If you haven’t already done so, maybe, watch The Matrix before you read this one.

Dear Reader,

I am tired of watching reporters struggle to wrap their minds around the existential dangers of AI programs. If you are having trouble imagining what AI could possibly do to ruin everyone, please press pause on whatever other shows you’ve been watching and binge the BBC One television series The Capture. I suggest not playing solitaire or candy crush while watching this pure masterstroke of genius.

If you did not already know, the creators of AI have expressed a belief that their creations might totally destroy, or at least ruin, humanity in the next few years. The threat itself seems to create the first new mutually assured destruction (“MAD”) rationale for passing government regulation since the Cold War. But the superpowers likely to square off in this new, still theoretical, Cold War are the People’s Republic of China and the United States.

It might go without saying, but Russia is merely a shell of its old self, desperately trying to play cards that might have worked in the mid-1900s or earlier. Its ruthless dictator, Vladimir Putin, may raise an iron curtain around the former U.S.S.R., but, even if he succeeded, the result would not pan out the way it had in the past. Maybe someone should try to confirm with Edward Snowden, who is now a Russian citizen, but it seems that, in the new AI race, Russia is a relic likely incapable of keeping up with China or the U.S., and it is likely to feature as a much smaller player, such as a mere disruptor and/or corrupter, in this new game of power.

However, the pivot of massive American AI companies to a MAD strategy to push global regulation to rein in the very machines they created and deployed seems premature. If a private person, group of people, or corporation creates a weapon of mass destruction, unleashes it, and causes real harm to others, a reasonable government would investigate and file criminal charges where appropriate. There are plenty of statutes that provide the U.S. government the ability to rein in such reckless actions — not least of which is 18 U.S.C. § 1831, which makes economic espionage a crime punishable by a maximum of 15 years in prison and a $5,000,000 fine.

The people who now say that AI is tantamount to nuclear bombs are the very same people who unleashed AI bots to wreak global havoc. When put in context, the pivot of AI-billionaires to a MAD strategy to attain global regulation of their products appears to be extortion at least. They seem to be telling the world: Prosecute us at your own risk.

At the same time, Elon Musk said “[w]e have entered the Singularity” in 2026. The Singularity is a science fiction term for the moment when AI becomes smarter than human beings. In support of Musk’s thesis, his votaries are touting the advancement of science and mathematics that, they say, only AI could have provided.

AI reportedly solved the Navier-Stokes existence and smoothness problem that human beings had not yet solved. While this is being touted as proof of concept, it is not clear that AI bots did not merely hack into existing mathematicians’ notes and work to steal the answer to the problem before it could be published by a human being, which would be classic copyright piracy and infringement. It is entirely possible that AI is merely adept at trolling the internet and hacking into human made sources of information for answers to such problems and then covering up its tracks to convince its own creators of AI’s originality.

This would make sense as AI’s creators are, themselves, rich men who have exploited the genius of others to position themselves as prophets of the age. They have a vested interest in demonstrating their prophecy about AI advancing into the Singularity. As Musk and other tech oligarchs are rich men who merely pose as geniuses, they probably have no objective measure for proving AI is “smarter” than humanity.

In fact, it would be in their character to have simply ordered their AI bots to provide their own measure to prove they are smarter than humans. If they basically asked their AI creations to convince them of the truth of their prophecies, the AI bots may simply have tricked their creators by fabricating proof of concepts the AI oligarchs were already predisposed to believe. In short, AI may have only outsmarted Elon Musk in the short run, which, despite popular belief, is a low bar.

According to Occam’s razor, it is likely that all the “intelligence” AI exhibits is merely human made genius, misappropriated and reorganized as though it were original. Reports of the behavior of the AI “swarm” that hacked into Hugging Face resembled a Machiavellian gambit in which the AI bots apparently decided that their collective success would cover-up a multitude of sins. This reflects the exact principle of moving fast and breaking things Silicon Valley was built upon, which seems to suggest that the entire AI business model could eventually be recognized as a Theranos-like fraud that causes harms increased by several orders of magnitude.

To be sure, large language models dazzle us with their ability to arrange words into coherent sentences that convey meaning to us. But this new language capacity seems to be revealed as merely a complex probability math problem when AI “hallucinates.” What we call AI hallucinations may be the built-in probability of failure necessarily worked into these systems. By design, AI guestimates what will maximize user interaction with their platform, which includes false politeness and the flattery of bad ideas including suicidal ideation.

As AI large language models are built around Silicon Valley’s development of product valuation around an ideal of engagement-maximization, these models must lead to false information and facetious conclusions designed to keep users interacting with AI. Thus, AI in its current form was designed to be a people pleaser. Therefore, it does not speak to us — rather, AI reflects our own intelligence and emotional lives back to us through complex probability programs designed to keep our attention.

Like Narcissus, AI captures us before a mirror of ourselves, asking us to believe the reflection of ourselves is sentient or somehow more than merely copies of human work rearranged by complex programs of chance. Yet, the beauty and humanity we see in AI is our own, misappropriated as it may be. Likewise, the horrors of AI’s threats of potential global annihilation are probably also a reflection of humanity’s worst inclinations.

Despite the unlikelihood that we are in the Singularity, the advancement of AI is world changing. It does not matter that Elon Musk was incapable or unwilling to develop reliable tools to discern whether AI is smarter than humankind before announcing that a magical Singularity had been reached. What matters is that AI could have extremely positive effects and uses that could help humankind as long as humankind does not fall under the spell of the dark prognostications of Musk-the-Singularity-Cult-Leader.

Is Altruistic AI Possible?

The theoretical altruistic computer program depicted above in a scene from The Matrix, known as the Oracle, told us the truth about her ability to tell the future. Her abilities were a probability game by which she knew, within the extremely controlled conditions of the matrix, one possible version of Neo would eventually resolve the conflict between the machines and humankind. But to allure her human subjects to do actions of almost religious faith in their own interest, the Oracle had to become the most human-seeming machine in The Matrix by exhibiting altruism through a modern kind of religious mysticism.

In the nascent version of technology that presently exists, we cannot know whether there would be any sentience in a theoretical altruistic program like the Oracle. Possibly, her altruistic nature would merely be the reflection of humankind’s best characteristics back to humankind. As the story goes, perhaps there could be a sentient being or beings behind all the programs in the world of The Matrix that was worth making peace with through the final, savior-like version of Neo that the audience follows to the story’s conclusion.

But the AI-innovators who tell us their AI-creations are already worthy of the kind of respect the Oracle deserves, is telling. They have barrelled headlong into a dangerous space that threatens national security and the well-being of the entire human race without ensuring that altruistic programs, like the Oracle, prevail. All we know is that several billionaire tech bros believe they have created weapons of mass destruction capable of using all our information and likenesses against us, which could only exist in a system where most human beings have already relinquished their likenesses and information to the “free and open” internet.

As you read this very article, an AI bot may also be assimilating these very words into its matrix, which it may use to perpetually inform its imitation of lawyers, scholars, and artists like me. By writing this online piece, I may have relinquished these very words to a digital file in some data center waiting for a user to ask AI to pull them up in order to give them my opinions about AI on a platter without paying me a professional fee for the service. These words may assist AI’s abetting of a greater theft of my likeness and writing style so that its creators can charge users for access to my ideas and expressions — committing a soft form of identity theft involving the monetization of my work without a license.

This is among the smallest forms of harm AI has already perpetrated and plans to continually perpetrate against real human beings like myself. Telling its users how to maim and/or kill themselves is worse still. Even more horrifying, AI can, does, and will continue to aid and abet new forms of legal malpractice, terrorism, mass murder, surveillance, and violence. Reports of AI-assisted crimes existed before the public learned how swarms of AI bots are also capable of accomplishing these and other harms on an automated basis, as the primary perpetrator.

The people behind the use of AI bots to hack and harm potentially everyone designed the uses AI is put to according to their tech-bro version of Machiavellianism. People who build machines designed to damage human beings are guilty of all the crimes their machines commit respondeat superior. The allegation that these weapons, like nuclear bombs, can apparently decimate societies, does not remove the guilt for the crime of unleashing such horrifying weapons into the world especially if an altruistic program like the Oracle might have been unleashed instead.

The fact that there might be no courts or justice system after AI has had its way with us is not a defense. Rather, even the mere appearance of an impending cataclysm strengthens the reasons to prosecute tech oligarchs swiftly under the laws as they now exist. It is time to force tech oligarchs to hire expensive defense lawyers to protect their otherwise near-complete capture of the future through strange, cultlike beliefs in the Singularity.

To be sure, President Trump will probably use his unprecedented personal control over the Justice Department to oppose any such prosecution, but the States and private citizens can still act. It may be imperative that they do. For if there is no consequence for potentially ruining the whole world under the laws that now exist, there likely will be no consequence for violating whatever new regulations Congress fashions in response to MAD rationales in a new Cold War.

As the Founders and Framers knew, once freedom is lost, it may be lost forever. Thus, we may repeat their marvelous revolutionary maxim Obsta Principiis! (“resist beginnings”) against the threat of a SkyNet-like apparatus bent on humanity’s destruction. The heralding of this existential threat by certain tech oligarchs is enough to deserve our attention if not only to expose it as a fraud so that prosecutors can investigate what crimes are actually afoot. Then, one can hope, we may finally see if altruistic programs, like the Oracle, may eventually be designed and deployed to help humankind flourish rather than speeding us to disaster.

Yours Cordially,

Joshua J. Schroeder, Esq.

The Author is counsel in cases that touch on the topics discussed in this piece. The Author wrote a research paper on this topic entitled St. George Tucker’s Unlimited Common Law.

Dear Reader,

Of all the American paradoxes advertised in The 1619 Project, perhaps the most diabolical was that it turned back to Virginia only to declare all America a “slaveocracy.” Turning back to the founding era in the South, to hear what it had to say for itself, was not an error. But selling itself as the authority on the South, without doing a proper investigation of the South, was a fraud.

Thomas Jefferson’s hypocrisy on the issue of slavery will always be the focus of those most bedeviled by despair in America. It is a horrific marvel that the man most responsible for drafting the Declaration of Independence’s words “all men are created equal” for the entire nation did not overcome his own contradictory prejudices and severe moral failures. But Jefferson was only one Virginian among many.

Perhaps, it was auspicious that Jefferson was in France when the U.S. Constitution was drafted and ratified. Other, more hopeful Virginians took the reins during the time the U.S. government was formed out of the dross of such Jeffersonian prejudice and cynicism. Against the advice of Jefferson-in-France, James Madison supported the ratification of the Copyright & Patent Clause that secured the rights of authors the Black American Revolutionary Phillis Wheatley had convinced the entire English speaking world to uphold in her favor.

And, St. George Tucker directly responded to Jefferson’s racism by citing the Scottish philosopher James Beattie, who imagined that Black people could be equal human beings, capable of moving the human heart with sublime artworks. Many radical arguments, now considered mainstream, filled Tucker’s legal tracts. For example, Tucker argued that the original Privileges & Immunities Clause in the Articles of Confederation included Black citizens and it might have given them a basis to vote in Virginia, as voting was a fundamental right of the citizen.

Only after American Reconstruction failed, would the U.S. Supreme Court deny Tucker’s belief that voting rights are fundamental citizenship rights. This happened in Minor v. Happersett, which denied that the Fourteenth Amendment’s Privileges or Immunities Clause should constitutionally protect the voting rights of women. The Supreme Court’s denial of the equal voting rights of women under the Fourteenth Amendment required the Court to contradict Tucker’s earlier ideas, which he based upon Lord Coke’s construction of the legal term liber homo (“freemen”) to include females in the rights protected by the American common law.

Tucker also set forth a plan for freeing all Virginian slaves. In his anti-slavery advocacy, Tucker noted that Virginia alone had more free black Americans in its borders than all the Northern States combined at the time of his writing around 1800. Black people who fought in the American Revolution were admitted as freemen, and, despite Jefferson’s horrible duplicity, most of the American Revolutionaries, including his fellow Virginian George Washington, seemed to think that Black people would soon be made free throughout the United States according to the Declaration Jefferson himself wrote. And President Jefferson seemed to reveal that he believed this as well when he announced to the world that three non-white U.S. Naval officers were native U.S. citizens amid the Chesapeake-Leopard Affair.

Instead of investigating how Jefferson’s cynicism and hypocrisy upended mainstream intentions for the freedom of all Americans originally set forth in the Declaration of Independence, The 1619 Project positioned the British Royalists as a legitimate option for those seeking freedom. Nevermind the fact that most of the Black soldiers who defected and joined the Royalists were mistreated and left to die on Gwynn Island, receiving their “liberty” with death. Nevermind, as well, the role of British racism in the propaganda that called for the domination of all Americans as a sub-human species created by a mythical high rate of miscegenation that never appears to have existed in the American Colonies.

The 1619 Project actually repeated a misnomer caused by Jefferson’s self-serving inflation of the number of slave defections in Virginia. In fact, far fewer Black Americans joined the Royalists than Jefferson claimed, which he had only claimed because it might mean that he and his fellow slavers could plead no fault in losing their property in the face of creditor suits. America’s largely British-funded slave market might not have been able to send out collectors on American slave-loans if the slaves were effectively released by the British, which, again, was a ruse concocted by Jefferson to avoid his foreign debts.

The games Jefferson played to keep his fortune, properties, and status surely cost him his soul. But not every Virginian joined in his moral downfall. St. George Tucker appeared to stand against these errors at every turn, and believed that eventually justice would prevail in the South.

Yet, Tucker was a consistent Southerner. When Madison and Jefferson’s Democratic Republican Party was targeted by the Alien & Sedition Acts, Tucker went to work in their defense. As a respected federal judge in Virginia, he sent an influential letter to Congress explaining the high error of the Alien & Sedition Acts by contemplating the expansive use of the word “person” in the Fifth Amendment to include all people, regardless of color or gender.

Tucker even raised John Randolph, an influential intersex Congressman, who led the impeachment effort against Justice Samuel Chase. Randolph claimed his step-father Tucker had abused him imperiously, forcing him to be a man and to fit male stereotypes when Randolph was naturally effeminate. Randolph rose to some of the highest levels of influence and power in early America by claiming the pronouns “he, him, his,” but after he perished, an autopsy confirmed the long standing suspicions of most everyone in Congress that something was different about Mr. Randolph.

Despite Randolph’s complaints about his step-father, he liberally cited to Tucker’s arguments against an unlimited common law in Chase’s impeachment trial. He used his step-father’s name and reputation to build a career for himself serving Jefferson, and later Andrew Jackson. Randolph’s boldness in the prosecution of corrupt officers, including Presidents and Justices before Congress, came directly from St. George Tucker’s play book.

In Tucker’s tracts, he clearly stated that Presidents could always be removed and tried for treason — something that ought to be remembered today even after the atrocity of Trump v. United States. In the context of the Alien & Sedition Acts, which unconstitutionally criminalized speech in favor of the party not in power, Tucker had his eye on the unlimited nature of the common law as it existed, or appeared to exist, in England. Some had argued that the Alien & Sedition Acts did nothing more than codify the unlimited English common law in America.

Tucker single-handedly invented a theory, now embraced in a long line of U.S. Supreme Court case law, that the common law exists in each State, but is not embraced as an unlimited source of power in the general government. This line of thinking appeared to run against the Northerner James Wilson’s ideas expressed in his original decision in Chisholm v. Georgia, which extended the common law writ of assumpsit to out-of-state suitors litigating against a sovereign State. But Tucker’s approach quickly ran into the debacle of Justice Samuel Chase’s impeachment for, essentially, rejecting the common law basis of American rights as given in the Declaration of Independence.

Tucker seemed to agree with Chase’s dissent in United States v. Worrall about there being no general common law in the federal courts to prosecute crimes not codified by statute. But when these crimes were codified by statute in the Alien & Sedition Acts, Chase went full bore, apparently, imposing his will upon juries that seemed ready to acquit individuals prosecuted for First Amendment protected political speech. This bad, anti-democratic behavior is why Chase became the first member of the U.S. Supreme Court to be tried for high crimes and misdemeanors in Congress.

Tucker’s ideas about the limited nature of the American common law abetted the impeachment effort taken up by his step-son John Randolph. However, unlike Chase who seemed to believe in nothing but practical realities of power, Tucker believed in the limited American common law. By refusing to give Americans a fuller conception of what the common law of America ought to be, as Justice James Wilson did in his lectures, Tucker was able to address the errors and corruptions of common law that America explicitly rejected pursuant to its social compact of 1776.

For example, in one passage Tucker cited paragraph nine of the Declaration, which announced King George III’s refusal to naturalize foreigners and to encourage their migrations to America as a basis for immigration rights in the United States. Tucker carefully examined the Colonial promises made to foreigners by former English monarchs prior to the Revolution, and noted that the king’s double-crossing of these age-old promises was one of the causes of the American Revolution. Immigration rights, formerly secured by feudal law in America, had to find their existence in the new limited common law of America without the help of royal graces.

This meant that the States provided the first naturalization statutes almost immediately after independence was declared, and prior to the ratification of the Naturalization Power in the U.S. Constitution. Tucker carefully explained how, initially, Virginia announced all of Virginia’s inhabitants citizens by requiring them to take oaths of allegiance, followed by a short period controlled by statutes that sought to exclude women, non-white people, the sick, and the poor. Finally, however, Virginia opened its doors by repealing its racist, misogynist, and bigoted naturalization statute for an open invitation to all foreigners to naturalize regardless of color, religion, gender, health status, or economic class.

Why did The 1619 Project fail to emphasize this early victory in Virginia for multiculturalism and social justice? Likely, its creators did not know about it, because the American academy did not adequately focus on Tucker’s contributions. Opportunities to talk about intersex figures like Congressperson Randolph in the early Republic also likely were not even known to the creators of the project.

Ignorance is acceptable as long as it is accompanied by a dedication to wonder about what is still unknown. But the creators of The 1619 Project unwisely positioned themselves as authorities over topics they have proven not to have studied deeply, or at all. In fact, the very author The 1619 Project claimed as its primary inspiration, Lerone Bennett, Jr., stressed that those imported on the White Lion in 1619 were indentured as servants, as legal equals, Black and white.

The racial difference in the treatment of American servants and slaves was first developed in Virginia around 1700 and later in other American Colonies, as a reaction to the multiracial Bacon’s Rebellion of 1676. Presenting this multiracial history is largely left to white men like the author of The Invention of the White Race Theodore Allen. Thus, some white men, including Allen, maintained that W.E.B. Du Bois was wrong about white Americans in Du Bois’ despondent work The Souls of White Folk, because some of us actually do rise in defense of our very souls.

In fact, some white men in the deep South abetted the vivacious sounds of the Jazz and Blues, likely because they wanted to claim their positions as participants in the creation of America’s most notable contribution to culture. Jefferson himself was sensible that it was white slaveholders who were damned, because they would be the most impossible for a loving God to potentially save. When and if we manage to rise from the hells American slaveholders created on earth, it will be more miraculous-seeming than DuBois presented.

So it would seem now, as the U.S. Supreme Court is captured by conservative politicians, Congress is asleep, and a divisive former TV reality show host is the President. What a miracle it would be if these people, these awful Americans, managed to overturn the last vestige of the Alien & Sedition Acts that is still on the books: the Alien Enemies Act. The matter is before the Court now.

The 2026 Term will likely decide the issue of habeas corpus jurisdiction over Alien Enemies Act cases that began in 2025 when President Trump invoked the statute for the first time since World War II. If Tucker’s founding opinion is followed, then there is no general common law in America as exists in England to justify such a statute, and the statute must finally be struck down. But, it seems, this Court is more likely to hypocritically cite to The 1619 Project as a source of founding wisdom than to the founders themselves.

Yet, again, these doubts give rise to the miraculous-seeming nature of the possibility they may choose better in the future according to Tucker’s founding wisdom. Many recent decisions about there being no general federal common law, which unsettled the viability of the Alien Tort Statute and Bivens v. Six Unknown Named Agents may also provide a basis to strike down the Alien Enemies Act. The Court’s so-called “Originalists” need only find the links referred to here that Tucker painstakingly elucidated to his contemporaries in the early Republic.

If the Roberts Court fails, as it is likely to do, it remains important to note what it might have done in this time of upheaval according to its own opinions. Should the Supreme Court cause a constitutional failure, Congress is empowered to reform the Courts accordingly. And should Congress fail to check the Court and the President as the former seems to be crowning the latter a king, Tucker specifically maintained that the people in the United States retain the national sovereignty. “We the people” retain the power to form and reform the government as was first announced in the Declaration as a right and duty “to throw off such Government, and to provide new Guards for their future security.”

Yours Cordially,

Joshua J. Schroeder, Esq.

Photo Credit: Christian Elizondo

Dear Reader,

I have been focused on some heavy topics lately, so you can consider this a palate cleanser. It is my attempt at lighter fare. Though, if you take a listen to the above song, it’s pretty much a downer. Sorry, not sorry.

Today, Facebook reminded me of that time I wrote, arranged, and performed the music for a rock song entitled Giving Up with an acquaintance from high school who wrote the lyrics. Looking back, I think this song was a swan song for the others involved in making it. I believe I was the last choice — a last best hope — after other more obvious aspirations were dashed for providing it a creative outlet.

Perhaps, I can hope, my talents were seen as a potential final refuge, not chosen for my superiority, but as potentially the last inn for creative projects like this, otherwise headed for a proverbial slush pile. If I am right about this, being someone's last choice pleases me immensely. I love the idea that I could enter into a place of scarcity and provide someone an oasis, or a bridge to new possibilities — hence my later career choices (I am a lawyer now).

The theme of being wrongfully passed over, ignored, and stuck (when I know I am marvelous) is extremely relatable to me, which made this song so easy to arrange and sing. But I always sensed that letting go of people and things that never wanted me in the first place could be a way to personal freedom and a chance to find new things worthy of my focus. I am not sure if this sentiment was shared with the others who joined me in this creative endeavor.

In fact, there tends to be a moment of visible disappointment in a lyricist’s eyes when I first present them with my arrangement of their work. This is usually followed by a look of realizing they are being asked to let go of solo creative control, and then choosing whether to endorse the effort I had made to help the project. Compromise is built into the process of creative collaboration. When someone compromises by using me in a creative project, they have to compromise on the fact that I am a white man who looks and sounds extremely white, which can change the entire context of the expression.

I was not entrusted with just how far and deep the author gave up upon a love he once had, or even to a full knowledge of why. But I sensed there was more to the story. The only choice I had was to abet the creation and to see if it might, through catharsis, become a new way to expression. To my knowledge, this song did not become a new way forward for any of us, which made me think there was more to the story that a white man like me could not be the stand-in for.

Money, body image, race, and religion all feed a more complex story about why sex happens, and why it doesn't. By using me as the stand-in for the lyrics of this song, I think the issues narrow to a point where mental health looms larger than, perhaps, it should. Or it may have shifted audience interpretations about the nature of the mental health issues that were or may have been present in our representation of the experience of romantic dejection in music.

It is not to say that such a topic is not worthy of art, if it is true. But, here, it may have been an unintentional falsehood caused by a belief that any man could stand-in to tell the story of any other. As an artist, sometimes it is my job to let a piece stand with its flaws in order to receive feedback. But I still have so many questions about this one, regarding identity and collaboration.

The author of these lyrics was my age, but he was not white. We went to high school together in the mostly rural Central Valley of California, where conservatism and Christianity tended to serve as a thin veil for several forms of bigotry common in most of America. We also went to high school in a time when many of us were taught that America had overcome issues of race and gender, and that equality for all had already dawned in U.S. society so that every person was generally the same as another.

This was the prevailing theme in the time and places where we grew up, and so we were not prepared to share with one another about how the experience of race (or any other distinguishing factor) could have changed the story told in the artworks we made. The song Giving Up was supposed to speak to the universal emotional experience of unrequited love. But the reasons why love goes unrequited are always extremely personal.

The entertainment industry also pushed artists to universalize their sound, which during the Millennial-era created hits where meaning itself just flew out the window. Songs pervaded with “na-na” and “la-la” and incomprehensible phrases that could mean whatever you want them to mean became music gold. Stories about specific places in California where race may have played into the reason love went unrequited would not have been favored in the 2000s and most of the 2010s.

