Of Retrograde Analogy and Conflicts of Logic

As a matter of constitutional law and federal statute, President Donald J. Trump has no conflicts of interest. This is not a statement of partisan sentiment. It is a statement of prima facie legal fact.

The concept of “conflict of interest” is not a category inherent in the nature of things; like the categories “personal property”, “real property”, and “fixed property” as legal categories of property created by law and applied to things in accordance with the legally defined meanings of such terms, the category “conflict of interest” is a legal category created by statue and subject to the definitional scope and limitations specified in such statutory text.

Like legal categories such as “contract” (think of the “Social Contract” theory advanced by Enlightenment legal philosophers) and dicta such as “clear and present danger” which have obtained usage far beyond their strict and original meaning, the original term and its context have given way to analogical predications of such terminology. This is all well and good, as both univocal and analogical prediction are natural operations of human language.

A problem arises, however, when a term commonly predicated analogically and thereby extended beyond its strict and original meaning is then predicated univocally of a subject capable of being predicated of univocally under the original meaning of the term wherefrom the analogical predication arose. Such abuse of logic, language, and law I have termed Retrograde Analogy.

Retrograde Analogy

When a conceptual category is abstracted from phenomena­—or, in the case at hand, defined by statute—and is assigned a term (e.g. “conflict of interest”), such assigned term is univocally predicable of the phenomena from which such conceptual category is abstracted. If the assigned term is applied to a similar yet distinct conceptual category, the term is predicated analogically of the differentiated conceptual category.

At this point in the logical flow of language, the term as originally used has undergone a slight modification in meaning; while the new meaning of the term is not wholly unrelated, neither is it wholly identifiable therewith. Wherefore Aquinas calls such analogia (for a philosophical treatment of the logic of analogy, see The Logic of Mystery in the Concept of Analogy). Insofar as the original term has taken upon itself an analogical meaning, however, a new term has been created which is thereby non-predicable—at least univocally—of the original phenomena encompassed by the original conceptual category abstracted from the latter.

Insofar as the analogical term is predicable of phenomena categorically distinguished from phenomena univocally so predicated of, such analogical term has become a true term with all the linguistic and logical properties inherent therein. A distinct conceptual category has been created from the abstraction of the distinguished phenomena, and the analogical term qua term will naturally evolve (i.e. ‘morph’) into yet further terms predicable of phenomena distinguishable from the phenomena encompassed by the analogical predication of the original term.

In this process, a new analogical term is created from the analogical predication of the original analogical term qua term; this is the process of linguistic conceptual development, the means whereby money was analogically predicated of Monopoly money, which in due course became analogically predicable of worthless compensation generally, and which may become analogically predicable of a fourth as yet uncreated conceptual category of phenomena. The linear progression of linguistic development constitutes a 1-way street as it were (to analogically predicate of the term univocally predicable of a category of municipal infrastructure [let the record reflect that the term retrograde analogy is itself an analogical predication of the term “retrograde”, which is itself univocally predicable of moving geometrical objects, not conceptual categories of law or logic]).

The forward movement of language is as natural a property of verbal communication as verbal communication itself is of human nature. The perversion of speech consists in the systematic attempt to overrule the linearly forward-moving property of linguistic development by the intentional introduction to the phenomena encompassed by a preceding conceptual category the analogically predicable term derived therefrom—retrograde analogical predication that contravenes the very nature of language. To univocally predicate a term of analogically related phenomena constitutes a high crime and misdemeanor against the very concept of language; if Retrograde Analogy escapes conviction in the Court of Public Discourse, such acquittal shall constitute the death of the linguistic rule of law and the birth of predicational mob rule.

