name of people.”

Wright in his first annual governor’s message in January 1845 praised the stop-and-tax law for restoring the state’s credit. Three-fifths of the state’s debt charged to the general fund, he pointed out, had been incurred by unwise loans to railroads that had proved unable to pay their obligations. Wright also announced that he favored calling a constitutional convention.[14]

In a series of articles analyzing the progress of constitutional reform, which appeared at this time in the Democratic Review, John Bigelow, one of the party’s intellectuals, listed some of the changes that he believed New York and other states should adopt. These included a provision that “the state should have no power to contract debts, or loan its credit, except in case of war, invasion, or insurrection.”

In the matter of a general incorporation law, Bigelow urged, “the members of such Corporations, (not excepting those established for education or charity) should be individually liable for the debts, liabilities, and acts of such Corporation, and for the consequences resulting therefrom.” Furthermore, “all laws or regulations interfering with the liberty of trade or industry (such as license and inspection laws) should be abolished, and their enactment for the future prohibited.” Bigelow added as miscellaneous proposals the abolishment of the death penalty and permission for women to control their own property after marriage.[15]

The New York Constitutional Convention, which met in the summer of 1846, completed its labors in time for the voters to approve its handiwork that same year. Although the antistatist views of such Jeffersonian Democrats as Bigelow and Wright were subject to some modification and compromise, the New York Constitution of 1846 embodied the laissez-faire position better than any document in the state’s history:

Only after all debts were paid through a sinking fund could the state appropriate any surplus for canal improvements and extensions not already mandated by law. Corporations, including banks, were to be chartered under general laws rather than by special act. Stockholders were made liable to the amount of their shares for all debts and liabilities contracted by their banks. As an epitaph to the anti-rent wars that had reached a climax in 1846, the Constitution abolished all feudal tenures and perpetual leases.

Male suffrage was made universal except for negroes, who had to possess an estate of the value of $250, unless the people in a referendum on the question voted otherwise.[16] This curious and illiberal provision, which was approved by the voters, retained the clause in the 1821 Constitution in which the property qualification was removed for whites but not for blacks. The negro vote, traditionally cast in favor of the old Federalist slave-owning class, had continued to be exercised on behalf of Clinton and then the Whigs. Though never a large vote, it was opposed by the Democrats chiefly because of labor’s influence.[17]

In a retrospective article on constitutional government in the Democratic Review, Bigelow reiterated his libertarian views with the warning that

A great source of inequality in the conditions of men in respect of wealth and comfort arises from the action of law. Too much government has a direct tendency to aid one man or one set of men in the “pursuit of happiness,” and in the “acquiring, possessing, and protecting property,” if not at the expense of the rest, at least without rendering them the like assistance.[18]

Unfortunately the Jacksonians, despite their defeat of the Bank of the United States, had not been able to slow the growth of wealth and inequality in New York and some of the larger cities in the East in the era before the Civil War. But their more radical laissez-faire views, as embodied in the stop-and-tax law and 1846 Constitution, disenchanted the wealthier business class that moved more than ever into the Whig Party. Work on the Erie Canal, which the Democrats had stopped in 1842, was resumed in 1847. Moreover, until 1850 railroads had to pay canal tolls to protect the state’s vested interested in “Clinton’s ditch.” After that, canal tolls were reduced to provide competition to the growing volume of traffic carried by the railroads.[19]

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Historians of a later generation have grown accustomed to interpreting democracy and liberalism in terms of the modern welfare state. The negative democracy of the New York Democrats of the 1840s accordingly wins little contemporary approval. Democracy in the eyes of its later adherents has become synonymous with power, preferably such power as may be exercised by a strong executive in the name of people. Some historians even question whether the negative state can be democratic and reason that laissez-faire must automatically favor an aristocracy of wealth.[20]

But what passes for the welfare state today rewards most of all its largest investors in the military-industrial complex. Beneficiaries of the welfare-warfare state’s largesse would be horrified by a return to the spirit of the 1840s or to any consistent, across-the-board application of laissez-faire. Meanwhile, New York’s Constitution of 1846 remains an interesting, though passing, example of the enactment of Jeffersonian antistatism into fundamental law.

Arthur A. Ekirch Jr. (1915–2000) was a leading scholar of American intellectual history and professor emeritus of history at the State University of New York (SUNY) at Albany. Ekirch was a prolific author, writing 10 books, dozens of articles, and more than 100 book reviews. The Decline of American Liberalism, his favorite and a History Book Club selection, argued that the idea of freedom began to wane in the United States with the American Revolution, thanks to the development of nationalism and, later, a mass production economy. See Arthur A. Ekirch Jr.’s article archives.

This article is excerpted from “Democracy and Laissez Faire: The New York State Constitution of 1846,” Journal of Libertarian Studies, 1977, vol. 1, no. 4, pp. 319–323.