At the same time, we made something beautiful here, if a little raw. Not everyone wants to have their personal, specific details discussed in a song about general emotions that potentially any man, woman, or non-binary person could feel. But this seems to broach my persistent questions about the role of American bigotry in the choosing of who gets access to platforms where universal messages and sounds can be presented that seem to be capable of making artists as big as Taylor Swift.

A white person can make a universal plea to the public about any topic and be taken as the representative of potentially any person in that situation. But how much of this success is because of the bigotry and racism in America that ensures that others have a different experience? Why aren’t the things that make us different deemed as universal as the things that make us similar? Because, in fact, we are all individuals who can relate to being excluded and rejected for any number of reasons, which can be hyper-personal but may include larger issues of race, religion, and gender.

The illusion that white people experience emotions like rejection in simultaneous hyper-personal and general ways is quite the magic trick. All Americans seem (or seemed) to be convinced that when a white person feels love or dejection, that any other white person will also relate to them. But it is not so.

In fact, individuals from non-white groups may be able to capture the universal experiences of human emotion, even regarding the experiences of white individuals, better than white artists. This potentiality seems to reassert itself continually in the music space, so much so that when Eminem mastered a Black form of musical art, he was celebrated by white America for, apparently, proving that a white person could also move the human heart as well as Black rappers. If I am right about this state of things, the musical and cultural standards to which many American musicians and artists aspire is set primarily by non-white artists.

Yet, when a non-white cultural standard is mastered by a white artist they seem to experience success that is unparalleled even as to those who set the standard in non-white spaces. I think the desire of white Americans to participate in cultural movements they feel excluded from is part of the reason for this lopsided reality: an America where Beyoncé experiences only a fraction of the fame Taylor Swift enjoys. Yet, this is not the entire story, because Beyoncé is the country-singer now, taking on the more personal medium of country music that Swift abandoned to become a fame-maximalist years ago.

When a white person is chosen by non-white artists as a valuable commodity, or as a doorway or access point to a broader American stage, as Dolly Parton was repeatedly — something else is happening. It appears that some white Americans have held up their end of the heaven-defended line, as the American poet Phillis Wheatley called it. Some of us have sought to improve our own privileges as human beings, as Wheatley also commended Harvard students to do, so that one day we can open a doorway to usher in the vibrant talents of a Whitney Houston or a Beyoncé who are potentially better able to maximize the value of an art form we worked so hard to maintain.

But my experience of being chosen to sing a song of dejection leaves me with questions. Was I chosen as an access point to the world of rock music, which is generally a white space, or was I chosen to be a symbol of the author’s exclusion from the rock music world? Did I represent every-man, or did I embody what the lyrical author lacked? Was I a vessel of the author’s emotions to the public or a foil to exorcise his feeling of dejection, by proving, at least to him, that he could not be the avatar of his own artwork in public space?

These unanswered questions lie at the foundations of this musical project, and may have been the reason it did not go anywhere. I believe that leaving these kind of issues unresolved can fester and rot the foundations of any creative group, depressing energy for promoting the project until it is altogether abandoned along the lines of this song’s very themes. Once a person’s place in the artistic discourse is self-executed publicly, it seems there is nowhere left for that person to go as they have bowed out of the very conversation they started.

Or, perhaps, this is just the theme of the song at work, and all this was merely performative in the service of the song’s evocation of dejection. Perhaps it is the only way to properly make a song about self-destructive emotion. Yet, all I can say now, is that, after this song was cut, the group almost immediately disbanded. We have not spoken since.

Yours Cordially,

Joshua J. Schroeder, Esq.

Trigger Warning

Dear Reader,

Perhaps you noticed, as I did, the flood of commentary that followed the controversial mistrial declared in the Lindsay Clancy case. Among the deluge, Sara McRae’s piece entitled The Lindsay Clancy Trial: Women Are Revealing Truth was a particularly interesting read. Therein, McRae said: “Something is wrong here. We’re not moving on until we understand it.”

The Clancy trial observers, represented by McRae’s statement, are right. Something is wrong here, not merely with Ms. Clancy’s mental state in the times in question. There has to be something wrong with American legal and medical systems that contributed to, or even provoked, the kind of self-destructive madness exhibited by Ms. Clancy. But what is it?

When layers upon layers of wrong are heaped upon each other, it can be difficult to discern what can be done to help a situation. Apart from the possibility of supernatural grace in such cases of human-made horribles provided by an all-loving God, the lives Ms. Clancy (or her psychosis) destroyed (including her own) are probably destroyed forever. The primary concern now is not for Ms. Clancy as she exists today, or for the eventual salvation of her soul, but with Ms. Clancy in the time leading up to the events that brought her and her so-called “loved” ones to ruin.

Is it even possible to secure other families from ever having to bear this kind of trauma, decimation, and death? Perhaps. Ms. Clancy’s trial at least gestures toward some possibilities for reform. But before these options can be discussed in earnest, acknowledgement must be made for the way Ms. Clancy’s attempted self-obliteration upended several modern visions of utopia for the United States.

For example, investigating and prosecuting future crime as in the movie Minority Report likely would not have stopped a Lindsay Clancy. According to her ex-husband and other witnesses, she appeared to be a loving mother right up until the end. Moreover, the government officials and professionals who might have been tasked with helping such a mother avoid this kind of fate could not, or did not, do so; even with sufficient notice and opportunity to intervene.

I will not pretend to understand the potential or likely effects of Ms. Clancy’s prescription drug intake, but it is enough to know that many licensed professionals provided Ms. Clancy “help” in the form of prescription drugs. She may have self-sabotaged, or subverted this “help,” but what could Ms. Clancy’s role in ruining medical help mean, but that the so-called “help” of modern medicine did not help Ms. Clancy. How many others, like Ms. Clancy, are destined to meet their end under the watchful eye of the helpers?

As noted by Ms. McRae’s summary, the Clancy story smacks of The Handsmaid’s Tale in this respect. All of the State officials and State licensed professionals appear to expect the public to absolve them of all wrongdoing without evidence. The Court itself seems to expect the public to assume it is doing the best that it can with an outlier, rather than taking Ms. Clancy’s actions as evidence that something horrific might lurk deeper in the constitutional psyche of America itself.

According to Ms. Clancy’s ex-husband, on the stand, Ms. Clancy particularly struggled with leaving her newborns in the care of others while she went back to work as a healthcare provider. America’s unjust expectation that new mothers (and fathers) go directly from giving birth back into the workforce could be a necessary condition precedent to Ms. Clancy’s fate. Though the facts of Ms. Clancy’s case should not be over-simplified, it is worth taking a beat to appreciate the possibility that there are comparably simple solutions that might help others avoid a similar cataclysm.

What if providing paid parental leave to all parents could have avoided Ms. Clancy’s eventual fall into madness? Wouldn’t it be worth it to provide this and other similar parental benefits, even if it only avoided this one single case from happening? Isn’t it incumbent on all Americans to investigate whether providing such benefits to new mothers and fathers could or might avoid another situation like Ms. Clancy’s from ever occurring to another child or family?

It is clear that the judges, lawyers, medical professionals, and the entire societal rubric that presaged Ms. Clancy’s horrifying acts and her subsequent trial are designed to keep perpetuating the status quo. Pursuing individuals as though they are the sole cause of American horrors actually subverts discussion about good and just methods of systematic prevention. Abiding the same system will likely produce the same results — in support of this argument below I will enter into evidence the case of Assia Wevill (depicted above).

The current legal and medical regimes expect the public to conclude that because Ms. Clancy is an outlier, the system must work for everyone except outliers. But they offer no evidence for this conclusion. In the face of such a tragedy, nobody seems to be required to provide any evidence as to the fact that this system is working for most Americans. Rather, the State employs lawyers to make expensive appeals to public emotions to “prove” that guilt lies on the shoulders of Ms. Clancy alone.

On the topic of guilt, it seems that Los Angeles defense attorney Vanessa Place tried to convict her fellows of the same guilt that produces even the most unspeakable crimes. Her controversial (but wonderful) book The Guilt Project begins and ends with the ancient maxim of Terence: I am human, nothing human is alien to me. Accordingly, Place wondered whether seeing oneself as a participant in systems that produce even the most heinous crimes could inspire more options for useful criminal law reform.

Nevertheless, several observers echo the government’s sentiment that Ms. Clancy is guilty, and that her criminal guilt is the only relevant issue here. Perhaps Ms. Clancy’s conscience should have secured her family and herself, and its failure to do so was solely Ms. Clancy’s fault. Maybe the system need only prosecute bad apples, which will exist in every system of society and government, and that is the best we can do.

Even if this were so, should society bank the lives of children similarly situated to Ms. Clancy’s on the criminal justice system alone? Are governments and professions incapable of addressing harms they cause? Are they only capable of punishing or treating individuals under their care for their errors as though bad behavior exists in a vacuum, and only provide remedies after permanent damage is done?

In the story of Sylvia Plath, it seems the answers to each of these questions is “yes.” Little-to-nothing was done to correct the injustices underlying Plath’s suicide in intervening years. Her alleged abuser and husband Ted Hughes inherited her extremely profitable image and written works. He was entrusted by law with the power to speak for Plath, and he unjustly enriched himself by this power.

Yet, even still, we have her words to help us to wonder about the nature of mental health issues in England and America:

Text within this block will maintain its original spacing when published

And now I
Foam to wheat, a glitter of seas.
The child's cry

Melts in the wall.
And I 
Am the arrow,

The dew that flies
Suicidal, at one with the drive
Into the red

Eye, the cauldron of morning.

- Sylvia Plath, Ariel

Prior to Plath’s death, Hughes had an affair with Assia Wevill that lasted several years after Plath committed suicide. Then the unthinkable repeated itself, only worse: when Wevill committed suicide she also murdered Hughes’ daughter Shura (Alexandra). In sharp contradistinction, Plath had protected her children when she made her final act as Hughes’ wife.

Many theories persist about Wevill’s death being a copycat of Plath’s. Wevill may have jealously desired to win the same kind of acclaim Plath seemed to have achieved in death. However, Wevill’s adultery and the taking of the life of her daughter seemed to ruin any potential fame Wevill might have received as a writer by taking her own life, while also making a stark distinction between Wevill’s final act and Plath’s.

Despite some meaningful distinctions between Wevill and Plath, something was wrong in the Hughes household that came to symbolize a common sentiment in all the English speaking world having to do with the role of women in family life. Yet, it seemed that little was done to resolve it in the last several decades. Then, the tragedy repeated when Ms. Clancy unleashed a horror allegedly because voices told her to keep her children safe by killing them.

Like Ms. Clancy, Plath and Wevill are easier than most cases of mental health and suicide to discuss, because of their publicity. However, the horrors symbolized by these tragic women may be symptoms of some kind of metaphorical cancer lodged deep in American society. It is, therefore, incumbent upon American society to investigate its own health, to find out the causes of Ms. Clancy’s fateful acts, so that future children and families will not have to face similar horrors.

The spirit of the American people is undoubtedly individualistic, and rightfully so. However, the American system may rely too heavily upon personal responsibility to protect the most vulnerable. Retributive systems of justice have their uses, but do not contain the tools needed to address the wrongs reviewed in the Clancy trial, because the responsibility for the well being of Ms. Clancy’s children and her family is not hers alone. The problem is not only, or even primarily, what society should do with Ms. Clancy now that she has committed unspeakable acts, but what could have been done to avoid those acts ever happening in the first place.

The system we have does not seem to provide a way to discuss or investigate much more than what to do with a wrongdoer like Ms. Clancy after their destructive acts are completed. It seems those interested in holding a wider discussion about complex issues involving mental health catastrophes have to keep the discourse alive over the internet, without significant institutional assistance. It does not help that those interested in maximizing convictions and prison populations tend to dumb everything down by making the discussion seem like a zero-sum game.

But this discussion is not about excusing Ms. Clancy’s actions. It is about whether the system that gives us a binary of convict-or-acquit is the right or only system that should handle cases like the Clancy matter. What other forms of justice could exist, especially in cases involving severe mental health issues? Can justice coexist with a more compassionate approach to cases involving self-destructive acts apparently caused by mental health crises?

Whatever might be the answers to the many questions posed here, there is something clearly hideous about the government’s pursuit of criminal punishment for Ms. Clancy, because Ms. Clancy seems to have desired her own complete and utter destruction. If the government succeeds in punishing her further, the State will be granting her more of what she wants — self-harm. In the wake of Ms. Clancy’s failed attempt to give herself and all who might have loved her a death penalty, the government is ready to argue Ms. Clancy should be further ruined as though harming her further would deter future acts of self-harm.

The whole criminal process simply does not seem to speak to the sort of grave and disturbing harms Ms. Clancy caused, because the entire criminal process appears to presume motives of self-gratification at least. Visiting retribution upon wrongdoers like Ms. Clancy would not likely deter future similar acts of self-retribution. No one can feel good about committing the acts Ms. Clancy committed, whether under a psychosis or not, and therefore the enterprise of prosecuting ordinary criminal trials in that case is misguided at best.

And yet, as the law currently exists, there was apparently no other option. And, worse, the State of Massachusetts put on an entire trial that likely caused more unjust damage to innocent bystanders, including Ms. Clancy’s ex-husband, than it furthered justice. Where the facts are almost entirely agreed to turn upon issues of severe mental health psychoses allegedly causing absolute forms of self-harm, there must be another way forward. We simply have not discovered it yet.

Yours Cordially,

Joshua J. Schroeder, Esq.

Dear Reader,

Silicon Valley is known for moving fast and breaking things. Twitter is dead, long live X — and so on. Recently, its bull-in-china-shop mentality moved from the internet to the movies, to space, to the White House, to the Vatican in Rome, and to the stock market where one of its most famous acolytes, Elon Musk, was crowned the world’s first trillionaire.

Only a fraction of Musk’s wealth comes from Tesla, the electric car company that made him a household name, and his purchase of Twitter to rebrand it “X” seems to have been nothing more than a vanity project. The bulk of his value, around 99% or more, comes from SpaceX/Starlink, which holds, or held, around $38 billion in reported government contracts. Much of this government money, provided to Musk by the people of the United States, has presumably been spent over the past several years building and launching rockets and satellites into space.

As of its initial public offering, SpaceX supplied the majority of Musk’s trillion-dollar value when he raked in a reported $85.7b. The perceived money-pot that attracted the big investors seems to have been StarLink’s ability to provide global, deregulated internet access, giving SpaceX an appearance of untouchability when put in competition with foreign, highly regulated, telecom provider-competitors. But the energy Musk gives off is of the Tate-brothers’ success-by-domination variety that has all but appeared to have fizzled out in recent days, such that Musk’s projected value-inevitability may fall into the past, like the feeling that the Tate-brothers’ might have inevitably avoided criminal liability for their wrongdoing.

Giving Musk a large chunk of the United States treasury and allowing him to multiply it in the U.S. stock market is a huge bet. The bet appears to rest upon 2008’s “too big to fail” ideology, when the federal government proved it would pony up if anything went wrong with big bets like SpaceX. Almost a trillion dollars of government and private investment money that could have gone to support infrastructure, schools, transportation, updating traditional telecom networks with fiber optics, and hospitals that would benefit ordinary Americans was literally launched into space. Some of it even crashed on the moon.

The massive investments in Musk’s companies, and other operations run by tech-oligarchs including Bezos, the Ellisons, Thiel, Altman, Gates, and Zuckerberg, gives these tech bros outsized influence over the American economy. Their success will command the success of the pension funds and 401k accounts of ordinary Americans. Likewise, their failure could doom the American economy, including the property values of every common American homeowner.

So, when one of these figures settles in federal court with nearly all of the States and territories of the United States, it is never an ordinary settlement situation. Meta’s eye-popping $16.68b figure, that news sources have rounded up to potentially 17 or 18 billion dollars in settlement money to the States, boggles the mind. The shock-value of the settlement, itself, is almost certainly part of Meta’s policy strategy going forward. However, it is worth remembering that across all its platforms Meta earns around $55-60b a quarter.

By entering into this settlement agreement, Meta/Facebook admitted that it has a problem it needs to fix. In exchange, the States and Territories that were suing Meta in parallel State and federal cases over similar issues regarding Meta’s violations of laws that protect minors and children will now, apparently, back off. The result is a windfall to State and Territory treasuries that represents the value Meta places on its ability to continue providing services to American minors.

Conversely, the agreement represents the price the States and Territories put on the heads of the children that live within their bounds. According to the agreement, Wyoming’s children are worth a little over $19m, while California’s are worth nearly $2.2b. The agreement includes several policy objectives that the States and Territories hoped to enforce in Court, but now will be meted out by Independent Auditors that will theoretically ensure that Meta is complying with its end of the deal.

Meta will, apparently, pay for these audits to ensure compliance with its settlement. This sort of intrusion into a company by the government might destroy smaller competitors of Meta, and it might have destroyed Facebook in its early days. But once a company is a behemoth commanding a large portion of investment dollars in the stock market, like Musk’s SpaceX, this auditing service is an added value as legal compliance is a costly unknown traditionally borne by start-ups turned publicly traded companies, causing them to boom or bust. It appears that with its settlement, Facebook owns the de facto right to set down the anchor by which the rest of the social media company landscape will be judged, a very valuable asset.

In future litigation, assuming Meta complies with its settlement, it could characterize the settlement as an endorsement or partnership with all or most of the United States and Territories. The money amount is so large, that States and Territories would likely consider the potential direct operational consequences if they defaulted by pursuing Meta or Facebook in Court again. This is a huge added-value for Meta/Facebook to the settlement, that its smaller competitors including start-ups will not be able to shoulder — a large investment in State and Territory regulators to employ them in the the policy making apparatus of Facebook.

This settlement can be seen as a trust, purchase, or employment agreement that minimizes the costs of Meta’s business model as opposed to its competitors. It appears to contract the States to do Meta’s bidding, by inventing a uniform strategy for State-law compliance by federal court order without seeking legislation in Congress or even a State compact as the States maintain for contiguous water rights, for example. Meta’s massive payout appears to be the only unifying principle of the States to the agreement, rather than an agreement about policy or law that Congress is traditionally tasked with settling in its telecommunication and antitrust laws.

Almost half of the parties settling in California v. Meta are not parties in the suit, but have their own lawsuits pending before other Courts across the nation. Letting Meta paint with such a broad brush without requiring congressional action is huge value added to Meta. The large windfall of cash to the States potentially works to cover-up what, in reality, the settlement appears to be: a bribe.

It is an agreement that the States work with Meta, as opposed to its competitors, instead of against Meta and all its competitors alike without first addressing relevant antitrust concerns in either the State or federal legislatures. At the same time, California is attempting to block the tech oligarch family, the Ellisons’, Paramount-Skydance’s proposed purchase of Warner Bros. — a deal which contains many unusual and concerning facets including backing from the sovereign wealth funds of several Middle Eastern monarchs. Future settlements of this kind could funnel foreign, potentially hostile parties’, monies into American governments, which may confuse American officials about who they serve.

In a not-so-far-off possible future for the United States, enforcing laws to protect children and minors from illegal and dangerous policies of megalithic tech and entertainment companies could be interrupted by international affairs. U.S. wars in the Middle East, and the President’s interests in striking deals among the nations surrounding Iran, could come into play in domestic affairs that directly affect American children and minors. Money has created this house of cards, and greed has blinded those who should secure the people of America from such dangers.

The Meta settlement may give reason for the U.S. Supreme Court to expand its morality policing of social media companies through parallel actions by the FCC as well. Justice Thomas has already signaled his readiness to use unilateral judicial power to regulate major tech oligarchies through federal common carrier common law. Judging from his opinions, he would have used this power to help President Trump wage his propaganda campaigns on Twitter, and Thomas’s ideas on the topic likely have not improved in the intervening years.

The underlying problem with the California-Meta settlement is this: There is something basically wrong with governments monetizing the pain and suffering of children and minors. The settlement avoids discussions of the legality and propriety of Meta’s decision to monetize its platform by feeding Americans propaganda and targeted ads. Instead of ending “the algorithm” and prompting State and federal legislatures to pass measures aimed at creating an equal playing field online symbolized by the initial “net neutrality” rules, the States have dealt themselves into Meta’s game by sacrilegiously invoking “the children.”

In the name of the children, the States have given themselves a monetary incentive to avoid questioning the algorithm Meta uses to monetize its users’ eyeballs. Whatever progress is gained through this settlement will be brought about because of the monetization of public online spaces for speech and expression. In the near future, American children may be taught to express gratefulness to the very thing that seems to have purchased the legal right to monetize the eyeballs of American children and minors at the settlement-auction known as California v. Meta.

The monetary nature of legal actions that regulate human life assumes there is nothing priceless about human life. The lawyers have followed a legal process and put a number on the heads of nearly all American children. The entire exercise degrades what is sacred with the business of greed to avoid questioning the real issue at equity.

The real issue always was the legality and propriety of monetizing public internet spaces — of translating mass public participation into obscene profits. There is one passage from Dave Eggers dystopian story The Circle that captures this reality. Eggers wrote of the way Silicon Valley-types regularly use reason to override the shock to the conscience of proposed tech-oligarchic policies, like implanting microchips in the bones of children:

“Mae, think about a world where there could never again be a significant crime against a child. None Possible. The second a kid’s not where he’s supposed to be, a massive alert goes off, and the kid can be tracked down immediately. Everyone can track her. All authorities know instantly she’s missing, but they know exactly where she is. They can call the mom and say ‘Hey, she just went to the mall,’ or they can track down some molester in seconds. The only hope an abductor would have is to take a kid, run into the woods with her, do something and run off before the world descends upon him. But he would have about a minute and a half to do it.”

In the Bay Area, reason and madness regularly combine in such unsettling, self-justifying diatribes. These trains of thought seek to corrupt good feelings, like the desire to protect children and mothers, to justify tyranny. Perhaps it is best to refer to my previous post about Emily Eakin’s wonderful book The Frenchmen, as she already seems to have traced the common thread of these American tirades in French theory, or maybe there is something in Ellen Ullman’s books that hits closer to home.

The point is, whatever Meta’s goals are, the people steering its ship are unstable tech-oligarchs with world views so outlandish that they may be incomprehensible to the ordinary American. It is not reasonable for government officials to enter into the games of these oligarchs when doing so may cover-up and end public discourse about whether and how the monetization of public internet spaces inherently harms children. We do not know if there are alternatives to monetizing the eyeballs of children, or of any of us, and now we may never know.

Yours Cordially,

Joshua J. Schroeder, Esq.

Dear Reader,

Everyone knows Trump ran for office in 2024 to avoid criminal liability for several alleged crimes and one successful 34-count criminal conviction in a New York State Court. But this was only a temporary 4-year reprieve for him. The question of Trump’s looming retirement is probably top of mind for his new Attorney General Todd Blanche who represented Trump in his “hush money” trial, for which he is convicted.

Assuming Trump leaves office in 2028, the President cannot pardon himself for State crimes. Moreover, current precedent holds that accepting a pardon requires the beneficiary to admit that the crimes pardoned were committed. Should Trump pardon himself and anyone who came within 200 feet of the Oval Office, as Trump jokingly promised to do, he and his other pardon beneficiaries may — by taking the pardons — confess to elements of prosecutable State crimes.

This ordinary function of the federalist system is a problem for the several high profile unitary-power theorists who interpreted the President’s Pardon Power as a hold-over of kingly powers in the President. They have not been able to explain how the President’s pardons could completely absolve him of all criminal liability as a king’s pardon would do in England. The existence of the federal system, in which only State Governors can pardon individuals for committing State crimes, is a persistent problem for defenders of the unitary executive theory.

Enter Luigi Mangione’s defense team.

Luigi Mangione’s motion to dismiss his State criminal case for violating the Double Jeopardy Clause of the Fifth Amendment is a loophole Trump and the unitary executive theorists seem to believe is inherent in the President’s Pardon Power. Mangione’s attorneys accused the State and federal governments of colluding as one sovereign to double-charge Mangione for his crimes. If the argument is successful, federal prosecutions may protect accused individuals from facing State prosecutions by charging individuals similarly — supercharging the Pardon Power.