 

Conflicts of Logic

To cite the venerable authority Black’s Law Dictionary—regularly cited by Federal Courts as quasi-prima facie evidence of the authentic meaning of legal terms—a “conflict of interest” is a  

[t]erm used in connection with public officials and fiduciaries and their relationship to matters of private interest or gain to them. Ethical problems connected therewith are covered by statues in most jurisdictions and by federal statutes on the federal level. Generally, when used to suggest disqualification of a public official from performing his sworn duty, [the] term “conflict of interest” refers to a clash between public interest and the private pecuniary interest of the individual concerned.[1]

Trump is alleged to have business holdings that constitute a conflict of interest with his current constitutional office of President of the United States, an office created by the U.S. Constitution in Article II, Section I, in contradistinction to an office created under the U.S. Constitution’s grant of legal authority, such as the office of the Secretary of State, an office created under the revised constitution by Act of Congress on July 27, 1789 as the “Secretary of the Department of Foreign Affairs”[2] and whose occupant is “appointed in consequence of this act”[3]. The distinction is crucial for the matter at hand.

Qualifications (or disqualifications) cannot be imposed by statute upon offices created by the Constitution, since the statues themselves are created by means of legislative power derived from Article I, and since a lower law cannot contradict a higher, it would be logically improper for a statute (a lower law) to contradict the Constitution (a higher law) by imposing further qualifications not decreed by the Constitution itself. By contrast, offices created under the constitution are subject to the statutory imposition of whatever qualifications the Congress deems appropriate—insofar as these do not themselves contravene the Constitution itself—for both office and statute are on juridically equal constitutional footing qua creatures of the Constitution. An office created by the Constitution, however, is not a creature of the Constitution, but constitutes a constituent part of the Constitution itself. Consequently, the imposition of further qualifications for the office holder to validly hold his office can be accomplished solely through the procedure of constitutional amendment defined in Article V.

Since such an allegation is necessarily understood as an allegation of fact in violation of statutory law, it is improper to impose any non-legal predication—analogical or otherwise—upon such term in the legal context of such allegation, and the legal meaning of the term “conflict of interest” by right ought to be predicated thereof. But Trump’s alleged conflicts of interest are non-existent by the body of statutory law under which such term obtains legal meaning and injunctive force. Wherefore Trump’s alleged conflicts of interest are non-existent insofar as the term “conflict of interest” is understood as a univocally predicable term of juridical art.

Legal terms acquire legal meaning solely through the legislative-constitutional context under which such terms originally acquired substantive content. In the case before us, the original legal meaning is patently inapplicable. Wherefore I declare that Trump has no conflicts of interest under the American system of federal constitutional law. Rather, his legion of legally illiterate detractors have manifested a conflict of logic neither present in the law of the land nor in the nature of things; in the absence of legal fact they have created a legal fiction in blatant contravention of constitutional law and linguistic logic: Retrograde Analogy.

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Original idea Feb 6, 2017, 9:55am

Blogpost started Feb 14, 2017, 8:15pm.

Continued Jul 9, 2017, 9:15pm.

 

[1] Black’s Law Dictionary, 5^th Edition, pg. 271

[2] United States Statutes at Large, Vol. I (Boston: Charles C. Little and James Brown, 1845), An Act for establishing an Executive Department, to be denominated the Department of Foreign Affairs (approved July 27, 1789), Section 1

[3] Ibid., Section 4

The Draft, Justice, and the Involuntary Deprivation of Constitutional Rights

The draft (especially the sex-selective draft) should be ruled unconstitutional. Reading the previous sentence, you’re probably thinking that I’m a gung-ho sexist draft dodger from the Vietnam era. Well, I’m not. Actually, I registered with the Selective Service on my 18th birthday as required by law, and the Vietnam era was before my time. It is not the draft per se that I have a problem with. It is the draft under the current legal framework.

Joining the military requires the forfeiture of certain rights and freedoms as guaranteed by the Bill of Rights. This is required due to the necessities of a quasi-separate military society, a fully justified requirement when demanded of the freely enlisted. But when ordinary American males are required under penalty of law to enlist in the military and thereby required under penalty of law to forfeit their guaranteed rights under the Constitution, an injustice—both legal and moral—is done to American males.

