April 22, 2008

Dear Professor Wood,

Enclosed are a short note and a letter that I wrote to the New York Review of Books about your recent paragraphs on the fourteenth amendment which I found quite surprising for a number of reasons.
The first being the fact that you are an excellent historian whose work I greatly respect and have recently used in a long briefing on a court submission about the “Einhorn Law” which was passed by the Pennsylvania state legislature to contravene a final decision of a court, an obviously unconstitutional act.
At the appeal level, the court ducked the ruling on the obvious unconstitutionality of the law. It refused to rule on the merits of the issue, using as an excuse, a false one – that they could not grant the remedy. This is of course specious reasoning, as once jurisdiction is assumed a court must rule on the merits and worse can’t treat of the remedy without first considering merit.
What they did produced a due process violation. Thus I began a long study of the fourteenth amendment. Briefly spoken about in my letter to the New York Review of Books, that lead to a reading of Berger, a number of law review articles and the many cases in which incorporation became accepted law.
That long process made it clear to me that Berger was correct historically and I’ve seen no historical data to the contrary.
I benefit from being able to use the fourteenth amendment and having spent years in the movement, I am both emotionally and politically in consonance with what the courts have done and agree, Justice Thomas notwithstanding, that there is “no likelihood of its ever being expunged or reversed.” However, I am troubled by history being trampled upon, as Amar’s “Intelligent answer” does and perhaps even more so by a historian of your quality seconding the motion.
And what present court is doing – a reverse Warren Court – seems to be part of this process, wherein history and good judicial practise be damned: We’re in control now and its your turn to suffer. That began with their “electing” W and has continued through a very shameful seven years of the destruction of the Constitution and the acceptance of torture.
This egregious process is perhaps beyond healing, yet I believe that the use of history, a tool that your work exemplifies, could somewhat mollify the situation, hence my concern at what I see as its misuse.

Peace,
Ira Einhorn

April 20, 2008

To the Editors:

Re: Praying with the Founders, Gordon S. Wood, May 1, 2008

The meaning of a law can best be determined by the intention of its framers. It is a legal principle that is older than the Magna Carta.
With all due respect to the intellectual work of Professor Amar, he has not adequately responded to the definitive historical scholarship on incorporation displayed in Raoul Berger’s “Government by Judiciary: The Transformation of the Fourteenth Amendment” (second edition, Liberty Fund, Indianapolis, 1997), a book that has shown that the original intention was not to incorporate.
Justice Holmes made clear the weight that should be given to Berger’s deeply grounded historical arguments, re: Amar’s after the fact rationalization: “A page of history is worth a volume of logic.”
That said, anyone who is trapped in a state judicial system which in 2008 is but a reflection of Guantanamo and equally a cause for shame, is thankful for what the court began to do over eighty years ago: incorporate.
If one reads the law review articles and the cases cited there that deal with this transition, one quickly discovers a violation of historical intention which Justice Holmes also spoke about: “The criterion of constitutionality is not whether we believe the law to be for the public good.”
I believe that our desire for “ordered liberty” is enhanced by incorporation and I am happy to have a legal tool to fight against a system in which justice isn’t, but I do not think it furthers the cause of just society to twist the historical record which Berger so carefully laid out.

April 20, 2008

A note to the Editors:

As a prisoner I find myself among the most excluded class of people in America.
The International Herald Tribune in a recent editorial estimated that between 5 and 10 percent of the people in the US prison system are not guilty as charged.
That means that ca. 500,000 people are being treated by the intellectual elite as non-existent; people who should actually be able to read the New York Review of Books and e-mail you when they have a response.
The rest are basically forgotten.
That’s a lot of people, some of whom, as I am, are very well educated indeed.
The court system, and that includes most lawyers, is corrupt beyond description.
Please spare some time and print space to look at the horrors that is a festering sore, just as egregious in its own way as our little gulag and the torture that accompanies it.

Peace,
Ira Einhorn

Humankind can’t bear very much reality. We live by myths. When myths fail, they destroy entire interrelated systems of belief. I have experience that directly in the total failure of the law in my criminal case.

Justice has been destroyed in America. The law is no more. I see that in case after case. The identical kind of collapse of sustaining myths is happening economically as the very basic laws that supposedly support and maintain our economic system have been abrogated in a series of actions that have dissolved capitalism’s myth.

Trust is the essence of commercial interaction. When it collapses, commerce collapses, and those daily tasks, that yesterday had been as simple as turning on a light switch, suddenly become problematical, requiring conscious attention and focus. Our present economic crisis, fuelled by a great intensification of greed, is a crisis of trust based on a lack of transparency.

“There is a complete lack of confidence,” said Jim O’Neill, chief economist of Goldman Sachs in London. “It’s the most extreme since the credit crisis began.” (International Herald Tribune, September 19, 2008)

Financial instruments have been created (trillions of dollars worth of them) that few understand and no-one can value, thus no-one knows who is solvent. Thus when the various central banks make money available, it is not being used for its intended purpose. It is frozen money that banks are putting into very safe instruments. Releasing money into such a situation (the Central Bank behaviour) is akin to pouring cold water onto a deeply frozen pond. It isn’t going to melt the ice.

But unless the banks now do thinks they are loathe to do, they, like Wagner’s Dragon Fafner, will sit on their hoard, and try to wait out the process, for any amount of money they lend out will diminish their cash reserves and could prove to be their financial undoing.

This behaviour will not solve the crisis. Only increased liquidity (flows of money, lending) will diminish the crisis, but to repeat, no-one knows whom to trust with a loan or how much their opaque assets are worth.

The re-establishment of trust, after a shock to that most precious of human traits, is a slow process, so there is no quick fix to the loss of trust.

Just think what happened after 9/11: Muslims were attacked at random; or during the Nazi invasion of Eastern Europe during World War II: Jewish families were suddenly brutally murdered by neighbours that had lived next to each other (their families) for hundreds of years. The disappearance of trust. Think on it.

Faces are pressed too closely to the screens that surround. Turn off all the devices that connect you for a moment. Bear the silence for a moment. Go to a quiet spot in your house for a few moments or a back yard if you have one and calmly reflect upon how in an eye blink, Wall Street is no more. Just reflect upon that fact.

Most are not taking it in. Until you take time to take it in, you will not experience the magnitude of what has just happened. The financial center of the Empire has vaporized in a very short historical moment. After almost 18 months of failure to face the disintegrating process that brought it about.

We were spoon-fed lies, ideology and fairy-tales while the rot spread. For eight years, we have been treated in a similar way by most of our leaders. The simple fact has become an ideological play thing of those who do not have our best interests at heart. It is time to slowly awake to the disaster that surrounds us.

Wall Street is gone and the image of Henry Paulson on his knees before the speaker of the house begging for her help, a master of the universe on his knees. Savor the image, but don’t gloat. The work ahead is immense and all hands must be on deck. O back to the screens slowly, and don’t let distraction get to you: Wall Street has gone.

When the protection afforded for risk becomes the basis of enormous risk, there is something wrong with both our economics and our language.