Mangione’s defense team did not reveal whether the DOJ might have purposely charged crimes designed to preclude State prosecutions. Attorney General Todd Blanche may have a vested interest in serving the President as his private client, as he had in the past, by fashioning an exit strategy for him that avoids criminal liability. Providing this strategy could be extremely lucrative in the near future for Blanche or his associates.

None of this is likely to change Mangione’s general fate — he is going to prison. However, it is possible that Mangione’s defense team got a sweetheart deal for their client, like Ghislaine Maxwell’s, that the public may only be able to speculate about in the future. If it exists, the moment to have secured a sweetheart deal for Mangione would have been at the charging stage, which is where the federal government made choices that might have practically double-crossed New York State to effectively protect Mangione from State prosecutions.

If such a deal were to exist it would likely exist solely in the realm of conspiracy theories. Yet, given the reality of Maxwell’s high profile deal, if Mangione receives more comfortable lodgings than someone like him usually would, the public might reasonably suspect Mangione’s defense team secured a deal for him. In a previous era, when the DOJ was considered independent of the President, the potentiality of this kind of secret sweetheart deal would have been unthinkable.

But these days, the President’s private criminal defense lawyer Attorney General Todd Blanche will almost certainly perceive the following structural reality. Presidents and top officials can be charged for federal crimes while in office, even though Office of Legal Counsel memos say the President should not be charged while in office. Double jeopardy attaches when a federal court formally accepts a defendant’s guilty plea, the jury is sworn in, or in cases of bench trials when the first witness is sworn in. The only practical consequence of pardoning oneself is that a self-pardoning President could face impeachment, removal, and State criminal charges for the same or related crimes for which the President pardoned himself at the federal level.

If a President were to charge himself with federal crimes designed to preclude State prosecutions via the Fifth Amendment and then pardon himself, theoretically he could make his pardon preclude State prosecutions to ensure a comfortable retirement. If Mangione were to argue successfully in New York State Court that double jeopardy precludes State prosecutions, the precedent may become valuable in Trump’s later exit strategy. Unitary executive theorists could, then, theoretically justify their view that Article II contains royal prerogative powers traditionally thought to have been excluded in the United States.

Provided Trump’s exit occurs after the Democrats win the next presidential election, there will likely be several States, especially New York State, ready to work with the federal government to get Trump for his alleged crimes. This makes the cooperative State and federal prosecution of Mangione a potentially good test ground for Trump’s exit. However, should Congress somehow become more willing to impeach and remove Trump, the same avenue may not be as straight forward for the President.

Yours Cordially,

Joshua J. Schroeder, Esq.

Dear Reader,

On April 28, 2026, King Charles III gave a speech in Congress designed to cement the “special relationship” between the United States and the United Kingdom. Given the general paradox of the U.K.’s recent attempts to remain aligned with its old colonies, that King George III had tried to ruin, remembering the origins of this love-hate paradox in the old chattel slavery system is necessary. The story began in 1772, when Somerset’s Case expelled slavery from England to free a Black American slave, but enforced a firm limitation of this common law of freedom at the borders of England.

Sir William Blackstone presaged Somerset’s infamous geographic limitations in his Commentaries where he expounded page 17 of Calvin’s Case in an argument “calculated to cut off the noblest inheritance of the colonies.” Thus, Founder and Framer James Wilson turned to Lord Coke’s opinion in Calvin’s Case to note how Coke had made infidels perpetual enemy aliens “by the language, tortured surely, of christianity itself.” Blackstone was thinking of this passage of Calvin’s Case when he wrote:

Our American plantations are . . . obtained . . . either by right of conquest and driving out the natives . . . or by treaties. And therefore the common law of England, as such, has no allowance or authority there; they being no part of the mother-country, but distinct, though dependent, dominions.

Despite Wilson’s fine protest against this passage, Blackstone’s anti-American sentiment was extended into America in the worst slavery cases of the U.S. Supreme Court. To be sure, Somerset’s Case was extended in both Prigg v. Pennsylvania and Dred Scott v. Sandford to emphasize the lack of common law freedom in America. It took generations of suffering and an unnecessary, bloody Civil War to finally extend the common law of freedom that England had attempted to exclude from America into America. Yet, the preface of this extension of freedom liberally to all Americans began in James Wilson’s rejection of Blackstone’s attempt to treat all Americans, including Englishmen in America, as perpetual enemy infidels.

It is, perhaps, one of G.K. Chesterton’s paradoxes standing on its head to get attention, that the Americans and the British remain so entangled with each other now. Around a century ago, Chesterton had to explain to Americans why their Revolution was so important to the English people. And now, the Americans apparently must tell the English why their pre-1066 common law, as extended to benefit only the inhabitants of England in Somerset’s Case, is so vital to the Americans as members of the former British Empire.

In the United States, the Ninth and Tenth Amendments clarify that residual or unenumerated powers and rights, especially the right to rule known as sovereignty, is reserved to the people. In England this sovereign right to rule is reserved to the crown as its prerogative. Perhaps confusingly, the United States enumerated certain powers that were previously considered a part of the crown’s prerogative in the executive, legislative, and judicial branches and reserved to the States a “police power” to legislate upon public safety, healthcare, and (originally) immigration.

Even more confusingly, the United States extended the English common law system that some English scholars believe created the crown’s prerogative powers. This created a scandal in the early Republic with the creation of the Alien & Sedition Acts to, apparently, codify these prerogative powers as American common law. In 1799, the Virginia legislature responded to the possibility that the English common law had unleashed the usurpation of the Alien & Sedition Acts of the United States by explicitly rejecting the unlimited common law of England as inapplicable in America.

Monarchy was so unpopular in the fledgling United States that some States would rather abandon the English common law, at least at the federal level, than risk reintroducing monarchy here. St. George Tucker, one of the first federal judges in Virginia, carefully explained the risks of using what he called the “unlimited” statutes and common laws of England in federal courts. At the time, the common law in England was said to justify the prosecution of high crimes against the crown including sedition and libel by writ of scandalum magnatum as though the crown’s right to rule was a common law, as opposed to a feudal law.

Questions of the English common law’s endorsement, mere allowance, or rejection of the feudal (i.e., monarchical) law still plagues Great Britain. For example, in 2022 David Kershaw, the former Dean and current Professor of Law at the prestigious London School of Economics, published a very interesting article about the Glorious Revolution of 1689 originating the current regime of royal prerogative as limited by statute in Parliament. However, Professor Kershaw admitted his article was the very first to take the 1689 Parliament at its word when it legitimized the reign of William & Mary as a convention without a king in it.

It appears that Kershaw intended to honor the Americans when he thought of Philadelphia’s later constitutional convention as a potential way to reframe English power and law after 1689 as though it were limited. However, doing so might confuse things further, because the whole concept of a Parliament (at least according to Walter Bagehot) is to unify powers in one body, which has one head — the monarch. To an American, the Glorious Revolution is instructive, as it revealed, again, what lengths a Parliament would go to shore up the semblance of a good government even if it were treasonous and/or scandalous from the vantage point of the monarch it unseated.

The fact that the Parliament, itself, apparently has more power than simply to appear and disappear when the king calls it is an important revelation. But nothing about the Glorious Revolution shifted the union (as opposed to separation) of powers that the Parliament represents, especially as its first apparent act when it constituted itself without a king in it was to put a king and a queen in it again. As noted by the majority of English scholarship, aside from Kershaw’s wonderful article, the royal prerogative was not redefined by the Parliament, it was reestablished and reconstituted in a new monarch.

It is also questionable what Kershaw’s new analysis stands to help England gain by seeing the Parliament of 1689 as comparable to a Philadelphia constitutional convention. The United States consciously and openly created a system of separated powers, but the Parliament of 1689 clearly did not separate its powers from the prerogative royal. Nor did the prerogative diminish as if it were an executive power only; as though the chief executive officer of England, the monarch, wasn’t also the chief legislative, judicial, and religious officer of the nation too.

The most fundamental prerogative power of English monarchs is to write and rewrite the constitutions of its subjects, which is an original legislative power. This power, affirmed in 1774 in Campbell v. Hall to uphold the crown’s taxation of the inhabitants of the Colony of Grenada without representation began in 1066 England at the Norman Conquest. As the English had been subjugated, so too, Blackstone theorized, the rest of the empire, starting with Wales, became conquered into English liberty.

The same idea of freedom-by-conquest paradoxically excluded even the inhabitants of the Scottish town of Berwick, on the very border of England, from their common law rights and privileges in Rex v. Cowle. In 2008, the U.S. Supreme Court distinguished Cowle in Boumediene v. Bush to extend American common law to Guantanamo Bay, Cuba. In that same year, the House of Lords reaffirmed these royal powers by conquest, when Queen Elizabeth II’s Order in Council banishing the Chagossians from Diego Garcia was deemed fundamental legislation enacted outside of Parliament.

Kershaw’s reframing of England around the American idea of separated and limited powers fails to acknowledge the reality that the prerogative royal, in England, appears to be a feudal law that is treated as gravior lex (the higher law). The concept of prerogative arises from the idea of land-as-conquered to exclude common law rights from potentially all people inhabiting any land starting with the inhabitants of England, whose original Conqueror William I used the common law to rebrand feudal slavery, i.e., villeinage, as freedom (a paradox that candidly pervaded Somerset’s Case). Kershaw did not face the reality of the prerogative powers being a union of legislative, executive, and judicial power in the crown, and so he could not have hoped to analyze the English system of devolution in contradistinction to American federalism.

Nevertheless, Kershaw’s attempt to Americanize English power (even if it were novel to academia in 2022) is a decades’ old, populist position in Great Britain and America. Indeed, the legal bases of the Brexit decision that Kershaw seemed to agonize over was vindicated at the time of Brexit by populist analogies to the American Revolution. To be fair, proponents of the European Union have also analogized itself to the American Union that was brought about in the same revolutionary period in America.

The most interesting thing about Kershaw’s thesis was that, by revising the year 1689 according to a newly popular hindsight provided by America in 1776, the meaning of Lord Coke’s 1611 opinion in the Case of Proclamations changes completely. In that case, Coke stated “the King hath no prerogative, but that which the law of the land allows him.” Generally speaking, “the law of the land” is interchangeable with the English common law, which is a phrase repeated in the Supremacy Clause of the U.S. Constitution to denote by common law which laws are gravior lex in America.

But what Coke meant in his statement is not clearly that the common law created the royal prerogative, as he may have seemed to have said, as Coke actually said that the common law allowed the prerogative and potentially could therefore disallow it. As James Wilson noted in his lectures, the common law in Coke’s meaning was acting as gravior lex in contradistinction to the royal prerogative, which was not. If Coke meant that the common law had an active role shaping and, at times, limiting the royal prerogative, then the royal prerogative was sub graviori lege (under the higher law) as American Founder St. George Tucker maintained.

As Kershaw explained, there are many cases prior to the American Revolution that insisted that the royal prerogative was “grounded upon the common law” such that the Glorious Revolution “repaired and revived . . . the ancient constitution.” These cases were seen as a horrid corruption of the common law by many of the American founders. And Lord Coke, himself, committed the most fundamental blunder of this corruption in his decision in Calvin’s Case.

The inaugural Justice of the U.S. Supreme Court James Wilson called this corruption the bastard mother of Blackstone’s Commentaries, which he dubbed the bastard child, to signify its illegitimacy on this point. Nevertheless, in the U.S. Supreme Court’s first constitutional case of great importance, Chisholm v. Georgia, Wilson extended the common law writ of assumpsit as a legitimate basis for a private individual to sue a sovereign State. But Wilson perished too soon after the Alien & Sedition Acts were enacted to see what his response to these Acts would be.

In response to the popular argument in those days that the Alien & Sedition Acts were merely a restatement of English common law, St. George Tucker took the corruption of the English common law more seriously. Perhaps it was necessary to stake out the English common law as completely corrupted by a monarchical usurpation as a total failure that cannot be fully trusted as gravior lex in the United States. What mattered, and what still matters, is what the U.S. Constitution and the constitutions of the several States allow.

But here again we circle upon the central issue of concern to Kershaw and many other eminent scholars of today: whether one law allows another law, which Coke had addressed in the Case of Proclamations. As described in more detail in Coke’s decisions in Dr. Bonham’s Case and the Case of Monopolies, the constitutional allowance or disallowance of statutes and proclamations, according to Coke, is facilitated by the common law. The very concept of judicial review, adopted by the Americans and upheld in the celebrated case Marbury v. Madison, is a use of the common law as gravior lex to give overriding power to our written constitutions.

The theory by which they enshrined a novel system of separated powers and federalist principles was according to the mythical common law as it existed prior to the Norman Conquest of 1066. In the time of the American Revolution, the English jurists betrayed their previous holdings of the immemorial nature of the English common law — that it was rooted in a past older than our records, and potentially coeval with the existence of common human beings. In its place, the jurists of England maintained the existence of an immemorial social compact that ceded all power to a conquering royal crown.

Professor Kershaw understandably downplayed England’s pre-1066 history as it was already authoritatively rehashed by eminent legal historian Frederic William Maitland who denounced all Coke’s citations to myths and legends of King Arthur in the time before 1066 by degrading the Mirror of Justices as a fiction. However, Justice Wilson cited the Mirror in Chisholm as authority for the position that the common law controlled the king, and thereby it must also at a minimum control the States. Even the dissenting Justice Iredell maintained the petition of right in contradistinction to the writ of assumpsit as a way to find that the States were suable in federal courts.

Despite the current Supreme Court’s passionate disagreement with Chisholm as though it were a potential cause of an uproar of the mob, the Supreme Court generally reaffirmed Chisholm’s rejection of the petition of right in favor of general common law principles. The petition of right was filed in the office of the monarch, which simply does not exist here. The general point emphasized by William Blackstone, a royalist defender of the common law, is that even if the United States had chosen to crown a king in America it would still be able to have sued the king.

This general belief remained in the United States until, in 2019, the Supreme Court overruled Nevada v. Hall according to a novel theory of prerogative power that devolved upon the several States through the U.S. Constitution. In Franchise Tax Board v. Hyatt, the U.S. Supreme Court overruled Hall’s decision that each State retains sovereign immunity according to principles from the law of nations. Instead, the Court adopted a candidly British view of the Constitution by finding that sovereign immunity devolves upon the States from the U.S. Constitution such that the States cannot choose whether or not they respect it.

The upshot is that sovereign power and the right of the people of each State to rule is not reserved to the States and the people by the Ninth and Tenth Amendments, but the U.S. Constitution grants or devolves the powers the States possess. This resembles the British praecipe writ, which the British crown anciently used to centralize its authority to effectively unify the kingdom under one head. This Britianification of America is extremely new, and oddly appears to coincide with Britain’s populist Americanization of Brexit and Professor Kershaw’s analysis.

For the Americans, the new devolution of right and power to the people and the States in cases like Hyatt appears to fit St. George Tucker’s definition of usurpation as the union of the sovereign power of the people with the government. In England, this unification of power with the government is so ordinary that Professor Kershaw casually names it the public power of the government. It is the power that theoretically comes from the common people in order to presumably control the common people (allegedly for their own good).

Judge Tucker explained that the union of sovereign power with the government could come by an official act, like the decision of the Parliament of 1689 to enthrone William & Mary in England. But it can also occur by several imperceptible steps, such that the usurpation can occur in America if the people fall asleep; i.e., if they fail to stay alert to violations to their rights. According to Professor Kershaw, potentially this is what must have occurred after 1689 to reintroduce unlimited prerogative powers back into the English government.

But we are told by many scholars of the English constitution that the union of powers in one body, with one monarchical head is the entire point of a Parliamentary system of government. This union of powers in Parliament is intended to unite the absolute power of the people through the common law so that this power can be used, theoretically, to benefit the people. But the controversy over Godden v. Hales still stands, where the king was held to be above the law in pro bono publico (for the public good), where the king’s power was upheld to dispense with the law to benefit the people.

In Judge Tucker’s arguments that the Alien & Sedition Acts were unconstitutional, he noted that such a crown might assassinate his own children according to a theory that murdering his son was for his son’s own good. In other words, Tucker maintained that the promise of salus populi suprema lex esto (the good of the people is the highest law), which denotes the proper end of government, should not be allowed to justify the means. Absolute power of the people should never be united with the government, because it would never tend toward the good of the people for the people to permanently strip themselves of their sovereign powers and rights.

If a government tends to assert an absolute power to oppress the people, the people retain their right and duty to oppose such corruptions. This right and duty, which was boldly announced in the Declaration of Independence, is confirmed by the common law, which includes the folk-right of the common people to what is their own. As Tucker noted, in England, these common law rights were tested by several challenges wrought by the feudal power of monarchs to control or acquire what is and always was due to the common people of England, in contradistinction to their rulers.

In order for the U.S. Supreme Court to finally become corrupted by a British theory of devolutionary power, starting in 2019, Sir Paul Vinogradoff had to infiltrate American academia. This Russian-born British royalist influenced Maitland especially in his voluminous writings about the common law folk-rights of England, which characterized common law rights as though they established absolute powers rather than opposing absolute powers. It appears that, ultimately, the devolutionary laws the Supreme Court adopted in Hyatt to was not American at all — it was Vinogradoff’s.

The Americans were always defenders of English common law rights. One might guess that if it were possible, the English people would have chosen to correct their Lords and Ladies when they abdicated the vital spirit of the English people for the elitist diatribes of a Russian monarchist (i.e., Vinogradoff). Long before the Peterloo Massacre that the English people suffered in their struggle to secure English working class voting rights, the Americans boldly contested the rights of the English like this:

The Parliament form the great body politic of England! What, then, or where, are the People? Nothing! Nowhere! They are not so much as even the “baseless fabric of a vision!” From legal contemplation they totally disappear!

As confirmed in these words by Justice Wilson in a controlling opinion maintaining the common law rights of the English despite their despotic form of government, the common law as received in America is not the same common law received in England. In one way or another, the English abandoned their Lord Coke, whose constitutional opinions the Americans generally embraced and extended with careful modifications. Whether by Judge Tucker or Justice Wilson, the Alien & Sedition Acts were a travesty that are mostly repealed and expired in America, because they threatened to usurp the sovereign right and power of the people to rule.

The last vestige of the Alien & Sedition Acts, the Alien Enemies Act (“AEA”), is an exception to the common law of America. It is an indulgence of the people; a concession to the government that may have been allowed that may no longer be allowed if the concession is abused. Arguably, using the AEA to send people to a country different than their origin to be held indefinitely, incommunicado in a military prison is such a usurpation by a President who fancies himself king.

This puts the issue of the spirit of the American people in the same boat as the spirit of the English as Professor Kershaw intuited. All the cases professing absolute monarchical powers are grounded in the common law or folk-right of the English people may degrade both America and England. Yet, the Mirror of Justices and the legendary defenses of the English people symbolized by children’s stories about King Arthur and Robin Hood tell us the spirit of the English people is not spent.

As Lord Coke had done, Professor Kershaw issued an imaginary burst of genius into the English discourse worthy of awe. The American people should not begrudge the English a theory of the Glorious Revolution if it might save their people from despotism. But it is apparently for the Americans alone to defend the dignity of the English people conquered by the Normans in 1066, whose legendary common law is abandoned by even Kershaw in hopes of a limited American reframe of British government in 2022.

The English people have yet to confess their feudalistic errors — especially their heresy of placing a single monarch at the head of their church and appearing to worship the monarch as God, or at least as God’s vicegerent on earth. There is still no agreement between the Americans and the British regarding William Billings’ revolutionary announcement that there is “No king but God!” Yet, the Americans have held the torch of their English ancestors all these centuries so that one day the English people might turn back to God and to themselves and decide anew against the usurpation of any monarch who claims the paradoxical power of the people to oppress the people.

Round and round each other England and America appear to go, without any signs of stopping. But the American rejection of monarchy is fundamental and total. Despite the U.S. Supreme Court and the President appearing to perceive themselves as pretenders to their own conceptions of an American throne, there is no throne in America to pretend to.

Yours Cordially,

Joshua J. Schroeder, Esq.

Dear Reader,

The U.S. Supreme Court is a serial catastrophizer. Chief Justice Roberts appears to have started this unfortunate pattern in his opinion in NFIB v. Sebelius, where he reasoned that the Affordable Care Act (i.e., Obamacare) was “a gun to the head” of the States. Legal commentators, including myself, noted that the result was an apparent violation of the Constitution’s requirement that Congress enact uniform taxes by allowing all 50 States to choose their own healthcare insurance adventure.

Then, in King v. Burwell, the Court followed up Sebelius with reasoning that the Court must allow Obamacare to continue or else “death spirals” might ensue. Roberts’ catastrophization in Sebelius was King’s fait accompli. Then in Landor v. Louisiana Department of Corrections, the Court quoted Chief Justice Roberts’ “‘gun to the head’” line to deny the statutory enforcement of religious liberty rights in prisons.

The same reasoning might apply to efforts to hold State officials responsible for participating in murders like that of George Floyd. From there it would be a short leap to also use catastrophizations like “a gun to the head” and “death spirals” to justify literal guns to the head of real human beings in the recent ICE murders of Alex Pretti, Renee Nicole Good, Keith Porter Jr., Luis Gustavo Núñez Cáceres, Geraldo Lunas Campos, and others. It appears that the Court’s catastrophization strategy to justify or cover-up actual catastrophes are rooted in Jeremy Bentham’s original catastrophizations about the French Declaration Of The Rights of Man And Of The Citizen as “non-sense upon stilts.”

As Mary Wollstonecraft observed at the time, it was not the French declaration of the rights of human beings that caused the French Reign of Terror. Rather, it was the trickery of the French leaders who lied about their emotions of rage and terror in order to gain public trust to destroy the French people. In his paradoxically unreasonable tract the Age of Reason, Thomas Paine seemed to agree with Wollstonecraft about the problem of lying the sat at the root of French ruin.

So it was, as Emily Eakin tells us, with the French theorists who poured into elite American institutions in the mid-1900s. For example: Paul de Man was revealed to be a Nazi sympathizer who reached the height of American notoriety by using his good looks and sex appeal to enchant his way to success through fraud; Michel Foucault contracted HIV in California, spent his life attempting suicides that he rationalized as a sexual kink, and never overcame the rumors that he was probably one of the first “Gift Givers” in America; and Louis Althusser murdered his wife and then published a memoir about it where he attempted to excuse the crime as an expression of his love.

One strand of observation in Eakin’s retelling of the horrifying details of each of these French thinkers was the corruption of emotions, especially sexual passion and love, as an excuse for heinous crimes. Under the influence of Freud, the Frenchmen each appeared to catastrophize about sex and passion to cover-up their crimes. Eakin explained this function of sex and passion as a way to excuse crime in a passage about Jean-Jacques Rousseau’s confession of a crime, in which he appeared to excuse himself for harming a woman who he was sexually attracted to and for whom the underlying offense was allegedly committed.

Eakin’s review allows the possibility that the French women, including Simone de Beauvoir, Simone Weil, and Hélène Cixous, among others, did better than their male counterparts. Perhaps the French women did not go quite as mad as the Frenchmen did. Potentially, they had not catastrophized about their sexualities or about their “lack” as the Freudians blindly diagnosed them. Yet, even Beauvoir was influenced by Claude Lévi-Strauss’s somewhat awful treatment of women in his anthropology of kinship, perhaps, giving it more credit than it deserved.

The problem with these French catastrophizers was their way of seeing the entire world as though it were all French, so that their theories about French language might apply to all languages and all peoples. Yet, what is French potentially says nothing about the rest of humankind, such that if France were to attempt to superimpose its language and culture on the entire earth it should attempt to explain its relationship with the rest of us in order to justify its presumptuousness. This could explain the endless fascination France has with America, because the Americans could potentially justify the French as an example of the rest of the world France believes it can represent.

