Natalie Nichols battles Miami Beach vacation rental law

 

NATALIE NICHOLS BATTLES MIAMI BEACH VACATION RENTAL LAW
Arizona Gila Monsters v. Florida Litigation Alligators
October 19, 2018
By David Arthur Walters
Winter is nigh and it is time to plan your family vacation in the Sun. Florida naturally comes to mind because you have been there before or have heard about it and it is easy to get to. A weekend or even a week would be nice in Miami Beach.
Of course you do not want to cram your family into hotel rooms in crowded areas.  No problem, because thousands of homeowners in Florida are willing to rent their homes to guests. So you do some research online, and happen to find an ad by Natalie Nichols.
Natalie says she is willing to share her 3,030 square foot, $1.3 million home with dock and pool on Stillwater Drive, and she has great reviews. It is a good thing you called her early and made arrangements. Yes, she can help arrange for sailing. She wanted $1,000 per night. You finagled a week for $5,000.
The airport was a bit of a hassle, and then there was the traffic, yet it was not so bad compared to the jams you have suffered up north. Besides, it’s a sunny eighty-five degrees. Florida is a pretty place, indeed, and the kids are really excited.
Natalie greets you in front of the house. A police car pulls up as you are taking your luggage inside. A man in black gets out with a notebook and starts to ask you questions, like “How long have you rented this place?” Natalie interrupts him, at which time the muscle-bound cop in blue who has gotten out of the squad car barks at her to get off her property so the man in black can interrogate you.
The black outfit reminds you of pictures taken by your dad of the fascists during the war. Local merchants here call them “the mafia.” Your wife is worried. Your kids look on wide-eyed. “Dad, will they take us to jail?”
“What is going on?” you think. “Maybe Natalie does not own this place? Is she scamming people? Am I going to lose my deposit? No, that cannot be. I checked her and the property out online. She is a licensed real estate agent with good references.”
You cooperate because you have done nothing wrong. You are a stranger in a seemingly strange land, where cops can order people off their own property so they can question your guests even though that is unconstitutional thus contrary to official police policy. Besides, you regularly see videos on television of officers shooting people unnecessarily.
If you had said to the code enforcement officer, or even to the police officer, “I am an invited guest here, and that is all you need to know,” and Natalie had said “I do not have to answer your questions, so call my attorney,” that would have been the end of it if the officer had paid much attention at the police academy.
But no, you are innocent, unaware of what is going on because Natalie did not forewarn you, so you think you don’t need counsel, so you answered the questions. You said yes, you had rented the home, from that woman over there, Natalie, and you even showed the code enforcement officer a copy of the advertisement and the rental agreement, which he duly photographed. He kindly informed you that vacation rentals of dwelling units are not allowed in the residential neighborhood.
The code officer does not mention that the state preempted municipalities from prohibiting vacation rentals of dwelling units and regulating their duration. But the legislation included a negative grandfathering clause, allowing local agencies to disallow the longstanding practice in areas where it was prohibited prior to June 2011 although not enforced there except selectively for years, hence to do so would be inequitable. That would be Natalie’s residential neighborhood, although it was expressly permitted on nearby North Beach. You look on as he cites Natalie for harmlessly exercising her private property rights. He may advise you to get off the premises. 
If the government mafia had its way, Natalie would be fined from $20,000 to $100,000, depending on the number of offenses, and her business shut down for even advertising the property, plus $1,000 for lack of the tax certificate denied to her because the use is not permitted in the first place, plus $500 or imprisonment if the offense is repeated.
 
Mayor Dan Gelber, a former prosecutor, whose famous father, Seymour Gelber, said city officials had been corrupted for decades by the hotel and tourist industry, would, to add insult to injury, have the fines for the lack of a resort tax certificate ramped up to $3,000 on repetition of the offense, and he would like to see the likes of Natalie jailed if they persist, in effect wringing the necks of the geese that lay golden eggs instead of protecting them, something the real mafia would not do.
What? Is this Totalitaria?   
Members of the jet set may own several homes throughout the world, rent them out for a few months when they are not around, hence say they are “sharing” their homes, while others prefer not to share except with a custodian. Natalie called her rental “home sharing” because she actually lived there when it wss not rented out. You see, she packed a bag and stayed elsewhere until her guests departed. She had another home across the street, was fined $4,500 for advertising vacation rentals there, and sold it for $50,000 less than she bought it for. And then came the crackdown and she had to stop renting.
She still has her home and an old four-plex apartment building down the street, now allowed although newer apartment buildings were zoned out by imposition of single-family residential zoning. Long-term rentals to Floridians on Miami Beach can be a real problem. Her apartment building has been more than problematic, what with tenants trashing it and playing the eviction game, taking her sometimes seven months to get the bad ones out, leaving her at loss greatly exceeding the first and last month security deposit. She maintains that short-term vacation rentals attracts better clientele and lifts values in contrast to the riffraff South Florida landlords are confronted with.     
Home owners have been sharing their homes for decades to vacationers whether they had licenses to do so or not. Look, this is Florida, a swampy state. Everybody does it, everybody knows it, and nobody cares. In theory people who provide the public with lodging are supposed to have a state license. No doubt hundreds if not thousands of small renters do not have one, most of whom are unaware that there is any such state license, and that not having one is a misdemeanor. The politicians are making new laws every day. One day Popeye may show up at the dock and be greeted by the Tax Man and taxed just for being a stranger among other things.
The City of Miami Beach requires renters to have a local business tax receipt. To get it one should in theory be certified to use the property for rentals according to the kind of occupancy permitted by the particular zoning classification. And a resort tax certificate is needed to pay resort taxes on any rentals less than six months.
The city was glad to deposit resort taxes. Did it even bother to check to see if the payers had a state public lodging license?  Did officials carefully check to see if the short-term use is even allowed? No. This is not only Florida; it is South Florida, and, even better, the City of Miami Beach in Miami-Dade County, a lazy subtropical city first made famous by Capone and Lansky for its traditional corruption. 
Top-to-bottom municipal corruption included the non-random discriminatory enforcement of laws. Few code enforcement and law enforcement officers are corrupt, but they all belong to command organizations with directors and chiefs under the thumbs of the political power, the mayor and commission, so do not blame them for their lack of independence when their jobs are at stake for disobedience to the will of the power elite. The same goes for the local magistrate or “special master” who hears appeals of code enforcement cases. S/he is not a real judge, and has often been little more than a stooge. The City of Miami Beach Special Master “court,” which the state allows municipalities to have under the pretense of their being “people’s courts,” is a dependent arm of the ruling clique. Do not believe the pleas in federal court that policies are set higher up by the county state, so the city is not the policymaker hence cannot be responsible as the policymaker. And every official sued seems to have the sovereign immunity of kings from top to bottom, never mind the state and federal waiver of sovereign immunity.
If you are Miami Beach magnate Russell Galbut or his relative, you can throw raucous parties and violate the noise ordinances with impunity in single-family residential areas as well as in South Beach. Just scoff at the code enforcement officer and appeal the fine because the family’s fixer will show up in front of the magistrate and get the case dismissed. What we have here is socialism for the power elite. The Good Old Boys are favored comrades. The rest are shaken down. There is hell to pay for those who did not cooperate or cannot afford to hire fixers. The city’s departments are customarily referred to as RICO operations in arrest warrants and indictments.
Anyway, what went wrong? Nobody cared about how long someone was staying on Miami Beach before. We had plenty of rooms for them, and pretty cheap rooms at that, maybe right on the beach. A day, a week, a winter, twenty years: so what? A Mason and Dixon March 2017 poll in February had 94 percent of 625 registered voters South Floridians in favor of such home-sharing applications. 
One theory for the crackdown on Miami Beach vacation rentals places the cause on the intolerance of former Mayor Phil Levine, a self-made tourism media mogul and real estate developer whose thin-skinned egotism pales only in contrast to The Donald’s. Levine, a “self-made” man whose fortune was made from a close friendship with the wealthy Robins family and from hawking tours on cruise ships, was theoretically personally disturbed where he lived on Sunset Island by parties of three hundred people in rented houses. That, along with his relationship with the hotel industry, presumably fomented his animosity against Airbnb type of operations and anyone else involved in home sharing, including small fry like Natalie. Levine sent out a Trumpian tweet to Airbnb, “MB doesn’t want your selling!!!!”
Thus rankled at home, Levine used his dominance on the dais hence over the administration to crackdown on home sharing citywide. The vestiges of his rule remain on the commission to his day with commissioners who are not about to admit they became his overawed tools.
“King” Levine’s dictatorial manner was duly appreciated by lesser authoritarian types. Carolina Jones, Natalie’s neighborhood association president, was observed posting propaganda favorable to the hotel industry, and urging residents of the neighborhood to complain about short-term rentals even if they had not been bothered by them. Mind you that no statistical analysis was conducted to show a demonstrable link between short-term rentals and noise in single-family residential neighborhoods.
Levine  touted his close friendship with the Clintons, and spent millions out of pocket to seat himself and enough commissioners to render himself a de facto strong mayor in a city with a weak mayor charter. He was scandalized for selling the city to developers. His “Get It Done” right or wrong projects included personally enriching himself and his partner Scott Robins in the Sunset Harbour district. The city paid them $13 million for the air rights for a city garage over their shopping center at taxpayer expense. Millions were expended on raising the roads around the shopping center. The newly raised streets may have to be torn up to replace the crumbling century-old sewer system as a result of the expected increase of demand on that system due to development in the area. Jay Fink, the assistant director of public works, who is unable to produce an engineers’ certification for the sewers says, well, some cameras looked into the pipe and all was well, and we are doing an excellent job. Residents, however, say that is contrary to what was seen from above with the naked eye. However that may be, the partners bailed out of Sunset for $69 million before Levine ran for governor.  
In sum, Levine left Miami Beach, hopefully his stepping stone to the governorship and the White House, in shambles. The electorate got wise and his campaign was resoundingly defeated, temporarily deflating his ego to such an extent that he must be having difficulty re-inflating it even although narcissism is theoretically overcompensation for feelings of inferiority.
Selective enforcement is obvious in Miami Beach. The Miami Herald, the daily newspaper that championed Levine all along, does not cover discriminatory enforcement and the like because it serves as the propaganda organ or booster sheet for the ruling elite, its “authoritative news source,” at least until someone is arrested, and, pending that, it claims it was unaware of what was going on despite the floods of letters to the editor and reporters.
Natalie Nichols was blindsided for advertising a house, but not Mayor Levine’s pal and partner Scott Robins when he was advertising and renting out his unpermitted hotel on Espanola Way with inadequate fire sprinklers to tourists.  City officials including code enforcement brass were presented with multiple advertisements offering the hotel, which had been cited by the state but continued to operate. Code enforcement declined to act immediately, saying it was difficult to collect evidence of short term activity although they also had photos of tourists arriving with bags. It was finally cited after continuous pressure was put on officials. Robins took the case to the magistrate. Everything was eventually forgiven including several years of resort taxes and unpaid permitting fees for extensive unpermitted renovations for which there should have been double-permit fee fines. County appraisers were interested in the renovations because it was a unique building and the increased value might affect its taxes, and at that time Robins was pleading for a downward adjustment. Photographs of the renovations appeared in the advertisements.
Poor Natalie! She does not qualify for special treatment.
Mayor Levine knew all about Espanola Suites. And the mayor and code enforcement officers and the city attorney knew all about Rod Eisenberg’s historic Sadigo Apartment Hotel in the Collins Park neighborhood a few blocks away.  He had been giving the city a bad time from time to time for its discriminatory policies and negligence since the 90s. The legal mafia finally came down like gang busters on his three-story historic building although transient apartment rentals are zoned into his neighborhood, and his engineer said the structure was the safest in the area although it did not have fire sprinklers. Indeed, vacated and unmaintained buildings nearby, held for investment by developers friendly with city officials, were not secured by the city for years despite complaints from neighbors including Eisenberg. A vagrant firebug gleefully set some of them afire. Poor Eisenberg, who has spent hundreds of thousands of hard-earned dollars on lawyers, religiously believes Justice is nigh, and, like a fool, he thinks Justice will come in a courtroom despite the advice of a chief inspector, who wound up in prison for taking bribes, that he could not solve his kind of problem with the Sadigo in courts of law.     
A notorious case of party noise in a residential neighborhood involved the racket made at a ‘Great Gatsby’ party thrown in a residential mansion by Keith Menin, a relative of Russell Galbut, a mogul whose licensed hotels in hotel districts are resented by neighbors for their noise, which is regulated. When cited, Galbut &Co has its fixer go to the magistrate and get the cases dismissed. At Menin’s residential party, the code officer was addressed contemptuously; sure enough, the magistrate dismissed the case. The Good Old Boys are above the law or have purchased laws that legalize their misconduct.
Levine’s vanity made him a great scapegoat. Robins wisely keeps a low profile. Galbut’s power over politicians and vast swaths of prime real estate gets him cast as a local devil if not Satan himself. They are too blame for some development issues, yet there are economic and demographic factors at play, not only in Miami Beach but nationwide, the exception for Miami Beach being that it has always had a large population of transients running from the cold and sometimes the law. The population has exploded and there are more rich people to go around. More and more middleclass people are travelling. Real estate values rise with the demand for vacation homes; regular folk including the elderly are pushed out of their neighborhoods into ghettos.
Moreover, residents, particularly elderly residents, do not like having so many strangers around, especially when they make noise. Indeed, humans have an innate fear of strangers when they come too close; for much of human history, a man would as soon kill a stranger than look at him, and for good reasons. It should be no mystery to anthropologists why Ötzi the prototypical Copper Age ice man from Tuscany, whose corpse was found preserved up in the Alpines, was killed by locals: He was a stranger encroaching on their fat.

