TPP and it's assault on sovereignty and common people

Updated 3/26/2016 (and 4/27/2016): I last blogged on the TPP in 2013. Ed's been covering the TPP, mostly focused on Labor Rip Offs. But I've been focusing on the ISDS provisions. I blogged on this 10 days ago (3/16/2015) and now the Ed Show just did a segment on the Investor Sovereignty provisions of TPP. The ISDS courts have been a tool to infringe the sovereignty of our trade partners. Now we are about to get the same treatment. At that time the ISDS provisions were blatantly unfair to most potential litigants and were obviously meant as a tool to protect investors and create a world wide Banana Republic system. (See [http://holtesthoughts.blogspot.com/2013/09/move-on-fast-track-petition.html]).

See the Leaked Documents here:

http://www.citizen.org/leaked-trade-negotiation-documents-and-analysis

Now they are claiming some procedural reversals and that somehow the Tribunals will be paragons of transparency. but a lot of these "reforms" look like PR ploys to me so I'm more than skeptical. And there is no fundamental change proposed for the Corrupt tribunal system at all. So they look like window dressing to me. The ISDS system was why I didn't want fast track in 2013 and why I still don't want it. The Trans Pacific Partnership and other ones involving ISDS arbitration are dangerous agreements and ones handing over sovereignity to partial tribunals run by a cabal of insider lawyers working for the giant mega-companies. The changes outlined won't change that.

Ed Show, Warren andd Wikileaks on the "Investment provisions"

Ed Show:

http://www.msnbc.com/the-ed-show

#TPP Investment Chapter @Wikileaks complicates #Obama’s #FastTrack push: http://bit.ly/WikileakTPP2015 #NoFastTrack #ISDS

@SenWarren is right to warn us about the dangers of #ISDS. @wikileaks confirms: http://www.citizen.org/documents/tpp-investment-leak-2015-release.pdf … #NoFastTrack

@WikiLeaks Reveals #TPP Proposal Allowing Corporations to Sue Nations @Democracy Now http://owl.li/KQMIQ #ISDS

How #ISDS lets #BigPharma attack #publichealth & access to #meds: http://bit.ly/ISDSHealthAttacks … @WHO http://bit.ly/ISDSPetition

I scooped the New York Times, but this is their article:

http://t.co/sR935t0zV1

The Dangers of the ISDS, TPP Provisions

The TPP has this article (quotes taken in March 2015) on these "Neutral" courts, or Tribunals called Investor State Dispute Settlement (ISDS) "Courts";

isds: [https://ustr.gov/about-us/policy-offices/press-office/fact-sheets/2015/march/investor-state-dispute-settlement-isds]

"In U.S. agreements, the investment rules enforced by ISDS provide investors in foreign countries basic protections from foreign government actions." such as:

"Freedom from discrimination: An assurance that Americans doing business abroad will face a level playing field and will not be treated less favorably than local investors or competitors from third countries." isds

Freedom From "discrimination" usually means Impunity

Freedom from discrimination usually means that American investors and foreign investors will not have to face the wrath of citizens and will have lawyers and judges who represent them.

"Protection against uncompensated expropriation of property: An assurance that the property of investors will not be seized by the government without the payment of just compensation." isds

Normally this is a good thing. But one man's "uncompensated expropriation" can be another's righting of a wrong. [as has happened with injury lawsuits such as what happened to people poisoned by Exxon's oil extraction in Ecuador]

"Protection against denial of justice: An assurance that investors will not be denied justice in criminal, civil, or administrative adjudicatory proceedings." isds

In other words, the Tribunals will be able to deny citizens justice in some cases in favor of investors. A blanket protection against "denial of justice" that excludes "ordinary courts" is not justice, but it's counterfeit.

Impunity in Financial power

"Right to transfer capital: An assurance that investors will be able to move capital relating to their investments freely, subject to safeguards to provide governments flexibility, including to respond to financial crises and to ensure the integrity and stability of the financial system." isds

A Grifter is someone who can take his/her money and run

This is what investors really want anyway. They want to be able to be grifters legally and swindle or loot one country and then take the proceeds out of the country and move on when they've finished looting the coffers.

Impartial Arbitration?

