To support my arguments, I will first provide an overview of how the criminal justice system works. From there I will offer an analysis on why the criminal justice system is flawed, and the racially discriminatory effect it has had on society. I will then discuss why the disproportionate number of minorities found in prison and impoverished in this country is directly tied to the contemporary ruling interests that were preserved by the U.S. Constitution. Showing that the system is inherently discriminatory, I propose an alternative method for viewing society through anarchism. I will spend time debunking myths regarding anarchism and explaining why it is a viable ideology. In the end, I will propose a restorative justice approach to criminal justice that requires neither the state nor the legal system.

Overview of criminal justice system

In theory, the function of the legal system, and the state is to provide a structure that creates an environment for society that protects individual and collective freedom. The intention of the legal system then, is to provide an objective set of rules for governing conduct and maintaining order in society. In order to cover all potential conflicts, the law is divided into two forms: (1) civil law, which are rules and regulations that decide transactions and grievances between individuals; and (2) criminal law, which are rules concerned with actions deemed dangerous or harmful to society as a whole, and are prosecuted by the state.

Relevant to this paper, the criminal justice system is the method by which society deals with individuals who violate criminal laws. It is the means for society to “enforce the standards of conduct necessary to protect individuals and the community.”¹ This system is composed of three parts: (1) police enforcement of the law; (2) adjudication of potential violations; and (3) punishment/rehabilitation for criminal acts.

The state authorizes police officers to enforce the law and maintain order. This permission allows the police to arrest individuals, and use deadly force when the circumstances permit. Since police officers are allowed to use their discretion in determining when there has been a violation of the law, and when to use deadly force, they are trained to be capable of assessing the situations they find themselves in, and acting accordingly.

As a check on the power given to police officers, state prosecutors are responsible for determining whether the charges have substance, and if the individual’s case should go to trial. In the words of Michelle Alexander, the prosecutor has the most power of any other criminal justice official, and is the person that “holds the key to the jailhouse door.”² This adds a special responsibility for prosecutors, according to Chief Judge, Isaac Christiancy:

The prosecuting officer represents the public interest, which can never be promoted by the conviction of the innocent. His object like that of the court should be simply justice; and he has no right to sacrifice this to any pride of professional success. And however strong may be his belief of the prisoner’s guilt, he must remember that though unfair means may happen to result in doing justice to the prisoner in the particular case yet justice so attained is unjust and dangerous to the whole community.³

If a prosecutor determines there is enough evidence for trial, the individual will be charged with committing a crime.

At trial, the adversarial system is used. This means the prosecutor will present evidence, in addition to arguments, explaining why the defendant is guilty of the alleged crime(s), and the defendant’s attorney, who is either appointed by the state or chosen independently, will do the same, except explaining why the defendant is not guilty. All this is presented before a judge, and sometimes a jury, who are regarded as objective third parties, and are responsible for determining the guilt of the defendant.

If an individual is convicted of a crime, they enter into the custody of the correctional authorities. An example of the stated role correctional authorities and prisons play in the criminal justice system is exemplified by the Federal Bureau of Prisons, which “protects society by confining offenders in the controlled environments of prisons and community-based facilities that are safe, humane, cost-efficient, and appropriately secure, and that provide work and other self-improvement opportunities to assist offenders in becoming law-abiding citizens.”⁴ Prisoners can receive medical, educational, religious, and career assistance to achieve the stated edification goals. Prisoners can be released before fulfilling their required time in prison by being placed on parole, which means they are released back into society with certain restrictions on their freedom. Ultimately, the objective of the correctional authorities and prisons is to protect society from criminals, while also providing rehabilitation to them so that they leave prison better than when they entered.

In its entirety, the criminal justice system is structured to deliver justice in a fair manner that upholds the ideals America holds for itself.

The problem — the illusion

Despite the stated intent of the criminal justice system, there are clear, systemic problems with how it functions that not only call its existence into question, but also the legal system that produced it as well. At the core of the problem is the fact that “justice” is determined by the state, and not the individuals involved. Worsening this is the fact that the origin of the state was built on discriminatory ideals. This has resulted in a criminal justice system that does not serve the people, but works to maintain oppressive and discriminatory, governmental authority.

The victims and alleged offenders have little, to no, say in the determination of justice throughout the criminal process. The state replaces the actual victim as the injured party for trial, and seeks justice based on its own standards. Defendants are advised to remain silent, and to allow their attorney to do most of the speaking for them. In describing this phenomenon, Alexandra Natapoff, writes:

The United States’s criminal justice system is shaped by a fundamental absence: Criminal defendants rarely speak. From the first Miranda warnings through trial until sentencing, defendants are constantly encouraged to be quiet and to let their lawyers do the talking. And most do. Over ninety-five percent never go to trial, only half of those who do testify, and some defendants do not even speak at their own sentencings. As a result, in millions of criminal cases often involving hours of verbal negotiations and dozens of pages of transcripts, the typical defendant may say almost nothing to anyone but his or her own attorney.⁵ [...]

Defendant silence also has systemic implications for the integrity of the justice process. In our democracy, individual speech has historically been seen as an antidote to governmental overreaching. Criminal defendant speech is perhaps the quintessential example of the individual defending his or her life and liberty against the state. Yet silent defendants rarely express themselves directly to the government official deciding their fate, be it judge or prosecutor, and are often punished more harshly when they do. The justice system assumes that conversations between counsel and clients, and counsel’s own speech on behalf of clients, fulfill the personal needs of defendants as well as systemic requirements that defendants be “heard.” Yet most defense counsel are overworked, appointed counsel with insufficient time to spend communicating with their clients or fully exploring their clients’ personal stories.⁶

Together, the practice of “representation” does not form an honest quest for justice, since it silences the only individuals that are truly capable of determining it.

Although America’s legal system has determined that justice is most effectively administered through the adversarial system, the reality of the process shows that this is a contrived conclusion. The adversarial system relies on prosecutors to “do justice,” and for defense attorneys to be “zealous advocates” for their clients, relying on both sides to present their strongest arguments, so that a third-party trier of fact can make the best decision.⁷ This system relies on justice being equated with victory, which encourages both sides to be as uncooperative as possible with each other.

In living up to their roles as zealous advocates for their clients, and encouraged by the adversarial system, defense attorneys can employ a number of tactics to win cases, that do not help the trier of fact make an informed decision. In his essay outlining the problems with these tactics, labeled “aggressive defense,” William H. Simon, provides a few troublesome examples:

Defense lawyers sometimes have opportunities to draw out and delay cases, for instance, by deliberately arranging their schedules to require repeated continuances. This can have the advantage of exhausting prosecution witnesses and eroding their memories.

Defense lawyers are sometimes asked to present perjured testimony by defendants. They sometimes find they can benefit their clients by impeaching the testimony of prosecution witnesses they know to be truthful. And they sometimes can gain advantage by arguing to the jury that the evidence supports factual inferences they know to be untrue. [...]

Lawyers occasionally find it advantageous to disclose or threaten to disclose information that they know does not contribute to informed determination on the merits because such disclosure injures the prosecution or witnesses.⁸

While these tactics are permissible, each exemplifies how the adversarial system promotes the goals of the individual defendant over that of overall justice.

Prosecutors are also encouraged by the adversarial system to give precedence to winning rather than obtaining actual justice. As a representative of the state, prosecutors must be conscious of how the public perceives their decisions. To ensure this, almost everywhere in America, (except Alaska, Connecticut, New Jersey, and the District of Columbia) the job of chief prosecutor is determined by an election.⁹ To secure election, or reelection, prosecutors often campaign on how “tough” they are on crime, something that is usually demonstrated by the number of convictions a prosecutor has made. This equates convictions with justice, which consequently, creates an imbalance in the pursuit of justice, as it implies justice lies on the side of the prosecutor, by default, and not the defendant. In arguing that judges should not be elected, Justice John Paul Stevens said, “A campaign promise to ‘be tough on crime,’ or to ‘enforce the death penalty,’ is evidence of bias that should disqualify a [judicial] candidate from sitting in criminal cases.”¹⁰ The same argument can be made for prosecutors as well. Thus, in order to show proficiency, prosecutors are often encouraged to convict individuals. However, the argument that convictions equal justice is a fallacy. If this were true, the rate of recidivism would be decreasing, yet it is increasing. According to a 2006 report released by the bipartisan Commission on Safety and Abuse in America’s Prisons, within three years of their release, 67% of former prisoners are rearrested and 52% are re-incarcerated.¹¹

Assisting the “convictions = justice” belief are economic incentives that permit individuals and corporations to profit from the number of prisoners a jail has. This is commonly referred to as the “private prison-industrial complex.” Between 1999 and 2010, the use of private prisons increased by 40% at the state level, and by 784% in the federal prison system.¹² This rise correlates with an increase in revenues as well: Corrections Corporation of America and the GEO Group, the two largest private prison companies, made over $2.9 billion combined in 2010.¹³ Explaining how these profits have been spent, the Justice Policy Institute states, “[a]s revenues of private prison companies have grown over the past decade, the companies have had more resources with which to build political power, and they have used this power to promote policies that lead to higher rates of incarceration.”¹⁴ Thus, a cycle exists where private prison facilities influence the criminal justice system through political and economic means, encouraging the flawed belief that convictions equal justice.

The confluence of economic and political motives for obtaining more convictions has had tremendously negative effects on society, and has helped usher in a period of “mass incarceration.” According to the International Centre for Prison Studies, the United States has the highest incarceration rate per 100,000 people of the national population, than any other country in the world.¹⁵ A New York Times article described the situation succinctly, “[t]he United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners.”¹⁶

Furthermore, this period of mass incarceration has illuminated the racist character of America’s legal system. According to the Bureau of Justice Statistics, as of December 31, 2010, state and federal correctional authorities had jurisdiction over 1,612,395 prisoners, while a total of 7.1 million people were under the supervision of adult correctional authorities.¹⁷ Of the 1.6 million prisoners, 588,000 identified as Black, and 345,900 identified as Hispanic, representing 36% and 21%, respectively, of the prison population.¹⁸ This is alarming since, according to the 2010 U.S. Census, Blacks make up 12.6% of the American population, and Hispanics constitute another 16.3% of the population.¹⁹ Making the imbalance clearer, the estimated number of inmates held in custody in local, state, or federal prisons per 100,000 U.S. citizens, for Blacks, Hispanics, and Whites, respectively, is the following: 4,607; 1,908; and 769.²⁰ This means Blacks are nearly 6 times as likely as Whites to be in prison. Paul Butler writes:

Imagine a country in which more than half of the young male citizens [referring to Blacks] are under the supervision of the criminal justice system, either awaiting trial, in prison, or on probation or parole. Imagine a country in which two-thirds of the men can anticipate being arrested before they reach age thirty. Imagine a country in which there are more young men in prison than in college.²¹

The racial disparity is also present in death penalty cases. According to the Equal Justice Initiative, “[m]ore than half of the over 3300 people on death row nationwide are people of color; nearly 42% are African American. Prominent researchers have demonstrated that a defendant is more likely to get the death penalty if the victim is white than if the victim is black.”²² And according to Amnesty International, a 1990 report by the non-partisan U.S. General Accounting Office found, “a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty.”²³ As a result, the effect of criminal laws, their enforcement and prosecution, has disproportionately placed more Blacks and Hispanics in jail than in the nation’s history.

Causes for the discriminatory effects of the criminal justice system

The disproportionate number of racial minorities involved in America’s criminal justice system is not by chance, but intent, as it is a consequence of the racist and classist interests the U.S. constitution was designed to protect. Starting in the mid-15th century, after the violent acquisition of land belonging to long-established indigenous communities, Americans and Europeans engaged in the cruel transportation of over 11 million Africans for over 450 years.²⁴ The African slave trade helped build America into one of the most powerful countries in the world, but also created a patriarchal society that reified racial discrimination by the creation of racial identities. These racial identities were used by the rich, White elites to create artificial divisions amongst the masses to pit them against each other, and not their rulers. The Populist leader from Georgia, Tom Watson, in calling for racial unity, said:

You are kept apart that you may be separately fleeced of your earnings. You are made to hate each other because upon that hatred is rested the keystone of the arch of financial despotism which enslaves you both. You are deceived and blinded that you may not see how this race antagonism perpetuates a monetary system which beggars both.²⁵

The rich, white men that had obtained economic and political power throughout the colonies utilized the opportunity the Constitutional Convention provided to ensure their power was maintained with the formation of the new country. Writing about the findings of fellow historian Charles A. Beard, Howard Zinn writes:

Beard applied this general idea [that the rich must either control the government directly, or control the laws by which the government operates] to the Constitution, by studying the economic backgrounds and political ideas of the fifty-five men who gathered in Philadelphia in 1787 to draw up the Constitution. He found that a majority of them were lawyers by profession, that most of them were men of wealth, in land, slaves, manufacturing, or shipping, that half of them had money loaned out at interest, and that 40 of the 55 held government bonds, according to the records of the Treasury Department.

Thus Beard found that most of the makers of the Constitution had some direct economic interest in establishing a strong federal government: the manufacturing needed protective tariffs; the moneylenders wanted to stop the use of paper money to pay off debts, the land speculators wanted protection as they invaded Indian lands; slaveowners needed federal security against slave revolts and runaways; bondholders wanted a government able to raise money by nationwide taxation, to pay off those bonds.

Four groups, Beard noted, were not represented in the Constitutional Convention: slaves, indentured servants, women, men without property.²⁶

Summarizing the constitution then, Zinn writes:

The Constitution, then, illustrates the complexity of the American system: that it serves the interests of a wealthy elite, but also does enough for small property owners, for middle-income mechanics and farmers, to build a broad base of support. The slightly prosperous people who make up this base of support are buffers against the blacks, the Indians, the very poor whites. They enable the elite to keep control with a minimum of coercion, a maximum of law–all made palatable by the fanfare of patriotism and unity.²⁷

Those with power and influence, who had benefited from the use of slaves as a means of achieving economic and political power, helped ingrain slavery into their respective legal systems and cultures. Thus, representatives, especially from Southern states, had a strong interest in preserving slavery, and would not have agreed to join the union without a constitutional protection for it. This protection is exhibited by the original sections of the Constitution located at: Article 1, Section 2, Clause 3 (recognizing the “three-fifths compromise”); Article 1, Section 9, Clause 1 (permitting the continuance of the slave trade until 1808); and Article 4, Section 2, Clause 3 (protection for the Fugitive Slave Act).

While legislation to abolish the slave trade became law in 1808, some state governments enacted Black Codes, or laws to regulate the institution of slavery and to place further restrictions on the liberty of Blacks. The Supreme Court did nothing to abolish slavery, or the racist laws, in fact, it thwarted an attempt by some Northern states to limit slavery, through the Missouri Compromise, by nationalizing the practice with its decision in Dred Scott v. Sanford.²⁸ The issue of slavery ultimately contributed to the outbreak of the Civil War, and the eventual passage of the 13th, 14th, and 15th Amendments in 1865, 1868, and 1870, respectively (prohibiting slavery except as punishment for committing a crime, guaranteeing equal protection for all citizens, and prohibiting the denial of the right to vote based on race, respectively). However, the intent in maintaining a racially divided society persisted, as state governments implemented “Jim Crow” laws that segregated Blacks to a separate, and second-class citizenship. The Supreme Court again did nothing to repeal these laws until its decision in Brown v. Board of Education of Topeka over 80 years later in 1954.²⁹ The Civil Rights Movement followed in the 1960s and 1970s and helped remove many of the overt forms of racial discrimination the legal system and federal government had maintained, but regardless of these changes, legally sanctioned racial discrimination has endured. Now, it operates in covert and institutionalized ways that can be shown through the impact of governmental policy. The government’s “War on Drugs” has become the most recent, post-Civil Rights Movement policy to continue the racial discrimination and exploitation of minorities in America. While the term “War on Drugs” was initially used by President Richard Nixon, it was under the Presidency of Ronald Reagan when it became heavily enforced. The purported purpose of the “war” was to reduce the illegal drug trade, by implementing policies that discouraged the production, distribution, and consumption of illegal drugs. This included imposing restrictive penalties on an individual’s liberties for committing drug-related crimes (i.e., losing the right to vote, denial of public benefits), and harsher sentencing guidelines (i.e., “three strikes laws,” mandatory minimums).

Although the appearance of the effort appears racially neutral, its enforcement has had a clear racial bias. Terming the initiative the “New Jim Crow,” Michelle Alexander explains that, “[a]s of 2004, more African American men were disenfranchised (due to felon disenfranchisement laws) than in 1870, the year the Fifteenth Amendment was ratified …”³⁰ Illustrating the racial bias of this, Alexander continues:

This war has been waged almost exclusively in poor communities of color, even though studies consistently show that people of all colors use and sell illegal drugs at remarkably similar rates. In fact, some studies indicate that white youth are significantly more likely to engage in illegal drug dealing than black youth. Any notion that drug use among African Americans is more severe or dangerous is belied by the data. White youth, for example, have about three times the number of drug-related visits to the emergency room as their African American counterparts.³¹

Another indicator of the racial bias within the initiative can be shown through the difference in sentencing guidelines. In 1986, the U.S. Congress passed laws that created a 100:1 sentencing disparity for the possession or trafficking of crack, in comparison to the penalties for trafficking powder cocaine, which exhibits discrimination since Blacks are more likely to use crack than powder cocaine, a substance that is predominantly used by Whites.³² Compounding this further are the revelations journalist Gary Webb uncovered on how the Nicaraguan rebel group, the Contras, who were known for drug trafficking, were assisted by the U.S. government in distributing crack cocaine in Los Angeles, California to fund weapons purchases.³³ Thus, the undisguised racist laws and policies that targeted Blacks after the formation of the Constitution have continued, just in a less overt fashion.

The history of the plight of other minorities under oppressive laws and governmental policies should not go unmentioned. Latinos have been targeted through anti-immigrant laws, termed “Juan Crow,” that have had similar, but different effects on Latinos as Jim Crow did on Blacks.³⁴ Native Americans are also disproportionately represented in the criminal justice system since they are incarcerated at a rate 38% higher than the national per capita rate.³⁵ Muslims, especially after the September 11th events, have been subjected to racial profiling and surveillance by local and federal authorities, similar to how the Japanese, and Asians generally, were persecuted before and during World War II. Furthermore, the government’s practice of discriminating against groups based on racial identities is exemplified by its use of data obtained by the U.S. Census and the policies it has created.³⁶

Encapsulating the history of America’s legal system with the impact it has had on society, the conclusion can be drawn that it has successfully achieved the objectives its creators intended: a patriarchal, plutocracy ruled by Whites. The gap in equality on wealth, health, education, and employment between Blacks and Whites has continued to expand, further demonstrating the bias inherent in the construction of American society.³⁷ Thus, a new approach to how we live and interact with each other is desperately needed. One where our interconnectedness is valued, and where society nurtures everyone’s existence. This requires a culture that focuses on anti-oppressive structures, and has the goal of collectively liberating all people. Luckily, such a vision exists, and it is called anarchism.

Introduction to anarchism

The word “anarchism,” derived from the Greek root “anarchos,” means “without authority,” and according to the Encyclopedia Brittanica, its central ideals are freedom, equality, and mutual aid.³⁸ Despite this, in modern popular society, anarchism is surrounded by stigma and taboo, and invokes images of social chaos, in which terrorism is the prevailing means of establishing law and order, making anarchism seem both impractical and undesirable. However, through the fog of misperception and obscurity, lies a sociopolitical doctrine that challenges some of our deeply held assumptions on what the relationship between the individual and society can be, and calls us to work towards creating a truly free and cooperative society.

Behind some of the constructions of anarchism as a violent ideology are events that transpired between the years of 1890 and 1901. During this time period, individuals that identified as anarchists killed several ruling figures, including U.S. President William McKinley, King Umberto I of Italy, and Sadi Carnot, the President of France.³⁹ These are certainly extreme acts, but it is unfair, and too simple to ascribe these actions to all anarchists without an investigation into the circumstances surrounding each event, or consideration for the diversity of thought and tactics within anarchism itself. Such an investigation is beyond the scope of this paper, but suffice it to say, the use of violence, as a means to justify the ends anarchism seeks, is not a universally accepted tactic.

Another argument used to discredit anarchism is its perceived impracticality and lack of application outside of “non-primitive” societies. Generally, “primitive” societies are distinguished from modern societies because of an absence of an institutionalized government-like authority. Due to this distinction, “primitive” societies are considered irrelevant to discussions surrounding present-day social issues.

Anarchist anthropologist, David Graeber, provides an alternative lens to view this dichotomy through his book, Fragments of An Anarchist Anthropology.⁴⁰ Graeber writes that the popular American understanding of how human society has developed is that it has followed a linear path, beginning primitive and becoming more advanced and complex over time. Graeber explains that the anthropological record does not support this conclusion, using three egalitarian cultures, the Piaroa, Tiv, and Malagasy, as examples.⁴¹ Graeber writes:

… we [anthropologists] have been trying for decades now to convince the public that there’s no such thing as a ‘primitive,’ that ‘simple societies’ are not really all that simple, that no one ever existed in timeless isolation, that it makes no sense to speak of some social systems as more or less evolved.⁴²

Author Walter Cruttenden also takes time to dispel this myth, writing:

The leap was made: If Darwin had evidence that physical organisms adapt to fit their environment (evolve), then society, even over short periods, must evolve in the same linear fashion. In other words, if evolution existed in physical development, it must also play a role in societal and cultural development within humanity. This was very appealing to the intellectuals of post-Renaissance Europe as it justified a superior attitude toward less complex societies.⁴³

Everywhere in the world, it seems, archaeological digs are reshaping our view of the distant past. Not only are these findings revealing that civilizations were older than once thought, but they are showing that man was smarter and more progressive.⁴⁴

Based on this, Graber asks that we engage in a “thought experiment”:

What if, as a recent title put it, ‘we have never been modern’? What if there never was any fundamental break, and therefore, we are not living in a fundamentally different moral, social, or political universe than the Piaroa or Tiv or rural Malagasy? […]

Let us imagine, then, that the West, however defined, was nothing special, and further, that there has been no one fundamental break in human history. No one can deny there have been massive quantitative changes: the amount of energy consumed, the speed at which humans can travel, the number of books produced and read, all these numbers have been rising exponentially … The West might have introduced some new possibilities, but it hasn’t canceled any of the old ones out.⁴⁵

Without a basis for disregarding the social organization of “primitive” societies, anarchism remains a relevant sociopolitical doctrine.

While anarchism’s critics may concede that it is conceivable, they may still argue it is not the best way of structuring society. This position is exemplified by the thoughts of French Revolution thinker, Jacques-Pierre Brissot. Brissot, in denouncing his political rivals, the Enragés, accused them of advocating anarchy, warning that without the rule of law and government, there could be no way of delivering justice within society.⁴⁶ This sentiment is exemplified modernly in Paul Butler’s bold essay, “Racially Based Jury Nullification: Black Power In The Criminal Justice System.”⁴⁷ In Butler’s essay, he calls for Blacks to exercise jury nullification in particular circumstances as a way of protesting the unfair practices of the criminal justice system. Although Butler calls for the undermining of the legal system, he ensures that readers do not confuse his ideas as “encouraging anarchy” by explicitly stating so (“I am not encouraging anarchy.”⁴⁸ ). A logical assumption of Butler’s reasoning is that anarchy would be more problematic than reform.