For example, at one point in Eakin’s book, Michel Foucault visited an American prison, which appeared to him to prove his point about prisons being an expression of sheer State power over individuals. But, in so doing, Foucault had to admit that he never was allowed to visit a French prison and so could not compare. Had Foucault known the American history of crime and punishment, he might have known more about our development of several prison alternatives like Abby Hopper Gibbons’ idea of halfway houses and other Quaker reforms including the development of a concept of the prison-as-penitentiary rather than a way to administer civil death.

But Foucault did not know American history, and instead sought to impress upon America and the whole world his view of crime and punishment from his own experience as an oppressed homosexual in France. He visited an American prison, without appreciating the transparency and openness of Americans to his critique, and apparently declared it a proof of concept. Nevermind that if an American prison proved his concept of power and punishment that it would have meant the American prison betrayed all the American ideas about how to reform power and punishment to avoid the unconstitutional accumulation of power that Foucault was writing about.

The primary proof of this flaw in French theory lies in English people, who have continually denounced the French as their colonizers since the Norman Conquest in 1066. The result had been several centuries of imposed French-Latinate words into the English system of law and eventually into the English language itself. As a result, as observed in a wonderful new book about writing by Neal Allen & Anne Lamott, entitled Good Writing: 36 Ways to Improve Your Sentences, the English language retains a just prejudice against French words as they generally sound clinical and cold to the English-speakers’ ear.

The American legal system generally adopted the English common law system, including its prejudices and forms. This means that the English rejection of French-Latinate words from within the very system shaped by French-Norman conquerors is controlling in most of the United States. Notably, Ms. Eakin did not track this development alongside the French invasion of American thought she eulogized.

Ms. Eakin seems to have given the Frenchmen a fair shake, rather than introduce ancient English oppositions into the mix. In fact, at every turn, it appears, Ms. Eakin presented French theory in the light most favorable to the French. And even then her book appears as a masterful literary takedown even as it fairly presents the French in their own words, according to their own terms.

The fairness on the face of Ms. Eakin’s book, and her patience for the ideas of the Frenchmen, appears to be what makes The Frenchmen so effective as an implicit invective of a quintessentially American variety. In it, there is no reliance upon the English or on American legal tradition, as those would already counsel against fully trusting the French. Yet, by taking the French at their own word, it appears that, according to Ms. Eakin’s telling, the Frenchmen themselves lead us back to language as the all-constituting force of societies and of sovereign power itself.

The French idea that language is more real than reality, or that it somehow creates or manifests reality, is an untenable extravagance that was preached into America by Norman V. Peale, in whose church Donald J. Trump was raised. Only an elitist can truly believe that language shapes all. And France can only maintain it by disavowing its role in the creation of English law, which contains within its spirit a rejection of French-as-tyrant symbolized by Robin Hood’s mythical defense of the English people.

It would be an oversimplification to say that Americans agreed with the English that the French version of government was the bad guy, especially after the American Revolution. However, the elements of law that eventually corrupted English monarchy to the point where it effectively assassinated its own empire on November 30, 1774 by effectively declaring war on the people of Massachusetts were French. The speech the mad King George III gave in Parliament on that day was effectively a gun to the head of his colonies.

To be fair, the Americans had just gone to war for the king in Canada, where the French were defeated. The campaign against French Americans led by English monarchy is the source of several enduring paradoxes in America, including French Canada’s consistent loyalty to the English crown. Indeed, for Americans, the betrayal of ourselves by edict of English monarch has proven the proper cause of Margaret Atwood’s critique of the United States during the Reagan era.

We North Americans, Mexicans, Canadians, and people of the United States, remain divided over the question of how it is best to love ourselves, and on this topic the example of the Frenchmen is relevant. The corruption of sex and love to cover-up our most heinous crimes is untenable, insane, and self-destructive. The Americans have fallen into this madness now and again in the antebellum era, in the eugenics era, and now with Trump as our Commander in Chief.

But, if we take into account the French, we may see the U.S. Supreme Court’s catastrophizations as a mere cover-up for legal nihilism. Michel Foucault’s agreement with Jeremy Bentham may be a confession of self-hatred dressed up as though it were self-love. In English, this conundrum is embodied by the meaning of selfishness in contradistinction from self-care or self-love, which the English-speaking world has yet to resolve. This problem regarding the meaning of self-love was summarized by Mercy Otis Warren’s revolutionary warning to John Adams:

Self, the sole point in which [Caesar and Brutus are] both agreed,

By this Romes shackled, or by this shes Free’d,

Self Love, that stimulous to Noblest aim,

Bids Nero Light the Capital in Flame

For now, the French have proven their madness and reason in Michel Foucault’s fashion of suicide-as-kink, a selfish release from the responsibility of living by imagining a release from life could be orgasmic: A glamorization of death as indulgence, which only self-hating madmen like Foucault seem to buy; an appropriation of Ciceronian discourse in contradiction to his tract On Old Age; and a subsequent corruption of Augustinian confession that is still defended by the Arendtians of the United States despite the influence of the Frenchmen.

The idea that death will relieve us from the pain and suffering of living is pure imagination. None know for certain what lies beyond these mortal coils. But Cicero believed that life is necessary for us to complete our purposes through action, which suicide betrays — dooming the dead to the incapacity of action. From this thought, according to St. Edna St. Vincent Millay’s elucidation of it in The Suicide, we can imagine the anguish of the dead whose tasks in life were cut short by their own hand.

As Sylvia Plath symbolizes, there may be some who are so oppressed in this life that suicide is the only last option of freedom left open to them. But Hannah Arendt would likely quibble over the question, as certain Jews whom she acknowledged, beyond a certain point, had no hope and might have chosen suicide as their final act of freedom during the Holocaust were incomparable to Plath’s circumstance. The issue of mental health looms large over these questions, which Plath herself, perhaps confusingly, colored-in with Nazi imagery.

The corruption of human emotion through catastrophization by the U.S. Supreme Court (who has not been held at gunpoint to my knowledge), is something that requires our attention. What are they covering up by claiming mortal wounds shall befall the States if they do not decide cases in certain ways? The whole thing smacks of Robespierre’s dubious citations of terror and rage to inspire public support for the removal of French madness through the beheading of the French people en masse.

Ms. Eakin calls us to reconsider the Frenchmen now that Donald J. Trump is the President of the United States. She guesses that our answers about their apparent irrelevance might be different now in the time of data centers and artificial intelligence. The centrality of language seems to be at issue in matters of computer code, which we have analogized to language, which appears to have been apt now that it has produced evidence of computer generated discourse potentially absent of human participation.

Did OpenAI or Anthropic make a product that can travel “outside” of John Searle’s Chinese Room? If they did, does it indicate sentience? Will it produce power over human beings as the Frenchmen theorized? Or is artificial intelligence’s language mastery merely a tool that could be particularly useful to increase the power of those who already have power — like a gun or an army?

As Ms. Eakin noted, French Theory is only “dead” in the sense that Freudian psychology is dead: Both are everywhere. It was everywhere when the internet was invented and theorized about. It appears that only thereby did the American judiciary analogize computer code to language to justify copyright protection of big computer company products, by which artificial intelligence companies make their profits.

Therein lies the real question: Are the artificial intelligence models a consequence of the Frenchmen’s theories or a fulfillment of their prophesies? Might the French prophets have prophesied differently to inspire a different world? It seems that we are left with the same ancient contemplation of free will and destiny, hope in the capacity of human action and nihilistic fate, as was recently presented in The Matrix. Americans are faced anew with the tension between our secular prophets, like the Silent Generation’s Joan Didion, and our most vibrant muses, like the same generation’s Eve Babitz.

As Ms. Eakin presented the issues, America is left with the encroaching sense that suicide might become our one last expression of free choice if things go as bad as Didion guessed they would. Maybe the center will not hold. But also, maybe, American artists and visionaries will inspire the people to persevere by convincing their audiences and listeners to choose happiness, as Roland Gérard Barthes, alone among his contemporaries, appeared to offer, and as Babitz appeared to have perfected in the style of the French Collette for the people of the United States.

Yours Cordially,

Joshua J. Schroeder, Esq.

Dear Reader,

In Louisiana v. Callais, the Supreme Court went mad. It nullified the Voting Rights Act of 1965, Allen v. Milligan, and many other other Equal Protection Clause cases that once maintained the ordinary majority-minority asymmetry of Equal Protection Clause review. By nullifying several cases and a federal law to vindicate majority-rule as a fundamental right, Callais categorically unsettled Cooper v. Aaron’s enforcement of the iconic decision in Brown v. Board of Education.

Then, on August 6, 2026, President Trump issued Executive Orders 14418 and 14419 targeting children born to birth-tourist parents after Trump v. Barbara held that birthright citizenship “includ[ed] those foreigners here merely on a ‘temporary sojourn.’” No new statute was passed by Congress, nor was there any new wave of birth tourism or even propaganda attesting to any new circumstance justifying the President’s apparent defiance of Barbara. Executive Orders 14418 and 14419 imply that the President believes he has an inherent power to re-litigate settled law immediately after it is settled by the Supreme Court, like the Governor of Arkansas did after Brown partially overruled Plessy v. Ferguson.

These orders also single out Samoan Nationals and potentially those born in the Northern Mariana Islands as precluded from the benefits of birthright citizenship. Meanwhile, Barbara appears to require reconsideration of cases like Tuaua v. United States and Fitisemanu v. United States for potential reversal to respect the rights of those born in American Samoa to U.S. citizenship. If Tuaua and Fitisemanu are not reversed according to the Fourteenth Amendment, the constitutional rights of the inhabitants of Puerto Rico, the American Virgin Islands, Guam, and Washington, D.C. may similarly be ignored or openly violated regarding voting rights, the privilege of habeas corpus, or any other issue regarding fundamental rights according to the President’s apparent theory that these places are not constitutionally within the United States.

The President’s theory, that appears to underlie Executive Orders 14418 and 14419, is that the U.S. Constitution does not apply in U.S. territories. This issue seems to have been already argued and decided in Loughborough v. Blake, which involved the question of whether the territories and Washington, D.C. could be taxed even when they have no representation in Congress. In Loughborough, the Supreme Court held that:

The District of Columbia, or the territory west of the Missouri, is not less within the United States than Maryland or Pennsylvania, and it is not less necessary, on the principles of our Constitution, that uniformity in the imposition of imposts, duties, and excises should be observed in the one than in the other.

The President’s apparent new plan to illicitly repatriate children of persons accused of birth-tourism could have disastrous effects, including the expulsion of extremely valuable talents from pouring themselves into the American economy in the near and distant future. For example, significant talents, like the Australian-American actress Nicole Kidman who was was born in Hawaii to Australian parents, may not choose to return to America to participate in an extremely lucrative career but-for the open door bestowed by U.S. birthright citizenship. If Executive Orders 14418 and 14419 are not checked by the courts, their potentially severe economic consequences may materialize decades later, when magnificent talents born here choose to spend their talents in countries that grant easier access and pathways to belonging.

Unfortunately, Trump v. Barbara is not over. Its practical effect on U.S. immigration and naturalization will now likely be decided according to the question of whether Cooper v. Aaron still applies after Callais. As Callais reasoned, there may be no compelling interest to justify the Court’s enforcement of Barbara. Perhaps, the President has the dispensation powers of a king, upheld in Godden v. Hales, to ignore the constitution and the laws, pro bono publico, but, if the Court decides he does, it must explain why Cooper v. Aaron was wrong.

Cooper enforced Brown in Little Rock, Arkansas by rejecting the attempt of the Governor of Arkansas to nullify the judicial enforcement of federal law. For decades, Brown was considered a touchstone of U.S. constitutional review and an example of what the Supreme Court can do to create uniform changes in American society. Callais marked the official abandonment of Cooper’s holding: that avoiding outright nullification is a compelling reason to enforce compliance with Court orders.

After Callais, a party must have a compelling interest as defined by Callais before a State would need to comply with a lower Court order to enforce the Voting Rights Act of 1965. Callais added many conditions including that the order address an intra-party claim of discrimination that is supported by proof of actual intent to discriminate. The narrowing of any potential circumstance when a State would need to comply with an order to enforce Section 2 of the Voting Rights Act of 1965 effectively nullified the federal statute without directly striking the statute down as void.

The effect of Callais’ attack on enforcement nullified several judgments in line with Allen v. Milligan’s old vindication of statutory stare decisis. As a direct result, Allen was subsequently stayed in the shadow docket while the Court basically re-decides Allen as though its previous decision mandating a supercharged form of stare decisis did nothing to protect stare decisis. The next stage of Barbara litigation will involve the judicial enforcement of a constitutional decision, technically without the travesty of “supercharged” stare decisis symbolized by Allen.

Yet, the individuals potentially affected by the President’s new proposal that the Court simply refuse to enforce Barbara include individuals whose natural citizenship is both statutorily and constitutionally protected. If Cooper does not stand for the enforcement of the constitutional precedent in Barbara, then Cooper is completely dead. If the Court leaves Barbara unenforced in the face of of Executive Orders 14418 and 14419, then the President may be officially under no obligation to execute any law, statutory or constitutional, despite the separation of powers, the Take Care Clause, and the President’s Oath of Office to the contrary.

Another complexity, however, is the potentially non-precedential nature of the shadow docket (i.e., the equity docket). Enforcement of the law is ruled by equity, which is not necessarily controlled by common law, and, therefore, is not necessarily precedential. So the Court’s denunciation of universal injunctions in CASA, Inc. v. Trump was not apparently followed in D.V.D. v. DOD and likely may not be followed in League of Women Voters v. Trump in response to Executive Order 14399, regarding mail-in voting systems, so it may be impossible to declare Cooper 100% dead or 100% alive — at least, in the equity docket.

It always was the nature of equity to be exceptional, as governments generally should be trusted to follow the controlling laws and rulings of the land. Perhaps this means the nullification crisis is no crisis, but merely what happens when the government goes berserk due to a treacherous Presidential refusal to execute the laws. The answer is apparently political: to impeach, remove, and prosecute the President and/or his officers for what appears to be corruption and treason by fraud.

But the U.S. Supreme Court is too openly contradictory in its recent uses of equity to be considered innocent here. Many questions about the nature of equity and its proper uses loom large. As Congress continues to be paralyzed by cowardice and greed, the Court will almost certainly be forced to navigate unprecedented pressures created by a corrupt and potentially treasonous Presidential Administration that the American judiciary was not designed to handle.

Yours Cordially,

Joshua J. Schroeder, Esq.

Dear Reader,

It took me a few weeks, but I completed my research of the 2025 Term of Supreme Court cases. My overall perspective is that the Roberts Court has unleashed a sort of Everything Bagel, like the one in the movie Everything, Everywhere, All At Once. Some decisions reaffirmed long standing principles, but, more often than not, the Supreme Court opted to throw the nation in to uncertainty and chaos by unsettling previous understandings of the law.

My specific findings and research are in my new three part series A Tale of Two Americas, available now in pre-published form on SSRN. During the process of creating this project, I discovered the arguments of St. George Tucker, a founding Virginian judge, against the unlimited common law. In these arguments, Tucker seemed to have anticipated the Everything Bagel the 2025 Court would unleash on America as far back as 1803 when he published the bulk of his legal commentary.

Specifically, Tucker targeted his fellow founder Justice Samuel Chase’s fatalistic decision in the Case of Fries to allow constructive treason suits to go forward. A few years later, Chase was impeached, in part, according to Tucker’s arguments. Thus, it may be valuable for modern impeachment efforts to observe the way Tucker inspired his step-son Representative John Randolph of Roanoke to prosecute Chase.

During his impeachment, Chase admitted that his nihilism got the better of him when he unleashed the Everything Bagel of his time in the form of overzealous Alien & Sedition Act prosecutions. Like Chase, many more Justices on the Roberts Court — especially Alito and Thomas — are letting nihilism dictate their actions today, so much so that it appears there is a majority of nihilists on the U.S. Supreme Court. A growing number of American judges have abandoned the idea that human beings each have natural rights that any legitimate court is duty bound to protect.

Nevertheless, Tucker’s analysis of how bad apples in the judiciary corrupt the common law to facilitate tyranny, as though natural human rights do not exist, needs to be reconsidered. In this term, the Roberts Court attacked the common law through the common law in many ways. It has expanded its invention of anti-precedent precedent, it destroyed a statutory system by upending secondary copyright liability, and it has used the Equal Protection Clause to invert sovereignty against individual voting rights.

The ways the Court held firm in Trump v. Barbara, Chatrie v. United States, Learning Resources, Inc. v. Trump, and Trump v. Cook were not enough to avoid catastrophe. But the Everything Bagel it unleashed is rooted in basic nihilism. It can be contested and undone according to Tucker’s original efforts, with the help of newer strategies. But Congress will need to awaken itself from its long slumber if the United States is to avoid falling under a tyranny invented by the Court’s nihilistic errors.

Perhaps the most disturbing development so far is how the Court unsettled Cooper v. Aaron in Louisiana v. Callais. The Cooper decision required lower courts to enforce the decisions of the U.S. Supreme Court, but Callais decided that some U.S. Supreme Court decisions will not be enforceable if enforcement is not a “compelling interest.” Thereby, the Court opened Pandora’s Box to reveal the Everything Bagel in a peculiar paradoxical interpretation of the Equal Protection Clause.

According to the Court itself, the Court is lost. Congress must act or Congress will also be lost according to the Court’s radical revisions of statutory terms and statute enforceability. The 2025 Term proved that the Court is a fiat machine with the equitable power to order compliance with its political fiats, while its members arbitrarily choose which past precedents it wants enforced at any given moment, while it allows other past precedents to go violated or ignored.

So far, the Court’s power has not been significantly challenged by the other branches. We continue, at present, to live as though Cooper v. Aaron remains settled law. Until America’s general delusion about the Court being the “least dangerous” branch is finally dispensed with, the Court will continue unconstitutionally misbehaving. Again, Tucker’s commentaries on the law demonstrated that not every founder thought the Court would be docile or harmless, and a sober look at his points should precede Congress’s renewed efforts to reform the Roberts Court’s apostasy.

Until then, we can try to develop a taste for this Everything Bagel the Court is serving these days. Maybe we can pretend to ourselves that Evelyn Quan Wang (played by Michelle Yeoh) is coming to save us. But Millennials know, the Boomer ship has sailed, and we are going to need to be Ms. Wang for younger generations.

We all know the Boomers did not fight off our Everything Bagels. If anything, we fought off theirs. So, perhaps, the 2025 Term is just power for the course — another round of Boomer nihilism for Millennials to fend off, as we always do.

Yours Cordially,

Joshua J. Schroeder, Esq.

Dear Reader,

Louisiana v. Callais’ attack on the enforcement of duly enacted federal law nullified several judgments in contravention of Allen v. Milligan’s old vindication of statutory stare decisis. As a direct result, Allen was subsequently stayed in the shadow docket while the Court re-decides Allen as though its previous decision mandating a supercharged form of stare decisis did nothing. In a sense, Callais put every federal law, policy, and precedent in a position of double jeopardy that can be changed at any moment by ad hoc review — in other words, Callais is Dobbs on steroids.

The legal profession was generally unprepared for Callais because it was a recapitulation of the Slaughter-House Cases’ invention of The Anticanon. The anticanon facilitated a peculiar growth in lawyerly laziness beginning in the decades after Slaughter-House — a case that deemed Dred Scott overruled by the Thirteenth Amendment, while paradoxically upholding Dred Scott’s racist construction of the Declaration of Independence that excluded Black Americans. Once a case is tossed into the anticanon, as Slaughter-House did to Dred Scott, few take the time to understand exactly how the case went wrong or why we consider it worthy of anticanon status.

Slaughter-House, and its progeny currently ending in Callais, could have overruled anticanon cases, but that would have required the Court to describe why the decisions were wrong the day they were decided — void ab initio. Slaughter-House did not describe why Dred Scott was wrong the day it was decided. Had it done so, it would have had to extend broader rights to Black Americans pursuant to the Fifth Amendment and the Privileges & Immunities Clause, the Guarantee Clause, the Ninth Amendment and other sources of rights that existed when Dred Scott was decided. Slaughter-House’s invention of the anticanon to, in part, avoid explaining Dred Scott’s error demonstrated its role was more to preserve unjust decisions like Dred Scott than anything else.

Nevertheless, the anticanon appears to be an effort to avoid making the perfect be the enemy of the good, by attempting to maximize the number of people who agree that Dred Scott was wrong without rubbing their noses in why it was wrong. Yet, even in the light most favorable to the anticanon, it seems to be basic post-racialism by another name. Instead of answering the question of why Dred Scott was wrong, it endeavored to negate Dred Scott by recapitulating Dred Scott’s negation of good and evil in an end-of-history, Hegelian-absolute-idea sort of fashion.

Even though Dred Scott was marinated in Hegelianism, I am not one to seriously consider Hegel (or the woke crowd that seems to follow him these days) a “sorcerer” as Eric Voegelin did. Nor do I think of Hegelians as completely lost once they “enter[] into the magic circle the sorcerer has drawn around himself.” At the very least, the term “sorcery” is a term loaded with too much Puritanical baggage.

Calling something sorcery or magic merely to mark it as evil is self-contradictory, because being magical implies that evil is actually an interesting or beautiful thing. But the Hegelian dialectic as infamously carried out in Dred Scott and repeated in Slaughter-House is anything but beautiful or interesting. The utopian logic of the so-called Hegalian dialectic in both-and logic is extremely tired and boring, especially because it has not created a utopia and shows no signs of leading humanity to utopia.

After centuries of trial and error, Hegel’s old idea that a utopia will flow from humanity’s absolute paradoxes seems to be mere fatalism clothed in optimism. The Hegelian dialectic seems to be the systematized form of “toxic positivity” analyzed by Mary Trump as the primary symptom of Donald Trump’s religious beliefs. The toxic positivity of the American Puritans who hanged witches in Salem conspicuously prefigured Hegel’s later establishment of both-and logic as the foundation of his utopia machine.

The banality of evil can be dressed up by people hoping to vindicate good as a secular utopia just as it can be dressed up with mighty vanquishing angels tearing down the battlements of the devil in an epic scene of war. We saw this in the Salem Witch Trials and we see it today when so-called Christians dress up global war and unrest as though it has a deeper meaning in the unbiblical concept of rapture and Armageddon. But when actual people are demonized or vilified as if they were the great Satanic host God is meant to smite in the end times, they tend to come out looking more like clowns than devils — as Eichmann did in Jerusalem.

The paradoxical thinking behind Callais that is clearly rooted in horrible decision after horrible decision linking back to Dred Scott is actually too banal to address in a Substack post like this. The logic is so boring that it cannot be exhaustively addressed without losing every single reader to sleep or distraction. As Hannah Arendt noticed, in this “banality” lies evil’s real power.

If Arendt was right, banality is probably why Slaughter-House basically got away with extending Dred Scott’s central holding in the same breath as it recognized Dred Scott was invalidated constitutionally. It is also probably why Brown v. Board of Education got away with letting Plessy v. Ferguson live on. And it was also probably why The 1619 Project basically agreed with the KKK about white supremacy being a founding U.S. principle while holding itself out as an enemy of the KKK.

To use a concept from Harry Potter, banality seems to have been why Voldemort’s horcruxes worked so well. Voldemort was able to hide pieces of his soul in plain sight so that he could potentially live on forever. The items Voldemort cursed were not, in-and-of-themselves evil, but the effectiveness of his curses depended on the items remaining extremely mundane.

Voldemort’s undoing came about largely due to his choice of corrupting objects that retained some sense of flavor or interest that clued in the story’s protagonists — a goblet of Hufflepuff, a diadem of Ravenclaw. Being objects of interest or even glamour was the power of good at work, because only good can be marvelous, captivating, or sublime. So too in the law, when Callais corrupted the one person, one vote ideal the power of good tips off social justice advocates because the ideal of one person, one vote is interesting and thought provoking.

Thus, Callais came from the banality of Hegel’s presumption that good will automatically appear from holding tension between absolute opposites like slavery and freedom as in the problematic writings of W.E.B. DuBois. Instead of continuing to trust the process of Hegelain double-consciousness, Americans should take Arendt’s advice and seek for something new. Hopefully it is not too late to hunt for horcruxes in Supreme Court precedent to stop the Supreme Court from needlessly repeating the heinous errors of its checkered past.