"While ISDS does not provide additional substantive rights relative to U.S. law, it does provide an additional procedural right: the right for foreigners to choose impartial arbitration rather than domestic courts when alleging that the government itself has breached its international obligations, whether by discriminating against a foreign investor, expropriating the investor’s property, or violating the investor’s customary international law rights." isds

Except that impartial arbitration means lawyers who are hand picked by the same companies asking for the arbitration. The same companies and judges are usually also company lawyers. "Impartial" is a misnomer in most of these modern arbitration. The lawyers have an interest in protecting the investors. (see below)

Over-ruling Rule of Law

The article continues:

"ISDS arbitration is needed because the potential for bias can be high in situations where a foreign investor is seeking to redress injury in a domestic court, especially against the government itself. While countries with weak legal institutions are frequent respondents in ISDS cases, American investors have also faced cases of bias or insufficient legal remedies in countries with well-developed legal institutions. Moreover, ISDS can be of particular benefit to small and medium-sized enterprises, which often lack the resources or expertise to navigate foreign legal systems and seek redress for injury at the hands of a foreign government. Indeed, SMEs and individuals have accounted for about half of all cases brought under international arbitration." isds

Bias is only high against investors when they have done something wrong. That is another reason that investors so want an ISDS. An ISDS substitutes the biases of common folks for the biases of the well connected. They want the bias to be high against those pursuing claims against them!

Banana Courts!

"There is a long history of providing neutral forums for disputes that cross borders. Within the United States, for example, the rules of civil procedure allow for federal jurisdiction in cases involving citizens of foreign countries (or even citizens of different U.S. states) to eliminate biases that may occur within state courts. Internationally, there are a wide variety of judicial or arbitration mechanisms – including State-to-State dispute settlement and forums permitting direct actions by private parties – to create neutral means for resolving differences between parties from different countries; for example, the International Court of Justice, the World Trade Organization, and the Inter-American Court of Human Rights." isds

True enough. And these "neutral" courts have frequently been an agent of colonial governments or neo-colonial company interests in the past. "Neutral forums" are experts at imposing oppression and supporting "banana Republics."

How Neutral? The Devil is in the details!

The real problem with the ISDS is that for all it's protestations that it won't affect the ability of states to regulate the environment and protect consumers. Investors wouldn't demand arbitration if it didn't give them some advantage or if they were merely concerned about some evil dictator expropriating their country. Arbitration has been and regularly is used to stiff consumers and workers currently. And regardless of efforts to claim that it can be moderated by laws saying "no you can't do that", the very constitution of the tribunals argues that there are no protections for just that problem!

The Aussies see the issues

This article (http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj09jul14.pdf) Notes:

"Arbitral tribunals set up under ISDS provisions are not courts. Nor are they required to act like courts. Yet their decisions may include awards which significantly impact on national economies and on regulatory systems within nation states. Questions have been raised about the consistency, openness and impartiality of decisions made in ISDS arbitrations." Frenchcj09jul14

And he notes the following issues:

Vague formulation of major treaty provisions leaving a wide range of interpretations open to arbitrators;

Which means that while there might be a header note that investors couldn't use treaty obligations to say, invalidate a settlement with villagers poisoned by reckless oil drilling in a place like Ecuador. In the hands of an unscrupulous tribunal and unscrupulous judges that can very well be the outcome. And while the current negotiations may prevent illegal shells there are no substantive protections against:

loopholes which enable abuses such as nationality shopping by companies which create subsidiaries abroad specifically to take advantage of the agreements;

If those subsidarities happen to be legal.

But of course what scares me is the following:

• lack of transparency with varying degrees of secrecy attaching to arbitral processes depending upon the institutions or rules which are applied;

And given history the fact that the current round of negotiators are claiming this issue is being addressed tells me;

a; it is a serious issue and

b; I don't want to rely on assurances but to see any treaty debated on the Senate Floor and not subject to fast track!

And the point of the following points:

• a relatively small pool of arbitrators — arbitrators appointed to ISDS arbitrations are said to be mostly male (95%) and from Europe and North America;

• role-swapping by arbitrators who appear from time to time as counsel in ISDS cases;

...Is that there is a massive issue (beyond risk) of arbitrators who are really company lawyers. They cannot be expected to be "unbiased" or "neutral" if they work for the companies going to court. ISDS might get good outcomes when two companies due each other. But when it's you or me fogetaboutit!

But it's worse than that. ISDS is an elite process:

• the high cost of ISDS arbitrations — estimated by OECD as averaging about $8 million each;

• associated with the high cost and potentially high awards, a growing phenomenon of third party funding of claims by banks, hedge funds and insurance companies in exchange for a share of the proceeds ranging from 20% to 50%;

All of which argues that the ISDS concept is corrupt from the start. And what makes it worse is that all this includes:

• absence of effective review or appeal processes;

• inconsistency in decisions on similar provisions

These features of lawsuits on environmental and health issues in the United States are already undermining the integrity of our own system. Judges regularly seal settlements. Companies settle cases, not just because they know they'll lose but because they want to suppress the information of the case from getting out to other victims. ISDS would make this a worldwide practice!

