One Thing Is Certain, When America Goes Fascist It Will Be Through Lies Freely Told In The Free Press

BELIEVING THERE IS A RIGHT TO LIE is one of the most dangerous mass delusions that has become common place in the post-WWII era.  In the United States it grows directly out of the language of the First Amendment to the Constitution with its absolute language banning Congress from prohibiting "speech" and publication, something which those who wrote those words and adopted them as law didn't mean to be taken so literally or, really simple mindedly as they now are.  As Jamie Raskin, the constitutional scholar and fine member of Congress has pointed out in answer to the Republican-fascist citation of "freedom of speech" to protect the planning of the Republican-fascist insurrection, the very Constitution, itself prohibits the incitement to commit sedition. Incitement is by every definition an act of speech.  And the laws against libel and slander, especially published in broadly distributed media stood for more than a century and a half after that amendment was adopted.  

That such laws were used by those of evil intent, such as the American-fascists, the white supremacists, to attack those of good will, such as the great civil rights movement of the 1950s and after if they so much as published a minor inaccuracy is more than matched by their use of it after the Supreme Court allowed them, as well as others to publish untruths.  The better solution would be for those in the Civil Rights movements to have been more careful with fact checking their claims. The Court could certainly have reduced the financial risks to those who make minor inaccurate statements as they so often do for corporations causing enormous harm doesn't seem to have occurred to the majority in that decision.  

That the "justices" on the Warren Court could not foresee the consequences of the Sullivan Decision, which loosened the wealthy and the American fascists to lie with impunity as well as civil rights groups to mistakenly publish minor inaccuracies only proves what fools those with elite educations tend to be.  

That they had just passed through the red scares of the late 40s and 50s, an era in which lies destroyed many lives and gained power for some of the worst American politicians and demagogues up to that time, lies empowered with the money of millionaires and the few billionaires through mass media,  makes their naive faith in the efficacy of the Sullivan Decision to protect civil rights workers and groups rather astonishing.  It's almost like they hadn't really paid attention to what was going on.  Given that the white supremacy the Civil Rights groups struggled against were empowered by lies, lies told by mouth but more so through the media, up to and including lynch law, you have to conclude that they really didn't consider what the consequences of what they were unleashing were bound to be.  That they were all unelected white men of some affluence makes their unknowing in regard to that quite unsurprising.  

That the mass media, starting with the New York Times took and ran with that absurdly granted privilege to lie with impunity, especially against politicians who might endanger the wealth of the owners of the media and the advertisers who they profited from, liberals, Democrats, etc.  is certainly what happened, even as the civil rights movement faded in the years after the Sullivan Decision was handed out.  Such media being, as well, dominated by affluent white men, again, makes their comfort with what their privilege led to as unsurprising.

If the Sullivan Decision and the even worse decisions built on it starting with Buckley v Valeo were to have the effect we assume was intended by the Warren Court we would never have had the subsequent history of media driven reaction against civil rights, Women's rights, LGBTQ+ rights and advocacy of neo-fascism.  We would almost certainly not had all of the Nixon, Reagan, etc. presidencies, we would certainly not have had the Trump presidency which was built on lies told in the media against Hillary Clinton for decades, THE NEW YORK TIMES AS MUCH A PART OF THAT LIE CAMPAIGN AS FOX Lies WAS RIGHT UP TO THE ELECTION OF 2016.

There is something basically corrupt about the idea that there can be  a right to lie.  There may be an understandable reluctance to punish mistakenly believed fantasies, fictions or even lies told in some innocence because no human being is always entirely accurate. though it's notable that ignorance of the law is not seen as a reason to let someone off for breaking it.  But there is certainly no such thing as a right to lie no more than that there is a right for a seven year old to steal a piece of candy or lie about why a ten-year-old didn't do their homework.  Only a child who steals a piece of candy or lies about why they don't have their homework done is likely to be punished for it.  But to cheat someone out of their livelihood, a right to hurt someone gratuitously of for gain or a right to kill* is quite likely to have been declared to have been a right in a court or in the media at some point during the process if not right through till the end of it.  

In the past two days I've heard people of such wisdom as the estimable Malcolm Nance and Chris Hayes talk as if there were a right to lie, short of inciting insurrection.  I would ask how the distinction between advocacy of insurrection which is allowed because it can't be tied to acts of insurrection and speech which incites insurrection could be defined.  The idea that such a distinction would be made by the same judges who pretend they can't discern the difference between a plain lie and the truth would be regularly made in courts.   

Related to that is the idiotic and as dishonest assertion all over the media during the Trump regime and before that Bush II, that we must know that Trump really believed he lost the election for him to be prosecuted for trying to violently overturn American electoral democracy.  

Both of those sound like lawyerly lying to me, lying of the kind that so many post-WWII decisions by "justices" and judges were made of.  That kind of lying is ubiquitous in the Roberts Court and it was gaining ground in the Rehnquist years, but it goes back right to the start of the Court.  The sloppy language and thinking of the Constitution, in general and the Bill of Rights in particular is an invitation for that kind of stretching language, keeping in mind that "stretching" is a common synonym for lying, "stretching the truth" being the euphemism for it.  Such stretching is certainly not rare on the Supreme Court, the lying Alito published a recent op-ed that did it, lying about the exact wording of the Constitution in regard to the Congressional power to regulate even the Supreme Court.  But, then, as I noted during Alito's, Roberts' and other Supreme Court nominations hearings, everyone in the room knew they lied under oath constantly during those hearings, as did Kavanaugh, Gorsuch and Coney Barrett. And the Senate confirmed them, anyway.  The Republican Party is the party of liars, empowering lies, empowers them.

