Sunday, February 8, 2015

The "Rights of the Child" Constitution and the Constitution of the British Royal Family

In this post, I would like to look at some issues in the news with regard to the allegations that Prince Andrew was involved in sex trafficking and/or involved in preventing its prosecution in the United States.

The legal issues in this case affect shared earning / shared parenting families because they relate to efforts to remove discrimination against these families in taxation and benefits.  In the UK and the US all laws must follow the constitution, so if the constitution discriminates against shared earning / shared parent families, all laws will as well. 

Until paternity became provable, it was difficult for legal systems to regard a child as the responsibility of both parents, much less the equal responsibility of both parents.  In recent years, not only has paternity become provable, it has become inexpensively provable, literally something that can be done at the corner drugstore, at a cost that is expected to below $100 by the end of the decade.

As noted elsewhere in this blog, however, the British and US systems of "constitution above leader" rather than authoritarian leader who is the source of law, plus the basis of that constitution in "rights and responsibilities of person and citizen" rather than the "rights of man and citizen" of the constitution of France or the "responsibilities of woman" of the constitution of Ireland and some countries in Latin America, seems however, to have implied that such equal responsibility was the ultimate intended foundation of such systems.

What does the Prince Andrew scandal have to do with this?

It has to do with reconciling conflict among several British constitutional documents relating to rights and responsibilities of adults on the basis of sex, as well as to concepts that children have rights, including to have statutory sexual assault and sex trafficking prosecuted. 

The implications of the scandal are broader, however, and may reach the constitutional concept that daughters have equal rights to sons and that both biological parents hold equal responsibility for a child as baseline (with adoptive or single parents able to assume such responsibility with full consent, or both bio parents able to arrange another allocation of responsibility provided that they both remain accountable to the child if any failure to meet the standards occurs).


Here is the basic conflict and its likely resolution, in my view:

A.  The Basic Conflict and Its History and Positioning:

1.  Prince Andrew was placed ahead of his older sister, Princess Anne, in the line of succession on the day he was born pursuant to the 1701 Act of Settlement for no reason but his biological sex and hers.  This law, which is considered part of the group of laws that form the constitution of Britain, establishes male-preference primogeniture

One thing to keep in mind about the legal system in Britain is that it applies to everyone the way it applies to royalty, so male-preference primogeniture for inheriting the position of head of state would affect all daughters' and son's position, with regard to a range of issues, including property law.

The choice to establish male-preference primogeniture was curious as the UK has historically differed from many monarchies on the Continent in including women in the line of succession, both in using cognatic descent (i.e., descent through women as well as men) and in making daughters heirs and thus eligible to be queens regnant.

The Tudor line was based in cognatic descent, through the daughters of the Houses of Lancaster and York, both of which were descendants of John of Gaunt. The reigns of Mary I, Elizabeth I, Mary II (together with William) and Anne all preceded the passage of the 1701 law and some of these reigns, particularly the latter three, were considered very successful times for Britain.  And the House of Hanover, a German house that was used in the 1701 Act, begins with the children of Sophia of Hanover, recognizing cognatic descent.  Also, the fact that paternity was not yet as provable as maternity made descent through the female line established more firmly in law. 

In contrast, on the Continent, Salic law excluded women altogether from the line of succession even though paternity was not provable and even though women were proving very capable leaders in England.  The House of Hanover, as a Germanic house, recognized Salic law, and this may have influenced the decision in 1701 to go with "male-preference" rather than "gender-neutral" primogeniture.

Thus, as of 1701, although the UK included daughters in the line of succession, it put them at the end of the line, behind any sons.  Ironically, it often happened that the sons killed each other off (as in the case of the Lancasters and the Yorks), and the daughters would often end up ruling.

In any event, as the current heir Prince William was about to have his first child, the Commonwealth countries agreed to change the law to "gender-neutral" primogeniture with regard to his children and subsequent generations.  When his son George was born, this meant the change would not have had immediate practical effect, however, and Parliament and the Commonwealth countries have delayed putting the change into law, perhaps because of this lack of immediate practical effect.

2.  Princess Anne has been President, since 1970, of a charity called "Save the Children."  The charity was the originator, earlier in the 20th Century of the concept of a declaration of the "rights of the child". This was later refined by the United Nations into the Convention on the Rights of the Child (the "UN ROC treaty"), which became available for countries to sign in 1990.   All countries and the Vatican have signed it, except the US, Somalia and South Sudan; there may be some good reasons for the US not to have signed it, as I'll discuss below.  The US has signed a protocol to it prohibiting sex-trafficking, however.   "Save The Children" continues to be involved with the treaty, working on its use around the world.  She has been very involved with the treaty and is respected for this.  A recent poll found the public were more interested in funding her than Prince Andrew.  Also, her children are currently not funded and Prince Andrew's are.  More of the public wanted her children brought into funding than wanted Prince Andrew's funded at all.

Princess Anne has also displayed personal integrity in the concept of "constitution above leader" when she did not try to claim any sort of sovereign immunity when she was prosecuted for having an out-of-control dog that bit some children.   In contrast Prince Andrew has been using the monarchy to prevent answering questions, including how he happened to be in a photograph with his arm around one of the underage Jane Does.

3.  The UN ROC treaty, particularly the anti-sex-trafficking protocol, is at issue in the Prince Andrew case in several respects: (a) the international aspect of the trafficking, crossing country lines between the US, Britain and the British Virgin Islands, and involving teenage girls from a variety of countries, including the US, Russia and some other European countries, (b) the fact that countries who sign it agree to prosecute sex-trafficking.  The allegation by the Jane Does in the Jeffrey Epstein case that implicates Prince Andrew is that such prosecution was stifled.

4.  The UN ROC treaty also contains an ancillary protocol similar to the 1628 "Petition of Right", another of the documents that form the British Constitution that then formed the basis of the US Constitution.   This allows for an individual to communicate to the UN that a country is not following the UN ROC treaty's principles.  This protocol, which only became available for signing in the last couple years, has not been signed by either Britain or the US, but it has been signed by a number of other countries.  While it is thus not available to the US-based Jane Does, they could file a pro forma version of it.