Anarchism’s absence from mainstream America’s discussions should not reflect poorly on the ideals it promotes. In the opinion of anarchist author, John Zerzan, anarchism is about, “eradicating all forms of domination. This includes not only such obvious forms as the nation-state, … and the corporation, … but also such internalized forms as patriarchy, racism, and homophobia.”⁴⁹ “Domination” occurs in relationships where there is an unequal distribution of power, allowing the dominator(s) to exert their will over others. Being subject to domination causes mental and physical oppression, both of which obstruct human growth. For this reason, hierarchy is viewed negatively by anarchists, and instead, horizontal structures, dependent upon collaboration are encouraged. According to Anarchist writer, David Wieck, anarchism represents:

… a kind of intransigent effort to conceive of and to seek means to realize a human liberation from every power structure, every form of domination and hierarchy. Correlative with this negation is the positive faith that through the breakdown of mutually supportive institutions of power, possibilities can arise for noncoercive social cooperation, social unity, specifically a social unity in which individuality is fully realizable and in which freedom is defined not by rights and liberties but by the functioning of society as a network of voluntary cooperation. [...]

We are premising a society in which people have stopped living in fear of one another, in which gross violence, hatred, and contempt for life have become uncommon, in which alienation of person from person seldom reaches the malignant extremes to which we are accustomed.⁵⁰

Thus, anarchism does not advocate violence or mayhem, but rather calls for the liberation of everyone by removing oppressive social structures and practices from within our communities.

The vision anarchism has for society directly challenges a number of the core assumptions and principles held by mainstream America. For one, anarchists believe the current legal system and the authorization it provides for governmental and state power is both harmful and unnecessary.

In theory, the government is supposed to be of, for, and by the people, but the reality of its function has only ensured the existence of a ruling class, whose power and interests are perpetually preserved by the system of governance. David Graeber describes the state as having a dual character, where it is viewed as an institutionalized form of extortion by communities that seek to retain some degree of autonomy, while also appearing as a “utopian project in the written record.”⁵¹ Despite its idealistic aura, Peter Kropotkin writes that, “… Anarchists have often enough pointed out in their perpetual criticism of the various forms of government, that the mission of all governments, monarchical, constitutional, or republican, is to protect and maintain by force the privileges of the classes in possession …”⁵² Essentially, the power a community naturally has to rule itself, is given to a higher authority, the state, to govern on the community’s behalf. This opens the community to the abuses of power that result from hierarchical relationships. Additionally, the community’s reliance on the state to govern its affairs diminishes the community’s own power, making it, and its members, subservient to the state. This reliance on the state and the legal system creates an indirect way of resolving conflict. Rather than individuals settling disputes amongst themselves, they rely on impersonal laws to find a solution. To this point, Kropotkin writes:

[Quoting French jurist Dalloy] “… legislation is expected to do everything, and each fresh law being a fresh miscalculation, men are continually led to demand from it what can proceed only from themselves, from their own education and their own morality.” In existing States a fresh law is looked upon as a remedy for evil. Instead of themselves [the populace] altering what is bad, people begin by demanding a law to alter it.⁵³

Allowing officials of the state to fill positions of power and determine policy for the community is problematic for the following reason:

The notion of “policy” presumes a state or governing apparatus which imposes its will on others. “Policy” is the negation of politics; policy is by definition something concocted by some form of elite, which presumes it knows better than others how their affairs are to be conducted. By participating in policy debates the very best one can achieve is to limit the damage, since the very premise is inimical to the idea of people managing their own affairs.⁵⁴

As a result, communities that concede their power to the state, reduce their independence and freedom to determine the type of society they want to live in.

The relinquishing of community power to a state government is unnecessary because there is no reason to believe the state can perform better than the community could. Anarchists believe we are capable of practicing a natural form of justice amongst ourselves, based on our conscience and innate ability to reason with one another, without trusting the process to a hierarchical ruling class of professionals. Kropotkin explains the manipulative justification for law by saying:

Its origin is the desire of the ruling class to give permanence to customs imposed by themselves for their own advantage. Its character is the skilful commingling of customs useful to society, customs which have no need of law to insure respect, with other customs useful only to rulers, injurious to the mass of the people, and maintained only by the fear of punishment.⁵⁵

The anarchist belief equates “law” with ethics, and reasons that since we learn ethics from our families, friends, and other members of our community, our current governmental legal system is not required.

The permanence of a state authority comes under further questioning when its actual existence is probed. Graeber writes:

In fact, the world is under no obligation to live up to our expectations, and insofar as “reality” refers to anything, it refers to precisely that which can never be entirely encompassed by our imaginative constructions. Totalities, in particular, are always creatures of the imagination. Nations, societies, ideologies, closed systems… none of these really exist. [...]

This is not an appeal for a flat-out rejection of such imaginary totalities … It is an appeal to always bear in mind that they are just that: tools of thought.⁵⁶

Thus, part of the state’s existence and legitimacy is due to the mental recognition we assign to it. If everyone were to shift their thinking to a worldview in which the state was undesired, and instead, looked to live without its authority, the state’s power and existence would be critically undermined.

The primary reason we acknowledge the authority of the state is its ability to use force as a means of enforcing compliance. This means anyone who breaks the law can have their liberty taken from them, or be killed by state officials. Sociologist Max Weber, describes the state as, “ a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.”⁵⁷ On the issue of force and violence, Graeber writes:

… violence, particularly structural violence, where all the power is on one side, creates ignorance. If you have the power to hit people over the head whenever you want, you don’t have to trouble yourself too much figuring out what they think is going on, and therefore, generally speaking, you don’t. Hence the sure-fire way to simplify social arrangements, to ignore the incredibly complex play of perspectives, passions, insights, desires, and mutual understandings that human life is really made of, is to make a rule and threaten to attack anyone who breaks it. This is why violence has always been the favored recourse of the stupid: it is the one form of stupidity to which it is almost impossible to come up with an intelligent response. It is also of course the basis of the state.⁵⁸

Consequently, the manner in which we allow the state to enforce compliance to the law is comparable to the rhetoric the American government uses to demonize “terrorist” groups and the countries labeled as their supporters. If terrorism is something we collectively admonish, our next step is to be honest in our introspection, and overcome the glaring contradiction that surrounds us.

Despite the state’s monopoly on the use of legitimate force, it still only exists because we acknowledge it to. To live in a truly cooperative and free society, we must be willing to let go of our reliance on the external state and legal system, and begin to engage each other on a local basis, and take full responsibility for the structure of our communities and neighborhoods.

A new way forward — a restorative approach to justice

The current legal system’s fundamental purpose is to resolve conflict. However, the power to determine resolutions is given to individuals that do not have an interest in the matter, and prevent the individuals involved to determine their own form of justice. Additionally, obedience to this system is enforced under duress. Rather than using force to achieve compliance, the anarchist approach to resolving conflict is voluntary, and believes justice can only be determined by the involved parties through dialogue. A justice system based on these principles exists, and is called restorative justice.

Restorative justice is a form of conflict resolution, used by different indigenous groups throughout the world, to settle disputes between individuals. According to a restorative justice co-director of facilitation, Matthew Johnson, “[r]eliance on the state to achieve justice or security goes against the idea that people are fully equipped to deal with their own conflicts — an idea that is at the core of restorative justice principles.”⁵⁹ In contrast to the current criminal justice system, where the state is viewed as the primary victim in criminal acts, and victims, offenders, and the community are given passive roles, restorative justice views crime as being directed against individual people.⁶⁰) This means conflicts and disputes are settled entirely by members of the community. The framework restorative justice uses, allows it to be applied in any circumstance in which a conflict is deemed to exist. At its core, it is a form of community justice that recognizes the interconnectedness of communal living, and that harm and conflicts are symptoms of communal inadequacies. Therefore, if everyone’s needs are being met, then consequently the causes for conflict are prevented.

Howard Zehr, a leading advocate and visionary for restorative justice, says that it has three primary pillars: harms and needs, obligations, and engagement.⁶¹ In regards to harm, Zehr writes, “[w]hile our first concern must be the harm experienced by victims, the focus on harm implies that we also need to be concerned about the harm experienced by offenders and communities.”⁶² The restorative approach tries to uncover the causes of conflicts in a manner that respects the perspectives of the people involved. Behind this is the belief that conflicts are created by misunderstandings and needs not being met for individuals. This method prevents individuals that have caused harm from being vilified, which encourages others to participate, and also reveals any inadequacies within the individual’s community.

The second pillar is that restorative justice “emphasizes offender accountability and responsibility.”⁶³ This means, rather than sending offenders to jail, they confront the people that have been harmed by their actions, and take responsibility for rectifying the situation. Offenders are permitted to tell their side of the story, but must also listen to how and why their actions led to the harm. Then together, the individuals work towards an agreeable solution. All this fits within the third pillar of engagement, which suggests that the primary parties affected by crime be given significant roles in the justice process.⁶⁴ An example of how the process works is as follows:

We [an organization that coordinates restorative justice conferences] would get a referral, call each principal actor in the conflict, interview them carefully and empathetically…making sure they are aware of the process as well as their own feelings…and get their consent to participate in the process. We would then repeat the process with everyone else involved and schedule a time that worked for everyone and an appropriate, neutral location. If it were a Victim-Offender Dialogue, it would likely take place at the correctional institution. The preparation process, where a trained facilitator would talk to each person individually, is generally the most important part and will determine the success of the conference. At the end of the conference, dialogue, etc., the facilitator(s) would help the participants generate a consensus agreement, that might include restitution, an apology, community service, etc., and follow up with participants after an established amount of time to ensure that they were satisfied with the agreement and that it was being followed as agreed.⁶⁵

Thus, the restorative justice process function of compassionately helping individuals learn from their mistakes.

Restorative justice practices are gaining traction and being applied throughout the country in a variety of contexts, but its success and continued use is dependent upon a continuing shift in societal values, and the strengthening of communal ties.⁶⁶ In some instances, forms of restorative justice are being used in conjunction with the criminal justice system for misdemeanor crimes. Defendants are given the choice of pleading guilty and going through a process in which they admit guilt, and discuss what caused them to commit the crime, and are then required to perform community service. While this is a step in the right direction, the process still operates under the power of the state. Additionally, it creates a problematic incentive for defendants to plead guilty to crimes just to escape accountability. Accountability is important in ensuring justice through the restorative method, however, without the force of the state to ensure this, the question becomes, how can society hold people accountable for their actions? Matthew Johnson believes:

… that accountability comes naturally with community and interdependent relationships. We tend to not view ourselves as connected in Western culture; we see ourselves primarily as individuals. In this context, accountability is not as important as escaping blame or harm. However, if I value my relationship with you more than my own willingness to avoid pain/consequences, I will tell you that I broke your favorite possession, etc., because I would want the same done for me, and we are interconnected. Also, accountability comes much easier when there is no expectation of punishment. If I knew you weren’t going to sue me, hit me, or shun me for admitting my wrongdoing, I would have much more of an incentive to tell the truth and be accountable. The current criminal justice system, along with the capitalist economic system, assumes that we act within our own self-interests, and this is just the way of things. Therefore, we incentive behavior that maximizes self-interest. Yet we turn around and criticize people for being selfish, etc. The principles of restorative justice go against this paradigm. Its practitioners have a much less cynical view of humanity, but nonetheless it’s quite possible that RJ (restorative justice) won’t reach its full potential without a radical re-evaluation of societal values.⁶⁵

Thus, in order for restorative justice to operate in the anarchist fashion it is intended to, and be successful, there needs to be an evolution in the way we live our lives, and the way we view one another.

Conclusion

In conclusion, the racist, classist, hierarchical interests represented in the formation of the Constitution have created a legal system, and subsequently, a criminal justice system, that has consistently failed to administer true justice. Thus, a new approach must be taken, which will require us to stop relying on the current criminal justice system, and its oppressive laws to solve our interpersonal issues. The criminal justice system will continue to work the way it has, as long as we continue to consent and participate in it. If we collectively take a stand and withdraw our consent from the system, and instead redirect how we deal with conflict to a restorative approach, the criminal justice system will become irrelevant. In explaining “revolutionary exodus,” David Graeber writes:

The theory of exodus proposes that the most effective way of opposing capitalism and the liberal state is not through direct confrontation but by means of what Paolo Virno has called “engaged withdrawal,” mass defection by those wishing to create new forms of community. One need only glance at the historical record to confirm that most successful forms of popular resistance have taken precisely this form. They have not involved challenging power head on (this usually leads to being slaughtered, or if not, turning into some—often even uglier—variant of the very thing one first challenged) but from one or another strategy of slipping away from its grasp, from flight, desertion, the founding of new communities.⁶⁷

Critical for creating this new society is a belief that it is possible and that we have the power to do it.

It is time to reaffirm what is already ours and reclaim our individual sovereignty. It is time for our self ownership to be reaffirmed and lived out in life. It is a metaphysical fact that we own our bodies and minds. All other ownerships can be challenged and are transitory at best, but self ownership is undeniable and permanent as long as we are living beings. Therefore it is ultimately, indeed must be our decision as to how we will conduct our lives the only law that we must accept is to do no harm to others and to recognize and respect the personal sovereignty of the other as they must ours. Recognition and respect of every person’s individual sovereignty is the only way in which systems of mutual cooperation can be successfully developed and maintained. And indeed is the only law required for peaceful coexistence with the greater society. But it is not a law of compulsion like most laws, but is rather the natural state of things such as the laws of physics.⁶⁸

1. President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society, 7, (1967).
2. Michelle Alexander, The New Jim Crow, 86, (2010).
3. Hurd v. People, 25 Mich. 405 (Mich. 1872).
4. Federal Bureau of Prisons, (last visited Apr. 26, 2012).
5. Alexandra Natapoff, Speechless: The Silencing of Criminal Defendants, 80 N.Y.U.L. Rev. 1449 (2005).
6. Natapoff, supra note 5, at 1451.
7. Model Rules of Prof’l Conduct R. 3.8(a) (2008); Id. at Preamble, Scope, Terminology (2008).
8. William H. Simon, The Ethics of Criminal Defense, 91 Mich. L. Rev. 1703, 1704-5 (1993).
9. Ric Simmons, Election of Local Prosecutors, Ohio State University, Moritz School of Law, (last visited Apr. 27, 2012).
10. John Paul Stevens, Assoc. Justice, U.S. Supreme Court, Opening Assembly Address, American Bar Association Annual Meeting, Orlando, Florida (Aug. 3, 1996), in 12 St. John’s J. Legal Comment. 21, 30-31 (1996) (discussing need to improve quality of judges and espousing belief that judges should not be elected).
11. Commission On Safety and Abuse in America’s Prisons, Confronting Confinement, 106, (2006).
12. Cody Mason, Too Good To Be True: Private Prisons In America, 1, (2012).
13. Justice Policy Institute, Gaming The System: How The Political Strategies of Private Prisons Promote Ineffective Incarceration Policies, 12 (2011).
14. Id. at 2.
15. International Centre For Prison Studies, Entire world – Prison Population Rates per 100,000 of the National Population, (last visited Apr. 27, 2012).
16. Adam Liptak, U.S. Prison Population Dwarfs That of Other Nations, (last visited Apr. 27, 2012).
17. Bureau of Justice Statistics, Prisoners In 2010, (last visted Apr. 27, 2012); Bureau of Justice Statistics, Correctional Populations In The United States, 2010, (last visited Apr. 27, 2012).
18. Bureau of Justice Statistics, supra note 17 (first cite), at Appendix, Table 12.
19. Karen R. Humes, Nicholas A. Jones, Roberto R. Ramirez, Overview of Race and Hispanic Origin: 2010, Table I (2011).
20. Bureau of Justice Statistics, supra note 17 (second cite), at Appendix Table 3.
21. Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677, 690-1 (1995).
22. Equal Justice Initiative, Racial Bias, (last visited Apr. 27, 2012).
23. Amnesty International, Death Penalty and Race, (last visited Apr. 27, 2012).
24. British Broadcasting Corporation, Quick guide: The Slave Trade, (last visited Apr. 27, 2012).
25. Howard Zinn, A People’s History of the United States: 1492-Present, 291 (2003).
26. Id. at 90-1.
27. Zinn, supra note 25, at 99.
28. Scott v. Sandford, 60 U.S. 393 (U.S. 1857).
29. Brown v. Bd. of Educ., 347 U.S. 483 (U.S. 1954).
30. Michelle Alexander, The Age of Obama As A Racial Nightmare, (last visited Apr. 27, 2012).
31. Alexander, supra note 30.
32. Jim Abrams, Congress Passes Bill To Reduce Disparity In Crack, Powder Cocaine Sentencing, (last visited Apr. 27, 2012).
33. See Gary Webb, Dark Alliance: The CIA, the Contras, and the Crack Cocaine Explosion, Seven Stories Press; 2nd edition (1999).
34. Karla Mari McKanders, Sustaining Tiered Personhood: Jim Crow and Anti-Immigrant Laws, 26, Harv. J. on Racial & Ethnic Just., 163 (2010).
35. U.S. Commission On Civil Rights, A Quiet Crisis, Federal Funding And Unmet Needs In Indian Country, 68 (2003).
36. See Therese Beaudreault, The Race Categories On The U.S. Census: Representations of False Consciousness, (last visited May 6, 2012).
37. See Ajamu Dillahunt et al., United for a Fair Economy, State of the Dream 2010 DRAINED Joblessness and Foreclosed in Communities of Color; The Schott State Report on Black Males & Education. (last visited Apr. 27, 2012).
38. Encyclopedia Brittanica, Anarchism, (last visited Apr. 27, 2012).
39. Brittanica, supra note-38.
40. David Graeber, Fragments of An Anarchist Anthropology, (2004).
41. Graeber, supra note 40, at 65.
42. Id. at 41.
43. Walter Cruttenden, Lost Star of Myth And Time, 9 (2006).
44. Id. at 295.
45. Graeber, supra note 40, at 46-51.
46. Brittanica, supra note 38.
47. Butler, supra note 21, at 677.
48. Butler, supra note 21, at 20
49. Everythingology, Enemy of The State: An Interview With John Zerzan & Derrick Jensen, (last visited Apr. 27, 2012).
50. David Wieck, Anarchist Justice, (last visited Apr. 27, 2012).
51. Graeber, supra note 40 at 65.
52. Peter Kropotkin, Law And Authority, (last visited Apr. 27, 2012).
53. Id.
54. Graeber, supra note 40, at 9.
55. Kropotkin, supra note 52.
56. Graeber, supra note 40, at 43-5.
57. Max Weber, Politics As A Vocation, (last visited Apr. 27, 2012).
58. Graeber, supra note 40, at 72-3.
59. Email interview with Matthew Johnson, Co-Director of Facilitation, Conflict Resolution Center of Montgomery County (Apr. 26, 2012).
60. Mark S. Umbreit and Betty Vos and Robert B. Coates and Elizabeth Lightfoot, Restorative Justice In the twenty-first century: A social movement full of opportunities and pitfalls, 89 Marq. L. Rev. 251, 255 (2005). (This article provides a comprehensive breakdown of the variety of restorative justice models and their impact.
61. Howard Zehr, Little Book of Restorative Justice, 22 (2002).
62. Id. at 23.
63. Zehr, supra note 61, at 23.
64. Zehr, supra note 61, at 24.
65. Johnson, supra note 59.
66. Umbreit, supra note 60, at 261.
67. Graeber, supra note 40, at 60-1.
68. Consent Withdrawn, We Must Marginalize The State And Capitalism, (last visited Apr. 27, 2012).

The CBC examined support for the monarchy in an interview with John Fraser, master of Massey College at the University of Toronto.¹ Fraser wrote a book, The Secret of the Crown: Canada’s Affair with Royalty. The first question was about the book’s title: “Why Crown and not monarchy?”

A better question is why the assertion of “Canada’s affair with royalty”? There are plenty of polls done in recent years that indicate Canadians are apathetic or opposed to British royalty.²

Fraser replied, “I don’t think monarchy works here. No one talks about the Canadian monarchy and you never hear it, you don’t see it. But the Crown’s all over the place, on all sorts of things, so that seemed to me appropriate.”

The thing is that most Canadians do not see it as a Canadian monarchy but a British monarchy; this better suits monarchists since if Canadians knew the monarch of the UK was also Canada’s head-of-state (and a 2002 poll indicated that only 5 percent of Canadians knew the British monarch was Canada’s head-of-state), likeliest there would be increased pressure to, at least, Canadianize, the institution. A crown, however, merely represents a costly headpiece in the eyes of most people.

Fraser continues, “Also, we don’t really have a monarchy here. If we do I’d call it ‘monarchy lite.’ We’re not weighed down with the burden of court officers and that sort of thing.”

However, Canada is “weighed down” with the burden of paying for lieutenant governors, a governor general, and that sort of thing. Also, every time a monarch visits Canada, the cost is not cheap.³,⁴

Fraser says, “We have a constitutional system that seems to work quite well. It doesn’t weigh heavily on our shoulders.”

Whose shoulders? Try telling that to the Original Peoples who had no input into the British North America Act being forced upon them, who had too little immunity and military power to resist their lands being taken from them, and to resist the further encroachments into their lands today.⁵ The Crown represents an institution complicit in the dispossession of the Original Peoples of Turtle Island. Today, the “reserves” that Original Peoples live on are Crown lands, that is, lands belonging the Crown/state, not the First Nations.⁶

No need to fret over the present queen says Fraser: “She’s just the old lady of the House of Windsor, very faithful and loyal to the mandate and the burden she’s been given.”

Indeed, Elizabeth has the burden of being one of world’s wealthiest women,⁷ the burden of never having to do menial chores such as cleaning toilet bowls, sweeping castle floors, homecooking, etc. However, what kind of argument is that — being “just the old lady” — for having a privileged, foreign, unelected person being a head-of-state outside her own country?

Fraser: “One of the bits of fun about doing the book was looking at what I call the secret history because Canadian historians don’t like acknowledging the sovereigns.”

Why refer to them as “sovereigns” from a Canadian standpoint? Is Canada not a sovereign state?⁸ What kind of purportedly sovereign state allows another sovereign state to supply its sovereign? Is this not a contradiction? Furthermore, why should Canadians, whether historians or non-historians, “like acknowledging the sovereigns”? As for acknowledgement, there are plenty of geographical designations dedicated to the sovereigns, often eliding the designations used by the Original Peoples. For instance, I grew up in the Lekwungen settlement of Camosack that was renamed Fort Victoria (the Fort having since been dropped) after a monarch who never set foot on the soil, a monarch who was caught up in maintaining her empire.⁹ The monarchy is entwined in the history of Turtle Island; the genocide was carried out under the banner of monarchism and imperialism.

