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Archive for the ‘Legislation’ Category

Illinois Chief Justice Anne Burke

Today’s Chicago Tribune reports that Illinois Chief Justice Anne M. Burke has announced her retirement.

To the active and energetic mind, to the profound intellect, to the ever-restless curiosity, to the lifelong seeker after justice, the ease and indolence of retirement can often be harder to bear than continued labor in one’s metier.

Illinois Chief Justice Anne M. Burke will have no problems in this regard.

Although former Illinois House Speaker Mike Madigan may have wished that Illinois had a palace, its absence was no bar to the creation of his own palace clique of sycophants, not-so-brave adventurers, lobbyists, hangers-on, lackeys and lickspittles. And of this Madigan camarilla C.J. Burke was certainly the most important figure. Madigan had a live human wiretap into the highest, most important and most sensitive judicial deliberations in the state.

Madigan opposed the independent redistricting referendum, which came before the Illinois Supreme Court in 2016. Burke ensured that this measure, which favored voters’ rights and democracy in Illinois, was a non-starter. Any act or measure disfavored by Madigan that came before Burke’s Supreme Court would be condemned. In all matters Burke carried out Madigan’s will to the best of her ability.

Madigan, ever bashful, continually disclaimed having any influence or power over any one or any thing in Springfield, and he affected to be no more than a simple state rep and ward committeeman. But if he ever expressed his opinion on any issue, or, even less, granted or withheld his wink or nod, none could doubt what the final result would be. We miss Madigan’s ostentatious pretenses of powerlessness, humility, meekness and modesty. Well, at least we will until his criminal trial begins.

Then Commonwealth Edison’s Bribery Department (see July 20, 2020 Deferred Prosecution Agreement) offered its payroll to Madigan as a patronage machine to supply the place of Chicago’s Streets and Sanitation Department. The influence of Exelon in the Illinois General Assembly became paramount, and the interests of and protections for Illinois ratepayers concomitantly declined. Chief Justice Burke ensured that as far as Exelon’s bespoke laws protecting its revenues were concerned, constitutionality was nothing more than a dangerous luxury. With Madigan’s wink and under Burke’s watchful eye, Illinois legislation became Chris Crane’s own pull-toy. Sadly, Exelon must now do without either Mike Madigan or Anne Burke. Crane must know how Napoleon felt when he bade farewell to his Imperial Guard before setting sail for Elba.

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Today, abortion. Tomorrow marriage equality and contraception.

Today the U.S. Supreme Court overturned Roe v Wade, the 1973 decision that established a constitutional right to abortion. This was expected, given the recent leaking of the Alito draft opinion.

The Alito opinion purports to determine the validity of the most fundamental rights of American citizens not by any contemporary legal or moral principles, but rather by turning the clock backwards by two or more centuries to see what the Founding Fathers meant by the words they used in the Constitution. In practice, this amounts to an exercise in historical fiction by the six conservative justices as they attribute their own policy preferences to their favorite Founding Fathers.

At any rate, the high court’s Dobbs decision should not be viewed as some sort of sudden or unforeseeable event. Dobbs is neither an earthquake, tornado, nor any other kind of surprise, even before the Alito opinion leak. Not at all. Dobbs is the result of the basic structure of the United States Constitution.

Contrary to what the GOP politicians spout, the Constitution wasn’t written by a benevolent deity. It was written by a group of white men, many of whom were slave-owners. Indeed, slavery and concessions made to the slave states to induce them to sign on to the Constitution (e.g., the Three-Fifths Compromise) comprise the ultimate foundation of the U.S. Constitution. Chief among those concessions, and a leading cause of today’s Dobbs decision, is the Electoral College.

The GOP’s smart move was to recognize the Electoral College for what it really is: the single greatest gerrymandering device in all of American law. The Electoral College means that there really is no such thing as a national presidential election. Rather, the Electoral College means that competing candidates for the U.S. presidency run for governor in each of the fifty states, and if one wins enough states to obtain a majority of the Electors, he or she wins regardless of the popular vote.

