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Tuesday, May 31, 2016

THE NEGRO AND THE SARDINE

The Negro and The sardine by Elihu N. Pleasant Bey




BY ELIHU N. PLEASANT BEY

THE NEGRO And THE SARDINE (A Moorish Analogy) The political and social metamorphosis of West African Moors made into American Negro, Black, Colored and today’s African American (NBC) Slaves is very analogous to how Sardines are made. There are many species of small fish indigenous to the great Seas of the Earth and The Great God created them all. Yet, there is not one fish in any of the seas named “Sardine”!

Like the NBC, these especial fish are not labeled “Sardines” until captured, processed and canned by men. A trivia research shows the brand name “Sardine” derived from Sardinia, an Italian Island in the Mediterranean Sea. The word “Sardine” actually refers to many groups of small fishes.

Pilchards, Sprats and Atlantic Herrings, (mostly young herrings), are the primary fishes which make the array of
food fish called “Sardines”.

Pending where they are caught the fish are then denationalized, commercialized and advertised as South African Sardine, Pacific Sardine and (of course) European Sardine.

Young Herrings, which only grow from 9 to 12 inches, are packed without heads or tails. Naturally, being without head and tail, who can trace the past status or future of the fish?

Consequently, without these identifications, “Sardine” is what they are called now! 
There are a variety of packaging operandi to the finale which people call “Sardines”. 
They are often smoked, packed in oil, water, mustard or hot sauce, etc. Either way, the result is the true identity of the fish is legally concealed from the public under the marketing label “Sardines”.

Speaking about the general public…not many people notice there is Tuna in cans of Tuna, Salmon in cans of Salmon and Mackerel in cans of Mackerel.

BUT! What on Earth (that was once in the sea) is in cans of Sardines?

So how does the Negro fit into all this?

As The Great God did not create ‘Sardines’ nor placed them in the sea, like so, The Creator did not create ‘Negroes’, ‘Indians’, ‘Chicanos’, ‘Blacks’, ‘White Folks’, ‘Latinos’, ‘Colored People’ or ‘African Americans’ nor place them on the Earth.

The many Moorish Nationals in today’s Western Hemisphere are a caucus of Nations, Tribes and Countries of the Ancient Moorish Empire of Northwestern and Southwestern shores of Africa; direct Descendants of Old Man Ham.

All Members of the Human Family are indigenous to the Earth by divine origin.

These West Africans did not become Negro, Blacks and Colored People until the advent of slavery in the Americas and associated “Slave Breaking Islands” in the Atlantic.

As a paradigm, ‘Sardines’ and ‘Negroes’ are evil brand names and labels, placed upon deities captured in garbs of flesh, which would otherwise be autonomous in their true state and natural status.

Tragically, whereas many seaside countries produce and export Sardines from their nationalized Fishing Industries, the so-called “NBC” People are made only in America.

Negroes are never imported. And whether they are exported by way of The United States Military, or her Businesses, for her Schools, Churches, and Sports or spurious pleasures and vacations the Negro, mass produced in America, will go and return still in the same psychological “NBC” cans of slavery from which they departed.

The term “Black People” is a misnomer identifying a programmed and processed People.

In the computer world a person learns the greatest of programs are limited to the capacity of the computer’s memory.

Mental Slavery” is when the Soul or thinking faculties of Man, that consist of divine gifts of thinking, reasoning, willing, understanding and remembrance has been minimized into an unnatural state to function centripetally against it’s true God Self.

Man’s mind is not capable of forgetfulness but his future is limited by his recorded history.

It is in the nature of the mind to become what it thinks.

And since the State Officials of their birth have certified the African Descendants born in America,, to be either Negro, Black or Colored they remain complacent in a feigned Citizen status to the United States.

There is very little distinction between the Negro and the Sardine.

This is because unlike countless Sardines, which are decapitated and canned, it is the head (mind) of the Africans that has been bound, processed and canned.

Rarely do the NBC look deep enough into his mind to see The Self as the very image of God. As the tail of the Sardine is removed, so is the true history of the West African Nationals.