Fraser worries “… the monarchy will die if the government doesn’t support it. That’s what was happening, it was dying slowly through unbenign neglect. So the fact that the Harper government respects the monarchy and the Crown and has made sure that it had the right sort of outlets, I think is great.”

What is the reason that the Canadian government should support the monarchy? Is the monarchy deserving of respect? Does Canada support democracy or does it support monarchy? The two ideals are clearly antithetical. The Harper government, though, has abused the monarchy through the queen’s representative in Canada, to undermine democracy. In late 2008, when the three opposition parties planned to form a coalition to bring down the minority Conservative government (which governed as if it were a majority), Harper asked governor general Michaëlle Jean to prorogue parliament, and she assented.¹⁰

Fraser opines that deceased princess Diane’s “biggest bequest is those two boys, who are recognizable, contemporary human beings.”

They are two contemporary human beings born with the proverbial silver spoon in mouth. There are plenty of mothers bequeathing offspring to the world (and these mothers through their generous bequeathing — abetted in equal measure by fathers — are burdening the earth’s carrying capacity, but that is another topic). Why should William and Harry be accorded greater respect or privilege from society than the offspring of non-monarchial mothers? Either a society considers itself committed to genuine democracy and egalitarianism or it can drop the pretence and openly declare itself for class-based, non-democratic institutions.¹¹

The Massey College master holds that because no Canadian can aspire to be the country’s head of state: “It solves a lot of problems for a country like Canada. It removes it from being an issue.”

What wonderful logic. It is a logic that applies equally well to dictatorships, especially familial dictatorships. One would assume that Massey admires how the determination of the head-of-state in North Korea, Jordan, Syria, and Saudi Arabia among others is unburdened by the issue.

Fraser says, “It’s very useful to a fractious country to have succession of the formal head of state, which is under a notion of the Crown, solved for us. We don’t have to elect it or whatever.”

Who needs the problem of democracy when monarchy can solve it for us? Fraser seems ignorant or oblivious to the fact that the British (and Canadian) sovereign is a source of friction in Canada because the monarchy represents — to the chagrin or Schadenfreude — for many Canadians the British conquest of the French on Turtle Island.

Fraser asserts, “And the will of the people, in the end, is expressed by the sovereign, because if the vast majority of Canadians chose not to have the Crown, it wouldn’t exist.

That is just blatant assertion. There are just so many instances of “the will of the people” (and one assumes the will of the majority is meant) being disregarded by governments. If what Fraser claims is true, then why not back the bluster with a call to hold a referendum asking Canadians if they prefer the British head-of-state to continue as Canada’s head-of-state?

1. Daniel Schwartz, “Canada and the Crown: John Fraser on Canada’s affair with Royalty,” CBC News, 20 April 2012.
2. The Canadian Press, “Canadians apathetic about monarchy: poll,” CBC News, 28 June 2010.
3. “…C$1.5m (£950,000), excluding security – although that is much less than the $2.5m cost of the Queen’s visit.” Adam Gabbatt and Stephen Bates, “William and Kate visit Canada for canoes, campfires and cookouts,” Guardian, 30 June 2011.
4. The queen and prince’s visit carried a higher estimated cost. Whatever the final cost was, it was not cheap. See Citizens for a Canadian Republic, “Royal visit could cost taxpayers $1M or more per day,” Press release, 1 July 2010.
5. See many articles at “Original Peoples,” The Dominion.
6. “Specific Claim Settlements Involving Land,” Aboriginal Affairs and Northern Development Canada, Modified 15 September 2010. “A reserve is land that has been set apart for the use and benefit of an Indian [sic] band. … The federal Crown holds the title to reserve lands.” … “Less than 0.2 % of Canada’s land mass, 2.6 million hectares, has reserve status.” This is despite Original peoples being 3.8 % of Canada’s population. “Canada’s aboriginal population tops million mark: StatsCan,” CBC News, 15 January 2008. The Canadian state is attempting to municipalize the reserves and entrench fee-simple land ownership, dangerous to First Nation community interests. See Harley Chingee, “Individual property ownership on reserves,” Turtle Island Native Network, 20 July 2010.
7. Luisa Kroll, “Just How Rich Are Queen Elizabeth And Her Family?,” Forbes, 22 April 2011. “Queen Elizabeth, 85, has an estimated personal net worth of $500 million.” … “The Queen also receives an annual government stipend of $12.9 million.”
8. I refer solely to whether international institutions recognize Canada as sovereign. I do not delve into whether Canada is a legitimate state. Readers can decide for themselves whether conquest can legitimate the dispossession of an Indigenous people.
9. “Queen Victoria,” History.com.
10. “GG agrees to suspend Parliament until January,” CBC News, 4 December 2008.
11. See Kim Petersen, “Elitist, Racist, Religionist, Sexist, Inegalitarian: Canada’s Head-of-State,” Dissident Voice, 4 November 2003.

How times have changed since then with media monopolies lobotomizing news, the centralizing of newspaper and broadcast reporting which has created a corporate-protectorate, the looming death of independent publishers and book sellers, thanks partly to Amazon, and the evisceration of US mail delivery service, thanks to spineless Democrats, treasonous Libertarians and reckless Republicans.

In fact, much of the ugliness in the media associated with Limbaugh, Hannity, O’Reilly, Coulter, Beck and Murdoch and mainstream corporate press shills is just back to the future in this country’s media history.

Let’s flip back 400 years when the first rags, newspapers, called for the murder of the land’s aborigines, inciting the white aliens to take land, burn villages and crucify the “sculking” and “barbarous” Indigenous peoples and “rebellious Negroes.”

A new book, sort of a first-of-its-kind, takes the reader on that journey to end up here in today’s day and age of a democratic crisis largely created by who controls the media, how people access news and information, and what narratives our citizens are actually “consuming” and why those narratives are slanted, misrepresented or scrubbed altogether by the SCLM – so-called liberal media.
“It is our contention that newspapers, radio, and television played a pivotal role in perpetuating racist views among the general population,” write Juan Gonzales and Jose Torres in their new well researched and necessary book, News for All the People: The Epic Story of Race and the American Media (Verso, 2011).

What do Torres and Gonzales find out? The history of alternative presses – run by Indigenous peoples, Blacks, Latinos, and Asians – has all but vanished, even from the halls of journalism schools. The dig up this amazing history how the vile racism of Manifest Destiny and Empire building, and the supremacist beliefs of lawmakers, thinkers, clergy, and, of course, the editors of the white press did not always go unchallenged in a White-dominated society.

The stories are haunting, and our American history is replete with editors calling for the lynching of abolitionists, the burning and wrecking of alternative presses, and much of the motivation was embedded hatred toward Indigenous peoples, Latinos, and Blacks.

However, it’s clear early on in this book that the two Latino authors know history has repeated itself, constantly, when it comes to media and the Press: “Descriptions of ‘Sculking’ or ‘barbarous’ Indians were commonplace then, much as today’s news media use terms such as ‘wolf packs,’ ‘drug gangs,’ and ‘super-predators’ as monikers for non-white criminals…. Those early accounts thus establish a voluminous and entirely one-sided newspaper narrative: Native Americans were depicted as cunning, barbaric, and evil – and certainly undeserving of the vast lands coveted by the European settlers.”

There are so many magnificent stories in Torres and Gonzalez’ book, about brave editors trying to stop slavery through the pen and bully pulpit facing mobs, thugs, corrupt police and judges, and broken presidents.

This book is an essential read not only for journalists, students of media or those at the forefront of the Occupy Movement. This is our country’s history, scrubbed in many cases, of how people of color did fight the white color line with varying degrees of success.

It’s telling that many of the book’s jacket blurbs attest to News for All the People‘s groundbreaking resonance: “The historic inability of marginalized communities to control their own images has been devastating. News for All the People illustrates that this lack of control hasn’t been by accident. It’s a part of a greater story of media control and ownership that traces back to the creation of the United States. An essential read,” writes James Rucker, founder of ColorOfChange.org.

If it’s not already obvious to Real Change News readers, the point today is how those stories of the marginalized get into print or film or on TV or over the radio or Internet? Who controls the media? Books like People’s History of the United States by Howard Zinn, or anything written by Studs Terkel, or the work of Barbara Ehrenreich, in Nickle and Dimed, or the huge trilogy, Memory of Fire by Eduardo Galeano, that covers the entire history of the Americas, give voice to people of color, poor people, labor activists, civil society, slaves and those that revolted against tyranny of many types.

Unfortunately, we live in an age where media may have monopolistic might through the few corporations controlling what most Americans watch or hear to get their news:

• Disney (market value: $72.8 billion)
• AOL-Time Warner (market value: $90.7 billion)
• Viacom (market value: $53.9 billion)
• General Electric (owner of NBC, market value: $390.6 billion)
• News Corporation (market value: $56.7 billion)
• Yahoo! (market value: $40.1 billion)
• Microsoft (market value: $306.8 billion)
• Google (market value: $154.6 billion)

Gonzales and Torres go four centuries back to the present, making a clear case on how these marginalized people of color literally fought to get the funds and show the mettle to publish their papers. There were amongst them contradictions, to be sure. Many Indigenous editors held slaves. Some of the white Hispanic editors were proponents of “Indian Removal.” Some elegant cases, though, are part of that story Torres and Gonzalez give us. People like escaped slave Frederick Douglass not only employed black male writers at his newspapers, he was a feminist who employed dozens of female writers.

The authors give us the case of the Cherokee, John Rollin Ridge, a writer and novelist, who wrote a novel about Joaquín Murieta, the California so-called bandit, but who moved to California and founded the Sacramento Bee. Here is that paper’s first editor and publisher, an Indigenous person, who has virtually disappeared from history. He sold the paper to James McClatchy, one of his employees. McClatchy developed the Sacramento Bee into the flagship newspaper of the McClatchy newspaper chain.

Now this is what’s so superb about Torres and Gonzalez’ work – they find on the McClatchy website, their official history, no mention that a Cherokee was the founder of their flagship paper. “They make it seem like James McClatchy actually started the Bee. But it’s this kind of expunging of the actual history of African Americans and Latinos and Native Americans in the development of the American press that is what really—another major theme of our book is to resurrect that history and have a more inclusive history of how our press developed, that there were all kinds of folks who have played pivotal roles, and actually heroic roles, in the development of a free press in America that have been expunged from the official histories,” Gonzales said recently in an interview on Democracy Now.

Gonzalez co-founded Democracy Now in 1996; currently, this daily news show – The War and Peace Report – is on more than 950 TV and radio stations. Here’s Democracy Now‘s vision statement: “For true democracy to work, people need easy access to independent, diverse sources of news and information.” This ties into the under girder of the Torres/Gonzalez book.

As one of Democracy Now‘s founders, Gonzalez has codified his own 30 years working in corporate media and 15 years with Democracy Now into this seven-year book project with Torres, a journalist, a former National Association of Hispanic Journalists deputy director, and adviser for the media reform organization, Free Press.

To reiterate: News for All the People is a tribute to the powerful independence of Black, Indigenous, Latino, and Asian people in attempting to bring to their communities news and perspectives counter to the white supremacist, expansionist, and war-mongering system that stole hundreds of millions of acres of land from Indigenous peoples, Mexicans, and Tejanos. It is a criticism of supremacist editors who aided and abetted the lynchings and murders of not only Blacks, but Mexicans and Asians, and not just in some backwater on the Delta, but in the center of Los Angeles.

Gonzalez synthesizes why this project was galvanized in the first place during an interview on his own show, Democracy Now, speaking with Amy Goodman: “I never was able to clearly understand why our media system is the way it is. The American people love to hate the media, in terms of their constant frustration with how newspapers and television and radio don’t provide accurate coverage. But it’s especially true among people of color. African Americans and Latinos and Native Americans and Asians have always felt denigrated and somehow misrepresented, deeply, by the American media system.”

What is it to be an American? That question has been wrested away from all the “other” races and ethnicities and from those of the female gender, as well as all the people deemed “The Other,” who are not part of the white race, or part of the one percent, or part of the monied elite with the ears of judges, politicians and CEOs glued to their every word.

In many ways, this book, also traces with aplomb the history of newspapers in this country, vaunting the lives, struggles and voices of publishers and editors who stuck their necks out. Key to this book’s foundation and keen story telling is a deep look at the evolution of newspapers and the press in this country’s history before, during and after the country’s founding.

The very first newspaper on this continent was Publick Occurrences, founded in 1690 in Boston. This was a three-page sheet, the first newspaper, which was was suppressed by the Massachusetts Council after one issue, “because it had some provocative articles in it,” Gonzales said.

“And all of the articles were about the threats of Native Americans, except there was one positive article. And that was about how some Christianized Indians in Plymouth were giving thanks to God on Thanksgiving. But generally—and so, Publick Occurrences set the prototype for how race would be covered in America, because every newspaper subsequent to that, throughout the colonial period, a huge portion of the content of newspapers was for the settlers to know what the Indians were up to.”

This book is replete with the stories that have not just been printed on the back pages of history books, but in some cases disregarded – scrubbed – completely. Those people of color running and writing for the Press were in many cases also anti-war and anti-imperialist. Frederick Douglass was the editor of several African-American newspapers throughout his lifetime and the most vocal opponent of the U.S. war against Mexico (1846-48).

In his papers, Douglass was railing against this war on Mexico. Here’s a quote from one of his articles that appeared 18 months into the Mexican-American War: “We have seen for eighteen months, the work of mutilation, crime and death go on, each advancing step sunk deeper in human gore. By every mail has come some new deed of violence. Cities have been attacked, and the cry of helpless women and children has risen, amid the shrieks and agony of death and dishonor. The living have gone forth, and dead corpses encased in lead have returned. Thousands of widows and orphans have sent up to the heavens their pitiful wail… And yet all is quiet as under the most perfect despotism. There is no united appeal, which would make the rulers tremble; no thronging voices of petition, no indignant rebuke, no prayer, ‘Lord, how long?’”

Finally, News for All the People takes us into the modern era of Latinos, Asian, Indigenous peoples, and Blacks fighting for their own voices in media. They get into the debates about how free and open the Internet will stay, if it ever was free/open in the first place. Both authors are clear about the need for an alternative press and more debate and discussion of the news for and by the corporate war state.

“One of the things that we’ve uncovered is that this fundamental debate that is constantly occurring is: does our nation need a centralized system of news and information, or does it need a decentralized, autonomous system? And which serves democracy best?” González said. “It turns out that in those periods of time when the government has opted for a decentralized or autonomous system, democracy has had a better opportunity to flourish, racial minorities have been able to be heard more often and to establish their own press. In those periods of the nation’s history when policies have fostered centralized news and information, that’s when dissident voices, racial minorities, marginalized groups in society are excluded from the media system.”

This book will help contextualize how bastardized, propagandized and mean media outlets like Fox News or Clear Channel have become, how the limited number of publishers controlling a majority of printed materials is bad for democracy, and what gave rise to those pugnacious independent writers and alternative periodicals fighting to expose the government-corporate role in stifling debate.

In These Times, the Texas Observer, Mother Jones, ProPublica, The Nation, Truthout, Yes Magazine, Orion Magazine and Democracy Now, Dissident Voice, Counterpunch, Truthdig, et al. give us some hope that an alternative press – hence mainstream – will gain favor over the profit-driven drivel and war-promoting yammering going on in the white media.

(2). The second American Revolution has to follow the path laid out for it by the Constitution or else the first American Revolution will have been in vain.

(3). The Declaration of Independence called imperialism inherently illegal and the Constitution precluded its resurrection except, of course, pursuant to the Amendment Clause.

(4). The victims of imperialism, the foreign Nations and Indian tribes whose lands have been, are being or will be invaded were guaranteed the protection of the Supreme Court by direct application pursuant to the Constitution’s Original Jurisdiction Clause.

(5). Of course We the People of the United States are also victims, in two senses: in virtue of their birth they are being dragged into the role of perpetrators even though neither they nor the founders of the Republic constitutionally consented to the 19th century conversion to imperialism; and secondly previous empires always at some juncture have become tyrants over their own citizens who may protest or dissent, and this has started in earnest with the recent introduction of citizens’ military arrest and detention without trial under the provisions of the National Defence Authorization Act of 2011 signed into law by President Obama on New Year’s Eve.

(6). The reason a second American Revolution is necessary is, the Supreme Court obstructs and ignores such applications attacking the federal imperial statutes pursuant to which the government unconstitutionally assumes imperial powers to invade other than in self defence to repel invasions.

(7). The obstruction and ignoring constitutes treason and the Court must be persuaded or forced to do its duty publicly to address the crucial constitutional question of imperialism which, when done, will signify the success of the second American Revolution.

(8). Constitutional democracy under the rule of law will have been reinstated and, in consequence of it, the eco-genocide attributable to imperialism will be prevented.

(9). The explicit constitutional values of “Justice, Tranquility, Defence, Welfare and Liberty” for “We the People,” meaning all the People without preference for the imperialists, will be established and rendered secure by this second American Revolution: the peaceful, constitutional, rule of law one.

Justice as fairness is intended as a political conception of justice. While a political conception of justice is, of course, a moral conception, it is a moral conception worked out for a specific kind of subject, namely, for political,
social, and economic institutions.

– John Rawls (1921-2002)

PART 1. Pictorial Argument

There were many massacres of Indian peoples before the advent of photography. There is also a famous set of photographs regarding the event of December 29, 1890, known to Indians as the Massacre at Wounded Knee and to the United States government as the Battle of Wounded Knee. Some of these in conjunction with the moccasin telegraph taught a lesson not to be forgotten to the still-surviving illiterate tribes if North America: the end of times was upon them and the unity with which they identify. Some of the photographs are reproduced below. Please try to see them as they would have been seen and still are perceived by the Indian peoples, perhaps even before considering the text that accompanies them at Wikipedia, Wounded Knee Massacre.

PART 2. Written Argument

(1). The Declaration of Independence settled that one People has no right to possess another’s homeland or to dictate how the other shall govern itself, and the Constitution of the United States of America gave certain Peoples direct access to the Supreme Court of the United States to enforce that STRUCTURALLY-CRITICAL fundamental principle.

(2). Specifically, the Commerce Clause enacts Congress can regulate trade with “foreign Nations and Indian Tribes”, those being the two explicitly-identified categories of other sovereign Peoples organized as States for constitutional law purposes. The Defence Clause stipulates that their lands can not be invaded unless they invade the United States first. The Treaty Clause adopts the long established convention of public international law that ambassadors or other public ministers of sovereign states may, however, contract for rights of consensual entry into each other’s territory.

(3). The Supreme Court of the United States confirmed the continuity of the previously established international and constitutional law “doctrine of discovery.” It holds that indigenous Tribes are sovereign “States” for the purpose of the legal remedy of direct access to the Supreme Court, the same as foreign Nation type States; although, being “indigenous”, they are not “foreign”. Cherokee Nation v. State of Georgia (1831).¹

(4). As a matter of procedural law the direct application to the Supreme Court to declare void a breach by the United States of the principle of non-interference with the possession and government of the sovereign territories of other Peoples, i.e., foreign Nations and indigenous Tribes, can only be made in the name of an ambassador or other public minister.

(5). After both had retired and renewed their old friendship the second president of the United States John Adams in a letter to the third, Thomas Jefferson, said: “Your [aristocrats] are the most difficult Animals to manage, of anything in the whole Theory and practice of Government. They will not suffer themselves to be governed. They not only exert all their own Subtilty Industry and courage, but they employ the Commonalty, to knock to pieces every Plan and Model that the most honest Architects in Legislation can invent to keep them within bounds.”

(6). The crucial fact of world history, indeed the fact upon which the continuity of life of earth let alone the freedom of Peoples depends, is that subsequent to 1871 the Supreme Court of the United States chose to side with the “aristocrats” and against the principle, from all appears by instructing each generation’s Clerk of the Court not to file applications submitted by Indian Tribes pursuant to the constitution’s original jurisdiction clause. We say “from all that appears” only because it seems inconceivable that an administrator such as the Clerk, whose jurisdiction under Rule 1 of the Supreme Court Rules is limited to matters of form not jurisdictional and jurisprudential substance, would usurp the power to amend the constitution by willful blindness without at least talking it over with the head administrative judge, i.e., the Chief Justice of the United States, and that he, in turn, would discus it with his colleagues on the bench. No legal or political issue is or can ever be of greater moment and weight.

(7). In consequence of that fact, it has come about that the “aristocrats,” i.e., the super-rich or best-born, purchase or influence the enactment of the Federal Imperial Statutes that frustrate the anti-imperial legislative intent of the Constitution of the United States; the intent to create a society of laws serving, as the Preamble proclaimed, “Justice” “Tranquility” “defence” “Welfare” and “Liberty”.

(8). On behalf of imperialism and against constitutionalism the Supreme Court obstructs and ignores the constitution’s legislative intent by putting “Liberty” at the head of the list of values, taking it to signify an ungovernable license to the rich to plunder foreign Nations and Indian tribes and tyrannize “We the People” with indefinite detention, based on nothing more than the suspicion of the President in his capacity as the Commander-in-Chief of the Armed Forces, which arbitrary power is the definitive hallmark of all empires, and therefore refutes everything that the Declaration of Independence and the American Revolution were proclaimed and waged to preclude.

(9). In the result the five constitutional values have been corrupted to serve “absolute despotism” (i.e., the type of government rejected by the Declaration of Independence) over everyone and everything on earth, based upon Injustice instead of Justice, Turmoil instead of Tranquility, Aggression instead of Defence, Exploitation instead of Welfare, and Domination instead of Liberty.

(10). Adams’ and Jefferson’s great plan as recorded by the Declaration of Independence and the Constitution—to end the lawlessness and cruelty of the previously established era of empires—was frustrated in all respects; specifically, by the US Supreme Court’s treasonable willful blindness to constitutional questions that challenge any of the three manifestly unconstitutional Federal Imperial Statutes: first, the Appropriations Act of 1871 against the Indian Tribes; secondly the War Powers Act of 1973 against any foreign Nations who may object to the absolute despotism of empire; and thirdly the National Defense Authorization Act of 2011 against “We the People” of the United States.

(11). The only pacific solution is the reestablishment of the rule of law by means of a Marbury v. Madison judicial review, by the US Supreme Court, of the non-compliance of the Federal Imperial Statutes with the Constitution’s Amendment, Commerce, Defence, Original Jurisdiction and Treaty Clauses and the Bill of Rights. This can be achieved only by overcoming the treasonable obstruction and ignoring by the Clerk of the Case of the Mahican and Mi’kmaq Tribal Ambassadors.

(12). These times not only try men’s souls but the soul of the United States of America and of each of the constitutional democracies she leads. Two hundred twenty three years ago the United States was brought into existence to end the inherent and self evident evil of imperialism. To fulfill the country’s mission specifically in the terms laid out by its Constitution and the most fundamental of the original interpretive precedents Marbury v. Madison (1803) and Cherokee Nation v. State of Georgia (1831), one absolutely must not start all over with a fresh revolution as if the ancestors’ blood sacrifice was in vain.