I have lived in dense tourist areas. I like tourists because they are generally in a better mood than locals. Yet what settled folk suffer, it is said, is “Tourist Pollution.”

So how does it feel to be a pollutant? Well, residents actually love your tax contributions provided that you stay in a hotel in the hotel district. And the hotel industry loves you even the more, and politicians do love hotel lobbyists. Wherefore let us raise fines for unauthorized transient rentals so high that renters will be driven out of business.

John Alemán, a wealthy Miami Beach Commissioner, excused the fines running from $20,000 to $100,000 as necessary because, she reportedly said, a beachside mansion might be let out for thousands of dollars per night, so lower fines would be a cost of doing business for some operators. Wherefore the penalty is reasonable. After all, people come to Miami Beach to party, to get drunk and make a racket, in other words, to cause a nuisance, as far as some residents are concerned. The government has a legitimate interest in curbing public nuisances, or so she adamantly thinks.
“Some” is the key word here. Perhaps John Alemán or her friends could get several thousand dollars a night letting out their fabulous mansions in a few choice spots to rich and famous visitors. An allegedly morally corrupt city attorney for Miami Beach has secretly allowed such a place to operate like a hotel providing nobody complains while small business entrepreneurs like Natalie are persecuted. A luxury vacation rental company called Villazo LLC was cited twice for running a private hotel operation on Palm Island. They fought the charges until 2015; city attorneys forged a secret deal that allowed them to continue. Real estate agent Gregory Mirmelli filed a complaint against the city for withholding the records on the deal and for its selective enforcement.
Natalie charged $1,000 a night for her 3,080 sq. ft. home on the water, yielding her around $20,000 per month on the average. Take away $10,000 per month for mortgage, taxes, insurance, and the cost for staying elsewhere, and that left her $10,000 profit before maintenance and depreciation of the structure. She had another home across the street, so double that during good times.
The hype in the expensive seminars is true, that is, if you are lucky, work hard, and enjoy the hassle, there is plenty of money to be made in buying, fixing up, renting, and selling homes. Of course timing can be the key to rental income and capital gains. We were Ground Zero for the Great Recession, and real estate values plummeted. Natalie persevered and managed to bail out of one home for $50,000 less than what she paid for it after the official harassment began in her neighborhood. She apparently struggles to keep the one she lives in. Without the rental revenue, she must cough up around $9,000 a month to pay the mortgage, taxes, insurance and maintenance.  She had an opportunity to sell it for a gain at one time, but she kept it because she thought she would need it to house her aging father before he went to the Better Place.  
Again, do transient rentals to vacationers increase nuisances such as noise in neighborhoods? That depends on the class of renters and the neighborhood, which might actually be improved by vacation rentals that tend to raise values and “drive out the riffraff.” Public records do not reveal noise complaints from Natalie’s neighbors. Since the city’s “mafia” started patrolling Stillwater Drive to harass unwitting vacationers carrying suitcases, owners are selling out, long term rents have fallen, and the quality of life has deteriorated accordingly as the neighborhood is becoming virtually ghettoized. 
Natalie argues that, if law enforcement would do its job, the public nuisances would diminish, and it is unfair to ban short-term rentals. She has a good point. Law enforcement finally did its job in Flamingo Park and elsewhere as the last wave of corruption crested. Landlords proceeded to jack up the rents. Carpetbag developers are redeveloping whole blocks of deserted buildings. The worst nuisances in the “chic” South Beach area have been the apartment and condominium buildings inhabited by undocumented migrant workers, remnants of the Mariela Exodus, welfare recipients, and itinerant dope dealers, for who knows how long. The nuisances included noise, rapes, muggings, shootings, and stabbings.
I almost became a “conservative” after being outraged at all hours while trying to get up at 6 AM to make an honest living. Noise can be torture to humans. A man in one town asked neighbors twice to quiet down, and they did not. He called the police, and they did not show. So he shot three people at the party. An official said that act was “abominable, reprehensible.” Another called him “an animal,” which was true because humans are rational animals with a long history of transience as hunter gatherers before they settled down. Animals will flee or fight when disturbed. Most of us civilized folk prefer to stay put and call the police. We feel we have a right to quiet enjoyment of the premises, so all hell may break out if the police do not show up.
Cash in hand was often sufficient background for South Beach rentals. That is what David Muhlrad, a prominent landlord, the city’s first code enforcement chief, relative of Russell Galbut, wanted when I arrived in South Beach—he said he could tell by my looks that I was good. I moved when the apartment building was converted to the Regent Hotel.
Some advertisements even trumpeted that no background checks were required. The lease might say six months and a day at so much a month, but that was not the real term, and no resort tax was paid, nor income taxes in many cases. Besides, many of the nuisances were created by long term inhabitants who stayed as long as they could get away with their normal misbehavior.   
One studio in a four-building apartment complex I moved into was used by two enterprising prostitutes to run a gambling den that served hotel and restaurant workers from 2 AM until noon, as tricks were turned in a car, outfitted with blankets and pillows and bearing a temporary license plate in the alley. Crack was available on demand as well as cases of beer. The studio upstairs was used as a drop for stolen goods and as a party den by a gang of teenagers. Next door was a dope dealer who was a master of disguises, so crazed by crack that he tried to wash the buildings down with a hose in the middle of the night, then went over to the police station and threw a bag of cocaine into the air. Another tenant in that four-studio building was down from Tampa working for Gotti’s son, running an illegal nightclub and selling weed. The police actually apologized when they were called and actually showed up. The landlord from Cuba, whose son was a county attorney, said apples would cost $5 if illegal aliens were banned. I refused to move because the issue was endemic to much of South Beach. Only the superrich in the towers managed to “keep the riffraff out.”
City officials were not unaware of those activities, and some profited from them. Jorge Gonzalez, the city manager, said there was corruption on the commission; he took steps to curb corruption: he was immediately terminated by the commission, paving the way for Phil Levine. There is no way of knowing how much short-term rentals contributed to the nuisances other than rising rents and property values, which is not a nuisance to people who can afford it.
I lived in a city where landlords downtown were required to submit lease information to the police department, not to curb short term rentals but to apprehend wanted criminals. Cages were erected periodically in the parking lot to hold prisoners as the police went from door to door arresting wanted people. Perhaps the city should collect lease information to determine the duration of rents as well as to apprehend wanted people. But some Miami Beach landlords do not require identification and prefer cash, so who can prove what their lease terms are?
Short-term rentals were eventually prohibited in the Flamingo Neighborhood apartment buildings, except for very few where the practice was grandfathered in by friendly commissioners, but the practice continues illegally. Still today tourists with suitcases can be seen entering the apartment buildings, often behind a real estate agent as their guide. The rule of thumb in Miami Beach has always been selective enforcement. The higher the fine, the greater the incentive for corruption.  
One unlicensed rental agent in Natalie’s area bragged that he paid off the code enforcement officers. If true that would hardly be surprising. Again and again, Miami Beach officials seem to have a tradition of being corrupted in one way or another, with waves of corruption mounting between FBI busts.
The FBI wanted to wire Natalie to sting a public works official who allegedly solicited bribes to expedite sewer work, but her lawyer advised her not to do it, and to pay him a fee, instead, to resolve her issue with the sewer line.
Well, there are always a few bad apples in every government, or so it is said, and we know the adage about the scum at the top. In fact, studies show that the bulk of corruption public and private is perpetrated by trusted managers and executives who have been around their organizations for some time. Former City Manager Jorge Gonzalez was blamed by “reformers” for the corruption. He claimed some of it was on the commission in the form of commissioners who served as fixers. Even the city attorney office has been suspected of aiding and abetting the corruption of its client, the ruling elite, as a sort of criminal defense lawyer for the commission.
Natalie must be out a million dollars in revenue since she was blindsided by the ordinance prohibiting vacation rentals in her neighborhood. She did not see it coming in Stillwater Drive.
When a 2010 ordinance was passed to prohibit short-term rentals in the Flamingo Park and Espanola Way residential neighborhood, few people were aware of what was coming. Tammy R. Tibbs, the operator of four apartment buildings in Flamingo, however, was made aware of the change. A grandfathering clause was written into the original ordinance to give him six months to get those buildings grandfathered if certain conditions were met, and of course he complied. A building at 751 Meridian Avenue was not on the grandfathering list. The owner, Playa de Oro, had its lawyer, Simon Ferro, a prominent zoning and government relation lawyer, and President Clinton’s former ambassador to Panama, get ahold of the city attorney, claiming that an error by the state prevented his client’s building from making the short list. Ad hoc legislation was arranged for that building.  Another owner claimed he had improper notice, but his petition was denied. Someday a diligent attorney may want to make a public record request for the list and examine the process to see if the Flamingo Park and Espanola Way neighborhoods were favored over Natalie’s neighborhood and why.
Natalie scoured the code when she got into hot water, but she could not find a restriction limiting occupation to more than six months and a day. She had been renting short term for years. And then the restriction magically appeared when she looked again. That is probably because the code is updated quarterly. Until then people were supposed subscribe to and scour the Miami Herald for notices of hearings, and then check back to see if an ordinance that interests them was passed into law. And when there was a crackdown on sidewalk cafes, flyers were handed out, and that was supposed to constitute sufficient notice. Agenda notices are emailed out without specifications, so you must take time off from work and martinis to scour the agendas.  If you do not have your nose in the rear end of city hall, you will lose track, even if you take the continuing education real estate courses.  Before the advent of the Levine Regime, all one had to do was enter key search terms in the universal search engine called “the fishbowl” to pull up links to everything including ordinances, as we do with Google search. Not anymore, not since “transparency” was improved and the software upgraded.
Pleas to make ordinances effective only when they are published online in the code, except for emergency legislation, have fallen on deaf ears. The city attorney, the mayor, the commissioners do not care about the inconvenience and efficiency because they do not have to care; after all, the city clerk and city attorney say it’s all perfectly legal.
We would be better off living in ancient Rome if we wanted to know the basic law. We could walk over to the civic center and find it inscribed on the stone.
City Clerk Rafael Granado, Esq. insists that notices of hearings satisfy the statutory requirements for notice of hearing. That may well be, but those notices do not satisfy the maxim maximus that, “An enactment that regulates persons or property and imposes a fine for violations must be a printed law and citizens must have notice that it is in effect before they can be subjected to regulation and fines.” To wit, the public must have notice not only of the possibility that prospective legislation is to be considered, but must also have notice that legislation under consideration was passed into law.
Alas, overall bad management, bad politics, bad distribution of power. As Hotelier Trump, who might have Natalie over to Mar-A-Lago to discuss this free enterprise issue, would tweet: BAD!!!
Miami Beach real estate looks like it is going to implode again, and that is not good for Natalie’s real estate sales business. The fear of flooding and Zika mosquitoes, and the recent crackdown on money laundering that involves a big chunk of the local market, has been dampening sales and hurting prices. I noticed on the Web that she sold a home recently. Great, yet it is not easy to get rich off commissions and an ancient four-plex apartment building. Maybe she will return to the medical industry with her entrepreneurial dream in shambles.
Lo and Behold! A knight in shining armor, the Goldwater Institute (1), has appeared to represent our lovely lady in distress in a suit against the City of Miami Beach. Sadly, there is nothing in it for her, unless the law is repealed and she still has a home to rent, except the satisfaction of helping others in like circumstances before it is too late for them too.  She will not recover from this suit the damages she suffered because the lawyers are unwilling to sue for damages. And hardly anyone wants to be in a class fighting city hall at this point.
Natalie is the poster girl for this nonprofit organization, founded to perpetuate the principles of the late Barry Goldwater. (2) The Complaint identifies her two remaining properties, her home and the four-plex apartment, as “Prototypical Miami Beach Short-term Rentals.” Vacation home rentals and transient apartment building transient rentals are, by state definition, birds of a different feather. The state preempted prohibition of vacation rentals after June 1, 2011, except where they were already prohibited as in her zone. Perhaps she could convert the apartment building to a condominium if the suit is won, and rent out each home. One day she might own over a thousand units and block them with Airbnb or its competitor. There would be nothing wrong with that except from the perspective of nearby hotels.
Better yet, why not rewrite the public lodging law for all categories to recognize the right of property owners to rent their premises for less than six months and a day provided certain equitable conditions are met? And fiercely enforce quality of life ordinances.
The fundamental abstract principle of Goldwater should be individual liberty as demonstrated in the progress of civilization and the liberal foundations of the United States of America. Of course there is considerable disagreement among people as to what that they should be liberated from and what liberties should therefore be conserved. In any case, free individuals should have a right to privacy and the right to make a living. To be themselves, they must not be alienated from the essential product of their labor, their private property.
Natalie Nichols’ property, claims the Goldwater Institute, is “prototypical.” It represents private property everywhere in the allegedly free world. It has been infringed on by government. She has a sacred right to do with it as she pleases provided she does no harm to others. As a matter of fact, she had not a single nuisance complaint from her neighbors. So her right, although it may seem rather moot now as a lost cause in the past, is everybody’s right, and is presently asserted in the circuit court Complaint brought by the Goldwater Institute (3), with a hearing scheduled for the end of October 2018.
Goldwater is bringing in its top guns. The Arizona carpetbaggers will be up against experienced local alligators in South Florida’s litigation swampland: Mssrs. Raul Aguila, Alexsander Boksner, and Carlton Fields Jordan& Burt.
More lies are told in Florida courts than anywhere else, and then under oath. Florida lawyers have naturally been exposed for lying in court as well, even forging citations to suit their needs among other unethical deeds including criminal fraud and embezzlement of trust funds. It would not surprise anyone if the malpractice were widespread since some of the lawyers exposed were considered to be the most upright lawyers in the state. Of course money is sacred to the integrated Florida Bar, the disciplinary arm of the state Supreme Court, so theft of client funds is likely to get a lawyer disbarred. Otherwise nothing or little is done but a slap on the wrist. The mission of the Florida Bar is more to protect the trade than to discipline it. (3)
In any case, the fly-by-night Arizona Goldwater litigators representing Natalie are formidable right-winged foes for the left-handed Florida swampland cavilers.   
“Matt Miller” Goldwater advertises, “is a Senior Attorney at the Goldwater Institute, where he leads the Institute’s free-speech litigation efforts. Before joining Goldwater, he served 9 years as the Managing Attorney of the Institute for Justice’s Texas Office, which he opened in 2008. There, he won important victories for free speech and economic liberty. Prior to that, he worked as a land-use attorney at a large Dallas law firm. Matt’s cases have been featured in the Wall Street Journal, Washington Post, Associated Press, Reuters, Dallas Morning News, and other outlets nationwide. Matt has testified by invitation on numerous occasions before state legislatures on many topics. In 2009, he led the effort to reform the Texas Constitution to better strengthen protections for private property owners.”
“Christina Sandefur,” Goldwater states, “is Executive Vice President at the Goldwater Institute. She also develops policies and litigates cases advancing healthcare freedom, free enterprise, private property rights, free speech, and taxpayer rights. Christina has won important victories for property rights in Arizona and works nationally to promote the Institute’s Private Property Rights Protection Act, a state-level reform that requires government to pay owners when regulations destroy property rights and reduce property values. She is also a co-drafter of the 40-state Right to Try initiative, now federal law, which protects terminally ill patients’ right to try safe investigational treatments that have been prescribed by their physician but are not yet FDA approved for market. Christina is the co-author of the book Cornerstone of Liberty: Private Property Rights in 21st Century America (2016). She is a frequent guest on national television and radio programs, has provided expert legal testimony to various legislative committees, and is a frequent speaker at conferences. She is a graduate of Michigan State University College of Law and Hillsdale College.”
Fort Lauderdale lawyers Joseph S. Van de Bogart and Katherine Van de Bogart of Van de Bogart Law will keep the Arizona lawyer in line with Florida customs.
The Goldwater suit would like to do away with the “home sharing” prohibition altogether on constitutional grounds. Yet Goldwater counsel must not have absolute confidence in that happening since it emphasizes in another count that the fines of $20,000 to $100,000 are excessive in comparison to a supposedly more reasonable state limitation on all types of local code violations, in Chapter 162 of the Statutes of Florida, of from $1,000 a day for the first offense and $5,000 every day for each repeated offense.
Apparently the Goldwater lawyers have not read the provision of the statute that allows any other means for enforcing codes: “162.13 Provisions of act supplemental.—It is the legislative intent of ss. 162.01-162.12 to provide an additional or supplemental means of obtaining compliance with local codes. Nothing contained in ss. 162.01-162.12 shall prohibit a local governing body from enforcing its codes by any other means.”
The excessive-fine strategy either betrays the misunderstanding of the lawyers or reveals the income class Goldwater prefers, and that is apparently not homeowners who occasionally use realtors or rent their homes themselves to supplement their income. Vacationers can now rent a modest two-bedroom home in Miami Beach for $200 a night. Midrange would be $1,000 a night for a large home on the Bay with a pool like Natalie’s home, or one that could house quite a few people. Luxury mansions go for $10,000 or more a night.
Fines of $5,000 per day might not deter persons who own and/or advertise multiple homes and engage in huge operations that allow them write off the cost of the fines since enforcement cannot keep up with all the violations. But the fines will definitely deter others, especially the small fry who are really sharing their home instead of running vast rental operations. Furthermore, we leave it to the lawyers to discover how renters can avoid criminal misdemeanor charges for the violations that are cited.
People rich and poor should have a right to make a living of their own choosing in a free country if that does not unduly infringe on the right of others to do the same. Perhaps Goldwater Institute or someone else should take this major question up with the federal government in federal court, perhaps invest a million dollars to take it all the way to the top if need be to see how the conservative majority feels about it.
Since 94% Floridians approve of short-term vacation rentals, and two-thirds approve of transient rentals of all types, and that piece of the pie is so large, one would expect a great public clamor over the spread of the creeping bureaucracy that enhances the monopolies of the power elite. Yes, Airbnb is lobbying for vacation rentals for its own sake. Small rentiers would benefit. Where is the class action lawsuit? Why are not the rentiers coming out of the woodwork, like Natalie, to raise hell about the irrational infringement of their private property rights? Where are the interveners in the lawsuits?
Why? Because many of them are still doing it and do not want to expose themselves to retaliation. After all, retaliation, the most primitive practice of justice, is still the rule in Miami Beach. It does not pay to fight city hall when city hall is at the beck and call of the hotel industry and other major industrial segments of its economy. Believe it or not, people who have spoken in favor of vacation rentals on Facebook have been placed under surveillance and interrogated.
Finally, Florida, especially South Florida, is not a place where people come to cooperate or to join or intervene in other people’s lawsuits. They cannot see that there is a common element in their respective beefs, the violation of their civil rights.  As Christina Sandefur’s husband Timothy posted in his April 21, 2005, Freeespace under ‘The all consuming hatred of man’:
 “The evils of the modern age—as well as of the ancient times—have come about because of the assault on the individual; because of the notion that people do not matter, and that they owe their lives to the service of others. The principle of the gulag is the principle that the individual belongs to the state and that the state has the right to do with them what it pleases.”
He repeats what he had said many times before, that the notion that we should give up our notions as individuals and become cogs in the social machine “is the defining trait of conservatism” in the context of archaic patriarchal rights. Wherefore it appears in 2005 that he would conserve the principle of individual freedom and therefore its basis in private property.
Well, many South Floridians, familiar with repressive regimes, are staunch individualists who normally resent government encroachment on their persons and property. What we have here now is creeping alligator socialism. It can outrun you if you get too close to the water, and will drag you in before you know it.  Act accordingly. 
xYx
(1) The Goldwater Institute has championed, among other rights, the right to choose charter schools, education vouchers, and experimental drugs; the right to use heavy machinery in environmentally sensitive areas; the right to separate orphaned Native American children from their tribal culture; the right of corporations to contribute to political candidates; the right to make hateful speeches anywhere on college campuses; the right to pay tipped, young, and temporary workers less than the minimum wage; the right not to pay police officers for overtime; the right of minors to smoke electric cigarettes; the right not to give veterans employment preferences; the right not to teach CPR in schools; the right not to expand Medicaid expansion under Obamacare; the right to be free from greenhouse gas emission regulation;  the right of lawyers  to speak harmfully, in a way that manifests bias or prejudice towards others. And now, in Miami Beach, the right fought for is the sacred right to rent homes for less than six months, and, if that is not granted by the court, the right to be free from fines so high that a profit after paying the fines is rendered impossible.
 