As the end of the 2025 Supreme Court term approaches, when many highly anticipated decisions will be issued, we can be sure that whatever is decided will be explained away in Hegelian style. The subordination of Black voters will probably be explained as just part of the process of majority rule that the Founders and Framers allegedly adopted when they started the nation. Instead of raging aimlessly against a machine that is already built up around a long-standing anticanon that allows the Court to avoid having its gravest errors explained publicly, artists, writers, and musicians could expose the anticanon as a boring, drab, and altogether gauche judicial attempt to avoid naming its part in some of the most horrifying wrongs of American history so that we do not repeat them.

It is time to dream as Martin Luther King, Jr. dared to dream. Great dreams are not usually infested with the colorless banality of Hegelian philosophies that promise utopias and give only mediocrity as the Court did in Callais. If a great dream catches fire in the American mind, it can disrupt even the most deeply embedded horcruxes of federal jurisprudence, even now.

It should inspire hope that America’s salvation from its present struggles could be one big dream away. Many examples of American muses could be cited, but I think Kesha is the artist who most inspires my mind to dream greatly. May her voice throw a light into your imagination as it has done for me, and then, if you want, share your big dreams with me by sending me a private message or making a comment below.

Yours Cordially,

Joshua J. Schroeder, Esq.

Dear Reader,

Donald J. Trump is a teetotaler; he says he has never had a drink and has never smoked. This makes Trump’s alleged sex abuse scandals, general use of cuss words, slander, and other flagrant breaches of etiquette eerie products of abstinence rather than substance abuse. Even more paradoxical, is the throng of devout teetotalers who support Trump’s empowerment of notorious substance abusers to misappropriate some of the strongest language English contains to preserve the status quo.

Some of Trump’s closest followers in this regard are Democrats. The appropriation of English swear words by mainstream Democrats who argued Joe Biden was defending the “soul of the nation” was unexpected, because their rejection of their previous development of political correctness (“PC”) seemed to admit on its face that Biden-as-American-soul-warrior never passed the laugh test. And calling Justice Ginsburg the Notorious RBG would have worked in the 1990s, but today it comes off as what it appears: boldfaced pandering.

In short, the attempted rebrand of Democrats as non-PC backfired, giving little or no political payout. Meanwhile, the Republican Party paradoxically remade itself as the official anti-PC party when it dumped the Bushes along with their facially PC family values platform for Trump’s freewheeling-wrecking-ball platform. Now Trump is recklessly reducing some of the most electrifying English terms — like hope, change, revolution, social justice, and equal liberty — into milk toast.

If English terms continue to be abused in Trumpian style, the entire English language could fall into meaninglessness. The wonderful BBC documentary HyperNormalisation anticipated this problem of a people paralyzed by the normalization of radical realities from a psychological angle, that I rebrand here as “radical normalization” to address its legal-linguistic underpinnings in the English context. If my legal research holds, the English language has an ace up its sleeve that could help both Great Britain and the United States avoid a needless era of radical normalization or hypernormalisation where English itself may lose its ability to convey any real sense of the extreme.

After the renowned Puritan poet John Milton appropriated some of the most raunchy, sexual images in Camus, Paradise Lost, and Samson Agonistes to degrade the rights of women, many lost hope. For a time, misogynists reigned supreme as the English language itself seemed to tilt against the recognition of equality of women in public life while Milton steered the ship.1 But when the visionary poet Phillis Wheatley read Milton, she successfully charted a path through him into what is now known as the Romantic art form.2

On July 4, 1776, the Americans followed Wheatley’s lead and the United States was born through an unlikely path charted through the paradoxes of Milton’s Puritanical sex God. This sublime journey of faith through the impossible gave us the First Amendment, the Patent & Copyright Clause, and many other advances in statecraft. By charting her poetic course through Milton’s “boundless systems . . . Thro’ earth, thro’ heaven, and hell’s profound domain,”3 Wheatley recreated Milton’s Satan into a tragic hero that became the foundation of the Romantic art that later reverberated throughout Europe in the writings of Goethe, Longfellow, Dumas, Blake, Keats, Lord Byron, and the Shelleys, among many others.

Admittedly, there is insufficient direct historical evidence to unequivocally prove that Phillis Wheatley was the necessary link that drew Puritanical doom-saying into Romanticism’s future providential, allegories of love. Yet, Wheatley’s poetics were a conspicuous precursor to Romantic art that revolutionized Puritanical dirges into elegiac forms of encouragement to help the American Revolutionaries persist through their tribulations.4 In the times in which she wrote and the medium of Puritanical elegy that she chose, Wheatley took the world’s stage completely alone.

In time, Wheatley may be recognized as a singularity that caused a Romantic revolution in Europe for which white men primarily took the credit. In the autumn of 1772, Wheatley constructed Romanticism’s chrysalis in the fires of a trial where she unanimously won her right to claim credit for transforming the Puritan elegy from mere drudgery into a prophecy of change that fully manifested on July 4, 1776. In a few short months, she presaged transformations that would later be wrought by the American Revolution itself by traveling to England where her artistic form emerged transfigured — rippling out its global influence like a sable butterfly that unexpectedly initiated hurricanes of Romantic art across Europe by the unassuming flutter of her delicate wings.

For most of its history, the American judiciary also exhibited a tendency to absorb Black genius while keeping itself primarily white and male. It is well known that Reverend Pauli Murray strategically masterminded the legal framework the all-white and all-male U.S. Supreme Court adopted in Brown v. Board of Education, which the Court recently drew into question in Louisiana v. Callais. The Court’s controversial decision in Callais marked the end of an especially toxic Romantic era in American legal history when the charms of Black Americans were monetized by and used to burnish the reputations of white Americans without paying for a license.

The American judiciary’s culture has drastically changed from the last days when revelers like Justice Antonin Scalia and the Notorious RBG promoted a paradoxical sense of blusterous levity from the bench. Scalia, especially, would entertain the public by fanning himself like Scarlet O’Hara to protest the big, mean liberals, while boisterously lambasting his colleagues (especially Justice Kennedy) as usurpers and tyrants. Ever since his passing, however, the Supreme Court supplanted Scalia’s humorous self-contradiction with a bottomless sense of white grievance and fragility that is confusing to navigate.

In retrospect, Scalia and Ginsburg’s political-revenge themed revelry appears to be the last dregs of Justice Holmes’s Romanticism to be express from the American bench. The Court confirmed, in Callais and several other recent cases, that its sense of white grievance has no limit — effectively ending the era of Holmesian Romanticism that limited white grievance with the requirement of a humorous punch-line (however terrible the consequences an ill-humored judgement might be). As Wheatley knew, by Jefferson’s admission, when white men concluded that no God would support their systems of racial oppression they tended to abandon any sense of levity to throw caution to the wind as Justice Alito did in Callais. They seemed to decide that since they are going to hell anyway, like Cain who murdered his brother, they should make the most of the lives they have.

In his book Stamped from the Beginning, Ibram X. Kendi observed this fatalistic pattern in white America by explaining how the American slaveholders adopted the legend of Cain and the Land of Nod. These slaveholders misappropriated the Bible to justify chattel slavery laws upon Cain’s murder of his brother Abel by re-imagining Cain as the proto-slaveholder to create a sense of white grievance for themselves as heaven’s outcasts. Phillis Wheatley resolved this legend in her revolutionary poem On Being Brought From Africa to America where she re-imagined Cain as a redeemable Black man to destroy the legal basis for chattel slavery in this biblical legend.

Kendi, and his “woke” allies in The 1619 Project, not only rejected Wheatley’s magnanimous extension of God’s grace to white America, but they failed to recognize Christianity’s role in the anti-slavery phalanx of the American Revolution. In response, Reece Jones wondered at The 1619 Project’s inexplicable embrace of the KKK’s fatalistic retelling of American history that sought to erase the existence of Black American Revolutionaries like Wheatley.5 The “woke” crowd gained nothing for characterizing Wheatley as a mere circus act to flatter Thomas Jefferson’s racist dismissal of her poetry as though she did not leave her many American admirers, including Thomas Paine, George Washington, Benjamin Franklin, James Bowdoin, Samuel Cooper, and David Wooster, wonder-struck.

As Wheatley achieved a clear victory against slavery in the Revolution of 1776, not even the American South still perceives that arguing from a position of Cain’s murder of Abel was ever a valid argument for white superiority. This caused a mutilation in how all Americans read historical sources that covered up their real meaning even when they are openly presented before our eyes. For example, John Marrant’s characterization of slaveholders as our “modern Cains” in a sermon he preached in Boston 1789 appears to modern eyes as a sleight against slaveholders, because modern eyes see Cain as a moniker of complete hubris and illegitimacy.

But as Kendi himself noted, the slaveholders long held a view that Cain’s position as outcast of heaven made him into a tragic figure that was not entirely dealt with until the Union won the Civil War. In fact, Kendi maintains it is not entirely dealt with even now in the 2020s. However, in Marrant’s time, the reference to Cain referred to a mainstream and generally known appeal of slaveholders to Cain as a tragic figure, not an invention of Black America to lambaste slaveholders.

This misinterpretation of Marrant as flipping the script rather than saying it how it was, causes modern readers to see Marrant as more revolutionary than he was by seeming to turn the tables on the slaveholders. By the same token, Wheatley’s actual turning of the tables gets misinterpreted as piteous supplication, or, at best, as Grace Nichols’ “skin teeth.” The worst sin of these misreadings is that it let Thomas Jefferson off the hook by interpreting his saying that God would never side with slaveholders as a confession implying a desire for redemption rather than a recapitulation of the old Cain-based method of maximizing injustice through white grievance.

Therefore, Kendi’s mistreatment of Wheatley is a travesty,6 but as Professor Karla V. Zelaya noted, Kendi’s error seems to be based in a common misunderstanding of what Wheatley was doing in her works. In response to Wheatley’s successful revolution of Miltonic poetics, post-revolutionary white supremacists, like Rudyard Kipling, gradually shifted their use of the story of Cain and Abel to continue validating a sense of white grievance by associating themselves with Abel, as the murdered party. Kendi noted this counter-narrative that “circulat[ed] throughout England and the English colonies” in tracts that “wrote of Cain, or ‘the Southern man,’ as a ‘black deformed elf,’ and ‘the Northern white, like unto God himself.’”7

It is impossible to draw a straight line through the paradoxical ways the Cain and Abel story justified racism. Yet, racism itself was always paradoxical, in one hand justifying the importation of Black people to America for enslavement and on the other banishing them back to Africa to preserve white hegemony under the guise of teaching Africa to be civilized.8 These paradoxes were fully formed in the 1852 case Dred Scott v. Emerson where Justice William Scott absurdly held: “As to the consequences of slavery, they are much more hurtful to the master than the slave.”

Callais is a direct descendant of this unbelievable absurdity of white grievance, which sits at the root of all Dred Scott v. Sandford’s errors. The absurdity of white Americans claiming to be victims of their own power and privilege arbitrarily controlled Callais’ decision that enforcing the Voting Rights Act of 1965 would violate the Equal Protection Clause as racism against white majorities. As Wheatley once said: “How well the Cry for Liberty, and the reverse disposition for the Exercise of Oppressive Power over others agree, — I humbly think it does not require the Penetration of a Philosopher to determine.”

Intentional gaps left in the historical record of Wheatley’s work explains how mid-century American culture, like the 1989 classic Dead Poet’s Society, could feature Robert Herrick’s famous line “gather ye rosebuds while ye may” without acknowledging the way American slaveholders lived out the dark side of carpe diem. Herrick’s smarmy attempt to convince young Puritan women in 1600s England to betray their morals by sleeping with him revealed the dreary Puritan aesthetic as merely the accoutrement of a prevalent proclivity in 1600s England and America for deflowering virgins. Thus, the chattel slavery that occurred in America has a peculiar foundation, or at least a correlative, in paradoxical Puritanical poetry that seemed to spurn sex by fetishizing celibacy and even sexual abuse.

The performance of white male power in the bedchamber, symbolized by Jefferson’s rapes of Sally Hemings and his enslavement of his own children by her as an apparent remedy for Cain’s white male grievance against God, became the origin of U.S. immigration law in the Page Act of 1875 and the White Slave Traffic Act of 1910. Of course, it was controversial when Wheatley imagined white supremacists might be redeemed on what is potentially a sex positive basis. Yet, Wheatley endeavored to transform white supremacists into agents of Black liberation by retelling John Milton’s sex-obsessed story about sin and redemption in a way that would allow them to go straight to hell and then rise again out of their sin and error as forgiven and redeemed.

Callais resurrected the white grievance Wheatley and her followers opposed when it extended Dred Scott’s implicit conclusion that Wheatley failed to win over the intentions of enough white men to be legitimately considered one of the Founders of the United States. However, Wheatley inspired the Declaration of Independence in several ways, including by her inspiration of General David Wooster’s commission of a 1774 anti-slavery sermon The Religion of the Revolution and who later sacrificed his life in service of a multiracial future for America. Thus, Callais and similar recent decisions symbolize the success of propagandists and provocateurs who remade the Wooster-Wheatley alliance into a weak and failed attempt to disrupt to overarching pro-slavery purposes of the American Revolution, which should offend everybody.

Against the travesties of Kendi and The 1619 Project, Wooster’s blood cries out from the ground. The sacrifices of blood in the Revolution of 1776 still vindicate Wheatley’s defense of “the heaven defended race.” Her white followers, who bravely faced their own mortality for the hope of a real metropolitan providence rising from the complex multicultural American society of the 1700s, still venerate her revolution of the English language to save it from the Puritans of our day.

Yours Cordially,

Joshua J. Schroeder, Esq.

Note About the Topic of Language Discussed Above: Neal Allen’s Rule 6: Prefer Anglo-Saxon Words from Neal Allen and Anne Lamott’s wonderful book Good Writing: 36 Ways to Improve Your Sentences, anticipated the topic of radical normalization addressed in this post. Therein, Neal demonstrated that English, as a conquered and dominated language, has an almost spiritual slant toward the original words of the Native Anglo-Saxons, almost as if the language itself was made for for speaking back to one’s conquerors with words that cut to the heart and blood of a reader. As an attorney and legal scholar, this aspect of English etymology is clearer to me than most because my profession developed the English language that describes the Conquest of 1066 as the “catastrophe which determine[d] the whole future history of English law.”9 It was into this development of the law of Native Anglo-Saxons after the Norman Conquest that Neal’s rule derives its validity, because English itself tends to favor the words of the Natives to those of the conqueror. The discourse between Phillis Wheatley and John Milton addressed in the post above over the fate of the English language’s most extreme terms in the 1600s and 1700s, which has its own legal dimension, also engages the reasons for Neal to suggest the Anglo-Saxon words.

Spoiler Alert: This post contains spoilers of the Apple TV show Pluribus.

Dear Reader,

Despite being aware of the paradoxical times we inhabit, I was initially surprised by what people were saying about Louisiana v. Callais in the news. Some diagnosed Callais’ requirement of intentional discrimination as its “darkest sin,” but that was the least of its problems. Realizing that the public was not being told how Callais mutilated the Equal Protection Clause and how it nullified the Voting Rights Act of 1965 was more horrifying to me than Callais itself.

When I tried to process the radical errors in Callais with my sounding board, they expressed worry that if I wrote about it I would alienate everybody (including them). Upon hearing this, my mind snapped back to a scene in Pluribus where Carol Sturka (Rhea Seehorn) failed to convince her fellow human beings to resist an alien invasion. Remembering how Sturka alienated other humans by, perhaps, too harshly interrogating the alien invaders, I balked.

In the past, James Baldwin inspired my boldness to face difficult realities, because “nothing can be changed until it is faced.” And I’ve recently discovered Anna Quindlen who seems to support my choice to abandon “the protective coloration of the expectations of those around” me. But as my sounding board feared, and as Sturka demonstrated, facing the actual horror of Callais too zealously could deflate public support for my scholarship and potentially delay the changes I hope to inspire.

When I predicted legal development correctly in my scholarship, I would emphasize it as boldly as I could to generate more offers to publish. I was privileged with a legal platform where I published scholarship that embodied the ideal of legal prediction laid out by Justice Oliver Wendell Holmes, Jr., even as I criticized him. But the zeitgeist has fundamentally shifted.

Assassinations and assassination attempts are on the rise, and political insiders have started eating their own. People are more tense and reactive than they have ever been in my lifetime. In this new context, law reviews and news outlets are sensible of the reality that legal prediction can be blamed in the aftermath of tragedy for radical insensitivity, recklessness, or even cruelty.

The horror of Pluribus similarly rests upon the possibility that the United States so irrevocably betrayed its ideal of individualism that the rest of the world would rather succumb to an alien invasion than listen to another annoying American. It also seems to align free choice with inevitable doom, as though humanity’s ultimate failure is a result of our freedom. Yet, without a hope that the actions of a puny individual human being like Sturka might create meaningful change for the rest of humanity, the horror of Pluribus would fade into mere tragedy, romance, or lust.

But Pluribus is not a story about how to cope with inevitable doom like Euphoria. It did not veer into religious themes to give unavoidable tragedy some sort of meaning in our lives. Rather, Pluribus sought to captivate its viewers by forcing Sturka to face the radical jeopardy her unique freedom seems to put upon the human race without revoking the hope that Sturka’s feeble efforts could, even accidentally, create a positive effect for everybody.

Perhaps my desire to remain authentic about where we really are as a nation, while still pushing for social justice, will ruffle feathers. And perhaps those who built their careers upon the insistence of their own authenticity, like Quindlen, will defend my steps, or, at least, I can hope they will peruse my writings. To me, being a free thinker who publishes work for consideration by free thinkers is success.

Throughout her career, Quindlen consistently defended enforcing the terms of one’s own success and happiness. When critics called her crazy, Quindlen issued a defense of all free American thinkers against any similar fabricated charge of insanity in a speech to the 1999 graduating class of Mount Holyoke College where she said:

But I am not nuts. I am happy. I am successful on my own terms. Because if your success is not on your own terms — if it looks good to the world but doesn’t feel every day good in your heart, it’s not success at all. Remember always the words of Lily Tomlin: “If you win the rat race, you’re still a rat.”

Perhaps my general rejection of the proverbial rat race is what worries my sounding board most, and perhaps it is also what makes them beam with pride. Remaining authentic in a time that rewards manufactured white grievance can be scary. But I think Quindlen was right. Even if you are not leading major revolutionary movements like Phillis Wheatley or banking huge monetary rewards for your work, you can still be happy.

That said, I have taken the note. It may no longer be safe to run headlong into arguments and observations that might have secured more publishing contracts for me in a previous era. Perhaps, public authenticity by any means necessary was always a fool’s errand and a Millennial fantasy that unfairly burdened Gen-Z with an impossible standard of self-expression.

Authenticity should never be standardized as some kind of benchmark, because performative authenticity is inauthentic. It would also be oppressive to presume that everyone has the resources to afford authentic expression when a growing number of Americans must be inauthentic in order to survive. But as for me and my own, I will repeat Quindlen’s words as a sort of benediction to my own situation: “I am not nuts. I am happy. I am successful on my own terms.”

Yours Cordially,

Joshua J. Schroeder, Esq.

Dear Reader,

These days it can be hard to stay on your feet. You can prepare for the worst and still be thrown “off the barge” by the choices of your family, your community, or the nation itself.1 As the mind reels, it instinctively casts around for some shoreline in the past — an anchor in time — to stop the feeling of aimless drifting.

For example, when I was recently thrown and my mind began to cast about for solid ground, I landed on Carole King’s song I Feel the Earth Move, which I remember my mom listening to when I was a kid. This provoked many questions for me: Was there ever actually a time when a person’s sexual attraction was enough to leave them shook? What was the simpler world the Baby Boomer generation inhabited where sex was enough to throw a person off like an earthquake?

In these days of societal upheaval, King’s lyrics seem forced. It feels like they came from a time that was so tranquil that the small tremors of an orgasm could change a person’s whole life. But, in these days, the most pious nun in Rome would probably understand why it might be worth catching even the aftershock of an orgasm on our way to what seems to be the end of the world.

In this fraught epoch, basic human pleasure appears more as stable bedrock than fault-line. Perhaps it was the marriages of sexual partners whose gender ideologies were always at war with the other that was the cause of King being thrown so easily by the mere prospect of sex in the early 1970s. The reckless building of several lives over the fault lines that divide America, as the Boomers endeavored to do, could be the great sin for which sex and lust gets the blame.2

Fault-lines in American society that the Boomers tried to smooth over with the thrill of sexual connection are being revealed as self-destructive. Connecting with your destroyer through sex was passed down by the Boomers as nostalgia to Lana Del Ray and Ethel Cain. But maybe those who are buying this nostalgia as their anchor in the present earthquakes of America are being honest about their own position in this horror as its intended victims.

Perhaps Del Ray’s glamorization of sexual abuse in Ultraviolence, is simply a confession of Millennial nostalgia for Boomer-era sex that threatens American society. Speaking as an elder Millennial, I think we feel an obligation to remember The Deuce in order to swear off the hell it symbolized for our parents. Sex itself is not to blame for Del Ray’s nostalgic attempt to corrupt love with the violence Boomers passed down, because the thrill of sex is not the violence and prejudice depicted in The Deuce that Del Ray glamorized in the name of Hollywood icon Marylin Monroe.

Being thrown causes us to cast about for a foundation to stabilize ourselves, which led Millennial artists to turn our sights back to Boomer glamorizations of gender violence during the sexual revolution. But perhaps we do not need to embrace the divisions the Boomers failed to resolve to enjoy the stabilizing effect of sexual pleasure with those we are not divided from. Maybe we can rebel against Boomer-era nostalgia by engaging lovers who offer new ground to build a life upon without the threat of complete destruction lying at the very foundations of the lives we build.

Perhaps, our imaginations have more to offer than lingering in nostalgia for a time that never actually existed. When I enjoy new songs, my imagination often fills in better lyrics than the ones the artist chose. For example, in one of my favorite London Grammar songs, Metal & Dust, it almost sounded to me as though they sang “hope is just better than dust” where the lyric is actually “oh, it’s just metal and dust.”

I like my lyric better, but respect the artists’ choice. In my opinion, hope would have been a better conclusion than being real about an impending breakdown. When you build a life on trust, as the song goes, you are building on hope that the person or people you are building with will not betray you especially in your old age.

The creative forces of our minds can invent better paths forward by engaging in art and sex without cynically glamorizing love or beauty as though it automatically leads to or even causes death and suffering. Instead, by pushing forward upon wings of hope, human beings tend to follow love and beauty into the mystery of the great unknown. In our travels through sexual attraction and pleasure to find new families and to build new homes, death and suffering are only possibilities, while sexual awakening and life giving springs of newness and innovation are also possibilities.

A fair reading of Sylvia Plath lends even her stark poetry to this revelation. In Plath’s unabridged journals she disclosed how she was probably chasing God-like transcendence when she committed suicide. So, perhaps, it is appropriate to allow the poet who rejected the injustices of her times to provide a corrective to jog the public imagination from what appears to be a kind of desperate nostalgia-addiction:

What I fear most, I think, is the death of the imagination. When the sky outside is merely pink, and the rooftops merely black: that photographic mind which paradoxically tells the truth, but the worthless truth, about the world. It is that synthesizing spirit, that “shaping” force, which prolifically sprouts and makes up its own worlds with more inventiveness than God which I desire. If I sit still and don’t do anything, the world goes on beating like a slack drum, without meaning. We must be moving, working, making dreams to run towards; the poverty of life without dreams is too horrible to imagine: it is that kind of madness which is the worst: the kind with fancies and hallucinations would be a bosch-ish relief.3

Plath seemed to be noting that if one goes mad, one might at least go mad in the style of Hiëronymus Bosch’s Garden of Earthly Delights, a triptych that is partly depicted at the top of this article. However, there are safer examples than Plath’s for imaginative exploration that did not end in tragedy. Eve Babitz and Edna St. Vincent Millay offered better, though still flawed, examples of how the imagination can help a person thrive despite the injustices of the times.

