TUCHMAN THE PROUD TOWER

Just the first few pages of 'End Of A Dream', 
     "Although his roots went back..."
     "The abdication of the rich....."
     "Without land to hold onto...."

Dovetails with some of Bailyn's assessments in The Origins Of American Politics

WHY JUST BLAST CHINA?

Let's look at Japan, for a moment.

Whose payroll has Fukuyama been on, all these years , do you suppose?

I don't know, but I have a guess.

CLASSIC PAST BLAST QUOTE RE CHINA

'"(As for the United States) for a relatively long time it will be absolutely necessary that we quietly nurse our sense of vengeance....We must conceal our abilities and bide our time."

--Lieutenant General Mi Zhenyu, Vice Commandant, Academy of Military Sciences, Beijing.' 

Compare this with, say, Kennan's passage below......

ONE MIGHT HAVE THOUGHT NAIVELY

that the US, with its equally naive multicultural ideology, would have been able to eagerly embrace, socially and economically, newly emancipated blacks, Jews, Catholics, Muslims, Mexicans,  etc., quite readily.

That has emphatically not been the case.

One might have thought, equally naively, that France, for example, after the French Revolution, 'liberty equality fraternity', would be equally open to Protestants, Jews, Muslims, Slavs, etc. 

Although Napoleon gave Jews relative equality at the time of the Empire, this was gradually eroded as the 19th Century unfolded, until one had the spectacle of the Dreyfus Affair in France in the late 19th Century. 

France at the time of WWI was probably as anti Semitic as Germany.

THE MIDDLE EAST FOR IDIOTS

Syria Sunni

Iraq mostly Shia

Turks Sunni

Iran Shia

Saudia Arabia Sunni

Israel Jewish

USA Jewish but playing four sides

Nuclear Umbrella terms search: Mary Poppins

RE POWER AND PLENTY INDUSTRIALIZATION PER CAPITA TABLE 6.3

So many implications emanate from this table for my topics on this blog. Even if, as they say, Bairoch's numbers were based on slender evidence, as they acknowledge, it says more about the trends over that crucial period.

RE CHINA ETC CLASSIC POST RE KENNAN

then think how far back US political and strategic stupidity has gone in this area, and others, of similar ilk.


Kennan (1960s, re 1930 ish): 


"Out of all these ingredients there was brewed the curious view of China that seems to have animated American statesmanship during the war; the picture of a helpless, deserving nation, for whose virtues we alone, among the great powers, had understanding, whose interests we had to sponsor in the face of Japanese enmity and British callousness, and whose grateful support in the postwar period we could take for granted as a mainstay of the world position we hoped to occupy.  China was, in fact, and on this we insisted with a most extraordinary vehemence, to be one of the future great powers--- one of what F.D.R. called the 'four world policemen'"


"In this highly subjective picture of the Chinese, there was no room for a whole series of historical and psychological realities.  There was no room for the physical ruthlessness that had characterized Chinese political life generally in recent decades; for the formidable psychological and political powers of the Chinese people themselves; for the strong streak of xenophobia in their nature; for the lessons of the Boxer Rebellion; for the extraordinary exploitative talent shown by Chinese factions, at all times, in turning outside aid to domestic political advantage."

"It was this idealized view of the Chinese, rather than any illusions about the relationship between the National Government and the Chinese Communists, which was most damaging to our Far Eastern policy.  We did, to be sure, underrate the depth of the antagonism between these two elements.  Our memories of what had transpired in 1927 were certainly shorter (if they existed at all) than were those of Mao and Chiang and Stalin.  There also seems to me to have been a certain naivete, but nothing worse, in our efforts to bring about a political compromise between these two factions, and to induce Stalin to join us in this effort....".  Russia and The West Under Lenin And Stalin, p 374.

WHO WOULD EVER HAVE DREAMED

that the modern state of Israel could come to run American foreign policy?

"...The alternative, clearly, is the for the US to remain tightly allied with Israel in opposition to every other major power in the world, including Britain, France, and Germany.  That has been the goal of Israel and AIPAC for years, and under George W. Bush they achieved it regarding Iraq--with disastrous results....." DK

THE PROBLEM,

with trading domestic commercial and economic interests for ostensible strategic or tactical advantages, is that one ends up having no moral principles or national welfare conscience whatsoever.

The private MNC group, the party of Davos, is on board as long as their interests are protected or sheltered, or they are compensated, subsidized, in other ways, above and against other less powerful domestic interests.

re THE NIXON SHOCK

Professor Kaiser has characterized Nixon's overture to China in 1971 as courageous, in terms strictly of domestic politics, it seems.

How did our erstwhile Asian ally, Japan, view Nixon's overture? Betrayal. 

Of course, Japan had been trading with China, through the back door, so to speak, for decades. Terms search: playing three sides.

Was it merely a coincidence that Nixon had gone off the faux gold standard at about the same time, or was there some connection between the two?

Take a guess which.

Extra credit: Why did we boom post war Japan in the first place?

Extra extra credit: What was wrong with the Morgenthau Plan anyway?

WHO REALLY LOST THE SO CALLED COLD WAR

We did, because we needlessly had boomed Asia, the Middle East, Europe, and elsewhere, who all, now, are stalwartly, sometimes quietly, against us.

The Soviets had done some booming, too, but nothing like ours.

The other, enormous, reason that we lost the Cold War, almost from the outset, is that we allowed the Soviets to develop and deploy nuclear weapons against us. This loss, furthermore, allowed them, during the Cold War,  to assist China in its development of those weapons.

RE WEAPONS OF MASS DESTRUCTION NUCLEAR PROLIFERATION CHINA RUSSIA ETC

Fallout from losing WWII:


Who helped China develop nuclear weapons, 1950s? 
USSR

Who allowed USSR to develop nuclear weapons, only in 1948? 
US

take a look at The Haunted Wood

re the middle east Israel the Milner Group etc

See The Anglo American Establishment, pb,  pgs 167 176

The Milner Group saw no reason why these old darlings should not be able to live happily together in a robust liberal international economic order.

RE DK CURRENT POST THE REAL ISSUE

"...but in fact, what is at stake is much, much bigger, even though the real issue is being treated rather quietly by both sides."