The popular vote for president is still important, but not on a national basis. It’s important only on a state-by-state basis, that is, within each individual state. That accounts for the GOP’s long game on voting rights, because for most of the states, if they can flip a state by as little as one vote they get all that state’s electors. Just look back to Karl Rove’s efforts to fire a bunch of U.S. attorneys who said they had more important things to do than going after voter fraud. Moscow Mitch McConnell then piled on to make sure that Obama didn’t get to appoint Merrick Garland, while Trump got to appoint three far right conservatives. McConnell violated some “traditions” of the U.S. Senate, but what he did was neither unconstitutional nor illegal.

The take-away here is that the GOP has had a long game of using the Constitution as it exists to enforce their minority rule, and Dobbs is just the latest evidence of that. Marriage equality and even the right of Americans to obtain and use contraceptives are next on the 6-3 Supreme Court chopping block. That’s no exaggeration. Clarence Thomas has expressly said he wants to eliminate those rights.

What’s required goes far beyond just getting out the vote this coming November. The GOP has been working, and will continue to work, on sabotaging Americans’ voting rights. If that includes the federal seizure of state voting machines because Italian satellites were allegedly switching votes from Trump to Biden, so be it. Trump sent the U.S. Gov’t. off on a wild goose chase to investigate that, and as yesterday’s January 6 Committee hearing showed, only two or three sane officials in the Justice Department stood between the United States and a constitutional crisis.

No, what’s needed is a new Constitutional Convention so that we can scrap what is essentially a constitution designed to embrace slavery and advantage slave states and bring it into the 21st century. I, for one, am rather tired of listening to right wingers tell us what a group of 18th century slaveholders and slavery enablers might have been thinking.

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Alito

Justice Samuel Alito

Alito’s Leaked Opinion
Justice Samuel Alito’s leaked majority opinion in Dobbs v Jackson Women’s Health Organization, _ U.S. _ (2022) discloses that the U.S. Supreme Court is primed to overrule both Roe v Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pa v Casey, 505 U.S. 833 (1992), the two leading cases holding that the right to an abortion is protected under the United States Constitution.

Yesterday’s Chicago Tribune reported that when the U.S. Supreme Court officially hands down its opinion, twenty-six (26) states, including Texas and Florida, are either certain or likely to enact laws that either severely restrict the right to abortion or ban it outright. (“If Roe is overturned, ruling could have secondary effect on Illinois’ economy,” Chicago Tribune, June 13, 2022). The Tribune article suggests that corporations may seek to relocate their headquarters to states like Illinois, in which the right to obtain an abortion will be protected. The article concedes that it may take years for such changes, and their related economic effects, to come about.

Assuming that there’s sufficient political will, the economic effects on renewable energy from overturning Roe could occur much sooner.

That there exists any tangency at all between energy law and reproductive rights may sound unusual, but the response to Alito’s ruling should take advantage of the principles Alito himself announces in his leaked opinion. In particular, Alito stresses that our nation’s historical understanding of ordered liberty should enable the people’s elected representatives to decide how abortion should be regulated (Dobbs, pgs. 6, 31). Elected representatives in other states are likewise at liberty to respond to Dobbs by deciding how to regulate certain aspects of renewable energy.

How Renewable Energy Works
Because one electron is indistinguishable from another on the grid, electricity generated by renewable resources (wind, solar, etc.) is indistinguishable from electricity generated by a nuke or a coal-fired plant. To address this, renewable energy certificates (RECs) were developed as tradable certificates that recognize the green energy attributes of renewable electricity generation sources. One REC represents one megawatt-hour of renewable generation. RECs are tradable because they may be bought and sold separately from the actual electricity generated by the renewable system. The sale of RECs provides additional revenue for renewable generators and obviates the (nearly impossible) task of trying to schedule specific generation for specific load. The issuance and claiming of RECs is tracked, usually by the relevant transmission system operator.

A Renewable Energy Response to Dobbs
A state’s renewable portfolio standard (RPS) generally requires that electric public utilities procure a specified portion of their electricity supply requirements from renewable generation resources such as wind or solar power. These requirements may be met through a utility’s own renewable generation assets or through the purchase of RECs. A state has a lot of leeway to structure its RPS as it sees fit. A state RPS may have tiers of preferred RECs, or it may prefer RECs purchased from generation resources located within the state or in adjacent states. The RPS market is often referred to as the “mandatory market” because public utilities are required by law to purchase certain volumes of renewable energy.