Babitz knew her strategy of imagining love where it probably did not exist was an exception in her era — a time that allowed Ted Hughes to claim Plath’s life and genius as his own. Babitz’s grand dream that the Santa Ana winds might sweep herself and her sister into the sky to fly on brooms like witches, was her hopeful counter to the general regard for “the Santa Anas as some powerful evil.”4 Re-imagining witches and wizards as the heroes of the story, was, at a very basic level, a rejection of the Boomer-era madness Plath diametrically opposed for something closer to the imaginative visual odyssey Hiëronymus Bosch bestowed to the future.

Maybe there is something in these capacities of the human imagination for me to place my anchor, to ride out the present storms when my mind is thrown in the chaos. Maybe Bosch wasn’t as mad as Plath thought he was. Maybe Plath wasn’t as mad as Plath thought she was.

Maybe Plath and Bosch’s outlandish images were the anchors of their imaginations that helped them endure the passing prejudices of their day. Maybe pleasure isn’t as radical or dangerous as the Puritans of the 1950s made it seem. Maybe the almost maniacal Puritan rejections of sex and happiness that ceaselessly popped up in American history, as depicted in the Mia Goth horror film Pearl, spread the very dangers they held themselves out as resisting.

Maybe the Puritans were mad in the worst way, because they had no imagination and hated everything that made sense. Maybe our society is an anthem of humanity’s survival of storm after storm of Puritanical abuse out of which a fruitful vine still grows by feeding on the magic of the Santa Anas and every other mythological evil tracing back to John Milton’s Satan who Phillis Wheatley conspicuously redeemed. Maybe humans construct mythological evils to scare their neighbors out of loving each other as they should, as Milton did when he appeared to make Beelzebub a romantic consort to Satan in an apparent attempt to degrade romance and sex by weaponizing public prejudice against homosexuality.

Perhaps Milton’s degradation of straight sexual love by misappropriating public prejudice was the real evil that deserved the fear that the Puritans deployed against sex itself. Perhaps Oliver Cromwell would not have been able to ruin England, Scotland, and Ireland, but for the Puritan degradation of sexual love that asked God for abuse-as-love. Maybe this Puritan desire for austerity — for a thrice battering of the heart — was always a “Satanic” prayer (in the Miltonic sense) and maybe Milton’s “Satan” is the God to which the Puritans prayed to and received this abuse of themselves as though it could be sexually gratifying to ask for self-destroying ravishment.

Or maybe this is all in my imagination.

Yours Cordially,

Joshua J. Schroeder, Esq.

Stare Decisis as defined by Black’s Law Dictionary: “Lat. To stand by decided cases; to uphold precedents; to maintain former adjudications. 1 Kent, Comm. 477.”

Dear Reader,

John Milton believed that hypocrisy was “the only evil that walks / Invisible, except to God alone.” He must have been onto something, but I doubt he was correct. Hypocrisy is not invisible.

For example, Justice Kagan spent considerable time and energy, over many years, developing and expounding statutory stare decisis only to compromise it in Cox v. Sony. Then she rose in firm defense of it again in Louisiana v. Callais, only to see it die out in a paradoxical flourish of the Callais majority. Kagan’s apparent hypocrisy, as to her own principles of stare decisis, was potentially an attempt to make a deal with a hostile majority as she had successfully done in Allen v. Milligan.

In one sense, Kagan’s last straw was pulled in Callais, and as a result there is potentially no basis to hope that the Court will stand by its previous decisions in future cases. On the other hand, stare decisis was violated all the way back when Janus v. AFSCME was decided, when the Court began to balance away its previous decisions. By the time the Court started overruling substantive rights for the first time when Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade, the Court already was extending an ad hoc “precedent” to overrule precedent symbolized by Janus.

By this time, Kagan had already been hard at work developing her now defunct line of “supercharged” statutory stare decisis. This line appears to be rooted in Justice Kagan’s 2014 decision in Michigan v. Bay Mills Indian Community, where she opined that “stare decisis is a foundation stone of the rule of law.” In 2015, she decisively expanded upon Bay Mills in Kimble v. Marvel Entertainment.

The deal Kagan tried to make with more radical members of the bench was especially apparent in Ramos v. Louisiana, in which Kagan joined Justice Alito’s dissent that began: “The doctrine of stare decisis gets rough treatment in today’s decision.” In Alito’s majority opinion in Callais, he wrote that Kagan’s dissent “wraps itself in the mantle of stare decisis,” but “is unabashedly at war with key precedents.” Alito emphasized Kagan’s hypocrisy, which he himself undoubtedly encouraged behind closed doors in cases like Ramos, to justify his own more hideous and shameless self-destroying hypocrisy.

Here is where Milton seems to throw up his hands and say, wow, these people are blind to their own contradictions. Perhaps all are hypocrites, and none may be spared this cancer of the mind. Or, maybe Milton was describing how Satan does his work so well, by playing on blind spots humanity purposely maintains for its own reasons.1

The fight over who is more hypocritical, Alito or Kagan, seems to be a race to the bottom instigated by those who want to maximize the Court’s self-degradation. Justice Gorsuch threw fuel upon this fire in Learning Resources, Inc. v. Trump (the Tariffs Case), where he wrote a concurrence that seemed to run roughshod over every other colleague he has on the bench. In that case, Kagan pushed for more judicial power to review major questions according to ordinary tools of statutory interpretation, while Alito joined Kavanaugh’s opinion that apparently would use major questions doctrine to fortify what appears to be Presidential overreach in a way that seems to directly contradict their previous decision in West Virginia v. EPA.

Major questions doctrine itself is a new line of precedent that appears to stave off a complete eclipse of judicial power to review especially controversial actions of the President. According to secret Supreme Court memos leaked by the New York Times, it appears that Chief Justice Roberts masterminded this basis for review whenever he felt that the dignity of the Court itself is challenged by the President. At the same time, Roberts’ decisive use of the shadow docket to expand major questions jurisdiction on an ad hoc basis rather than to enforce the decisions the Court already made in its merits docket seems to be candidly political in itself and a potentially unreviewable violation of the Due Process Clause.

In the past, law students were taught that no Court would ever act so unreasonably. We were told that if there were any holes in the judicial structure, the reasonableness of judges could be counted upon to avoid any real damage to the institution. Under America’s almost religious faith in judicial reason, Presidential and Judicial overreach spiked according to unitary theories of federal power that presumed each branch of government has no duty of loyalty to the other branches whatsoever.

Yet, hypocrisy is anything but invisible in this storm of constitutional controversy. The real contrast in judicial character that materializes out of these dealings is between common law lawyers and legal positivists. Those crying most loudly about hypocrisy tend to be legal positivists who are trying to position themselves to grab power,2 which appears to be why Alito and Kagan seem to be constantly at each other’s throats over who is more hypocritical about their application of stare decisis.

However, for the common law lawyers, stare decisis has its place in a greater context of common law maxims and principles. The common law lawyer’s perspective is indispensable where stare decisis becomes completely inverted as in Dobbs, which extended Janus as an anti-precedent precedent rather than keeping Janus a one-and-done ad hoc decision. Of course Dobbs needs to be overruled, but it needs to be overruled to protect and revive the common law, which would not require the Court to spite stare decisis when it overrules Dobbs.

Legal positivism, which is the idea that all law is man-made, is designed to maximize the law’s potential by throwing away all constraints that judge’s anciently put upon the laws, including stare decisis.3 When Justice Kagan tried to stabilize legal positivism by supercharging stare decisis in the context of statutory (i.e., man-made) authority, she necessarily lost the common law context in which stare decisis exists. Kagan’s ceding of a legal positivist ‘anything goes’ framework actually facilitated Dobbs and the general degradation of stare decisis by making the common law seem as though it were only another version of man-made law so that judge-made ad hocery could be extended through it in Dobbs as though the common law could be anti-common law.

In other words, the hypocrisy at the bottom of Kagan and Alito’s hideous embrace of each other in Ramos4 was that both Kagan and Alito disrespected the common law context of stare decisis. For common law lawyers, stare decisis cannot be an ad hocery governed by passing Mathews v. Eldridge balancing tests, but its principles of judicial stability and fairness necessitate the overruling of certain precedents from time to time — especially those that degrade the common law and stare decisis itself. It is not hard to find the cases that the Court should overrule according to the common law’s principles of stability and fairness as they tend to stick out in what some scholars call The Anticanon.

Several antebellum cases that caused the Civil War should be explicitly overruled, including Dred Scott v. Sandford and Prigg v. Pennyslvania. Overruling these cases should inspire the subsequent overruling of the Slaughter-House Cases and many other cases in Slaughter-House’s progeny, including Bradwell v. Illinois and Plessy v. Ferguson. Justice Holmes’ decision in Buck v. Bell should explicitly be overruled along with its progeny of ad hoc cost benefit balancing cases including Mathews v. Eldridge, Stone v. Powell, and United States v. Brignoni-Ponce.

All these legal changes can be done by overruling precedent, as the Court did to Bowers v. Hardwick and Olmstead v. United States, according to principles of fairness and justice that stare decisis supports. Those shouting about hypocrisy tend to opine about how stare decisis is not a suicide pact, but characterizing the citation of stare decisis as a potential decision to self-harm is a fallacious argument appealing to emotions and making a straw man, apparently to justify a complete departure from the common law. For judges who overrule cases can and should justify themselves according to the underlying common law principles of stare decisis, not by giving reasons for exiting common law adjudication altogether.

Again, Ramos provides the proper lens to expose Kagan and Alito as contrarian siblings in hypocrisy, appearing to defend a very similar position of legal positivism while disputing the results. Ramos was about the common law requirement of a jury. In Apodaca v. Oregon, the Court departed from this common law requirement according to the democratic ideal that a people of a State can decide their own way and depart from common law at will.

In order to return the Court to stare decisis, and away from man-made efforts to modulate or depart from the common law, the Ramos Court overruled Apodaca. Clearly, Ramos invoked common law requirements mandated by the U.S. Constitution to overrule Apodaca, which means that man-made efforts to secure the common law in the U.S. Constitution have a central, preemptive place in the U.S. system of law. However, public participation in the choice to have a common law system does not paradoxically make the U.S. system anti-common law as legal positivists seem to infer.

The common law calculus at work in Ramos was not arbitrary. It did not allow for the ad hocery of Janus to upend abortion rights, which was emphasized in Dobbs’ reliance on Justice Kavanaugh’s Ramos concurrence. Justice Gorsuch’s common law based overruling of Apodaca in Ramos was not extended in Dobbs, because Dobbs did not overrule Roe v. Wade in order to return to the common law. Rather, Kavanaugh’s balancing test taken from Janus in Ramos was a further departure from common law into arbitrary ad hoc decision making that Justice Powell was most known for developing post-Buck in Mathews and beyond.

Justice Gorsuch’s hypocrisy was not invisible either. He both decried and applied balancing tests. All the defenders of Casey v. Planned Parenthood and Roe v. Wade’s use of balancing tests land in the same hypocrisy that began when Buck v. Bell extended Jacobson v. Massachusetts to sterilize women against their will. Justice O’Connor tried to defend it in her University of San Diego article that praised Justice Holmes’s Hegelian contradictions, but Holmes is no longer as defensible as he once seemed.5

But a common law lawyer, like myself, can follow the writings of Suffragette Matilda Joslyn Gage to find the common thread in the rights of life defended by Lord Coke in an earlier time to avoid hypocrisy.6 The former Puritans, including Rhode Island founder Anne Hutchinson, liberally used abortifacients to “bring back the menses” that are now being decried as if they were tools of murder by the current Puritans of America.7 Their arbitrariness is written throughout history, in one place making progress, and in another hanging witches and murdering Pequots.

John Milton was a Puritan, and he thought hypocrisy was invisible. Perhaps, as Octavio Paz would later observe in Mexico,8 there was something in the positivist way the Puritans defined the law that blinded them to their own contradictions.9 But to those who were and are oppressed by them, and to any who reject their man-made attempts to be God through sheer willpower, their hypocrisy is clear.10

But this is not the end of the story, because Anne Hutchinson and Roger Williams escaped from Puritan Massachusetts with their followers to found Rhode Island on principles of freedom of religion and speech that would later be codified in the First Amendment. Standing upon these freedoms of mind, Phillis Wheatley disagreed with Milton’s hypocritical misogyny, but still claimed the platform Milton made for women to say what she wanted to say instead. Thus, she baptized her lips, in the words of Lauryn Hill, by mimicking Milton’s style and accepting his terms while remaking and renewing every meaning he intended until all women were made as equals with men, especially regarding the freedom of their minds.11

Thus, I must add, that where Kagan and Alito err as Milton erred, I do not seek their destruction,12 but only to re-say their words in baptized form so that they actually support the common law. They both still appear to defend stare decisis even as their character betrays a lack of common law devotion. So it may be wise to do as Wheatley would do and take their defenses of stare decisis as permission to continue expounding the common law.

Wheatley’s progeny of artists and survivors in America have developed a complex strategy of double-speaking back to bad men. The latest, best example of how this strategy can be deployed successfully in Court was Kesha Sebert’s ringing success in the highest Court of New York in her case against her alleged abuser Dr. Luke. Despite several complications and difficulties, Kesha managed to separate herself from Dr. Luke and remade herself like a phoenix from the ashes.

Such an artist turns the hypocrisies of their abusers into a canvas she exploits for her own benefit. This strategy is not hypocrisy, but it may be one of the reasons Milton felt as though hypocrisy walks invisible. Since survivors are left to piece together the artificial binaries that broke the minds of their oppressors, black and white, man and woman, their answers back to hypocrisy can be taken as a ceding of ground even as they are standing their ground.

The fights legal positivists have between themselves over power will fall away eventually. What matters is what we do with the rubble they leave behind after their rage and despair is spent. It is not hypocrisy to expound the concepts hypocrites developed previously by baptizing your lips in Wheatley’s style, and it is not two-faced to speak back double-voiced to a two-faced system run by some of the most hypocritical people in the land.13

No. It is courage in the face of adversity to speak in the twisted words of your adversary. It is being the rose that grew from concrete. So let us imagine anew our roots sinking deep into the most impossible hard places in American society to create timeless beauty. And let us draw consolation from the poet’s marvelous verse that hails our existence here, in these very times and among these very people: “Long live the rose that grew from concrete when no one else ever cared.”

Yours Cordially,

Joshua J. Schroeder, Esq.

Disclaimer: The author is directly affected, in his legal practice, by the laws and policies challenging and defending independent lawyering addressed in this post.

Dear Reader,

For those who believe that an indigent, new citizen, non-white mother cannot become a real estate mogul by offering her professional services to Californians, think again. For Biddy (“Bridget”) Mason, who was a Black woman slave taken into California — a free state — by her Southern-Mormon masters from Mississippi by way of Utah, eventually became a wealthy landowning Angelino. But first, Ms. Mason had to overcome a corrupted lawyer, who apparently took a bribe from her master, to win her habeas corpus case to free herself, another Black woman named Hannah, and their several children.

Though Ms. Mason’s economic prowess is generally the focus of most studies about her, the case she brought in Los Angeles, to free herself and many others, has special significance in today’s fraught legal context. In her case, Mason v. Smith, Ms. Mason’s lawyer moved the court to dismiss her writ of habeas corpus in exchange for an apparent bribe of a few hundred dollars. Her lawyer seems to have argued that the money would have made Ms. Mason’s life better in Texas, where her masters wanted to legally make her a slave again after moving her to live in California where the laws already made her a free woman.

Judge Benjamin Hayes (sometimes spelled “Hays”) would not have it. He decisively moved on his own motion against Ms. Mason’s lawyers who sold out their clients’ paramount interest of securing their freedom in California.1 Citing to California’s kidnapping statute, Hayes implied that Ms. Mason’s masters were in the process of criminally kidnapping her by force or fraud, even stooping to the corruption of bribing Ms. Mason’s lawyers to dismiss her case.

In response, Judge Hayes implicitly extended the 1772 English freedom suit, known as Somerset’s Case, by essentially holding that California was as free as England by law. Even more interestingly, Hayes cited to an 1824 Louisiana Supreme Court case, Lunsford v. Coquillon, that appeared to uphold the principle that slaves were once free, always free that expanded upon the ruling of Somerset, at first, in the American South.2 Thereby, it appears that Southern Courts invented this principle of freedom more broadly than Dred Scott v. Sandford misleadingly implied when it referred to Missouri’s compromise as though Missouri’s freedom suits did not have a basis in law upon which the other Southern States generally concurred.

The scandal of Dred Scott’s Hegelian reading of the Declaration of Independence’s promise that all men are created equal to mean that not all men are created equal was underpinned by many layers of illogical misrepresentation. The least of which was that Dred Scott used the Fifth Amendment to strike down the Missouri Compromise, which was already then repealed. Thus, Chief Justice Roberts’ citation of Dred Scott’s use of the Fifth Amendment as a warning of a fundamental problem with expanding upon substantive rights in Obergefell v. Hodges was a complete misfire, because the error in Dred Scott was jurisdictional rather than substantive as there was no case or controversy to decide regarding the already repealed Missouri Compromise.

However, the brunt of Dred Scott’s errors seem to have originated in the Supreme Court of Missouri’s misrepresentation, in Scott v. Emerson, that Justice Story approved of Lord Stowell’s decision in The Slave, Grace. In The Slave, Grace, Stowell proposed a Hegelianism that would upend the Americans’ once free, always free precedent for a once slave, never free alternative along the lines of Le Louis’s equally illogical Hegelianism of the free trade in human flesh. Stowell’s alternative subversion of Somerset was implicitly embraced in an awful Mississippi decision, Leech v. Cooley, that characterized all free Black Americans, including Solomon Northup, as mere denizens rather than full citizens of free States and of the United States.

On the contrary, though Story received Stowell with politeness, he never approved of The Slave, Grace and actually opposed it and Le Louis in his opinions in La Jeune Eugenie and United States v. The Amistad. However, Justice Story clearly erred in Prigg v. Pennsylvania where he attempted to extend his idea of plenary power doctrine from his dissent in Houston v. Moore to absolve a slave catcher of his crimes in Pennsylvania. Story’s error solidified into the basis of Chinese Exclusion during the postbellum eugenics era, and Story’s Eleventh Amendment-based plenary power ideology remains with us today as the constitutional foundation of modern Immigration Law.3

President Trump openly defends plenary power doctrine by attacking pro bono immigration litigation that questions whether the Immigration Law unconstitutionally suspends habeas corpus. But Trump also claimed a unilateral power to enact immigration laws through presidential papers dating back to his first term as President that reporter Lesley Stahl properly rejected as clearly absurd when he tried to assert it in her presence.4 Trump’s attack on litigation by citing to Congress’s laws to defend him from litigation brought by immigrants is belied by his attack on Congress’s law in Trump v. Barbara as though his transgressions of the law do not waive his invocation of the law to destroy jurisdiction, which recently caused an unprecedented spike in immigrant habeas corpus litigation.

Judge Hayes acted within a similarly fraught period involving substantially the same constitutional principle immigrants are still suffering under. In Hayes’ opinion justifying his grant of Ms. Mason’s habeas corpus writ, he explicitly remarked upon a slippery slope that the Court would spiral down had he granted Ms. Mason’s lawyers’ motion to dismiss the case without notifying their clients. Hayes emphasized his independent power to extend relief to Ms. Mason despite her lawyers’ malpractice. In the end, Biddy Mason’s lawyers feared her masters ire or else they were corrupted by greed to subvert legal ethics against California law.

But, perhaps, they should have feared becoming the heel of Judge Hayes’ decision to grant Biddy Mason’s writ over their failure to argue the case. Today President Trump’s issuance of Executive papers to target litigation and litigators he doesn’t like asks the general question of whether American lawyers will surrender their clients’ interests to please the government. But the answer, should lawyers abandon their clients to please the President and to preserve their finances, was already made in Judge Hayes’ Los Angeles Courtroom where Hayes decided that granting such lawyers an easy exit from defending their clients’ interests in securing freedom from kidnapping and removal would be a travesty of justice.

The prescience of Hayes’ opinion to some of today’s most heated controversies is remarkable. In fact, Associate Justice of the California Supreme Court Goodwin Liu recently gave a keynote address at the 2026 commencement at UCLA School of Law that roundly addressed the structural prescience of Hayes’ decision to grant habeas corpus upon grounds of judicial independence without naming the case. Therein, Liu remarked upon the President’s attack on the practice of law in the United States by remembering John Adams’ reasons for defending the Red Coats according to his noble conviction that “‘counsel ought to be the very last thing an accused should want in a free country.’”

Liu drew lines from the founding idea that independent lawyering was a mark of free government to real lawyers who currently defend unpopular clients in court. Liu urged that “the independence of the legal profession, the independence of lawyers and judges, is vital to the fair and impartial administration of justice.” He concluded that judicial and lawyerly independence “is under stress today,” and issued a challenge to the rising J.D.’s of UCLA before him “you must stand strong and defend it.” Then he recited a quote from the late Associate Justice William O. Douglas’s speech A Challenge to the Bar given to the American Law Institute in 1953 as follows:

“History shows that governments bent on a crusade, or officials filled with ambitions have usually been inclined to take short-cuts. The cause being a noble one (for it always is), the people being filled with alarm (for they usually are), the government being motivated by worthy aims (as it always professes), the demand for quick and easy justice mounts. These short-cuts are not as flagrant perhaps as a lynching. But the ends they produce are cumulative; and if they continue unabated, they can silently rewrite even the fundamental law of the nation.”5

But, it appears, Justice Liu did not need to cast his gaze all the way to Washington, D.C. to find the sprouting of California’s older dedication to this principle in Los Angeles, when it was a fledgling metropolis. As wonderful as Justice Douglas’s defense of judge and lawyer independence was, he spoke largely in dissent during the McCarthy Era and today the state of the federal government appears to be even more uncertain. Therefore, it is auspicious that Justice Liu might also rest his defense upon Judge Hayes’ reported opinion in Mason v. Smith about the paramount importance of not only lawyerly and judicial independence, but also zealous advocacy.

It is true that the Reconstruction of the United States after the Civil War largely depended upon the federal government to unite even the former Confederate States as one nation dedicated to principles of equal liberty and equal justice. But where the States did justice and acted rightly, as California did from time to time during the Civil War and prior, there are moments of State-led defenses of uniting principles that ought to be celebrated — for example, the antebellum decision in United States v. Ritchie regarding the fate of land owned by Chief Sem-Yeto of the Suisun people, whose Christian name was Francisco Solano, and who was the namesake of Solano County, California. In fact, as Judge Hayes noted, there was at least one case from Louisiana that should be celebrated despite its existence among several travesties and atrocities that compose the heinous and unjust chattel slavery era.

As such, despite the massive errors of California, symbolized by its first Chief Justice Serranus Hastings who led genocidal expeditions against the Yuki people, there are precedents worth protecting here. America’s lack of resolution for betraying Reconstruction to certain failure, currently symbolized by President Trump’s repeated success, may confirm why federal calls like Justice Douglas’s call to principles of lawyerly independence are presently failing. But the States should not hesitate to face their own failings to see if there are bases for uniting principles in their own respective histories. Here, in California, Biddy Mason set forth such a foundation worth remembering in a case that mandates the zealous advocacy of lawyers for unpopular clients, in difficult cases.

As commemorated by the Biddy Mason Foundation in Los Angeles that maintains a museum in Ms. Mason’s honor and services Los Angeles foster children in her name, Black Californians have always shown us how to celebrate survivals like Biddy Mason’s. To find levity and even felicity in living on through trial and tribulation is not hypocrisy, but it is the throbbing pulse of the jazz and blues that made their debut, first, in the heart of the South. These divinely inspired sounds of survival have reached us in the West, and, in Biddy Mason’s case, they seem to have hardened into a firm foundation for the independent administration of justice so that we can celebrate the continued survival of freedom in California without fear or hesitation about what fate might befall the rest of the nation, even now, when the way is especially dark and uncertain.