Now neither the fish nor the man can be properly identified without head or tail. This mental canning process takes place in the United States Judicial Industries on a conveyer belt called the Reconstruction Amendments (13th, 14th and 15th).

Through the powers of the 14th Amendment the head of the African remains physically attached although his true history and future are severed by the misnomers “NBC” that is hidden in the deceptive words “All Persons Born …”. Hence, they never realize their personage has been certified to be that of a slave since birth.


The canning and misnaming of herrings and the certified misidentification and denationalization of the West African Moors are too similar to ignore. 

Birth Certifications are authorized by the states wherein all persons (commercial properties) are born or reside”.

All one has to do is read the 14th Amendment and their State-issued Certificate of Live Birth. 

If the latter has Negro, Black or Colored sanctioned by the State’s Seal…chances are, immediately after their divine birth, they had been processed to be a Slave. This is the beginning of the “Canning Operandi” to the finale of today’s so-called “African Americans”.

It matters very little whether they were labeled N, B or C, or Afro, or Coon, etc. 

The one free National Name has been concealed under the grand marketing label of “American Citizen”. 

Needfultosay, no NBC can ever be a first class citizen to any Nation because NBC were/are names given to U.S. Slaves, in the U.S. and for the U.S. 

The great Dred Scott Supreme Court Decision sustained this as a perpetual fact of law.

This is why the 14th Amendment is an Ex post facto Law, hoax and a sham that pretends to suddenly transform Negro Slaves into U. S. Citizens.
Or, is that making Herrings into Sardines?

All true and sacred records reveal it is the Great God alone that makes Men and Fishes. 

But being in a likeness of God, it is in the power of man to make slaves of other men and Sardines of Sprats and Pilchards. 

The canning of Sardines and the Denationalization Processing of the African descendants, like a bad beat, is still going on! And On! And On! 

Nevertheless, the carnal customs of Man does not alter the nature of truth. 

Like the powerful aroma steeped from the deaths of millions of Herrings under the disguise of “Sardines”, anyone can sense there is an ungodly stench cast off from the same people acting as Coloreds in the 40’s, Negroes in the 50’s, Blacks in the 60’s, Afro in the 70’s, Afro-Americans (Nubians, Bilalians) Blacks in the 80’s then African Americans in the 90’s. 

Do these Man-made Marketing Labels likewise serve the same identifying purposes as the various brand names of sardines?

Know, not withstanding, no one has a lasting power to change Man from his descendant nature.
Still, it is in the nature of the mind to become what it thinks.


And the Man who thinks he is NBC can never attain a free national status because of his mind has been processed to the limitations of property.
As the vision of a Goldfish is confined to the jurisdiction of its aquarium, the thought pattern of the Negro cannot think beyond its blackness.
Without a doubt, these misnomers are concealing the one and only Free National Name to a Clean and Pure Nation of people. 
This hallowed Name of the Ex-slaves has been known esoterically for 135 years. It is now the greatest secret kept in America to date. Yet, it cannot be denied in 1865 the U.S. Congressional 13th Amendment brought forth on this Continent the Nationality of a 2nd new Nation. From finite and infinite points of view, the judicial question must again rise from the dust: Without removing its head and tail can a Herring be a Sardine? Without proclaiming his proper status by his and her one free National Name, can a Negro be a Citizen of any Government?
Hummm. There is something mighty, mighty fishy going on in The United States.
By Elihu N. Pleasant-Bey, Author of The Biography of Noble Drew Ali / The Exhuming Of A Nation 
Welcome to The Official site of The Universal Zulu Nation
www.pleasantbey.net or e-mail: drewali@pleasantbey.net


[3:26] Say, "Our god: possessor of all sovereignty. You grant sovereignty to whomever You choose, You remove sovereignty from whomever You choose. You grant dignity to whomever You choose, and commit to humiliation whomever You choose. In Your hand are all provisions. You are Omnipotent.

[3:27] "You merge the night into the day, and merge the day into the night. You produce the living from the dead, and produce the dead from the living, and You provide for whomever You choose, without limits." 


