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Is LL Bean Hastening the Decline of the USA?

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    LL Bean's fall mail order catalogue has just arrived in many households. The catalogue lists hundreds of items such as shirts, sleepwear, jeans, outdoor gear, duck boots, and winter clothing in its pages. The problem is that, with one exception, all of the products advertised are imported. Only one half a page advertises products made in the USA - rubber matts suitable for collecting pet droppings or boot storage. What has happened to LL Bean epitomizes everything that has gone wrong with the U.S. economy - a refusal by corporate moguls and the 1% to invest in American manufacturing and our workers driven by a relentless quest to find the lowest manufacturing costs, the long-term, adverse consequences be damned.

     Currently,  LL Bean manufactures 425 products in the USA that are available in its online store but that number is a very small percentage of LL Bean's entire product line and constitutes less than 10% of its overall portfolio.*  The company's  American made products include their iconic duck boots and several other popular items. Home goods - blankets, chairs, tables - compose the largest number of its American made products at over 47% while footwear represents a mere 21% of its  American made product lines. A majority of its American made items are manufactured at its factory in Brunswick, Maine.

    The overwhelming g proportion  of LL Bean products are made overseas at LL Bean factories in China, Vietnam, India, El Salvador, Turkey, Bangladesh, Mexico, and Korea.

    Is it any wonder that, for all of the clamor to purchase American -made products and to rebuild the economy, manufacturing in the U.S. - as a share of the total output of goods and services - has continued to decline?  As consumer choices become ever fewer, the flood of foreign imports rend will be hard to reverse. The consequences for a consumer -oriented economy such as ours are dire. Consumers are forced to wait ever longer for products because of an elongated supply claim that is increasingly vulnerable to disruptions in foreign trade caused by climate change, inventory shortages, wars and future pandemics. In the long run, because of  the continued loss of well-paying jobs, aggregate demand in the U.S. economy will also falter because families will earn less and have less to spend.                                                             
    How we collectively choose to spend our consumer dollars is  up to us. Each of us must take responsibility for the personal decisions that we make - whether as consumers or as voters. 

 *All American Reviews. "Is LL Bean Made in the USA?"  April 17, 2021)
[The article below, since slightly revised, was first submitted to the Boston Globe shortly after the results of Boston's mayoral primary were announced. I thereafter re-submitted the proposed op-ed twice but the Globe's editors have never even acknowledged receipt. I am concerned that Boston's most influential newspaper has now also succumbed to identity politics and "political correctness" masquerading  as  "wokeness." The effect of the effort to view politics exclusively through the prism of race does not help to build progressive coalitions but, instead, alienates potential allies.I strongly recommend Todd Gitlin's 1995 classic,"The Twilight of Common Dreams: Why America Is Wracked by Culture Wars."]

    On September 2, 2021, the Globe's editorial board enthusiastically endorsed the candidacy of Andrea Campbell to become mayor of Boston. In its editorial, the Globe waxed rhapsodic that "she radiates a sense of urgency, a palpable hunger to confront Boston's hardest, most politically fraught  challenges - its uneven school system and a law enforcement system that has lost the trust of too many residents." While the Globe's editorial board spent considerable space criticizing former Mayor Walsh's failures, it said little about any significant experience or qualifications Ms. Campbell possessed that would prepare her to be chief executive of this city. Apparently, what mattered most to the Globe's editors was the fact that "No matter who wins, history will be made: Boston will elect a mayor who identifies as a person of color for the first time in its history."

    Before, during and after its endorsement, many of the Globe's columnists spent a significant amount of time chronicling the fate of minority candidates. In the Globe's September16th edition - two days after the primary - Stephanie Ebert lamented the failure of the electorate to nominate a black candidate. Columnist Shirley Leung complained about outside, "right-wing" money supporting Annissa Essaibi George, but not a word of criticism was spoken about the role of other outside PACS whose money  fueled the campaigns of the other mayoral candidates, presumably for less than altruistic purposes. In the letters to the editor in  that same edition, a non-Boston resident who lives in the lilly- white enclave of Weymouth was given space to vent about the disappointment of the black community and how racist Boston is.