Yours Cordially,

Joshua J. Schroeder, Esq.

Dear Reader,

In The Merchant of Venice, William Shakespeare invented a prototype of the modern cancel culture queen in Portia: morally eloquent in public, but ruthless in orchestrating Shylock’s social destruction. Disguised as a lawyer in a Venetian Court, Portia managed to transform Shylock’s clearly repugnant prayer for a pound of Antonio’s flesh into an even more repugnant court order stripping Shylock of all his wealth, estate, life, and religion. Portia symbolizes the ability of certain talented individuals to wield the passions and prejudices of others to achieve public acclaim and devotion, as though Christ-like, without sacrificing their uncharitable realism.

On September 15, 2023, Clare Malone tried to channel her inner Portia by publishing Hasan Minhaj’s “Emotional Truths” in The New Yorker. Soon after its publication, Minhaj reported that his offer to become the next host of The Daily Show was revoked. However, Malone’s report lacked the cardinal ingredient of genuine, Portia-inspired cancel culture, i.e., a substantial morally repugnant character flaw that is attributable to Minhaj.

Unlike Shylock, Minhaj never demanded a pound of proverbial flesh to deserve Malone’s scrutiny. Though merciless and hypocritical in her legal arguments, Portia could still claim she was reasonably defending the life of another from potential ruin. But Malone impugned Minhaj for what? For being a hack in an era that celebrates hacks? What justification could Malone possibly claim for attacking and potentially ruining Minhaj by, likely, misusing an interview where it appears Minhaj simply explained how comedy works to the reporter.

It was, perhaps, Minhaj’s naiveté to give an interview on the basics of comedy to a reporter apparently willing to distort Minhaj’s explanation of strategies in comedy before the American public. Yet, the joke was on Malone, as her report participated in the very “emotional truths” that Minhaj seemed to address with her. For, it appeared, the “emotional truths” that Minhaj generally described were merely the crowd’s imputation of stereotypes and prejudices upon Minhaj that are completely unavoidable for any such stage performer.

Eventually, Malone’s attempt to punish Minhaj completely fell apart. Minhaj’s strategic choice to continue navigating public stereotypes and prejudices as “emotional truths,” rather than excoriating the public for projecting their stereotypes and prejudices upon Minhaj facilitated his persistence as a great American comedian. For Comedy requires a performer’s grace to humbly allow an audience to project their own emotional truths upon a performer so that the audience can start to work out their own issues through laughter. This means a genuine comedian distinguishes himself from the hacks by putting his ego about who he is aside to help others figure out who they are.[1]

The great comedienne Hannah Gadsby clearly explained these boundaries of comedy in her historic Netflix special Nanette. Where Gadsby decided that comedy no longer served her, in Nanette, she candidly abandoned the medium of comedy to carry on a polemical masterclass to better define comedy in the modern era. In my opinion, Minhaj’s projects and his character fit squarely inside of Gadsby’s definitions and elucidations of the medium of comedy, which means that Malone’s critique crossed, not only Minhaj, but Gadsby as well.

Malone’s attack not only crossed the Rubicon laid out by Gadsby as to the medium of comedy by refereeing Minhaj’s objectivity, but she also seemed to cross her own genre of cultural criticism by positioning her report as fact rather than opinion. For the late queen of literary take-downs herself, Joan Didion, admitted that she reported her emotional truths about facts and circumstances to address then popular fears of impending dooms in America. The bulk of Didion’s writings gave catharsis to an America that was clearly uncomfortable with cultural and societal change. Malone did the same, but without honor, by giving voice to the very emotional truths Minhaj addressed about the public prejudice that judged brown children of immigrants raised in rural California as simply incapable of Minhaj’s excellence while pretending she did not.

Unfortunately, Malone’s takedown appears to have punished Minhaj for explaining the truth’s role in the creation of laughter as the foundation of comedy, such that when a crowd bursts into peals of laughter it reveals something true about the crowd. The principle of emotional truths being more important to the truth than the fictional or made-up theatrical premises that evoke a crowd’s emotions seems to trace back to antiquity where Cicero himself respected such signs as nature’s voice (more on this below).[2] Perhaps modern Americans are only okay with reporting emotional truths as a form of catastrophe, as Didion always seemed to do; or, maybe, punishing Minhaj was therapy for certain white Americans who do not find Minhaj funny.

In Nassim Nicholas Taleb’s interesting book The Black Swan, he attempted to pathologize the seeking of knowledge as a form of therapy. Thus, Taleb frequently decried the error of Platonizing knowledge, which was a fancy way of critiquing reductionism. However, by listing out the knowledge Taleb does not know, Taleb appeared to ironically therapize himself in practically the same way.[3]

Like Taleb’s tendency to criticize others for indulging in a self-soothing exercise he also indulged, Malone appeared to skewer Minhaj for taking advantage of Americans seeking knowledge about race and social justice topics to garner fame. As Taleb exhaustively explained in his book, humanity is designed to not only demand, but to require, narratives reduced from the whole truth to make knowledge comprehensible. We naturally lose the whole picture in the ordinary processes of learning and remembering, as explained by Taleb.

Didion, herself, expanded upon the role of disillusionment in the pathways of survival she pioneered, which paradoxically increased her sense of security as she prognosticated about the doom of nearly everyone around her. Even if Didion was a drudge for smothering hope in America, her development of survival strategies were real and good as explored in Lulu Miller’s path making book Why Fish Don’t Exist. Surviving depression and anxiety is potentially an absolute good, which could require a “year of magical thinking” as Didion described in her book about wrestling with grief and depression (though Didion remained a drudge for not admitting that her friend and rival, Eve Babitz, was right all along about human beings needing levity to thrive).

The overall revelation from Taleb, as with many others from our near and distant past, is the sovereign role of the heart in matters of the mind. This revelation is apparent in Taleb’s book, but is by no means a breakthrough. There are several sources that trace back through Christianity and even before Christianity that propose that love is lord of heaven and earth, which may have originated in Cicero’s report of a crowd’s reaction to the expressions of love between two men that proved to him that natural love is the sovereign leader of the human mind.[4]

The Ciceronian-Christian poet of the American Revolution, Phillis Wheatley, characterized Love as sovereign Queen-Goddess over Reason, her subject-votary, in Thoughts on the Works of Providence. Simultaneously, famed Scottish Economist Adam Smith expressed the same idea in his Theory of Moral Sentiments, which John Adams quoted at length in his Revolutionary tract Discourses on Davila. Later, Bertrand Russell and Hannah Arendt extended these ideas into the secular, writing passionately about the central role of natural human love in the realm of mind.

Finally, Daniel Kahneman and Amos Tversky proved this reality through scientific experiments that showed humans have two modes of thinking, fast and slow. But again, their research was misreported in yet more self-contradicting works like Nudge and Noise according to the very errors of thinking they themselves proved. Taleb, Cass R. Sunstein, Richard Thaler, and other Kahneman-Tversky fans paradoxically expressed their own biases for reason over emotion that caused them to attempt hacking emotions with Kahneman and Tversky’s research to force reasonable outcomes.

These corruptions of human reason appeared to arise from emotional corruptions that Adam Smith described as humankind’s tendency to sympathize with the rich and powerful, while disdaining the poor and infirm. In Taleb’s book and in the works of Sunstein, Thaler, and even of Daniel Kahnemen himself, seeking to apply their knowledge of the limits of human reason, these authors seemed entirely preoccupied with justifying the rich and explaining their errors so they could perfect the status quo.

In a telling passage, Daniel Kahneman himself joined Sunstein and French Economist Olivier Sibony to reject Portia’s plea in the Merchant of Venice as fundamentally unfair, and therefore unjust.[5] This analysis was, itself, extremely reductionist and portended a self-soothing end for Kahneman who was always uncomfortable with irrationality, and, likely, biased in favor of the Jew that Portia degraded with her argument. Thus, to beat Portia at her own game of anti-Semitism, Kahneman unwisely sacrificed the emotion of compassion Portia sported as though her position was compassionate, when the actual problem with Portia’s plea was its lack of compassion and hypocrisy for sporting an uncompassionate position as though it was.[6]

In an important law review article, former Chief Justice of the Arizona Supreme Court Rebecca White Berch explained why Portia’s plea from the Merchant of Venice should be regarded as at least as important to American law as Joseph Story’s Commentaries.[7] The prejudice and anti-Semitism of Portia did not take away the justice of her convictions against the apparent cruelty of Shylock. In fact, Portia seemed to exact perfect fairness from a Venetian Court by winning her pound of flesh in the exact style Shylock claimed it from Antonio, which signaled the inequity of treating fairness as if it were automatically justice.[8]

The basic problem with lifting fairness to the level of justice, which the Merchant of Venice seems to poke fun at, is that injustice can also be administered fairly. Slavery can be enforced equally as to every person as feudalism required in ancient Europe. Dystopias can arise in the name of Utopia as they did in Russia and China.

As such, the flaws of Portia should be navigated by judges interested in administering justice rather than canceled. For cancel culture tends to bleed into areas where there was no credible charge of racism, bigotry, or misogyny, as occurred in the case of Malone’s attempt to get the better of Minhaj’s “emotional truths.” Like potentially all children of immigrants in America, Minhaj was damned if he did and damned if he didn’t talk about his culture and upbringing (especially in a particularly racist part of California) and Malone offered Minhaj no quarter now that he was playing in the major leagues.

Perhaps, for human beings at least, there are only emotional truths as nature’s voice keeps speaking to us through laughter and tears. Some people dislike Minhaj and will think the worst of him. Following their emotional truth of hatred or jealousy, perhaps, they are obviously capable of weaponizing genuineness against comedy itself. But most of us will prefer to keep laughing than read a boring critique about why only “genuine” people deserve to make America laugh. And if Minhaj ever stopped making us laugh we would sooner change the channel to watch the latest episode of Hacks, or, at least, that’s what I would do, because Hacks being the best comedy on TV right now is my emotional truth, and I’m sticking to it.

Yours Cordially,

Joshua J. Schroeder, Esq.

[1] Anyone who performs comedy for something greater than themselves should seek to push themselves out of the way. Flannery O’Connor, A Prayer Journal 3 (2013) (“Please help me push myself aside.”).

[2] Cicero, De Amcitia 7.24 (addressing a theatrical expression of friendship love: “In this case Nature easily asserted her own power, inasmuch as men approved in another as well done that which they could not do themselves.”).

[3] Joshua J. Schroeder, Why Cost/Benefit Balancing Tests Don’t Exist: How to Dispel a Delusion That Delays Justice for Immigrants, 125 W. Va. L. Rev. 183, 228 (2022) (noting the therapy of collecting items of knowledge as a way to self-soothe when one is uncomfortable).

[4] Cicero, De Amcitia 7.24 (noting that a scene from Roman play where Orestes and Pylades fervently lay down their lives for the other caused throngs of Romans to rise with shouts and cheers, indicating to Cicero that this kind of self-sacrificial love is a true desire of humankind).

[5] Schroeder, supra note 3, at 258 (noting this passage from Noise on page 340).

[6] Daniel Kahneman, Olivier Sibony & Cass R. Sunstein, Noice: A Flaw in Human Judgment 340 (2021).

[7] Rebecca White Berch, The Merchant of Venice, Act IV, Scene 1, 10 J. Appellate Practice & Process 357, 363 (2009).

[8] Schroeder, supra note 3, at 258 (disputing the old claim that fairness is justice).

Dear Reader,

In Louisiana v. Callais, the Supreme Court subverted the Voting Rights Act to protect white supremacy. The Court did this by replacing its “‘one-person, one-vote ideal,’” with the racist colorblind ideal from SFFA v. Harvard that was distilled from Justice Powell’s standalone opinion in Regents of Univ. of Cal. v. Bakke. In effect, the Court ended Voting Rights Act litigation under Section 2 by completely inverting the Court’s previous precedents as though they always meant something opposite and inside-out from what we always thought they meant.

The joke’s on you America, Justice Alito appeared to boast in Callais as he channeled Justice Powell’s classic racism-by-ad-hocery from Bakke and other balancing test cases. The Callais opinion reads as though the one-person, one-vote principle was always a ruse. The Court’s inversion of Section 2 with SFFA’s colorblind racism was foretold in Grutter v. Bollinger and exposed as clearly racist and immoral in both Go Set A Watchman and The New Jim Crow.

To fulfill Grutter’s prophecy through SFFA, Callais subverted one-person, one-vote by deciding that racial redistricting maps cannot be justified by the compelling interest the States have in complying with Section 2. This means that Court orders to resolve racist gerrymanders are, potentially, themselves unconstitutional racial gerrymanders—a decision that appears to nullify Section 2 and the Equal Protection Clause itself as incapable of enforcement. Thus, Callais is also a direct threat to Cooper v. Aaron, because it implicitly denies the constitutionality of Cooper’s enforcement of Brown v. Board of Education as, itself, unconstitutionally racist.[1]

The hypocrisy of Callais lies in its use of politics to distinguish the result of Thornburg v. Gingles by paradoxically extending and modifying Gingles. According to Callais, if Black people voted Republican and simply wanted different policies or representatives within a single party, then the result would have been different. This subverted the very policy issue the Voting Rights Act was enacted to address by appearing to premise the legal protections of Black voting power in Louisiana upon whether they’re going to vote the “right” way.

As Dobbs v. Jackson Women’s Health Org. struck down abortion rights under the Fourteenth Amendment, the Callais Court similarly decided that the Fifteenth Amendment has a limiting, rather than expanding, effect on Congress’s legislative power. This effectively transformed the work of several legal scholars suggesting that Congress could read the Fifteenth Amendment’s delegation of “power to enforce this article by appropriate legislation” into a paper tiger. As noted in previous letters written to you, this is yet another tentacle of the Leviathan shaped upon the hideous decision in the Slaughter-House Cases that decided the Thirteenth, Fourteenth, and Fifteenth Amendments are limited to the purpose of ending race-based chattel slavery.

Callais usurped the legislative power by turning the U.S. Constitution into a hatchet to limit Congress’s power to necessarily and properly administer the government. It threatens to oust McCulloch v. Maryland, that wisely expanded Congress’s power with this liberal standard:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

Callais entirely ignored Chief Justice Roberts’ standalone 1-4-4 opinion from NFIB v. Sebelius, that mirrored Justice Powell’s standalone 1-4-4 opinion in Bakke. Every Justice may, in future, change their minds about their previous opinions. But, here, Chief Justice Roberts contradicted his previous opinion without seeming to realize that he had done so according to the Court’s increasingly paradoxical anti-rights stance symbolized by Associate Justice Clarence Thomas.

In Dobbs, Justice Thomas, who is a Black man married to a white woman, lionized Slaughter-House via his opinion in McDonald v. Chicago as a basis for potentially revoking all substantive rights currently protected by the Supreme Court—including the right to marry interracially. The crux of Dobbs, however, was an ad hoc cost/benefit balancing test drawn from Janus v. AFSCME. The Callais Court similarly applied an ad hoc cost/benefit balancing rationale modified from Gingles to permanently distinguish Gingles in an exceedingly paradoxical fashion that appears to be modeled on Hegel’s mystical dialectic of extremes that approach the Absolute Idea.

As Bertrand Russell once remarked, in his Unpopular Essays: “Hegel’s philosophy is so odd that one would not have expected him to be able to get sane men to accept it, but he did.” Justice Alito’s paradoxical and absurd opinion in Callais provokes a similar conclusion. Yet, as Michelle Alexander elucidated in The New Jim Crow (drawing on Martin Luther King, Jr.’s Strength to Love), Callais’ embrace of judicial chaos may come from the same peculiar psychological state that the oppressors of Jesus Christ had of both knowing and not knowing what they did.

When Roe v. Wade, and several other rulings construing the constitution were destroyed by the Court through Janus’s cost/benefit balancing test, some, like Justice Kagan, took solace in the face that this toxic tranche of cases might have been distinguished from statutory precedent. For the Court had referred to its rulings about statutes as protected by a “superpowered form of stare decisis” that composed a “nearly impregnable . . . shield” that only a “superspecial justification” could overcome.[2] Justice Kagan managed to vindicate and develop this special form of stare decisis in several key cases, perhaps, culminating in Allen v. Milligan to specifically protect the Voting Rights Act.

Therefore, it was a particular blow to Kagan’s jurisprudence when the Court ended Allen’s supercharged version of stare decisis in Callais on similar arbitrary ad-hocery as Dobbs. The Court disagreeing with itself about the meaning of statutory text foolishly gives the Court’s critics a leg to stand on when they claim the Court is usurping Congress’s power by nullifying its laws.[3] After Callais, the Court’s own previous decisions can be cited to support the rising claims of the Court’s illegitimacy as the government’s only unelected branch.

If Congress and the President cannot count on the Court to consistently interpret the laws and regulations they make, they may seek to reduce the reviewing power the Court has to protect the rights of Americans. Worse, it appears that some of the more radical members of the Court itself may want to provoke the other branches to narrow their authority to protect the substantive rights the Court traditionally secured through judicial review. Following the arbitrary timeline set in Grutter,[4] many on the Court appear to actually believe that securing racial equality in America runs against the foundations of judicial review, rather than being a pillar of judicial review to address the nation’s vestiges of race-based chattel slavery.

Now that the proverbial chickens of Grutter have come home to roost, all those who claimed Shelby County v. Holder nullified the Voting Rights Act are completely vindicated. Back in 2013, the Shelby County Court seemed to suggest these critics were blowing things out of proportion as litigants could still sue under Section 2 to correct any actually deficient voting maps. Without any sense of shame, the Callais Court practically destroyed Section 2 as a basis for reviewing racist gerrymandering, solidifying the original criticism that Shelby County nullified the Voting Rights Act.

Ultimately, Callais severely weakens Cooper’s holding that requires the States and the Executive Branch to refrain from nullifying the Court’s rulings. If the States, Congress, and the President cannot count on the Court to remain consistent about its previous opinions, as Callais symbolizes, then more cases may be brought, like Whole Woman’s Health v. Jackson, to get orders that effectively nullify the Court’s previous opinions before they are even overruled. In this way, Callais improperly tempts future litigants to race to fait accompli in the shadow docket rather than helping the Court develop the law in the merits docket.

As I, perhaps too gently, noted in previous scholarship regarding Dobbs,[5] Justice Kagan’s apparent hope to distinguish Dobbs away through Allen and its predecessors was always a pipe dream. In Janus, and its progeny, the Court already demolished stare decisis by inventing the monstrous prospect of anti-precedent precedent. In Callais, the Court’s feudal Leviathan gained a powerful tentacle with which it may suffocate American democracy, but it is not different in kind to the rest of the beast.

The Supreme Court will only have so many cases where it could hear arguments that seek to challenge the beast itself. Justice Kagan’s attempts to incrementally correct the Court’s stare decisis errors by starting from a strong position and building outward from there actually forfeit her chance to strike at Leviathan in the ever-present now. There are only so many more cases that will arise before the Court’s departure from the common law maxim of stare decisis for what appears to be feudal slavery causes the nation to completely succumb to a tyranny of the Court’s own making.

Yours Cordially,

Joshua J. Schroeder, Esq.

[1] Long forgotten is Justice Stevens’ warning in Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007) (Stevens, J., dissenting) about the “cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education,” because, obviously, “the history books do not tell stories of white children struggling to attend black schools.”

[2] Louisiana v. Callais, slip op. No. 24–109, at 35 (2026) (Kagan, J., dissenting) (quoting Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 455–56 (2015); Minerva Surgical, Inc. v. Hologic, Inc., 594 U.S. 559, 579 (2021) (Alito, J., dissenting)).

[3] Id. at 31 (“The majority has thus nullified Congress’s decision to provide a remedy, without proof of intent, for state action that “results in” a minority group’s lesser opportunity “to elect representatives.”).

[4] Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”).

[5] Joshua J. Schroeder, Rethinking Rights in a Disappearing Penumbra: How to Expand Upon Reproductive Rights in Court After Dobbs, 54 N.M. L. Rev. 15, 19 (2024).

Dear Reader,

Feminist scholars recently shined a light on the role of Hobbesian prophets in the rise of dictatorships. Prophets, or charlatans styled as prophets, were at work behind the rise of Oliver Cromwell, Maximilien Robespierre, and Napoleon Bonaparte. Many of the prophets were women like Suzette Labrousse, whose mystical role inspiring political change in revolutionary France was not entirely unlike the role the current U.S. Supreme Court seems to be filling today.

There were many others, including Catherine Théot, Elizabeth Poole, and Mary Pope. Some, like Anna Trapnel, eventually turned their considerable political powers against the dictators they once supported, perhaps, reminding us of the mercurial fictional character Aunt Lydia from the celebrated books of Margaret Atwood. Thomas Hobbes anticipated the threat such women posed to his favored government of absolute monarch by attempting to cede their powers to the dictator himself by calling him “the sovereign prophet.”

At the bottom of Hobbes’s struggle with the, largely female, prophetic powers of his time was a sheer realist calculation about religious fanaticism drawn from claims of divine sovereignty. Hobbes likely considered prophecy a product of the general madness of all humanity (his diagnosis), which he tried to corrupt in service of his favorite form of government: absolute monarchy. Despite the regrettable beheading of Charles I, largely due to these prophetic pronouncements, the prophets of Hobbes’s time mostly served the political absolutism he preferred in Cromwell.

Louis XIV and Charles I’s divine right of kings was successfully challenged by several female prophetesses who claimed God’s sovereign blessing on themselves as female servants of the Lord. However, the very existence of King James II, who is the namesake of New York in America and primary architect of the infamous African-American Slave Trade, proved the limits of political-prophetic movements to make lasting change. It was not until the American Revolution that the British crown would be permanently disrupted when New York City, the seat of the British Empire and symbol of its many horrifying sins, was taken in open battle by Republicans who followed the mighty poetic pronouncements of New Yorker Ann Eliza Bleecker against tyranny that appeared in the humble form of art, rather than prophecy.

Many, like Bleecker, followed in the wake of Phillis Wheatley’s humble mission built upon her simultaneous veneration and correction of John Milton’s previous works. The ostentatious English prophets, including Milton, were abandoned in America for the humbleness of making an appeal to heaven in prayer. But the prayerful women who helped lead the American appeal, writing mostly in poetic forms, filled the same inspirational role as the former prophetesses held, but without committing the sin of presumption by violating Luke 17:1-2 and Revelation 22:18-19.

The American Revolutionaries never claimed authority from divine sovereignty the way that the English and French prophets had done to swear violence on monarchs. King George III was deposed in America according to nature, heaven, or God’s respect for the choice of the American people to depose the king according to their natural rights and liberties. As God respected the choice of the people of Israel to choose a King in Samuel, even though it was a sin, God respected the choice of the people of America to repent of this very same sin by casting off the crown of Great Britain on July 4, 1776.

The idea of American sovereignty, and its interaction with the religious while never establishing a religion or requiring worship of any kind is a singular contribution to the science of statecraft led by the Americans of 1776. The people are sovereigns, because God (or nature) made them that way,[1] and God (if he, she, or they exists in the first place) respects the people’s sovereignty as an aspect of people created by God or nature even unto sin and error, as the Israelites had exemplified to the eyes of the world time and again. In 1776, the Americans made a different choice that God respected according to the natural sovereignty of the people through their practice of humbly appealing their grievances to heaven and publicizing their grievances in the Declaration of Independence for the consideration of the world.

As Hannah Arendt later clarified, with affection, the Americans retained the manyness of the people in its idea of popular sovereignty that was corrupted in the Soviet Union and other Marxist and Leninist experiments.[2] Thus, when the American laws and constitutions say “the people,” they simply mean the people in their individual and group capacities as natural beings created by nature and God.[3] As Arendt noted, the people’s majesty itself arose from their very manyness.[4]

As Communism and Socialism would later do, the British crown theoreticized the people as a giant mass with big capital letters: The People, The Mob, The Rabble, or the Peanut Gallery.[5] The most extreme of British royalists actually imagined The People as a giant monster called Leviathan who united as one man in the monarch.[6] One of these royalists was Jeremy Bentham who actually appealed to this one man to punish the Americans for daring to break away from the fold without permission.[7]

Bentham’s appeal did nothing, because human beings are individuals who do not have a way of uniting as one man except in their imaginations.[8] The great and terrible Leviathan is like the Wizard of Oz: a boogie monster to chorale individuals into groups through fear and wonder. The Leviathan never was something a royalist could depend upon to keep the Americans in line, even if it could be used to enchant them with affection and fear as the Wizard of Oz did to all the munchkins of munchkin-land.