I will scrounge around for what this may be thought to be.

"...Equally determined  Republicans made a comparable alliance 70 years ago with the "China lobby" on behalf of Chiang Kai-Shek's doomed regime in China, and kept a stranglehold on U.S. China policy until Richard Nixon turned apostate, courageously, in 1971....."

Weren't there a lot of powerful Democratic Party administrations, both before, during,  and after, this period, from the China Lobby 'alliance' 70 years ago until 1971, which also maintained more or less the same policy as the Republicans toward China?

Of course, I view booming Asia, in general, as having been a horrific, and unnecessary,  mistake.

THE MODERN STATE OF ISRAEL AMONG CIVILIZATIONS

One of the great blunders, among many, during and after WWI, for which the British were primarily responsible.

SEE also Huntington, The Clash, pb p 48n.

THE ANGLO AMERICAN ESTABLISHMENT

Read this book.

Take a look especially at his remarks in the last full paragraph: 

"...In foreign policy their actions almost destroyed western civilization, or at least the European center of it...."

Most Americans, and many others, especially the British who are among the most really at fault and the most knowledgeable, of course blame Germany, both Wilhelmine, and later Hitlerite, Germany for this.

One has to take a closer look, however, behind the diplomatic scenes, to see what had really been going on among the great powers, and among powerful elites,  through the later 19th Century, and so forth.

RE IS POLYGAMY NEXT

This is just one direction in which one could already see things have been going. 

Why not, for instance, marital bestiality? After all animal rights is still gathering force.  Can't one leave everything to one's pet, under certain circumstances? If not, why not? 

Answer, only some states allow pets as beneficiaries; sounds like another issue for the Supreme Court.
(Extra credit: Does it matter, then, in which state the pet is 
' domiciled ', or even whether the issue of domicile has been raised by an ' ostensible pet domiciliary state '?)

Triads, quadrads, etc.?

Americans, in particular, have poor, complex, and conflicting, social regulatory controls.

RE RECONSTRUCTION

Lincoln could not have gotten anything like the kind of Reconstruction he had claimed he wanted, given the US system at that time, even had he lived.

Even more to the point, had he wanted helpful political and economic Reconstruction conditions, why then Sherman and Sheridan's later campaigns on his watch?

Finally, had he wanted helpful political and economic Reconstruction conditions, why free only southern slaves, as a terrorist strategy, during the conflict, rather than making emancipation a condition of surrender, or of a treaty, or settlement, of some kind afterwards?

Call it Lincoln Lala Land.

Cf recent post re Bobbitt, Moyar.

RE WHY THE FLAG FLEW SO LONG

How long is long? I suppose since 1960, or so.  The Confederate flag did not fly, especially right after the Civil War, for quite obvious reasons.

http://www.scpronet.com/point/9909/p04.html

POINTING OUT INCONSISTENCIES IN SHIELD

is rather like shooting ducks in a barrel, not worth doing.

They are there. You figure them out.

HERE'S A GOOD QUESTION FOR ALL YOU GENIUSES

Was suddenly freeing the slave population of the south (40% or more of that total population), as part of the Civil War, a good, or smart, idea, at that time?

True or false?

It kind of reminds me of, say, the Morgenthau Plan for Nazi Germany, 

or, say, the Bush's adventures in Iraq.....

Lala land......

RE NATION STATES TERRORISM CIVIL WAR BOBBITT

Reading Bobbitt's works, especially passages in Shield, it becomes clear that he viewed Lincoln's Union as what he terms the first nation state. It gets lumped in with all the belligerents of The Long War, and with the strategic implications of total war, with which he identifies the nation state itself as with a moniker.

In his view, it seems, nation states are inherently prone to total war and terror.  See especially the passage in Shield at p 217. This has been an ideological fallacy of the so called Milner Group since the early 20th Century.  I take it that Bobbitt is firmly in that tradition, quibble though he might with Sir Michael Howard, another ' member '.

He characterized Davis' Confederacy as a state nation (remnant), fighting a war, where feasible, only against official military units of the Union, and disdaining guerilla tactics as well as attacks on civilians or property as being undignified, immoral, and ungentlemanly.

Lincoln's Union was not only the first nation state, under Bobbitt's analysis, but also the first terrorist nation state, in that it attacked the state nation- like Confederacy (its own federal territory, by its own definition) in what has been characterized as a strategy, in the end, and ultimately long after, of depopulation and terror. 

The freeing of the slaves (only in the Confederacy) as a war measure was conceived, and was quite understandably treated in the Confederacy, as a terrorist measure against the Confederacy and its population, erstwhile citizens of the US for whom the Union claimed to stand. 

Although there were Confederate guerrillas whose activities could not be well controlled, the Confederate Army apparently did not attack either Northern civilians or destroy their property. Rather like Frederick The Great.

See also Moyar's book on insurgency, the Civil War and Reconstruction Chapters.

I should point out that I do not really agree with Bobbitt's analysis or emphasis on some of these issues, and he might of course claim that I have misinterpreted his material in Shield. But if you disagree with this account, take a look at Shield, take it up with Bobbitt, not me.

LET'S USE THIS PASSAGE TO TALK ABOUT THE NATION STATE AND ABOUT TERROR FOR A FEW MOMENTS

With reference to Bobbitt's works.

"...
Evidence suggests that it was the white South’s terror over the coming of the Civil Rights Movement that revived the spirit of the Civil War in the 1950s, and led the South Carolina legislature to start flying the Confederate flag over the state capital in 1962. The terror of federal intervention on behalf of African Americans was sufficient to wipe out a whole species of southern politician, the New Dealer who was liberal on everything but race. The federal government under Lyndon Johnson did desegregate public accommodations and assure black voting rights, but in response, the white South became—and in the deep South, remains—solidly Republican." 

YOU COULD ALSO CALL IT JUST

The Smell Test

RE THE MENU DESCARTES PLATO DUALISM EPISTEMOLOGY METAPHYSICS TARZAN SMELL TEST

If the final arbiter of the concept of identity in some cases is based on the so called 'sense' of smell, rather than on reason predicated on a dualism of sensation and reflection based on sense data, data based classically and usually on the sense of sight, where does that leave traditional dualist epistemology, and dualist metaphysics?