    In that same edition, Jeneé Osterheldt opined about the difference between the Old Boston vs. the New Boston and remarked that Essaibi George "is the only the only candidate with a real sense of scandal in this campaign due to her husband's capitalistic slummy practice and questions surrounding her complicity."  If Osterheldt's ad hominem attempt to blame a woman for her spouse's behavior is  acceptable journalism, does that make Andrea Campbell somehow personally responsible for the fact her late father and two siblings were felons? I think not. The attempt to now depict Annissa Essaibi George, who spent fourteen years as a teacher in the Boston Public Schools and was a member of the generally progressive Boston Teachers Union, as a reactionary or some kind of troglodyte will do little to heel the racial divide. 
   The following day, in its  September 17th edition, Renée Graham observed, "On Nov. 2, voters will elect the first woman and first person of color as its 55th mayor. In a city where white men traditionally hoard political power, the significance of that should not be undersold. Yet the fact that three viable Black contenders went 0 for 3 in a five-person race will sit sour for a good long while."
   Throughout the primary and to the present, a number of Globe columnists have repeatedly emphasized the importance electing a person of color as if pigmentation were in any way correlated to progressive policy positions. Those who think so should consider the cases of U.S. Senator Tim Scott of South Carolina and radio bloviator Larry Elders of California. While it is also true that the past mayors of Boston were all white men, few who have studied Boston politics closely would contend that the municipal policies advocated and implemented by  administrations of  Kevin White  Raymond Flynn, Tom Menino and Marty Walsh did not differ substantially - and for the better - than those of John Hynes and John Collins.
   Finally, the emphasis of Globe's columnists upon  "blackness" as an essential political trait and the considerable space given to the  WAKANDA II effort smack of the kind of corrosive identity politics that has contaminated so much of today's American politics. What would be the reaction of the Globe's editorial board if a number of prominent  Boston residents publicly insisted that we needed to elect a white person as mayor?
   One wonders why it hasn't occurred to the Globe's editorial board or many of its columnists that there is an alternative,  perfectly reasonable, non-racist explanation why none of the three black candidates for mayor did not qualify for the final election: Outside of their respective communities, they were largely unknown. Two of the candidates, acting Mayor Kim Janey and Mayor Janey and Andrea Campbell, were district councilors who had held elected  for three and five years respectively and the third, John Barros, had never held elective office but had worked in the Walsh administration.  By contrast, the two finalists, Michelle Wu and Annissa Essaibi George, served as at-large councilors who had long track records of  participating in  community meetings and supporting local community initiatives as a result of which they gained favorable recognition and became known to voters in neighborhoods throughout Boston.

    I have been involved in progressive politics my entire life and remain a committed supporter of Senators Bernie Sanders and Elizabeth Warren but, as a veteran of many progressive movements, I know that one can't advance progressive polices without first building a broad-based coalition. Racially-divisive remarks - especially at a time when the black population of Boston is declining and not increasing because of outward migration-  is unlikely to help build that coalition.
  The Globe's editorial board and columnists - few, if any of whom, I suspect are residents of the City of Boston and therefore have chosen not to participate in the civic life of this cosmopolitan city - ought to be more circumspect about lecturing the rest of us about our politics. Many of us - including my wife, a retired Boston Public School teacher, and I  - chose  to make Boston our home and to raise our families here, despite having other options, because we recognize the value of living in a diverse, culturally- rich and  dynamic city. 

    Condescending comments by the Globe's editorial board and columnists who "do not have a dog in the game" inevitably create a backlash that is inimical to the idea of progress. Progressive ideas, untainted by racially-divisive calls to identity politics, abound. One  undeniably progressive policy that the Globe's editorial board ought to consider supporting, given its current professed concerns, is metropolitanization.

    The voluntary annexation of cities and towns such as Quincy, Newton,Milton,Brookline, Wellesley, Weston, Dover, Hingham and the other nearby suburbs would,over time, help to deliver death blows to NIMBYism, parochialism and reduce racial and economic inequality and segregation. It would also simultaneously expand Boston's tax base, allow for the development of comprehensive zoning laws and land use planning, enable the creation of broad-based public transportation and traffic policies, expand access to quality public education for every child, and provide valuable human and financial resources that would enable Boston to better confront the many challenges that are the collective responsibility of the entire metropolitan community.
The Trump administration - with the active support of and the then GOP-controlled Senate led by Mitch McConnell  - was able to appoint three right-wing judges to the Supreme Court. Given their well-documented ideological biases and relative youth, they will  likely continue to bedevil and distort this country's jurisprudence and further erode respect for the rule of law for many decades into the future.

It is this concern that has promoted Massachusetts Senator Markey and a number of House Democrats to advocate expanding  the size of the Supreme Court by four additional judges. This proposal - - as well as other suggestions such as the imposition of term limits  - could be accomplished by legislation that would require only a simple majority of both house of the U.S. Congress. Is this legislation necessary?  

The unanimous decision of the United States Supreme Court in the matter of Integrity Staffing Solutions, Inc. v. Busk, et al ,  574 U.S. ___ (2014) is compelling evidence that the self-proclaimed commitment of the American legal system to equal justice is little more than a sham embellished by platitudes.