[3:28] The believers never ally themselves with the disbelievers, instead of the believers. Whoever does this is exiled from GOD. Exempted are those who are forced to do this to avoid persecution. GOD alerts you that you shall reverence Him alone. To GOD is the ultimate destiny. GET OUT OF DEBT NOW! http://www.newdebtelimination.com

National Bank Act (1864)

National Bank Act (1864)

Michael P. Malloy
In the 1830s the federal charter of the second Bank of the United States expired. Until the early 1860s, the federal government had no direct involvement in regulating U.S. banking. The national crisis of the Civil War pushed the federal government to reenter bank regulation. The war required vast amounts of money and credit, and difficulties in financing the war were draining the nation's gold supply. As a result, the gold standard, which gave value to the national currency, was eventually abandoned. Borrowing from banks created under state laws was one obvious source of needed credit. By 1861 there were approximately 1,600 state-chartered banks, but no central bank system (like the Federal Reserve) to monitor credit, and no banks directly subject to federal supervision.

To help finance the war, in 1861 Treasury Secretary Salmon P. Chase recommended the establishment of a national banking system. National banks could be chartered by the federal government and authorized to issue bank notes secured by U.S. government bonds. Chase's plan would have ensured a market for federal debt, since the new national banks would be required to buy the bonds.
However, the government first tried to finance the war directly by selling U.S. notes to the public, without creating national banks. By early 1862, Congress had authorized the issuance of $150 million in U.S. notes, the first of several issuances, but these sales did not satisfy wartime credit needs. When Chase's next legislative effort, the 1863 National Currency Act, did not solve the problem, it was amended and reenacted as the National Bank Act (NBA) (13 Stat. 100) in 1864, creating a national banking system on the model originally proposed by Chase. The national bank system, which outlasted the Civil War, became a central feature of the modern U.S. bank regulatory system. It established the federal-state "dual banking system" that has been a characteristic of U.S. commercial banking ever since.

FEATURES OF THE NBA
The NBA created the position of the Comptroller of the Currency as an office within the Treasury Department. The comptroller was authorized to issue national bank charters in legislation that has remained unchanged since 1864:
Associations for carrying on the business of banking ... may be formed by any number of natural persons, not less in any case than five. They shall enter into articles of association, which shall specify in general terms the object for which the association is formed.... These articles shall be signed by the persons uniting to form the association, and a copy of them shall be forwarded to the Comptroller of the Currency, to be filed and preserved in his office.
This language guided the creation of such powerful nationwide banks as Citibank and the Bank of America, as well as thousands of local banks. The system was originally intended to create a mandatory market for U.S. bonds, since each newly chartered national bank was required to deliver to the comptroller government bonds in an amount equal to $30,000 or one-third of its capital, whichever was greater. However, long after this requirement was revoked in 1913, the role of federally chartered national banks administered by the comptroller has continued to be significant in the national economy.

COURT CHALLENGES
As part of Chase's plan for financing the war, the statutes passed during the early 1860s imposed taxes on the capital and bank notes of commercial banks, both state and national. With the tax on state-chartered banks, Chase was attempting to encourage them to convert to national charters. This plan was challenged in Veazie Bank v. Fenno (1869), in which Chase, by then Chief Justice of the Supreme Court, wrote the majority opinion. The Court upheld the constitutionality of the tax, but it did not directly address the constitutionality of the NBA to grant banking charters.
That issue was finally addressed in passing in Farmers' & Mechanics' National Bank v. Dearing(1875). The Supreme Court stated that the constitutionality of the NBA rested "on the same principle as the act creating the second bank of the United States." That principle was upheld under the necessary and proper clause of Article I, section 8 of the Constitution in McCulloch v. Maryland (1819) and Osborn v. Bank of the United States (1824). The validity of the NBA has been unchallenged since then.