The gist of the renewable energy response to Dobbs lies in two separate measures. First, in states like Illinois, where the right to abortion will be protected, RPSs would be amended to prevent RECs generated in states that restrict or prohibit abortion from being used to satisfy the RPS.

The second measure pertains to the “voluntary” market, that is, the market for the purchase of RECs by persons who are not legally required to purchase renewable energy but who nevertheless wish to support the development of renewable energy. Voluntary market purchasers may procure all or a portion of their electricity supply requirements from renewable generation. These REC purchasers “green” the electricity they actually use by buying a quantity of RECs. Buyers in the renewable energy market have the freedom to choose which RECs they buy, including choosing the state of origin of the RECs. The second response to Dobbs involves making clear to voluntary market buyers where a REC was generated, and the REC buyer can then choose whether it wishes to purchase a REC generated in one of the 26 states that are set to restrict or eliminate abortion rights. Welcome to your free market at work.

The Dormant Commerce Clause
The Dormant (or Negative) Commerce Clause is a doctrine that federal courts have inferred from the Commerce Clause of the U.S. Constitution. In a nutshell, the doctrine prohibits protectionist legislation by states.

The Sparkspread previously posted an entry on Judge Posner’s 2013 opinion in Illinois Commerce Commission v. FERC (“7th Circuit Casts Shadow Over State Renewable Portfolio Standards,” The Sparkspread, August 14, 2013), a cost allocation rate case in which Posner, when discussing RECs and RPSs, stated that the Dormant Commerce Clause would prohibit one state from discriminating against another’s renewable energy. Posner’s reasoning was wrong because he did not understand how REC markets operate and did not take into account the difference between the mandatory and voluntary REC markets.

Contrary to Posner’s position, a state’s limitations on the kinds of RECs that are acceptable for satisfaction of its own RPS do not present a dormant commerce clause issue because none of those limitations prevent a REC seller from selling its RECs in that state. In the voluntary market, any REC seller from any state can sell RECs generated anywhere in every other state. An RPS limitation on RECs from abortion-restricting states, on the other hand, pertains to the mandatory, not the voluntary market. Every state is free to determine as a policy matter what types of RECs may be used to satisfy its own RPS. A state’s elimination from its mandatory market of RECs generated in abortion-restricting states is no different than that state’s preference for, say, solar over wind RECs, or for RECs generated only in adjacent states. An RPS has nothing to say about the voluntary market, which it does not in any degree control.

I am not aware of any previous effort to address REC markets from this angle. Legislation would, of course, take time and effort to enact, but if, pursuant to Dobbs, elected representatives in 26 states see fit to restrict or eliminate a constitutional right that has been in place for nearly half a century, the elected representatives in the other 24 are equally free to express their policy preferences in their own RPSs. Alito would surely approve, no?

Energy markets tend to be exquisitely sensitive. The mere announcement of such a legislative initiative by a state would likely send through renewable energy markets a shock wave warranting measurement on the Richter scale. Expectations on REC sales would be affected, and, even more importantly, so would plans for new generation.

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Yesterday the U.S. Attorney’s Office for the Northern District of Illinois brought out its 22-count indictment of Michael (“I’m not the target of anything”) Madigan.

In July 2020, the U.S. Attorney’s Office entered into a Deferred Prosecution Agreement with Exelon Corp. and Commonwealth Edison Company, which served as Madigan’s political patronage machine for close to a decade. The DPA refers to Madigan as “Public Official A,” and includes messages from people in his corrupt network that refer to Madigan as “Himself” or “Our Friend.” It seems like Madigan was more popular among the federal prosecutors than he thought. In exchange for bribes to or for the benefit of Madigan, ComEd and Exelon ensured the passage of legislation favorable to them, and hindered or prevented legislation Exelon didn’t like.

If we could delve into the inner recesses of Madigan’s mind, we’d find that his Id, Ego, and Superego are all composed of one thing: a driving ambition to be the Second Coming of Richard J Daley. Madigan’s father and Daley the Elder became friends when both held political patronage jobs in the Cook County Clerk’s Office. Using political patronage, Daley the Elder went on to build one of the most powerful political machines that any American city had ever seen. During old Mayor Daley’s tenure, parts of Chicago’s government, like the Department of Streets and Sanitation, were turned into political patronage machines that Richard J. Daley used to provide jobs for his supporters.