The question before the court was whether the employees - warehouse workers who retrieved inventory and packaged it for shipment to Amazon customers - were entitled, as hourly, non-exempt  employees - to be paid for time that they were required to undergo anti-theft security screenings before they were allowed to leave the warehouse in which they worked each day.

The record before the court showed that the class of employees who brought suit under the Federal Fair Labor Standards Act of 1938  (FLSA) were routinely required to submit  to security inspections  and screenings that amounted to "roughly  25 minutes per day" after they had checked out but before they could go home. The employees alleged that the screenings were conducted "to prevent employee theft" and they were intended solely "for the benefit of the employers and their customers." The additional uncompensated time, based upon a five day work week, amounted to an additional 6.8 hours at the workplace each week.

In proceedings below, the U.S. District Court for Nevada dismissed the complaint of the employees for a purported failure to state a claim under Fed. Rule Civ. Procedure 12. The court held that "the time spent waiting for and undergoing security screenings was not compensable under FLSA" because the employees could not show that the screenings were an indispensable and principal part of the activities that the employees were required to perform."

The United States Court of Appeals for the Ninth Circuit reversed the district court's decision, finding that "postshift activities that would ordinarily be classified as noncompensable postliminary activities are nevertheless compensable as integral and indispensable to an employee's principle activities if postshift activities are necessary to the principal work performed and done for the benefit of the employer," as the record before the court showed. 

Inexcusably, the Obama administration - despite the consistent support that it received from organized labor - joined the employer's appeal and urged that the decision of the Ninth Circuit Court of Appeals be reversed. Writing on behalf of court, Justice Thomas disagreed with the Court of Appeals. In an extensive and tortured exegesis of the language of the Portal-to-Portal amendments to the Fair Labor Standards Act that were passed by a Republican-controlled Congress in 1947 to exempt employers from liability for future claims for "activities which are preliminary to or postliminary to said activities or principles," Thomas insisted that question was the sole question before the court.

The Court's holding was not surprising, given Justice Thomas' narrow definition of what he and the other eight judges agreed was the sole issue before the court. Thomas opined that "the security screenings at issue here are noncompensable postliminary activities" because "Integrity Staffing did not employ its workers to undergo screenings" and that the "screenings were not integral and indispensable"' to the employees' duties as warehouse workers. 

Left unanswered were the obvious questions: What would have happened if the employees refused to wait for the screenings and insisted upon their right to go home immediately after they finished work? Would they still be employed the next day?

Historically, those nominated as justices to the Supreme Court, with precious few exceptions, have had little experience litigating cases on behalf of employees or fighting for the rights of the downtrodden. With one or two exceptions, this is true of the current court. In addition, as graduates of elite law schools with successful prior careers in the private and public sectors, Supreme Court justices have cultivated scores of influential and well-heeled friends and acquaintances over the years whose values they share. One also suspects that they have never forced to stand in a line to purchase concert tickets or have ever shopped at Walmart. 

For their efforts, the eight associate justices are paid $213,000 per annum; the chief justice receives a salary $223,500. The justices enjoy life tenure for good behavior; their pensions will never be lower than their exiting salary should they choose to retire; they enjoy the same generous healthcare available to all federal employees; they have opportunities to travel to all judicial districts throughout the United States and its overseas territories at taxpayer expense; and they enjoy a minimum of 3 full months of vacation each year. For those reasons, the chasm between the nine judges in the court and the hard-scrabble hourly employees who toil for Amazon in its warehouses is vast, but is it asking too much to expect a little empathy? 

The American legal system has long been a captive of the powerful, the wealthy and the well-connected, and almost uniformly hostile to unions and to the rights of workers. Throughout the nineteenth century, most state and federal courts treated labor unions and strikes as illegal conspiracies in restraint of trade. In addition, during the later part of the nineteenth century - in an era dominated by the Social Darwinism espoused by William Graham Sumner and Herbert Spencer - U.S. courts created out of whole cloth the doctrine of employment-at-will. That doctrine was a legal fiction that repudiated the long-standing presumption set down by Blackstone in his Commentaries that any indefinite employment contract was for one year. 

Forty-nine states - with the exception of Montana (which has abolished at-will employment by statute) - still subscribe to that legal concept.