If there is one thing that has been repeatedly proven in the last sixty years, it is that lies are dangerous to democracy.  Democracy can't exist as an expression of The Peoples' mere whims and preferences but relies absolutely on an effective majority of People knowing the truth to the extent that that will inform their free choices in who they elect and whether to maintain them in office.  

It is the evil genius of the billionaires, foreign and domestic and those who control the media that they could thwart and destroy democracy by corrupting the minds of an effective margin of voters, the evil of the Electoral College and computer aided targeting of voters could achieve the rest even against a majority of American voters who voted on accurate information.  

There is a reason that we are in trouble and those stem from the Constitution as it has been effectively gamed by those with resources and who own the media.  Pretending that is not the case because we're afraid of a Constitutional Convention gamed through lies for billionaires is not an effective way to fight it.  The dangers created by a combination of rigging the original Constitutional Convention by slave-holders and land barons and financiers and the short-sighted writing of the Bill of Rights - all of that made worse by the Court grabbed powers under Marbury v Madison - are coming to fruition right now.  That we are in danger from a second Trump regime, gotten through his suckers sucking up lies and the Electoral College which put him in office to start with, proves that those dangers are here and now already.  How much worse would it be to amend the First Amendment to make it explicit that it does not empower liars to lie with impunity and that there is no right to buy or own automatic weapons or to carry guns and to abolish the Electoral College?*

The unthinking conventional sanctity granted to the Constitution and especially the Bill of Rights under the secular imitation of "civic religion" is far more dangerous to us than my critical view of it, matching its alleged intentions against its effects in American history.  

I think any accurate view of it from the point of view of those in the underclass, Black People, Native Americans, Women, other groups who have been discriminated against or attacked by those in power or those who are given tacit permission by governments and courts and police agencies, would prove that, by a large percentage, anything good in American history has eventually needed to struggle against the Constitution and, especially, the Supreme Court with its extra-constitutional usurped powers.  

That is something that became apparent to the abolitionists as soon as James Madison's papers were published and they could read his notes on the Constitutional Convention.** The lies of the stage show Hamilton are typical of that conventional sanctity maintained in defiance of historical truth.   Such show biz sanctity is a hindrance to improving on the thing in light of the past two hundred thirty odd years of living under the thing. Such pious bullshit has been part of civic propaganda for most of the time since the adoption of the Constitution.

That and the absurdly difficult rules for amending the thing as it is now makes being coldly honest about what it is essential to achieving and keeping democracy an absolute necessity.  Also facing  how it really works without the cloying and lying show-biz style piety about it prevents real democracy from finally being achieved.  

There can be no reform of the United States without the Constitution itself being reformed.  There is no possibility of reforming the Constitution while it is held to be sacrilege to make an honest critique of it.  Of course, under the present regime of law by judiciary, a direct consequence of the extra-Constitutional power grab for the Supreme Court by John Marshall and, even more so Roger Taney, even the possibility of amending the Constitution is vulnerable to that added burden as their corrupt lies about the 14th Amendment and other provisions in ANY WRITTEN CONSTITUTION proves. I will remind you of Alito's recent lies about the relationship of the Court and the Congress under the Constitution.

Reforming the Supreme Court to be more in line with those of every other court in an electoral democracy is essential to any such reform, without that Constitutional reform is doomed.  That kind of lawyerly, "justicely" lying has to be ground out of the system.  For any once or twice it might have worked for the side of equality and democracy, it has worked against it many times more.

We need to get rid of an understanding of democratic civics which relies on the cloying sentimentality of teary flag-waving patriotism for a real and clear-eyed love of equality and democracy.  That will require an adult acceptance of equal rights and honest representation.  It will require a willingness to give up advantage in favor of equality over a large, diverse, regionally vast country. If that is not possible then the United States was formed under an unrealistic theory and if that is impossible, we should face that reality too.  I think it might be possible for the United States to, for once, really be an egalitarian democracy as, in fact, I think Europe could be.  But not under the Constitution as it exists in 2023, certainly not as it was in 1790 or, even more so, 1963 before the Voting Rights and Civil Rights Acts were passed or even after Women started to gain some measure of equality.  It is a work for the future which cannot come until we face the terrible reality of the present and the past.

* I did have an idea about how the Electoral College could be made to work differently while thinking about how the 3/5 (turned into a 5/5ths) empowerment of white supremacists under Jim Crow as the Roberts Court is in the process of reimposing.

States should have their Congressional representation be calculated based on the percentage of qualified voters, American citizens over the age of 18 who vote in elections.  That would incentivize the inclusion of all voters in the vote instead of the voter suppression that was enshrined in the empowerment of white supremacy under Jim Crow.  As the great American historian Paul Finkelman pointed out, in the post-Reconstruction South, the merely de jure emancipation of Black People along with Supreme Court enforced "separate but equal" had the effect of enhancing the power of white supremacists who got more congressional representation while continuing to deny Black People their right to representation.  

By making states try to get all qualified voters voting, determined by the percentage of adult citizens living there , would either result in them trying to get everyone to vote. It would also have the effect of making it desirable to count ALL residents in a state during the period census.  If those in power in some states wanted to prevent Black People or Native Americans or others from voting, their Congressional representation would diminish.  The number of electoral votes, if that damnable thing is retained, would fall, as well.  I would decrease the Senatorial representation in states that suppressed votes, too.  There is no reason that such states should be able to swamp the votes of those who live in honest states in that non-democratic body. Given my preferences, hard cases would be reduced to the status of territories, not states.

** The great abolitionist Wendell Phillips' book The Constitution A Pro-Slavery Compact proves that the real character of "the founders" and their Constitution was known well before the Civil War.