One of old Mayor Daley’s chief precepts, which Madigan was later to adopt as his guiding principle, was to help your friends and either punish or co-opt your enemies. To Madigan, Daley the Elder had achieved what he considered political Nirvana: a world in which everybody both depended on you and was afraid of you.

But Old Man Daley passed away in 1976, and in 1983 the Shakman Decree ended Chicago city government’s role as a perpetual patronage machine.

Madigan’s alternative was to use ComEd and Exelon as a way to create a new political patronage machine and do an end run around the Shakman Decree. For Exelon and ComEd it was a match made in, well, maybe not heaven. As the DPA showed, bribery and corruption are integral components of Exelon’s business model: the utility parasite and the political parasite established a symbiotic relationship.

Over the next few weeks we’ll go further into the specific chapter and verse of the legislative benefits that Exelon and ComEd obtained at the expense of Illinois ratepayers. Nothing in the 22-count Madigan indictment revises the amount of bribes that Madigan directly or indirectly received: about $1.3 Million. We’ll tally up the economic benefits that Exelon and ComEd obtained from these illegal payments, and see how they balance out.

But Madigan and the Illinois legislature comprise just one sphere of influence. We’ll also take a look at how Madigan’s malignant principles have metastasized throughout the Illinois courts — an area the U.S. Attorney’s Office might be interested in. The General Assembly and the Illinois courts are the two poles between which the Madigan supremacy oscillated for nearly a half century. Within the courts Madigan’s fingerprints are harder to see, but it must be borne in mind that, whether Madigan was acting at one or the other of these poles, it was the Madigan supremacy still. His control was absolute and coordinate.

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On August 18, 2020, I had the pleasure of speaking with Will Stephens, the host of Radio Station WXAN, regarding the recently filed civil RICO class action against Madigan, ComEd et al., filed in the U.S. District Court for the Northern District of Illinois. The link appears below:

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Gorsuch

Justice Gorsuch, U.S. Supreme Court

Bostock v. Clayton County, U.S. Supreme Court Case No. 17-1618 (June 15, 2020), is without doubt a milestone in the history of civil rights in the United States. The U.S. Supreme Court made the right decision. As the several recent police murders of black Americans has shown, there remains much work to be done in achieving equal justice under law for all Americans. Still, with Bostock the LGBTQ community can take at least take some comfort that the law is moving in the right direction. In these dark days of the Trump administration, that’s saying something.

However, the media has gone overboard in its praise of Justice Gorsuch, who is Trump’s first appointment to the Court. In particular, the media expresses surprise that the decision was 6-3 for Bostock, the plaintiff. The media asserts that those Republicans who have defended Trump because they want reliably conservative judges on the federal bench must be very disappointed. And, in fact, some are.

Charlemagne crowning

Detail of Media crowning Justice Gorsuch [prematurely] Liberal Judge of the Year, 2020

Before the Gorsuch hagiography gets much deeper, remember that you heard it here first: at some future date Gorsuch will issue an opinion that will incense everyone who’s not a Republican. (I almost said “conservative Republican,” but that would be redundant.) When it comes to interpretation of statutes and the U.S. Constitution, Gorsuch is a self-proclaimed “textualist” or “textual originalist” in the same vein as the late Justice Antonin Scalia. Recall that at his confirmation hearings in 2018 Gorsuch refused to comment on whether he believes three landmark cases were correctly decided: Brown v. Board of Education, 347 U.S. 483 (1954) (prohibiting racial segregation in public schools); Griswold v. Connecticut, 381 U.S. 479 (1965) (married couples have a constitutional right to use contraception); and Eisenstadt v. Baird, 405 U.S. 438 (1972) (unmarried couples have the same constitutional right as married couples to use contraception).

Keep those cases in mind.

Textual originalists like Gorsuch and the late Scalia portray themselves as completely passive, absolutely objective interpreters of statutes and the Constitution because they restrict themselves to the words in the text of the statute or Constitution — nothing more, nothing less. Anything outside the text is off limits, especially the legislative history.

The “originalism” part derives from their claim that the words in the statutory or constitutional text must be given the meanings they had when the text in question became law. The Scalia/Gorsuch textualist school wants to be sure to use the meanings at the time the text was enacted because that’s the only way, in their view, that the original intent of the language can be maintained from age to age. Changes in the use of language cannot be allowed to corrupt the original meaning of the text.