FLEXIBLE POWERS OF THE NATIONAL BANKS
Having accepted the constitutionality of the NBA, the Court went on to express the view that the national banks created under the act's authority were to be somewhat favored, and this has largely been their experience ever since. The national banking system now enjoys, in addition to basic banking powers like lending and accepting deposits, flexible power to engage in a broad range of other activities, including data processing services, lease financing of automobiles, municipal bond insurance, securities activities, and selling variable annuities, among many others.
The Office of the Comptroller, the oldest existing federal bank regulator, is still a bureau of the Department of the Treasury. The comptroller is responsible for administration of virtually all federal laws applicable to national banks, including all banks operating in the District of Columbia. The approval of the comptroller is required for practically any significant action taken by a national bank, including among other things chartering, establishment of branches, and changes in corporate control or structure. In addition, the comptroller has supervisory authority over the day-to-day activities of national banks, including loan and investment policies, trust activities, issuance of securities, and the like. These supervisory responsibilities are carried out, for the most part, through periodic on-site examinations of the banks by national bank examiners. In addition, the Gramm-Leach-Bliley Act of 1999 requires the comptroller to supervise the "financial services activities" of subsidiaries of national banks, the privacy of nonpublic personal information of customers of national banks, and consumer protection with respect to insurance sales by national banks, among other things.

Courts have generally treated the comptroller's decisions under the NBA and other statutes as authoritative. In Camp v. Pitts (1973), the Supreme Court held that the comptroller's actions were subject to a very limited standard of judicial review. This means that a party seeking relief in court faces great difficulty, as that party must meet very specific requirements to obtain a favorable ruling. This limited standard, now the basic approach used in judicial review of all federal bank regulators, has no doubt given the comptroller more flexible power to encourage the growth of the national banking system, without much judicial intervention.
See also: Bank of the United States; Federal Reserve Act.

BIBLIOGRAPHY
Krooss, H. E., ed. Documentary History of Banking and Currency in the United States. New York: Chelsea House Publishers, 1969.
Malloy, Michael P., ed. Banking and Financial Services Law: Cases, Materials, and Problems. Durham, NC: Carolina Academic Press, 1999; suppl., 2002–2003.
Malloy, Michael P. Banking Law and Regulation. 3 vols. New York: Aspen Law and Business, 1994.
Malloy, Michael P. Principals of Bank Regulation. (Concise HornBook Series) 2d ed. St. Paul, MN: West Group, 2003.
McCoy, Patricia A., ed. Financial Modernization After Gramm-Leach-Bliley. Newark, NJ: Lexis-Nexis, 2002.

The Gold Standard
During the nineteenth century, U.S. currency was backed by both gold and silver—in other words, a dollar in silver, nickel, or copper coins or in paper money was guaranteed by the government to be convertible into a dollar's worth of either metal. As a result of this "bimetallic standard," the valuation of U.S. currency fluctuated wildly. Because the value of the two metals on the open market was constantly changing, speculators were able to turn a profit by selling their coins for more than their face value when the value of the metal exceeded its denomination. When the government flooded the market with silver coins, the price of silver dropped, citizens traded in their silver coins for gold, and federal gold reserves were exhausted. At the same time, prices of wholesale and retail goods saw a steady decline from the end of the Civil War through the 1890s, sending farmers and other providers of goods, whose fixed debts did not decline, into crisis. This chronic monetary instability was a large factor in the 1896 election of President William McKinley, who ran on a platform that included a change to a gold standard. In 1900 McKinley signed the Gold Standard Act, making gold reserves the basis of the monetary system. The gold standard remained in effect until 1933, when the economic pressures of the Great Depression—including gold-hoarding by a panicked citizenry—led the United States to abandon it, and legislation was passed that allowed the Federal Reserve to expand the supply of paper money irrespective of gold reserves.

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THE HISTORY 0F THE PUBLIC/PRIVATE DISTINCTION

1982]