Think of it as an ' Anti Cartesian Smell Test '.

Of course, the smell test can be confounded: your cat, whose enemy (your other cat) has rubbed against your leg, may bite you. 

Importantly, your biting cat did not make  a 'mistake' about your other cat's identity.

On the other hand, no ape, etc., would have mistaken Esteban Miranda for Tarzan, up close. Neither Cartesian deception, nor Cartesian dualism, are 'options' here.

the menu

By TIM CLYDESDALE

Popular epistemologies are funny things. The latest one slipped into our party unannounced, slowly replaced all the food and decorations, and then stared back blankly when we asked how our Mexican fiesta had turned into a country-western barbecue. Only after the tequila wears off and we piece together the evening do we realize, with embarrassment, that the change has been a long time coming.

For decades, we professors and administrators drank deeply of notions like “knowledge for knowledge’s sake” and “the transformative power of the liberal arts,” paying little heed as the American populace shifted from widespread respect for the academy to considerable skepticism of it. Today our students occupy the leading edge of that popular shift, with no real interest in the elitist notions that we consume so readily. But they are wise enough to keep their views private, given the economic necessity of attending our party.

Our students arrive on our campuses with years of experience in observing disputes about what is and is not known, and with well-established ways of handling such things. For example, should they view Thomas Jefferson as the brilliant author of the Declaration of Independence and a “founding father” of the United States, as a political hypocrite who owned slaves and impregnated them, or as a dead president irrelevant to their own lives but important to their history teacher? Similarly, how should they view global warming, illegal immigration, and evolution?

One of my students put it this way: “It is imperative that someone studying this generation realize that we have the world at our fingertips — and the world has been at our fingertips for our entire lives. I think this access to information seriously undermines this generation’s view of authority, especially traditional scholastic authority.” Today’s students know full well that authorities can be found for every position and any knowledge claim, and consequently the students are dubious (privately, that is) about anything we claim to be true or important.

Contrast that with 50 years ago, when students would arrive in awe of the institution and its faculty, content to receive their education via lecture and happy to let the faculty decide what was worth knowing. Even 25 years ago, that pattern still held among most students. But it holds no more. While students often report satisfaction with their institution and its faculty, after interviewing some 400 students on 34 campuses nationwide, I found few in awe of their institutions or faculty, many averse to lectures, and most ambivalent about anyone’s knowledge claims other than their own.

Of course, this new epistemology does not imply that our students have become skilled arbiters of information and interpretation. It simply means that they arrive at college with well-established methods of sorting, doubting, or ignoring the same. That, by itself, is not troubling. Many professors encourage students to question authority, and would welcome more who challenged and debated ideas. But this new epistemology carries some heavy baggage — indeed, it is inseparably conjoined with personal economics. Short of fame or a lottery win, today’s students recognize that a college degree is the minimum credential they will need to attain their desired standard of living (and hence “happiness”). So this new epistemology produces a rather odd kind of student — one who appears polite and dutiful but who cares little about the course work, the larger questions it raises, or the value of living an examined life. And it produces such students in overwhelming abundance.

This is where many begin the blame game, and where I part ways with them. Polite, dutiful, and disengaged students deserve neither blame nor scorn. They have become exactly what one would expect of those born during the information age and reared in America’s profoundly pragmatic culture. They are, moreover, not all that different from the population as a whole. Aside from adopting new technologies more readily and accepting new familial patterns more quickly, they are very much America’s sons and daughters. Pinning a generational label on today’s students is unhelpful at best and a disservice to all.

A better and more productive response begins with us — faculty members and administrators. We cannot expect a skeptical populace to reverse course of its own accord. The onus is on us to better convey the value that a robust intellectual life adds to the public good. And we need to begin by respecting our students (and the wider public) not just as persons but as the arbiters of knowledge that they have become. Specifically, we must respect students as thinkers, even though their thinking skills may be undeveloped and their knowledge base shallow. Moreover, our respect must be genuine. Students have keen hypocrisy sensors and do not like being patronized.

Respecting students as thinkers means we need to reveal, not hide, the intellectual journeys we have taken, and make transparent the intellectual transformations we have undergone. Respecting students as thinkers thus involves a number of changes, including meeting students where they are, so that they trust us to develop their intellectual skills and expand their knowledge base; balancing our elitist values with democratic and more widely achievable goals; and, perhaps hardest of all, lowering the lofty opinion we hold of ourselves and accepting the public obligation that our privileged position entails. To return to my opening analogy, rather than complain about the disappearance of our fiesta, we need to put aside our sombreros, don cowboy hats, and let our guests teach us a few line dances.

Fiesta traditionalists might start screaming: “You’ve got to be kidding! I didn’t climb to the top of the educational ladder to put on cowboy boots and starting dancing for a bunch of disengaged, consumerist students!” So let me be perfectly clear: I am not asking for more entertainment and less substance in our classrooms. I am asking for a paradigm shift in how we approach our students that parallels the paradigm shift in the broader culture. I am asking instructors to see the two questions that the new epistemology emblazons across the front of every classroom — “So what?” and “Who cares?” — and then to adjust their teaching accordingly.

Back when students held us in awe, sat willingly for lectures, and assigned us the work of deciding what knowledge was worth knowing, we organized our classes around our disciplines. We chose what knowledge needed to be conveyed to students in what order. Now that our students assign us no more authority than anyone else, show no patience for lectures, and decide what’s worth knowing themselves, we need to reorganize our classes. We need to teach as if our students were colleagues from another department. That means determining what our colleagues may already know, building from that shared knowledge, adapting pre-existing analytic skills, then connecting those fledgling skills and knowledge to a deeper understanding of the discipline we love. In other words, we need to approach our classrooms as public intellectuals eager to share our insights graciously with a wide audience of fellow citizens.

Perhaps an example would be helpful. Take the survey-of-dance course, offered nationwide as a way for students to satisfy fine-arts requirements. Instructors traditionally organize this course the way the discipline is structured, beginning with prehistoric dance, following with the diversity of tribal and folk dances, then moving on to the emergence of dance as high art, and so forth. All of those topics are important, mind you, but I can see students nodding off from here.