The nearly identical issues were laid out in a powerpoint, conveniently directed to investors:

http://www.uvic.ca/interdisciplinary/europe/assets/docs/ceta/CETAISDSNewcombe.ppt

ISDS Issues from a Legal Viewpoint

listing risks for ISDS from a Justice Viewpoint:

Legitimacy: ad hoc tribunal of three arbitrators assessing state conduct

Which again, reflects the "industry capture" of the judging. It means essentially the same lawyers are Judge, Jury, executioner, and at least one party to the cases they try. This is the recipe for injustice. When the lawyers on each side of arbitration represent the same paying customers that isn't justice, that is corruption. And as noted above there is a real problem with:

Transparency: private and confidential proceedings

Whatever the negotiators say will be the case!

Nationality planning is just a fancy term for country shopping:

Nationality planning: use corporate structuring to obtain treaty benefits

Consistency of arbitral decisions regarding similar treaty provisions

The reason companies like arbitration is that they can use secrecy, country shopping, and legal loopholes to get decisions favorable to themselves. It's why they like these treaties! And the provisions for appeal mean that the crookedness, once put in the treaty is difficult to appeal or rectify:

Erroneous decisions cannot be corrected

And if a decision is hard to correct if erroneous. Think of what happens due to:

[Lack of] Arbitrator independence and impartiality

Conflict of Interest:

Financial stakes

Protections for Trade or for Outlaw Multinational Investors?

The Trade negotiators claim to address some of this in their arguments for selling TPP to voters. They claim that the treaty addresses these objections with the following:

"Full transparency in cases. Governments must make all pleadings, briefs, transcripts, decisions, and awards in ISDS cases publicly available, as well as open ISDS hearings to the public. One key objective of these provisions is to allow governments that are party to the agreement, as well as the public at large, to carefully monitor pending proceedings and more effectively make decisions about whether to intervene." isds

If so this is the opposite of how ISDS currently operates. We want to see the treaty language!

"Public participation in cases. Tribunals have the clear authority to accept amicus curiae submissions. In U.S. cases, amicus briefs have been submitted by a variety of NGOs, including the Sierra Club, Friends of the Earth, and Center for International Environmental Law. (Documents in all investor-State cases filed against the United States are available on the State Department website.)" isds

Again, opposite of current ISDS laws and rules.

Suits brought by "commoners" = Frivolous

But the following is dangerous, because in the hands of expert lawyers working for the corporations being sued. A claim of injury becomes "frivolous" and the only claims taken seriously would be between parties with wealth.

"Mechanism for expedited review and dismissal of frivolous claims and claims outside the tribunal’s jurisdiction. This mechanism enables respondent countries, on an extremely expedited basis, to move to dismiss (1) frivolous or otherwise unmeritorious claims (akin to provisions under the Federal Rules of Civil Procedure) and (2) claims the tribunal is not empowered to resolve." isds

...And of course using standing (claims the tribunal asserts it doesn't have jurisdiction over -- meaning nobody does) to block injury claims is old hat in the US courts.

Sham Corporations

TPP does acknowledge that the ISDS already has a long history of Abuse. They propose to "fix" one of the issues that have expressed that; "sham corporations."

"Denial of benefits for sham corporations. This provision prevents the use of shell companies to access ISDS." isds

But of course we know that differentiating between sham pirate companies and perfectly legal privateers is a matter of whether they have a few documents from the appropriate courts. So this is a hollow provision.

Parallel Claims

"Restriction on parallel claims. This provision prevents a party from pursuing the same claims both in ISDS proceedings and domestic courts (i.e., restricting “forum shopping”)." isds

Which effectively means that it will be difficult for people to appeal the ISDS! Since most parallel claims are the result of people not getting satisfaction in one of the courts and so appealing.

Statute of Limitations

"Statute of limitations. A three-year statute of limitations protects respondents against old claims, which are difficult for governments to defend in part because access to documents and witnesses becomes more difficult over time." isds

And this also will be something that hurts ordinary people, as Investors know right away if they have a claim or not, but ordinary folks frequently don't even know they have a problem for 5-10 years, or can't get access to the courts in time due to obstruction by local authorities.

"Challenge of awards. Both parties to an arbitration have the option to challenge a tribunal award." isds

If parties have an option to challenge a claim that is a change from the previous operation of the ISDS. Otherwise it contradicts other statements about the law. This is another reason to not want to support Fast Track. Moreover, this doesn't help consumers, since appellate courts often are controlled even more by corporate lawyers than ordinary courts.

Even so we need to see this in writing. The following would be an improvement. It allows class actions.

"Consolidation. On request, tribunals may consolidate claims raising common questions of fact and law, which may increase efficiency, reduce litigation costs, and prevent strategic initiation of duplicative litigation." isds

But it's also not really something that should be a reform.