Mo:R.To~ J. HORWITZ t

The distinction between public and private realms arose out of a double movement in modern political and legal thought. On the one hand, with the emergence of the nation-state and theories of sovereigntyin the sixteenth and seventeenth centuries, ideas of a distinctly public realm began to crystallize.1 On the other hand, in reaction to the claims of monarchs and, later, parliaments to the unrestrained power to make law, there developed·a countervailing effort to stake out distinctively private spheres free from the · eri• croaching power of the state.2 Natural rights theories were elabo• rated in the seventeenth century for the purpose of setting limits on state power, both over property and religious conscience. ·Rights theories were therefore not only efforts to incorporate into law what one writer has called a philosophy of "possessiveindividualism," 3 but also to provide an important basis for arguing for religious toleration.
One can trace the emergence of a distinctively public realm in various legal doctrines. By the late medieval period, for example, English law had already begun to draw a distinction between two different roles of the monarch as landowner. First were the lands the King held as feudal lord. These he could alienate as private property. But, increasingly, English law defined a second category of crown lands-in essence,public lands-which he could not alien• ate. Here we see an example of the gradual emergence of a dis• tinctively public realm, which in the field of crown ownership of land finally crystallized in seventeenth century struggles·over the King's power to alienate land between high and low watermark."
Taxation provides a fascinating example of the emergence of
the public/private distinction. As late as the sixteenth century, English judges still analyzed taxation, not as an exaction by the
t Professor of Law, Harvard University. A.B. 1959, College of the City of New York; Ph.D. 1964, LL.B. 1967, Harvard University. Member, Massachusetts Bar.
1 See D. HANsoN, FROM KINGDOM TO COMMONWEALTH 1-19 (1970).
2 See J. APPLEBY, EcoNOMIC THOUGHT AND IDEOLOGY IN SEVENTEENTH-CEN• TURY ENGLAND 62-63 (1978). See generally J. GouGH, FUNDAMENTAL LAw IN ENGLISH CONSTITUTIONAL HISTORY (1961); C. McPHERSON, THE POLITICAL THEORY
OF POSSESSIVE INDIVIDUALISM ( 1970).
3 C. McPHERsoN, supra note 2.
4 See D. HANsoN, supra note 1, at 143-46. (1423)
1424 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 130:1423
state but as a private gift from the donor-the taxpayer. Parlia• ment was thought to have simply arranged this consensual private transaction.5 Only with the development of theories of sovereignty in the seventeenth century did taxation begin to be understood as part of public law.
Another set of issues illustrates the same point, highlighting
how recently it was that a distinctively public realm came to be a generallyunderstood part of political and legal consciousness. Until the nineteenth century, lawsuits involving the removal of a public officialfrom officewere analyzed more frequently than not as ques• tions of property. The officeholder often successfullyclaimed a property interest in the officefrom which he could not be divested." So we see, on one side, that it was only gradually that English
and American law came to recognize a public realm distinct from
medieval conceptions of property. And equally gradually legal doctrines developed the idea of a separate private realm free from public power.
Although one can find the origins of the idea of a distinctively
private realm in the natural-rights liberalism of Locke and his suc• cessors,only in the nineteenth century was the public/private dis• tinction brought to the center of the stage in American legal and political theory. Before this could occur, it was necessaryto under• mine an earlier tradition of republican thought that had closely identified private virtue and public interest,"
The emergence of the market as a central legitimating institu• tion brought the public/private distinction into the core of legal discourse during the nineteenth century.8 Although, as we have seen, there were earlier anticipations of a distinction between public law and private law, only the nineteenth century produced a funda• mental conceptual and architectural division in the way we under• stand the law. One of the central goals of nineteenth century legal thought was to create a clear separation between constitutional, criminal, and regulatory law-public law-and the law of private transactions-torts, contracts, property, and commercial law.