(2) Old folks remember Goldwater well. He was trounced by Johnson 486 to 52 electoral votes in 1964 in the most dismal showing of a major party in history, yet his extremism inflamed the alarming hatred and passion of his Southern base and advanced the “popular” strains of conservatism of Presidents Reagan and Trump. He was not a bigot himself, as even Martin Luther King observed, at least not openly, but he favored segregation and he opposed the Civil Rights Act of 1964 because, for one thing, it would to lead to quotas. A tiny minority of blacks voted for him, so it was said they must have been ignorant or illiterate. He championed the Forgotten American, “that dragooned and ignored individual who is either outside the organized pressure groups or who finds himself represented by organizations with whose policies he disagrees either in whole or in part.”  He was a Jewish Episcopalian popular among all sorts of disgruntled factions, including but not limited to Christians and the Klan. He believed it right to be extreme if the cause was righteous, although people disagree on what is right and are even willing to die for it. He thought military field commanders had authority to nuke enemies without a presidential order. The United States government should not interfere with the liberties of its own citizens, he said, but has a perfect right to interfere in the affairs of nations whose interests are incompatible with its own.
Goldwater may likened to the latest version of Trump, which changes from day to day, although Goldwater was not such a loose cannon and was keen on protecting the environment. He like Trump was declared insane by armchair psychiatrists, but he sued and won damages for defamation of his character.  He hated communism and said socialism was a social disease. What he called conservatism was mandatory in the face of the totalitarian menace if the United States with its “true religion” Judeo-Christian heritage was to remain the leader of antislavery forces in the world.
Creeping socialism, you see, eats up private capital as the government encroaches on and takes over activities, destroying incentives. Social security and other welfare programs are best gotten rid of. Small business entrepreneurs like Natalie are being ruined by socialist creeps, and the nation will be consequently impoverished. Perhaps in the end everyone will be gray and wind up with the mere 100 square feet of living space Lenin dreamed of for the USSR.
The bone of contention or the bottom line is obviously property. Real estate is said to be the basis of all wealth. Private ownership of property, starting with one’s own body, is the very cornerstone of freedom. Yes, there is a spiritual underground, but that is chaos, as was famously discovered when the cornerstone of the temple was raised and a man descended into the abyss below it.
Freedom and justice require order, and the right order, which is a “just order under God,” is based on property rights. Let the government keep its hands off our property. Government, said Goldwater, should be concerned with the things that are its proper province, such as defense of the country and the administration of justice. Government should not try to do things which are better done by individuals or voluntary associations.
City Attorneys Raul Aguila & Alexsander Boksner, Developer Rod Eisenberg

(3) Rod Eisenberg, a small businessman who owned the historic Sadigo Apartment Hotel on South Beach, testified before the City Commission that a city attorney defending the city against his civil rights suit suborned the perjury of material witness in order to get his case dismissed and obtain $600,000 in sanctions for assertions his lawyers made. Eisenberg’s guests in for an art show were tossed onto the street with their bags and he was arrested and jailed at the behest of the chief deputy city attorney, Alexsander Boksner, because Eisenberg was accommodating them at the Sadigo. He submitted a deposition of the material witness, a code enforcement inspector, under penalty of felony backed by a polygraph test to the mayor and commissioners and city manager, most of whom are lawyers, showing probable cause that the deputy city attorney may have committed a federal felony. And it would be a federal felony for those who had that knowledge to conspire to obstruct justice by not reporting it to law enforcement and the Florida Bar. Neither Boksner nor other knowledgeable officials responded to my inquiries about Eisenberg’s allegations. The Florida Bar had the information, said no file would be opened, and the district attorney was not responsive at all.
Eisenberg has most recently filed an independent action in federal court for recovery of the sanctions, and has alleged in his brief that the city attorneys frequently lied about transient rental laws. He will probably have to go higher than that, far away from South Florida, to obtain justice. Local, state, and federal are one ball of wax here.

