USC Law School was fortunate enough to have a wonderful Dean when I went there, the first woman Dean of a major law school, Dorothy Nelson. She was a very bright and nice person. She also developed an elective part of the curriculum which had to be the most expansive of any law school. Usually, the first year courses are the requisite Bar Courses. There are a few more requisite courses in the second year,; and then the rest of the elective courses, not required to graduate and take the Bar Exam, are usually courses in Tax Law, Entertainment Law, Sports Law. There was a Torts II, which I should have taken, because it covered defamation and libel among other things, and I would like to have learned the nuances of those laws, they come up all the time in the political and entertainment world.
But USC Law School then had all sorts of courses which were more enjoyable to me, who had loved my undergraduate English major, than to many of the political science-based law students, who just wanted to learn about specific law. We had “Psychiatry, Psychoanalysis, and the Law,” where a couple of respected people in that field taught about Freudian theory, and how legal cases might deal with the insanity defense, or even motivation for crime. There was “Competency and Control of the Mentally Ill,” taught by a Criminal Law professor who was a libertarian, hated the way that the legal system dealt with the so-called mentally ill; even questioned the concept of mental illness. We read Thomas Szasz, who argued that there is no scientifically verifiable component to mental illness, it is just deduced from behavior; which is only seen through the prism of conventional morality,; and R.D. Laing, who said that so-called schizophrenia was actually an enlightened state. These are interesting concepts, at least.
One of my very favorite courses there was “Legal Philosophy,” taught by a really fun and stimulating professor, Franklin E. Jones, known to the students as “FEJ.,” pronounced as one word. He had played quarterback at Yale! He loved the questions of the origins of the legal system, and what decisions about human behavior they implied. We read philosophical essays going back to the Ancient Greeks and then England and America; some of which I was familiar with in my literature, history, and philosophy classes, but were new to some of the other law students. We had great discussions about what kind of laws were fair, and what were the negative implications of various laws, because there always are some. He had this imagined concept of a planet called “The Ball,” which was exactly like Earth, all the same aspects, and the same people, but it had no history, it was a tabula rasa when it came to laws and rules. The idea was that each student should imagine that he or she had the power to create the entire economic, political, and legal system for them.
What are the myriad of choices involved, if you get to start from square one, not being part of the world, just giving them their systems? These are matters which most people never consider, I think. What would be the best economic system? Free market capitalism? Socialism, where the major means of production are owned by the government? Variations of that? Communism in at least its Marxian theoretical form of a collective ownership of business? Something else? How would you set the tax codes? Would there be limits on wealth?
And then even more interestingly, what would be the political system you would set up? Something like what the Founders did in our Constitution? Would you even put in a Second Amendment? With the benefit of 230 years of hindsight, I would say definitely not. I read yesterday where former conservative Chief Justice Warren Burger said that the misinterpretations of the Second Amendment were the biggest hoax ever perpetrated on the public To quote him accurately, he said, “The Gun Lobby’s interpretation of the Second :Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American People by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies–the militia–would be maintained for the defense of the state. The very language of the Second Amendment refutes the argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires,”
And of course one doesn’t need to have gone to law school to realize that the Second Amendment is the only one which has a precedent clause. “A well regulated militia being necessary to the security of a free state…,” Then it goes on to say, “…the right of the people to keep and bear arms shall not be infringed.” Any person who is not reading this through the lens of the NRA, whose original goal was simply to sell as many guns as possible; or the fanaticism of the gun lobby, would realize that the precedent clause was put in there for a specific reason, to allow the creation of state militias. Not to say that any citizen could go out and buy a hundred guns, or later, a thousand assault rifles, military grade weaponry, and the government could not stop it.
Not only would the Founders have been horrified by such a notion, they specifically wrote about states and well regulated militias. “The people” were the states, collective people, not individual people. But of course many decades of declining education and use of logic, have allowed the gun lobby to claim that every person has the right to buy as many guns as he wants. And less perceptive and reasonable judges than Burger, who were put on the bench by Presidents who owed much of their electoral success to the power or the NRA, enhanced this fraud.
Was our Constitution ideal for changing times? Was it supposed to have been? Many right-wing people view it as akin to their Bible, and if something is not literally contained in the Constitution, so-called “original intent,” it is not valid. This is absurd, of course, but that is what they argue, when it suits them. The Constitution is in many ways a wonderful document, but it obviously had its flaws, notably that only White male property owners could vote. But it is the Second Amendment which is the real Achilles heel, as we see more and more each day.
Back to “The Ball,” it is stimulating and expansive to imagine how you would set up the society if you had that power. It is easier to find flaws in any current system, than to even mentally create one which would not have its own flaws. The key would be to have mechanisms to fix them. Would we want our American electoral system? How would we want to modify that? Get rid of the Electoral College, for certain, it is a terrible idea, maybe not in 1791, but certainly as played out now.
Some people have argued that a benevolent monarchy is the best form of rule; but the obvious problem is that monarchies are familial, and so the son or brother of a decent king could be a cruel madman. Plato’s concept of philosopher kings is intriguing, but how do we find and trust those; and do we want one ruler or a board of rulers, or some kind of representative democracy? I do not know much about the Star Trek canon, but I think that the concept of the Federation was a noble idea of Gene Roddenberry. There has to be some collective of decent nations or even planets, to work together; and there has to be a fair justice system to administer it. The idea of the United Nations was supposed to have such an ideal behind it, but it rarely has worked out that way; and it mostly turned out to be a bloc led by authoritarian countries contesting with the free nations. And of course in our country, much of the right wing hates the United Nations, and wants America to go it alone in everything.
How does the world progress to more fairness, justice and humanity? People used to think it was possible, but not so many now have that optimism, though some still do. Is the fault simply with human nature? Is it with the inability of the decent people to deal with those who are not? Would an imagined new planet need to take better account of human nature, in order to protect human rights? What if the concept of human rights is not something that a bunch of well educated 18th Century people of mostly British background, are capable of determining for people who come from other cultures and histories? But then who is capable of determining it?
Obviously, these are mind-bending things to consider, and most do not have the time or inclination for it, particularly outside of a school environment! But it is still fascinating, even if one spends fifteen minutes imagining how you would want to set up a world just like Earth, but could start afresh, as it were, and try to give it the best chance to evolve in a positive fashion, whatever that might mean to you.
Filed under: General | Comments Off on “The Ball”
The Confluence 