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This week in Not-Rule of Law

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I've said it before, but it bears repeating.

The writer Masaccio — a former state securities commissioner, mind you — has a nice post that reminds us of this:
  • The actual Constitution of any country is not (yes, not) the written Constitution. It's the written Constitution as practiced.
That's not snark, but fact. The British Constitution is almost a thousand years of documents and practices, dating back to the Magna Carta of 1215.

I would argue, it is the same with the American Constitution. As evidence, I offer the following question:
  • If an act is illegal by statute, but never enforced by any party (or Party), which is the law of the land?
Which brings us back to the writer Masaccio, from "This Week in Financial Not-Crime" (my emphasis and some reparagraphing):
What would it take to get the candy-ass prosecutors in the Department of Justice to indict banksters?

We already knew that securities fraud wasn’t sufficient, but that got reinforced today with news that a hedge fund operator got off with civil case for taking money from the fund to pay his taxes and for manipulating the price of stocks and bonds. Phillip Falcone is facing a civil suit instead of leg shackles.

Also today we learn that manipulating LIBOR isn’t a crime. Barclays Bank paid $450 million to settle charges that it deliberately manipulated the bench-mark interest rate used to establish how much people pay on $350 billion worth of credit cards, student loans and mortgages.

It’s also good news for other banksters who haven’t even been sued, like HSBC, Citigroup, JPMorgan Chase and other firms that are being looked at by regulators around the world.

Apparently the manipulation ran both ways, to increase the rate artificially for direct profit, and to reflect a lower rate to hide the fact that [some] banks were charging Barclays more than other banks because of [Barkley's] perceived weakness.

Still, it’s hard to see a connection between a $450 million fine and the massive profits that could come by increasing LIBOR even fractionally. If LIBOR were .1% higher on $350 billion of debt, that comes to $350 million per year. The fraud went on for at least 4 years, which in my example means $1.4 billion in profits, all going directly to the bottom line. ...

Joe Nocera points out that none of the banks that enabled Bernie Madoff’s Ponzi Scheme had to give back a nickel, despite the fact that they knew or should have known that he was a fraud. ...
Read on to read why. It's a fascinating manipulation of law to produce not-law.

Is my case rested? I think so — rested and ready.

That tension between the law as written and the law as practiced, by the way, is the central problem in Shakespeare's Measure for Measure. Can the government that allowed practiced law to drift radically away from its own written law, be the same government that returns to written law?

In Shakespeare's Vienna, the Duke who enabled the drift has to abdicate — if only temporarily — to legitimize a change. In the Duke's case, that produced (semi-)comic consequences.

But you can see the implications for our own real-world case, can't you? Can Obama's government return to actual Rule of Law, having enabled and supported the opposite?

If not, what American government can do that?

I'll leave you to ponder. It seems to me, however, the choices are narrow.

If you rule out the Republicans — who are already Ground Zero for destruction of Rule of Law (click to learn why) — that leaves ... hmm. 2016 and a reform administration, at best. And something seriously else, at worst.

We've already changed the Constitution. Changing it back, however accomplished, will be a revolutionary act — literally.


To follow or send links: @Gaius_Publius

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