Gorsuch’s opinion is an authentic result of a textual originalist’s reading of the text of the 1964 Civil Rights Act. Still, the decision has startled Trump’s Republican supporters who counted on his judicial nominees to sock it to groups that they don’t like, such as the LGBTQ community.

But the most serious consequences are yet to come. Brown v. Board of Education prohibited racial discrimination in public schools and did so on the basis of the 14th Amendment to the U.S. Constitution. But when the 14th Amendment was adopted in the years immediately after the Civil War, “equal protection of the laws” most certainly did not refer to prohibiting racial segregation. It referred to protecting the recently freed slaves from the depredations of the Ku Klux Klan. Cases such as Plessy v Ferguson, 163 U.S. 537 (1896), which upheld racial segregation on a “separate but equal” basis, make that quite clear. Brown implicitly overruled Plessy, holding that “separate but equal” is inherently unequal.

The problem for textual originalists like Gorsuch is that under their theory the 14th Amendment must be read and interpreted as it would have been understood during the period of Reconstruction after the Civil War. At that time, protection of the freed slaves from raids and lynchings by masked horsemen in the states of the old Confederacy was what the 14th Amendment was all about. Nothing in the 14th Amendment mandates a prohibition of racial discrimination. Accordingly, under the Gorsuch textual originalism doctrine, Brown v Board of Education was wrongly decided.

If Gorsuch gets the chance, I predict he’ll vote to overrule Brown v Board of Education.

And let’s not forget the other two cases Gorsuch refused to talk about at his 2018 confirmation hearing, Griswold and Eisenstadt.  The decisions upholding constitutional rights in these cases are based on a citizen’s right to privacy. You can read the U.S. Constitution and all the Amendments forwards, backwards and upside-down, and you will not find any “right to privacy” in the text.

Accordingly, under the Gorsuch textual originalist approach, Griswold and Eisenstadt were wrongly decided, and should be overruled. At some point in the future, with Gorsuch on the bench, we may soon be saying goodbye to the constitutional right to use contraception.

If ever there were an artful dodger, Gorsuch is it. Had he given straight answers to the questions asked during his confirmation hearing, he would have told them that he believed Brown, Griswold and Eisenstadt were wrongly decided and should be overruled. He has to either admit that or become an apostate to his own textual originalist faith.  Imagine the uproar if, instead of being the shriveling coward that he his, during his confirmation hearing Gorsuch had answered questions honestly and forthrightly.

As the say in the commercials, “but that’s not all!” One hundred years ago, the 19th Amendment gave women the right to vote. Voting and holding public office are two very different things. Nothing in the text of the U.S. Constitution contemplates that a woman might hold public office in the federal government. Search all you want, but all the references are to males. Any sensible person with two gray cells to his name would tell you that a woman can, indeed, become president of the United States or be elected to Congress. But if you’re Gorsuch, Hillary couldn’t be president even if she’d won the electoral college back in 2016. Why? Because the text of the U.S. Constitution nowhere mentions female federal office holders. Voting? Fine. Office-holding? Not under Gorsuch. Doesn’t that sound ridiculous? Certainly, but then again everybody thought Trump was a joke.

Remember, you heard it here first: the exaggerated praise of Gorsuch is sorely misplaced, and many from the center-right to the left will someday tear their hair and rend their garments over a bass-ackward textualist decision by Gorsuch.

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King_Charles_I_after_original_by_van_Dyck

King Charles I of England/ Studio of Van Dyck

Trump now claims that he has the power to adjourn Congress so that he can make appointments without the advice and consent of the Senate.

Have we seen this movie before?

Charles I of England fought with Parliament over whether the latter would impose taxes he thought necessary. Charles dissolved Parliament, solely on his own authority, three times, the last of which was in 1629. The period of his reign from 1629 through 1640, when he had little choice but to summon what became known as the Long Parliament, is often called Charles’ period of personal rule.

Regarding Trump’s claim of power to adjourn Congress, it’s worthwhile noting that in 1641 the Long Parliament pressured Charles into signing something called An Act Against Dissolving Parliament Without Its Consent. Not surprisingly, this law provided that Parliament could not be dissolved without its own consent.