By contrast, an instructor who respected students as arbiters of knowledge in their own right might begin with the forms of dance students know or do themselves. Next, the instructor could encourage students to articulate the criteria by which they decide which dancers are better than others, and which dance forms are more appealing. From there, the instructor could demonstrate how the dance forms that students already know have evolved out of prior forms and genres, and have a dancer demonstrate evolving styles within a genre or two. Next, the instructor could take the whole class through a dancer’s workout, lest the students think good dancing requires little effort. From there, the instructor could go in a number of directions, such as introducing students to the art of choreography, showing video clips to demonstrate how different choreographers stage the same piece, and illustrating how some of the most innovative choreography is rooted in deep historical and cultural knowledge of dance.

Personally, I prefer the dentist’s chair to the dance floor, but I would look forward to such a class, and so would most students. More important, students enrolled in such a class would sharpen their analytic skills, gain a wider knowledge of dance, and develop respect for both dance and the study of dance that would stay with them for decades. Some would say this is simply good pedagogy — I wholeheartedly agree. Good pedagogy is the product of instructors who respect, understand, and creatively engage their students.

The problem is that too many professors see good pedagogy as optional, as something only for teaching “superstars,” rather than as a set of learnable techniques that critically support our wider purpose. Perhaps those professors assume that an absence of complaints indicates that their pedagogy is “good enough.” But an absence of complaints may indicate only how accomplished students are at appearing polite and dutiful (especially when the professor’s grade distribution suits them).

A slice of humble pie is in order: Just 19 percent of Americans with bachelor’s degrees express “a great deal of confidence in education,” and only 31 percent express the same about “the scientific community” (compared with 28 percent and 43 percent, respectively, among Americans as a whole), according to the 2006 General Social Survey. It is time we disabuse ourselves of the view that obliging and dutiful students are engaged and transformed students.

By respecting students as thinkers and meeting them where they are, we set the stage for good pedagogy and take a critical first step toward rebuilding the public’s trust. But we must be realistic about what good pedagogy can accomplish. It is not a panacea — it will not create a society of lovers of learning in which our social ills will finally be cured. (A well-known pedagogy expert came to my institution and ended his talk with that very claim.) Even the best teachers will not convert every student into a lifelong learner who embraces knowledge for its own sake. That is a commitment that must come from within; it is an intentional decision to swim against powerful cultural and economic currents.

We need to understand that college students with an intrinsic love of learning, an appreciation for complexity, and a drive for discovery almost always possess those traits before they report to our campuses. Though we can fan into flames the sparks that these future intelligentsia bring with them, except for the occasional late bloomer, we fail miserably at creating sustained intellectual fires among the vast majority of our practical, credential-driven students.

A better and more widely achievable educational goal should therefore be to inculcate a respect for learning and the pursuit of knowledge. I doubt anyone can teach another to love learning, and the attempt frustrates students and professors alike. (Imagine a dance instructor trying to turn every student into a season subscriber to the local ballet company.) But I do believe effective teaching can instill respect — specifically, respect for the critical work we do as scholars and educators. Such respect is the seed from which the public’s trust in us will grow.

Sowing that seed is essential, but seeds also need water, soil, and sunlight to flourish. Likewise, the work of public intellectualism must go on outside the classroom as well. Others have made that case eloquently in these pages, so I shall simply underscore their appeals with a few suggestions.

First, I applaud the efforts of leaders of scholarly associations to promote and reward the work of public scholarship, despite membership pressure to preserve the status quo, and I encourage those associations to continue that work. Second, I respect the efforts of many agencies that support academe to promote general dissemination of research results and encourage other sources of financial support to do the same. To be sure, there is a place for highly specialized research programs; I simply ask program officers to ensure that each call for proposals includes a question about how results will reach a general audience and that responses to that question be considered in the proposal’s evaluation.

Third, some of us need an attitude adjustment. It is not just residential-college students who live in a bubble — many faculty members do as well. We take for granted our privileged status, become consumed by petty controversies, talk only to ourselves, and ignore the wider public that makes our work possible. It is tempting, I know, to want to curse the culture and withdraw into like-minded enclaves. But neither catharsis nor retreat will satisfy those who demand accountability, raise financial support for public higher education, or generate more students who cherish college as an opportunity to learn and think.

Even though our interests often diverge from those of the general public, we remain beholden to it. With a few adjustments at our end, we can begin to rebuild trust among a critical mass of fellow citizens: our students. Our fiesta is clearly over, but a Tex-Mex party has the potential to please guests and hosts alike.

THE STRUGGLE FOR JURISDICTION OVER PROCEDURE III

THE BASIS FOR EXCLUSIVE JURISDICTION

     What was the Court's assertion of exclusive jurisdiction in In re Clarification based on?   It was based in part on the fact that the Court had concluded that the wording of the 1957 grant had vested it with exclusive jurisdiction.  Why had it come to believe this, and how is this related to the 1973 holding? After all, the interpretation of exclusive jurisdiction did not follow from the wording of the 1973 revision:  to say the Supreme Court ‘shall’ does not necessarily mean that the legislature ‘cannot’.

      One important basis for the Court’s In re Clarification rationale, alluded to by both Earl and Means, is the fact that legislative authority over procedure is not spelled out in the constitution, whereas since 1957 the Supreme Court’s authority had been.  The Supreme Court subsequently expressly inferred, from this absence of an express grant to the legislature, that the legislature has no constitutional authority over procedure. 23   Although Means considered this inference to be far fetched, he failed to address, other than by a hollow ‘argument from history’ under 2) above, how the express grant to the Court in 1957 did not by implication deny authority over procedure to the legislature. He also failed to address the larger fact that the express 1957 grant rendered prior jurisdictional history obsolete.