5.  The UN ROC treaty, as an international consensus lawmaking, effectively forms an international version of the Constitutions of Clarendon of 1164 (which required clergy to be subject to secular criminal law) and the Magna Carta of 1215 (which required the King to be subject to the law).   Indeed, the UN Convention has been instrumental in the prosecutions of the Vatican and its clergy in a variety of countries for child sexual abuse.   It is also at issue in Pope Francis' condoning (or even advocacy?) of corporal punishment (which is prohibited in the UN ROC treaty).  Until the UN ROC treaty was ratified and John Paul II signed it in 1990, it was nearly impossible for victims to hold the Vatican to any kind of accountability for violation of secular law because of the Vatican's status as an independent state.   Now, the Prince Andrew scandal means the UN Convention could be applied to the monarchy, making Prince Andrew accountable in international law in a way he would not otherwise be.  The lawyers for the Jane Does have curiously not yet cited the UN ROC treaty, even the anti-sex-trafficking protocol that both the US and the UK have signed, and instead are relying on US law and possibly some Hague treaties.  It is true that the individual "Petition of Right" has not been signed by the UK or the US yet, but they could still use it pro forma.  This might also prevent allegations that this case is being tried in the press, rather than through due process.

6.  The UN ROC treaty is not framed in a context of paternity being inexpensively provable.  When the treaty was written, it was not inexpensive to prove.  It therefore needs to be updated to incorporate this information and its implications.

7.  The British parental responsibility law also is not framed in a context of paternity being inexpensively provable.   It provides that all mothers, but only those fathers married to the mother, are responsible for meeting their children's needs as a baseline.  It does provide that paternal responsibility can be asserted by a variety of parties, including the father, but there is not a self-executing right of the child to have his/her biological parents identified at birth with a baseline of their joint and equal responsibility.  The parental responsibility is equal regardless of sex.

8.  The British citizenship law also was not framed in a context of paternity being inexpensively provable, although this changed in 2014.   It had provided that all children of British citizen mothers are citizens and all children of British citizen fathers married to the mother (regardless of her citizenship) are citizens.  Children of British citizen men with women to whom they were not married are not citizens.  This aspect of the law was created in 2006, during Tony Blair's term as Prime Minister, just as he converted to Catholicism.   Since the law was passed, the actor Jude Law fathered children with a US citizen and an Irish citizen, leading to comical interpretations of "Jude's Law" giving men this incentive to father children without responsibility.  In the case of the child of the US citizen mother, a paternity test was ordered and he owes child support but presumably has avoided the personal responsibility he would have faced under the UK parental responsibility law.  London mayor Boris Johnson is also alleged to have fathered two children with women to whom he is not married and for which he and the mother are not following the parental responsibility law.

9.  Australia, a Commonwealth country, is also facing a debate around the issue of paternity becoming inexpensively provable.  There are some who want to make this a self-executing right of each child.  A case of biological parents from Australia abandoning a child conceived with a Thai woman as surrogate, where the Thai woman is now seeking Australian citizenship for the child in order to receive free health care and other benefits for the child, has also brought these issues to the fore.

B.  The Likely Resolution:

1.  Will Princess Anne, and her children and grandchildren, be restored to her correct place in the line of succession ahead of Prince Andrew, his children and grandchildren?  I suspect this will happen for several reasons:

(a) her exemplary work on the international consensus lawmaking of the UN Rights of the Child Treaty, and its astonishing success in forming an international "constitution above leader" being used in the style of the Constitutions of Clarendon against the Vatican, the Magna Carta against Prince Andrew, and the Petition of Right against US authorities who failed to prosecute;

(b) the contrast of her exemplary work with Prince Andrew's admitted involvement with a convicted sex-trafficker, Jeffery Epstein;

(c) the change to gender-neutrality having already been agreed to on a prospective basis, so it seems only fair to recognize it retrospectively with regard to living Royals; and

(d) the public wanting the order put back in the actual birth order, without her disenfranchisement for no reason but her bio sex and Andrew's.

2.  Will the monarchy continue to exist at all?

While some might see Andrew's behavior as the likely end of the monarchy, I think the fact that the treaty was accomplished with Anne's involvement, that the treaty is very necessary and effective, and that male world leaders have not been getting the job done (including the Presidency of George W. Bush and the Governorship of Jeb Bush, both of which are implicated in the alleged failure to prosecute Epstein) means that the British Royal Family still has a role.  The fact that the Pope still exists may also be a reason that the British Royal Family will continue to exist, with cognatic descent and gender-neutral primogeniture, subject to a constitution based in "rights and responsibilities of person and citizen".

One way the Royal Family may elect to keep itself relevant is to have Prince Harry succeed to Princess Anne's work on the UN ROC Treaty, with his focus to be updating it to reflect that paternity is inexpensively provable.

3.  Will the US adopt the UN ROC Treaty?

I think that the US is not likely to adopt this treaty until it is updated to reflect that paternity is inexpensively provable, to recognize dual citizenship based upon dual citizenship parents and dual countries of responsibility.

It may be that the US doesn't adopt the treaty per se, but instead constitutionalizes a basic concept of every child having a self-executing right to have his biological parents identified.  In many places in the US, state law already says what the treaty requires, however, the current Supreme Court is not interpreting equal rights and responsibilities of citizenship (notwithstanding the Constitution's language of "person" not "man" or "woman" and all this history of its development) and this is causing discrimination against shared earning/shared parenting families that regard a child as the equal responsibility of both parents.

Just as in Australia, Scotland and other British Empire-legacy countries, in some parts of the US, actual paternity has long been an ideal that differentiated the US and these political economies from those on the European Continent (and Ireland) and in Latin America which are legacies of the Roman Empire and Spanish Empire.  Also, particularly because the Ottoman Empire legacy is still not reckoning with paternity being inexpensively provable, with Islamic law still overriding this biological evidence, I think this will be a priority of the US as it is in Britain, Australia, Scotland, and perhaps Hong Kong as well.  Hong Kong, also a legacy British Empire country, has a very low fertility rate (below 1.0) for Hong Kong citizens and is struggling with "birther" babies from mainland China taking up spaces in what is the most densely populated place in the world.

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What do you think?   Please let us know in the comments.

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Tuesday, January 20, 2015

A Review of Senator Ernst's Response to President Obama's 2015 State of the Union Address

In this post, I will look at Senator Joni Ernst' response to President Obama's 2015 State of the Union Address.  My review of his State of Union Address is posted here.

As always with this blog, I am reviewing the proposals through the lens of shared earning/shared parenting families.  Also, as always with this blog, the analysis is of the broad policy implications; individual families will want to review their own situations and consult with tax and accounting advisers to determine the best course of action for them.