(13). Instead, we must adopt the forty years of painstaking legal research and preparation of the presently-obstructed classic constitutional case against imperialism of the Mahican and Mi’kmaq Tribes, and now carry it forward, into so very many courts that the judicial stone wall unjustly and unfairly blocking the critical question of the Federal Imperial Statutes’ breach of the Constitution’s anti-imperialism is undermined and collapses, without more bloodshed.

(14). Only that is capable of achieving salvation in time and in peace by means of constitutional triumph; as opposed to the triumph of violence leading inexorably to the global suicide guaranteed by continuing the imperial cycle in the nuclear age.

Therefore, please read and implement the remedy identified by the following PDF file article: LEGALLY OCCUPY THE COURTS! Judicial Review. Judicial Notice. Judicial Empire. Three concepts for citizens to establish justice, without imperialism, and by means of the rule of law.

1. See, “Justice-as-Truth Legal Proof,” infra, Document 8, pages 2 and 3, paragraph 4 DETERMINATIVE PRECEDENT.

Truth is the summit of being: justice is the application of it to affairs…and whatever instances can be quoted of unpunished theft, or of a lie which somebody has credited, justice must prevail, and it is the privilege of truth to make itself believed.

– Ralph Waldo Emerson (1803-1882)

1. The Constitution precludes imperialism as against “foreign Nations and Indian tribes.”

2. Cherokee Nation v. State of Georgia, 30 US 1, 20 (1831), settled their legal remedy for encroachment by the United States upon their territorial sovereignty is under the constitution’s original jurisdiction clause that exists for the purpose of adjudicating territorial jurisdiction disputes between the United States and other sovereign States exclusively in the US Supreme Court.

3. Although that Court refused to consider the Cherokees’ complaint on its merits (incidentally resulting in the genocidal “Trail of Tears”) the Court’s ground for its refusal was a critical error of legal draftsmanship on the part of the nation’s lawyer. He identified his client as a “foreign Nation” styled the Cherokee Nation instead of styling it an “Indian tribe.” The Court held that although an Indian tribe equally is a sovereign “State” it is not “foreign.”

4. Subsequently Congress enacted the Appropriations Act of 1871, 25 United States Code §71¶1 and 28 United States Code §1251¶(b)(1), ostensibly restricting the original jurisdiction clause remedy to “foreign states” thus excluding Indian tribes.

5. The ostensible repeal is ineffective since it does not comply with the constitution’s amendment clause and such compliance is the mandatory precondition to constitutional change. United States v. Lara, 541 US 193, 214, 227 (2004) (Justice Thomas).

6. The Clerk of the Supreme Court nevertheless enforces the repeal as if it were the law by arbitrarily refusing to file tribal complaints challenging its constitutionality.

7. The War Powers Act of 1973, 50 United States Code §1541, puts foreign Nations in the same position as Indian tribes by unconstitutionally repealing their territorial sovereignty too, so long as the President feels any given foreign Nation threatens the foreign policy or economy of the United States.

8. These events have terminated “constitutional“ democracy which depends for its existence upon judicial review of the constitutionality of federal statutes. Marbury v. Madison, 5 US 137 (1803).

9. The consequence is the existing unconstitutional American Empire and, in its train, the wars and genocides that characterize all empires. It reverses the constitution’s express and explicit intent “to establish” “Justice” “Tranquility” “defence” “Welfare” and “Liberty” in peace based upon the respect for the territorial sovereignty of foreign Nations and Indian Tribes under the commerce, defence and treaty clauses and their constitutive precedents.

10. Under the commerce clause the US government constitutionally has delegated jurisdiction to regulate trade “with” the others but NOT to enter their territories, except with treaty consent, or in self defence in order to repel an invasion of the United States by them or any of them.

11. The precedents on the inviolability of the foreign nations and Indian tribes territorial sovereignty are legion, consistent and unequivocal from the 1790s to 1872.

12. Then the court record goes blank until the 2004 Lara Case when Justice Thomas alone addressed the treaty clause of the set.

13. Neither he nor any other has addressed the commerce, defence and treaty clauses and their precedents as a harmoniously settled anti-imperial set since 1872.

14. The reason is simple: the Supreme Court Clerk refuses to adjudicate complaints based upon the conflict between the anti-imperialist policy of the Constitution of the United States of America, on the one hand, and the federal imperial statutes, on the other: and so the original jurisdiction clause is in abeyance because the Court does not want to have to grant to Indian tribes their constitutional remedy for the Court’s and others’ willful blindness to their constitutional right of territorial sovereignty.

15. Nor will any other domestic court. The Supreme Court invariably denies permission to appeal against lower court willful blindness to existence of the constitutional question.

16. It is possible that since 1871 the Supreme Court Clerk’s have all been engaged in this imperialism-by-chicanery but it is more likely that in each generation every time a complaint has arrived in the mail the Clerk has checked with the Chief Justice the United States and been instructed to maintain the stone wall against constitutional democracy under the rule of law so as to enable the extra-constitutional imperial era.

17. Whichever does not matter for present purposes since the critical emergency objective now is not to punish either the present Clerk or Chief Justice of the Court for knowingly causing the wars and genocides attributable to the unconstitutional imperialism, but to prevent those crimes against the constitution and humanity for the future.

18. The only way speedily to achieve this objective is to get the Mahican and Mi’kmaq Tribes’ case-under-obstruction before the Supreme Court and to trust that, in the light of day, the Justices will want to be seen to do their clear and plain duty as defined by the supreme law, judicial oath and original jurisdiction clauses.

19. Their alternative is to be seen not doing it; specifically, by “adhering to their [the United States's] Enemies, giving them Aid and Comfort” contrary to the treason clause of the Constitution.

20. Certainly those Americans who for their own power, prestige and profit persist in playing “The Great Game” of imperialism are “Enemies” in the treasonable constitutional sense.

21. Their success to date has terminated the existence of the United States as a constitutional democracy under the rule of law. That is the only right to exist that the country claims. Or can claim, pending a duly processed constitutional amendment.

I recall the sorrow and discrimination provoked by Arizona’s SB 1070 when numerous Native American elders were suspected of being “illegals” because they could not produce birth certificates to prove otherwise. Imagine that: natives seen as “illegals” and deemed subject to deportation under the state of exception for failure to provide documentation of their right to live on their native land. A deeper injustice and more banal contradiction is not possible, since the authors of 1070 arrived in Arizona but a mere night ago and are now dictating the legal status of peoples inhabiting the bioregion for tens of thousands of years.

This is what it means to be a stranger in your native land. This is what it means to be denied your indigeneity under the policing of borders and citizenship instigated by the telluric partisans who are allied with the fear-driven state of exception.

What the history of U.S. immigration policy reveals is that the politics and policies of white resentment and racialization were — and continue — to constitute a failed response born of the perception that Native peoples (including Mexicans) are a demographic and biopolitical threat: The difference we represent has had to be managed and eradicated precisely because of our continuously illustrated resilience and long-term “reproductive fitness.”

Of course, it is too late for that game despite the militarization of the border, criminalization of immigrants, and alienation (really self-estrangement) associated with the neoliberal trap of identity politics that has always accompanied the state of exception. This is the exact same fearful logic that drives the law seeking to render our collective wisdom and cultural traditions as forbidden knowledge in the attack on Chicana/o and Ethnic Studies in Arizona under the unconstitutional HB 2281.

Miner’s insightful poster speaks to an issue that has been on my mind for some time and that of many fellow sojourners: What is an indigenous policy or traditional view of immigration and naturalization? What can we learn from such policies and traditions? And how might we rekindle and assert these traditions in practice?

This poster, created in the best tradition of political poster art in the Chicana/o movement (I am reminded of the work of countless artists associated with Self-Help Graphics) teaches us an important principle: Regardless of the direction and presumed legitimacy of U.S. immigration law, there are much deeper traditions that Native American and MesoAmerican peoples have practiced and are starting to embrace once again as they negotiate their experience of trans-border citizenship, regardless of the state of exception that seeks to suspend the rule of law and declare the undocumented flow of Natives as the moral equivalent of terrorists and drug runners.

A study by social scientist Fiona Nicoll examining aboriginal rights in Australia offers an observation that is certainly relevant to our own context in North America:

When non-Indigenous people are welcomed to [a] country by the Indigenous owners, we acknowledge not only the traditional ancestors but also their living descendants as bearers of a sovereignty that exists within and beyond the [settler's] nation…. The legacy of Terra Nullius sticks to our shoes with the dirt as we walk over Indigenous sovereignties everyday.

This is the supreme irony of U.S. history: if not for Native people warmly and generously welcoming the Mayflower’s itinerants; if they had not fed them and showed them how to grow crops, these newcomers would have died off. The settlers then returned the favor not with thanksgiving but with murder, genocide, and displacement of the Natives so they could imagine their right to a land rendered void and empty of the original people.

Because of laws like SB 1070, today this problem is further complicated when Indian [sic] people become dupes and accomplices of immigration and border control as has some times occurred along the U.S,-Mexico Border. As one critic has noted, ”anti-immigration policies are ultimately about asserting U.S. sovereignty over and against indigenous sovereignty. By instituting repressive immigration policies, the U.S. government is asserting that it, and not indigenous nations, should determine who can be on these lands.”

It is therefore not a surprise that the mass media has often featured stories of Native Americans serving as agents of border control, which reinforces the idea that Natives support U.S. sovereignty over indigenous autonomy.

Indigenous solidarity with the struggle for immigrant rights is important because many, if not most, immigrants from Mexico and Central America are displaced Native peoples; they are relatives, cousins of northern Native Americans. Chinantca, Chontal, Hña Hñu, Maya, Mixteca, Nahua,  Raramurti (Yaqui), Seri, Totonaca, Triqui, Zapoteca, and many others are part of the post-NAFTA MesoAmerican Diaspora.

Indeed, many tribal nations are divided by our politically-imposed borders as illustrated by the cases of the Raramuri and Tohono O’odham in Sonora-Arizona on the southern border; the Tlingit and Haida First Peoples along the Alaska-Canada border; and the Ojibwe, Salish, Mohawk, and Blackfeet who are now negotiating the northern borderlands between the U.S. and Canada.

Finally, there is a largely hidden but long and complicated history that reveals how indigenous polities have long asserted the right to grant naturalization status to newcomers in their midst. One of the best-known examples of non-Natives being “naturalized” is the case of Mary Jemison, who wrote of her experiences in a book first published in 1824. A commentary on this narrative provides insight on the effects of the practice of naturalization among the Seneca:

In 1753, fifteen year old Mary Jemison was captured by Indians along the Pennsylvania frontier during the Seven Years’ War between the French, English, and Indian peoples of North America. She was adopted and incorporated into the Senecas, a familiar practice among Iroquois and other Indian peoples seeking to replace a lost sibling or spouse. Mary married and raised a family in the decades before and after the American Revolution; many captives, once adopted and integrated into an Indian community, refused the opportunity to return home, finding life in Indian society more rewarding.

This is a truly profound example of the type of humane and just immigration policy our country should adopt. Native peoples have long accepted strangers in their communities and indeed have deeply grounded cultural traditions for the integration of these newcomers. This is why today we have children born at Neah Bay with Makah mothers and Zapotec fathers; this is why there is a “Mexican” clan in the Dine [Navajo] Nation; this is why the Tlingit in Canada’s west coast villages are welcoming Mixteca, Zapoteca, and Maya brothers and sisters as new members of their communities.

We would do well to learn from this example; better, we need to embrace a social movement that creates an autonomous track to citizenship based on the indigenous traditions that integrate newcomers into the community based not on some paranoid fear of the other but on the ability to judge people based on the content of their character. This is presumably a basic ideal of American democracy from the ice flows of Inupiat to the rocky pine barrens of Tierra del Fuego.

•  This article first appeared in New.Clear.Vision

Instead of backing the UN’s landmark report, which supports the tribes’ right to be left alone, Peru is allowing the country’s largest gas project to expand further into indigenous territories known to house numerous uncontacted Indigenous peoples.

The new UN guidance makes clear that uncontacted tribes’ land should be untouchable, and that ‘no rights should be granted that involve the use of natural resources’.

The expansion plan adds to existing controversies around Argentine gas giant Pluspetrol and its notorious Camisea project in southeast Peru.

Past oil and gas exploration in Peru has resulted in violent and disastrous contact with isolated Indigenous peoples.

In the early 1980s, Shell workers opened up paths into the uncontacted Nahua’s land. Diseases soon wiped out half the tribe.

One surviving Nahua who lives close to Camisea’s developments said, ‘The company should not be here. All the time we hear helicopters. Our animals have left, there are no fish. For this, I don’t want the company. No! No company.’

Despite an electoral campaign that promised to respect indigenous rights, Peru’s President Ollanta Humala has done little to guarantee the survival of Indigenous peoples.

The Camisea consortium includes US-based Hunt Oil and Spain’s Repsol. Both have been accused of violating tribal peoples’ rights

His article is humanistic because he recognizes and opposes the offense of the Israeli anthem for an “Arab Israeli” (although Avnery’s bias is evident in how he shies away from calling the people Palestinian).

Avnery is critical of many anthems. I tend to be skeptical of all anthems, as they oftentimes serve as a vehicle of patriotic indoctrination. Albert Einstein recognized the darkness that underlies patriotism: “Heroism on command, senseless violence, and all the loathsome nonsense that goes by the name of patriotism — how passionately I hate them!”

Yet Avnery found the Canadian anthem to be an exception:

… Canada changed its anthem not so long ago, exchanging the British anthem for one that French Canadians can sing with a clear conscience, without denying their own identity. “O Canada” enhances the unity of all citizens. [italics added]

With all due respect, what Avnery writes about the Canadian anthem and Canada is misinformed.

The “O Canada” lyrics are palpably colonialist and sexist:

O Canada!
Our home and native land!
True patriot love in all thy sons command…

Many Canadians regard the Original Peoples as a founding people; however, their languages are still not recognized as official languages, so in some respects they are worse off that the Indigenous Palestinians are in Israel.

So what kind of “patriot love” should Indigenous peoples in Canada feel, and what kind of “patriot love” should other “Canadians” of conscience feel?

The French version:

O Canada! Terre de nos aïeux, (O Canada! Land of our ancestors,)
Ton front est ceint de fleurons glorieux! (Your forehead is wreathed with a glorious garland of flowers!)

Car ton bras sait porter l’épée, (For your arms are ready to carry the sword,)
Il sait porter la croix! … (You will be able to carry the cross! …)

In the French version, the land belongs to the, presumably, French and European ancestors. The readiness to commit violence in the name of patriotism is evident. Christian symbolism is also present.

Canada exists as a English-French state for much the same reason Israel exists as a Jewish state. Europeans came to take the land of Indigenous peoples — even by lethal force. In Palestine it was the Nakba, for “Canada” it was a genocidal event that included the wholesale extermination of the Beothuk.

And since the point about the disunity sown by the Canadian national anthem has been made, to mention daughters is merely to belabor the impropriety of the anthem of the colonially derived entity called Canada.

Mozart, Pascal, Boolean algebra, Shakespeare, parliamentary government, baroque churches, Newton, the emancipation of women, Kant, Balanchine ballets, et al. don’t redeem what this particular civilization has wrought upon the world. The white race is the cancer of human history.

— Partisan Review, 1967.

After coming under heavy criticism for this statement, Sontag eagerly recanted and revised it, saying that “it slandered cancer patients.”

As representatives and protectors of America’s white supremacist ethos, the current roster of Republican Party presidential office seekers demonstrates daily its steadfast determination to keep Black people at the absolute bottom of this republic’s racial, political, economic and social hierarchies.   Rick Santorum’s declaration and warning against giving “somebody else’s money” to Black people sums up the entire Republican Party’s “platform.”  He echoes Newt Gingrich, who has described the First Black President as “the food stamps president” and whose solution to Black youth joblessness is to turn them into janitors in their own deteriorating public schools.  Notice that he does not suggest putting Black students to work as student-clerks, teachers’ or principals’ aides, library attendants, shop or home economics helpers, or even hall monitors, but as menial laborers.  His default position for all problems black is a return to a kind of forced labor, a neo-slavery.  Willard (“Mitt”) Romney consistently decries “entitlements” for everybody except his fellow fat cats and their transnational companies while Ron Paul’s white supremacist past is rapidly catching up with him via his opposition to long settled civil rights legislation and blatantly racist tracts, pamphlets and newsletters.

But Santorum’s admonition is the clearest and most direct statement of just exactly where so-called “conservative” whites stand:   Who are the “somebody else’s” in his nostrum?  They are readily identified as the consistent opponents of all policies or programs which might even remotely help Black people, including Social Security, Medicare/Medicaid, educational grants and loans, jobs and job training, housing assistance, and, God forbid, welfare.  (In the recent past – post-World War II – Santorum’s predecessor-“somebody else’s” even opposed giving Black military veterans benefits offered in the G.I. Bill of Rights).  In short, Santorum’s “somebody else’s” view all of these as “stealth”  forms of “reparations” to Blacks for centuries of slavery and subsequent racial segregation and discrimination. This the “somebody else’s” cannot – and will not — abide.

Why can’t Santorum’s“somebody else’s” and most so-called “conservative” (and many not so conservative) white folks come to grips with the fact that they owe Black people?  Here’s a short list of the most common arguments against reparations:

1)  Nobody in my family ever owned slaves; the corollary to this is that no Black person living today was ever a slave;

2)  My European ancestors didn’t even get to America until long after slavery ended;

3) Reparations have already been paid in the form of welfare, Supreme Court decisions, Presidential Executive Orders, civil rights laws,  affirmative action policies and programs, etc.;

4) Any white debt owed to Blacks was paid in blood by the 600,000 white men who died on both sides during the Civil War;

5) There is no consensus – even among Blacks – as to how reparations would be paid and to whom;

6) It was the Africans themselves who eagerly participated in, if not actually originated, the Atlantic Slave Trade.  The corollary to this is that there were actually many Black slaveholders – not to mention a significant number of Native Americans who likewise held Black slaves; and,

7) Finally….a completely new “rationale” against reparations has surfaced: the election of America’s First Black President “proves” that “white racism” is over and done with.  President Obama’s election canceled any debt owed by whites to Blacks, and thus obviated the need to pay Black people anything at all.

On the surface, these arguments appear reasonable, even compelling.  But as we dig just beneath the surface, each one of them fails both the “reasonable” and “compelling” tests.

“Nobody in my family owned slaves…..”  This argument renders slavery and the ongoing horrendous treatment of Blacks as a matter of individual acts and choices by long dead misguided white ancestors (and a rapidly diminishing number of live throwbacks to a bygone era).  It ignores the supportive and enabling role that kings, princes, elected and appointed legislatures, courts, and executives played in institutionalizing and maintaining a brutal slavocracy which benefitted all whites whether they did or did not own Black slaves.

This and the ”no living black people were slaves”, and the post-slavery European immigration arguments center around a general conservative and white America political myth that this nation-state was organized by,  and comprised of, only  “rugged individuals” who united for their own personal and “private” self-interest.  America, they argue, is not, never has been, and never will be a “society”  composed of disparate peoples who came together as a result of a “social contract”, a la’ John Locke’s Second Treatise of Government (1689) or Jean-Jacques Rousseau’s Du Contract Social (1762).

The late arrival of European immigrants.    The late comedian Richard Prior and author Toni Morrison point out that a European immigrant’s entrance into American whiteness was expedited,  facilitated, and gauged by just how quickly and thoroughly he or she could learn, embrace, and express the most important word in the American socio-political lexicon:  “Nigger.” 

This was only the first step in embracing an American ethic and ethos of whiteness.  One’s Irish-ness, Italian-ness, German-ness, French-ness, Hungarian-ness, or…..were not shed completely, but firmly relegated into and served as a backdrop for a brand spanking new identity – American.

Next came the actual acceptance and use of one’s whiteness as not just a matter of privilege, but of right  — a God-given, if not Constitutional right.

Reparations have already been paid.  It was not until half way through the Civil War, when it looked as though the south might actually win, that Lincoln and the north decided that this really might be a war to end slavery rather than simply to “save the union.”  Yes, 600,000 white men died in that orgy of blood and bluster.  But the number of direct Black casualties has never been calculated, and is probably impossible to know.  How many of the almost 200,000 Black men who fought for the north were killed outright rather than taken as prisoners of war?  It is known that thousands of Black people (civilians and soldiers) died at the hands of civilian whites who objected to being drafted into the war and took their frustrations out on basically defenseless Blacks especially in the so-called more enlightened north.

General William Tecumseh Sherman’s Order No. 15, issued on January 16, 1865, granted 40 acres and a mule to those slaves who had been freed as the north neared its ever increasingly assured victory.   More than 10,000 people settled on 400,000 acres of their former slave owners’  lands as a result of this order.   After Lincoln’s assassination in April, however, the new president, Andrew Johnson, immediately rescinded Sherman’s order, expelled the new “freedmen”, and returned the land back to the self same former slave owners.

The “reparations have already been paid” argument also ignores the fact that immediately following the Civil War Blacks brought constant, numerous, well-argued claims to the courts and state legislatures, through the national congress, against the federal government, the states individually, corporations, and specific former slaveholders for payment of “services” rendered.  All such entreaties were denied.

Likewise, all efforts to compensate Blacks in the decades and now centuries following the war were also turned back.  Black people were specifically excluded from most provisions of President Franklin Roosevelt’s “New Deal.”  Harry Truman’s Executive Order  9981 on July 26, 1948 (desegregation of the military)  was the first such effort by any president since Lincoln to directly address the plight of Black people.  The landmark legislation of the 1960’s (the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Civil Rights Act of 1968) came into being not because of a change of heart on the part of Santorum’s “other people.”  Rather, it was the Civil Rights Movement beginning in the 1940’s and 50’s, the raised fist of the Black Power Movement of the late ‘60s and the concurrent  “Long Hot Summers” of revolution and riots in the major (and not so major) cities — all forced President Johnson’s hand to sign those bills into law.   So let’s be clear:  Each and every proposed bill, law, program, policy, ordinance, suggestion that Black people might need even a little extra help in order to “even the playing field” has been met with not just denial but scorn, ridicule, feigned disbelief, and, in many cases, violence.

The “some Black people owned slaves” argument.  Yes, a significant number of free Black people and Native Americans owned slaves.  In the case of free Blacks, it was more often than not a former slave husband who after years of moonlighting bought his still enslaved wife and children.  Yet, as with any other group, there were those who today would be described as “race traitors.”  These people were generally of “mixed” lineage and identified more with the white “majority” than with the enslaved Black laboring class/caste.

Africans enslaved Africans.  Slavery has existed in all societies in one form or another throughout recorded history – Africa included.  Whether in Africa, Europe, the Americas or Asia, capture as a prisoner of war usually led to enslavement by the victors.  Nell Irvin Painter’s 2010 book, The History of White People, is a fascinating and detailed look at the history of “white slavery”, beginning with the ancient Greeks. African kings and merchants participated in that slavery from the beginning; but at no point, in her chronicle does the scope, brutality and sheer evil manifested during the Atlantic Slave Trade come through.  For the most part, in Africa slaves were viewed as extended, if subservient, members of the slave owner’s family.  They were never considered as commodities or chattel in the European sense of those words.  They could marry, own property, and some even rose to positions of power as slaves within the system.  Thus, most African sellers of Africans thought that they were selling their war captives to be used in the African sense of term.   This is an essential difference and distinction.