                                       THE SEPARATION OF POWERS CLAUSE

     Clearly, an important but implicit element of the In re Clarification rationale was  the Separation of Powers clause:

The powers of the state government shall be divided into legislative, executive, and judicial branches.  No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.24

     The views of Chief Justice B.K. Roberts were instrumental in fashioning the 1973 revision. 25

He had a strong separation of powers perspective.  Regarding one proposal for revision, he said:

Frankly, I am opposed to the proposal as outlined because it tends to make the Judicial Branch almost entirely subservient to the Legislature.  My concept of government is that it is divided between the Executive, Legislative, and Judicial branches and that each is to a large degree autonomous.  The legislature prescribes the rules for its operation, the Cabinet prescribes the rules of operation for the Executive, and the Supreme court prescribes the rules for the Judicial, and frankly, I do not believe there is any more logic in having the Legislature write the rules for the Judiciary than there would be in having the Supreme Court write the rules for the Legislature.26

      Though not explicitly cited, the separation of powers requirement also explains the reference in In re Clarification to State v. Smith and Figgers, supra., a case holding a statute authorizing interlocutory appeals from pretrial orders unconstitutional since jurisdiction to entertain such appeals may be granted only by rule of the Supreme Court, under art.V, s 5(3),. What better example of what J. Roberts referred to above as an attempt to have “...the legislature write the rules for the judiciary?”         

       In re Clarification made quite explicit the separation between the legislative and judicial branches of government based on the separation between their respective powers to regulate subject matters, correspondingly divided into the mutually exclusive domains of substantive and procedural law: “The distinction between practice and procedure, which is regulated by the Supreme Court and substantive law which is regulated by the Legislature, is discussed in a concurring opinion, In re; Florida Rules of Criminal Procedure....” 27    

                                          THE 'PUBLIC POLICY' DIMENSION

     What other tendencies affecting the distribution of governmental functions influenced the In re Clarification opinion?

          Means’ polemical articles claimed that what he called ‘Democratic Principle’ assigns the primary role in determining public policy to the legislature, and that In re Clarification was on a collision course with the Democratic Principle to the extent that public policy issues are as likely to be procedural as substantive. 28

      He described and criticized the Court’s ‘expanding’ role in determining public policy issues, citing Shingleton v. Bussey, 223 So.2d 713 (Fla. 1969), in which the Court had construed an existing rule to authorize direct actions by insurers against their insured tortfeasors in part by ‘weighing and measuring certain countervailing public policies,’ and in which public policy was characterized as “...a molding device available to the judicial process by which changing realities and the attending manifested rules of fair play may be incorporated into our corpus juris.” 29    

     Means quoted Justice Frankfurter regarding the relationship of policy to procedure in judicial rulemaking as follows:

...the history of American freedom is, in no small measure, the history of procedure....some clearly procedural rules are of such great general significance that they should not be modified except by a procedure, such as legislation or constitutional revision, that involves general political assent.  The right to jury trial, for example, is in this category.

     The proper boundaries of the rulemaking power must therefore be worked out by processes that go beyond strict legal definitions. 30

     If some rules are so important that they should not be modified except by general political assent, this arguably presents an area of rulemaking lying preponderantly within legislative control.               Means' criticism of the Court’s substantive rights rationale is valid to the extent that the substance/ procedure dichotomy leaves no middle ground in the area of rules having policy implications.        

     However, Means’ criticism, made in isolation from other related trends, that judicial jurisdiction  over procedure has been unreasonably expanding at the legislature=s expense, tells only part of the story, and fails notably to discuss possible causes for this trend.

       Many factors have increased the tendency toward legislative solutions for matters once controlled by case law: the modernization of society, increasingly specialized institutions, powerful interest group legislation, consumerism and consumer protection, broader police power and public policy regulations, and other influences.  

     Portions of fields of “substantive” law, such as tort for example, once controlled almost exclusively by the judiciary, have become, after “tort reform” began, the subjects of legislation specifying rights and remedies, as well as rules of procedure. 

Thus, although Earl had characterized the rule making power as “inherently uncontrollable”; on the other hand, the law making power, exercised to some extent at the expense of historic judicial subject matter prerogatives, has shown itself to be so as well.

            This trend, toward greater legislative control over fields of law historically controlled by the judiciary, may in part account for a trend toward moderating, then toward eliminating, judicial deference. 

          In my view, it is partly within the context of, and in reaction against, this seemingly inexorable tendency, to shift power over substantive law from the judiciary toward the legislature, that the Court’s claim to exclusive jurisdiction over procedure arose, and should be scrutinized.    

                      SUMMARY OF ANTECEDENTS TO IN RE CLARIFICATION

Societal trends, constitutional law issues, inferences from case law, and separation of powers rivalry, have been invoked to try to explain the Supreme Court’s position on its jurisdiction over procedure. 

     Greater judicial control over procedure in Florida began slowly, originally as a response to federal criminal procedural reform. 

     During the 1960s, trends in several different fields developed and converged.  In state constitutional law, the legislature extended control at the expense of the judiciary over areas of law traditionally governed by common law stare decisis.  The policy of  judicial deference to acts of the legislature weakened.  The substantive right rationale was increasingly used by the judiciary to define and divide functions of the legislative and judicial branches of government differently and more rigorously, and to assert that procedural areas were constitutionally off limits to lawmakers.   The separation of powers clause played a new and greater role for the judiciary in defining the nature and extent of its domain against ‘encroachment’ by the legislature.  The legislature took steps to limit 1957 rulemaking jurisdiction previously vested in the Supreme Court, and relations between these two branches of government grew more adversarial and tactical during this time. 

Ultimately, when the legislature formulated the 1973 Article V amendment partly to check ‘unfettered’ judicial jurisdiction over procedure, the Court responded not only that it continued to have exclusive jurisdiction, but strongly hinted that the ground of its exclusive jurisdiction included not just Article V but also the separation of powers clause in Article II.   

1. See generally: W. L. Earl, The Rulemaking Power of the Florida Supreme Court: The Twilight Zone Between Substance and Procedure, U. Fla. L. Rev. Vol. 24, 1971, p. 87 at 88.  

2. Levin & Amsterdam, In Earl, Id. p. 443 n. 12.

3.1955 Fla. Laws 262, ch. 29737; see E. Means, The Power to Regulate Practice and Procedure in Florida Courts, Fla. B. J., Vol.54, Num.4, April, 1980, p 442.

4. Bluesten v. Florida Real Estate Comm., 125 So.2d 567 (Fla. 1960).

5. Means, Id., p. 277; Earl, Id. at 94; Florida Law Revision Commission, Study of Criminal Law and Procedure of Florida 62 (Tallahassee, n.d.(1970).