As there is almost no specific policy criticism or proposal in this speech that affects shared earning / shared parenting families there is little for me to review directly.

This failure to call out the issues correctly, much less to advocate substantive, workable reform that syncs with the Constitution, harms Shared Earning / Shared Parenting Families.

Many of the issues for reform lie in areas of advocacy that were a focus of the "Radical Republicans" who originally formed the Republican Party prior to the Civil War.

The Tea Party has had a "constitutionalist tax protest" basis to it, but they have not focused on either the Constitution or tax policy in the ways both are these are violated with regard to shared earning / shared parenting families, both with regard to policies implemented in the past as well as ones implemented by the Obama Administration. 

Here are the few policies that Ernst mentioned:

1.  Ernst talks about her personal experience.  She says she is " . . . a mother, a soldier, and a newly elected senator from the great State of Iowa".  She says "As a young girl, I plowed the fields of our family farm. I worked construction with my dad. To save for college, I worked the morning biscuit line at Hardees. . . . We were raised to live simply, not to waste. It was a lesson my mother taught me every rainy morning. . . . You see, growing up, I had only one good pair of shoes. So on rainy school days, my mom would slip plastic bread bags over them to keep them dry."

There are references here to Ernst working as a woman, plowing the family farm, working construction and working in a minimum wage job for college.  There is no reference to an earned income or work she had after college.

With regard to the family farm, Ernst had opportunities to discuss problems with state and federal policies regarding property ownership in marriage, especially ones that assume as a default that all marital property is in the control of the man, rather than a default that marital property is in joint control.  Likewise, many state federal policies subsume women's farm labor into the labor of the man so it is not recognized.  The tax reforms mentioned by President Obama implicate these issues, so this would have been a good opportunity to tackle them.

Similarly, Ernst's jobs in construction and at Hardees are areas where she could have identified specific reforms to get this work acknowledged, but she did not do this.

2.   "We see our neighbors agonize over stagnant wages and lost jobs. We see the hurt caused by canceled healthcare plans and higher monthly insurance bills.  . . . We'll also keep fighting to repeal and replace a health care law that's hurt so many hardworking families."

It is difficult to get at what the complaint is here.  Stagnation in wages has several causes related to federal policies that penalize shared earning / shared parenting families, but Ernst missed the opportunity to discuss this..

The ACA is a huge redistribution of wealth, greater even than Social Security, but this redistribution takes place via the tax code, not in increased premiums for wealthier people.  

The canceled policies are usually because the insurer doesn't want to comply with the ACA coverage requirements.  There may be some good reasons for this as there are medical fictions in the ACA reproductive health provisions and preventive care provisions that are not sound public health policy and which will lead to increased expense in the health care system, however, Ernst is not calling this out.

3.   "Let's simplify America's outdated and loophole-ridden tax code. Republicans think tax filing should be easier for you, not just the well-connected. So let's iron out loopholes to lower rates — and create jobs, not pay for more government spending."


4.   "We'll propose ideas that aim to cut wasteful spending and balance the budget — with meaningful reforms, not higher taxes like the President has proposed."

These issues are particularly relevant for Gen-X and younger people (those under the age of 50) because of the $19 trillion size of the federal debt that is rapidly being passed to them.   (Ernst is 44 years old).  Again, no discussion of this problem or even calling it out.  Erst represents Iowa, which recently became an "equal rights" state.  It is not an "equal responsibility" and it is a fairly big contributor to the federal debt.

5.   "Some of it will occur where I stand tonight, in the Armed Services Committee room. This is where I'll join committee colleagues — Republicans and Democrats — to discuss ways to support our exceptional military and its mission. This is where we'll debate strategies to confront terrorism and the threats posed by Al Qaeda, ISIL, and those radicalized by them."

The issue of shared earning / shared parenting families is tangentially related to terrorism, because one of the claims that the terrorists make is that the liberal democracies are "immoral".  While they obviously have issues with this themselves (among other issues, Islamic lawyers are still trying to override actual paternity determined by DNA with Sharia law concepts), there is hypocrisy in the US systems that could be corrected to present a more formidable defense to terroristm as well as leadership on the issues of ethical behavior that will make clear the problems in Islam and prevent groups like ISIS their easy recruitment of terrorists.

Young men and women the world over today are facing an accountability as parents that previous generations have not faced.  The ability to prove paternity is novel in world history, and in recent years as it is becoming more and more inexpensive to prove it, even poorer countries will have it available and need to deal with it.  The patriarchal religions are all based in not being able to prove this, and they go into crisis when it becomes provable.  The US Constitution is flexible enough to deal with this, however, a constitutional amendment on "rights of the child" may be something we see in future years.  In an upcoming post, I'll discuss the UN Rights of the Child Treaty and updates to it to acknowledge that paternity is inexpensively provable.

6.  "We must also honor America's veterans. These men and women have sacrificed so much in defense of our freedoms, and our way of life. They deserve nothing less than the benefits they were promised and a quality of care we can be all be proud of."

The only problem with this is the reference to "America". The country is actually called the United States and when the United States goes to war it does so as the United States; the Constitution governs only the US.   How can you fight in a war and win it when you  are not even accurately defining the country you are defending?  America is a derivative of "Americas", the continents on which there are many countries besides the US.

Saturday, January 17, 2015

A Review of President Obama's 2015 State of the Union Tax Reform Proposals

In this post, I would like to look at the tax reform proposals that President Obama's office has announced he plans to make at his 2015 State of the Union Address.  As always with this blog, I will review them through the lens of shared earning/shared parenting families.  Also, as always with this blog, the analysis is of the broad policy implications; individual families will want to review their own situations and consult with tax and accounting advisers to determine the best course of action for them.

I also take a look at that series of Taylor Swift GIFs released by John Boehner (skip to the bottom for that). 



Here are the salient elements of the proposal and their pros and cons for shared earning/shared parenting families:

1.  "The president’s plan would raise $320 billion over the next decade, while adding new provisions cutting taxes by $175 billion over the same period. The revenue generated would also cover an initiative Mr. Obama announced this month, offering some students two years of tuition-free community college, which the White House has said would cost $60 billion over 10 years."

This provision is neutral for shared earning/ shared parenting families.