 

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South Beach Hemingway Politics

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SOUTH BEACH HEMINGWAY POLITICS

An Impromptu South Beach Moochers Club Meeting

By Special Request of a Miami Beach Commissioner

“Whew, the Bay stinks like shit around here thanks to Bill Divine’s pumps,” observed Bob Gunner with a wrinkle of his nose as he lounged with Arthur Davidson under a tree behind a condominium building on South Beach Baywalk.

“What a two-bit SOB that fast-talking hustler is. If he’s elected governor he’ll stink up the whole state and turn it into one big traffic jam.”

“That’s not fair,” Arthur said, and took a swig from the bottle of Booth’s yellow gin on hand.

Arthur fancied himself an artistic author given his name. He was often distracted by current affairs from writing novels, taking up journalism instead. As a self-made journalist he was dedicated to the notion that his reporting should be more fair and balanced than the political propaganda that appears in what Miami Beach residents call “the ass-kissing Herald.”

“So he’s not a SOB?” asked Bob Gunner, a large-framed, red-faced man who made his living the gun trade. He was shirtless, exposing an enormous hairy belly.

“He’s a jerk, alright, but the pumps were not his idea. The residents pushed them on the last administration.”

“Yeah, but they’re pumping pollution into the Bay.”

“But scientists say the Bay is safe,” Arthur said. “I would rather have the shit run off into the Bay than to wade around in it when it floods. The new thing is the road-raising.”

“Ah, those huge roller-coaster bumps on the road and water running off into people’s businesses and homes!” rejoined Gunner. “Well, the selfish bastard did all that in a hurry to protect his own properties and get some gratitude from the contractors.”

“Hey, what’s up, Art?” asked Jacob Ratner as he sauntered up with his sidekick, Jon Weasel.  Ratner, a disbarred lawyer known for passing out in doorways, was sporting an Aloha shirt below his disheveled mop of hair. Weasel, a tall, mousy, balding man, was drunker than a skunk as usual.

“I noticed Arrogante Carriola publicly insulting you on social media last evening,” said Ratner, “calling you a caveman, or an ‘Injun’ who should live in a teepee because you recommended a moratorium on new development.”

“Well, people were complaining about rampant development and the bond proposal. I observed that the Divine gang had run the city and its finances into the ground during good times.  I have my post to him right here, on my phone.”

Arthur pulled up the post and read:

“You scoff at the idea of a moratorium on development, which would help to mitigate the population density even more than FAR regulations, and you rely on cliché’s and hackneyed phrases to insult me for mentioning the moratorium extreme, inferring that I have some sort of caveman mentality, that I am a coward who fears change, even that I am virtually illiterate for recommending moderation and the deposing of misleaders who waste the taxpayer’s money while driving businesses and into bankruptcy and the city into a deficit despite good times. That is because of the prevailing mindset, that property is everything, that growth is good, that GNP must go up every year and the more the better, that no amount of wealth is enough, and that anyone who disagrees should be damned by trolls from hell. Good luck with that approach, because not everyone wants to be a welcome mat for YOUR kind of change.”

Weasel had wet his pants. He stood up for a moment, started to say something, forgot what he was going to say, plopped back down, then remembered something.

“Arrogante Carriola is a rotten, a rotten, rotten…”

“Filthy phony?” added Ratner. “That’s what he thinks of everyone who disagrees with his fascist opinions. Actually, he’s a big grown-up boy. He’s a businessman. Can’t you recognize a big businessman?”

“I recognize a copyright violation,” Art intervened. “That’s right out of Hemingway’s Islands in the Stream. Carriola recommended Hemingway.”

“I saw that on Facebook.”

“Cubans have a thing for Hemingway because he had a house on the island. The exiles don’t seem to realize he was a communist sympathizer. He supported Castro, contributing through a front man on the island.”

Viva la revolución!” exclaimed Weasel with clenched fist raised.

“Maybe Carriola likes the fascist in Castro,” Arthur smiled. “Right or left doesn’t matter when you’re a dictator.  That is why he was so tight with Divine. Money spoiled the both of them, but Carriola has a Cuban elitist sort of arrogance. He attacks and humiliates anyone who disagrees with him, especially females. He’s likely to get a slap upside the head someday if not a kick in cajones.”

“Oh, there’s more to it than that,” said Ratner. “The both of them went to Cuba to set things up with the junta, and then they tried to create a Cuban consulate here.”

“Lansky must be laughing his ass off.”

“He was a fool to criticize your writing. We know how you are with critics. I remember he said you are too wordy.  He said he couldn’t figure out what, why and how you write.”

“I have a computer, that’s how, and I write to free people from foreshortened brains. They believe nothing is worth doing if there is no money in it. If wealth is not the ultimate subject, they’re illiterate.  The consumers understand Carriola enough. It is no accident that he and Divine made their fortunes in the consumer relations business yet are such assholes. You know where they keep their money, in their bungholes.”

“He has to think you are a big fat slob, yourself, a faker, a phony and rotten writer. You know, you sound like a socialist. Maybe you do talk too much.”

“That’s why Sam said he would not hire me for the Outfit when I was a kid in Chicago, that I should be a writer like Dreiser…. At least I was brief enough when I said ‘underfunded overdevelopment’ to describe what Carriola and his pal Divine did, leaving Miami Beach in shambles. It’s just a big traffic jam full of harassed, unfriendly people now.”

“Carriola is an asshole, plain and simple,” declared Gunner.  “He should grow up. He has a childish habit of personally insulting and trying to publicly humiliate anyone who disagrees with his pet projects. That girlfriend he shares with Divine is even worse, goes around attacking people on social media.”

“Yeah, Janet Troll, she’s hell on wheels, but Carriola writes the nasty stuff for her to post, I think.”

“Not a gentleman, no way,” said Weasel, slurring his words. “He was busted for pawing a woman who drank a lot because she couldn’t stand him….”

“Nah, you gotta get a girl drunk to take advantage. We can’t depend on sober girls to propagate the race. Anyway, she admitted he laid his hands off when she said no, so nobody got laid, there was nothing to it, he would not know what a friend is really for.”

“Hey, Arthur, look at what I got here.” Gunner opened a duffel bag at his feet.

“What is that?”

“It’s an iMortar.  It’s got a nifty liquid sighting system. We can get the drop on it.”

“Drop on what?”

“Divine’s office building. Carriola is having a press conference with him right now.”

“What the hell?” Arthur balked. “Count me out of your ‘we’.”

“Come on. I got the perfect angles from here to lob a few and scare the shit out those arrogant assholes.”

“Hey, stop, you could kill somebody.”

“Don’t worry. These little blue babies are smoke bombs, the red ones are flares, not HEs, and they make a scary bang. It’s almost dark. We’ll be out of here by the time anyone figures it out. ”

“All right!” exclaimed Weasel.

“You’re talking felonies,” Arthur got up and backed away. “You could start a fire, cause an accident….”

“Don’t worry. I practiced.”

“You need a forward observer,” Arthur observed. “Hey, don’t you fire that damn thing!”

Gunner had put one end down on the ground and was looking at the sighting mechanism.

“Fire!” yelled Weasel.

Arthur and Ratner hastened away in opposite directions, leaving Gunner and Weasel with the mortar and an almost empty bottle of yellow gin.

xYx

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Appeal for Reform of The Supreme Court of The United States of America

John_Marshall_Park_-_statue

John Marshall, John Marshall Park, Washington, D.C.

AN APPEAL FOR REFORM OF THE SUPREME COURT OF THE UNITED STATES OF AMERICA

By David Arthur Walters

July 31, 2018

“The question is in truth between the people and the Supreme Court. We contend that the great constructive principle of our system is in the people of the states, and our opponents that it is in the Supreme Court. This is the sum total of the whole difference; and I hold him a shallow statesman ,who, after proper examination does not see, which is most in conformity to the genius of our system and the most effective and safe in its operation.” (1)

The ideologically stacked United States Supreme Court has made an elephant’s ass of itself at the behest of the Senate and the President by deciding cases on the basis of political ideology conveniently disguised as “conservative” to conserve and advance the interests of the power elite rather than on the substantive merits.

Vacancies on the court have as a matter of fact been openly filled by judges with opinions coinciding with the prejudices of Senators fearful for their own fortunes hence more interested in conserving and augmenting the fortunes of their wealthy patrons than in conserving the liberties of the people at large.

Indeed, the Republican majority in the Senate is proud to declare this berobed embodiment of its temporal prejudice in the highest court the font of the supreme law of the land for decades to come.

Thus are people in common embarrassed by the Senate, the hallowed vestige of the king’s noble court, now subservient to a fortunately temporary king widely believed to be a self-indulgent, impulsive fool, the very laughing stock of the free press he would fain silence for being the best friend of the people.

The Court, on the other hand, has also been crudely disgraced, having taken on the appearance of a long-term donkey court because of its stubborn tendency to self-preservation no matter how asinine its opinions, and a kangaroo court as well because it jumps to ideological conclusions before cases are tried.

This preposterous situation is largely the historical outcome of Alexander Hamilton’s federalist rhetoric; clauses in the Constitution providing for the tenure of justices on good behavior, and the supremacy of the Court; the 25th Section of the 1789 Judiciary Act; and the evolved “judicial review” opinions of a Court that elevated itself over the executive and legislative branches of the national government as well as over the people of the several states, which were sovereign only in rebellion after the Articles of Confederation were replaced with a national Constitution, an inviolable contract in contrast to the former league.

Wherefore a judicial aristocracy, now numbering nine unelected justices, presides over the “living constitution” of the United States. Five justices, to the horror of the other four, are presently committed to politically and culturally regressive policies instead of traditional constructive progress, not to mention the common sense of justice that ancient sages thought every sane adult should have or else be banished from civilization.

No amendment of the Constitution is necessary to remedy the usurpation of power attributed to “judicial review,” for the good reason that judicial review is not one of the powers enumerated in the Constitution in the first place. The Constitution definitely provides for limitations or exclusions from the Supreme Court’s appellate jurisdiction:

“The Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

All that is required to remedy the unconstitutional construction is a judiciary act of Congress, the legitimate legislative body representing the sovereign people, amending or replacing the 1789 Judiciary Act.

The wheel does not need to be reinvented inasmuch as this one has taken us a long way and we have learned a great deal along the journey although we are now at an absurd impasse where we have good reason to ridicule the Supreme Court for making a complete ass of itself under the influence of cracked pots in Congress. Those pots need to be mended and the judiciary reformed. Congress is in fact the sovereign lawmaking institution, and it should form a Constitutional Committee to review the judiciary, compare it with the systems of other advanced nations, and recommend reforms.

