The Supreme Court and Federal Reserve are corrupt in the same way. Both institutions defer excessively to legislative and regulatory agendas instead of sticking to their respective mandates.
Archive for the 'Law' Category
Eamon de Valera’s April 1945 missive to Churchill, Roosevelt and Stalin:
After the cease fire, you must begin a peace process (even if, at first, you lack cooperation from your opponents). The first steps in that peace process are: to recognize the Axis Powers’ governments (even if not democratic) to allow all parties to return to their borders as they existed prior to the outbreak of these past regrettable hostilities and finally, to allow international trade to flow freely so that hungry innocents may be fed, clothed, and receive medicine. It is true that this might allow (some of) your enemies to rearm. But my own experts assure me that this possibility is minor. Inconsequential, abstract, and theoretical future risks such as potential rearmament cannot overcome the pressing, real, and current demands of suffering humanity and international law.
Posted by Mrs. Davis on 2nd May 2015 (All posts by Mrs. Davis)
Now that charges have been brought against the 6 officers involved Baltimore’s streets will return to their state of a month ago. But there will be a trial and that trial will have a significant impact on the direction of Baltimore’s future. The trial has three possible outcomes:
First, the trial can be seen by most to have been fair and just.
Second, the trial results in acquittals seen to be unjust by the city black community.
Third, the trial can result in convictions seen outside Baltimore as unjust.
The first seems least likely based on Ms Mosby’s performance announcing the charges on May Day. But in the event the prosecution and trial are depoliticized Baltimore could resume its leisurely contraction into a bedroom community for Washington D. C.
But if either the second or third options eventuate they could turn Baltimore into a much different place. Acquittals would reignite rioting on the scale of 1968. A kangaroo court would indicate that the rule of law had degenerated into tribal justice. In either event, the abandonment of Baltimore by private employers and what’s left of its middle class would accelerate.
Headquarters are important to a community. They provide the leaders who are committed to the health of the community. When the head of every organization has eyes on promotion to a bigger job closer to headquarters there is not the continuity or commitment necessary to make the long term investments to support the young and less fortunate in the community. Today of the 25 largest employers headquartered in Baltimore only three are not education, government or healthcare related; T. Rowe Price, the mutual fund company, and Broadway Services and Abacus, security guard and janitorial contracting firms. Johns Hopkins won’t be able to do it alone.
This lack of headquarters also indicates that there is little economic reason for Baltimore to exist. The primary force in Baltimore is inertia leading to ever greater entropy. All solutions are temporary and Baltimore no longer solves a problem.
So, if Baltimore’s judicial environment begins to look more and more like Dodge City circa 1880 and it has little economic opportunity, who will stay? Disinvestment and declining tax base will result in inadequate funds to provide even minimal services to an increasingly needy and unassimilated population. Financial support will increasingly come from sources other than the city itself, primarily the Federal government. Sounds like an Indian reservation to me. And Baltimore will not be alone in this transition, only first.
When I lived there the local brew, Natty Boh, advertised to its market as the Land of Pleasant Living. Now it ain’t even got charm, hon.
Do not fail to read these links describing the use of the police in Wisconsin against individuals who dared offer opposition to the Democratic Party–Big Labor machine:
Glenn Reynolds at USA Today: Wisconsin’s dirty prosecutors pull a Putin
David French at National Review: Wisconsin’s Shame: I thought it was a home invasion
Also David French at NR: The deep state knows how to protect itself
If these reports are true, or anything like true–and I see little reason to doubt it given the conduct of the Democratic Party and its agents and allies over the past decade–then the threat to individual rights and the rule of law in America is even more serious than I thought it was.
Posted by Michael Kennedy on 24th March 2015 (All posts by Michael Kennedy)
Thomas Sowell has a fine tribute to the leader of Singapore who died yesterday.
It is not often that the leader of a small city-state — in this case, Singapore — gets an international reputation. But no one deserved it more than Lee Kuan Yew, the founder of Singapore as an independent country in 1959, and its prime minister from 1959 to 1990. With his death, he leaves behind a legacy valuable not only to Singapore but to the world.