"Interim review of ISDS awards. Parties to the arbitration are permitted to review and comment on a draft of the tribunal’s award before it is made final." isds

Nor is this.

Favoring Creditors over Debtors

"Prudential exception. This exception provides that nothing prevents countries from taking measures to safeguard the stability of their financial systems. If such measures are challenged, this provision allows the respondent country and investor’s home country to jointly agree that the prudential exception applies and that decision is binding on the tribunal." isds

This reflects years of the IMF and World Bank using it's power to force countries to make paying foreign investors a priority over paying their own workers and their own financial security.

Limitation on Sovereignty

"Tax exception. This exception defines and limits the coverage of government tax measures under the investment provisions. In addition, this provision provides that if the respondent country and investor’s home country agree that a challenged measure is not expropriatory, that decision is binding on the tribunal." isds

Again, this is a protection for investors against citizens of the country facing a claim.

"Mechanism for treaty Parties to issue binding decisions on how to interpret treaty provisions. A binding interpretation mechanism enables TPP countries to confer after the agreement has entered into force and to issue joint decisions on questions of treaty interpretation that bind all tribunals in pending and future cases." isds

Closing the barn door after the horse leaves!

"Independent experts on environmental, health, or safety matters. In most ISDS cases, the disputing parties retain and appoint the experts. This provision provides arbitral tribunals with the power to appoint experts of their own choosing on environmental, health, and safety matters to ensure maximal objectivity in the evaluation of claims challenging such measures." isds

This contradicts assurances that the the ISDS will not hurt people suing on environmental or health issues. We all see how there are always experts who are willing to say what their bosses want to hear.

"Limitations on obligations: Clear limiting rules and definitions, including guidance on interpretation on the obligations frequently subject to litigation, to safeguard against subjective or overbroad interpretation – for example, the incorporation of U.S. Supreme Court standards on indirect expropriation and a clear tying of the “minimum standard of treatment” obligation to requirements under customary international law (i.e. the general and consistent practice of states that they follow from a sense of legal obligation)." isds

I'm not sure what this means. But I'm also not sure it's new or a reform. When people are seeking rights, we don't really want Officials defining them. These kind of tribunals are instruments of tyranny.

Conclusion

I'm still waiting to see the actual language before rendering final judgement. If what is disclosed in the Trade negotiator website is even half true, the current treaty is better than it was in some ways, two years ago. Sadly in some ways it is now worse. And since the devil is in the details and so far what I'm seeing is contradiction and sham assurances. I'm not confident that the assurances are even true or sincere.

Sources and Further readings:

https://ustr.gov/about-us/policy-offices/press-office/fact-sheets/2015/march/investor-state-dispute-settlement-isds

http://www.uvic.ca/interdisciplinary/europe/assets/docs/ceta/CETAISDSNewcombe.ppt

http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj09jul14.pdf

Leaked Documents:

http://www.citizen.org/leaked-trade-negotiation-documents-and-analysis

Obama Defends TPP (Vox article)

http://www.vox.com/2015/3/13/8208017/obama-trans-pacific-partnership

You only live once!

Are We the Wave or the Ocean?

Are we the wave?

or part of the ocean?

Are we ready to:

melt into the beach?

ride the wave of life?

Or fall into the breach?

 

Rather than fighting the waves,

in fear;

Maybe we should Look forward

to the peace of the Beach.

 

Christopher H. Holte

 

photo from Donna Milligan [https://www.facebook.com/lindsey.stewart.188?fref=photo] April 2 2013

Update on ACA and the attacks on it.

The Hard Right, dragging innocent folks with them, have been hard at work building a network of lies, spins and half truths about the ACA. The last time I wrote about it was in 2013, but I've shared a lot of other folks writings on it. It works for me. It saved my nephew's life. And it's saved my keister too. The Right Wing has no intentions of replacing it. Their followers are stirred up with lurid stories about excessive costs and trickery by RW Tricksters. And every month there is a new one. One of the more recent controversies was when the Right wing took some offhand critical remarks about ACA as proof that their goal of repealing it (and not replacing it) was righteous. The guy's name was Gruber. His comments were similar to one's I've made except he intimated that the creators of ACA were engaging in deception when they anticipated problems that they didn't broadcast.

Personally I'd prefer a single payer system or at the very least a public option. I'm tired of the whole privateering, greedy, profiteering robbery of the US medical system.

Gruber Fact Check:

http://www.factcheck.org/2014/11/the-aca-gruber-connection/

I want to supplement the medical system with a United States Health Militia and use that to train, provide and maintain the health system and make sure that everyone has access.

I plan to talk about that.