Our own Founding Fathers knew by heart all of the events from Charles’ ascension to the English throne, through the Protectorate, and into 1660, the year of the Restoration. The English Civil Wars (plural) were constantly before them when they were drafting the United States Constitution. In fact, some of them had ancestors who were either Roundheads or Cavaliers. One shouldn’t be surprised at how closely the office of President of the United States parallels that of the Lord Protector, Oliver Cromwell.

Given this background, you can bet that the Constitutional terms under which Congress can be adjourned without its own consent are narrow and quite specific.

Trump doesn’t take advice, and he hardly knows American history, much less English. He’d undoubtedly like the term “personal rule.” But before he continues to assert his right to adjourn Congress on his word alone, he’d do well to learn a little more about Charles I — he didn’t end up ahead of the game.

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Edward III of England (1322-1377)

Most Americans derive what little they know of the Middle Ages from HBO miniseries. Even ardent Wikipedia fans erroneously believe that England only broke with the Church of Rome when Pope Clement VII refused to grant Henry VIII an annulment of his marriage to Catherine of Aragon so that he could marry Anne Boleyn and try again for a male heir. We should not blame ourselves too harshly for this lack of knowledge since Hollywood has spent the last seventy years warping historical reality, and of no era is this more true than the medieval one. One can begin to correct these distortions by keeping in mind that the Age of Chivalry was not the Age of Dentistry. That’s why nobody was smiling in those old paintings.

Contrary to conventional wisdom, Henry VIII was a late-comer to the Break-with-Rome game. Tensions between England and the Papacy had been brewing for centuries, and one of the first big ruptures was known as the Statute of Provisors, which was enacted in 1351 during the reign of Edward III (1322-1377). That’s almost two hundred years before Anne Boleyn’s first date with Henry VIII. The Statute of Provisors dealt with the Pope’s power of disposition of benefices in England.

What, you may well ask, is a benefice? It’s not a misspelling on a form letter from your health insurer. Rather, a benefice was a high (and high-paying) position in the Church such as bishop, abbot or cardinal. The Statute of Provisors dealt with the thorny issue of whether the pope or the English king had the right to appoint prelates in England. To our modern ears all that may sound like choreography for angels on pinheads, but back then it was a matter of the greatest importance.

William the Conqueror recognized the importance of the Church to consolidating his newly-acquired hold on England. He compelled all the cathedral cities in England, as well as in those parts of France he controlled, to elect his nominees as bishops. This process, in which the king “invested” his appointee with a bishop’s ring and staff, was called “investiture,” and it gave the bishops a badge of both spiritual and temporal authority. Bishoprics had been handled this way across Europe for centuries.

Then, in 1075, Pope Gregory VII up-ended all that. He prohibited laymen from electing bishops (“lay investiture”). He held that the Church was both independent of the state and above it, and that no temporal ruler could confer ecclesiastical authority. Gregory VII’s edict gave rise to what later became known as the Investiture Controversy. But things didn’t quite go as Gregory VII had planned.

On the Continent, in response to the edict, Henry IV, the Holy Roman Emperor and Rex Germanorum (King of the Germans), declared that Gregory VII was no longer pope. In return, Gregory VII excommunicated Henry IV. Excommunication was a big deal back then, much bigger than canceling a State of the Union Address. When the Pope excommunicated a king, it meant that all that king’s vassals were released from their feudal oaths of loyalty to him, and that anybody could invade that ruler’s domains without committing a sin.

But Henry IV beat him to the punch and invaded Italy, forcing Gregory VII to flee Rome. Then, in a supreme act of lay investiture, Henry IV proclaimed his appointee, Clement III, pope.

In England the Investiture Controversy was much less sanguinary, in large part because a very smart bishop, Anselm, of ontological argument fame, designed a compromise that avoided war and fleeing pontiffs. Taking Anselm’s advice, Henry I, King of England and second son of William the Conqueror, resigned his claim to invest bishops with ring and staff, which were the symbols of spiritual authority, but required that all bishops had to be elected in the presence of the king. Anselm’s settlement was eventually put in effect throughout Europe by the Concordat of Worms in 1122.