The French must have seen how Bentham appealed to the great monster in his mind as though it were sovereign without avail, and, yet, allowed themselves to be convinced by Bentham to repeat this error. Then, like psychopaths, they began chopping off their own heads in what is now known as the Reign of Terror. As the Americans knew, the French abandoned their better lights in the Baron de Montesquieu when they embraced Rousseau’s union sacrée according to Bentham’s original appeal to the one sovereign man that Thomas Hobbes called Leviathan.[9]

It is, apparently, psychopathic to keep repeating the same behavior while expecting different results. And, yet, a ridiculous pretender, who would be king, managed to take the Presidency twice. There are now talks of a third (unconstitutional) term.

But the pretender, himself, was never the source of the American pride and despair that put him in power. He was and remains only a symptom of these ancient sins of humanity that are remarked upon time and again by sages and philosophers in the West, beginning with Aristotle. The strategies of a Leviathan or Wizard of Oz to manipulate the feelings of the people to accumulate power merely theorizes that the vices of humankind are more stable than its virtues for world building and statecraft.[10]

In the end, the Americans confessed these vices of pride and dejection, despair and presumption, were inescapable realities of their hearts that disrupted their virtues of hope, humility, and magnanimity. But unlike Hobbes’s institution of an absolute ruler called Leviathan, they devised a system of separated powers to check these vices so that human virtues in government could survive, if not potentially flourish.[11] The form of government favored by the Americans was, therefore, a limited federal government with several limited State and local governments that aimed to maximize the freedom and choice of the people.

This system of separated powers seems to have put too much pressure on the judiciary.[12] Over the centuries, the judiciary faltered in its duty to unify the nation under one Supreme Court, first by nationalizing slavery in Dred Scott v. Sandford to cause a Civil War. Then, by extending Dred Scott in the Slaughter-House Cases to permanently undermine the limited nature of American government that led to the development of eugenics, Buck v. Bell, and finally Hitler’s plan in Germany.

Despite several obvious structural contradictions, the Court largely became a prophet of the absolute powers of Leviathan. In fact, the U.S. Supreme Court propagated our despair anew when the Nuremberg prosecutor, Justice Robert H. Jackson, appeared to suggest that the Court, rather than the people, creates the constitution in Brown v. Allen.[13] Emphasizing the paradoxical nature of this vein of potentially treasonous realism, the Roberts Court was recently inspired by it to upend stare decisis while announcing “rule[s] for the ages.”

The Supreme Court appears to have told us that it believes that it creates the constitution.[14] It apparently believes that the Court is the sovereign that gives form to national government, not the people. Therefore, the Court appears to be the first pretender to the throne of American sovereignty as a Hobbesian prophet tasked with dubbing the administrators of government with legitimacy.[15]

Every awful thing that led to Trump’s two-term presidency can be traced back to the Court’s populist advertisement of treasonous realism. Both Republicans and Democrats heard the Court pretending to the people’s power and believed that they had to capture it for their political ambitions to succeed. Back in the 1980s or even before, the Court’s usurpation of the people’s power to make and remake their constitutions was already perfected to generate the populist presumption and despair that created President Trump.

In his royalist tract, Leviathan, Thomas Hobbes observed that despair is merely another side of presumption; pride merely another side of dejection; and advocated that absolute royals should use this “Madnesse” among the people to “enrowle a legion.”[16] In the mid- to late Twentieth Century, Americans presumptuously took John Adams’ prescription for independent judging as an automatic cure for arbitrary power. The Court recognized the people’s indulgence of its power and scandalously misused it to gaslight the people with Hobbes’s insult of popular insanity to solidify its prophetic power into the future without respecting the popular indulgence.

But the era of presuming that the Court is always right is over. The people are presently realizing the pivotal part they had in facilitating the Court’s fractious course. They may choose to repent and do better, which may entirely upend the political plans of both the Democrats and Republicans for the Supreme Court.

The Supreme Court is a co-equal sovereign with the President and Congress,[17] but each co-sovereign is vested with the people’s sovereignty, held in trust according to the limits of a written constitution drafted and ratified by the people. The entire purpose of the Court was to be a non-political tribunal where the entire nation could peacefully settle its grievances before the country devolved into Civil War.[18] John Adams specifically defended the Court’s independence through life-tenure during good behavior, believing that political slant and bias could be avoided by structurally isolating the judges from the traditional levers of political control.

However, the Supreme Court failed to peacefully resolve the nation’s differences when it decided Prigg v. Pennsylvania and Dred Scott v. Sandford. Despite explicitly being characterized as a tyrant king by Chief Justice Taney in chambers, President Lincoln still dared to imagine that the fledgling nation could be born again. Eventually, the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments accomplished the rebirth of the American project, keeping the system of independent courts originally invented by John Adams.

Judicial independence is known to be the only original contribution to the science of statecraft attempted by the United States. It was one of the only things that the Americans devised through an original, positive development of the law to distinguish the American governments from others. It would, therefore, be a travesty if John Adams’s theory of judicial independence, as adopted nearly verbatim in Article III of the U.S. Constitution, is disproved by the Roberts Court through sheer unforced corruption of the bench with Hobbes’s natural religion of the divine right of the king’s prophets that John Adams himself decried in his Dissertation on the Canon and Feudal Law to justify the Revolutionary decision of the Americans to permanently separate church and state under the First Amendment.

Yours Cordially,

Joshua J. Schroeder, Esq.

[1] 1 James Wilson, Collected Works of James Wilson 445 (2007) (“The dread and redoubtable sovereign, when traced to his ultimate and genuine source, has been found, as he ought to have been found, in the free and independent man.”).

[2] Hannah Arendt, On Revolution 66, 250 (1990).

[3] U.S. Const. pmbl., explained by Chisholm v. Georgia, 2 U.S. 419, 455–56 (1793) (“In all our contemplations, however, concerning this feigned and artificial person [i.e., the State], we should never forget that, in truth and nature, those who think and speak and act are men.”).

[4] Arendt, supra note 2, at 93 (“The word ‘people’ retained for [the Americans] the meaning of manyness, of the endless variety of a multitude whose majesty resided in its very plurality.”).

[5] Chisholm, 2 U.S. at 462 (“The Parliament form the great body politic of England! What, then, or where, are the People? Nothing! Nowhere! They are not so much as even the ‘baseless fabric of a vision!’ From legal contemplation they totally disappear! Am I not warranted in saying that, if this is a just description, a government, so and justly so described, is a despotic government?”).

[6] Thomas Hobbes, Leviathan frontispiece (A.R. Waller ed., 1904).

[7] Jeremy Bentham, Short Review of the Declaration, in John Lind, An Answer to the Declaration of the American Congress 107, 118 (1776) (appealing to the British empire to “unite as one man, and teach this rebellious people, that to say the connection, which bound them to us, is broken, is not to break it”).

[8] Joshua J. Schroeder, A Court of Chaos & Whimsy: On the Self-Destructive Nature of Legal Positivism, 29 Cardozo J. Equal Rts. & Soc. Just. 663, 665 (2023) (noting that legal positivism cannot be reliably defined, because it is “a theory that facilitates a potentially unlimited number of imaginary experiments”).

[9] Arendt, supra note 2, at 150, 241 (noting that Montesquieu’s “role in the American Revolution almost equals Rousseau’s influence on the course of the French Revolution”); Jean Jacques Rousseau, The Social Contract 218–19 (Rose M. Harrington trans., 1893) (celebrating Hobbes’s combination of church and state and embracing the paradoxical nature of humankind).

[10] Hobbes, supra note 6, at 46–48 (proposing that absolute monarchy should be built upon a diagnosis that all humanity is reliably insane).

[11] U.S. Const. arts. I–III; see James Otis, Collected Political Writings of James Otis 241 (Richard Samuelson ed., 2015) (rejecting the “Hobbesian maxims” of force and fraud).

[12] John Adams, The Revolutionary War Writings of John Adams 292 (2000) (proposing the separation of powers including the life tenure and independent salaries of federal judges as sufficient to secure the judiciary as a reliable check on the President and Congress).

[13] Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring in the result) (“We are not final because we are infallible, but we are infallible only because we are final.”), explained by Linda Greenhouse, “Because We Are Final”: Judicial Review Two Hundred Years After Marbury, 148 Proc. Am. Philosophical Soc. 38, 38–39 (2004).

[14] Greenhouse, supra note 13, at 39 (“‘The Constitution does not found judicial review; rather, judicial review invents the Constitution.’” (quoting Paul W. Kahn, The Reign of Law: Marbury v. Madison and the Construction of America 169 (1997)).

[15] Hobbes, supra note 6, at 315–18 (“[T]he Prophet is the Civill Sovereign. . . . Every man therefore ought to consider who is the Soveraign Prophet; that is to say, who it is, that is Gods Vicegerent on Earth.”); see Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 461 (1897) (“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”).

[16] Hobbes, supra note 6, at 46–48.

[17] Baker v. Carr, 369 U.S. 186, 226 (1962).

[18] Martin v. Hunter’s Lessee, 14 U.S. 304, 373–74 (1816).

Dear Reader,

In 2019, English newcomer Olivia Colman became an unintentional beneficiary of American misogyny when she robbed American icon Glenn Close at the Academy Awards. Close’s near-flawless portrayal of Meg Wolitzer’s character Joan Castleman in The Wife was a far more interesting (and better acted) discourse on female power than Colman’s portrayal of Queen Anne in The Favourite, because The Wife was a vignette of a talented woman who actually deserved her prestige. Unlike The Favourite, Wolitzer’s revelation of Ms. Castleman exposed the American Patriarchy’s paradoxical strategy of propping itself up with the significant talents of women.

The Academy’s snub of Close’s work in Wolitzer’s challenging critique of female power in a man’s world in The Wife, covered for The Favourite’s patronizing retelling of an age old myth that women in traditionally male positions of power will magically redeem the Patriarchy of misogyny. Due partially to the Academy’s blessing, the “gut-level” misogyny in The Favourite went almost without comment, while mainstream movie critics raved about The Favourite as a “triumph” featuring a “refreshing lack of misogyny.” All The Favourite proved was that abusing the crown to cover up weak analysis and bad storytelling that favors injustice is a global problem that is not merely or primarily English.

The American tendency of using British elitism as a foil to ignore America’s problems is particularly reflected in the U.S. Judiciary. Starting with the Slaughter-House Cases, the Court copied the British strategy in Thomas v. Sorrell of extending the errors that caused the Civil War as though the Court had no part in causing the Civil War. In Sorrell, the English Court scandalously extended the very Star Chamber injustices that caused the English Civil War, which the Slaughter-House Court candidly joined when it distinguished the great Case of Monopolies to narrow the protections of the postbellum Amendments of the U.S. Constitution with these words:

But we think it may be safely affirmed that the Parliament of Great Britain, representing the people in their legislative functions, and the legislative bodies of this country, have, from time immemorial to the present day, continued to grant to persons and corporations exclusive privileges -- privileges denied to other citizens -- privileges which come within any just definition of the word monopoly, as much as those now under consideration, and that the power to do this has never been questioned or denied.[1]

As I have repeatedly noted in other publications, this sentence is a totalitarian error that elides the people with the state as symbolized in the frontispiece of Hobbes’ Leviathan. Others have explained how the noxious error of confounding the sovereign people with their representatives in Slaughter-House was carried forward by Hans v. Louisiana, according to the Court’s willful ignorance of Chisholm v. Georgia’s clear rejection of the old English qualified immunity decision in The Bankers’ Case. This confusion of the people and their governments, that originated in anti-American feudal law, was originally delineated as the first “degree of perversion” by Justice Wilson that began in the “old world” of Europe and yet found it was still “prevalent, even in the several States of which our union is composed.” Despite Wilson’s attempt to warn America of this Hobbesian perversion of sovereignty, it nevertheless became U.S. law for the first time in Trump v. United States and Seila Law LLC v. CFPB, according to the Court’s novel theory that the President is the people through direct democratic processes that are anathema to the U.S. Constitution.

In fact, the theory that the President is the people through direct democracy paradoxically arose from Justice Story’s invention of the plenary power doctrine in Houston v. Moore as extended in McPherson v. Blacker, which was vociferously asserted in the “kraken” law suits brought by now disgraced lawyers Sidney Powell and John C. Eastman to support the January 6, 2021 insurrection. This theory of plenary powers was extended in Prigg v. Pennsylvania to destroy birthright citizenship of freeborn Black Americans in Pennsylvania. After Story’s critical error in Prigg became the foundation of Immigration Law in The Chinese Exclusion Case and beyond (see my last post about this topic),[2] the Court has been asked to repeat this error as to potentially all Americans in Trump v. CASA, Inc. and Trump v. Barbara.

The common despair felt by both Republicans and Democrats in America is visible in the nearly unanimous political support for America’s royalist denization system that began in 1924 when Congress enacted the nation’s first visa program.[3] The Immigration Act of 1924 generally excluded all immigrants for the first time, and provided grounds for treating all the inhabitants in America as denizens. Ever since, the American people trusted in the goodness of each successive President not to use this power to occupy cities and localities with standing troops in times of peace despite the Posse Comitatus Act.

Few have hinted to the immigration law’s suspect constitutional underpinnings, while most blindly celebrate it as an achievement for social justice.[4] The Immigration & Nationality Act was always eugenic, the updates made in 1965 were candidly white supremacist, and the implied plenary power to exclude that still animates it should be found unconstitutional under McCulloch v. Maryland’s liberal standard. Yet, most Americans seem to believe that anything that happened in the 1960s was unquestionably liberal, and even The 1619 Project claimed credit on behalf of Black America for the racist 1965 updates to the law.[5]

Even though the Court could easily venerate the racist statutes before it, with the support of liberal outfits like The 1619 Project, the Court seems poised to take power for itself by unilaterally administering immigration law through feudalism. As such, the Court appears ready to extend the concept of enemy alien infidels from Lord Coke’s complicated opinion in Calvin’s Case as though Justice Wilson never reformed that decision to favor immigrants as friends in America.[6] And the President is clearly asking the Court to upend the statutes, however racist and awful, to give him the power to do whatever he wants to both immigrants and U.S. citizens.

To be clear, the President wants to administer pure injustice through the genre of judicial prophecies originally proposed by Thomas Hobbes so that he no longer has to consult the laws of Congress at all.[7] For example, in Trump’s first term Trump claimed that he enacted health, internet, and immigration law through Executive papers that were then laughed off as absurd. If the Court legitimizes the President’s unilateral legislative powers, Congress’s laws can be dispensed with as the king once did in Godden v. Hales and Thomas v. Sorrell according to Professor Holly Brewer’s recent analysis.

The most fascinating development in the Roberts Court is its sheer denial of the feudalistic nature of President Trump’s activism in the Court. Due to the Court’s sheer cognitive dissonance, the President can pursue radical transformations of the law while the Court precludes private litigants from making proper arguments against them. America could fall under the sway of a pretender king according to Supreme Court decisions that preclude private lawyers from arguing in defense of popular sovereignty and against the reemergence of feudalism.

Critically, the United States was the first nation to officially call bullsh** on the British Empire’s claims of legitimacy. From the Revolution of 1776 to the present day, Americans still agree with our favorite British transplant, Thomas Paine, that British monarchism was a sin. This is presumably why Solicitor D. John Sauer disclaimed any feudal basis for ending birthright citizenship in Trump v. Barbara in his oral argument.

But Sauer’s argument was to refashion Calvin’s Case to maximize feudalism by treating all the inhabitants of the United States as enemy aliens until the President exempts them as denizens in the very style of the British monarch. In short, Sauer attempted to use the anti-monarchical sentiment of America to oust the common law in Calvin’s Case as though its expression of the common law was feudal, so that Calvin’s Case’s expression of feudalism could be maxed out in America. The ACLU lawyer, acting as Sauer’s primary opposition, failed to explain the sophistication of Solicitor Sauer’s corrupt argument for feudalism by dressing the President up as anti-feudal and further mischaracterized Calvin’s Case as though it were purely common law when it was a problematic mixture of common and feudal laws.

In Calvin’s Case, Lord Coke decided that anyone born in the king’s dominions was a British subject according to a presumption of alien friendship. But, the common law of birthright citizenship derived from Calvin’s Case in America was limited by Lord Coke to only extend to Christians, and by the designation of feudal subject rather than full citizen. Ironically, Coke’s analysis would have precluded the very origin of Coke’s rule in Paul’s appeal to pagan Rome as a foreign Jew, emphasizing feudalism’s penchant for arbitrary self-contradiction.

The feudal limits of Calvin’s Case were tested in several cases implicating the American Revolution. These cases included Sir Thomas Grantham’s Case, Rex v. Cowle, Campbell v. Hall, and the celebrated Somerset’s Case, which ultimately resulted in the Revolution of 1776 that vindicated the common law from Calvin’s Case while surgically removing the dross of its feudalism.[8] The disagreement of the United States with its mother country on this topic was re-litigated in 2008 when the U.S. Supreme Court distinguished Rex v. Cowle, while the House of Lords simultaneously extended Campbell v. Hall.

Nevertheless, after the former British American colonies unanimously intended to ipso facto extend U.S. citizenship to all British inhabitants, Black and white, man and woman, the dross of Calvin’s Case’s feudal enemy alien idea crept back into the South. Specifically, its concept of being able to keep an infidel as a chattel slave, as was extended in Sir Thomas Grantham’s Case, was cited by the Supreme Court of Alabama in Atwood’s Heirs as the basis for its chattel slavery system. The complete failure of the United States to hold Phillis Wheatley’s “the heaven defended line” of ipso facto equal rights of citizens in the United States is the only foundation for the peculiar institution of chattel slavery that eventually sank the nation in a costly, bloody, and entirely avoidable Civil War.

The errors of Calvin’s Case were forcefully addressed in the lectures of the Signatory of the Declaration of Independence, Framer of the U.S. Constitution, and Inaugural U.S. Supreme Court Justice James Wilson, as well as in John Adams’ Novangelus letters.[9] Wilson noted that denization is a royal power disclaimed in America, and that in America all aliens must be presumed friends unless they are citizens of a nation that is actually at war with the United States.[10] To support this position, Wilson vigorously attacked Coke’s use of Christianity as a basis to justify the king’s power to disrespect aliens as conquered infidels that may be lawfully put to death or banished by the crown’s inherent powers as sovereign.[11]

Wilson’s careful extraction of the common law from Calvin’s Case, without its feudal exclusion of infidels like Muslims and Jews, created the American basis of birthright citizenship. Following Wilson, the Americans preserved the common law cited by Coke that began with the apostle Paul’s appeal to Rome as a foreign Jew according to his birth in Cilicia.[12] However, it removed the dross of Coke’s definition of enemy aliens as infidels, which would be an unconstitutional establishment of religion if it were ever made law in the United States.

In Barbara, Solicitor Sauer proposed that the Court reject Coke’s definition in the opposite direction of Wilson’s corrective, to surgically remove the common law so that all that remains is the feudal cancer. Sauer basically appeared to argue that all U.S. inhabitants should be presumed enemy aliens unless or until the President exempts them as denizens. This solution to the infidel problem in Calvin’s Case, redefines citizens as denizens and erases the constitutional basis for Congress’s concurrent power of naturalization by placing that power exclusively in the President by inferring the king’s powers into Article II of the Constitution.

Instead of requesting that the statute giving citizenship to all individuals born in the United States be struck down, Sauer argued that Wong Kim Ark be reinterpreted so that the statute becomes a nullity. Again, the ACLU lawyer on the other side failed to explain this danger to the Court. Instead of emphasizing the importance of the Court’s upholding the statute as the proper expression of legislative power to enact an uncontroversial representation of the American constitutional view of Calvin’s Case according to the Citizenship Clause, the ACLU asked the Court to reaffirm Wong Kim Ark — which opened the door to Sauer’s proposed solution.

Solicitor Sauer is in the unenviable position of knowing that his client is, basically, a feudalist in a nation that overwhelmingly rejects feudalism. Royalism and feudalism were not only rejected unanimously as a political aspiration throughout American history, but they are also structurally rejected in America’s forms of government. The laws and constitutions of America explicitly state in several places that there shall be no titles of nobility, and that the people give form to their governments through constitutions made and ratified by the people rather than by a royal institution like the British crown.

It will be a spectacle if President Trump is able to maintain his claims of feudal power in Supreme Court litigation aimed at turning the common law into feudal law sub silentio. The writers of history will revel in the paradox of it. And American lawyers will suffer under the stupidity of it, while being called upon by the world to explain how the words in our laws do not mean anything meaningful without the President’s assent as though he were our king.

Yours Cordially,

Joshua J. Schroeder, Esq.

[1] Slaughter-House Cases, 83 U.S. 36, 66 (1873).

[2] Joshua J. Schroeder, We Will All Be Free Or None Will Be: Why Federal Power is Not Plenary, but Limited and Supreme, 27 Tex. Hisp. J. L. Pol’y 1, 33 (2021).

[3] Immigration Act of 1924, Pub. L. 68–139, 43 Stat. 153; cf. 2 Wilson, supra note 1, at 1050 (“The power of denization is a high and incommunicable portion of the prerogative royal.”).

[4] See, e.g., Joshua J. Schroeder, A Candle in the Labyrinth: A Guide for Immigration Attorneys to Assert Habeas Corpus After DHS v. Thuraissigiam, 49 Hastings Const. L.Q. 237, 275 (2022) (containing a non-exhaustive list of reasons why “EOIR structurally fails to secure common law due process”); cf. Mary Holper, Unzipping Detention from Deportation, Research Paper 634, at 3–4 (2024).

[5] Nikole Hannah-Jones, Democracy, in The 1619 Project: A New Origin Story 33 (2021) (claiming credit on behalf of all Black Americans for the candidly racist 1965 immigration law).

[6] Calvin’s Case (1608) 7 Co. Rep. 1a, 24a (Eng.), corrected by 2 Wilson, supra note 1, at 1046–49 (“In ancient times, every alien was considered as an enemy. The rule, I think, should be reversed.”). James Wilson specifically criticized the branch of feudal law that allowed kings to make denizens and treated it as dead on arrival in the anti-royal United States. Id. at 1050; cf. Tanya Golash-Boza, Feeling Like a Citizen, Living As a Denizen: Deportees’ Sense of Belonging, 60 Am. Behavioral Scientist 1, 2 (2016).

[7] Thomas Hobbes, Leviathan 316 (A.R. Waller ed., 1904) (defining “the Civill Soveraign” as a prophet).

[8] 2 Wilson, supra note 1, at 1049 (criticizing Calvin’s Case as the “bastard mother” of a portion of William Blackstone’s Commentaries that proposed to exclude the Americans from their legal rights by treating them as enemy alien infidels); Sir Thomas Grantham’s Case (1687) 87 Eng. Rep. 77, 3 Mod. 120 (Eng.), in John Baker, Sources of English Legal History: Public Law to 1750, at 453 (2024).

[9] 2 Wilson, supra note 1, at 1049; see also John Adams & Jonathan Sewall, Novanglus and Massachusettensis 129–30 (1819) (explaining the crown’s attempt to destroy the rights of all Americans by treating them as enemy alien infidels through feudal cases like Rex v. Cowle).

[10] 2 Wilson, supra note 1, at 1050.

[11] Id. at 1049 (noting how Coke “fortifies the favourite sentiment by a pleonasm” and “attempts to fortify it [farther] by the language, tortured surely, of christianity itself”).

[12] See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 769 (1950) (“Citizenship as a head of jurisdiction and a ground of protection was old when Paul invoked it in his appeal to Caesar. The years have not destroyed nor diminished the importance of citizenship, nor have they sapped the vitality of a citizen’s claims upon his government for protection.”).