As for Indians, by 1860 the Cherokees held 4,600 Black slaves; the Choctaws, 2,344, the Creeks, 1,532; the Chickasaws, 975; and the Seminoles, 500.  Some Indian slave owners were just as harsh and cruel as any white slave master and were often hired to catch runaway slaves.  Indeed, slave-catching was a lucrative business for some Indians, especially the Chickasaws.  Interestingly, the very last Confederate General to surrender at the end of the Civil War was Brigadier General Stand Watie, a Chief of the Cherokee Nation.  Now, Santorum’s “other people” will take this fact and determine that if they must pay Blacks for slavery, why also should Indians not be required to do so?  The answer, of course, is that compared to the not quite 4 million Black people held in bondage by white people, the less than 10,000 owned by Indians is but a drop in the proverbial bucket; and that, for the most part, slavery as practiced by Indians was never as institutionalized, wide-spread and deeply engrained into the Indian psyche as it was among whites in both the North and South.

The First Black President.    The majority of white folks in this country did not vote for Barack Obama.  And that has always been the problem.  Despite the John Browns, the Henry Lloyd Garrisons,  the Quakers, the Viola Liozzos, there has never been a majority of white Americans who supported anything “black.”   Yet, Obama represents a chance, perhaps a last chance, for many white folks to reclaim their humanity; to join the human race.  At once, his presence has allowed them to face and yet hide their sordid race history.  They know they are guilty.   Obama has allowed them to assuage some of that guilt.  He has allowed them to deflect some of that guilt onto his own persona.  The fact of his own “whiteness” has helped them immensely.  It is unlikely that he would have been elected had he not had a white parent.  So for him, and him alone, the “one-drop rule” has been suspended.

But this does not mean that white supremacy has ended, or even been suspended.  This First Black President’s policies and practices are virtually identical to every other “white” president who has preceded him save LBJ, FDR, and Lincoln.  That is, he not only supports white supremacy but has deepened and enhanced it to the point that Black people today are in a worse socio-economic position than at any time since the murder of Dr. Martin Luther King, Jr.

Finally, there is really only one argument necessary to refute those who oppose reparations for Black people:  White people today still benefit from slavery while Black people still suffer from its devastating, lingering, ongoing, effects.

Reportedly employed by powerful landowners in Mato Grosso do Sul state, the gunmen are creating a climate of fear to prevent Guarani Indians from returning to their ancestral land.

Guarani leader Nísio Gomes was murdered by gunmen. © Survival

The tactics employed in recent incidents have been almost identical. Gunmen encircle vehicles transporting Guarani, force them to stop, and then verbally abuse and interrogate passengers about the names on the hit list.

One Guarani leader told Survival, ’They’ve pinpointed us and they’re set to kill us. We’re at great risk. Here in Brazil, we have no justice. We have nowhere left to run.’

On Sunday, around 100 Guarani returning from a meeting in the district of Iguatemi were targeted. Guarani witnesses told Survival one of the four men involved was a local mayor.

The Guarani said the men shouted insults such as, ‘We’re going to burn these buses full of Indians!’ Members of a government team were also present at the scene.

Continued threats have also forced the son of an assassinated leader to flee his community. Ranchers killed Marcos Veron in 2003 after he repeatedly tried to recover a small piece of his community’s ancestral land – his son Ladio is now being targeted.

Marcos Veron was killed in 2003 during an attempt to return to his land. © Joaó Ripper/Survival

Gomes’ killers have yet to be arrested, but last week Brazil’s Public Ministry said six men had been charged with the murder of two Guarani teachers in 2009.

The accused include a notorious Brazilian rancher who held the teachers’ community hostage, and local politicians.

Ten people are believed to have died when Indonesian security forces broke up the rally of independence activists last month.

Watch footage of the attacks (©SBS TV/West Papua Media, WARNING: DISTURBING CONTENT):

The video comes ahead of a visit to Bali by the US President and Secretary of State, for a regional summit. The US has applauded its ‘new partnership’ with Indonesia, but only last week Hillary Clinton criticized its human rights abuses.

The disturbing footage was smuggled out of West Papua exactly one year after scenes of Indonesian soldiers torturing Papuan men caused worldwide revulsion.

These latest clips allegedly show a local police commander giving the order to break up the rally on the outskirts of Jayapura – and the brutal and unprovoked violence that ensued.

Victim is found after Indonesia's violent crackdown on West Papuan Congress © Tapol/Down to Earth/West Papua Media

Indonesian security forces, many in plain clothes and wearing crash helmets, are seen randomly firing their weapons and arresting scores of people, many of whom are punched, kicked, beaten or forced to crawl along the ground.

Reverend Benny Giay from West Papua says violence has escalated since the Congress was dispersed. ‘I think maybe this is the Indonesian military and police’s response to the international pressure. The response is that they are being sent to Papua to kill, terrorize and abduct Papuans, but please do keep on the international pressure. Please tell people what is happening here for the sake of our future, our lives, our culture, our identity and our very existence.’

West Papua has been ruled by Indonesia since 1963, and more than 100,000 civilians are believed to have been killed during its occupation.

More clips are available for download from West Papua Media

Recently, Dictionary.com featured a question: “Why is it called America, not Columbusia?”:

But what about America itself? Why aren’t the continents of North and South America called “Columbusia” after Christopher Columbus? The word America comes from a lesser-known navigator and explorer, Amerigo Vespucci.¹

Maybe Vespucci is the source for the naming of the western hemisphere, but it is disputed by others. The historian and sailor Samuel Morison was sure the hemisphere’s continents are named after Welshman Richard Amerike, the man who financed John Cabot’s westward voyage in 1497.²

BBC History wrote, “… it is also probable that, as the chief sponsor of the Matthew’s voyage, and with Cabot’s wife and children then living, at his instigation, in a house belonging to a close friend, Amerike sought reward for his patronage by asking that any new-found lands should be named after him.”³

A weeks ago, I read a grade 10 Social Studies test. On it was a question: “Who discovered Vancouver Island?” The multiple-choice question offered the names of five Europeans. Even if the question had been posed as “Which non-Indigenous explorer first reached an island later to become named Vancouver Island?,” all five proposed names were wrong. It was a terribly worded and trivial question. People who are not blinkered by ethnocentrism today realize that it is incorrect to depict a place where human beings already reside as being discovered by human beings from another ethnic group.

Can it therefore be morally correct to append a colonial designation upon the land inhabited by another people without their consent?

Three major First Nations reside on Vancouver Island (immodestly named Quadra and Vancouver Island by seafarers Bodega y Quadra and George Vancouver): Nuu-chah-nulth, Kwakwaka’wakw, and Coast Salish. I have never been able to determine an Indigenous designation for the island. These nations each reside in their own section of the largest island on the west coast of Turtle Island.

Turning to the northern continent, how then should one refer to the landmass in deference to the Original Peoples? The eastern nations of the Haudenosaunee and Anishnabek both refer to the continent as Turtle Island – a name derived from folklore.

One Indigenous website, Mexica Uprising!, urges Indigenous peoples to “rise up against the illegal settler population whom continue to enslave us socially, economically, politically and spiritually.”⁴ It proffers another name for the landmasses of the western hemisphere.

The website complains, “Latin America is named after the White people of Latin descent who stole our land and claimed it as their own. The Europeans brand everything they ‘own’ with their name, it is no different with our land.” The proper name in Nahuatl is given as Ixachilan – “one mass of land united by the Eagle and Condor not two seperate [sic] continents.”

Mexica Uprising! implores Indigenous peoples, “It is time to de-colonize our minds and think as individuals. Don’t let the wasicu control your destiny, learn your true history and culture!”

Is de-colonization just meant for the minds of the colonized? Is it not about time for those who have profited from the actions of colonialist ancestors to reorient their thinking along a different moral path — a path that acknowledges and rejects past crimes against humanity and seeks to atone for past crimes, not committed by themselves, but from which they profit in some sense?

Or is aggressive Martian morality acceptable?

1. the hot word, “Why is it called America, not Columbusia?” Dictionary.com, 9 October 2011.
2. Samuel Eliot Morison, The European Discovery of America: The Northern Voyages, Oxford University Press, New York, 1971.
3. Peter MacDonald, “The Naming of America,” BBC History. Last updated 29 March 2011.
4. “Welcome to Mexica Uprising!” Mexica Uprising.

Recently I interviewed Christine about her new book, which details the plight of an Alaska Eskimo community struggling to save their land that is disappearing as a result of climate change.

Joshua Frank: Christine, what prompted you to investigate what is happening to the people of Kivalina?

Christine Shearer:  A few things. In 2007, I was part of this interdisciplinary research project at UC Santa Barbara, assessing the biggest “human impacts” to marine ecosystems. To do this we collected data from over a hundred scientists. And it really started to hit me how severe climate change is, particularly how quickly it is happening.

Also, I recently remembered this: we also went to get data from indigenous fishers, to include their traditional knowledge. So I went to a Native American reservation in the state of Washington and handed one of the fishers there this really complicated survey tool we had developed, and he was just kind of like, ‘What is this?’ And rather than fill it out, he walked me to the shoreline and showed me how the water was lapping at one of their buildings and said, ‘This is the biggest problem.’ He was talking about sea level rise.

And so one night I was in an environmental law class, and the teacher read a news headline about this lawsuit, this tiny Alaska Native village suing fossil fuel companies for damaging their homeland and creating a false debate about climate change, and I just knew I had to write about it.

JF: So you traveled up to visit these people? Can you tell us a little about their culture and history?

CS: They are Inupiat, tracing their ancestry to the northwest Arctic back thousands of years. They are fishers and whalers and live mainly off subsistence, and are pretty cued into the land and its rhythms, because they rely on it for their needs. So the changes in the Arctic have been pretty hard on them – making traveling and hunting more dangerous because the ice is thinning – let alone now that the small barrier island they are located on is eroding away.

I did not know much about the area before going, so I did a lot of reading in the Kivalina school library of their oral histories while there, and also asked questions. I was probably annoying, but they were always incredibly open and friendly, inviting me into their homes, happy to talk and share. When you think about how they live and have lived, it’s pretty amazing, and you can see how the strong social and community bonds would help them survive. The Arctic is not for wimps.

JF: You write about Kivalina’s grievances against ExxonMobil. What prompted it and where does the fight currently stand?

CS: Yeah, the reason the island is eroding is because of warming Arctic temperatures — sea ice now forms later and later in the year, leaving the shoreline vulnerable to erosion from storms. In 1992, Kivalina residents voted to move, and in 2003 and 2006, U.S. government reports said Kivalina had to be relocated within the next ten to fifteen years, due to erosion from warming temperatures.

Around the time of the government reports an environmental justice lawyer – Luke Cole – was working with Kivalina residents because their water was being polluted by a nearby mine. And that began the conversation about filing the climate change lawsuit, because Luke saw that the island was eroding, and the people had been trying to relocate for over a decade with little success or public attention.

So in 2008, Kivalina filed a public nuisance claim against ExxonMobil and 23 other large fossil fuel companies for their relocation costs. They also charged a smaller subset with conspiracy and concert of action for creating a false debate around climate change — Kivalina’s representation includes some lawyers that had been involved in both sides of the tobacco lawsuits.

In 2009 a judge dismissed Kivalina’s claim as a “political question” for the executive and legislative branches, and unsuitable for the judicial branch. The judge also denied Kivalina legal standing to bring the lawsuit. This meant that the secondary claims — which had to do with the climate change misinformation campaign — were thrown out without being commented on. The decision is being appealed, and Kivalina is waiting on that. In the meantime, they are still trying to relocate themselves.

JF: So who is actually to blame for what’s transpired in Kivalina? With the lawsuit against ExxonMobil, will you explain why are they being targeted here?

CS: Under public nuisance law, you can hold people or companies accountable that make a “meaningful” or “substantial” contribution to a harm. The 24 fossil fuel companies were chosen for being among the world’s top greenhouse gas emitters, while a smaller subset face claims of conspiracy and concert of action for going — in Luke Cole’s words — “above and beyond” in their efforts to try and mislead people about the science on climate change.

So, following the logic of the lawsuit: the companies are substantial contributors to the harm now facing Kivalina, and many of the companies knew of the harm they were creating, and tried to deal with it not by cutting back on emissions, but by misleading people to protect their business. Kivalina is therefore seeking damages – the cost of their needed relocation.

JF: Who is helping Kivalina relocate? What options do they have at this time to preserve their culture and integrity?

CS: There is no formal relocation policy in the U.S., and no U.S. government agency specifically tasked with helping communities relocate. So a lot of the efforts involved in trying to relocate have fallen on the people of Kivalina themselves, and they are working with different agencies at the federal, state, borough, and tribal levels to try and coordinate a relocation. Many government workers are doing what they can for Kivalina, like building a seawall, but they can only act within their prescribed roles and boundaries, which are becoming outdated with climate change.

The Government Accountability Office has recommended that a U.S. government agency be tasked with relocation — I think that would help Kivalina out immensely. But now you have Congressional representatives who don’t “believe” in climate change and are trying to cut funding for adaptation and even disaster management, which is incredibly dangerous.

JF: Is the Kivalina situation an anomaly, or is this something that is happening in other locations of the world as well, where people may also be displaced as a consequence of global warming?

CS: I think Kivalina is an anomaly in the sense that most of the discussion around the biggest impacts of climate change are usually focused on the Global South. Kivalina offers an example of how Alaska Natives in the U.S. are being heavily impacted as well, and also face inadequate resources and assistance.

But, yes, people around the world face displacement. There seems to be two types of impacts from climate change. One is the steady threat of displacement, like the people of Kivalina and other Alaska Natives facing erosion and flooding, and the small island states — although I used to think of the threat of erosion as slow, but now realize it can be quick and sudden, putting people in danger. The other type of impact is the increase in the number and severity of “extreme” weather events, like increased droughts, fires, and flooding, which may also make previously inhabited places unlivable, and cause migrations.

JF: What would you tell those who want to get involved in the issue? How can people reach out to the folks in Kivalina?

CS: Yeah, a reduction on greenhouse gas emissions — mitigation — is still very important, but communities like Kivalina show we also need to focus on adaptation policies.

I think the most important thing for Kivalina is that a government agency is tasked with relocation, and a relocation policy is put into place. This will give the people of Kivalina a blueprint for what to do and what they can do. The groups Native American Rights Fund and Three Degrees Warmer are trying to streamline the process of relocation, while human rights lawyer Robin Bronen is trying to institute a relocation policy at the international level grounded in human rights law – climigration. There might be more efforts out there. These groups could use help and support.

Also, we need to communicate to our political representatives that cuts in disaster management and adaptation — which are currently being debated — are unacceptable. The answer is smart policy, not none at all. Climate change is here, and we have to deal with it.

Since that particular court is the imperial court of the empire the question is really asking them to do a coup amounting to a counter counter-revolution. The revolution was in 1776 when America started the fight that led to the 1789 Constitution of the United States of America which gave birth to Constitutional Democracy. The counter-revolution was in 1871 when the United States Congress enacted an Appropriations Act with a rider tacked on at the last minute abolishing the Indian tribal sovereignty. Till then it had sheltered under the protection of the commerce, defence and treaty clauses interpreted by the US Court’s constitutionally constitutive precedents with regard to the constitutional relationship between the United States and “Indian Tribes and foreign Nations” within the meaning of the Commerce Clause Article I, §8, ¶3, that says Congress is: To regulate Commerce with Indian Tribes and foreign Nations subject to the Protection of their Sovereignty and Possession under the Treaty Clause Article II, §2, ¶2 that delegates to the President the “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur,” and also subject to the Defence Clauses Article I, §8, ¶1 says “The Congress shall have power to…provide for the common defense…” ¶11. “To declare War [and] ¶15. “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.

The counter-revolution was perfected when the courts of the United States and Canada decided not to permit anyone to challenge the legality of the abolition of the previously established constitutional right of Indian tribes and foreign Nations to an Answer from the Supreme Court of the United States pursuant to the Original Jurisdiction Clause Article III, §2, ¶2 saying “In all Cases affecting Ambassadors, other public Ministers and Consuls…the Supreme Court shall have original Jurisdiction.”

No Indian tribe’s sovereignty received the Court’s Protection after 1871 although the constitutional question of and answer by the US Supreme Court prior to 1871 settled that the Treaty and Defence Clauses preclude the assumption the Commerce Clause jurisdiction To regulate Commerce with Indian tribes and foreign Nations really means To exercise “plenary power” i.e., sovereignty over Indian tribes and foreign Nations.”

The court record for the entire set of court systems sitting in North America remained a blank slate from 1871 until in United States v. Lara, 541 US 193, 214, 227 (2004), Supreme Court Justice Clarence Thomas out of the blue said:

In 1871, Congress enacted a statute [Appropriations Act of 1871] that purported to prohibit entering into treaties with the ‘Indian nation[s] or tribe[s].’ 16 Stat. 566, codified at 25 USC §71. Although this Act is constitutionally suspect (the Constitution vests in the President both the power to make treaties, Art. II, §2, cl. 2…), it nevertheless reflects the view of the political branches that the tribes had become a purely domestic matter. To be sure, this does not quite suffice to demonstrate that the tribes lost their sovereignty…Federal Indian policy is, to say the least, schizophrenic.…I believe we must examine more critically our tribal sovereignty case law. Both the Court and the dissent, however, compound the confusion by failing to undertake the necessary rigorous constitutional analysis. I would begin by carefully following our assumptions to their logical conclusions and by identifying the potential sources of federal power to modify tribal sovereignty …I do, however, agree that this case raises important constitutional questions that the Court does not begin to answer. The Court utterly fails to find any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty…I would be willing to revisit the question.

From 1871 through to 2004 this conflict of laws between the constitutional and the ordinary law went unnoticed in so far as the courts of North America are concerned. Of course, the Indians noticed it as did the settlers led by the lawyers, judges and police in the land rush into the Indian territories inaugurated by the ordinary legislation. The legal establishment preceded the settlers in order to open the registry offices to record the government grants to the settlers of the Indians’ lands. The lawyers certified titles to the private property created by the land grants.

The Indians who noticed themselves in the way of the crops, cows, sheep and fences,  of course, noticed the sudden absence of the constitutional protection formerly much promised by newcomer society from time out of mind. They knew the constitutions precluded entry of newcomers unto their land other than with their consent for the purpose of the mutually beneficial fur trade. The Indians were quite familiar with the newcomer government laws regulating this trade by prohibiting the newcomer traders selling alcohol or settling other than to the extent of fur trading posts agreeable to both cultures. Suddenly the fur trade was all but over and the lands were flooded with settlers.

Since the Indians had no money to speak of and since the Appropriations Act of 1871 and Indian Act of 1876 confiscated their lands and put in place of traditional Indian government, the government of the newcomers assisted by newcomer-created Indian band councils, the aboriginal government itself was confiscated along with the land it used to govern. Indians who went to lawyers were told they could either hang around town and beg or go to live on a reservation on some land the newcomer government could spare from settlement and live on handouts there. The aboriginal economy was dead as a means of survival. The lawyers were far too busy profiting from the conveyancing of Indian land to act on behalf of Indians to raise the constitutional question.

This went on the length and breadth of North America until 1972 when on February 11th five Indians came into my law office in Haileybury in northern Ontario, a town of three thousand people on the western shore of Lake Temiskaming. It’s a long narrow lake the center line of which defines the border between northern Ontario and northern Quebec. I’d been called to bar the year before and only just opened my office as a sole practitioner. The Indians were among my first clients. They hailed from Lake Temagami about forty five miles south west as the crow flies. Their lake was situate in the middle of the vast Temagami Forest Reserve of old growth white pines, sparkling rivers and crystal lakes. Their four thousand square mile ancestral homeland is about as close an approximation of the pre-Columbian natural order as exists in North America.

They complained to me that they’d just heard and read about an announcement by the government of Ontario that an 80 million dollar destination ski and summer holiday resort would be built on Maple Mountain, the 2nd highest elevation in Ontario and the crest of the height of land that defines the continental watershed between the waters flowing north to Hudson’s Bay from those flowing south to the Great Lakes St Lawrence drainage basin. What brought them out of the woodwork was the fact the resort was to be placed right at the highest point from the cave at which had emerged the mythic lynx and first people to inhabit the land exposed by the falling water level of the great flood.

Later anthropological and archeological research established a massive concentration of prehistoric rock pictographs throughout this region and unrivalled anywhere else. Similarly, linguistic analysis established this as the geographical centre of a dialectic chain of the Algonkian speaking linguistic family comprised of autonomous hunting bands organized in hereditary family fishing territories taking advantage of the finely networked riverine system that characterizes the northeastern North American woodlands. The waters were both the transportation highways and byways and the inexhaustible source of food complemented by hunting and gathering for variety. And, of course, some degree of quasi-cultivation in the sense of controlled burns that encouraged the important and reliable annual blueberry crops.

Adjacent bands were linked together to constitute the gene pool the minimum size of which has to be at least five hundred to avoid the complications of inbreeding. Also for political, commercial, religious and legal purposes were the aboriginal family, band, national and tribal entities closely linked and integrated by the water routes and intermarriage networks. Artifacts and natural products from one region in North America commonly turn up in the archeological record of the trade routes that the newcomers’ fur trade eventually was able to tap into and take advantage of, from the perspective of both cultures, at first, until the fur resource was depleted by over exploitation and the market collapsed as European fashion moved on from fur hats to the next fad and fashion. And then the settlement frontier leap-frogged the fur trade treaty frontier.

Quite early in my legal research prompted by the Indian clients from Bear Island in Lake Temagami I came across the rather famous Royal Proclamation of 1763. By no very great feat of scholarship I had learned by the summer of 1972 that it codified an agreement or consensus previously arrived at between all the European nations that had been involved in the great scramble to profit from “the discovery.” As early as 1493 the Catholic Church enacted ecclesiastical legislation that purported to bind Christian Europe as a matter of equity to respect Indian tribal sovereignty and exclusive possession to the extent of not just taking as if the right to do so were inherent, but instead to enter into treaties with the tribe, nation or band in occupation for the acquisition from it of the right to govern and possess.

Thus the papal bulla promulgated under reign of Pope Paul III and entitled Sublimis Dei of May 29, 1537 enacted:

To all faithful Christians to whom this writing may come, health in Christ our Lord and the apostolic benediction.