6. See infra; Broward County v. Surette, 281 So.2d 481 (Fla. 1973).

7. Id. pp. 94, 95.

8. See generally: E. Means, The Power to Regulate Practice and Procedure in Florida Courts, 32 U. Fla. L. Rev. (1980), 442, at 447, 461.

9. Earl. Id. pp. 94, 95.

10 Means, Id., p.277; Earl, Id., p. 94; See: Jaworski v. City of Opa-Locka, 149 So.2d 33 (Fla. 1963); Garcia v. State, 229 So.2d 236 (Fla. 1969); Barton v. State, 193 So.2d 618, 626 (Fla. 2nd DCA 1967).   

11. Re Florida Common Law Rule 61, J. T. Wigginton, ANew Florida Common Law Rules,@ 3 U. Fla. L. Rev.. 1 (1950), cited in Wesley Constr. Co. v. Yarnell, 268 So.2d 454, at 455, (Fla. 4th DCA 1972).

12. Earl Id. p. 90.

13. Id. p. 95.

14. Id., p. 91; State v. Furen, 118 So.2d 6, 11(Fla. 1960).

15. State v. Furen, supra., Earl, Id. at 93.        

16. See also: the discussion of the definition of practice and procedure in State v. Furen, 118 So.2d 6 (Fla. 1960).

17. Earl, Id.

18. Means Id p. 472.

19. Means, Id. p. 466.

20. Surette, Id. p. 482 n.1

21. Id p. 459.  

22. Id p. 459-461.

23. Gonzalez v. Badcock=s Home Furnishings Center, 343 So.2d 7, 8 (Fla. 1977).  See also Carmel v. Carmel, 282 So.2d 9, 10 (Fla. 3rd DCA 1973).

24.  Fl. Const., art. II, sec. 3.

25. Means, Id. p. 466.

26. Id. p. 466; see p. 467 n.164.

27. See also, State v. Furen, supra.

28. Means Id p. 476, 477. 

29. Shingleton at 715.

30. Means, Id. P. 477.

THE STRUGGLE FOR JURISDICTION OVER PROCEDURE II

SUBSTANCE VERSUS PROCEDURE

      By 1960, the same year in which Bluesten was decided, the Court adopted a 'substantive right' rationale for its delineation of the boundaries between substantive and procedural law. This rationale’s foundation is that the separation of powers clause implicitly prohibits rulemaking that abridges, enlarges, or modifies any substantive right. 14

     The Supreme Court has defined procedural laws by contrast with substantive laws. Application  of the substantive right rationale to determine the scope of judicial rulemaking has been based in practice on definitions that distinguish procedure and substance: “The validity of  (a rule)  turns on the meaning of  ‘practice and procedure’ in relation to the courts.” 15

     In In re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla. 1972), in Justice Adkins’ Concurring opinion, cited in In re Clarification, Id., the Court defined ‘procedure’.  Under Justice Adkins’ definition, the domain of procedure is broad:

Practice and procedure encompass the course, form, manner, means, method, mode, order, process  or steps by which a party enforces substantive rights or obtains redress for their invasion.  “Practice and procedure” may be described as the machinery of the judicial process as opposed to the product thereof.   16 

     Earl described the problem of determining the confines of practice and procedure.  The prevalent view earlier in the century had suggested a broad ‘twilight zone’ in which procedural and substantive law were virtually indistinguishable.

      Earl argued, as virtually all writers have, that the substance/procedure distinction is unhelpful,  existing definitions are not useful, and the distinction is misleading except in a few self  evident instances. 17

     Nevertheless, for reasons to be further explored, the Court adopted a sharp distinction between substance and procedure, between substantive rights versus rules, as a way of distinguishing governmental functions and powers.

II.                                   SUPREME COURT VERSUS LEGISLATURE : 

                     IN RE CLARIFICATION OF FLORIDA RULES OF PRACTICE AND

                 PROCEDURE (FLORIDA  CONSTITUTION, ARTICLE V, SECTION 2(a))

     The 1971 Legislature proposed a constitutional  revision, effective January 1, 1973.  Sec.2(a) of the new Article V vested rulemaking authority as follows:

“The supreme court shall adopt rules for the practice and procedure in all courts ....  These rules may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.”

     Shortly after adoption of this constitutional amendment, the legislature enacted several statutes which were obviously procedural in nature.  In declaring these statutes unconstitutional, the Supreme Court in In re Clarification essentially reiterated its position in Bluesten,  supra., without citing it, that its jurisdiction over procedure was  exclusive, in spite of  the new  repeal provision: “The legislature has the constitutional right to repeal any rule of the Supreme Court by a two-thirds vote, but it has no constitutional authority to enact any law relating to practice and procedure.  See State v. Smith and Figgers, 260 So.2d 489 (Fla. 1972).” Id. at 204.  The Court thus expressly excluded the legislature from lawmaking in the area of procedure.

     The holding explicitly divested the legislature of procedural jurisdiction over all laws it had previously enacted.  Procedural portions of these laws could no longer be amended by the Legislature, and were, as it were, ‘frozen in time’.  Means described some of the practical problems with blanket adoption:

Blanket adoption fails to inform practitioners of which statutes have been so adopted.  Nevertheless, those adopted are supposedly thereafter removed from the power of the legislature to amend....The statutory sections continue to be published in the Florida Statutes.  The user has no way of knowing whether a particular section has been superseded or continued as a rule.  More importantly, the legislature has no way of knowing whether a particular section is subject to amendment or appeal.  It has even been conjectured that a particular statute may have been superseded in part and continued in part by such blanket adoption.  Even with specific adoptions, it is possible for the court to change its mind as to whether a particular matter is substantive or procedural. 18

     In re Clarification overruled Ch 73-72 which purported to amend Fl. St. 53.051, a statute which the Court asserted it had previously adopted as a rule by promulgating the 1967 revision of the Rules. The Court stated “the 1967 adoption as rules of the court of all statutes which have not been superseded or may be in conflict with the rules is primarily a matter of convenience or administrative expediency.  Such adoption avoids the question of whether a matter lies within the field of substantive law or procedural law”.   The characterization of the effect of adoption as ‘mere expedience or convenience’ misrepresents its actual consequences, as the Court’s subsequent reasoning bears out: adoption is an assertion that a statute is procedural.   Far from ‘avoiding’ decisions on substance versus procedure, blanket adoption decides matters to be procedural and brings them permanently under judicial rather than legislative jurisdiction (unless legislatively vetoed).  All that blanket adoption avoids is the spelling out of which matters have been brought under the Court' exclusive jurisdiction.   The Court’s further holding bears this out: “The fact that this Court may adopt a statute as a rule does not vest the Legislature with any authority to amend the rule indirectly by amending the statute.  In other words, an attempt by the Legislature to amend a statute which has become a part of rules of practice and procedure would be a nullity.” 