Control over high Church posts meant better control over your kingdom. Prior to the Reformation, the Church in Western Europe was universal in both name and reality: it had a monopoly on all knowledge and learning, and it had the only organized and regimented bureaucracy that was common across Europe. It had all sorts of internal frictions and contradictions, of course, but at its root it was one organization led by one man. To the extent that any coherent body of law existed in Europe after Rome fell, it was the canon law of the Church of Rome. In an age when the common law in England was still in a preadolescent stage, canon law was a sophisticated and mature product of centuries of work by scholars. It would take centuries for English lawyers to develop the common law we now take for granted.

Bishops controlled the administration and interpretation of the canon law, which did not depend on the king. They believed, and taught their faithful flocks to believe, that the canon law was superior to what little civil law existed. Ecclesiastical courts were to be found at every bishop’s seat (the cathedra), and these courts tried much more than just errors of faith. Because spirituality informed nearly every phase of life, the ecclesiastical courts had an undefined jurisdiction capable of almost unlimited extension, much to the chagrin of feudal and seignorial courts. Marriage, inheritance, theft and usury were all justiciable before the bishop’s seat.

Bishops also handled contract disputes: in an age where most people could neither read nor write, and, long before the doctrine of consideration was even thought of, agreements were customarily confirmed with the sanction of an oath made before witnesses. Breach of an agreement meant a breach of faith, which was a crime in the eyes of the Church. Even down to the present day “good faith” is part of contract law, and bits and pieces of medieval canon law have survived under the heading of equity.

And that’s just the legal side. The Church controlled all communications. It was the internet of its day. If one king wanted to send a message to another, it had to be heard by a priest in the local tongue, translated into Latin, carried overland, and then translated from Latin into the language of the receiving kingdom. (And we thought the old telephone modems were slow.)

The Church was an indispensable tool of the throne’s political messaging as well. In an era without mass communication and a population that was mostly illiterate, bishops told the lowly parish priests what to preach to their flocks every Sunday.

The positions of cardinal, bishop and abbott were important not only because of their legal roles, but also because they were lucrative. Bishops and abbots were often among the largest landowners in an era when land was the predominant form of wealth.

By the mid-14th century, at the height of Edward III’s reign, the old Concordat of Worms was no longer working very well for England. There had been some developments on the ground that impelled a response.

First, Edward III had to deal with the Avignon papacy. For about sixty years popes had resided not in Rome, but in Avignon, France. This wasn’t good for England. The Avignon popes were subject to undue influence, if not outright control, by the French king. Since England and France were in the middle of the Hundred Years War, this did not sit well with Edward III.

The Avignon popes also liked to flex their theological muscle to show that they were still popes, even though they weren’t in Rome, and controlling foreign benefices was an important muscle to flex. A “provisor” was a nominee to an English benefice who had been named by a “provision” from the pope. So Edward III was faced with a situation in which his enemy, France, had substantial control over law, spirituality, communications, and wealth in his kingdom.

This must have really irritated Edward III because, militarily, he was in a strong position. In 1346 he’d won a major victory over the French at Crecy, in northern France, and he had put the Pas de Calais firmly under English control.

As if things weren’t complicated enough already, the Black Death had arrived in England in June 1348. By the summer of the following year it had killed anywhere from 40% to 60% of England’s population. Since the Black Death did not distinguish peasant from prelate, a large number of English benefices became vacant, and the pope in Avignon was busy “provising” their replacements. The upshot was that by 1351 almost all the benefices in England were in the hands of foreigners appointed by a pope under the French thumb.

Edward III’s Statute of Provisors found this situation was “to the damage and destruction of the whole realm.” The statute imposed a penalty on any person attempting to disturb the “canonical order” by asserting any rights of a papal provisor to any bishopric in England. The provisor, together with his advocates and his retinue, were to be arrested and brought before the king’s court to answer for their offense. If found guilty, they would be imprisoned until they renounced any papal provision and found someone to stand surety that they would not re-offend.

All this may seem rather distant, but on reflection some parallels with Brexit become apparent.

 

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AOC

Rep. Alexandria Ocasio-Cortez (D-NY, 14th Dist.)

There’s a lot to digest in the Green New Deal Resolution introduced by New York Representative Ocasio-Cortez.