2.  "The centerpiece of the plan, described by administration officials on the condition of anonymity in advance of the president’s speech, would eliminate what Mr. Obama’s advisers call the “trust-fund loophole,” a provision governing inherited assets that shields hundreds of billions of dollars from taxation each year. . . . Under the proposal, inherited assets would be taxed according to their value when they were purchased. That means the capital gains on those assets during a person’s lifetime, now shielded from taxation, would be subject to tax at the time of the bequest."

This provision is neutral for shared earning/ shared parenting families.

3.  "The plan would also increase the top capital-gains tax rate, to 28 percent from 23.8 percent, for couples with incomes above $500,000 annually."

This Obama proposal will penalize shared earning / shared parenting families and subsidize patriarchal /maternalist families.

This tax is "progressive", meaning that higher levels of income are charged higher rates of tax than lower levels of income.  This tax and the 4.2% in similar taxes assessed as part of the ACA applies to the upper layer of income only and not to the lower layers of income for taxpayers who have income that meets the thresholds.

As noted in previous illustrations in this blog, the fact that marital income is fictionally merged into one unit makes progressive taxes inherently regressive, however.

This is because the lesser earner always gets merged into a higher rate (a "marriage penalty") and the greater earner gets merged into a lesser rate (a "marriage bonus").  The effect of the economic fiction of the merger is sometimes called "stacking effect".

What "stacking effect" does is end up creating an accelerating pressure on a couple to put all earnings into the name of one of the partners.  In actively earning families, this means there are substantial tax subsidies to make one partner the breadwinner and the other the unpaid worker.  In passively earning families, who have accumulated savings or inherited wealth, it creates pressure to put all property and assets in the name of one partner and for that partner to manage all of it.

The policy of fictionally merging marital income personal to each partner means that tax rates are reduced for parents who do not take personal responsibility for their children and increased for parents who do take such personal responsibility. 

Over time this has substantial costs.  It creates significant barriers for a nonearning partner in a marriage to reenter the marketplace, whether the marketplace of employment or of property ownership and management.   It leaves children with only one parent taking personal responsibility for meeting their needs, which has significant costs and distortions in child development. 

It also means that two comparably earning people can pay very different tax rates simply because of the earnings (or nonearnings) of their spouses, or whether they have a spouse at all, thus distorting the marketplace in which the two people compete.

An earlier post in this blog shows this using the tax burdens of Justices Ginsburg, Scalia and Kagan (all of whom earn the same salary but face very different tax burdens) as an illustrative example. 

This has a punitive effect in the simple extra tax dollars owed or not owed, as the case may be, but it also has a distorting effect on the marketplace, overvaluing the work performed by a sole breadwinner, compared to the exact same work performed by an earner who takes personal responsibility for his/her child.  The taxpayer subsidy effectively makes the sole breadwinner a cheaper hire in broad marketplace terms because extra money is paid to him by taxpayers, over and above his wages.  If he has a child, this becomes a payment simply to neglect his child, a type of "reverse paternity leave."

It also means that in later life the family collectively typically has less income and assets than it would have if it were a shared earning / shared parenting family, as some recent studies have illustrated.  In the patriarchal / maternalist families, by contrast, while the breadwinner (usually the man) sometimes has more income and assets later in life than he would hold individually including more access to these things in the marketplace, his family is poorer later in life.

As a political economy, as noted elsewhere in this blog, this has been a key driver in the $19 trillion federal debt, along with a similar phenomenon in Social Security and Medicare taxation and benefits.

The simple fix: get rid of fictional merging of marital income by taxing the income of each party to the marriage separately on the progressive rate schedule.  The IMF has asked the Obama Administration to do this (most OECD countries do not impose this fiction) and which it has ignored.  Joint returns can still be used, but the economic fiction will be removed.

4.   ". . . [a] new fee on banks with assets over $50 billion would be used to finance a set of tax breaks for middle-income earners, including a $500 credit for families in which both spouses work; increased child care and education credits; and incentives to save for retirement."

a.  "White House officials estimated that the new $500 “second-earner” tax credit would benefit 24 million households. The maximum credit would go to those earning up to $120,000, and some credit would be available to those earning up to $210,000."

This Obama proposal will largely penalize shared earning / shared parenting families and subsidize patriarchal /maternalist families.

This "secondary earner credit" is designed to offset the "marriage penalty" that a lesser earner in a marriage pays, while not reducing the "marriage bonus" that the greater earner in a marriage receives.  It continues the economic fiction of merging personal economic behavior of the spouses into one unit and thus reinforces the costs noted above to families, to children and to the political economy generally.

It therefore will be primarily used by stay-at-home mothers reentering the workforce or by women working in low-earning part-time positions who are married to men who are the primary breadwinners and do not take equal personal responsibility for meeting a child's needs. 

This is likely a proposal that Senator Patty Murray (D-WA) initiated.

The simple fix: To help stay-at-home mothers and part-time mothers married to breadwinners, but not penalize shared earning / shared parenting families, eliminate this proposal altogether and instead get rid of fictional merging of marital income by taxing the income of each party to the marriage separately on the progressive rate schedule.  The IMF has asked the Obama Administration to do and which it has ignored.    Joint returns can still be used, but the economic fiction will be removed.

b.  "Mr. Obama also wants to triple the child care tax credit, currently an average of $550, and make it easier for middle-income earners to qualify, offering up to $3,000 for each child under the age of 5. White House officials said the plan would eliminate existing tax-advantaged flexible spending accounts for child care and reinvest those resources in the tax credit."

This Obama proposal will penalize shared earning / shared parenting families and subsidize patriarchal /maternalist families.

The child care tax credit is generally something that helps two earner families, because they often outsource child care.   Shared parenting families outsource less, but often still use it.

One important feature, however, is that child care expense be seen as the responsibility of the parent outsourcing his/her share of care.

What happens with the current credit is that the greater earner gets most the benefit of the credit because s/he has the greater earnings.  There is again a fictional merging of the personal responsibility each parent is taking for the child.

The simple fix: Make the baseline model for the credit that each parent has equal responsibility for child care (if the time in the womb is counted toward the mother, then the father would have slightly more responsibility over the 18 years  outside the womb or sole responsibility for one nine-month period).  This means that the child care tax credit may be taken by the parent who is outsourcing his/her share of the care, perhaps up to the amount of $1500 for each parent.   The personal responsibility of each parent will thus be recognized and not fictionalized.  Joint returns can still be used, but the fiction will be removed.