     The Court at this point was discussing a statute which had been adopted by Rule in 1967 under the 1957 grant of rule making authority.  A plain reading of the opinion indicates that the Court was asserting in 1973 that this 1967 adoption as a rule had worked exclusive jurisdiction over this statute under the former, 1957, grant. As this article has shown, this reasoning was merely consistent with its prior holding in Bluesten in 1960.

     Means, writing as a partisan against exclusive jurisdiction in 1980, claimed that D’Alembert, the Chairman of the House Judiciary Committee, ‘mistakenly’ considered the Court’s jurisdiction to be already exclusive in 1971. 19   However, the language of the 1957 grant lent itself to interpretation as an exclusive grant.  Id. p. 447.   Furthermore, D’Alembert was working in 1971 on a constitutional revision intended by him to check the Court’s jurisdiction precisely because no check was thought by the legislature to exist.  Finally, the In re Clarification Court in effect acknowledged that its jurisdiction had been exclusive since 1957, a fact then long indicated in Bluesten.  Put another way, its hindsight that its jurisdiction had become exclusive in 1957 became “20/20” in 1973.  If, as Means asserted, D’Alemberte was mistaken in believing the Supreme Court’s procedural jurisdiction was exclusive in 1973, D’Alemberte was nevertheless in very good company.   

       Means analyzed whether In re Clarification rested on the 1973 revision of article V.  He reported that the revision=s proponents did not intend this result, and that the Court had not relied on the 1973 constitutional revision for its holding. Id p. 467. This conclusion is reflected in Broward County v. Surette, 281 So.2d 481 (Fla. 1973), issued the same day as In re Clarification, dealing with a joinder statute found to be in conflict with a rule.  Surette did not refer to In re Clarification or rely on it, but relied instead on the 1957 grant for holding Fl. St. 455.06(2) unconstitutional, stating that "the revised Art. V, effective January 1, 1973, contains a similar provision in Art. V, s. 2(a)." 20

      Means found ‘implied’ support for the In re Clarification holding in three rationales:

1) that absence of an express grant of  legislative authority over practice and procedure implies an intent that the legislature shall not have such authority; 2) that the authority to regulate practice and procedure cannot coexist in both the court and the legislature, and an express grant was made to the court; or 3) that application of the maxim expressio unius est exclusion alterius to one or the other of the components of the constitutional grant of rulemaking authority implies that the legislature is to be excluded from the regulation of practice and procedure.  21

     Means found all of the  these grounds to be inadequate.  His answer to:

     1) above is that, as to the legislature, a state constitution is a limitation not a grant of authority, and the legislature possesses all authority not expressly or impliedly denied by the constitution.  He claimed that the legislature’s rule making authority was never challenged prior to 1973.

     2) above is rebutted by an ‘argument from history’: the authority coexisted in both branches throughout the history of the state until 1973.  

     3) above is rebutted by the explanation that the maxim should be used only in ascertaining true meaning, and not as a rigid rule of universal application, especially where there is a rational alternative explanation for a provision.  Means found rational alternative explanations for the 1973 grant not excluding legislative rule making.

     However, Means’ analysis under all three is somewhat confounded by his failure to cite or interpret Bluesten.   22

THE STRUGGLE FOR JURISDICTION OVER PROCEDURE I

   Several useful and important articles have been published on this subject since this article was drafted. 

So, it is not the last, or even most important, reference, for this group of topics, even in this one state.         

THE STRUGGLE FOR JURISDICTION OVER PROCEDURE IN FLORIDA

                                                                    PART ONE

I.                                                           INTRODUCTION

          Jurisdiction over procedure has been one of the main frontiers of conflict and accommodation between the judiciary and the legislature for over 30 years.  The Supreme Court has now long claimed exclusive jurisdiction over procedure. The legislature has often failed to acknowledge, and sometimes to accept, this claim.  Important constitutional questions involving the proper powers of these branches of government are at stake.     More practically, lawyers in many fields have long been confounded by the need to reconcile statutory procedures with discrepant or conflicting rules of court. 

          This article summarizes and comments upon modern legislative and judicial efforts to control jurisdiction over procedure in Florida, with special reference to civil procedure, and deals with existing scholarship on this subject. Its scope requires that it can be only a survey of the topic.

      This subject overlaps many areas including state constitutional law, legislation and litigation in disparate fields, and public policy issues.  These areas will be discussed to the extent necessary to illuminate developments in jurisdiction over procedure.  

     Part I covers the subject from the early 20^th Century up to 1973, generally follows a chronological account, including exegesis and criticism of existing scholarship, statutory and decisional law, and contains topical treatment of issues necessary for an account of the ground of the Supreme Court=s assertion of exclusive jurisdiction over procedure.

                            HISTORY OF JURISDICTION OVER PROCEDURE

      A court rule is a judicial order directed against all persons within its scope. 