The legal fiction of at-will employment essentially posits an equality of bargaining power between individual employers and employees: Each is free to accept or reject employment, resign or be fired without cause or restriction. However, since employers in "union-free" environments are legally permitted to unilaterally impose, almost without restriction, whatever conditions of work they require as to hours, compensation, and often restrictions on re-employment after discharge in the form of non-competition agreements, the relationship is most often one of inequality in which the employees are burdened and the employers benefitted

In the latter part of the nineteenth century, the Supreme Court also chose to grant the equal protection of the laws to corporations long before the same civil rights were accorded to black Americans in the Southern States. In Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394(1886),  the Supreme Court, in some inscrutable way, divined that corporations were persons within the meaning of the Fourteenth Amendment. (Incredibly, that decision was introduced into the report of the decision by the case law reporter in the syllabus, and it appears nowhere in the text of the decision.) According to the observers, Justice Waite simply pronounced from the bench, sua sponte, before the beginning of argument that "This court does to wish to hear argument on the question whether the provision of the Fourteenth Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the law, applies to these corporations. We are of the opinion that it does."

That decision was especially perverse in that the court was generally hostile to all claims for the enforcement of equal rights claims of the those recently freed slaves, as guaranteed by the Fourteenth Amendment, and ten years later would decide the infamous case of Plessy v. Ferguson,  163 U.S. 537 (1896).  Once again the protection of property rights was held to be more vital than the protection of living human beings.

At the beginning of twentieth century, the United States Supreme Court enthusiastically adopted Herbert Spencer's unequivocal defense of the rights of free contract in the infamous case of Lochner v. New York, 198 U.S. 45 (1905).  Writing for the majority, Justice Peckham struck down a New York statute which prohibited employers from requiring employees to work in excess of a sixty hour work week. Disingenuously, the Court found that, "The employee may desire to earn the extra money which would arise from his working more than the prescribed time, but this statute forbids the employer from permitting the employee to earn it. The statute necessarily interferes with the right of contract between the employer and employees concerning the number of hours in which the latter may labor in the bakery of the employer..." 

Justice Holmes, in dissent, unsuccessfully sought to remind his colleagues that the law was supposed to be an even, impartial instrument, blind to prevailing ideology: "This case is decided upon an economic theory which a large part of the country does not entertain....The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics."

Later, the administration of Franklin Roosevelt found itself engaged in a tug-o-war with equally reactionary federal jurists. After three adverse decisions in Humphrey's Executor v. United States, 295 U.S. 602 (1935), Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935),  and  Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), in which the Supreme Court struck down New Deal legislation, Roosevelt filed legislation to increase the size of the court. In response to that threat, a majority of the jurists wisely chose to reverse course and opted not challenge subsequent legislation. 
Since the 1970s especially, an increasingly reactionary federal judiciary has repeatedly announced its hostility toward government regulation, civil rights, and legislation in the public interest. The net effect of this jurisprudence has been to unravel the gains of the New Deal and the Great Society, to empower corporations and the disproportionately influential while ratifying the status quo.

Perhaps the most influential of these right-wing judges was Lewis Powell, Jr. who was appointed by President Nixon as an Associate Justice in 1972. Powell, who wrote over 500 opinions, was especially instrumental in helping to orchestrate the court's pro-corporate reconstruction of the First Amendment in the area of campaign finance law, which culminated years later in the 2010 Citizens United decision.  Months before his appointment, Powell wrote a confidential memorandum to his friend and neighbor,  Eugene Sydnor Jr.,  who  was the chairman of the U.S. Chamber of Commerce education committee. Powell's memorandum was entitled "Attack on American Free Enterprise System." In that memorandum he wrote, "No thoughtful person can question that the American economic system is under broad attack," Powell began his analysis. "There always have been some who opposed the American system, and preferred socialism or some form of statism (communism or fascism)." "But now what concerns us," he continued, "is quite new in the history of America. We are not dealing with sporadic or isolated attacks from a relatively few extremists or even from the minority socialist cadre. Rather, the assault on the enterprise system is broadly based and consistently pursued. It is gaining momentum and converts." 

To respond to this crisis, Powell recommended a stealth agenda of incrementalism to roll back environmental and work place regulations, and to counter the civil rights and anti-war movements. His memorandum and  proposed agenda were enthusiastically embraced by the Charles and  David Koch and Richard Mellon Sciafe who, through their enormous, tax-free contributions to the Heritage Foundation and the CATO Institute, advanced Powell's policy goals and inspired a right-wing insurgence.

Other influential right-wing federal judges have used other forms of sophistry to rationalize their hostility to government regulation in the public interest. The late Antonin Scalia espoused an almost theological commitment to the legal fiction of "original intent." A recent invention, the doctrine of "original intent" is especially destructive. As articulated by its proponents, it attempts to impose a requirement that laws must be analyzed within the framework of an eighteenth century worldview.