For example, the Constitutional Committee might recommend the appointment of a permanent independent Constitutional Council of rotating scholars and laypersons to review all bills for their constitutionality before they are passed into law.

The concept of the judicial review of constitutionality of bills after they are passed into law is rather peculiar to the United States of America, an institution without which, given the milieu of those formative days, we might have no Union.

Lawyers naturally reverence the court of final resort, which should not be mocked as it is now for its usurpation of power. Nevertheless, definite restraints should be put on the appellate power of their hallowed Court. That does not mean it should be completely emasculated. There would remain some cases for the reformed Supreme Court to review, chosen according to the common sense principle laid down by Sir Edward Coke in Dr. Bonham’s case in England, a principle sometimes cited by scholars as a precedent for the development of judicial review in the United States.

“[I]t appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void.”

Justice Coke did not have to be one of the most profound doctors of jurisprudence or have infinite wisdom to see how ridiculous was the Act of 14 H.S. requiring physicians practicing in London to be examined and obtain a license from the College of London even though Dr. Bonham happened to have gotten his doctorate degree from Justice Coke’s own alma mater, the University of Cambridge.

Since then other judges opined that judges existed to decide cases of law, and to do that they must interpret the law, thus adding common law to statutory law. That is to say that judges must say what the law is in order to apply it. Judges in the American colonies and in the fledging United States had the same opinion from time to time although they were reluctant at first to expound on it for fear of losing their jobs.

Still, it was not the practice for English courts to declare acts unconstitutional for that would constitute an absurdity. The constitution was unwritten, or rather was the whole body of law itself, with English civil rights preserved in various historical charters and bills.   The courts fought long and hard for independence from the sovereign. Parliament itself won the crown in fact although it was worn by the royal figure. The Law Lords of the House of Lords served as the highest appellate court of appeal until 2009. They now constitute the Supreme Court, and may not sit in the House of Lords at the same time, hence in theory making them independent of the legislative body. Only very important or complicated cases came before the Law Lords, and they did not have the express power to declare a law unconstitutional.

Our proposed Constitutional Committee may want to consider whether or not the best place for an appeal on significant constitutional questions is the legislative branch that forged the statute in question for one might think that institution would know best. In any case, pending the reform of the Court, it might suit the chief justice to send a memo to the clerks instructing them to not forward constitutional appeals to him unless the statute or opinion of the lower court challenged appears to be unreasonable, nonsensical, repugnant, impossible or disastrous to effect, or, in another word, absolutely ridiculous, all others to be returned with the advice to pursue the matter with the appropriate legislature.

The power of judicial review in the United States was advanced by John Marshall and successfully employed as a political instrument to regulate the various states, which were in fact called “sovereign” in the practically useless Articles of Confederation. Certain Amendments as to the civil rights were made to the Constitution in order to obtain its approval although some Founders figured everyone should know what their English rights were. It was the Tenth Amendment reserving powers to the states that became more than problematic when the Southern states felt the dominant Northern states were encroaching on their federal constitutional guarantees with tariff and slave bills.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Almost every fifth grader selected for a TV quiz show knows that Virginia and Kentucky and then South Carolina resolved to nullify what their state legislators felt were unconstitutional federal statutes violating the civil rights of their citizens and thus were destructive of their society or economy. The most offensive of the Alien and Sedition Acts would be repealed, and a compromise was had with South Carolina on the abominable tariff, yet the rebellious spirit persevered, especially over slavery, winding up in secession, the defeat of the Confederate States, and reunification.

The notions of all kinds of reserved states’ rights wound up being determined and winnowed down by the supreme federal institution, the unelected Supreme Court, until there is hardly anything left of a plurality.   Today we hear the President and his colleagues say that certain things they do not like such as health care, abortion, and gay marriage, and union contributions law “should be up to the states.” Naturally laws they like should not be up to the states. Wherefore they would stack the court accordingly.

So perhaps a woman could get a divorce and an abortion and marry a woman on the same day in a particular state, or none of the above in another. And one can image the constitutional objections that would naturally be brought to the disparities between the states, especially by the poor woman who could not afford to get to Nevada let alone pay for the services.

It is feared that the president’s selection of a candidate, seen smiling smugly beside his pious, better-than-thou vice president, would roll back liberal advances in judge-made law, to conserve, for example, the primitive principle that men should own women’s bodies. The debate itself may move the candidate, if he is confirmed, to let the precedent stand. If he does not, the voters may revolt against his benefactors in the Senate and White House.

Abortion is always a hot button issue. Unions have lost their allure. Their bargains with government do not seem to help the worker that much, and tend more or less to put labor under tyranny of two governments, which seem to have collaborated to his or her disadvantage in the case of public unions. Recently the organized teachers of several states rebelled against pathetic wages, and they received a pittance for their trouble.

Union dues are a financial burden. Some right-to-work states required non-union members to pay their fair share of the purported benefits of collective bargaining. That was perfectly constitutional for decades according to a Supreme Court precedent recently upheld by 4:4 split due to an unfilled vacancy on the court. Everyone expected the precedent to be overturned with the appointment of an ideologue to that seat, and it was indeed duly overturned as expected by virtue of an informal political quid pro quo furthering the corruption of the court.

Mark Janus had been found willing to buck the system in Illinois and to say he did not like to contribute the cost of his share of the benefits of collective bargaining, so the lawyers had a field day with the constitutional right of free speech. “Under Illinois law,” pronounced Justice Alito on June, 27, 2018, in Mark Janus v. American Federation of State, County and Municipal Employees et al, “public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. We conclude that this arrangement violates the free speech rights of non-members by compelling them to subsidize private speech on matters of substantial public concern.”

“Matters of substantial public concern” are what the power elite including its press determines them to be, otherwise the cases will not see the light of day. For example, when I asked for an important Florida case to be put online so persons interested do not have to travel to the courthouse to review it, the chief justice of that circuit informed me that the mainstream press determines what is significant enough to publish online. The judiciary obviously does not want the public to be concerned with the everyday behavior of courts that potentially affects it because it might be shocked by what goes regularly transpires. Rights such as free speech are not absolute when free speech is against the public interest. Speech may be restrained when selling three-dimensional programs to print unregistered guns will result in chaos or the anarchy desired by the seller.

Mark Janus could have had recourse to the Illinois legislature, but no, he must have been so outraged at a few hundred dollars of deductions every year from his salary that his lawyers needed to make it a judicial issue and appeal it to the highest court, politically prepared to rehear hear it, an appellate process that might cost more than a million dollars in legal fees for reputedly excellent lawyers if the plaintiff cares enough to pay out of pocket.

Several proposals have been made to get around the loss of funds unions are expected to suffer because non-members like Janus do not want to pay for the benefits whatever they are. I propose that the states offer no benefits negotiated by the unions to non-members, leaving persons like Janus free to speak for himself or through an agent when applying for a job. That process would eventually create a free market price for the functions so fervently desired by economic libertarians.

The Governor, Attorney General, and Chief Justice of the Supreme Court of Hawaii, for example, are not going to proclaim the Janus decision null and void within the boundaries of the state. No, Nullification and Secession do not work well. The oppositional Nullification theory advanced the wheel of Sisyphus from horizon to horizon. The consensus medieval theories are inapplicable today. (3)

But our Constitutional Committee should examine nullification ideology along with the “concurrent majority” reasoning of such Nullifiers of John Calhoun, former Secretary of War, Vice President and Senator, and other Nullifiers such as Robert James Turnbull (‘Brutus’).

Calhoun was raised by a slaveholding dad, and he saw firsthand how decently slaves were treated. He, like the descendants of Hawaii’s plantation owners, claimed that life was much better for plantation slaves than for free workers. (2)

We are well aware of the pathetic condition of workers during the industrial revolution. Unions would be crucial in gaining relief from that virtual slavery. Conservatives blinded by their obsolete tradition and fear for their fortunes would like to roll back some of those gains, and the oligarchic Supreme Court would allow them to bypass the elected legislatures.

Notwithstanding a few employee-owned and democratically managed firms, the place where Americans spend the most of their time is not democratic by any means. We see no whips and chains. There is enough time off for leisure to buy sufficient consumable goods to keep the ball rolling and clog the world with mountains of trash, junk and garbage in the process. Yes, the material life is better, much to the disadvantage of the spiritual life distracted as it is by entertaining commercials, but untold millions of people are wage slaves. I was appalled by what a black union leader who hated Jack Welch with a passion said to me in New York. I identify him as black because blacks have a right to use the denigrating term: he claimed that technological workers are “technological niggers.”

Calhoun’s concurrent majority theory may remind one of the complex geocentric planetary theory replaced by the simple heliocentric theory. Nevertheless, our Constitutional Committee may find some useful ideas therein. Sectionalism will always be as great a problem as individualism. A certain degree of latitude or liberty is required for unity.

The best argument against the Nullifiers was given by President Andrew Jackson, so his famous 1832 Proclamation penned by Edward Livingston should be considered too. He was not altogether fond of the judiciary, and remarked once that, now that the Court had pronounced the law, let it try to enforce it. The foremost Federalist, Alexander Hamilton, advocated judicial review although it was not adopted in the Constitution. He discounted the danger of tyranny that might present, saying a Supreme Court, lacking a sword, would be the weakest institution.

Not so, not now that blind obedience is the custom, and any challenge to judicial review is rebutted with, “Stare Decisis! Res Judicata!”

Wake up! What was once a useful habit is converted into a bad habit and is a disgrace to the nation.

Perhaps the embarrassment that our still great nation presently suffers will expose the ideological religions as inherently idiotic so that the representatives of the people can see, in this instance, that judicial review as we know it is obsolete, and then proceed to draft and pass a judiciary act that will put it in its rightful place.

Until then, the usual means will be employed by the population to get around the opinions of a disgraceful Court. Nullification theory will not do, for it is patently absurd inasmuch as it uses constitutional arguments to destroy the constitution. Simple disobedience to law was more successful than open efforts at nullification.  It is impossible to enforce all the laws on the books. A law unenforced is no law.

xYx

(1) John Calhoun, unpublished letter dated Sept. 1, 1831:

(2)  “Slavery is, instead of an evil, a good—a positive good… I may say with truth that in few countries so much is left to the share of the laborer, and so little exacted from him, or where there is more kind attention paid to him in sickness or infirmities of age. Compare his condition with the tenants of the poor houses in the more civilized portions of Europe—look at the sick, and the old and infirm slave, on one hand, in the midst of his family and friends, under the kind superintending care of his master and mistress, and compare it with the forlorn and wretched condition of the pauper in the poorhouse… I hold then, that there never has yet existed a wealthy and civilized society in which one portion of the community did not, in point of fact, live on the labor of the other” (John C. Calhoun, Feb 6, 1837)

(3) Unions are most powerful in the State of Hawaii. One might expect street protests over the Janus decision given Hawaii’s history and the belief of Native Hawaiians that their islands were stolen and the Kingdom forcefully overthrown by agents of the United States imperialism. Many natives were not very keen on working the invasive sugar plantations that supplanted the strips of land allotted to them under the kingdom. The demand for sugar resulted in the importation of virtual slaves, indentured servants, most of them from the East. Many of them stayed and struggled for many years to obtain civil rights, succeeding in large part because of their organization into unions.

Japanese Americans withstood insults and assaults, deprivation of rights, and even deportation during World War II, and they with their Asian colleagues and like-minded Caucasian notables were instrumental in the creation of the democratic organization for the state, one that the arch-conservative Malcolm Forbes denounced as “socialist.” Republicans are therefore a small minority. There are a few Republican true to republicanism and the democratic aspirations of the Party. Native Hawaiians with at least a rather small quota of native blood left wanted to create a tribe so they could enjoy the benefits of tribes on the Mainland. The majority of natives, however, believed that General Welfare under the Constitution is better than that provided by the Kings and Queens of Hawaii. The legislature was sympathetic to the tribal ideal. The issue was appealed to the U.S. Supreme Court on constitutional grounds, and that was the end of that.

Hawaii’s government and the public unions and the Democratic Party are one ball of wax in Hawaii. Yet Hawaii suffers like the Mainland. Average wages are not rising. Labor is being bled as usual much to the profit of the big corporations and other heirs to the remnants of the halcyon plantation days. The state like the rest of the nation is becoming more and more top heavy as the days pass.