Born in Singapore in 1923, when it was a British colony, Lee Kuan Yew studied at Cambridge University after World War II, and was much impressed by the orderly, law-abiding England of that day. It was a great contrast with the poverty-stricken and crime-ridden Singapore of that era.
Today Singapore has a per capita Gross Domestic Product more than 50 percent higher than that of the United Kingdom and a crime rate a small fraction of that in England. A 2010 study showed more patents and patent applications from the small city-state of Singapore than from Russia. Few places in the world can match Singapore for cleanliness and orderliness.
43% of Democrats believe that the President should have the right to ignore court rulings if they are standing in the way of actions he feels are important for the country. Only 35% of Dems disagree, the remainder being undecided.
This from a Rasumssen poll of likely voters, which also shows that 81% of Republicans disagree with the President having the power to ignore the courts.
Today’s Democratic Party is an enemy of American self-government, and it appears that a lot of the party’s supporters want to it be this way.
See also my related posts:
Mike Lotus Spoke to the University of Chicago Law School Federalist Society Student Chapter on February 3, 2015 About “America 3.0 and the Future of the Legal Profession”
Posted by Lexington Green on 5th February 2015 (All posts by Lexington Green)
Huge thanks to the University of Chicago Law School Federalist Society Student Chapter on Tuesday, who invited me to speak to their group on February 3, 2015. I previously spoke at the Booth School of Business, which was also a thrill. I am most grateful for the opportunity to speak at the University of Chicago, my undergraduate alma mater.
The event was well-attended. I attribute this in part to the drawing power of the free buffet of Indian food, and not exclusively to the appeal of the speaker. The students were attentive and asked good questions. I understand that audio of the talk will be available at some point. I will post a link when it is available.
My topic was “America 3.0 and the Future of the Legal Profession”.
First I spoke about some of the themes from America 3.0: Rebooting American Prosperity in the 21st Century, Why America’s Greatest Days are Yet to Come, which I coauthored with James C. Bennett. I discussed the cultural foundations of American prosperity and freedom, the role of our legal profession in American history, in particular in adapting to technological changes, I then discussed some of the major technological changes which are now sweeping our nation and the world. I said that some of them will be general purpose technologies which will cause changes on the scale of the steam engine, railroads or computing itself.
Posted in Academia, America 3.0, Book Notes, Chicagoania, Economics & Finance, Education, Entrepreneurship, Law, Personal Narrative, Politics, Quotations, Society, Tech, USA | Comments Off on Mike Lotus Spoke to the University of Chicago Law School Federalist Society Student Chapter on February 3, 2015 About “America 3.0 and the Future of the Legal Profession”
1) If a report in The Chronicle of Higher Education (excerpted here) is correct, then Rensselaer Polytechnic president Shirley Jackson seems a little…imperious…in her approach to her job.
Having created the very model of an undemocratic, corporate university, President Jackson is appropriately imperious. According to the Chronicle of Higher Education, she has a series of rules that are clear to everyone. These include: 1) Only she is authorized to set the temperature in conference rooms; 2) Cabinet members all rise when she enters the room; 3) If food is served at a meeting, vice presidents clear her plate; and 4) She is always to be publicly introduced as “The Honorable Shirley Ann Jackson.” Falling into rages on occasion, she publicly abuses her staff and frequently remarks: “You know, I could fire you all.” In 2011, RPI’s Student Senate passed a resolution criticizing her “abrasive style,” “top-down leadership,” and the climate of “fear” she had instilled among administrators and staff. It even called upon RPI’s board of trustees to consider Jackson’s removal from office. But, once again, the board merely rallied in her defense.
2) Senator Claire McCaskill, a Democrat from Missouri, blocked the nomination of Lt General Susan Helms to head the Air Force Space Command, leading to Helms’ subsequent retirement from the service. McCaskill assailed Helms’ 2012 decision to grant clemency to an officer serving at Vandenberg Air Force Base, Calif., who had been convicted of aggravated sexual assault.