In the guise of a purported respect for the understanding and interpretation of the U.S. Constitution which the Founding Fathers evinced, the doctrine of original intent is, in actuality, a most radical form of judicial activism since it ignores the explicit language of the "necessary and proper clause" of Article 1,§ 9, c.18 of the U.S. Constitution; and it imposes the dead hand of the past, in the form of a fossilized litmus test, upon an instrument which, since time of John Marshall, had been viewed as a living, evolving document. 

"Original intent" thus represents a kind of constitutional death-wish. It would, if routinely applied, induce rigor-mortis in the country's legal institutions and perpetuate the advantages which the advantaged already enjoy. Through the use of "original intent," apologists for the status quo have devised an analytical technique that is designed to emasculate this country's foundational document; it also condemns the federal judiciary to the role of a negative, obstructive partisans. The judges and legal scholars who espouse the "original intent" doctrine have thus forged a judicial hammer to batter down any legislative efforts to level the playing field or to promote equality of opportunity.

Although many of these right-wing jurists profess consternation about exercise of power by the federal government in a professedly democratic society, they appear to have few concerns about the exercise of political and economic power by private unelected interests. Rarely have Justices Thomas, Roberts, retired Justice Stevens, Alito, Kavanaugh nor Gorsuch ever expressed any qualms about oligopolies, the growing specter of monopoly capitalism, or their increasingly anti-competitive and predatory practices, nor have they demanded the vigorous enforcement of existing U.S. anti-trust laws. Witness the Court's extraordinary decision in Ohio v. American Express,  , 585 U.S. ___ (2018). In that five to four decision , the Supreme Court held that American's Express's anti-steering provisions - which, by contract, forbade merchants from attempting to  dissuade cardholders from using Amex cards at the point of sale-  a practice known as "steering" - did not violate federal antitrust laws.
resident Trump's selection of Neil Gorsuch, an ardent proponent of original intent, as Justice Scalia's successor, and Brett Kavanaugh, as Justice Kennedy's replacement, are vivid illustrations of the legal influence that the right-wing Federalist Society continues to exercise over federal jurisprudence. Their selections will, in all likelihood, over time seriously undermine the work of regulatory agencies such as the EPA, the FCC and the EEOC since they have questioned the legal precedent known as Chevron deference.

That doctrine stems from a 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc, 467 U.S. 837 (1984), in which the Justice Stevens held, without any dissenting opinions,  that " If... the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute which suggests that courts  should defer to federal agencies when it comes to interpreting vague or ambiguous laws defining their responsibilities." 

n contrast to Justice Stevens and Kennedy, Judge Gorsuch and Judge Kavanaugh have well-documented difficulties reconciling their 18th century notions of  jurisprudence with the regulatory regime necessitated by the legal demands of the twenty-first century. Gorsuch is critical of the growing body of administrative because the Founding Fathers, who did not anticipate the evolution of administrative law, neglected to mention it in text of the Constitution. For his part, Judge Kavanaugh has been a vocal  critic of the Affordable Health Care Act and, true to his partisan roots as an unapologetic supporter of corporations and their prerogatives, has consistently voted as a judge D.C. Appeals Court to uphold challenges to environmental and labor laws.

Neither Justice Gorsuch nor Kavanaugh are alone in their hostility to the idea of government regulation, especially by the federal government, that is intended to protect and promote the public interest. As the editorial board of the New York Times warned, "The court's pro-corporation decisions are widening the chasm in power and wealth between the country's elite and everybody else." 

Over the past decades, a majority of the Supreme Court have chosen to breathe new life into the Tenth Amendment, the effect of which is to further drive American jurisprudence back into the early decades of the nineteenth century when even the idea of minimal government regulation, ostensibly in the public interest, was unimaginable. See, for example, Justice Rehnquist's decision in U. S. v. Lopez,115 S. Ct. 1624, 131 L. Ed 2626 (1995).  In that decision, by a 5-4 struck vote, the U.S. Supreme Court struck down a San Antonio gun conviction which occurred within a 100 yards of a school on the grounds that the interstate commerce clause did not apply. See also U.S. Term Limits, Inc. v. Thornton, et al,  514 U.S. 779 (1995),  a case in which Justice Thomas came within a "whisker" of returning American constitutional jurisprudence to the Articles of Confederation. 