 5.  "The remaining $110 billion to pay for Mr. Obama’s new tax proposals would be generated by a fee imposed on the largest and most highly leveraged financial firms. That proposal, administration officials said, was designed to make “risky activity” more costly for the roughly 100 such companies in the nation with assets more than $50 billion. Those companies would be assessed a fee based on the amount of debt they hold."

This proposal does not penalize shared earning / shared parenting families, however, it is curious that there is no effort to mitigate the concern about excessively "risky activity" by making the changes noted above.  Both the tax subsidies to couples putting all capital and property into the hands of men as well as the tax subsidies to sole breadwinners' earnings with tax cuts not only encourage "risky activity", but they have been financed primarily through federal debt that is being passed to younger generations.

6.    ". . . .limit the size of IRA accounts to $3.4 million, which is enough to bring in annual income of $210,000 in retirement, according to the White House. If you hit that amount, you're done—no more contributions or accruing more benefits."

This proposal is generally neutral to shared earning /shared parenting families, however, there are some problems with its assumptions that may affect such families.

The Washington Post identifies this proposal as intended to go after the very large amounts that a few individuals have amassed in IRAs, which are subject to deferred taxation, and in some cases, such as earnings on Roth IRAs, no taxation at all if the sum is used up prior to the taxpayers' death .  Mitt Romney is estimated to hold between $20 million to a $100 million in an IRA and the Washington Post uses his situation as an illustration.

There is a flawed foundational assumption in such an IRA, however, that the reform proposal does not reach, and Mitt Romney provides an illustrative example of how this economic fiction in the assumption hurts shared earning/shared parenting families

Ann Romney has never held paid employment and has never personally paid any taxes on earned income.  She brought some assets into the marriage, such as stocks, but she presumably has transferred management of such assets to Mitt Romney, so he effectively pays the taxes on any passive income from such assets.

Because Obama nor the GoP are doing anything about the fictional merger of personal income in married couples, Mitt Romney is automatically getting to assign, for the purposes of taxation only, half of all his earned income and passive income to Ann Romney as part of the "merged marital borg".  This means that he pays a much reduced rate on his income compared to a man or woman of comparable income who has an earning spouse or a spouse with assets s/he owns and manages.  And, if Ann Romney were suddenly to take an interest in earned employment, owning the assets in her name, or managing them, she would pay taxes at his rate, not at the appropriate lower rate for her lower level of assets and income.  This is the "stacking effect" discussed above.

Because these IRAs and assets are all in Mitt Romney's name, and all being managed by him he should be paying the full rate for the assets. 

The simple fix: In marital couples, assets held only in one partners name, or managed solely by that partner, should not be fictionally transferred to the other partner to reduce taxes.

7.   Expand the EITC to make its welfare payments available to nonparents and to noncustodial parents.

This Obama proposal will penalize shared earning / shared parenting families and subsidize patriarchal /maternalist families with regard to the payments to noncustodial parents.

The payments to nonparents are neutral for shared earning / shared parenting families.

The payments to noncustodial parents are not.  This will mean that families that receive the EITC will have a financial incentive to have one parent be the primary parent and one take no personal responsibility.  It means that families that receive the EITC who share personal parental responsibility equally, whether they live together or not, will not receive as much in payments.

The simple fix: Create a "shared parenting" model for the EITC, with child-centric payments in the child's name, and, if desired, welfare payments to the parents in each of their own names.

8.  John Boehner's office has released some Taylor Swift GIFs about the Obama proposals; is there any truth in them? 

Because the Obama proposals penalize shared earning / shared parenting families, yes, however, they are very distorting and Boehner and the GoP are also reinforcing the problems for shared earning / shared parenting problems.

The GIF works because (a) Taylor Swift is a very high earning female (and, as discussed above the Obama proposals effectively raising taxes on her much more than on a comparably high earning male; she already has to pay higher tax rates than a comparably earning male) and (b) Taylor Swift is from a part of the country, Appalachia, that has long recognized actual paternity (while the fathers do not do the daily work over years of meeting a child's needs that it takes to raise a child successfully, they do take responsibility for their children), and the ACA has medical fictions that women are the only biological parents of children.

The GoP is very clearly focused on retaining, and even increasing subsidies to patriarchal marriage, however, and thus they are raising taxes on Taylor Swift as well.  And they are focused on outlawing abortion and are not acknowledging men having any personal responsibility for the unpaid work of meeting their children's needs after the child is born; in fact they see this as all the mother's responsibility.

The simple fix: The GoP could assert federal tax and benefit reforms that acknowledge men having equal personal responsibility for meeting their children's needs as the baseline (rather than that children are the personal responsibility only of women). 

Thursday, January 1, 2015

Movies and the US Constitution: Abolition of Discrimination Against Women in Voting and In Holding Equal Rights in Britain and the US: Iron-Jawed Angels

This is part of a series of posts following this summary of movies that provide a chronological history of the U.S. Constitution.

Abolition of Discrimination Against Women in Voting and In Holding Equal Rights in Britain and the US:

17.  Iron-Jawed Angels (HBO movie, 2004) set in about 1910-1920


Synopsis: The movie covers the period when Alice Paul and a number of women and men successfully passed the 19th Amendment to the U.S. Constitution.  It covers the issues among the women, men and other supporters as well as their strategies in overcoming opposition to the Amendment.  The 19th Amendment reads that : "The right of citizens of the United States to vote shall not be denied or abridged by the United States nor by any State on account of sex.  Congress shall have power to enforce this article by appropriate legislation."

A.  Rule of Law. 

This movie portrays the rule of law issues very confusingly.  This arises because of some problems that Alice Paul and the "women's suffrage" movement faced as well as distortions by the filmmakers.  The 19th Amendment actually just prohibits discrimination in voting, it doesn't grant the fundamental right itself, which is left to the states on their matters and the federal government on its matters.  A number of states, particularly Western states, such as Colorado, had already established universal voting rights regardless of sex in their state constitutions by the time the movie takes place.  A number of states were denying women voting rights, however, which was also preventing women from voting in federal elections.