Return of the Coat Hanger

As I noted in my post on Roe Versus Wade "RIP" , the right wing has been steadily mainstreaming increasingly strident policies on women's rights. Even as recently as a few election cycles ago the Right would disguise their end game, as I noted when critiquing Romney during his Presidential Campaign 3 years ago ["Romney's 'Evolution'"].

10 States have made abortion services virtually legal, and the right keeps chipping away at the law. [http://www.alternet.org/story/151268/10_states_where_abortion_is_virtually_illegal_for_some_women]

At this point they are pretty up front about not only wanting to criminalize outright abortion, but in using the invented notion of "life begins at conception" to also criminalize and ban most forms of birth control. The result is as predictable as it is vicious. The back alley abortion is making a return in those states where restrictions on access to Obstetrics and Gynecology services and abortion services are so great that only the wealthy have the option.

It is not only tyranny for Government to intrude into people's personal life, it is bad policy. If folks don't want women having abortions the women who wind up seeking that option need to have other options. The Right Wing are rightfully hyper-conscious about the pain and suffering of the innocent foetus, but that concern stops at birth. And there is something unbalanced, vicious and sick about the obsession with abortion. There was consensus on the subject, but that wasn't enough. We keep it legal to acknowledge that women have the right and duty to protect their own bodies and care for the young. What we are doing is barbarous.

Like all forms of prohibition and abolition, any law that impedes real needs, creates or aggravates real gaps and the wishes of the people concerned, is oppressive and creates an underground economy that criminalizes unavoidable choices. Abortion is a catch 22 decision at the best. Abort the fetus and the mother will feel awful about the incipient life she's killed. Bear it to term and she's forced to either put it up for adoption or raise it when she's not prepared to be a good mother. Taking away that choice just makes the catch 22 part even more vicious.

Further reading: post on Roe Versus Wade "RIP" [http://holtesthoughts.blogspot.com/2015/02/roe-versus-wade-rip.html]

Viciousness, Oppression and Bullying

Viciousness, Oppression and Bullying are the Opposites of Freedom and Virtue

Liberals didn't invent Political Correctness. Actually "Political Correctness" is another term for the abuse of language. We did invent words like "1984", "newspeak", and "social dominance orientation' to describe it. In return our socially dominant types invented the pejorative "policial correctness" to characterize our depiction of oppressive speech.

"PC" is a fear reaction to Threats

We let our bullies get us so tied up in knots I heard a commentator say the other day "we need a new word to describe the bullying." That's because the gangstas in the top gang gangs started making fun of the word "PC" and of those who fought their social dominance, that those bringing up the subject have become afraid of them. But there is a nice technical, descriptive word for bullying and social dominance. It's as old as civilization and as visible as ever. It's that "Chicken Pyramid" "pecking order" I keep talking about. The Strongest get up on top and crow. Everyone else gets pecked.

Bullying:

verb

gerund or present participle:

bullying

use superior strength or influence to intimidate (someone), typically to force him or her to do what one wants.

"a local man was bullied into helping them"

synonyms:

persecute, oppress, tyrannize, browbeat, harass, torment, intimidate, strong-arm, dominate; More

So Bullying is a "present participle" for oppressive behavior. We are talking about Oppression when we talk about bullying. And when we are talking about folks using bullying to maintain social hierarchy, power, low wages, misogyny, with all it's enabling phobias. We are talking about violence and oppression. 'nough said.

Oppression

noun

prolonged cruel or unjust treatment or control.

"a region shattered by oppression and killing"

synonyms:

persecution, abuse, maltreatment, ill-treatment, tyranny, despotism, repression, suppression, subjection, subjugation; More

antonyms:

freedom, democracy

the state of being subject to unjust treatment or control.

synonyms:

persecution, abuse, maltreatment, ill-treatment, tyranny, despotism, repression, suppression, subjection, subjugation; More

mental pressure or distress.

"her mood had initially been alarm and a sense of oppression"

So PC is letting the rich and powerful bully us into tolerating their oppression

Is letting the powerful and wealthy bully us into not talking about this as oppression. And the OPPOSITE OF FREEDOM

And the opposite of virtue is viciousness, which is also a synonym for abuse and cruelty.

These people cannot preach "private, separate advantage" and wage warfare on others and call themselves virtuous.

Further reading:

Understanding Social Dominance [http://holtesthoughts.blogspot.com/2015/01/understanding-social-dominance-theory.html]

Are you a Social Dominator? [http://holtesthoughts.blogspot.com/2015/01/are-you-social-dominator.html]

Understanding Altemeyer and Social Dominance [http://holtesthoughts.blogspot.com/2015/01/authoritarians-and-totalitarians.html]

Why the Myths are Bad [http://holtesthoughts.blogspot.com/2015/01/why-myths-are-bad.html]

Fighting Authoritarianism [http://holtesthoughts.blogspot.com/2015/01/fighting-authoritarianism.html]

John Locke on Tyranny:

Tyranny is also Bad Process: http://holtesthoughts.blogspot.com/2013/02/tyranny-is-also-bad-process.html

First Published 3/24/2015, Minor edits later on for links and similar

That Three fingered Thing!