Helms used her judgment and her command authority to prevent what she apparently viewed as an injustice, based on her review of evidence in the case. McCaskill said that the clemency decision “sent a damaging message to survivors of sexual assault who are seeking justice in the military justice system.” Apparently, McCaskill cares much more about “sending messages” than about justice to individuals. The message that she has sent to all American military commanders is this: Do not ever extend clemency in a matter where an individual has been accused of an offense which is of particular concern to the Democratic Party, or your career will be immediately destroyed.
If a governor pardons someone accused of witchcraft, then the governor himself must be a witch. That seems to be the level of McCaskill’s thinking here.
Much more about the case at this link.
3) Ayaan Hirsi Ali is a very courageous woman who was raised as a Muslim and has been attempting, in the face of many threats, to warn the western world about the danger of Islamic extremism. At an event in Washington, Joe Biden informed her that “ISIS had nothing to do with Islam.” Hirsi Ali disagreed. To which Slow Joe responded “Let me tell you one or two things about Islam.”
4) Speaking of Muslims…Omar Mahmood, a Muslim conservative who is a student at the University of Michigan, wrote a satire on political correctness, mocking the current vogue for claiming “microaggressions.” He was denounced by students of the “progressive” persuasion…”people attacked his dorm room door, egging it and leaving copies of his satirical article with notes on the backs including “Shut the f— up!” and “You scum embarrass us” and “DO YOU EVEN GO HERE?! LEAVE!!” along with various others, including an image of a creature with horns and another one of him with his eyes crossed out.” Mahmood was also fired from the student newspaper. He says that “the political environment on campus is radically left-wing and intolerant,” noting that:
“Almost all student clubs have ‘social justice’ wings… some use violent rhetoric, shameless rhetoric, to promote their ideology, and call it ‘liberation.’ They call it ‘tolerance’ and ‘equality’ and ‘creating a safe space’ — which is all very ironic.”
The students who reacted to Mahmood’s satire in this way are not worthy of being university students, or for that matter American citizens, and the administrators of this university should be ashamed of themselves for allowing such a climate to develop. They won’t be, though.
(I should have included this post in my Theme roundup on totalitarianism and the fully politicized society. It’s important enough, I think–especially in our current circumstances–to be worth putting up as a stand-alone rerun post.)
Almost five years ago, I reviewed the important and well-written memoirs of Sebastian Haffner, who grew up in Germany between the wars. I think the state of affairs in America today makes it appropriate to re-post some excerpts from the review and from the book.
In 1933, when Hitler became Chancellor, Haffner was working as a junior lawyer (refendar) in the Prussian High Court, the Kammergericht. He was comforted by the continuity of the legal process:
The newspapers might report that the constitution was in ruins. Here every paragraph of the Civil Code was still valid and was mulled over and analyzed as carefully as ever…The Chancellor could daily utter the vilest abuse against the Jews; there was nonetheless still a Jewish Kammergerichtsrat (high court judge) and member of our senate who continued to give his astute and careful judgments, and these judgments had the full weight of the law and could set the entire apparatus of the state in motion for their enforcement–even if the highest office-holder of that state daily called their author a ‘parasite’, a ‘subhuman’ or a ‘plague’.
In spring of that year, Haffner attended Berlin’s Carnival–an event at which one would find a girlfriend or boyfriend for the night and exchange phone numbers in the morning…”By then you usually know whether it is the start of something that you would like to take further, or whether you have just earned yourself a hangover.” He had a hard time getting in the Carnival mood, however:
All at once I had a strange, dizzy feeling. I felt as though I was inescapably imprisoned with all these young people in a giant ship that was rolling and pitching. We were dancing on its lowest, narrowest deck, while on the bridge it was being decided to flood that deck and drown every last one of us.
Though it was not really relevant to current events, my father’s immense experience of the period from 1870 to 1933 was deployed to calm me down and sober me up. He treated my heated emotions with gentle irony…It took me quite a while to realize that my youthful excitability was right and my father’s wealth of experience was wrong; that there are things that cannot be dealt with by calm skepticism.