5 Lampson, Some New Light on the Growth of Parliamentary Sovereignty: Wimbish versus Taillebois, 35 .AM. PoL. Ser. .REv. 952 ( 1941).
GW. NELSON, AMERICANIZATIONOF THE COMMON LAW 125 (1975); Nelson, Offeceholding And Pouienoielding: An Analysis of the Relationship Between Structure And Style In American Administrative History, 10 LAW & Soc'y REv. 187, 194-95 (1976).
7 G. Woov, THE CREATION OF THE .AM.EmcANREPUBLIC, 1776-1787, at 53-65,
608-10 ( 1969).
s The classic work is K. PoLANYI, THE GREAT TRANSFORMATION( 1944). See generally P. ATIYAH, THE Brsa AND FALL OF FREEDOM OF CONTRACT 226-31 (1979).
Let me offer some illustrations. Among the most famous is the entirely novel separation between public and private corpora• tions in the Dartmouth College Case,9 decided in 1819. Its pur• pose-certainly the purpose of Justice Story's famous concurring opinion-was to free the newly emerging business corporation from the regulatory public law premises that had dominated the prior law of corporations, whether municipal or trading corporations; both of which were regarded as arms of the state.
Another more all-encompassingexample is the effort of nine•
teenth century thinkers to contractualize-that is, to "privatize"-a host of common law doctrines that had previouslyserved to regulate bargains. The watering-downof doctrines like the rule that equity will not enforce unfair contracts was inspired by the idea that con• tract is an entirely private institution between consenting individ• uals in which the state should have no interest.t? By 1850, it was common for courts to permit parties to contract out of common law duties, which only one generation earlier had been regarded as beyond their power to alter.P
A final example of the persistent effort of late nineteenth• century legal thinkers to create a sharp distinction between public and private law was the movement to eliminate punitive damages in tort. Because the purpose of punitive damages was to use the tort law to regulate conduct, not merely to compensate individuals for injuries, their imposition was regarded as a usurpation of the public law functions of the criminal law. Several states abolished punitive damageson the grounds that combining public and private law functions was an unhealthy and dangerous business.12
What were the concerns that created a virtual obsession with separating public and private law, both conceptuallyand practically, during the nineteenth century? Above all was the effort of ortho• dox judges and jurists to create a legal science that would sharply separate law from politics. By creating a neutral and apolitical system of legal doctrine and legal reasoning free from what was thought to be the dangerous and unstable redistributive tendencies of democratic politics, legal thinkers hoped to temper the problem of "tyranny of the majority." Just as nineteenth-century political economy elevated the market to the status of the paramount insti-

!I Trustees of Dartmouth College v. Woodward, 17 U.S. ( 4 Wheat.) 518, 559,
669-73 ( 1819).
10 See generally P. ATIYAH., supra note 8.
11 M. Honwrrz, THE TRANSFORMATION OF AMEru:cAN LAw 201-07 {1977).
12 See, e.g., Murphy v. Hobbs, 7 Colo. 541, 5 P. 119 (1884); Fay v. Parker,
53 N.H. 342 (1872).
1426 UNNERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 130:1423

tution for distributing rewards on a supposedly neutral and apoliti• cal basis, so too private law came to be understood as .a neutral systemfor facilitating voluntary market transactions and vindicating injuries to private rights. The hostility to statutes expressed by nineteenth-century judges and legal thinkers reflected the view that state regulation of private relations wasa dangerous and unnatural public intrusion into a system based on private rights.
The sharp distinction between public and private began to come under attack in reaction to the Supreme Court's 1905 decision in Lochner v. New York,13constitutionalizing freedom of contract. For the next thirty years, the most brilliant and original legal thinkers America has ever had devoted their energies to exposing the conservative ideological foundations of the public/private dis• tinction. Culminating in the Legal Realist Movement of the 1920's and 1930's,judges such as Holmes, Brandeis, and Cardozo and legal theorists such as Roscoe Pound, Walter Wheeler Cook, Wesley Hohfeld, Robert Lee Hale, Arthur Corbin, Warren Seavey,Morris Cohen, and Karl Llewelyn devoted themselves to attacking the premises behind the public/private distinction.P Paralleling argu• ments then current in political economy, they ridiculed the invisible• hand premise behind any assumption that private law could be neutral and apolitical. All law was coercive and had 'distributive consequences, they argued. It must therefore be understood as a delegation of coercive public power to individuals, and could only be justified by public policies. Contract, that most "private" of nineteenth-century legal categories, was reconceptualized as simply a delegation of public power that could be justified only by public purposes. Fuller and Perdue's famous 1936 article on contract damages 15 demonstrated that awarding damages for breach of con• tract could not be deduced from the "logic" of contract or from the will of the parties, but was a state-imposed sanction determined by the choice among policies. Shelley v. Kraemer 16 is perhaps the most famous culmination of a generation of successful attacks on the public/private distinction.
By 1940, it was a sign of legal sophistication to understand the
arbitrariness of the division of law into public and private realms.
13 198 U.S. 45 ( 1905).
14 See, e.g., Cohen, Properly and Sovereignty, 13 Con.'<ELL L.Q. 8 ( 1927); Cohen, The Basis of Contract, 46 HARv. L. fu:v. 553 (1933); Hale, Force and the State: A Comparison of "Political" and "Economic" Compulsion, 35 CoLUM. L.
REv. 149 (1935); Pound, Liberty of Contract, 18 YALE L.J. 454 (1909).
15 Fuller & Perdue, The Reliance Interest in Contract Damages (pt. 1), 46
YALE L.J. 52 (1936).
1s334 U.S. 1 (1948).