When Folks don't vote, this is what happens!

It's that Three Stooges thing!

There is a reason that we should vote. The reason is that when we don't vote our very real enemies attack us, loot our goods and if we are lucky make us walk the plank before sinking our lives.

As my friend Laurel M Davila said:

-- "If one of the political parties is OPENLY promoting a return to feudalism and turning all of the 99% PERMANENTLY into hereditary serfs, while the other at least goes through the motions of maintaining a democratic state... THAT is NOT a simply cosmetic difference between the political parties!"

Both Parties are NOT the Same!

So when I hear folks telling me "both parties are the same!" "You Are sheeple." When I'm feeling charitable I tell them those accusations are a "three fingered thing." But the reality is that it's a "Three Stooges thing." This is because:

1. Each of us have a vote. If we waste that vote we elect our enemies.
2. We have real enemies, we need consensus to defeat them. Therefore we need to work with people we don't agree with 100% to defeat those we disagree with 100%. (or sometimes 80% each way).
3. We have the duty to fight within our open organizations before stepping outside of them. Therefore we need to fight to replace corrupt officials and politicians at all levels of government including local. And we have the opportunity to fight city hall within the Democrats most of the time and change their attitude on subjects. This is what Gays did and it worked. They first worked on the Democrats and then expanded to Cons. That is how they won.

It's that Three Fingered thing

If You don't like the system, get to know it, tell it's leaders why. Fight it. Change it. If officers are corrupt, find people who you can trust and put them up against them. If the communications system is broke, we have a duty to form alternative media and pass the truth. If folks are playing "follow the leader" and marching towards a cliff, we have a duty not to march over the cliff with them.

Our society is the way it is because too many of us go along with city hall, don't participate, don't pay attention and so make our susceptible to propaganda, duplicitous messages, and outright lies. Instead of judging situations based on ethical evaluations and facts, we tend to go with the flow. And that lets the pirates manipulate us.

Subsidiarity Versus Fascism

I did a search of the Federalist Papers to make sure. But the word Subsidiarity isn't mentioned once. Even so it's an important principle of good Government. I was going to write about that subject. But then I started reading and realized that I need to write two articles. This one is about how the word "subsidiarity" entered modern Conservative Jargon. It turns out that it's from the founding fathers of our conservative movement. Just not our Founding Fathers. Google brings up this definition:

What is Subsidiarity?

"Subsidiarity is an organizing principle that matters ought to be handled by the smallest, lowest or least centralized competent authority. Political decisions should be taken at a local level if possible, rather than by a central authority."

Subsidiarity as a component of Federalism

This principle is a principle of Good Government. It is not an absolute principle, despite it being the latest "Conservative" buzzword. It is a legitimate principle. Except that for the Framers of the Constitution the goal was "subordination" not subsidiarity per-se in their definition of "Confederation or Federation". But Subsidiarity is a "constitutional necessity" by definition:

"The definition of a CONFEDERATE REPUBLIC seems simply to be ``an assemblage of societies,'' or an association of two or more states into one state....So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy." [Federalist 9, Hamilton]

Subsidiarity while necessary for "Local purposes" was not seen as an end in itself. So when George Will started talking about the principle years ago. The question rose in my head, "where was he coming from?"

Jonah Goldberg and Rerum Novarum

Indeed while it's not mentioned once in the Federalist Papers, though it is a concept from the middle ages. It turns out the source was the late 19th century by Catholic Activists, specifically:

The principle of subsidiarity was first formally developed in the encyclical Rerum novarum of 1891 by Pope Leo XIII, as an attempt to articulate a middle course between laissez-faire capitalism on the one hand and the various forms of communism, which subordinate the individual to the state, on the other. The principle was further developed in Pope Pius XI's encyclical Quadragesimo anno of 1931, and Economic Justice for All by the United States Conference of Catholic Bishops. [http://en.wikipedia.org/wiki/Subsidiarity_%28Catholicism%29]

I saw extensive references to Rerum Novarum in my authoritative references on Fascism (which are still in a box somewhere not yet unpacked), so I was desperately looking for that book while writing this. But then I realized I had another source. From a man who was trying to obfuscate the role of that encyclical! Our Good Friend Jonah Goldberg in his propaganda "Liberal Fascism" in the context of his discussion of Mussolini's fascism. However, Fascism's cult didn't start out with much definition as an economic system. And indeed the Economics of Fascist states has tended to be Right Wing and has taken a number of forms. But the Fascism of the Mediterranean was that of Salazar in Portugal, Franco in Spain and Mussolini in Italy, and all three were heavily influenced by Rerum Novarum. Which Jonah Grudgingly acknowledges:

"It’s revealing that corporatism has many of its roots in Catholic doctrine. The 1891 papal encyclical Rerum novarum proposed corporatism or syndicalism in response to the dislocations of the Industrial Revolution. ... The Church’s interest in corporatism stemmed from its belief that this was the best way to revive medieval social arrangements that gave man a greater sense of meaning in his life." [Liberal Fascism page 297]

Jonah Goldberg Mainstreaming Catholic Fascism

But what he calls "progressive Catholic Thought" based on Rerum Novarum, written by Pope Leo XIII (2 March 1810 – 20 July 1903, born Vincenzo Gioacchino Raffaele Luigi Pecci) was the basis for authoritarian Catholic policy, not "progressive" policy. Dictators from Franco to Juan Peron cited Rerum Novarum, though he influenced progressives and classic liberals alike. The Catholic Church's interest in Corporatism was to subjugate man to Church Authority, as it has been since Constantine.

There is a reason that Jonah Goldberg tries to obfuscate the relationship between the Church and some forms of Fascism. There is no mention of António de Oliveira Salazar, or his form of explicitly Catholic Fascism, nor of Fascisms origins in Catholic Action. Nor does he talk about how Franco merged the explicitly Catholic Fascist groups with the Fascism of the Falange created by José Antonio Primo de Rivera [http://www.historylearningsite.co.uk/falange.htm]. But Goldberg makes a lot of mistakes. For example he confuses Francos failure to enforce the "edict of expulsion during the 30's and 40's with him abrogating the edict. Franco closed the border, he just didn't enforce it by gunning down fleeing Jews the way the French or other Europeans did. The Edict of expulsion wasn't abrogated formally until 1968. [http://jewishwebsight.com/bin/articles.cgi?Area=jw&ID=JW903]

Essentially Jonah and other modern conservatives are rewriting the record to separate the Fascism of Salazar and Pinochet, Mussolini and Franco, of Catholic Action from it's equal partners in the Falange and the Fascist movement. Yes the two movements were parallel. One was focused on Social Issues and power. The other on Power. Together they were indomitable. If they had some divergent goals, most of their goals were convergent.

The Fact is that Fascism grows out of Nostalgia for the Dark Ages. Jonah agrees:

"Fascism is the cult of unity, within all spheres and between all spheres. Fascists are desperate to erode the organic, legal, or cultural boundaries between family and state, public and private, business and the “public good.”

But like all good Cons he tries to project that onto "progressives." This much is true. Fascism was and is explicitly a teaching that reifies Social Dominance and the imposition of Order/hierarchy.

"Unlike communist Jacobinism (or Jacobin Communism, if you prefer), which expropriated property and uprooted institutions in order to remake society from the ground up, Fascism pragmatically sought to preserve what was good and authentic about society while bending it to the common good. Interests or institutions that stood in the way of progress could be nationalized, to be sure. But if they worked with the regime, if they “did their part,” they could keep their little factories, banks, and department stores." [Liberal Fascism page 297]

Which of course is corporatism, Social Dominance, hierarchy and Elitism [http://holtesthoughts.blogspot.com/2015/01/understanding-social-dominance-theory.html]. And if those were also features of the mutant bolsheviks and characteristics of socially dominant wannabe "fearless leaders" of all stripes; it decidedly is not a set of progressive attributes. It's not conservative either. Fascism is about Orthodoxy, Nationalism, Authoritarianism and naked oppression.

George Will's (and Jonah's) Fascism

So Where did this concept of Subsidiarity really come from? I first heard it in an article I was reading by George Will back in 1994. My mind retained the term because it just makes sense. But it turns out that the context was George Will's nostalgia for a society with "Moral Fiber". This mention was an article; "Conservatism Will Restore Moral Fiber To Fraying Culture" November 14, 1994 |By George Will, Washington Post Writers Group

He wrote at that time, referring to the Southern Strategy "Contract With America", Gingrich Revolution of that year:

"Conservatives worry in a more contemporary vocabulary, questioning the power and ambitions of the post-New Deal state and finding a causal connection between those ambitions and the fraying of the culture. Conservatives believe government's principal functions are the preservation of freedom and removal of restraints on the individual." [http://articles.orlandosentinel.com/1994-11-14/news/9411140338_1_liberalism-conservatives-worry-function-of-government]

Even the language of decline and renaissance reflects the language of Fascism more than conservatism. If Will had been resisting change he'd have been a conservative. But the Gingrich Revolution (ongoing) was about rolling back previous reforms on the premise that the "moral fiber" of the culture was fraying. Compare that to this description of Franco after he achieved power:

"Franco became caudillo, or absolute dictator, and unlike those he had accused of lacking "moral fiber," Franco tolerated little dissent. According to Ellwood, he placed a premium on "uniformity and conformity" rather than "plurality and diversity." He saw himself as the savior of the nation and therefore would suffer no one to stop him. He used military tribunals to try any manner of offense, and observers suspect that hundreds or thousands of political captives and other prisoners were executed between 1939 and 1943. Franco also used bureaucratic tools to harass the general public into loyalty. By requiring written authorizations for work or food purchases, ultimate authority rested in those issuing the cards, who, of course, owed loyalty to Franco." [Francisco Franco Dictionary of Hispanic Biography, November 6, 1996]

I could find better quotes but the point is that the notion that society is falling apart and order must be imposed to restore it to past glory is a feature of Fascism along with Imperialism and other characteristics. And note, Franco talked extensively about Rerum Novarum and pledged his fealty to the Catholic Church and to the Monarchy. Jonah is right about the features of Fascism and this "Restoration of Moral Fiber" is one of them. And if you read carefully his next passage and decode it you see the same "need for order" theme that is symbolized in the Sticks and Axe that are the symbol of Fascism:

"One count in conservatism's indictment of liberalism is that liberalism takes too much for granted, including those habits - thrift, industriousness, deferral of gratification - that make free societies succeed. Conservatives worry that the severest cost of solicitous government is not monetary but moral: the diminution of personal responsibility and private forms of social provision." [http://articles.orlandosentinel.com/1994-11-14/news/9411140338_1_liberalism-conservatives-worry-function-of-government]

Contrary to the propaganda of Conservatives, it's not "liberalism" that seeks to impose order; "thrift, industriousness, deferral of gratification" on people. It is authoritarianism. And Will for all his talk about liberty and Freedom is usually a hypocrit on the subject. He condemns eminent domain when the Government uses it for urban renewal but calls for it when the Canadians impose a pipeline on the country.

And his mention of "subsidiarity" was in this context:

"The first business of the next Congress, the balanced-budget constitutional amendment, will promote, even compel, subsidiarity. This is because, as entitlements devour the federal budget, the central government will have a steadily shrinking sphere of discretion, so powers should devolve from Washington to lower governments." [http://articles.orlandosentinel.com/1994-11-14/news/9411140338_1_liberalism-conservatives-worry-function-of-government]

Like I said I like the idea of Subsidiarity. But Will isn't really talking about giving more local authority to local decision makers. He claimed that Churches and local authorities will take over the role of charity, but in practice we now know that is a vicious lie. It just doesn't get done. And local government can be every bit as oppressive as Federal Government.

There were other laughing points (from hindsight) such as his claim that the government should attack "unfunded mandates" which was soon followed by off the books Defense spending and other accounting gimmicks.

Sadly the con notion that "relimiting government" would "strengthen society" proved to be a vicious lie too.

I'll have to write about subsidiarity again. I find it sad when reading Conservative sources takes me to Fascist ideology. I'd like to believe Jonah Goldberg wasn't lying because Fascism is a set of attributes about movements and government and there are "red fascists" as Bernard Levi teaches. It's just that folks like Goldberg are rewriting history so they can obscure efforts to repeat the worst of it.

The Trouble with the definitions

The trouble with the Right Wing's definition of "liberty", "individual Freedom" and subsidiarity, is that for the Right Wing everything is qualified with the word right. "Liberty" is for the "Right People". "Individual Freedom" means that property owners and corporate Tyrants rule their employees. And Subsidiarity depends on your definition of "competent authority", since authoritarianism usually creates some kind of aristocracy and puts power in the hands of Authorities, who usually are your Socially Dominant types. It's not "all the people" but "the right people."

References:

Jeffrey T. Schnapp, ed., A Primer of Italian Fascism (Lincoln: University of Nebraska Press, 2000), pp. 3–6;

My Hard copy is of this book:

Charles F. Delzell, Mediterranean Fascism, 1919–1945 (New York: Harper and Row, 1970)

Liberal Fascism [https://t.co/uWCgnyG6q3]

I have a copy of this one too:

http://www.amazon.com/Left-Dark-Times-Against-Barbarism/dp/0812974727

Hannah Arendt: "The Origins of Totalitarianism"

Related Pages

http://holtesthoughts.blogspot.com/2015/01/understanding-social-dominance-theory.html

Are you a Social Dominator?

http://holtesthoughts.blogspot.com/2015/01/are-you-social-dominator.html

First wrote this on 3/20/2015, updated title to "Subsidiarity Versus Fascism" as I understand the concept better.