First, though, I have to hand it to Rep. Ocasio-Cortez. Being referred to just by your initials is a mark of high achievement in American politics. Exactly what it means can be debated, but there can be no doubt that it implies some degree of general recognition among the public. We had FDR. We had JFK. Then came LBJ. Eisenhower was called Ike, of course, but he never ascended to the heights DDE. That was probably better for him since those initials are uncomfortably close to DDT. Reagan was never RR. These instances could be multiplied.

Rep. Ocasio-Cortez has been in office for just over a month and she’s already earned her initials: AOC. Whether or not you like her or her views, she’s gained recognition, and some popularity, because she’s correctly viewed as putting the demos back in (little “d”) democracy. Democracy is not equivalent to populism, but that’s a discussion for another day.

Back to the Green New Deal. Section (2)(C) of the GND Resolution calls for meeting 100 percent of the power demand of the United States through “clean, renewable and zero-emission sources…” That could portend some problems for AOC’s supporters because “renewable” and “zero-emission” are not the same. As Voltaire said, “if you wish to debate with me, define your terms.”

Exelon views nuclear generation as zero-emission. Is nuclear generation “clean”? If you formerly lived near Three Mile Island, Chernobyl or Fukushima, your answer is probably a resounding “no!” Likewise, as people who live (or used to live) in those three places will tell you, nuclear power is zero-emission…until it isn’t.

That’s not to say that nuclear should not be part of a balanced power generation portfolio, but, as  I’ve discussed in the Sparkspread over the last several years, two major problems in nuclear generation have to be addressed: spent fuel disposition and regulatory capture. Dealing with those two issues will go a long way to clearing various energy-related poisons from the American political bloodstream. Unfortunately, there has been thus far insufficient political will to deal with either of these issues.

A ten-year schedule to move the U.S. to 100% renewable electricity generation is a laudable goal. But it will be far more ambitious than JFK’s end-of-the=decade moonshot goal of 1961.

If you want more renewable generation, you’ll need more transmission lines – new ones. Not everybody likes new transmission lines, especially when they come to close to their homes and farms, or affect the vistas of nature in America.

Renewables are generation resources, and while renewable generation forecasting has improved with improved meteorology, renewables are not dispatch resources. If a coal-fired or natural gas-fired station goes down, or if its access to the transmission grid is lost for some reason, that incident may occur at a moment when sunlight or wind conditions are insufficient to enable a renewable generating station to supply power to the system.

That is not to say that renewable generation should not be developed, or that it’s worse than coal or natural gas or nuclear, or that there should be no ambitious plan to substantially expand renewable generation over the next ten years. But every form of electricity generation, just like every other discrete product of human ingenuity, has its problems. I’m a big believer in making no small plans, but at the same time don’t get too far away from the known facts.

 

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Zuckerberg

In response to the Cambridge Analytica/data-scraping crisis, Facebook’s CEO Mark Zuckerberg has said he’s open to “the right regulation.”

You should be very afraid.

Companies as big as Facebook don’t recoil from regulation. They seek it. Regulation brings inestimable advantages, chief among which is the opportunity to capture the regulator. One need not look far to find prior examples.

In the run-up to the Great Recession of 2008, the Federal Reserve under Alan Greenspan treated the largest banks and mortgage lenders not as entities they regulated but as clients they had to help.

The Nuclear Regulatory Commission would be better known as the Nuclear Plant Approval and Preservation Commission.

Nuclear regulators in Japan looked forward to employment with Tokyo Electric Power Company, which had predictable effects on their reviews of plants like Fukushima. These are just a few examples, and we haven’t even touched Big Pharma.

Creation of some new commission to regulate privacy matters on social media would provide a juicy target for cooptation by Facebook’s immense wealth. No federal agency (and presumably it would be a federal, rather than a state, agency) can compete with Facebook’s immense resources, and Zuckerberg’s friends in Congress could control its funding levels year by year. As with Fukushima, regulators would view their time at the agency as a rung on the ladder to a higher-paying job with Facebook. A new statute granting this commission jurisdiction over privacy issues in social media could insulate Facebook from class actions if such matters were reserved to the new agency’s expertise.

When Facebook talks about “the right regulation,” he has in mind a well-trained regulatory spaniel that will run and fetch the frisbee no matter how far Zuckerberg flings it.

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