Conservatives have good reason fear for their fortunes. Conservatism may be defined in terms of a general defense of social and economic inequality, with lip service given to free trade and competition, rather than an effort to uphold traditional institutions. Conservatism is an attempt then to maintain and augment power of the ruling elite by all means available including the resort to war in which the conservative leaders would rather not risk their lives in personal combat.

The underlying thesis of the Federalist or nationalist conservatives is obsolete today. It upholds and expands the contradictory vestiges of medieval tradition. It was authoritarian, centralized, a constitutional monarchy, the executive being limited by court of princes and republican estate. It placed emphasis on human imperfection, on Hobbes more than on Locke. It celebrated the organic society hierarchically organized with one head, the Supreme Court, supported by the propertied class.

The future of Hawaii as a cultural and financial treasure depends on the maintenance of the Hawaiian culture. We see sporadic demonstrations and memorials to the old kingdom from time to time, but no demonstration. The truth of the matter is that the natives are thoroughly assimilated.  Not only they but the haoles (white invaders) may have to move to the Mainland to support themselves and their families.

And with Janus there is no vehement protest in Hawaii. A libertarian nativist relocated from the Heart of America says there may not be much of an impact because unions will be forced to become more productive to survive. That might as well be said of many small business entities facing mammoth competition from the big corporations.

A member of the old haole elite who is intimate with some of the evils of the public unions rejoices on his gentleman’s estate that the Constitutional right to free speech has been upheld by the Supreme Court. He thinks it is sad that good teachers leave the state because of the low pay, but he suggests no solution whatsoever. The Supreme Court legislated the supreme law of the land, and that is that.

(4) President Jackson’s Proclamation

http://avalon.law.yale.edu/19th_century/jack01.asp

 

 

The Fake News on Supreme Court Appointments

Moi Downsize

ON THE FAKE NEWS ABOUT JUDICIAL APPOINTMENTS

13 July 2018

By David Arthur Walters
THE MIAMI MIRROR

There is indeed something “fake” about mainstream media “news” although not anywhere near as fake as the packs of lies drummed up by its detractors. Take, for example, reports of the confirmation drama looming in the United States Senate over President Donald Trump’s nomination of Judge Brett M. Kavanaugh to the Supreme Court.

The nomination is destined to be confirmed by a partisan majority intent on stacking the Court with judges partial to so-called conservatism. Thus it is expected to be an ideologically prejudiced appointment. Champions of democratic progress believe it will doom the nation to the loss of civil liberties previously concocted by judicial interpretations of Constitutional vagaries.

On 11 July 2018 the reputedly liberal New York Times devoted two front-page columns to the event, pronouncing it a “novel historical moment” because Judge Kavanaugh, coincidentally, is famed for his learned opinion that presidents cannot be subpoenaed to testify in criminal investigations although they may be impeached and removed from office for “high crimes and misdemeanors.”

A study of past impeachments indicates that a president may thus far be subpoenaed in criminal proceedings against him although he may not be prosecuted, convicted, and imprisoned while in office. If he is convicted by the Senate on the impeachment charge brought by the House of Representatives, then he might be, for example, prosecuted for conspiring with the Russians to corrupt the nation’s electoral integrity. It might be argued that that would constitute unconstitutional double jeopardy, an argument that would probably fail.

So the “novelty” here is the unspoken insinuation of a quid pro quo. The unwitting are led to infer that Judge Kavanaugh, in return for life tenure in a prestigious post, will collaborate with his like-minded colleagues on the bench, and declare that President Trump does not have to testify in criminal proceedings.

That is a piece of nonsense, for all he would have to do is show up and plead the Fifth Amendment right against self-incrimination, an act that certainly would not sully his already tarnished reputation. As he has correctly noted with some amusement, he could murder someone on the street and his populist base would support him.

So this “historically novel moment” is a trivial coincidence, a barely newsworthy footnote, an understatement to the effect that this conservative judge would bolster the conservative prejudices of his conservative colleagues, who would supposedly constitute a judicial majority favoring executive privilege or imperial presidency, one of the things that the Supreme Court was supposed to offset.

One might think that “news” should be genuinely novel to be called “novel” and momentous, otherwise it would be “fake news.” If the New York Times, which conservatives love to hate, wanted to devote half the print on its first page to the real issue, the paper would, in covering the attempt to render the Court a conservative tool, emphasize that the Court does not have the Constitutional power to declare legislation unconstitutional. In other words, although its decisions, on what is and what is not constitutional, have almost always been implemented by the executive and legislative branches, those “judicial reviews” are not provided for in the Constitution hence are unconstitutional.

Let that instance of judicial activism fly in the face of fake conservatives who profess Originalism if not Strict Construction yet would stack the Court with their own ilk so the Court’s unconstitutional decisions accord with their prejudicial ideology instead of impartial justice.

Ironically, one argument for allowing the Court to continue with judicial review is that it is a “weak” branch of government inasmuch as it does not have the means to enforce its opinions. That is left to the executive branch, which is supposed to obey Congress. In reality we have a variety of functions that evolved within a ball of wax.

Recall the evolution of the limbs of the tree, that what we call the Senate was once the King’s Court composed of nobles whose advice he might ignore if the feudal balance of power was in his favor, and that was tempered by commoners whose cooperation was needed to fund the royal campaigns. The monarch would eventually be reduced to a virtual figurehead in England. Parliament is supreme, and government is led by an elected cabinet that chooses a prime minister perfunctorily recognized by the monarch. New elections may be called if the government cannot get along. The judicial courts evolved and gradually won their independence. The court of impeachment and court of last resort was a judicial function of the House of Lords until 2009, when the 2005 Constitutional Reform Act creating a Supreme Court took effect. There is no written constitution but for the laws on the books. If there is a constitutional issue it must be resolved by Parliament in the form or repeal, revision, or new legislation. Its Members and the courts know well what the rights of all English citizens are.  They certainly recall the rights lords won against the tyranny of monarchs, and the various rights billed thereafter. Those rights may be found in several documents in case someone forgets, but hardly any Brit does.

So much for the mother country: sometimes mother knows best. By the way, the liberal anti-Federalists suspected the Federalists would deprive them of unwritten rights, so they demanded a written declaration of rights in the new Constitution, which were duly added as by-the-ways or amendments at the very bottom of the document.

We now have universal suffrage and a popularly elected president. That person may be a moron as long as he is a natural born moron, and he may stack his cabinet with highly credentialed bigots and other idiotic ideologues with the consent of a Senate majority sympathetic to their own need to maintain status as members of the power elite beholden to the vested interests that virtually own the country. A Senator might be a constitutional scholar, a professional politician, a lawyer, and so on, or merely a vulgar tool of the average mentality, a sort of people’s bully. Whosoever he is, he may be swayed by public opinion unless he is a sociopath at the head of a mob of gangsters whose crimes may or may not have been legalized by their peers.

A change of a very few words in our Constitution would protect the people from outrageous government by reverting the constitutional structure to a cabinet government led by an experienced politician of its choosing, a government that would be removed if it confidence in it is lost.

The United States “supreme Court” was conceived as a relatively independent branch of government that would balance the branches and protect the people from the executive and legislative functionaries. To say it is “supreme” is not meant to say that its power is ultimate or superior to the legislative and the executive powers. Rather, it is to say it is the last court of resort, and in some cases an original court, that determines whether or not government is abiding by legislation. That is not to say that it may legislate itself or declare legislation null and void although every court necessarily legislates because it must interpret whether or not general statutes apply in particular cases. The Constitution explicitly provides that it is merely an appellate court, and that its appellate power may be regulated and exceptions taken to its exercise. That exercise might take the form of judiciary acts.

So how did the Court become what Thomas Jefferson, who had praised it early on, a tyrannical oligarchy, after its decision in Marbury v. Madison?

We remember that the outgoing Federalist president, John Adams, with help from the Senate, stacked the courts with Federalist commissioners on his way out. The sealed appointment of Judge William Marbury, a wealthy Federalist supporter of President Adams, was not delivered on time by John Marshall, the outgoing Secretary of State, so when incoming President Jefferson refused to recognize Marbury’s appointment to Justice of the Peace of the District of Columbia because his own Secretary State, anti-Federalist John Madison, refused to deliver the appointment, Marbury appealed to the Court for its mandate confirming his appointment, claiming that the Judiciary Act of 1789 sanctified the sealed appointment even though it was not delivered.

John Marshall was appointed Chief Justice by that time. He was a Federalist himself, so one would not be surprised if his judgment would be biased against Marbury, but it was not, at least not entirely, for he feared for the independence of the Court at the time. That overriding concern led him to straddle the issue, leaving scholars to debate his reasoning ever since, some even declaring his argument patently absurd.

The Court determined that delivery of the appointment was not required by the Judiciary Act of 1789 that created the Supreme Court. The seal on it sufficed. Alas, however, for Marbury, because the provision of the Act allowing Marbury to assert his claim directly in the Supreme Court was purportedly unconstitutional. Marshall wrote that it was the duty of the Court to say what the law is, and, that there was inherent in the Constitution a bestowal of special power on the Court to review legislation and declare it unconstitutional. End of discussion.

But no intrinsic right of judicial review of constitutional law exists in the Constitution. The Constitution is a fulcrum of controversy based on experience. Crucial disagreement over the meaning of its fundamental language should be referred back to the people’s legislature or directly to the people. Nevertheless, the Court is unlikely to contradict itself to overturn its decision in Marbury v. Madison. That may be done by Congress. If that deed be declared unconstitutional by the Court, then the justices may be impeached or their opinion ignored.

We should not, however, treat judicial review so callously now that it is traditional, meaning it has evolved from historical needs according to the circumstances of time and place. Judicial review was unheard of until it was invented by American judges even prior to Marbury v. Madison. Some of those judges had their doubts if it was constitutional.

As every fifth grander is supposed to know, the Confederation of states was not working out well. A strong federal government was needed to unify the nation, so the Constitution was forged from the debate between Federalists and Anti-Federalists. The extent of sovereignty of the several states was not settled and may never be. Federal judges were naturally interested in conserving the federal nation, so we find a number of cases where they determined that state legislation was unconstitutional. John Marshall simply crowned the practice. Of course the tables would be turned to suit the occasion, and the Anti-Federalists in another situation backed judicial review while Federalists abhorred it.

States may in theory but not in practice secede from the Union. That much seems to have been proven by the Civil War. Yet the old struggle for state’s rights has not ended. President Trump would like to see Roe v. Wade and other Supreme Court legislation voiding state laws overturned. Let the states be sovereign in those matters. For example, a woman might get an abortion and divorce in Nevada and marry a woman within the week given the appropriate state legislation, yet that might be prohibited in her home state, where she might even be arrested for abortion and homosexuality.

So now the President would have the Supreme Court liberate states from infringement on their sovereignty. Is he a liberal or a conservative?

Why not have Congress simply withdraw the power of the Supreme Court to actively legislate from its bench, and depend on Congress to repeal, amend, and pass new legislation to remedy civil rights issues?

Or it would not be such a bad idea to have a Constitutional Council to review legislation and determine its constitutionally before it becomes effective, as in France, which has a written constitution?

Or we might have a constitutional committee of the U.S. Congress review legislation when unanticipated situations arise, although one might then wonder why the Supreme Court is not allowed to continue to perform that function since it might be more independent.

The ideological partisanship evident today makes it all too obvious that elected Senators do not desire a nonpartisan, impartial, independent Supreme Court. The President and faux conservative partisans want partial justice under the law. They want laws interpreted by dependent justices who swear to uphold the Constitution so they may interpret it according to their theological and ideological prejudices.

This curse on the public welfare may not be absolutely solved by judicial selection methods because justice involves the distribution of power hence is political, and every political animal is prejudiced to a certain extent in its own favor. We curse the judges and the politicians without realizing that they are the scapegoats for our own faults.

Whatever the form of government, public opinion rules in the end. It appears from the current divisiveness and the absence of good character and ethical leadership that not only the goats but millions of their kids might be run into the desert and sacrificed in short order.

