Quote of the day

The issue recently addressed by Alfredo Lopez is net neutrality and the work some corporations perform which is meant to undermine this practice. Those corporations are mostly the largest providers of retail broadband services to end users — that is, to common consumers. They wish to impose a model of broadband provision which mimics the model they use when providing cable television access. In other words, cable providers want to charge consumers economic rents beyond the costs and profits they now earn when they provide simple and direct internet access. The issue at stake is not only a moral-economic one, for this profit-motivated attack on net neutrality entails the existence of a power to determine who sees what while surfing the internet, when they see it, how they see it and at what cost. It is no stretch at all to claim that some cable companies wish to become censors. This is the power they want the federal government to give them. Thus, Lopez asks:

Do you trust huge corporations to protect your access to all the information you need and want? Do you trust them to protect your ability to give everyone else access to information you want to spread?

The answer, unless you routinely purchase Brooklyn Bridge shares, is “no”. They can’t be trusted with the power over your right to communicate. They shouldn’t ever be trusted with that power. And the Constitution of this country makes clear that they aren’t trusted.

To be sure, the federal government was also considered an untrustworthy source of social-moral regulation, and thus Congress was prohibited from making any “…law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” These rights were soon attacked by a fraction of the Founders. The federal government still threatens to undermine these rights. Today, as we know, the private powers, as found, for instance, in the possession of some corporations, are so massive that they dwarf the powers feared by the authors and ratifiers of the First Amendment. We should fear private power too.

Fazaga v. FBI

Writing for the People’s Blog for the Constitution, Shahid Buttar observed that:

On Tuesday, August 14, a federal judge issued a disturbing ruling allowing the Federal Bureau of Investigation (FBI) to evade public accountability for infiltrating faith institutions, monitoring law-abiding people, recording sexual encounters, and then lying about all of it. Carney’s decision erodes democracy in two dimensions at once, enabling ongoing constitutional violations by the executive branch while, at the same time, eroding judicial independence.

What Buttar depicts above and throughout his article is a dualism intrinsic to a political system which observes the rule of law in some areas but not all areas. This dualism features prominently in Ernst Frankel’s seminal The Dual State. Frankel’s analysis focuses on the post-Weimar German state as used by the National Socialist to govern Germany. The gist of his analytical edifice rests upon a division of the German state into two coexisting but not equal domains. He calls one domain the Normative State. The Normative State is a domain in which the rule of law regulates social life. He calls the second and superior domain the Prerogative State. The Prerogative State is a domain defined and governed by the prerogative powers of the political sovereign, the kind of powers once available only to a Monarch. In the Prerogative State the law becomes a component of force available to the sovereign. Thus it can be said that the rule by law and coercion replaces the rule of law and legitimate authority in domain of the Prerogative State. In Nazi Germany, the object of Frankel’s analysis, Der Führer was the source of the state’s prerogative powers. In the United States today the state’s prerogative power originated in the President construed as Commander in Chief and the source of authority for the massive security-surveillance apparatus which now exists in the United States. It is this apparatus which operates beyond the reaches of the Normative State, a claim supported by Fazaga v. FBI. In his principal Fazaga ruling, a Federal Judge, Cormac J. Carney, ruled in favor of the Federal Bureau of Investigation:

After careful deliberation and skeptical scrutiny of the public and classified filings, the Court concludes that Plaintiffs’ claims against Defendants, aside from their FISA claim, must be dismissed under the state secrets privilege. Further litigation of those claims would require or unjustifiably risk disclosure of secret and classified information regarding the nature and scope of the FBI’s counterterrorism investigations, the specific individuals under investigation and their associates, and the tactics and sources of information used in combating possible terrorist attacks on the United States and its allies. The state secrets privilege is specifically designed to protect against disclosure of such information that is so vital to our country’s national security.

In his ruling Judge Carney recognized the separate and superior domain of the Prerogative State. It is, by definition, a legal space which lacks rule of law safeguards, as the victims of the FBI in Southern California can claim based on their experiences.

Dance and they’ll take away your freedom