Despite their professed admiration for the Tenth Amendment, however, a majority of  Supreme Court judges since the 1970s have not hesitated to impose their personal political preferences for free-market, anti-regulation policies through the judicial feat of federal preemption of state laws and regulations to the contrary. Most of the laws and regulations preempted were designed by state legislatures to protect the rights of workers and consumers. In Marquette National Bank of Minneapolis v. First of Omaha Service Corp., 439 U.S. 299 (1978), for example, the U.S. Supreme Court declared state usury laws to be unavailing against credit card companies engaged in interstate commerce. The effect of that decision, therefore, was to permit credit card companies to exact whatever interest rates they wanted, to the detriment of ordinary Americans.

As another case in point, the U.S. Supreme Court's decision in Buckley v. Valeo, 424 U.S.1 (1976), has severely undermined public confidence in the political system. In that decision, the court upheld some modest limits imposed by the U.S. Congress upon individual campaign contributions. More importantly, however, the court held that campaign contributions by corporations and other large entities were protected by the U.S. Constitution. Congressional attempts to impose restrictions on the financial contributions by corporations and other organizations, because they conflicted with First Amendment guarantees of free speech, would, henceforth, invite strict scrutiny by the court and would require that a compelling state interest had to be shown to pass judicial muster. In First National Bank of Boston v. Bellotti,  435 U.S. 765 (1978), authored by Justice Powell, held that corporations have a First Amendment right to support state ballot initiatives.

Thirty years after the Buckley decision, an even more reactionary court declared that any restrictions upon campaign financing by corporations violate the free speech provision of the First Amendment. In  Citizens United v. Federal Elections Commission, 558 U.S. 310 (2010), Justice Kennedy, writing for the majority in a 5-4 decision, reversed two previous precedents that  had upheld modest campaign finance regulations. Justice Kennedy opined that the Court had previously recognized that First Amendment protection extended to corporations and that "under the rationale of these precedents cited, political speech does not lose First Amendment protection 'simply because its source is a corporation;" further "corporations and other associations, like individuals, contribute to the 'discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster."

Finally, the five member right-wing majority of the Supreme Court, after the appointment of fellow-traveler, Judge Gorsuch, in Epic Systems v. Lewis, , 584 U.S. ___ (2018), has gutted the ability of employees in private sector to engage in concerted activity to improve wages and the conditions of work free from individual compulsory arbitration agreements. In Janus v. AFSCME,   585 U.S. ___ (2018),  the five ideologues simultaneously delivered a body-blow to the ability of public sector to require non-union members - whom they must still represent - to pay for their fair share of costs of administration, collective bargaining and grievance procedures. As Justice Kagan noted in the dissent, the Court's five member majority were "weaponizing the First Amendment." 

Justice Kagan's observation is prescient for, in the long run, the continued elevation to individual rights to the detriment of the public interest will exacerbate the growth of anti-social individualism and further erode the bonds that have historically united Americans and hobble the ability of government, at all levels, to promote the general welfare. 

 Students of the law understand that there has always existed a tension between fidelity to the letter of the law and the dictates of justice. The ancients remind us that as citizens of a political community we are obliged to seek the summum bonum - i.e., the highest good, the ultimate end -  which is synonymous with justice.

As the primary object of all human aspiration, true justice is something that can be achieved only through the law acting as an instrument of the social order. Thomas Aquinas, quoting Isodore, reminds us that "Laws are enacted for no private profit, but for the common benefit of citizens."  Further, "A law, properly speaking, regards first and foremost the order of the common good..." Finally, Aquinas invokes Cicero to the effect that "'the object of justice is to keep men together in society and mutual intercourse.' Now this implies relationship of one man to another. Therefore justice is concerned only about our dealings with others."

Jacques Maritain, the French Catholic philosopher who followed in the footsteps of  Thomas Aquinas, has emphasized that "the primary reason for which men, united in political society, need the State, is the order of justice. On the other hand, social justice is the need of  modern societies. As a result, the primary duty of the modern state is the enforcement of social justice." Measured by that exacting moral standard, the federal courts have failed to protect the public 

interest and have become pawns of the 1% and the flawed market ideology that promotes and advances their interests to the detriment of everyone else. 
The ancient Greeks and Romans embraced a concept of society and the political community that is conceptually different, and fundamentally at odds, with the  American political tradition. Aristotle taught that " by nature a political animal, and a man that is by nature and not merely by fortune citiless is either low on the scale of humanity or above it...inasmuch as he resembles an isolated piece at draughts..."

In fact, the root of the English word civilization is derived from the Latin civitas. The Roman notion of the civitas was endowed with the same mystical meaning which the Greeks attributed to the polis: As a member of the civitas, the Romans, like the Greeks before them, believed that a man fulfilled himself and achieved his destiny - which was to discharge his responsibilities in the life of the republic - as a citizen. Through the civitas, therefore, one became a sociable, functioning human being and thus distinguished oneself from lower forms of life or from barbarians, who because of their lack of knowledge of politics could not create political institutions that would enable them to emerge from their servile state.