We are indeed at a “historically novel moment.” The tension of this crisis may result in revolution wherein the principles of the French Revolution will be pressed forward. One sort of tyranny may soon be replaced by another, as is usual, or there may be progress from the current regression.

No, this is not a trivial moment. Novels are already being written about it. This is not fake news. Sad to say, it is a reality show.

xYx

The Satanic Principle in the Oval Office

Satanic Principle in White House Header

THE SATANIC PRINCIPLE IN THE OVAL OFFICE

By David Arthur Walters PRESS INDEPENDENT

22 June 2018

Regina von Halstadt, an old friend of mine, said she knew exactly what the words on the back of Melania Trump’s jacket meant on her visit to the immigrant children’s shelter.

“It meant what it said, that she does really not care if kids are separated from their parents who enter our country illegally, and I don’t care either.”

“But you’re a mother,” I pleaded. “You must sympathize with the kids and their parents. They are being treated badly in their home countries. It is cruel to pull kids as young as a few months old out of the arms of their mothers and put them in cages.”

“They are illegal, and that is that! If they do not like their own countries they should change them. We need to build the wall. Anyone entering this country illegal should be shot at the border or put in concentration camps and the kids and their parents should be sent to the showers!”

“Regina, please stop acting like a Nazi. Surely you don’t mean that.”

“Yes I do, and I do not want to talk about it anymore.”

“But Regina….”

“No!”

“I just want to say….”

“No!”

Needless to say, Regina is an ardent Trump supporter, and a black-and-white thinker to boot. With her, it is them or us, so let it be them.

“They” are anyone who does not look like “us.” So “we” must be a whiter shade of pale, preferably with blonde or red hair and blue eyes.

I have blue eyes, and Regina likes me to shave my head of its brown hair. She once remarked with some surprise, as she watched Fox News, the only news she said she can tolerate, that Afghan kids look a lot like us. In any event, Regina loves power and wealth without prejudice against race, color, creed and sexual orientation.

Of course I have changed her name, with apologies to anyone with that name who finds her views disagreeable. Yes, she is of German extract. Her rich, powerful and unfaithful husbands were of European extract. They beat the hell out of her from time to time, and they paid dearly for it in the end, making it worth her while in retrospect. She became a fundraiser for an organization that protects high-end women and children from abuse, then resigned and took up painting when the lesbian running the organization assaulted her in the restroom.

The liberal reader may wonder why I maintain a friendship with Regina. The truth of the matter is that Regina is really not evil. She is a fake racist, a walking self-contradiction, and she does not know it. She is actually horrified by the abuse of animals including human animals, and her self-defensive, icy attitude melts into sympathetic tears at the sight of a creature in pain.

My own moral fault is that I tend to like all sorts of people high and low. Yet I certainly would not like them if they were committing crimes against humanity such as sending unwanted people to the ovens, or if they were ripping kids from the arms of their parents and putting them into cages, as the president has sadistically done on behalf of his basest base simply to acquire more narcissistic supplies for his unreality show.

What troubles me most about President Trump, who is Regina’s champion merely because he is a Republican president, and that despite having traits that she despises in other men, is that he fathers the lies told by his sycophants, who regularly show the fig to the public.

Americans have become so practical that they think they can separate personal morals from public politics. As long as they get what they want, they do not care about the personal immorality of the politician. Let him lie and cheat at will, and never mind how mean he may be, as long as he serves their interest. But he who lies and cheats will lie to them and cheat them in one way or another.

I myself have a few conservative friends who support Donald Trump because they believe he serves their interest in conserving their status at the apex of the social pyramid, which they believe is their natural and divine right. They profess that Logos or Reason should preside over disagreements, yet they do not want to reason with friends who disagree with the character of their man in the White House in order to persuade them that immoral and unethical means have good ends.

Their excuse is that this man is just like everyone else. Therefore he is a representative man, as good and evil as any other. They end disagreeable friendships instead of persuading their friends that they are right. Why? Because they know they are wrong.

The satanic principle presides in the Oval Office at present. No one’s interest is secure when the father of lies is at the head of government.

xYx

 Graphic by Darwin Leon

 

Votre president est un faux imbécile!

 

Votre president est un faux imbécile!

By David Arthur Walters

MIAMI MIRROR

April 30, 2018

I believe that against ignorance, we have education. Against inequalities, development. Against cynicism, trust and good faith. Against fanaticism, culture. Against disease and epidemics, medicine. Against the threats on the planet, science. Emmanuel Macron

It may not seem of any great moment now, but historians will consider French President Jean-Michel Frédéric Emmanuel Macron’s April 2018 visit with U.S. President Donald J. Trump in Washington and his speech to Congress for centuries to come.

One theory posits that Macron “played” Trump like a squeezebox, making a blooming romantic fool of him.

“Beware of French bearing gifts,” it is said. The presidents accompanied by their first ladies used golden shovels to plant on the White House lawn an oak tree sapling from where the 1918 Battle of Belleau Wood took place in 1918. Two U.S. Army divisions along with British and French elements were victorious there against four German divisions; therefore Macron intended the gifted tree to symbolize the ties that bind France and the United States. The U.S. Marines celebrate the battle as a symbol of their superior courage. The commander of the fleeing French forces had advised the Americans to cut and run, and these memorable words were uttered in response: “Retreat? Hell, we just got here.”

Some jokes have been made about the sapling. One casts President Trump as a hypocrite because would not be so kind on the environment as the tree-huggers who love to hate him. Another joke casts the two presidents as lovers, and claims that love was lost after Macron went on to Congress to glibly denounce Trump’s nationalism, wherefore Trump, jilted, instead of tweeting his ire, emerged from his Hamletian lucubrations in the White House cellar to personally rip the tree out of the yard and order his bodyguards to cremate it, put it in an urn, and return it to Macron.

The planting itself was allegedly as symbolic as the tree. The roots were covered with plastic, and the sapling was immediately removed to comply with quarantine law to protect the other trees around the White House from a dangerous French moth.

That being said, another theory is that Trump was faking foolishness and feigning madness ever since he infiltrated the Republican Party to sleep with the enemy, plotting to arise one night to betray the Republicans by wreaking havoc for the Democrats.

“Votre president est un faux imbécile!” a rumor monger declared in social media after the U.S. president appeared somewhat stupefied by the overly affectionate ‘La bise” bestowed on him by Macron, a kiss deemed “beaucoup trop romantique” by homophobes.

But no, the President of the United States is not stupid. General  Charles de Gaul’s Memoirs may be found on his bed stand. Trump was undoubtedly calculating the political-economic benefits to be enjoyed by adopting the sapling president of France. For all his talk about making America great again by economically isolating it to wage tariff wars, there is nothing he enjoys more than trade deficits with political allies against terrorism, especially allies whose terrorism is legitimately organized into formidable military forces.

After all, what is not to like about a huge trade deficit? We get more stuff from them than they get from us, and they use our dollars as a world currency backed by the biggest guns, investing a great deal of it in America! Why, make a few threats, recite the Free Trade mantra, get the means to get a little more stuff to make America even greater! No, Trump is no fool, or so goes the rumor.

Macron’s speech to Congress was romantic indeed. It was presumably drafted by his wife and high school literature teacher, Brigitte Marie-Claude Macron née Trogneux. Her exemplary appearance proved that France has the most attractive females in the European Union, as is well known by gentlemen who surf the Web for nudes by country of origin. Beware of the feminist cougars, however: they can be hell on high heels after a martini or two.

Melania Trump, née Melanija Knavs, a world-class beauty in her own, Slavic right, looked rather grim herself under her broad-rimmed white hat, which rebuffed her husband’s attempt at La bise after he failed to get her a birthday present. Brigitte reportedly felt sorry for Melania because she is cooped up in a White House that The Donald has characterized as a “dump.” She had more freedom in Slovenia under Tito. Her dad registered as a communist as Slovenians were wont to do to advance their careers and obtain favorable housing.

France has denied Brigitte the official title of First Lady, but it is safe to say that it would behoove the First Ladies to hold a champagne, macaroon, chocolate and cheese soirée at Carlton Hotel in Lille sometime soon to discuss such matters as the relationship between feminism, communism and atheism, the role of bread and cake in revolutions, whether poudre de perlimpinpin should be legalized, whether the capitol of France should be removed to Lille and the railway system revised accordingly, and so on. Canard-Duchéne Brut champagne would mate well on that occasion with Trogneux macaroons, Léonidas Belgian chocolates, along with mimolette, morbier, maroilles, and roquefort cheeses. Moskovskaya Osobaya and Tito’s vodka would also be available for emergencies.

Naturally Macron, a history buff who was at one time a registered socialist, waxed romantically in Congress on the liberal side of the French-American relationship, refraining from mentioning certain antagonisms between French and English culture hailing back to the invasion of William the Conqueror. Witness thereafter the evolution of virulent nationalism and several wars between France and England, drunken brawls over Chaucer’s theft of French words, not to mention plagiarism of whole tales, and France’s attempt to purge English borrowings from its dictionaries.

As we know so well, the wars between European powers had to be fought over North America as well. Ten-percent of the inhabitants of the English colonies, advised well on property rights defined as the “Ground of Happiness” by the landed gentry, desired independence from the Mother country. Wherefore the convenient alliance with France, never mind the differences.

It is said that there exists a French democratic revolution within the American republican revolution, rendering the United States a democratic republic, a political hybrid that troubles ideologues to this very day.

Mind you, political philosophers are free to deny that the so-called American Revolution was a revolution at all, and to insist that it was just a changing of the guard with a few constitutional revisions in a constitution finally written down. Someday, hopefully, a few minor changes will be made in that constitution to restore cabinet government. As it is, a perversely elected president and his appointees may bring the nation to ruin. In any event, the rebels were so sure of their ancient English rights that they believed a bill declaring them would be redundant.

The French revolutionaries, on the other hand, wanted to overthrow an ancient regime of hierarchical privileges and establish a flatter or more democratic socialist government. That is why their declaration of rights was a real declaration while the Anglo-Saxon one was a mere reiteration of faits accomplis. French ‘liberty’ and ‘equality’ had a distinct French flavor relished by American visitors to Paris such as Thomas Jefferson, who claimed the Revolution was caused by Marie Antoinette, took a liking to French ideologie, or the French science of political reasoning fathered by Antoine Destutt de Tracy, and replaced Theology with Ideology at his beloved university in Virginia.

After all, the goal of political progress to a perfect civilization is liberty for everyone, at least according to the great French eclectic, Victor Cousin, who, thanks to the Prussians, had a significant effect on the philosophy of education in the United States. Of course he noted that progress requires the leadership of Great Men or dictators who embody the French revolutionary spirit, which is somewhat universal since Cousin ventured to Germany and stole a bowl of Hegel’s confounded soup.

Hegel was more than enthusiastic or “god-possessed” about the French Revolution before the Terror appalled him. The “Theos” he irrationally intuited was named Reason; to wit: the inscrutable god aka Logos that enlightened the globe from Paris. Indeed, the difference between the French revolutions and other revolutions so-called was that its rights were borne out of the head of Zeus by Athena instead of purchased or inherited as privileges.

Mind you that the faults of great men should be forgiven if not ignored, said Cousin, for the sake of progress to Liberty, especially after they are dead when statues are erected to remember them well. We may beg to disagree, and learn much by the faults lest history makes fools of us yet again.

Now people in France and the United States may wish for an exchange of presidents to suit their ideological prejudices, so some Americans would have Macron as President of the United States, and some French would have Trump as President of France. Yet there is little fundamental difference between the two presidents as one might suppose, nor between their people, and John Adams had a good point when he called ideology “idiotology.”

Socrates proved the wise were fools. We are all mongrels. The people of the United States and France admittedly have a fraternal relationship, so let Macron be the son of Trump, as foolish as that may sound.

xYx

Oak of Flagey by Courbet

Black Swan for Black and White Thinkers

Swan Header

Scene from Alexander Ekman’s ‘A Swan Lake’

MY BLACK SWAN

FOR BLACK AND WHITE THINKERS

BY

DAVID ARTHUR WALTERS

For Virginie

Money and not morals is what counts most of all in the United States. If you do not have it you are nobody of note, no matter what you do, and if you have enough of it you may become President of the United States, whatever you happen to do. Yet, no matter who you are, your days on this earth are numbered, and your number may come up as quite a surprise to you although the statisticians have taken your demise into account when devising their mortality and accidental death tables for the insurance industry. And there is a chance you might win the $500 million lottery.