The sublime God so loved the human race that He created man in such wise that he might participate, not only in the good that other creatures enjoy, but endowed him with capacity to attain to the inaccessible and invisible Supreme Good and behold it face to face; and since man, according to the testimony of the sacred scriptures, has been created to enjoy eternal life and happiness, which none may obtain save through faith in our Lord Jesus Christ, it is necessary that he should possess the nature and faculties enabling him to receive that faith; and that whoever is thus endowed should be capable of receiving that same faith. Nor is it credible that any one should possess so little understanding as to desire the faith and yet be destitute of the most necessary faculty to enable him to receive it. Hence Christ, who is the Truth itself, that has never failed and can never fail, said to the preachers of the faith whom He chose for that office “Go ye and teach all nations.” He said all, without exception, for all are capable of receiving the doctrines of the faith.

The enemy of the human race, who opposes all good deeds in order to bring men to destruction, beholding and envying this, invented a means never before heard of, by which he might hinder the preaching of God’s word of Salvation to the people: he inspired his satellites who, to please him, have not hesitated to publish abroad that the Indians of the West and the South, and other people of whom We have recent knowledge should be treated as dumb brutes created for our service, pretending that they are incapable of receiving the Catholic Faith.

We, who, though unworthy, exercise on earth the power of our Lord and seek with all our might to bring those sheep of His flock who are outside into the fold committed to our charge, consider, however, that the Indians are truly men and that they are not only capable of understanding the Catholic Faith but, according to our information, they desire exceedingly to receive it. Desiring to provide ample remedy for these evils, We define and declare by these Our letters, or by any translation thereof signed by any notary public and sealed with the seal of any ecclesiastical dignitary, to which the same credit shall be given as to the originals, that, notwithstanding whatever may have been or may be said to the contrary, the said Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property, even though they be outside the faith of Jesus Christ; and that they may and should, freely and legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved; should the contrary happen, it shall be null and have no effect.

By virtue of Our apostolic authority We define and declare by these present letters, or by any translation thereof signed by any notary public and sealed with the seal of any ecclesiastical dignitary, which shall thus command the same obedience as the originals, that the said Indians and other peoples should be converted to the faith of Jesus Christ by preaching the word of God and by the example of good and holy living.

This principle of equity was adopted as the positive constitutional law of each of the great maritime powers of Europe that took part in the New World adventure: France, Netherlands, Portugal, Spain, Russia, United Kingdom. And in due course it was saved and continued by their successors in North America Canada and the United States. That is why each of the those italicized names is identified as a defendant in the Case of Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States. That is the Case currently and criminally being stonewalled by William H. Suter, Clerk of the Supreme Court of the United States. It asks the constitutional question the answering of which by the Court will settle the matter Constitutional Democracy v. Unconstitutional Empire in favor of one or the other of those alternative modes of being.

In so far as British North America in particular is concerned, being the immediate predecessor to Canada and the United States of the preemptive right conferred by discovery to treat with the Indian aboriginal governments for the conveyance from them of their previously established jurisdiction and their Peoples’ corresponding possessory in the several hunting, fishing and gathering territories comprising the many ancestral homelands, as early as 1704 the Imperial Judicial Committee of the Privy Council (UK) in the reign of Queen Anne ruled, in the matter of Mohegan Indians v. Connecticut, that with regard to a constitutional question whether a newcomer government has yet acquired jurisdiction and power of disposition over real estate by treaty with the Indian government, that the Indian government is entitled to independent and impartial third-party adjudication.

The Mohegans petitioned Queen Anne in 1703 for appointment of such a third-party because they felt there was no point raising the constitutional question of Connecticut’s jurisdiction over a disputed tract in Connecticut’s court system, for the same reason Connecticut might be expected to be reticent to raise the question in the tribe’s court system. The Attorney General of the UK was commissioned to investigate the issue and in due course he recommended the commissioning of a Standing Committee of the Imperial Privy Council to serve as a trial level third-party adjudicator, subject to appeal ultimately to the Judicial Committee (UK) itself. This was adopted by the Queen and enacted into the colonial constitutional law by Royal Commission pursuant to the royal prerogative to legislate the colonial constitutional law, by means of this particular constitutional procedure. Connecticut repeatedly appealed over the course of the next seventy five years until, in 1775, the Judicial Committee of the Privy Council (UK), the Imperial Court of Last Resort affirmed the exclusive original jurisdiction as the independent and the impartial third-party adjudication of inter parties boundary disputes affecting competing sovereignties between crown governments, Indian tribes and/or foreign Nation or any combination thereof. The exclusive jurisdiction as third-party adjudicator of such disputes before 1789, as at 1789 devolved upon the Supreme Court of the United States pursuant to the constitution’s Original Jurisdiction Clause:

Article III, §2, ¶2 of the Constitution of the United States of America prevents any lapse of jurisdiction by saving and continuing the independent and impartial third-party jurisdiction formerly vested in the Judicial Committee in the Supreme Court of the United States. It enacts, “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, 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.”

This is the Article of the constitution upon which Rick Vanguilder and Gary Metallic rely to invoke the Court’s third-party jurisdiction to answer the constitutional question of jurisdiction law alone of competing sovereignties between constitutional governments, Indian tribes and foreign Nations. The case of Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States is currently left standing outside the Courthouse door by the Clerk of the Supreme Court Clerk’s chicanery. The legal consequence of the chicanery is that the US Supreme Court in consequence unconstitutionally is denied its right, jurisdiction and judicial duty to vindicate Constitutional Democracy in the case of Constitutional Democracy v. Unconstitutional Empire. Of record as: Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States.

Gary and Rick attest in the US Supreme Court documents they are ambassadors and public ministers duly appointed in the tribal way to deal with the newcomer governments and Peoples by means of raising the constitutional question of the conflict between the constitutions of the named defendants, on the one hand, and on the other the Appropriations Act of 1871 and Indian Act of 1876.

Since those two ordinary statutes are the basis of the federal Indian law that ostensibly, although allegedly unconstitutionally, governs the relationship for legal purposes between natives and newcomers, therefore the constitutional question really means turning back the clock one hundred forty years to a time when it was well understood by everybody that newcomer jurisdiction and possession was contingent upon proof of purchase.

Specifically, by production and filing in court of a certified copy of the Indian Treaty duly registered in a land registry or land titles office and establishing proof of purchase. Such land records relative to New York and Massachusetts where the historical events relevant to the case of Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States took place.

The land records were governed in each of those regions at all material times by one of two pieces of ordinary legislation enacted in compliance with the governing constitutional law. These are from New York and Massachusetts but the same law as identified there applies in all jurisdictions of the United States and Canada:

An Act concerning purchases of lands from the Indians, Stat. Prov. NY 1684, c. 9. Bee itt Enacted by this Gen’ll Assembly and by the authority of the same that from henceforward noe Purchase of Lands from the Indians shall be deemed a good Title without Leave first had and obtaineid from the Governor signified by a Warrant under his hand and Seale and entered on Record in the Secretaries office att New Yorke and Satisfaction for the said Purchase acknowlidged by the Indians from whome the Purchase was made is to bee Recorded likewise which Purchase soe made and prosecuted and entered on Record in the office aforesaid shall from that time be Vallid to all intents and purposes.

An Act to prevent and make void clandestine and illegal purchases of lands from the Indians, Stat. Prov. Mass. Bay 1701-02, c. 11. WHEREAS the government of the late colonys of the Massachusetts Bay and New Plymouth, to the intent the native Indians might not be injured or defeated of their just rights and possessions, or be imposed on and abused in selling and disposing of their lands, and thereby deprive themselves of such places as were suitable for their settlement and improvements, did, by an act and law named in the said colonys respectively many years since, inhibit and forbid all persons purchasing any land of the Indians without the licence and approbation of the general court, notwithstanding which, sundry persons for private lucre have presumed to make purchases of lands from the Indians, not having any license or approbation as aforesaid for the same, to the injury of the natives, and great disquiet and disturbance of many of the inhabitants of this province in the peaceable possession of their lands and inheritances lawfully acquired; therefore, for the vacating of such illegal purchases, and preventing of the like for the future,—Be it enacted and declared by the Lieutenant-Governor, Council and Representatives in General Court assembled, and by the authority of the same,
(1). That all deeds of bargain, sale, lease, release or quit-claim, titles and conveyances whatsoever, of any lands, tenements or hereditaments within this province, as well for term of years as forever, had, made, gotten, procured or obtained from any Indian or Indians by any person or persons whatsoever, at any time or times since the year of our Lord one thousand six hundred thirty-three, without the license or approbation of the respective general courts of the said late colonys in which such lands, tenements or hereditaments lay, and all deeds of bargain and sale, titles and conveyances whatsoever, of any lands, tenements or hereditaments within this province, that since the establishment of the present government have been or shall hereafter be had, made, gotten, obtained or procured from any Indian or Indians, by any person or persons whatsoever, without the licence, approbation and allowance of the great and general court or assembly of this province for the same, shall be deemed and adjudged in the law to be null, void and of none effect: provided, nevertheless,—…
(4). That if any person or persons whatsoever shall, after the publication of this act, presume to make any purchase or obtain any title from any Indian or Indians for any lands, tenements or hereditaments within this province, contrary to the true intent and meaning of this act, such person or persons so offending, and being thereof duly convicted in any of his majestie’s courts of record within this province, shall be punished by fine and imprisonment, at the discretion of the court where the conviction shall be, not exceeding double the value of the land so purchased, nor exceeding six months’ imprisonment.
(5). That all leases of land that shall at any time hereafter be made by any Indian or Indians for any term of years, shall be utterly void and of none effect, unless the same shall be made by and with licence first had and obtained from the court of general sessions of the peace in the county where such lands lye: provided nevertheless, that nothing in this act shall be taken, held or deemed in any wise to hinder, defeat or make void any bargain, sale or lease of land made by one Indian to another Indian or Indians.

Those two colonial statutes are the template for all the colonies and their successors — the States of the United States and the Provinces of Canada. All are based upon and in compliance with the colonial constitutional law eventually codified and reiterated by the first and only omnibus constitution applicable to all of British North America, superseding the same message previously expressed in the governor’s royal commissions and royal instructions for the governance of the several colonial governments, the Royal Proclamation of 1763. It enacted:

[Preamble] And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds—We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure, that…
[1] no Governor or Commander in Chief…do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents…upon any Lands whatever, which, not having been ceded to or purchased by Us as aforesaid, are reserved to the said Indians, or any of them.
[2] And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments [Quebec, East Florida, West Florida], or within the Limits of the Territory granted to the Hudson’s Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid [i.e., all of British North America howsoever politically organized].
[2] And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved without our especial leave and Licence for that Purpose first obtained.
[3] And We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described or upon any other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.
[4] And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests, and to the great Dissatisfaction of the said Indians: In order, therefore, to prevent such Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do, with the Advice of our Privy Council strictly enjoin and require that no private Person do presume to make any purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where We have thought proper to allow Settlement: but that, if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie.
[5] And we do by the Advice of our Privy Council, declare and enjoin, that the Trade with the said Indians shall be free and open to all our Subjects whatever. provided that every Person who may incline to Trade with the said Indians do take out a Licence for carrying on such Trade from the Governor or Commander in Chief of any of our Colonies respectively where such Person shall reside. and also give Security to observe such Regulations as We shall at any Time think fit. by ourselves or by our Commissaries to be appointed for this Purpose, to direct and appoint for the Benefit of the said Trade:
[6] And we do hereby authorize, enjoin, and require the Governors and Commanders in Chief of all our Colonies respectively, as well those under Our immediate Government as those under the Government and Direction of Proprietaries, to grant such Licences without Fee or Reward, taking especial Care to insert therein a Condition, that such Licence shall be void, and the Security forfeited in case the Person to whom the same is granted shall refuse or neglect to observe such Regulations as We shall think proper to prescribe as aforesaid.
[7] And we do further expressly conjoin and require all Officers whatever, as well Military as those Employed in the Management and Direction of Indian Affairs, within the Territories reserved as aforesaid for the use of the said Indians, to seize and apprehend all Persons whatever, who, standing charged with Treason, Misprisions of Treason, Murders, or other Felonies or Misdemeanors shall fly from Justice and take Refuge in the said Territory. And to send them under a proper guard to the Colony where the Crime was committed of which they stand accused, in order to take their Trial for the same.

The drafters of the Royal Proclamation of 1763 were quite superb at their job. They well understood the insidious political temptation under which the governors and the governments under them had to labor, so far from the mother country and exposed to the blandishments of the local gentry, land speculators, businessmen and settlers, all champing at the bit to get into constitutionally off-limits Indian territories. The proclamation heads off the lure of non-compliance in no uncertain terms, making it punishable without proof of guilty intent as “Misprision of Treason,” an absolute offence equivalent to a high contempt of court or treasonable act against the person of the monarch or counseling war upon the Crown’s dominions or home country.

Anyone doing any of the prohibited acts was to be hunted down and returned from the Indian territories if found there, to stand trial in whatever colony the crime had occurred in. This transportation for trial was, of course, necessary since the colonial courts had no jurisdiction in the Indian territories, since those territories remain under the exclusive jurisdiction of the original Indian tribal governments and courts. Until such time as the tribe should contract by Treaty agree to relinquish its territorial sovereignty and possession.

The proclamation anticipated “Pretence” and “Fraud” and “Abuse” in places both high and low in order to get at the Indians’ lands and resources without compliance with the constitutional law. That is why the breach of it was constituted a crime tantamount to treason but easier to prove than treason, since “Misprision” renders the “Treason” punishable upon mere proof of the prohibited act, whether it be an authorized grant of land patent by the Governor or Commander in Chief or the poorer farmer crossing the Treaty Frontier with a little herd of sheep to graze. The defence of ‘Who me?’ or ‘I got lost!’ or any such other thing going to the absence of criminal intent was not arguable.

That is very essence of the legal device of the Royal Proclamation. That rarely employed and peculiar kind of law is published and nailed up on every court house door and every political chamber. It is quite literally “proclaimed” throughout the land much in the same way as in pre-literate England a Town Crier would cry out the message all around each town and village before nailing it with its big red seal in some prominent public place, to remind all and sundry of the law of which all persons in the realm irrebutably are presumed by operation of law alone to have had actual notice.

This is law that section 109 of the Canadian constitution in 1867 saved and continued as the supreme law constitutionally protecting the Indian tribal sovereignty and possession pending treaty when it enacted that the constitutional delegation to the Provinces of Canada of jurisdiction over “Property and Civil Rights” is subject to the Indians’ previously established constitutional “Interest,” rather than the other way round. Thus in 1875 the Minister of Justice and Attorney General of Canada filed a Report in the Privy Council (Canada) recommending the Public Lands Act of British Columbia be disallowed on the ground of conflict with the Royal Proclamation of 1763 in so much as it purported to have dispositive power over Indian lands for which no Indian Treaty surrendering Indian sovereignty and possession had been registered. That is, the province was asserting original as opposed to derivative jurisdiction to grant lands within the geographical boundary of the province regardless of the Treaty Frontier. The Minister’s recommendation was adopted by the Privy Council by Minute in Council which then in turn was signed and sealed into law by the Governor General of Canada. The Report was as follows:

Canada Minute in Council of 23 January 1875. The 40th article of the treaty of Capitulation of Montreal, dated 8th September 1760, is to the effect that: “The Savages or Indian allies of His Most Christian Majesty shall be maintained in the lands they inhabit if they choose to remain there.” The Proclamation of King George III 1763 [enacts] “…such parts of our dominions and territories, as not having been purchased by Us, are reserved to them, or any of them as their hunting grounds;…or upon any lands whatever, which not having been ceded to or purchased by us, as aforesaid, are reserved to the said Indians, or any of them…And we do further strictly enjoin and require all persons whatsoever, who may have either wilfully or inadvertently seated themselves upon any lands within the Countries above described, or upon any other lands, which not having been ceded to or purchased by us, are reserved to the said Indians as aforesaid, forthwith to remove themselves from such settlements…” The Undersigned would also refer to the BNA [British North America] Act 1867 Sec. 109, applicable to British Columbia, which enacts that, all lands belonging to the Province shall, belong to the Province “subject to any trust existing in respect thereof, and to any interest other than the Province in the same.” The Undersigned [Minister of Justice for Canada], therefore, feels it incumbent upon him to recommend that this Act [the British Columbia Public Lands Act] be disallowed [as unconstitutional in virtue of purporting to apply to Hunting Grounds reserved for the Indians].

The Minute in Council was not, in fact, implemented. Instead, in a complete about face the government of Canada the following year chose instead to ignore section 109 of the constitution constituting that government subject to section 109. Rather than respect the proclamation the Prime Minister who at one time was also Superintendent of Indian Affairs led his colleagues into passing the Indian Act of 1876 which itself was modeled upon the American Appropriations Act of 1871.

The Indian Act provided that the only Indians with legal status are those individuals who are listed on the band lists maintained by the Department of Indian Affairs and Northern Development. Bands are defined as bodies politic incorporated pursuant to the Indian Act and exercising the municipal powers (dog bylaws, garbage collection and so on) authorized under that statute and approved by the Superintendent of Indian Affairs who has discretionary power to disallow any band council resolution.

As under the Appropriations Act of 1871 the Indian Act of 1876 introduced a regime of federal law profoundly in conflict with the previously established constitutional law.

This, of course, was and remains unquestionably unconstitutional. In rule of law theory all the Indian tribes had to do to protect their sovereignty and possession from this usurpation and dispossession was to deliver a Notice of Constitutional Question requiring the Court to answer by declaring the Appropriations Act of 1871 the Indian Act of 1876 null and void.

That is easier said than done. In complementary ordinary legislation it became a criminal offence for a lawyer to represent Indians without the consent in writing of the Superintendent. Not that any lawyers applied. The profession was too busy doing the land deals in consequence of the unconstitutional dismantling of the Treaty Frontier Wall. It is very hard for a lawyer to break ranks with his profession. Especially since the members of the bench are drawn from it.

Not only was it hard, but pragmatically it was impossible. The clerks of the courts who are appointed to office and subject to removal from office by the judges of each court were — and are — under permanent instructions to reject any document filed by or on behalf of an Indian tribe claiming constitutional protection for its sovereignty and possession. No Indian accused of a criminal offence could, or can, get heard in court to raise the constitutional defence of tribal sovereignty.

Prior to 1871 Indian tribal sovereignty was a commonly referenced topic in hundreds of recorded court cases. After 1871 there are no references. The previously established judicial confirmations of the constitutional law in every generation since 1789 suddenly stopped. The Indian tribal sovereignty court record from 1871 to 2004 is a blank slate.

This is not surprising given that access to the civil courts is barred by the court clerks who refuse to permit the filing of the constitutional question and of the criminal court judges who cannot see or hear the issue. The question is not a part of any court record or reasons for judgment because the legal profession and judiciary do not permit it.

Prior to 1871 everybody, and not only lawyers and judges, knew perfectly well the federal government has jurisdiction to regulate the Indian trade pursuant to the commerce clause subject to the treaty and defence clauses that protect the tribes from invasion, occupation, usurpation and dispossession “on any Pretence whatever.”

What the constitutions attempted to do but did not succeed in doing was to guard against the counter-revolution that eventually did overthrow Constitutional Democracy and replace it with Unconstitutional Empire. The counter-revolution was created and implemented from within the society rather than from the outside. The constitutions placed their People’s trust in the guardianship of the legal profession and the judicial branch of government.

Theirs was duty to implement the rule of law specifically by upholding the principle of the supremacy of the constitution upon which the existence of Constitutional Democracy entirely depends.

The framers of the constitutions, the same as the drafters of the Royal Proclamation of 1763, were not wet behind the ears. They knew of the proclivity of governments to exceed and abuse the powers entrusted to them and they sought to forestall the risk by putting the court system in the position of guardianship of the public trust to safeguard Constitutional Democracy. After all if you can’t trust the judges, who can you trust?

For the past forty years I have been persisting in trying to get into courts, on behalf of Indian tribal governments, the constitutional question of the conflict of laws between the constitutions’ amendment, commerce, defence, judicial oath respecting the supremacy of the constitution and treaty clauses and their interpretive precedents on the one hand, and on the other the federal Indian law introduced by the Appropriations Act of 1871 and the Indian Act of 1876.

In 1999 a judge convicted me of criminal contempt of court and in due course I was disbarred as a convicted criminal from practicing with regard to the law of Ontario, on the basis of the bare faced lie that every judge before whom I had raised the question carefully and patiently had addressed it and discounted it with cogent reasons for judgment. If that were true, there necessarily would be a court record to prove it. Not that the law of Ontario is relevant other than that it is one of the many bodies of law that unconstitutionally is applied in criminal willful blindness by the courts of the Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States.

The crimes go beyond mere ‘Misprision of Treason” and most importantly today consist in war and genocide, the prevention of which is the objective of the case of Constitutional Democracy v. Unconstitutional Empire carriage of which now has been picked up by the case of Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States.

What that case does is present an answer to the same old constitutional question that the legal system of the Unconstitutional Empire of the responding nations, with the cooperation of the International Court of Justice, International Criminal Court, Human Rights Committee of the United Nations and Judicial Committee of the Privy Council (UK), have managed successfully to make invisible and unheard-able ever since 1871.

Suddenly, in 2004 US Supreme Court Justice Clarence Thomas took judicial notice, on his own motion, for the Court to address the manifestly unconstitutional status of the Appropriations Act of 1871 and the Indian Act of 1876 in the light of the Commerce, Treaty and Defence Clause precedents read as a set. This was the first time in 133 years that a North American judge opened his eyes to see the conflict and, therefore, the urgency of the Court answering the constitutional question of jurisdictional law alone of Indian tribal sovereignty.

He did this on his own initiative, since the system is set up to block litigants who raise the question from reaching the Judges. Out of the blue Justice Clarence Thomas of the Supreme Court of the United States in the Case of United States v. Lara, 541 US 193, 214, 227 (2004) said in compliance with the Judicial Oath Clause Article VI ¶3 :

In 1871, Congress enacted a statute [Appropriations Act of 1871] that purported to prohibit entering into treaties with the ‘Indian nation[s] or tribe[s].’ 16 Stat. 566, codified at 25 USC §71. Although this Act is constitutionally suspect (the Constitution vests in the President both the power to make treaties, Art. II, §2, cl. 2…), it nevertheless reflects the view of the political branches that the tribes had become a purely domestic matter. To be sure, this does not quite suffice to demonstrate that the tribes lost their sovereignty…Federal Indian policy is, to say the least, schizophrenic.…I believe we must examine more critically our tribal sovereignty case law. Both the Court and the dissent, however, compound the confusion by failing to undertake the necessary rigorous constitutional analysis. I would begin by carefully following our assumptions to their logical conclusions and by identifying the potential sources of federal power to modify tribal sovereignty …I do, however, agree that this case raises important constitutional questions that the Court does not begin to answer. The Court utterly fails to find any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty…I would be willing to revisit the question.