 Because the classical conservative tradition emphasized obligation as a correlative of right and insisted that citizenship required conscious and willing deliberation and participation in the political process, it was not uncommon that all of the male citizens of ancient Athens often spent days as members of the Assembly deliberating issues of war and peace and the merits of proposed laws. 

More than two millennia later, here in the twenty-first century United States, notions about politics, citizenship and the obligations of citizens in an ostensibly democratic society stand in stark contrast to the ideas of the ancients. In 2016, a mere 60.1% of this country's citizens were able to find the time or summon the effort to even cast a vote in the presidential election. In the 2021 election,  the number of U.S. voters increased only slightly to 66.3%. The numbers were even worse in the two most recent off-year Senate and Congressional elections: 36.4 % cast votes in 2014; that figure was down from the 37.8 % of voters who cast ballots in  2010. In  53.4% of eligible voters chose to cast ballots in the 2018 elections. Voter turnout in the United States was thus among the lowest in the developed world.

As a result of the failure of young voters, women and minorities to vote in those off year in the 2014 election, the control of the United States Senate and House of Representatives reverted to the GOP.  A similar result might occur in the 2022 election cycle, given citizen apathy and low-information voters who have historically tended to support candidates whose  policies have bee shown to be inimical to their best interests . 

 At the state level, the figures are even more daunting.  As of April 8, 2021, Republicans controlled 54.27% of all state legislative seats y, while Democrats held 44.91%. Republicans composed a majority in 61 chambers, and Democrats held the majority in 37 of those chambers while the Alaskan legislature's house  was organized under a bi-partisan, power-sharing arrangement.  As of the same date, the GOP controlled  27 of the state governors' offices.  
 The indifference of so many Americans to the political process only underscores the observation that politics - whether through active participation or abstention - has consequences. Absent serious reform of existing Senate rules that perpetuate grid-lock and minority-control, and the need to reign-in the current  right-wing, activist U.S. Supreme Court, President Biden and the Democratic Congress will be essentially neutered during remainder of his presidency. Simultaneously,  the GOP will be  empowered to continue to wage unremitting war at the state and federal level against women, the LGBT community, minorities, the poor, labor unions, voting rights, regulatory reform, student debt, economic inequality, climate change and a host of other issues.
Compounding low voter turnouts, a recent Gallup poll reports that, as of March, 2021,  41% of those Americans who are registered to vote have declared themselves be Independent or unenrolled. The effect of that decision is that these unenrolled voters are unable to participate in the formulation of party platforms and issues. In addition, because they are unwilling to participate in party politics at the ward, county and state levels, they have ceded the power to choose candidates for public office and to advocate for policies to those voters who are enrolled and do participate actively in either of the two political parties.

There are a number of plausible explanations for the current gridlock and dysfunction that characterize current American politics. Undoubtedly, the torrent of private money unleashed  by the Citizens United decision of the U.S. Supreme Court, the suppression of voting rights, and the continued success of wedge issues to divide a very low information and distracted electorate have all contributed to the trivialization of U.S. politics. So, too, has the disappearance of journalism as a serious, independent profession and its replacement by pundits and talking heads who endlessly prattle on about who is up or down without any effort to seriously analyze the underlying issues. But they bare only a share of the responsibility.
The French Catholic philosopher Jacques Maintain, echoing Thomas Aquinas, argued that  that  "the primary purpose of which men, united in political society, need the State is the order of justice. On the other hand, social justice is the critical need of modern societies. As a result, the primary duty of the modern state is the enforcement of social justice."

 Social justice can never be achieved in a political culture where voters are so preoccupied with their own private needs and the acquisition and accumulation of things that they are unable to find any time to participate in the political process. U.S. politics has devolved into to a food fight that is devoid or substance or any acknowledgment of the real problems that bedevil this country. 

Right-wing politicians and interest-groups - aided and abetted by" dark money" - are now engaged in a far-reaching campaign  to further suppress voter turn-out.  Americans who refuse to perform their civic duty, to become informed about the issues and to actively participate in the political process have no one to blame but themselves.

Justice Scalia's Sad Legacy

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This morning's mass shooting in Indianapolis reminds us again of the continuing epidemic of gun violence that ur Congressmen and Supreme Court jurists refuse to address.  As of April 16, 2021, the Gun Violence Archive reports that  147 mass shootings have occurred so far in 2021.Every day, 342 people in the United States are victims of gun violence in murders, assaults, suicides and suicide attempts, unintentional shootings, and police intervention, according to the Brady Campaign to Prevent  Gun Violence. 