Alice Paul questioned whether the Nineteenth Amendment  (or the Equal Rights Amendment) was needed, saying "I thought it was already in there."   Alice Paul was a descendant of William Penn, the Quaker founder of Pennsylvania.  Penn bought the land in that colony twice, once from the British crown and again from the Native Americans (principally the Lenape), giving the founding people of that region a particular sense of grounding.  Also, their constitutional documents were used in the framing of the US Constitution.  In colonial times, Pennsylvania and New Jersey had high concentrations of Quakers.  Alice Paul grew up in a family that was still practicing Quakerism, in New Jersey.  So she had a deeply conditioned view from her family background as well as the community of Quakers and living in the same historical region where women had held express voting rights, that meant that she took for granted that she could vote.

This was the same view that Susan B. Anthony, also raised Quaker, had in the years following the Civil War, where she voted and then was prosecuted for this.

They thought this not only because of their personal heritage of knowing what the founders of Pennsylvania and New Jersey and other colonies thought on this matter because of their Quaker family backgrounds, including Paul being literally a descendant of William Penn, but also because the U.S. Constitution, both in its original form and in its amendments, does not use the word "man" in its operative language. 

The US Constitution uses only the words "person" and "citizen" in its grants of fundamental rights.   This is consistent with the line of constitutional development from the 1689 English Bill of Rights and the contrast with the "rights of man" language of the U.S. Constitution and the "rights of man and the citizen" of the contemporaneous 1789 French Constitution.   Some framers of the US Constitution, particularly those from Pennsylvania, New Jersey and other Quaker-populated areas, refused to sign the "rights of man" Declaration of Independence and set about drafting the "rights of person and citizen" US Constitution.  The Constitution is the only governing document of the US; the Declaration of Independence was a declaration of war against the King. Even during the War, the governing document was the Articles of Confederation.  The Declaration ceased to hold any  meaning after the British surrendered at Yorktown in 1781.

In colonial New Jersey women held express rights to vote, provided that they could meet the property requirement (something like $150 in today's money).  In colonial Pennsylvania, women also could vote in the city council of Philadelphia if they were unmarried; they were "freemen" under the law.  A number of women in this region were very active during the colonial debate and no doubt played a role in John Dickinson and others from the region drafting "rights of person and citizen" Constitution and not the "rights of man" concept.  Some of these women included Susannah Wright, Hannah Griffits, Eliza Norris (sister-in-law of framer John Dickinson) and Sarah Morris.

So, the question for the "Iron-Jawed Angels" depiction of "rule of law" is "what is the law that is being recognized."  For some of the women, especially Alice Paul, their view was that they had full rights already under the Constitution, and it was a failure by government to submit to the "rule of law" by discriminating against them.  The movie does not show the legal arguments that the opponents would have in denying this right, perhaps because they were not well articulated in the actual history.  If women had asserted this in a more lawyerly fashion, it would be interesting to know what the outcome would have been. 

Women lawyers were still few and far between in the early 20th Century, however, as some states were denying them rights to practice law.  Inez Milholland, depicted in the movie, is a lawyer, and Alice Paul became one after the 19th Amendment was passed.  Milholland married a man who was not a US citizen, which meant her own situation presented a number of legal questions with regard to the laws of coverture being in conflict with the US Constitution that could have been litigated. 

Male lawyers are depicted in the movie as not being trustworthy, such as Emily Leighton rejecting the lawyer that her husband, a senator in the movie who is opposed to women voting, hired.  The Leightons are fictional characters, intended by the filmakers to be a "composite" of some politicians and their wives.

In their public awareness campaign, Paul and the supporters framed the issue as "votes for women" and "women's suffrage" because women were not exercising this right to vote and there was no provision for it being made in many states.  Also, there is a Quaker view of  the importance of "suasion", i.e. persuading people to your way of thinking rather than forcing them to do it in a top-down enforcement.    In the movie Alice Paul is repeatedly engaging successfully in suasion.
So, they do respect rule of law, but because of their lack of legal counsel, training and experience, plus the Quaker belief in "suasion", they end up actually defeating themselves and "rule of law" a bit, in the movie's portrayal, by not seeking an enforcement of the extant Constitution in connection with their "suasion".  In any event, their choice to seek an amendment definitively prohibiting the discrimination along the lines of the Fifteenth Amendment prohibiting discrimination in voting on the basis of race, is a deep respect for democratic adoption of law, albeit one that inadvertently ends up yielding some of the respect for preexisting law which already said this, in the Fourteenth Amendment in particular.

Alice Paul is also depicted as using some aggressive tactics, such as throwing a brick through a window.  When she engages in her hunger strike, when a doctor interviews her she is depicted as saying it is a "tradition in Ireland to starve yourself on someone's doorstep."  This is presumably a reference to Lucy Burns, her Catholic friend of Irish background depicted in the movie.  Lucy Burns together with Paul was active in the British suffrage campaign, which was accomplished in British law its first step in 1918, two years before the US.  Jeremy Bentham and other late Enlightenment thinkers and lawyers had been questioning whether women already held voting rights under the English constitution, such as it was, back in the early 1800s. 

Lucy Burns was curiously active in Britain and the US, but not in Ireland (which was at this time part of the UK, but by 1922, southern Ireland had its independence, in which it adopted universal voting rights regardless of sex).  After 1920, she stopped pursuing rights for women in the US or abroad, saying the betrayals by married women had been so disappointing she was not willing to do more.  Presumably the Catholic view of women and marriage was particularly frustrating to her, and this is depicted in the movie, however, she curiously became more involved in Catholicism after her withdrawal.  So her lament about "betrayal" was a bit ironic.  Today, the Constitution of Ireland still defines the unpaid work of the home and family as being the responsibility of women.

Alice Paul is also depicted as being indifferent to voting rights discrimination on the basis of race and  Burns is depicted as being particularly intent on a "compromise that the Negro groups agreed to" where the black women voting rights advocates would be at the back of a parade rather than amid the women.  Paul cuts Burns off and listens to Ida Wells-Barnett, a black suffragette. state that she will march in the main parade, not at the back, and she is surprised that a Quaker such as Alice Paul would agree otherwise.  Alice Paul says "Alright".   

While it is good that movie shows Ida Wells-Barnett, who was very active in this movement, and it is possible black women and men in the parade had to be at the back, it is unlikely that Wells-Barnet would have conflated black voting rights with women's voting rights as she is shown to be doing.  This conflation leaves out that the 15th Amendment, which has an express prohibition on discrimination in voting on the basis of "race, color or previous condition of servitude" had already been adopted more than 50 years prior.  While there were problems getting it enforced, the march was simply about passing the 19th Amendment to match the 15th Amendment; in fact it was the women voters, of all races, who had less constitutional protection against discrimination than racial minorities.  The 19th Amendment had the identical language to the already adopted 15th, just using the word "sex" instead of "race, color or previous condition of servitude".   "Rule of law" is thus not respected in this depiction, particularly by Lucy Burns, but in practice it was by Paul and other suffragettes.

