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".
^^^^ CB: "small"businesses in this time would be like blacksmiths or tailors or cobblers, and the like. There is still mainly "manufacture" in the technical productive sense that Marx uses it in opposition to Industrial capital in _Capital_ ( http://www.marxists.org/archive/marx/works/1867-c1/ch14.htm). Not such a bad thing that they can get out of debt. This is before the Industrial Revolution in England, let alone in America. "Big" businessmen are the slave owners, having the highest rate of exploitation.
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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.
^^^^^^^ CB; "The bourgeoisie, historically, has played a most revolutionary part. " This is still the time period when the bourgeois are a _mixed_ and contradictory revolutionary and ascendent ruling class.
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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.
^^^^^ CB: There ya go. Economic determinist explanation is true sometime. I'm a vulgar materialist often myself. Law is concentrated economics. Social being (base) determines consciousness ( law , super-structure.
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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.
^^^^^ CB: I'm sure that was part of it, but not all of it. The idea that potential opponents were so dumb that they could just be "anesthetized" is a bit naive on your part. Also, there is this putting money where their mouth was: "1798 law imposed a 20 cents per month withholding tax on a seaman’s wages. This revenue was to be turned over to the Treasury Department and used to support sick and injured seamen. Kopel notes that the 1798 law is a good precedent for programs such as Medicare." The Christian charitable sense in that founding generation was not all sham and hypocrisy as you imply. Welfare is basically an insurance system. Organizations like the Masons had welfare societies. There were lots of Masons among the founding fathers. Why not stick a Masonic institution in the Constitution ? As you imply with respect to getting people to go into debt to consume, they had enough sense of the bourgeois economic system to know that it runs on a mass of consumers of commodities. And so they are probably smart enough to anticipate Keynes' understanding that Welfare creates or saves consumers. The bourgeois have to put money in the hands of the working class masses for circulation to make up for exploiting it from them in production. It's a fundamental contradiction of capitalism at all levels of development.
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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.
^^^^^ CB: Most common everyday legal issues and conflicts remain part of state law and in state courts. Federal courts have almost no jurisdiction over criminal law, contracts, torts, family law., which are the meat and potatoes of what goes on in courts in America. I think you should interpret "establish" as an ongoing process. Not that I sign off on the notion that most of what all those state courts were doing was just. (smiles). Of all the law that "goes on" , the vast majority of it was not then nor is it now in federal courts, n'est-ce pas ?
Furthermore, I don't interpret the Justice Establishment clause as confining the task to only the Judiciary. The Legislative and Executive are charged with establishing justice , too. I'm not at all saying the the history of the US government has been predominantly to do this nor that the US has not established more injustice than justice. However, now we can demand that those words be fulfilled truthfully. Why not ?
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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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They mean that by "Freedom" or "Liberty" , too.
"It ( the bourgeoisie) has resolved personal worth into exchange value, and in place of the numberless indefeasible chartered freedoms, has set up that single, unconscionable freedom — Free Trade. "
"The bourgeoisie keeps more and more doing away with the scattered state of the population, of the means of production, and of property. It has agglomerated population, centralised the means of production, and has concentrated property in a few hands. The necessary consequence of this was political centralisation. Independent, or but loosely connected provinces, with separate interests, laws, governments, and systems of taxation, became lumped together into one nation, with one government, one code of laws, one national class-interest, one frontier, and one customs-tariff."
CB: The Inter-state Commerce Clause of the Constitution and the whole federating/centralizing dimensions of the Constitution that you discuss reflect this process described by Marx and Engels in _The Manifesto of the Communist Party_