No advanced legal thinker of that period, I am certain, would have predicted that forty years later the public/private dichotomy would still be alive and, if anything, growing in influence. What accounts for its surprising vitality?
Until World War II, twentieth-century progressivism empha•
sized the role of the state .in creating institutions that would pro• mote a public interest.17 In reaction to the spread of totalitarian• ism, progressivismafter World War II capitulated to the argument that any substantive conception of the public interest was simply the first step on the road to totalitarianism.18 The idea of a public interest thus came to be formulated in the purely proceduralist terms of interest-group pluralism-simply as whatever was the out• come of competition among interest groups.19 This was, it should be emphasized, a twentieth-century return to a market theory of the public interest-but this time the competitors were groups and the ;marketwas the political process.
Earlier, progressivismposited a sharp conflict between a sub•
stantive public interest and private self-interest, and regarded a primary function of the state as creating institutions that would transcend private self-interest. Unless the individualism and self• ishness that was part of the culture of capitalism could be moder• ated, they believed, the systemcould not survive. Most of the Legal Realists operated out of this political paradigm and understood their task to be the moderation and limitation of private greed and domination.
But once the idea of a substantive public interest began to confront ridicule after World War II, the function of the state came to be redefined as simply a reflection of the sum of the vectors of private conflict. Private self-interest, which under the progres• sive program was to be kept suspiciouslyin check, once again be• came the only legitimate political reality, and the idea of an au• tonomous public realm began correspondinglyto sink into oblivion.
The recent revival of natural-rights individualism in legal and
political theory is a symptom of the collapse of a belief in a distinc•
tivelypublic realm standing above private self-interest. It is not only
a dangerous symptom of the unravelling of all sense of community,.

11 See J. LA."'<DIST, HE ADMINISTRATIVE Paocsss 10-16, 26-28, 98-99 (1938); Lewis, The "Consumer" and "Public" Interests Under Public Regulation, 46 J. PoL. ECON. 97, 105 (1938).

is See E. PuncELL, THE Crusts OF DEMOCRATIC THEORY: SCIENTIFIC NATURAL• ISM AND THE PROBLEM OF VALUE 235-66 (1973).

19 Schubert, Is There A Public Interest Theory?, in THE PUBLIC lNrnREsT 162. ( C.J. Friedrich ed. 1962); Sorauf, The Conceptual Muddle, in id. 183.
142& UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.130:1423

but also a relapse into a predatory and vicious conception of politics.
Yet reality has a funny way of intruding upon theory. The public/private distinction could approximate the actual arrange• ment of legal and political institutions only in a society and. econ• omy of relatively small, decentralized, nongovernmental units. Private power began to become increasingly indistinguishable from public power precisely at the moment, late in the nineteenth· century, when large-scalecorporate concentration became the norm. The attack on the public/private distinction was the result of a widespread perception that so-called private institutions were ac• quiring coercive power that had formerly been reserved to govern• ments.
The contemporary erosion of the public/private distinction in many areas of legal doctrine described by Professor Stone 20 is but another symptom of the passing of that world of nineteenth-century decentralized competitive capitalism that once made that distinction a rough approximation of reality.

20 See Stone, Corporate Vices and Corporate Virtues: Do Public/Private Dis•
tinctions Matter?, 130 U. PA. L. Rzv. 1441 (1982).


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