Enjoy the day the best you can because, as a matter of fact, you may be gone tomorrow as a result of some random, unexpected event, say, a bridge collapsing on your head, a plane crash, or perchance a terrorist attack. And on a larger scale, there are natural disasters, and do not rule out a pre-emptive nuclear attack. The planet itself is not perfectly secure since it might be encountered by a comet. I think it was Voltaire who remarked that this planet of ours might be a speck of dust in the road to be unexpectedly flattened by the hoof of a passing horse. So a lot of good your money will do you then.

Yes, there are some events even statisticians may not predict no matter their theories and how much historical data they may have. Every schoolboy knows that the mathematician and scientist Charles Sanders Peirce thought that nothing was determined for certain despite the habitual behavior we observe as laws. Chance events beyond the scope of those natural laws might irregularly occur. That is, there is such a thing a chance operating in the universe, the theory for which is dubbed ‘Tychism,’ after Tyche, the Greek goddess of luck, who was known to the Romans as Fortuna. Peirce, needless to say, was not a conventional man, though he was a great logician. His advanced scientific perspective aroused the jealousy of colleagues. He made some unfortunate choices including an unrewarding investment. Although he was helped out by relatives and his great friend William James, the successful philosopher who marketed his Pragmatism brand of philosophy, he fell upon hard times before he died destitute.

More recently, a nerdish Lebanese immigrant and Wharton School grad by the name of Nassim Nicholas Taleb, who said he made enough “f*** you” money as a quant and securities trader to say “f*** you” to people, enlarged his small fortune by writing his best-selling book, The Black Swan. A so-called black swan or unexpected event, because almost all swans are white, had come out of nowhere to embroil Lebanon in war.

The same sort of swan might be to blame for financial crashes, the budding probability theorist proposed as he developed his Black Swan or reverse-probability theory into a nice day job for himself because he discovered that everyone including himself was incompetent when it came to predicting future market prices. An investor might as well hire a monkey to throw darts at a list of securities than trust his money to experts, but without those experts there would not be a secondary securities market.

I like Taleb. He preferred to study instead of pursuing an infinite number of dollars. Indeed, he said he was ashamed when he engaged in the pursuit of wealth. The “inelegant, dull, pompous, greedy, unintellectual, selfish, and boring” business world literally disgusted him. Journalists “cluster” around the same subjects. Everyone consumes the same “news,” the last thing one should do to know what is really going on; the more news consumed the less the cookie-cutter society knows about things except for things of “dubious value.” The “achievers” in suits who do not read books and who become more sycophantic the higher their income are even more ignorant than cab drivers because cab drivers know they are ignorant.

He was so ashamed of his business that he did not want to tell people what he did for a living:

“When people at cocktail parties asked me what I did for a living, I was tempted to answer, ‘I am a skeptical empiricist and a flâneur reader, someone committed to getting very deep into an idea,’ but I made things simple by saying I was a limousine driver.”

A flâneur was an 18th century artistic character or literary type who wandered Paris incognito without purpose, a random walker absorbed by the crowd although detached and somewhat cynical while experiencing the urban environment. He becomes blasé and disappears as the city is transformed into a modern capitalist hub and he into an insatiable shopper hypnotized by window displays. The whole of France may be said to heading in that direction as it is losing its distinct character to the European Union, much to the horror of Virginie in Nord France and millions of other French people.

I was an anachronistic flâneur some years ago, randomly walking the streets of New York City as its distinct neighborhoods were gradually being absorbed by big stores. In fact, my life has been a random walk. I knew people were supposed to have goals in order to succeed, and success was determined by wealth, by the things and people one owned, but even as a young boy I rebelled against “being somebody” in that bodily sense.

No way was I going to have goals and plans. When I was a little boy I was angered when people asked me “what” I was going to be when I grew up. Why should be other than “who” I am? I ran away from home for good two weeks after I turned thirteen years of age, and proceeded to wander the streets of Chicago. I was lucky that I was a tall boy who loved to read and seemed intelligent to others as I eventually lied my way off the mean streets into steady employment, falling, by chance, into office jobs, and, ultimately, into accounting, where I, ironically, used some common sense I had picked up as a kid in Kansas and my Chicago street smarts to help my employers devise plans to achieve goals.

I might have done very well if I had taken my own advice, but I was not interested in success, except perhaps to be the greatest author the world would ever or never know. As it is, I am what one might call a successful loser, an idler who loves to think about what others do and to write about it in my own way. I guess I am, like Taleb, a flâneur. I was on a random walk. I ventured to New York City from Chicago and took a liking to it because the drinking age was 18 back then. Turned down for a job on Wall Street because they found out I lied about my formal education, I randomly walked around, and chanced by the construction site for the World Trade Center. I was angry that my application was rejected, so I cursed the pit upon which the twin towers would be set. I knew I would have performed as well as the college grads if I had been given a chance to analyze businesses and pick the best securities to invest in. I did not know at the time that the market was on a random walk, and that a monkey with darts could do as well as the average expert.

If I had been hired that day, I would have enough “f*** you” money to write a Black Swan book! As it were, I crunched numbers, was luckily paid well for that, and otherwise applied myself to reading and the theatre arts, i.e. dancing, singing, and acting, dance being my favorite because it allowed the animal to express itself, without a goal in mind. My studies were as always at random. It appeared to me that everything was connected, that one could start with any detail within the book of life and tell quite a tale no matter how pointless it might be to sharpened pencil heads. Theoretically, dancers who actually dance instead of just doing technique make good writers because they are exhibitionists, and writing is thinking out loud.

Now the problem with the exercise of my aimless avocation in the city was that it was difficult to explain and seemingly absurd to everyone with plans and goals. Even after I ventured to Hawaii to marry and lead a straight life, my wife had difficulty explaining what I did for a living although I did well enough financially thanks to a German wheeler-dealer whom I helped make millions in real estate.

“What do you do for a living?” had required a short answer in Manhattan, especially when asked by beautiful Jewish American Princesses on the West Side, and I, like Taleb, preferred not to identify myself with money grubbing! I was, after all, a flâneur, if you please.

“Once, on a transatlantic flight,” wrote Taleb, “I found myself upgraded to first class next to an expensively dressed, high-powered lady dripping with gold and jewelry who continuously ate nuts (low-carb diet, perhaps), insisted on drinking only Evian, all the while reading the European edition of The Wall Street Journal. She kept trying to start a conversation in broken French, since she saw me reading a book (in French) by the sociologist-philosopher Pierre Bourdieu—which naturally, dealt with the marks of social distinction. I informed her (in English) that I was a limousine driver, proudly insisting that I drove ‘very upper-ended’ cars. An icy silence followed, and, although I could feel the tension, it allowed me to read in peace.”

That particular paragraph convinced me that Taleb is a kindred spirit. I would rather study than work, and study on my own at that. I do not write for money, I write to live, to avoid the end. I do not begrudge people their wealth, their escapes into matter no matter how professional. Whether I like it or not, man is a goal-seeking animal, and the goal of life is to avoid the goal fated for all things, with the possible exception of fundamentalist Christians.

I am too engaged in writing to market my work, and that does not matter. People ask me what I do for a living, and I just say I am retired, because if I say I am an author, they want to know right away if I have been published by major publishers. If not, I am immediately demoted, albeit politely, and find myself treated disrespectfully. Whatever happened to the importance of Being over Doing?

The woman on the plane who wanted to know what Taleb did for a living may have just been curious, or perhaps she just wanted to pass the time in conversation, which is most likely. He did not say how many rings she had on her fingers. According to my favorite songstress, Alicia Keys, a Real Man will know A Woman’s Worth and lay some diamonds on her.

Look, I took courses on the street in the school of hard knocks. I am not one to go around calling women prostitutes for renting their bodies when men are engaged in renting out their souls as well. People naturally want power, status has power, and wealth today buys the highest status in the minds of many competitors.

I lived on the Upper West Side, where I habituated a popular restaurant and bar on West 79th Street called Wilsons, and I cannot remember how many times a women asked me “What do you do?” and did not get around to asking my name after I answered. Clubs like Wilsons were called “meat markets” by guys who cruised meat markets to meet women.

The ladies were on the hunt as well, and usually for something more permanent than a handsome hunk of meat. A qualified man should have a substantial income, therefore, “What do you do?” No matter how smart or helpful a man might be, his “character” is determined by his wealth and how “generous” he is with it. I actually saw many women take the tips their dates had left on the bar as they departed, the gentleman leading the way, of course.

I did not like to be pegged down. I experimentally lied to assess the reactions, and discovered that if I loudly said, “I am a surgeon,” almost every girl at the bar took inordinate interest. If I wanted to be left alone, perhaps because I did not like the girl I encountered, I would just say, “I am a file clerk,” and she would turn her back on me to talk to someone else.

Now there was a jazz lounge on Upper Broadway, in the Nineties, called J’s or Judy’s, I think, where some great musicians appeared. It was not a meat market, far from it, so I was surprised when a woman I was chatting with asked:

“What do you do?”

“I’m a file clerk.”

“Did you say a file clerk?”

“Yes.”

“Oh.”

“Not only do I file things, I retrieve them as well.”

“You are just what I have been looking for, in my business,” she said, handing me her business card. Would you mind coming to my office on Fifth Avenue tomorrow?”

SWAN Petersburg

I may relate what happened afterwards in a novel, where personal truths are always better told as fiction. Yet another version of Swan Lake might do.

Taleb is probably right about the Black Swan. Dark matter is invisible so its effects seem to come out of nowhere. He relates that people were walking about shocked and dazed by the unexpected “Black Monday” stock market crash on 19 October 1987 when the average of the index decreased 29.2%, a virtually impossible event according to the Efficient Market Hypothesis; the odds against that happenening at the time were 1 in 10 followed by 45 zeros. I noticed something strange about the mood on the sidewalk when I came out of the Fisk Building near Columbus Circle. I stopped by a bar and asked what was going on. The stock market had crashed! Thirty-three years after I observed the foundations being laid for the World Trade Center, the twin towers had tumbled down! Who would have imagined such a disaster was forthcoming?

Swan Natalie Portman Black Swan

Natalie Portman as White Swan in Black Swan movie

We can never make ourselves completely secure from the untoward events fostered by the Black Swan. She is supernatural. We find no instrument between her as cause and her effects. Note that the Black Swan can be a male even though males like to characterize the opposite sex as hysterical.

The Black Swan is within so may not be walled out. Taleb arrived with the virtue of an immigrant after he became an ascetic rebel in a luxurious Lebanese setting “with a vastly sophisticated lifestyle, a prosperous economy, and temperate weather just like California, with snow-covered mountains jutting above the Mediterranean. It attracted a collection of spies (both Soviet and Western), prostitutes (blondes), writers, pimps, drug dealers, adventurers, compulsive gamblers, tennis players, après-skiers, and merchants—all professions that complement each other….”

And then…. “The Lebanese ‘paradise’ suddenly evaporated…. A Black Swan, coming out of nowhere, transformed the place from heaven to hell.”

The only exception I might take at length to Taleb’s classical thesis is the association of catastrophes with color and gender. Some lucky people think success is entirely their own doing, while others confess that luck played a large part. Lady Fortuna has been called a bitch because she is faithful to no man or woman regardless of race, color, or creed. She can bring incredible luck as well as misfortune. Besides, the Goddess of Night conceals not only criminals but lovers.

Is the Black Swan, the “dark side” or alter ego of the American ego, its death instinct, soon to be its suicidal undoing? Will the “Platonic” boxes people think in come tumbling down? Is the American ‘paradise’ about to suddenly evaporate?

SWAN black stallion poster 1979

Black Stallion 1979

The subtitle of The Black Swan is ‘The Impact of the Highly Improbable.” The highly improbable is still probable. The problem is too complex for the computers to figure out. We might enjoy the day before meeting our maker. We might remove the motive for hate with love and stop looking on people as numbers to be manipulated. The Black Swan might then become our Black Stallion.

xYx

SWAN Black Stallion 1979