      Prior to the 1920s, judicial rulemaking in Florida was limited to administrative matters, administration of the bar, and regulation of court business, because such matters were considered within the inherent powers of courts by virtue of the constitutional separation of powers.1 

     Nationally, the movement away from legislative control over procedure came with federal reforms in the 1930s.  The rationale for greater judicial control over rulemaking has been summarized as follows:

Legislatures have neither the immediate familiarity with the day-to-day practice of the courts which would allow them to isolate the pressing problems of procedural revision nor the experience and expertness necessary to the solution of these problems; legislatures are intolerably slow to act and cause even the slightest and most obviously necessary matter of procedural change to be long delayed; legislatures are subject to the influence of other pressures than those which seek the efficient administration of justice and may often push through some particular and ill-advised pet project of an influential legislator while the comprehensive, long-studied proposal of a bar association molders on committee; and legislatures are not held responsible in the public eye for the efficient administration of the courts and hence do not feel pressed to constant reexamination of procedural methods.  Moreover, it must be remembered that a very large part of maintaining maximum effectiveness in the courts does not lie in drastic wholesale procedural reform, but in the necessary minor alterations of single rules from time to time as experience dictates, and such small matters as these inevitably fare badly when they must compete for legislative attention. 

   

 William  L. Earl  summarized the early history of rulemaking reform in Florida as follows:

Basically, Florida followed the national pattern of rulemaking reform, but a decided judicial reluctance to exercise existing rulemaking powers resulted in what has been termed a A checkered history@ of procedural reforms.  In 1940 the Florida supreme court held its inherent powers did not encompass the power to promulgate civil rules of procedure patterned after the federal rules.  Petition of Florida State Bar Assn., 145 Fla. 223, 199 So. 57 (Fla. 1940).  Despite intervening passage of an enabling act, the court in 1945 again rejected an opportunity to promulgate civil rules of procedure. Petition of Florida State Bar Assn., 155 Fla. 710, 21 So.2d 605 (Fla. 1945). Id. p. 88. 2

     In 1955, two years prior to the first express constitutional grant of rulemaking authority to the Supreme Court, the legislature authorized the Court to promulgate rules for practice and procedure in all courts, and such rules were to prevail over any statutes with which they conflicted. 3

     The Supreme Court obtained express constitutional rulemaking authority for the first time in 1957.  Section 3 of new Article V provided: “The practice and procedure in all courts shall be governed by rules adopted by the Supreme Court”.  This 1957 wording was subsequently held in 1960 to have vested exclusive jurisdiction over procedure in the Supreme Court. 4   

     However, previous commentators in 1971 and 1980,  Earl and Ernest Means, believed that it was never so held by the Supreme Court during the time this provision was in force. 5   These authors were apparently, and perhaps suspiciously, unaware of, and failed to cite, Bluesten.   The 1957 Article V was subsequently interpreted to have vested exclusive jurisdiction in the Supreme Court in In re Clarification of Florida Rules of Practice and Procedure (Florida Constitution, Article V, Section 2(a)), 281 So.2d 204 (Fla. 1973). 6

     Earl’s Article, appearing in 1971, found the scope of the 1957 constitutional grant of procedure problematic. He did not acknowledge that it exclusive jurisdiction, but suspected that it might have.  He had concerns that it was not clearly limited, that the rulemaking power is inherently uncontrollable”, and that the legislature had no express constitutional authority over procedures. 7

     Nevertheless, most procedural legislation after the 1957 revision, and the Bluesten decision, went unchallenged by the Court and belied exclusive judicial jurisdiction, resulting in apparent de facto shared jurisdiction from 1957 to 1973. 8  

    Additionally, the Court failed to adopt rules for several clearly procedural areas during this period, a fact which has been construed as evidence that it did not exercise exclusive jurisdiction.9  

     The Court generally held during the 1957 to 1973 period that rules ‘superseded’ statutes to the extent of conflict between them.  10

      The Court also during this period continued to defer to Aspecial statutory procedures@ under Rule 1.010 where these procedures were claimed to conflict with other rules.  For example, the year after the Court’s constitutional rulemaking authority was made express, Harley v. Bd. of  Public Instruction of Duval County, 103 So.2d 111, (Fla. 1958), dealt with a conflict between a special statutory procedure, a general law,  and Rule A of the 1954 Rules, over the time within which to file a  petition for certiorari. The terms of the special statutory provision were held to control over the general law and over the conflicting Rule, based on the exception found in Rule 1.010.

     The applicability of the 1954 Rules, and subsequent Rules, has been restricted with respect to “special statutory procedures”.  Rule1.010 provides in part, “These rules apply to ...all special statutory proceedings....The form, content, procedure, and time for pleading in all special statutory proceedings shall be as prescribed by the statutes governing the proceeding unless these rules specifically provide to the contrary.”  

The reason for restricting the applicability of the rules with respect to statutory proceedings is evident.  Florida has in its statutes many special proceedings, such as eminent domain and bond validation, in which each step is clearly specified.  The form of the pleadings required therein is relatively simple, and the time for filing them is greatly accelerated as compared to the old common law system of procedure.  Modification thereof by general rules is accordingly unnecessary, and might well produce undesired results in practice.  11

     Earl summarized the 1960s history of rulemaking reform in Florida as follows:

   Modern rules of civil procedure, abolishing the distinction between law and equity, were not adopted by the Florida supreme court until 1967, eleven years after its investiture with constitutional rulemaking authority.  The court’s entrance into criminal rulemaking was the response to the United States Supreme court’s directive in Gideon v. Wainwright.  Criminal Rule 1 was adopted to avoid chaos by regulating the administration of post-conviction relief proceedings of indigent defendants, which Gideon held had been denied the right to appointed counsel.  The first comprehensive body of criminal rules was not implemented in Florida until 1968.  Since most were patterned after existing procedural statutes, they did not represent an aggressive or innovative assertion of the court’s authority. 12

     In 1967 The Rules of Civil Procedure were promulgated.  The order adopting the rules, In Re: Florida Rules of Civil Procedure 1967 Revision, 187 So.2d 598 (Fla.), provided A all statutes not superseded by the rules or in conflict with the rules shall remain in effect as rules promulgated by the Supreme Court.@ 

     What might be characterized as ‘discretionary’ judicial deference to special statutory procedures remained intact under Rule 1.010.

     The wording, “...shall remain in effect...”, also contained in the 1967 Florida Rules of Criminal Procedure, suggested that the legislature continued to have procedural authority in these fields: 

a judicial determination that procedural statutes remain effective as court rules does not negate the fact that legislative revision of such statutes implies an affirmative legislative role in the regulation of practice and procedure.  If the constitutional rulemaking power of the court is in fact exclusive, such legislative actions may be unconstitutional. 13