The fact that Alice Paul and others did not do the work of modeling what equal rights and responsibilities in the Constitution meant, as well as the problem of not being able to prove paternity, would cause struggle and problems with these issues for many years afterwards and they still trouble the US and many other countries today, although there is a trend to resolving them as I'll discuss in a later post.

B.            "Rights of Person".  Alice Paul, like Susan B. Anthony before her, did not have the view of "difference-based feminism" that women should have special rights (or privileges).  Susan B. Anthony said “Men, their rights, and nothing more; women, their rights, and nothing less.”   Paul is depicted in the movie as objecting to some of the labor unions' efforts to give women special , less demanding jobs.

This is in part because Quakers held a view of "nursing" (or nurturing) fathers, that meant that men were considered equally responsible for children and meeting their needs, including the daily work of a dependent child's care and developmental support.  A Quaker might say, for example, that a mother carries a fetus around in her body for nine months and a father should carry the infant around for the first nine months after the s/he is born. 

Eleanor Roosevelt, Francis Perkins and Jane Addams both later contributed to some problematic thinking in this regard, building Social Security around the sole breadwinner and subsidizing him with taxes paid by women who earn money and, in Addams' case, promoting a "maternalist" view in Chicago that would tend to deem women as primary parents and present women as having special abilities because of this status as mothers.   Addams was a Quaker but did not seem to have this more deeply conditioned view of equal parental responsibility that Paul, Anthony and others had. 

Also,  paternity was not provable until the 1970s (although blood typing, which was being developed during the era of the movie's depiction, was providing partial means of establishing paternity) so the Quakers were doing this via religion not though constitutional or legal means that could provide this right to every child to equal parental responsibility.  They knew they could not establish this by law because of the lack of scientific proof, and so in the First Amendment they had carved out room for "free exercise" of their religion and the prevention of establishment of religion, particularly Catholicism, which had a "Virgin Birth" view, particularly emphasized by the Pope in the Counter-Reformation that was counter to basic biology and established women as the only recognized parents of children and the only ones responsible for meeting their needs.

The movie depicts several aspects of this "rights and responsibilities of person" view but not in a complete fashion.  There is a scene where Alice Paul says to the doctor questioning her in a medical evaluation for psychiatric problems that what women's suffrage means to her is that "she is no different from him in wanting access to trades and professions to earn her bread, a means of self-expression, some way of satisfying personal ambition, and a voice in the government under which she lives."  There is not any discussion of responsibilities in this, that is, her need to fulfill civic responsibilities under the Constitution that lack of voting prevents her from doing, nor is there any recognition that she also sees him as no different from her in his responsibility to meet the needs of any child he decides to bring into the world.  Nonetheless, the doctor concludes she is not insane and that "in women, courage is often mistaken for insanity."

Emily Leighton, the fictional wife of the fictional senator, portrays a bit of the "maternalist" view as well as a crashing awareness that she has been naive about how her husband and some laws of the time regarded her when her husband threatens to take the children in response to her joining the activism and she says “I am their mother.”  She does not acknowledge the concept of responsibility, either his responsibility to meet the needs of his children or her hers to fulfill civic responsibilities as well as to take responsibility for her own basic financial needs and for meeting some of the basic financial needs of the children.  She does state at a later point that she has joined the protests because her daughters are the reason she is there. 

The "votes for women" advocacy continues even after World War I starts, which presents an interesting issue of the importance of national unity in wartime.  Alice Paul, in her characteristic utter Quaker honesty, was not going to pretend unity when it wasn't there when the US was at war.   This would put the US at risk.   In her view of rights and responsibilities of person regardless of sex, she would see a pretense of unity as a corruption of her responsibilities as a citizen, although this is not depicted in the movie. Ben Weissman, a fictional character who represents the press that covered the women in their protests and advocacy says to her at one point: "You couldn't fold.  You don't know how."  For a country at war, this is not a bad trait. 

Woodrow Wilson finally yields and joins the advocacy for the 19th Amendment in a speech before Congress, noting that "other free nations have and will do this and the US must as well".  Universal voting rights for all women citizens had already been adopted by several western states (WY - 1869, UT-1870, CO-1893, ID, NY), the Isle of Man in 1881, New Zealand in 1893, Australia in 1902, Finland in 1906, Denmark in 1915, and 19 other countries between 1917-1919, including the UK itself.

Although it is not depicted in the movie, Alice Paul would then get a law degree and for the rest of her life take up the effort for the Equal Rights Amendment, still believing that "it was already in there" (i.e. the US Constitution, with its language based in "rights and responsibilities of person and citizen") but needing to get it enforced in states that had "rights of man" constitutional provisions in violation of this, which many still have today.

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Abolition of Discrimination Against Women in Voting and In Holding Equal Rights in Britain and the US: Downton Abbey (to be completed)


Next Up:


Abolition of Discrimination Against Women in Voting and In Holding Equal Rights in Britain and the US:  The Wizard of Oz (to be completed)


Sunday, December 28, 2014

Movies and the US Constitution: Comparisons with the Roman / Spanish Empire: The Borgias

This is part of a series of posts following this summary of movies that provide a chronological history of the U.S. Constitution.  Here's the summary.

Depictions that Compare and Contrast the British-US constitutionalization with Roman
Empire-legacy Political Economies

21. The Borgias: the Original Crime Family (Showtime series, 2011) set in 1492 to 1503

Relevance to the US Constitution

A. Rule of Law

There are several ways in which this show illustrates a contrast and comparison between the British and US constitutionalization, and the Roman and Spanish Empire versions.

The Pope is elected, as was the Holy Roman Emperor, which would seem to give a lawful democratic or republican basis to the leadership, particularly more so than the methods of inheritance and warfare used in Britain up to the 1688 Glorious Revolution, however, the basis of this election only in men, such as the College of Cardinals, who have been ordained with "divine rights" from a male deity (i.e. "God") and then giving the Pope authoritarian power means there is effectively no legal boundary on the leaders.