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[1] Useful general interpretations include Dixon Ryan Fox, The Decline of Aristocracy in the Politics of New York, 1801–1840, ed. Robert V. Remini (New York: Harper Torchbooks, 1965 [1919]); Edward Pessen, Jacksonian America: Society, Personality, and Politics (Homewood, IL: Dorsey Press, 1968); and Glyndon G. Van Deusen, “Aspects of Whig Thought in the Jacksonian Period,” American Historical Review, vol. 63 (January 1958), pp. 305–22.

[2]Introduction,” United States Magazine and Democratic Review, vol. 1 (October 1837), p. 6.

[3] On Leggett, see his A Collection of the Political Writings, ed. Theodore Sedgwick, Jr. (2 vols.; New York: Taylor & Dodd, 1840); and the studies by Richard Hofstadter, “William Leggett: Spokesman of Jacksonian Democracy,” Political Science Quarterly, vol. 58 (December 1943), pp. 581–594; Marvin Meyers, The Jacksonian Persuasion: Politics and Belief (Stanford, CA: Stanford University Press, 1957), chap. 9; and Edward K. Spann, Ideals & Politics: New York Intellectuals and Liberal Democracy, 1820–1880 (Albany: State University of New York Press, 1972).

[4] Editor’s Note: An educational system created by Joseph Lancaster (1778–1838), an English Quaker.

[5] Herbert Ershkowitz and William G. Shade, “Consensus or Conflict? Political Behavior in the State Legislatures during the Jacksonian Era,” Journal of American History, vol. 58 (December 1971), pp. 591-621, reinforces the view of the age of Jackson as essentially laissez-faire. See also Peter J. Coleman, Debtors and Creditors in America: Insolvency, Imprisonment for Debt, and Bankruptcy, 1607–1900 (Madison, WI: State Historical Society of Wisconsin, 1974).

[6] Editor’s Note: This was the only notable act of Van Buren’s governorship, which lasted 64 days. Inaugurated on January 1, 1829, Van Buren resigned on March 5 to become Jackson’s secretary of state.

[7] New York and van Buren’s influence on Washington and Jackson is discussed in Bray Hammond, Books and Politics in America from the Revolution to the Civil War (Princeton, NJ: Princeton University Press, 1957), p. 352.

[8] Editor’s Note: The New York Whigs were partly descended from the Anti-Masonic Party. Seward previously served in the New York legislature as an Anti-Masonic senator. Seward later became a prominent leader of the Republican Party.

[9] Editor’s Note: Seward never lost his appetite for spending money on “internal improvements.” As secretary of state in the 1860s, Seward paid Russia $7.2 million for what we now call Alaska.

[10] Charles Z. Lincoln, The Constitutional History of New York (5 vols.; Rochester, NY: Lawyers Co-Operative, 1906), vol. 2, pp. 76, 81–84, 91ff., 165; and Stewart Mitchell, Horatio Seymour of New York (Cambridge, MA: Harvard University Press, 1938), p. 53.

[11] Fox, Decline of Aristocracy, pp. 405–408; Carter Goodrich, “The Revulsion Against Internal Improvements,” Journal of Economic History, vol. 10 (November 1950), pp. 145–169; and Harry H. Pierce, Railroads of New York: A Study of Government Aid, 1826–1875 (Cambridge, MA: Harvard University Press, 1953), pp. 8, 16.

[12] Oscar and Mary Flug Handlin, Commonwealth: A Study of the Role of Government in the American Economy (1st pub. 1947; rev. ed. Cambridge, MA: Belknap-Harvard University Press, 1969), pp. 106ff., 160–161, 191.

[13] Compare Walter Hugins, Jacksonian Democracy and the Working Class: A Study of the New York Workingmen’s Movement, 1829–1837 (Stanford, California: Stanford University Press, 1960) and Douglas T. Miller, Jacksonian Aristocracy: Class and Democracy in New York (New York: Oxford University Press, 1967).

[14] John A. Garraty, Silas Wright (New York: Columbia University Press, 1949), pp. 292, 335.

[15]The History of Constitutional Reform in the United States,” United States Magazine and Democratic Review, vol. 18 (June 1846), pp. 408–412, 420.

[16] N.Y. Const. of 1846 art. I, § 12; art. II, § 1; art. VII, §§ 1–3; art. VIII, §§ 1, 4, 7.

[17] Fox, Decline of Aristocracy, p. 269.

[18]Constitutional Governments,” United States Magazine and Democratic Review, vol. 20 (March 1847), p. 202.

[19] Edward Pessen, Riches, Class, and Power before the Civil War (Lexington, Massachusetts: D.C. Heath, 1973); Fran Otto Gatell, “Money and Party in Jacksonian America: A Quantitative Look at New York City’s Men of Quality,” Political Science Quarterly, vol. 82 (January 1967), pp. 235–252; Don C. Sowers, The Financial History of New York State from 1789 to 1912 (New York: Columbia University Studies, 1914), pp. 75, 85, 87.

[20] See, e.g., Arthur M. Schlesinger, Jr., The Age of Jackson (Boston: Little Brown, 1945), pp. 512–514, 519–521; and Lee Benson, The Concept of Jacksonian Democracy: New York as a Test Case (Princeton, NJ: Princeton University Press, 1961), pp. 220ff.