Well, the cat is out of the bag. No way does she want to be jammed back in there. William K. Suter, Clerk of the Supreme Court of the United States, is doing his level best to serve as the Honorable Cat Catcher to the Unconstitutional Empire. Suter has refused to let Gary and Rick file thec case of Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States. Suter’s ground of refusal is, the federal legislation whose constitutionality itself is in question does not allow constitutional challenges to itself. And that is where the matter presently stands. To all intents and purposes the cat is back in the bag, notwithstanding Justice Thomas. The most recent of the very many painful attempts to escape the prison built and maintained by the judicial branch of the Unconstitutional Empire to contain and restrain the constitutional question is the following letter to each of the individual Justices of the Supreme Court of the United States:

In our previous article, “The Real Delusion Part I,”¹ we argued that, despite their emphases on religious skepticism and open scientific inquiry, the New Atheists² * have betrayed the spirit of the Enlightenment and have instead veered toward an obdurate and uninspiring offensive against superstition that blames most of the world’s current ills on irrational religious belief. Enlightenment thinkers assailed religious superstition because it was part and parcel of a powerful institutional framework that most found abhorrent; furthermore, most Enlightenment thinkers believed that religious toleration was a noble desideratum.³ The New Atheists, on the other hand, believe that religious toleration is potentially destructive.⁴,⁵ More importantly and dangerously, they have promulgated the idea that religious belief imperils Western society, convincing myriad people that such concerns are dire and distracting attention from other, more urgent political issues.

We also noted that human political nature could be usefully understood with the aid of two important concepts: reverse hierarchy egalitarianism and coalitional competition. Using these concepts, we traced the rise of the modern state, noting that legitimation narratives are an important component of state formation and maintenance. Although the earliest legitimation narratives were religious, growing skepticism and secularism gradually eroded the efficacy of religious narratives in the West. This led to the development of secular narratives and eventually to the neoliberal nationalist narrative that is predominant today. Finally, we argued that Harris’ contentions about the nature of Islam and its effects on believers are often erroneous, unempirical, and dangerous because they could potentially contribute to Western Islamophobia.⁶ *

In this article, we will continue our analysis of the Enlightenment and its tradition, specifically focusing on Noam Chomsky. We will first situate Chomsky historically, noting that he is profitably viewed as perhaps the most representative intellectual of the Enlightenment heritage. His radical critique of power and ideology, exposure of moral hypocrisy, and praise for intellectual integrity, represent the true spirit of the Enlightenment and will inform our criticism of modern power and the narratives it uses to cloak its machinations. This will be accomplished by focusing on three domains: the mainstream media, domestic policy, and foreign policy. We will conclude by completing our critique of the New Atheists in light of the previous analyses.

Continuing the project of the Enlightenment

According to the Enlightenment philosopher Immanuel Kant, enlightenment is humankind’s emergence from a self-created cocoon of immaturity and ignorance; and the Enlightenment, the age that finally began to offer the freedom needed to thus emerge.⁷ The most important obstacles to this desired freedom were powerful institutions and the narratives they propounded; the institutions because they coerced behavior and the narratives because they encumbered and enslaved reason. An important and instructive example of this spirit is found in the works of Thomas Paine, particularly in his two major treatises: The Rights of Man (1791), ⁸ and The Age of Reason (1794-1807).⁹ In The Rights of Man, Paine excoriated corrupt and tyrannical forms of government and the narratives used to justify them. Monarchy, he asserted, was an affront to reason and human dignity, and he endlessly attacked the pomp and pageantry used to mystify it. Paine believed that illegitimate forms of government were based on either superstition or power–the former government based on priestcraft and the latter on conquerors. The only legitmate government arose from the consent and reason of the governed. The age of Reason, like The Rights of Man, was a sustained attack on power and privilege, this time aimed at the “adulterous” nexus of church and state. Paine believed that the institutions of the church were iniquitous and that priests lusted power and wealth rather than human betterment. As Paine acerbically put it, “the Christian theory is little else than the idolatry of the ancient Mythologists, accommodated to the purposes of power and revenue.”¹⁰ Paine also panned the doctrines of Christianity, but it is important to remember that churches wielded a significant amount of political power at the time he was writing and that his chief concern was social justice.* This concern permeates his writings and is the fount of both his bitterness and his optimism.

The legacy of the Enlightenment, then, is a healthy skepticism of power and of the narratives propounded by the powerful. It is true that Enlightenment thinkers also sought to advance scientific thinking and to dispel various kinds of superstitions, but most were satisfied with a “non-overlapping magisteria”¹¹ arrangement: science tackled empirical problems, and religion tackled existential issues.¹² (It is useful to remember that some of the most brilliant embodiments of the Enlightenment were quite religious–Newton, for example.) Viewed from this perspective, no one better encompasses the spirit of the Enlightenment than Noam Chomsky, who has tirelessly attacked powerful and unjust institutions, intellectual hypocrisy, erroneous political narratives, and the moral laziness that leads to a passive acceptance of power no matter how grievous the consequences. Perhaps Chomsky’s most general statement of the appropriate task of intellectuals is found in his essay “The Responsibility of Intellectuals.”¹³ The first and most obvious responsibility, Chomsky argues, is “to speak the truth and to expose the lies” of powerful institutions like corporations and governments; this burden is placed on “intellectuals” because Western democracies “provide” them “with the leisure, the facilities, and the training” to pierce the patina of distortion that cloaks the operations of power. The intellectual does not mock doctrines that have little influence on social injustice, or those held by official enemies (say, in many cases, Islam), but rather confronts, first and foremost, the image in the mirror.¹⁴ For a citizen of the United States, that means focusing on the policies of our own government rather than self-righteously lampooning the ignorance or stupidity of the beliefs of “official enemies or those designated as unworthy in the prevailing political culture.”¹⁵ These are responsibilities that Chomsky has taken seriously for more than 40 years, working indefatigably to dismantle the narratives and ideologies of the powerful. His work offers the modern activist a fruitful heuristic for combating the myths, lies, and distortions that obscure the machinations of powerful coalitions and the institutions they control. This critique, not the New Atheists’ criticisms of religious faith, represents the true spirit of the Enlightenment.

Once again with human political nature and coalitional conflict

In our previous article, we argued that humans possess a suite of behavioral propensities that interact with the environment to give rise to political systems [see reference 1]. We focused on two of these tendencies: egalitarianism and coalition formation. The first manifests itself in a hatred of despotism and in the formation of reverse hierarchies in order to thwart despotic upstarts;¹⁶ the second, in the creation of unified coalitions of people who divide the world into “us” and “them,” granting moral status to ingroup members that is denied to outgroup members. For this article, we will also focus on a third fundamental component of human political nature: the motivation to control.¹⁷ * According to cognitive and educational psychologist, David Geary, the motivation to control is “an evolved disposition and is implicitly focused on attempts to control social relationships and the behavior of other people, and to control the biological and physical resources that have historically covaried with survival and reproductive prospects in the local ecology.” [page 24] Put more colloquially, the motivation to control is a biological tendency to desire control over people and resources. Politically, this essentially reduces to a desire for power, although it does not always need to manifest in a reprehensible form. For example, an activist concerned with inequality desires the ability to implement policies that will alleviate America’s inequitable economic distribution; the activist desires, in other words, the power to control economic policy.

The combination of these propensities leads to nearly incessant conflict between coalitions over finite resources. (The conflict need not be violent. Much of it is ideological, for example, and amounts to arguing with friends, groups, and large coalitions about how resources should be distributed.) In complicated, industrialized states, human egalitarian tendencies are often no match for the power of integrated coalitions; however, the combination of egalitarian proclivities and the motivation to control leads to anger and moral outrage from people and coalitions that do no reap the benefits of the institutional and coalitional arrangements (for example, women or minorities who were/are discriminated against in the labor market or victims of the financial machinations of Wall Street.).¹⁸ This necessitates some form of population control. In more democratic societies, the bludgeon is not an effective instrument and some attention must be paid to popular sentiment.¹⁹ The control of this popular sentiment through propaganda (political narratives) is therefore vital for the power elite. It is vital because it 1) limits the domain of thinkable thoughts and 2) limits the domain of acceptable debate. In the United States, the power elite (which consists of the corporate community, the upper class, and the policy planning network),²⁰ although only a tiny fraction of the entire population, controls a staggering proportion of the country’s available resources. This inequitable distribution of resources requires justification: it will not do for the power elite to simply assert, “we are better than the rest of you and therefore we own a significant proportion of the country’s wealth.” In the United States, as we argued in part I, the current political narrative is the neoliberal nationalist narrative. Because the mainstream media are an important conduit* of this narrative, it is important for a politically conscious person to analyze and criticize the media. Probably the most powerful framework for such a task comes from Edward Herman and Noam Chomsky’s Manufacturing Consent.²¹

Power nexus 1: The mainstream media (obscuring institutional analysis)

In Manufacturing Consent, Herman and Chomsky offer a compelling institutional analysis of the media. Instead of tramping down the well worn and distracting trail of liberal versus conservative analysis,* Herman and Chomsky ask a simple question: what are the media? The straight forward but illuminating answer: “…the major media–particularly, the elite media that set the agenda that others generally follow–are corporations ‘selling’ privileged audiences to other businesses.”²² That is, the media are enormous, profit seeking corporations that raise revenue by selling space for advertisers. They can charge more for such space if their readership includes the proper demographics–so, in essence, they are “selling” their audience to other businesses (namely, advertisers). In a certain functional sense, the “news” is simply a lure to attract audiences, which are the primary product that the media offers on the market.

Before continuing, it seems profitable to make a few remarks on institutional analysis. Perhaps one of the more impressive accomplishments of modern propaganda is effectively to eliminate this kind of straight forward analysis from mainstream consideration. In a famous scene from the documentary Manufacturing Consent, for example, the author Tom Wolfe calls Herman and Chomsky’s observations about the operations of the media “patent nonsense,” and conflates them with a conspiratorial view of the media, complete with elites in a “beige room” deciding what can and cannot be distributed. This is stunning because Herman and Chomsky explicitly assert the opposite: there are no central control stations or informational bureaus; rather, there are institutions functioning exactly as one would expect them to function. Wolfe, like most of the population, is almost certainly unfamiliar with the style of analysis Herman and Chomsky use and probably honestly confuses it with the picture he presents in the documentary–a confusion that is common and prevents such analysis, although obvious and highly informative, from becoming common place. Since we are surrounded by powerful institutions, this dearth of institutional analysis is particularly pernicious. For those not properly acclimated to our intellectual environment, it might seem risible that a number of intellectuals (the New Atheists) assail the “irrationality” of religious belief and fulsomely praise the virtues of skeptical inquiry while utterly ignoring the functions of the institutions that dominate modern society (and therefore greatly shape the lives of people on the planet), but such protestations of open skepticism have often been coupled with unquestioning acceptance of contemporary institutional structures and in this the New Atheists have ample company. Nevertheless, if one wishes to be serious about skeptical inquiry, one should extend its reach beyond relatively obvious belief structures and into domains of real power.

Herman and Chomsky’s basic institutional framework led to their propaganda model of the media. The propaganda model is a theoretical description (Chomsky calls it “virtually just an observation”²³ ) of the forces that shape the content of the media; it also describes the type of content one would expect given the structure of those forces. According to the model, there are five basic filters that affect the content of the media: ownership, sources of funding, sourcing, flak, and fear mongering (anti-communist or anti-terrorist ideologies). Of these, the first three are the most important.

–Ownership. The media are large corporations; therefore the content is owned by large, profit seeking institutions.* Through interlocking directorates, the corporations which own the major media outlets are linked to the corporate community in general. This shapes the content of the media because it is in the interest of corporations to instill a consumerist mentality and subservience to power. And it is certainly against the interests of corporations to teach institutional skepticism.

–Sources of funding. The media “sell” audiences to other businesses. It follows that the elite media wishes to attract affluent readers and to convey a consumerist message so that businesses will desire advertising space. A newspaper, for example, that is highly critical of corporations and profit seeking in general cannot attract advertisers and is at a serious funding disadvantage. In a very real sense, the function of the “news” is not to provide trenchant analysis of the political world, but rather to attract affluent audiences or distract the less affluent*; the news, in other words, is not the primary product. (This does not mean that individual journalists are conscious of this; rather, it means that the news functions as a lure for audiences.)

–Sourcing. The media require sources of information and individual reporters desire access to “privileged” insider information. This makes the media highly dependent upon official sources, like the pentagon or the central government. If a reporter writes a story critical of some aspect of foreign policy, for example, she might lose her source. Since reporters compete for sources, such a loss can be devastating. In a larger sense, each media outlet is dependent upon information from official sources because an outlet cannot possibly put reporters all over the globe. Reporters are concentrated in informational areas: the pentagon or the White House, for example.

This institutional arrangement leads to the propagation of a corporate friendly narrative in the same way that the institutional arrangement of ESPN leads to the propagation of a sports friendly narrative. Doubtless, many journalists within the framework earnestly feel that they are “free” to publish and discuss what they desire, and visible evidence of censorship is kept to a minimum (although it is certainly not non-existent²⁴ ). Overt censorship is rare precisely because it is not necessary. Individual journalists and reporters who succeed within the establishment do so because they have either 1) internalized the neoliberal nationalist narrative or 2) have not desired to directly confront it in any meaningful way. Those who challenge the framework, like Norman Finkelstein, Noam Chomsky, Jack Rasmus, et cetera, are weeded out well before they reach elite centers of news distribution.

Perhaps one of the most pernicious effects of the mainstream media is the creation of an illusory boundary of reasonable debate. Subjugating thought to a manufactured framework with narrow limits, this boundary determines what can and cannot be discussed, even contemplated, in the United States. If one does transcend the boundary and attempt to criticize institutional structures, one is reduced to speaking an incomprehensible language. For example, asserting that the United States is the largest purveyor of terrorism in the world is not just considered erroneous, it is considered insane–it is virtually a meaningless sentence in the English language (at least in the U.S.). Most people would react to that and other similar statements in the same manner they would react to a person asserting that the home sports’ team should pull its best player so that it can lose as many games as possible–with bemused indignation. Let us consider a concrete example.

While “cool” and “rational” pundits like Jon Stewart* bemoan the increasing polarization of media outlets in America, the real polarization between the rich and the poor continues at an alarming rate.²⁵ This was shockingly evinced in the media’s coverage of the budget battles of 2011. Representative Paul Ryan, a self-styled votary of the mythological Reagan, unveiled his budget plan on April 5 to a prodigious amount of media hype. Many fulsomely praised the unflinching “seriousness” of Ryan’s plan, which managed to manhandle reality “with both hands” and forced “everybody else to do the same.”²⁶ Meanwhile, the progressive congressional caucus also forwarded a budget (April 13) that would balance the budget while leaving in place the legacy of the New Deal. While the “People’s Budget” received praise from some notable economists, including Nobel laureate Paul Krugman, who called the plan “genuinely courageous,”²⁷ it was not widely discussed in the mainstream media,²⁸* apparently lacking the “seriousness” of the Ryan plan, despite the fact that it managed to balance the federal budget within a decade (the People’s Budget projected a $30.7 billion dollar surplus in 2021²⁹ ) without eviscerating important social programs. What condemns the media more forcefully than this disparity in coverage, however, is their utter disregard for the opinions and desires of the majority of the United States’ population. While David Brooks and others continue to praise the boldness, seriousness, and courageousness of robbing the poor to fund the rich (for example, while the Ryan plan cuts $4.3 trillion dollars in spending, it offset this with $4.2 trillion in tax cuts, at least two thirds of which come from programs for those of moderate means. See analyses of the Ryan plan³⁰,³¹ ) the majority of the population believes that income should be more equally distributed (on the level of Sweden) and, in fact, believes that it is already much more evenly distributed than it is–a great success of the propaganda system no doubt.³²

It is important to note that the Ryan plan, the People’s Budget, and other proposed fiscal policies have enormous concrete effects on normal citizens. While the New Atheists deploy witty one liners about the follies of faith, write books about why god is not great, and lament the irrationality of religious belief, millions of people are unable to perceive the reality of important political policies that will, to a significant degree, determine the future state of our society. The first and most salient reason is the shameful content of the mainstream media, something that those who desire a more “rational” world should focus their energy on combating and correcting.

Power nexus 2: Domestic policy and power (in praise of mythical markets)

The media are, in a very real sense, an extension of the centers of domestic power; therefore, it is important to understand and criticize these domestic power centers. Significantly, domestic power and policy has shifted dramatically since the 1960’s, leading from the Keynesian era to the triumph of neoliberalism (or, what has been aptly dubbed ‘the Age of Greed’ by Jeff Madrick.³³ This shift has profoundly impacted society, drastically increasing inequality (see figure 1²⁵ ), while concomitantly decreasing investment in social programs and infrastructure. In other words, an increasingly small fraction of society (a small coalition) has appropriated more of the resources. Noam Chomsky has been a leading critic of this trend, consistently pointing out the astonishing disconnect between the narratives used to justify this pattern of appropriation (“free markets dispassionately distributing resources”) and the reality behind it. In a society where narratives often serve the function of the bludgeon, it is important to escape one’s voluntary servitude by increasing one’s knowledge of 1) economic and political reality and 2) the content of the narratives used to justify the underlying reality.

Domestically, neoliberalism can be conceptualized as a set of policies aimed at increasing profitability while stripping away the foundations of the New Deal settlement (e.g., constraining upper class incomes, pursuing full employment, increasing labor’s share of the national income, etc.³⁴ That is, these policies are designed to enrich the oligarchical power elite, who are, in Chomsky’s words, “vulgar Marxists, with values and commitments reversed.”³⁵,³⁶ These policies include liberalizing trade and finance while promoting macroeconmic stability, privatization, and deregulation.³⁷* The monetary outcome of these policies, as indicated by a plethora of data, is continually increasing inequality and economic insecurity;³⁸ psychologically, there are plausible but still controversial interpretations of data that claim these policies have led to increases in antisocial behavior, including narcissism, and in potentially serious mental illnesses like depression and anxiety.³⁹ If our general outline on human political nature is correct, the increasing prevalence of these conditions is entirely understandable. Humans desire control and some form of egalitarianism. Just as a dearth of food leads to predictable physiological responses and pain, so a dearth of control leads to predictable psychological ailments.⁴⁰,⁴¹ However, because of the power of the neoliberal nationalist narrative and the increasing popularity of libertarian philosophies, many people are ignorant of the causes of inequitable resource distribution and the many troubling symptoms it causes. It may turn out that many of us are suffering from a curable disease but are unable to discern its cause. Furthermore, there is good evidence that inequality promotes religiosity where as religiosity does not promote inequality–in other words, there is good evidence that inequality causes increases in religious belief (at least in the United States).⁴² Those who desire that religion disappear might want to pay some attention to such recalcitrant facts as they recommend a strategy much different from the currently fashionable activity of denigrating the beliefs of religious adherents.

Because the policies of neoliberalism would be repugnant to most citizens, they are justified with narratives about the efficiency and fairness of free markets.⁴³,⁴⁴ In fact, it would be difficult to find another mythical entity that provokes such effusive praise and elicits such unthinking devotion. As Chomsky points out, many miracles are imputed to the creative efficiency of free markets that were actually the result of careful social planning and federal investment: the internet, aeronautics, pharmaceuticals, biotechnology, the high tech industry in general,… the list is nearly inexhaustible. In fact, one of the vital roles of the pentagon in the United States’ economy is to fund high tech industry, a simple fact that should be known by every citizen but is safely hidden by the propaganda system. The basic argument that “free market fundamentalists” (a truly scary form of fundamentalism) make thus rests upon a false premise. Consider one representative example. In a 20/20 episode on free market health care,⁴⁵ John Stossel argues against Michael Moore’s concerns about the free market, noting that free markets have created all kinds of brilliant things like cell phones, computers, and helpful medicines. Unfortunately, Stossel does not bother to note the incredible amount of federal funding that went into creating these technologies, the patent monopolies that drug companies use to boost profits and thwart competition, or the direct investment line from the enormous corporations that produce these goods into politicians who doubtlessly return the favor with friendly policies. (Corporations aren’t investing in politicians so that they will increase competition and lower profits.)

Like most fundamentalists, free market votaries almost invariably misrepresent the ideas of their supposed ancestors. A particularly illustrative example is Adam Smith, the nearly flawless and peerless demigod who begat the notion of the ‘invisible hand,’ and supposedly showed how a laissez faire system could, as if through some form of economic alchemy, change the base metal of selfishishness into the gold of economic prosperity for all. As Chomsky has noted numerous times,⁴⁶ the phrase “invisible hand” appears exactly once in Smith’s The Wealth of Nations (it appears one other time in his other works⁴⁷), and Smith does not use it to describe how selfish humans behaving for profit unknowingly but ineluctably bring prosperity to others; rather, Smith uses it to assuage fears of capital flight, arguing that people will prefer to invest in domestic markets rather than foreign markets.⁴⁸ Smith’s arguments were subtle and sophisticated, but he generally favored market policies because he believed that they would produce economic equality. He had nothing but scorn for the “masters of the mankind,” who lived by the “vile maxim” of “all for ourselves, and nothing for other people.”⁴⁹ Like most enlightenment thinkers, he assailed the established powers of his time: the merchants and the policies that favored them. Had he lived to see the modern corporate revolution, he undoubtedly would have execrated the corporations that eventually supplanted the merchants that he so effectively attacked.

In a country with a reasonable educational system and tolerable media content, the above would be recognized for what it is: a series of facts and truisms. Since the myths that disguise these truisms actively promote the interests of the “masters of mankind,” however, they are eagerly promulgated and the truths that they hide are relegated to the margins of scholarship. Again, those who desire to liberate the mind from the shackles of irrational mythologies, especially when those mythologies have serious repercussions, should actively attack and encourage others to attack the neoliberal nationalist narrative and the myths it promotes. To consider just one example of the seriousness of the repercussions of neoliberal policies concretely, it is worth contemplating the following: the September 11 attacks (of which more below) tragically killed 3,000 individuals. However, an estimated 45,000 Americans die every year due to a lack of health insurance.⁵⁰ This is an astonishing number that is absolutely preventable, unlike the deaths that result from the actions of official enemies. It may comfort us to focus on those crimes while ignoring our own, but it does not improve our society. Although, as Noam Chomsky notes in a related context, it is not surprising that we often choose to ignore these inconvenient facts “given our principled exemption from moral truisms.”⁵¹

Power nexus 3: Foreign policy and power (noble intentions)

The neoliberal nationalist narrative promotes a consistent picture of American foreign policy: it stems from “benevolent” intentions and “clear moral purpose.”⁵² Sometimes, in fact, the intentions become so altruistic that it is appropriate to assert that “America is going through a noble phase” in foreign policy, one shrouded in a “saintly glow,” and committed to ideals that might actually be injurious to American interests because of their utter beneficence.⁵³ Although the language here might be a bit hyperbolic, it is not anomalous. In a 2002 article by Dinesh D’Souza, for example, we learn that America is “the most magnanimous imperial power ever,” an “abstaining superpower” that could “conquer” the world but has not interests in doing so.⁵⁴ In fact, the idea that the United States is the single greatest force “for peace and freedom, for democracy and security and prosperity” is a virtual truism.⁵⁵ Attempting to find assertions to the contrary in the mainstream commentary poses an enormous challenge. If one veers to the extreme left of mainstream debate, one might find arguments that American intervention across the globe is wrong, not because it is criminal, but because it is too costly or because America is not “winning.” More often the focus is turned toward our “kindergarten” allies and their inability to cooperate.⁵⁶ The function of the narrative is clear. It dissuades criticism, refuting counterarguments not with logic but with a simple tautology algorithm: if America intervened, it did so from noble intentions. Statements to the contrary are simply not allowed to register in the minds of most citizens; therefore, even on the rare occasions that such arguments are broadcast, they are nearly incomprehensible. A hypothetical Martian might be forgiven for wondering why a group of “free thinkers”* finds it so necessary to demolish the relics of irrational religions, while sedulously ignoring (or underplaying) the horrific brutality of American foreign policy and leaving the basic narratives that support it untouched. Again, to find a trenchant analysis of the exercise of institutional power (this time, in the realm of foreign policy) that preserves the spirit of the enlightenment, one should turn to Noam Chomsky.

