Legitimate Rhetoric

Abuse of words has been the great instrument 

of sophistry and chicanery, 

of party, faction, and division of society.  - John Adams

Words communicate much more than ideas, they often signal underlying themes.  In criminal law, we focus on the words of a statute to discern whether a crime was committed.  To determine the "legitimacy" of a crime, the guilty mind, mens rea, of the perpetrator is paramount since we punish actions motivated by thoughts, not simply actions and not just intent.  A certain candidate raised this issue in reverse when he flippantly declared that a "legitimate" rape, would not result in pregnancy.  The scientific basis for this conclusion resembles the seventeenth century Salem method where the innocent would sink (and drown) and the guilty would float and be put to death. This pregnancy determinant could open the door to a new defense - even with extrinsic evidence - a man's intent to force sex would bow to a woman's ability to become pregnant leading to exoneration for non-legitimate rape.  This, of course, is as ludicrous as the witch trials.

Looking to mens rea to give gravitas to crimes, it is perhaps surprising that in Massachusetts, joining the Communist Party carries a higher penalty than driving a car while intoxicated and actually killing another human being.  Political party affiliation - ostensibly guaranteed by the First Amendment - is a criminal offense weightier than a homicide caused by reckless endangerment.  Membership in an organization is worse than drinking, driving and killing someone, actions similar to Russian Roulette, the classic law school example for second degree murder.  The Cradle of Liberty sanctions this as legitimate.

Even the idea of a "legitimate crime" is odd since the word legitimate comes from the same root as law itself.  By definition, all crimes offend the law; therefore no crime can be legitimate - all crimes are illegitimate, i.e., not lawful.  

The notion of crime - what offends us and is worthy of punishment has changed markedly and continues to evolve.  Plymouth Colony made lying in public a crime punishable by 10 shillings or two hours in the stocks, a crime only 1/5 as bad as wearing strange apparel, a crime facing a 50 shilling fine.  Today wearing strange apparel is called fashion and lying in public currently takes on epic proportions of celebration.  So glorious is lying in public that a presidential candidate will not let fact-checkers dictate how his campaign is run.  A pity, too, because this candidate has the shillings to pay a fine if one were administered injecting much needed capital into an ailing economy.

And, so the public lying continues unabated.  We prohibit corporate false advertising, but we do not punish corporations who support false political messages.  These kinds of lies are protected speech just as lying about obtaining the Congressional Medal of Honor.   Fact-checkers have been helpful in evaluating rhetoric and claims by political candidates about each other.  But, where have the fact-checkers been when candidates invoke history as a defense of their policies?

The idea that "free enterprise" was part of the foundation of this nation is blatantly false; if anything, the Framers sought to regulate commerce and banks.  This is evident in John Adams' declaration that power believes it is doing sacred work when the opposite is true and Madison's certainty that if there were interest and power to do wrong, wrong would be done.  They advocated checks and balances within government and by government on private enterprise. Jefferson abhorred big business stating, "I hope we shall crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial by strength, and bid defiance to the laws of our country."   Even Hamilton noted that the purpose of government was to constrain the passions of man to conform to the dictates of reason and justice.  

Rather than "free enterprise", those who created this nation believed in restraint - not of individual liberty - but of corporate greed influencing policy.  The idea that unregulated industry is good for America or somehow embedded deep in the Constitution is a fallacy borne of a guilty mind seeking to make legitimate that which is not.  The Citizens United case championing the voice of big money in government is antithetical to the purpose and meaning of the First Amendment - disembodied corporations - and unions - are not citizens and have no right to vote; it is inconceivable and contrary to the stated intent of the Founding Fathers that they have a First Amendment right to influence elections.

Abuse of words.  Abuse of our collective past.  Abuse of the public trust.  To ensure that the first Republican president's vision that a government of the people, by the people and for the people shall not perish from this Earth, it is incumbent upon all of the people to meet the ambition of those whose whose love of business trumps a love of democracy with an equal ambition for liberty and justice for all. 

We sought to break from tyranny by instituting self governance, not no governance.  As a modern politician has oft stated, government is the name of what we choose to do together.  An earlier politician affirmed that government's goal is justice.  True that Americans of all stripes built this nation, individually and collectively; but equally true is that democracy is a precarious form of government subject to an early death if strident ambition is not met with reasonable restraint.

So, is it a criminal act - one of a guilty mind - when government cowers to corporate interests and lifts regulation on clean air, clean water, safe working conditions, fair wages?  Is it legitimate to pander to the fears of the American people to say that government is an evil answered only by the angel of private enterprise?  Well, as John Adams might have said, it is an abuse of words dividing society at just the time it needs to come together to address the enormous challenges this generation faces.