I do not here advocate the abolition of the draft, but rather the protection of involuntary draftees' constitutional rights under military law. Ordinary civilian rights and freedoms should be enshrined in the Uniform Code of Military Justice (UCMJ) for those soldiers who were involuntarily enlisted. Voluntarily enlisted soldiers, who thereby voluntarily temporarily forfeited certain constitutional rights and freedoms, would not need to be subject to such UCMJ protections in justice.

It may be objected that creating two fundamentally different gradations of military justice would cause a myriad of problems for the command structure as well as for the Judge Advocate General Corps (JAG) of the respective branches. It very likely would. But the alternative is not to involuntarily deprive ordinary American males of their constitutional rights and freedoms. Even felons receive due process of law when they are deprived of certain constitutional rights and freedoms, and they have irreparably wounded society! The ordinary American male deserves justice. The UCMJ must incorporate the protections of the Bill of Rights, or the draft must be permanently abolished. There is no alternative in justice or law.

The Ontologically-False "Separation of Powers"

The term “legislative power” properly denotes the power to validly issue laws, to authentically interpret such laws, to apply their authentic and general meaning to particular cases before tribunals, and to implement and enforce such laws by prudent and legal means in accordance with the directives of such laws.
 

The modern error of the “separation of powers” is based upon the notion that the legislative, executive, and judicial powers are separable, but this does not correspond to the nature of the legislative power. I do not here argue for a centralized absolutism in practice, but from the separation of powers qua political fact it is unjustifiable to thereby attribute ontological truth to such separation.

The executive is a nebulous notion of governmental left-overs, encompassing all that which does not fit neatly under the “legislative” and “judicial” wings of government. This office is theoretically the ‘executor’ of the law’s spirit, but, since law is the means by which the authority in a community makes his will known to those outside himself, the “executive” power is really an exercise of the sovereign legislative power. Therefore the “executive” power is really inseparable from the legislative power, and is encompassed by the latter.

“It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”[1]

Although the Common Law errs in applying an interpretation in a particular case to all cases, the principle is sound, that the “judicial” power is essentially legislatively interpretive. Since the “judicial” power is the interpretation of the law for particular cases and the application of such interpretation, it is essentially an exercise in the legislative power, since the law is meant to bind particular cases and the enforcement of the law is an enforcement of the will of the legislator, which is itself the spirit of and truest law. Therefore the “judicial” power is the enforcement of the will of the legislator in particular cases, and is therefore inseparable from the legislative power.

Therefore both the “executive” and “judicial” power are encompassed by the true and authentic meaning of “legislative power”. Only a "unification of powers" is ontologically true, although a "separation of powers" is possible as a legal fiction of political organization.

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Post is derivative of an original work I created on 22 August 2013 at 9pm.

[1] John Marshall, Marbury v. Madison

Citizens United and the Justice of Juridic Personality

Corporations are persons under the US Constitution according to the rulings of its authentic interpreter, the US Supreme Court.

Many have deplored what they see as a new development in the Citizens United decision; they object to the legal fiction of juridic personality and consider it improper to impart personhood to a corporation.

While their objection should be debated, the notion that juridic personality is a novel doctrine of SCOTUS alone is historically unfounded; Canon Law and the continental Civil Law it influenced have had the doctrine of juridic personality for centuries. While its incorporation into American Common Law is less explicitly in terms of "personality", both law and the courts have recognized corporate entities as having separate legal status (juridic personality) from those human persons (physical/natural personality) constituting the corporate whole. Hence corporations pay taxes, can be held accountable for crimes, and can exercise free speech wholly apart from those physical persons directing the corporation.

To the objection of impropriety in attributing personality to juridically-constituted corporate entities: If we are to strip corporations of their personhood, in justice we must thereby strip them of their pecuniary obligations under tax law. SCOTUS has already incorporated corporations under the Bill of Rights, and corporations have corresponding duties, such as paying taxes. For every duty, there is a right (cf. J. Koterski). Consequently, for the duty of paying taxes we acknowledge the right of free speech. If the right is suppressed, in justice the duty must be removed. The abrogation of the corporate tax is something I doubt anyone would seriously consider.