The movie shows that when Spaniard Rodrigo Borgia was elected Pope, he was considered to have bought the Papacy.  The efforts to deal with this, even thought there are canon laws to the contrary, including laws that a Pope may be charged with simony and with "public lechery" (a Pope's private sexual relationships are not against canon law, while his public ones are) are ineffective, because of the authoritarian power he then holds.  (The Cardinals are depicted as not really caring about the sexual relationships, but do look to see if there is law regarding them they can use to oust the Pope.)

This is a contrast to the Magna Carta forming more effective boundaries on abuse of power in England in the reigns of John and Henry VIII and his children.   While Henry VIII did kill his wives on false claims, not something addressed in the Magna Carta (a single woman could be a "freeman" under its language but not a married woman when combined with laws of coverture imported in the Norman Conquest), efforts to disinherit any of his children by him or others as established by law, were not circumvented.

What ends up happening is the Pope uses the law entirely for his own ends in application to others, but it is not applied to him.  The frustration among the Cardinals about Borgia (Pope Alexander) mounts and he is abandoned by his Cardinals when Cardinal Della Rovare convinces King Charles of France to invade the Vatican.

The Pope thus appears not to have absolute authority over any of the Cardinals or King Charles, but in the end he does have such absolute authority as King Charles later submits to him in exchange for forgiveness and absolution for his crimes.  The Cardinals, including Cardinal Della Rovare, then return to Rome and Pope Alexander, although Della Rovare continues to challenge Pope Alexander’s authority, albeit not the institution of the Papacy itself and its lack of legal boundaries that led to Pope Alexander's abuses.   Pope Alexander then calls upon Cardinal Burkhardt, who  is shown being the custodian of and advisor on canon law.  He is asked by Pope Alexander to locate a precedent for his requiring the Cardinals who abandoned Alexander to show penitence by appearing in sackcloth and ashes.  Again, the Pope is able to use the law for his purposes but not to be subject to it himself.

Pope Alexander would later endorse the Spanish Empire's importation of slaves and the institution of slavery.   By 1625, the Spanish Empire involuntarily transported approximately 475,000 enslaved Africans to the Spanish Americas and Brazil—more than the number of Africans who disembarked in British North America and the United States during the course of the entire transatlantic slave trade.

Over the course of the Catholic Church's history, some Popes condemned slavery, while a number of others have endorsed it in keeping with Thomas Aquinas' teaching, including Pope Pius in 1866, just as the US constitutionalized clear prohibitions on slavery after the Civil War, almost 80 years after some US states (PA, NJ, CT, MA, NH, NY) outlawed it in 1787-88 (and others shortly thereafter, VT in 1791 and OH in 1903, with a number of other states also outlawing it prior to the Civil War) and decades after the British outlawed it in 1833 .

This is another illustration where a "good Pope" is still a very different thing than a constitution that sets a boundary on the leaders.  If you give a "good Pope" authoritarian power, you also give a "bad Pope", such as Alexander, such power.   Alexander was considered a "good Pope" by several of his successors (Sixtux V and Urban VIII considered him one of the most outstanding Popes since Saint Peter).

B.       Use of the term “person”

The view of "rights of man" and "responsibilities of woman" that is still set forth in constitutions in Roman Empire (and Spanish Empire) legacy countries, such as those in Italy, Ireland, Mexico, Central America, South America today is very visible in Borgias.  As noted, the the British constitution and the US Constitution do not use these words after 1688, when only the word "person" is used.

These rules originated with Octavian, the successor to Julius Caesar in the conversion of the Roman Republic to a Roman Empire, who imposed the rules of single women no longer holding public status, prohibiting contraception, in an effort to get Rome's ruling classes to have more children.  It didn't work to get the ruling classes to have more children, but it did cause the poor to have many, many children and many generations of such, relegating them and future generations to poverty.  Eventually in succeeding centuries, Rome would be sacked and all that would be left was the Catholic Church.

These rules are still in place in the late 1400s of The Borgias as well as they are today in the Vatican and its canon law.  Women in The Borgias are shown as being allowed only to be married or to enter a convent.  The women who do not do this are "courtesans", such as the mothers of Borgia's children.  A woman on her own, even a widow, is not otherwise depicted, in contrast with the widows of Britain recognized in the Magna Carta, or the single women that Elizabeth I would represent when she holds the throne a few decades later.  Under the laws of coverture in England imported in the Norman Conquest, a married woman lost her rights but a single woman could still hold them, functioning as a freeman, as outlined in the Magna Carta.

Women also required dowries in Rome in contrast with the Norse model in Vikings where the parents of both the bride and groom contribute to the wedding and the wife retains her agency and ability to earn, own land, and provide, following the wedding, as we saw with Lagertha and Ragnald.

Pope Alexander had a number of children, some of which he acknowledged while others he did not.   He begins to include his four children with Vannozza (Giovanna) dei Cattani in many of his dealings. One of these is his daughter Lucrezia.  To raise her dowry, one of her brothers kills an Ottoman Prince who has a bounty on his head by another Ottoman ruler.

At the wedding of Lucrezia, her mother Giovanna dei Cattani is not allowed to attend on Pope Alexander's determination that she is a courtesan, and he brings another mistress, Giulia Farnese.

Then there is an illustration of how the sexism becomes reversed when Pope Alexander is seeking to get Lucrezia out of the marriage to Lord Giovanni Sforza, who had also not been willing to defend the Pope when the army of King Charles of France was marching on him.  She is depicted as being visibly pregnant with another man's child, however, this view that Lucrezia gave birth to a "secret child" at this time is not certain historically.   In the depiction, Pope Alexander calls upon Cardinal Burkhardt, the custodian of and advisor on canon law.  Cardinal Burkhardt uses canon law authority to find an annulment of the marriage of Lucrezia and Sforza on grounds of nonconsummation (in several previous scenes of Sforza and Lucrezia are shown having sex).  Lucrezia, shielded behind a screen so no one can see her visible pregnancy, lies and says Sforza is impotent.  Burkhardt says Sforza could demonstrate potency with Lucrezia in front of canon lawyers.  Or Sforza could demonstrate potency with courtesans in front of canon lawyers and public of Rome.  Pope Alexander says a demonstration in front of the Cardinals would be acceptable as well. The courtesans come in and Sforza says he wants a divorce (i.e. he is unwilling to have public sex with the courtesans), that he could not and did not consummate the marriage and that he has always been impotent.  Pope Alexander then declares the marriage annulled.

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