[lbo-talk] Chicago mayor takes legal action over strike

Wythe Holt jr. wholt at law.ua.edu
Thu Sep 20 09:46:20 PDT 2012


CB: What you say makes sense in that the nation state is a bourgeois form and this is the founding of a nation, with the bourgeois of course ascendent as a ruling class.

The new national (federal) Constitution provided for bankruptcy for debt forgiveness. That and the general Welfare clauses in the Preamble and Powers of Congress section are revolutionary debt relief ideas made law, no ? Debtors prison is abolished and all that.

Response by WH: Bankruptcy was a bourgeois idea, not a populist one, in my view -- though its appearance in the Constitution was indeed revolutionary. It was designed to allow businesses to recycle themselves, particularly the small businesses characteristic of the time, so as to prop up entrepreneurs and to make Coolidge correct when he, 130 years in the future, would say "the business of America is business".

I view the much more radical step of allowing ordinary debtors to avoid prison for debt, and to get themselves out of debt trouble by a bankruptcy adjudication allowing them to pay only a portion of their debts, also as bourgeois in nature. It helps small businesspeople to be able to have customers, and for consumers to be able to go into debt to retain their ability to participate in the marketplace. Encouraging people to go into debt was more important, in bourgeois terms, than forcing them to pay off every penny -- or then throwing them into the slammer, where they couldn't pay off anything.

With regard to the Preamble, I believe that that was a smokescreen of nice-sounding rhetoric designed to lull possible fence-sitters into thinking well of the Constitution. It was gotten together at the last minute by Gouveneur Morris of both New York and Pennsylvania (realty in both places, though he represented PA in the Convention), one of the shrewdest and most elitist of all the Framers, one of the three people (along with Oliver Ellsworth and Jemmy Madison) whose ideas and interjections essentially form the basis of the Constitution, and a person fully aware that the Constitution would be opposed by most ordinary people (farmers and artisans) and would need as much help as it could get. Morris smirked as he supported the preamble. The "provide for the general welfare" was thus, in my view, meant to anesthetize potential opponents, and give (under the table) Congress an additional boost in its takeover and regulation of the economy.

The most hard-biting part of the Preamble was the words "establish justice." Every state had a functioning set of courts at the time. These actually insulting words (not "REestablish justice, not "aid in the establishment of justice," not "augment justice" -- but ESTABLISH it, as though there had previously been NO justice) were meant to put down the courts of the various states, which had been a lot more pro-debtor than the elite Framers liked or wanted, and to point the finger of commercial activity towards the newly-established FEDERAL judiciary -- to be put together by Ellsworth, now a Senator, and the Senate in the summer of 1789 in the first Judiciary Act.

THERE, the words "establish justice" said, especially to foreign creditors (the capital the Framers needed was in England, the Netherlands, and France) but actually to anyone who wanted to get debts collected, GO TO FEDERAL COURT AND JUSTICE WILL BE YOURS, "justice" that you cannot get in the state courts. Please recall that it was merchants and businessmen who in 1787 primarily used the word "justice," by which they meant COMMERCIAL justice, the facilitation of commercial activity, and the repayment of debts. Look through the writings of uber-merchant Robert Morris -- another important figure in the Convention -- to see how the word "justice" is used in precisely these ways. (Gouverneur and Robert Morris were not brothers or cousins, but their views were extremely similar, and both represented PA in the Convention.)

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