Between  1968 and 2017, more than 1.5 million Americans  died in gun-related incidents, according to data from the U.S. Centers for Disease Control and Prevention. That number exceeds the approximately 1.2 million service members who have been killed in every war in U.S. history, based upon estimates from the Department of Veterans Affairs.

The emotional and economic losses caused by these gun deaths and injuries, as well as the emotional travail and suffering inflicted upon the families, friends and neighbors of the victims, are incalculable and the cumulative effects of this violence upon our entire society are pervasive. After the mass shooting in Las Vegas that left 59 dead and hundreds wounded, CBS Moneywatch's Aimee Picchi wrote that, "gun violence in the U.S. also has an enormous financial cost, rippling through the economy in the form of lost wages, medical bills, higher taxes for law enforcement and lower property values, among other factors. Some estimates put the total annual tab of shootings at well over $100 billion, while others put it even higher." A senior staff attorney at Giffords Law Center to Prevent Gun Violence, Michael McLively, was quoted by Picchi, "The usual discussion is: There's a mass shooting, we talk about political inaction, and then everyone turns to the next thing that's happening or next disaster. The cost of gun violence goes undiscussed, and it's super important because it's silently affecting everyone." According to the Law Center, researchers conservatively estimate that gun violence costs the American economy at least $229 billion every year, including $8.6 billion in direct expenses such as for emergency and medical care. 

The inability of this country's political and judicial institutions to address this problem has been exacerbated by the U.S. Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570 (2008). Prior to the Supreme Court's 5-4 decision in Heller, the Second Amendment had always been held by the federal courts to  grant to the people--and not to individuals--the right to keep and bear arms as members of a well-regulated militia (today's National Guard) as previously confirmed by the U.S. Supreme Court. See,  for example,  U.S. v. Miller, 307 U.S. 174 (1939). 

Sadly, the late Justice Scalia's tortured constitutional analysis and his inability to comprehend the grammatical interconnection between a subordinate clause in a sentence --"A well-regulated Militia, being necessary to the security of a free State..."--and the main clause--"... the right of the people to keep and bear Arms, shall not be infringed"--were an unfortunate consequence of the eighteenth-century ideological bias in which his legal analysis was mired.  In the name of an abstract right of the individual and his putative right to own a gun, Scalia denied the right of concrete human beings--who have died and will continue to die because of handgun violence--to be safe from harm: "We are aware of the problem of handgun violence in this country," Scalia piously intoned, "but the enshrinement of constitutional rights necessarily takes certain policy choices off the table."

 Scalia's unbridled defense of anti-social individualism has since given license to gun nuts and Second Amendment absolutists to thwart every rational effort to control the continuing slaughter of innocent citizens. While most GOP legislators at the federal, state and local levels have enthusiastically embraced the mantra of the NRA that "guns don't kill people, people do," too many Democratic legislators have been cowed into submission.

 How does one explain this insanity?  Part of the problem undoubtedly stems from the liberal ethos of the country in which the Founders intentionally constructed a constitutional system that emphasized the rights of solitary individuals over those of the community and, by means of checks and balances, separation of powers, and a diffusion of political power across a porous, largely unaccountable federal system, signaled a permanent distrust of government and its ability to act as an positive instrument for the public good.       
Protecting the lives and safety of innocent citizens the paramount duty of any democratic government. The right of citizens to live meaningful and productive lives without the fear or threat of senseless violence perpetrated by sociopaths and the deranged is a basic human right that trumps any narrow, inflexible interpretation of the Second Amendment.   

 Unless the problem of gun violence is addressed honestly, openly and courageously by judges and politicians, the number and severity of incidents of senseless gun violence will continue to increase. Will this country then descend into the kind of dystopia described by Hobbes, in which the "life of man is poore, nasty, brutish and short?"  If  that dark, future world should come to pass, those jurists and politicians who now oppose all rational forms of gun control will ruefully be remembered as craven cowards who spawned a culture of dearth,

 As citizens of a putative democracy we, too, now have a solemn responsibility. We must demand  through collective action, that local officials, law enforcement, including police  departments and their unions, support sensible  gun control. In addition, we should support all legislative efforts by Democratic candidates for Congressional office and for President to increase the size of the U.S. Supreme Court to eleven or thirteen judges.  Such a change would help to ensure that the Heller decision is reversed and that the Supreme Court would become more responsive to the will of the American people rather than  than the right-wing ideological  agenda of the Federalist Society.