According to Chomsky, the basics of inter-state relations are simple and are captured to a first approximation by the maxim of Thucydides: “the strong do as they wish, and the weak suffer as they must.”⁵⁷ Because the United States has been the most powerful country on the planet since World War II, it has done what it wishes, and its victims have suffered as they must.* The important thing, then, is to understand what America wishes; or, in other words, to understand its goals and how they lead to the particular interventions it has engaged in. The most basic goal “is to ensure a favorable global environment for U.S. based industry, commerce, agribusiness and finance.”⁵⁸ Countries that do not cooperate with this motive are punished through the two basic weapons America has at its disposal: military might and economic leverage. The examples of Chili and Indonesia are highly informative in this respect.

In 1970, Chile (democratically) elected Salvador Allende, a nationalist and Marxist, president. American policy planners were horrified. According to a 1975 Church Commission Report,⁵⁹ Washington had spent millions of dollars campaigning against Allende in prior elections even carrying out “spoiling operations” to prevent an Allende victory.⁶⁰ In 1970, however, he won by a narrow margin and policy planners immediately scrambled to undermine his regime. Nixon feared that Allende might become another “Castro,” meaning someone who refused to take orders from Washington, an overwhelming fear of policy elites. Two basic plans were designed: a Track I strategy that relied on political sabotage and economic warfare (making the “economy scream” according to the notes of DCI Helms.⁶¹ Nixon believed this would have “one hell of an effect.”⁶² ); and a Track II strategy that involved the CIA initiating a coup to prevent Allende from taking office. Both strategies failed to prevent Allende from taking over, but the economic warfare did have a serious, deleterious effect on the country. Eventually, General Augusto Pinochet was able to organize a bloody coup and overthrew Allende on September 11th, 1973 (now sometimes called “the first 9-11.”⁶³ ). Although there is no evidence that the CIA was directly involved in this coup, they were quite aware of it, and the Nixon administration was privately delighted (this was somewhat disguised in public).The death toll of the coup was over 3,000, and the horrors of the tortures implemented during Pinochet’s regime are ghastly.⁶⁴,⁶⁵ Not unsurprisingly, little time was wasted by policy elites ruing these tragedies. Today, the Pinochet regime is often remembered for being “tough,”⁶⁶ but for creating an “economic miracle”–one orchestrated by the “Chicago Boys,” who were “inspired” votaries of Milton Friedman’s “free market” principles. As Chomsky notes, this “miracle” is more mirage than substance, as the economy under Pinochet actually floundered, and the state had to take over much of the banking system to save the falling fragments of a failing economy. This is sometimes sardonically called “the Chicago road to socialism”–an apt phrase, although one not ordinarily encountered in mainstream literature on the topic.

In Indonesia in the 50’s and 60’s, after briefly expressing tepid support for him, America worried that president Sukarno was a dangerous “neutralist” and decided to take covert action to oust him. This attempt failed, so America decided to build up the Indonesian military, hoping for a coup. In 1965, there was a bloody coup and a subsequent “purging” of “communists” in the Partai Komunis Indonesia (PKI).⁶⁷ Suharto ascended to power and an estimated half a million people were killed.⁶⁸ While America was not directly involved in the coup, policy elites supported it, desiring to extirpate the PKI.⁶⁹ This support went as far as providing lists of thousands of “communists” to the Indonesian military.⁷⁰ In 1975, Indonesia invaded East Timor and overthrew the Fretilin headed government. They continued to occupy the island until 1999, when Clinton finally noticed that some bad things had happened and “informed the Indonesian military that Washington would no longer directly support their crimes.”⁷¹ Although the exact number of dead in East Timor is unknown, it is estimated that at minimum 102,800 East Timorese perished; while a higher end “speculation” of the number dead due to “conflict related hunger and illness” reached 183,000 (the CAVR report, from which these numbers are taken, did not issue a maximum estimate).⁷² Staggering numbers made even more heinous because they could have been easily prevented: Without direct support from Washington, as is clear from later events, the massacres would not have happened.⁷³ * As noted by Chomsky, what is astonishing about all of this is that it has been converted into a proof that America had entered a “noble” phase of foreign policy.⁷⁴ Meanwhile, most citizens remain unaware of the horrific tragedy, another impressive achievement of the propaganda system.

What the examples in Chili and Indonesia (the cases could be multiplied ad nauseam) incontestably illustrate is that American foreign policy is not about high moral values, benevolence, altruism, or other idealistic phantasms; rather, it is about the exercise and continuation of power. In Latin America, the U.S wanted to guarantee itself access to important resources while concomitantly allowing for a continued corporate presence in the region. Allende threatened these goals; consequently, the people of Chile had to suffer while their economy “screamed.” In Southeast Asia, the goals were the same, and the people of Indonesia, regrettably, were just some of the hapless victims. The horrific invasion of South Vietnam, saving it from “internal aggression” (against U.S. military and an U.S. supported regime), and near destruction of North Vietnam, Laos, and Cambodia, follows the same pattern. Importantly, U.S. foreign policy is not the manifestation of a “national interest,” unless one conflates the small coterie of elites who control foreign policy with the American population. Indeed, foreign policy follows the same basic pattern as domestic policy: a group of elites controls and benefits from the policies, while the vast majority of the population either suffers or reaps marginal rewards (and massive consequences from “blowback.”⁷⁵ It should be sobering to recognize that these terrible crimes, with prodigious and horrendous body counts, occur with the implicit consent of American intellectuals who, although granted unknown luxury and freedom, seldom rise from the comfort of their positions in academic institutions or branches of the government to protest against them.

Terrorism: Theirs and ours (intentional ignorance)

The events of 9-11 were, in many ways, the catalyst for the development of the New Atheism. Prior to 9-11, America had enjoyed almost absolute immunity from the kind of horrifying crimes it regularly doles out around the world. On 9-11, that changed. Understandably, many people were confused and emotionally disturbed by the tragedy and looked for answers to George W. Bush’s poignant question “why do they hate us”⁷⁶ * (Although, as Chomsky notes, the question is improperly phrased. “They” do not hate “us.” They hate the crimes that are perpetrated by the government, which should not be confused with the population of America.⁷¹ ) As Chalmers Johnson notes, this is a part of the blowback phenomenon.⁷⁵ Civilians, unaware of their government’s machinations in the affairs of other countries, suffer the consequences without knowledge of the reasons. Into this vacuum, a number of intellectuals provided a simple answer: they hate us because they are “simply evil” adherents of a “kind of death cult” religion,⁷⁷ a religion of a failed civilization that despises Western freedoms and values. And the attacks, so Richard Dawkins informs us, were made possible by the alluring image of 72 virgins in a paradisaical afterworld.⁷⁸ This, Dawkins also notes, is the source of the “underlying divisiveness in the Middle East which motivated” the attacks in the first place. In light of the grisly consequences of the 9-11 attacks, these intellectuals asseverated that it was no longer morally proper or decent to remain taciturn in the face of irrational belief systems, supposedly sacred or not. A number of subsequent bestsellers were penned and published, including Harris’s The End of Faith, Dawkins’ The God Delusion, and Hitchens’ God is not Great, that assailed religion and the supposedly heinous crimes it can compel believers to commit.⁷⁹,⁸⁰,⁸¹ One of the consistent themes of these books is that religion, at least the Abrahamic religions, is a barbaric relic of the middle ages and should be eschewed by rational and enlightened adults in an enlightened society (“the delusions of our ignorant ancestors,” according to Harris⁸² ). It is also implied, both implicitly and explicitly, that without religion, the horrific 9-11 attacks would not have occurred. (This is spelled out quite clearly in the rather unfortunate posters that read “Imagine a world without religion” and show the twin towers standing in front of a glistening sun.)

The New Atheists, then, systematically ignore or downplay the importance of politics. Specifically, they ignore the legitimate rage that many around the world feel because of years of suffering from American atrocities and cast blame at a more palpable (because easily known) target: religion. Harris, for example, goes so far as to say that we are at war “with precisely the vision of life prescribed to all Muslims in the Koran.”⁸³ (It is hard to tell if Harris is aware of the last 60 plus years of Middle Eastern history.) This trajectory of thought is often presented (in tone and rhetoric) as a continuation of the Enlightenment, a desire to use reason to slay the bogeyman of superstition and promote the values of skepticism and science. We have no disagreement with the second part of this desire. However, the most noble traditions of the Enlightenment would recommend a rather different course of action: acutely analyze political reality–the nature of the institutions and power structures that dominate the world today, the effects of foreign policy interventions, past and present, and the struggles of those who have not benefited from the “values” and “freedoms” of the West–and contextualize the behaviors of others in light of this analysis. Moral decency also offers another simple recommendation: look in the mirror before excoriating official enemies. In the political arena, this is often called “liberal masochism,” but in everyday life it is recognized as a noble virtue.

There were edifying responses to the events of 9-11, responses that followed the better spirit of the Enlightenment. Of the responses, Chomsky’s stands out for its lucidity and moral integrity*. Instead of using the tragedy to foment hatred, attack religion, or clamor for revenge, Chomsky sought to contextualize the event, noting that “we have a choice: we may try to understand, or refuse to do so, contributing to the likelihood that much worse lies ahead.”⁸⁴ That is, we may imitate Nietzsche’s portrait of the powerful and ignorantly persevere, paying no attention to the myriad legitimate grievances of those we regularly victimize, or we may behave like enlightened citizens and attempt understand the causes of the almost global antipathy against the U.S., antipathy that does not justify senseless murder, but that remains, in itself, reasonable given the history of U.S. foreign policy. Germane to the topic of terrorism are many polls, pointed out by Chomsky in his initial responses, that demonstrated that the majority of Muslims were (and still are) angered by U.S. policies, especially toward Iraq and Israel/Palestine. Further concerns included the U.S. role in propping up oppressive regimes and appropriating the great wealth of the region.⁸⁵ This is a view shared by Supervisory Special Agent James Fitzgerald, who, in testimony before the 9-11 commission, asserted that “[Al Qaeda and other ‘terrorist’ groups] identify with the Palestinian problem, they identify with the people who oppose repressive regimes and I believe they tend to focus their anger on the United States.”⁸⁶ This is a conclusion that stems back to the Eisenhower presidency. Eisenhower was concerned about a “campaign of hatred” against the United States–a concern apparently elicited by NSC explanations that majority of Arabs believe that the U.S. is concerned with protecting its oil interests by supporting the status quo, a status quo that stultifies economic and social progress.⁸⁷ Recent psychological research supports this general outline, and indicates that coalitional commitment, not religious belief, is a strong predictor of support for suicide attacks.⁸⁸,⁸⁹, ⁹⁰ If one is committed to a coalition that is regularly victimized, it is not difficult to understand why one might desire some form of violent revenge. Suicide bombers, then, are not psychologically different from average humans nor are they “misguided missiles” who are mindlessly infected by extremist religious memes.* Rather, they are committed members of a coalition they feel is existentially threatened by the actions of the U.S.. Although their actions may be barbaric, their motivations, contra Hitchens, are not. It might not be palatable, but it is true that the same basic psychological forces that lead to suicide terrorism also lead to some of the most noble behaviors humans are capable of. The goal is to guide humans to the noble path and away from the destructive.

Conclusion

The general desideratum of the Enlightenment was, we believe, a noble one. Skeptical thinking and science are undeniable virtues. It is tragic, then, that the New Atheists actually betray these virtues by expending their cognitive resources in an obstinate battle against religion–without citing or apparently consulting important scientific research on the topic–while ignoring the more powerful institutional structures and narratives that shape and will continue to shape the social life of humans on this planet for years to come. We believe that the motivation to control provides the “best guess” at the puzzle of human (political) nature and that, combined with the other sources of human political nature we covered (reverse hierarchy formation, and ingroup/outgroup propensities), it should provide a starting point for a basic analysis of political phenomena. These (psychological propensities) interact in important ways with institutional structures and political narratives and give rise to the multifarious political behavior manifested in the world. In order to create a just, moral, and decent society, one should focus on the effects of these institutions and narratives on human well-being. There is good evidence that the current structure of society does not promote human flourishing; and there is incontrovertible evidence that the current structure leads to terrible consequences across the globe. The responsibility of intellectuals, to rephrase Chomsky, is to remain as impervious as possible to the propaganda of power and to criticize the shortcomings of institutional structures. This was a consistent theme of Enlightenment authors and we should honor their legacy by continuing that task. To this end, the New Atheists represent a betrayal of the Enlightenment and Chomsky, one of its most productive offspring. The planet will remain replete with apologists for power, no matter how grievous its crimes; we should honor the few who resist this all-too-human propensity and fight to promote the always precarious inheritance of skeptical inquiry.

* “New Atheists”: The term was first used in Wired magazine⁹¹ to refer to people who are not just atheists but who believe that irrational religious belief should not be tolerated and should be impugned by science and reason. Wired specifically cited Sam Harris, Richard Dawkins, and Daniel Dennett as examples of New Atheists. More recent members of the informal group include Victor J. Stenger and Christopher Hitchens. Whether or not there is anything “new” about the New Atheism is debatable. Frederich Nietzsche, to name one example, had nearly endless scorn for religion (although for different reasons than the New Atheists adduce) and did not believe “tolerance” was an appropriate reaction. It is perhaps unfortunate to lump a number of intelligent people into one group; however, for the purposes of our articles, the lumping is not terribly unfair and makes exposition much easier. Where appropriate, we attempt to single out particular scholars. At times, we are also more interested in the cultural idea of “New Atheism” than the actual people referred to by the term.

* “Islamophobia”: Sam Harris has argued that “Islamophobia” is a concocted “psychological disorder” used by “apologists” of Islam to protect it from legitimate criticism.⁹² We do not believe–and in fact, few people who use the term do believe–that Islamophobia is a disorder. It is, rather, the result of an ugly but “natural” proclivity toward demonizing the beliefs of outgroup members. Harris also argues that it is not possible to be “Islamophobic” because Islam is a set of ideas and practices that one can attack like any other set of ideas. This ignores two important facts. First, religion is not just a set of beliefs or practices; it is, rather, a system of sacred values that is often essential to a person’s sense of identity. Attack the beliefs and practices too vitriolically and you inevitably attack “the person.” This is not always illegitimate–but it should be approached with caution and civility. (We can see a person legitimately attacking Nazism, for example, or the ideas of Jihadis–and many Muslims do.) And second, what is objectionable in Harris’ writings (what contributes to Islamophobia) is not his abstract criticism of Islam, but rather his insistence, often absent of evidence, on blaming Islam for everything from terrorism to genital mutilation. We note that the great theologian, Hans Kung, offers pointed criticisms of specific aspects of Islam while presenting a historically grounded and balanced appraisal and no reasonable scholar would accuse Kung of Islamophobia.⁹³ John Esposito has written an excellent article on Islamophobia and contends that it consists of these beliefs:

1. Islam, not just a small minority of extremists and terrorists, is the problem and threat to the West
2. The religion of Islam has no common values with the West
3. Islam and Muslims are inferior to Judaism and Christianity
4. Islam is an inherently violent religion and political ideology rather than a source of faith and spirituality
5. Muslims cannot integrate and become loyal citizens
6. Most mosques should be monitored for embedded cells
7. Islam encourages its followers to launch a global jihad against all non-Muslims but in particular against the West.⁹⁴

As with any term that can be misused (e.g., anti-Semite, racist, misogynist), one should be careful when using it.

* “…was social justice.”: We have not and do not wish to argue that it is inappropriate to pen a book about the silliness of certain religious doctrines. What we object to, instead, is the strident tone, the unempirical assertions, the intolerance, and the unfair and inflammatory attacks against a specific religion (Islam), found in the books of the New Atheists (particularly in Sam Harris’ books). The rest of our objections–the main substance of our argument–is found in part I and the end of this article.

* “motivation to control.”: This was assumed but never explicitly articulated in our previous article.

* “Because the mainstream media is an important conduit…”: We note that the mainstream media is only one part of a larger “opinion-shaping network” that includes public relations/affairs institutions, think tanks, academia, etc.

* “…liberal versus conservative analysis…”: Debates about political bias in the media are not only a complete distraction but are often astonishingly removed from empirical reality. For example, self proclaimed media watchdog and president of the Media Research Center, Brent Bozell, in a review of the media’s performance in assessing Barak Obama’s first 100 days, plaintively asserts the following: “None of the three broadcast networks aired a single story on whether the new president’s economic policies were driving America towards European-style socialism. Not a single network news reporter used the term “socialist” to describe how his policies are shifting economic authority to the federal government. On only four occasions was the word “socialist” used on-camera at all – all by outside sources.”⁹⁵ We have yet to confirm if Bozell’s spaceship is set to return from his long sojourn on Neptune.

* “…owned by large, profit seeking institutions.”: As of 2009 there were six major media corporations: General Electric, Walt Disney, News Corp., TimeWarner, Viacom, and CBS. These massive corporations own and control output in the television, publishing, film, and internet industries.⁹⁶

* “…but rather to attract affluent audiences or distract the less affluent”: Chomsky, for example, makes a distinction between the elite “agenda setting” media which attract the most privileged audiences (business managers, professors, political managers, etc.) and the “mass media” proper which attract the rest of the population. As Chomsky puts it: “The real mass media are basically trying to divert people. Let them do something else, but don’t bother us (us being the people who run the show). Let them get interested in professional sports, for example. Let everybody be crazed about professional sports or sex scandals or the personalities and their problems or something like that. Anything, as long as it isn’t serious. Of course, the serious stuff is for the big guys. ‘We’ take care of that.”⁹⁷ Since 1997, when these lines were written, the awesome ability of the mass media to distract the population has substantially increased.

* “…pundits like Jon Stewart”: Despite Stewart’s facility with humor, his analysis of the media is unenlightening. The “rally to restore sanity” and other subsequent interviews illustrate the virulence of the neoliberal nationalist virus.

* “…it was not widely discussed in the mainstream media”: A google search of the terms “the Ryan plan” and “The People’s Budget” brings up 224 million and 69 million hits respectively. Thus, the Ryan plan has received 3.24 times as many linked pages as the People’s Budget. This is obviously not a a scientific survey but it is telling.

* “…and deregulation.”: We note that the precise causes of these policies are hotly debated, complex, and would take a great deal of space to explicate. See the referenced sources for more thorough analyses.

* “…group of ‘free thinkers.’”: Christopher Hitchens certainly addresses foreign policy issues, but a conversation about his political beliefs would require another article. Harris and Dawkins generally stick to more parochial concerns about the deleterious effects of religion on foreign policy (theirs, not ours). Dennet, so far as we can tell, does not bother much with politics. Many campus groups, inspired by “free thought” movements, exist and few, to our knowledge, seriously challenge current political narratives save for when they are directly related to religious issues.

* “…and its victims have suffered as they must.”: For an extensive, though partial, list of the victims one can do no better than read William Blum’s Killing Hope.⁹⁸

* “…massacres would not have happened.”: Kissinger noted somewhat cryptically that these events had taken place not willingly but “illegaly and beautifully.”⁹⁹ It is unclear which “events” in particular Kissinger is referring to. However, the illegal component rings true enough.

* “…George W. Bush’s poignant question ‘why do they hate us.’”: These plaintive questions and the jejune answers, which almost invariably support elite interests, are reminiscent of debates about Spanish policy toward the native inhabitants of the New World. Bartolome de las Casas described the treatment of the indigenous peoples of Hispanolia in graphic detail:

“The Spaniards first assaulted the innocent Sheep, so qualified by the Almighty, as is premention’d, like most cruel Tygers, Wolves and Lions hunger-starv’d, studying nothing, for the space of Forty Years, after their first landing, but the Massacre of these Wretches, whom they have so inhumanely and barbarously butcher’d and harass’d with several kinds of Torments, never before known, or heard (of which you shall have some account in the following Discourse) that of Three Millions of Persons, which lived in Hispaniola itself, there is at present but the inconsiderable remnant of scarce Three Hundred.”¹⁰⁰

It is not difficult to understand why the indigenous people were angered by such brutal treatment–allowing for the fact that de las Casas utilized hyperbole for effect. However, rather than comprehend the obvious, apologists for the colonialists and landowning elite, such as Jaun Gines de Sepulveda, argued that the Spaniards were simply superior to the “Indians” and had no option but to declare war against them, enslave them, and, ultimately, Christianize them.¹⁰¹ If the native Hispanolians had succeeded in a stunning and brutal attack against innocent Spaniards, Sepulveda could certainly have been counted on to explain that the indigenous people practiced a barbarous type of paganism that instructed them to eat human flesh and that this superstition was both the necessary and sufficient cause of the attack. If de las Casas mentioned the brutality of the colonial project as a contributing factor, he could be dismissed as an “apologist for terror” and Sepulveda could wax about Spanish freedom and benevolence. He could even dub the attack “simply evil” and attempt an hermeneutic of the “Indian mind” to better explain their hatred of freedom. While we rightly scoff at the notion of books explicating the “Indian mind,” it is worth noting that there are many books about the “Arab mind.”¹⁰²,¹⁰³,¹⁰⁴

This is not to say that the events of 9-11 were not a terrible atrocity. They certainly were. It is only to underscore the point, using a detached, historical example, that it is important to understand the grievances that lead to terrorism rather than bloviate about how “good” we are and how “evil” they are.

* “…lucidity and moral integrity.”: This is not to compare the value of the responses, but to note that Chomsky’s response was particularly compelling and worth contemplation.

* “…mindlessly infected by extremist religious memes.”: While studies on the motivations of suicide bombers can elucidate and potentially have salubrious purposes, there is something rather distasteful in the obsessive quest for fundamental motivations. As Chomsky notes, “[e]veryone’s worried about stopping terrorism. Well, there’s an easy way: Stop participating in it.”¹⁰⁵ That is, as American citizens, we have a responsibility to stop the terrorism perpetrated by our government. In other words, instead of attempting to penetrate the supposedly unfathomable depths of the “terrorist mind,” perhaps we should worry about our own global atrocities. We have yet to see a book on the “Depraved soul of the American: Explaining global terrorism that emanates from Washington.” To paraphrase G.W. Bush’s favorite philosopher, we should examine the log in our own eye before we criticize the sliver in another’s.

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