Mike Lotus Participates in Immigration Reform Panel & Discussion, John Marshall Law School Federalist Society, November 5, 2014
Posted by Lexington Green on 3rd November 2014 (All posts by Lexington Green)
Mike Lotus will participate in an Immigration Reform Panel & Discussion at John Marshall Law School Federalist Society, November 5, 2014, 5:00 p.m., State Street entrance.
I am looking forward to the discussion.
Note the critical language: Food will be served.
Drink may be imbibed afterwards, as well.
Mike Lotus Speaking to the Indianapolis Federalist Society Lawyers Chapter about America 3.0 on August 14, 2014
Posted by Lexington Green on 1st August 2014 (All posts by Lexington Green)
Adrift without a map, we are, in the sea of current events. Especially after this last week, which brought us a ground war in Gaza and the shoot-down of a passenger airliner over Ukraine; both situations a little out of the depth of the past experience of Chicago community organizer, even one who spent his grade school years in Indonesia. Quite a large number of the blogs and commenters that I follow have speculated over the last couple of months – at least since last year – and have predicted disaster. They know not the day nor the hour, but they have read the various augurs according to their inclinations, suspicions and particular expertise, and gloomily speculate on the odds of various events occurring. There is something bad coming, the air is thick and heavy with signs and portents, never mind the cheery cast that the current administration and its public affairs division attempts to put on it. It’s like a makeup artist, plying the art on a six-months-dead corpse; it’s just not working.
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Yesterday here in Wisconsin, a (Jimmy Carter appointed) federal judge here in Dane County struck down the constitutional amendment that did not allow gay marriage. Immediately the clerks offices here in Madison opened up for extended office hours and began the ceremonies. Other counties did not follow suit, waiting for clarification.
The clarification is for the legal beagles to figure out. Some say you can start the gay weddings now, some say not. Of course the Dane County clerk doesn’t really care and off we go.
Glad they had extended office hours when conceal carry was decriminalized. Oh.
Me? Well, gay marriage is something that I never really cared that much about. Personally, I have no clue why the state is even involved in marriage, but that doesn’t seem to be the point. The gay marriage issue seems to me to be about the money. Of course, outside of being married, you can leave your assets to anyone you choose, assign powers of attorney and health care to anyone you choose, etc. etc. So to me, it is just about getting on someone’s insurance? Outside of that, I don’t see why so much time and energy was wasted on the gay marriage deal. In general, gays weren’t persecuted, like most Muslim countries where they are beheaded or stoned or whatever. So it is about insurance = money. Is that really it? Is it all about money?
That might be a bit cynical. But that’s me.
The constitutional amendment banning gay marriage passed 60% to 40%. That is pretty overwhelming. Now a judge overturns it. So much for the power of the people. But people need to be careful here. Don’t think that in the future, something else may be overturned. Anyone that can afford a good attorney can play this game.
It seems that the end game is in sight for gay marriage and honestly, I am somewhat happy. I am very tired of seeing gay pride marches, parades, and all the rest. All of this should now end, no?
I don’t care if anyone is gay. Just do your deal and live your life like the rest of the non gay people. I don’t go around parading my sexuality for everyone to see. It all seems so childish.
Cross posted at LITGM.
Posted by David McFadden on 4th June 2014 (All posts by David McFadden)
The word that liberals are assigned to use when writing about what the Supreme Court did to the Voting Rights Act of 1965 last term in Shelby County, Alabama v. Holder, 133 S. Ct. 2612 (2013), is “gut.” The Supreme Court “gutted” the Voting Rights Act, countless editorials, blogs, and articles say, while urgently pressing Congress to repair the damage. It’s not such a bad metaphor, actually, as gutting can mean removing the parts of a dead fish that are unwanted.
In the case of the Voting Rights Act, what the Court removed was Section 4(b) of the Act, an anachronistic test for the application of an extraordinarily intrusive (and theoretically temporary) provision, Section 5. Critics of Shelby County v. Holder obscure what those two sections actually say and do. If a state or political subdivision is covered by Section 5, it must obtain a declaration from the U.S. District Court for the District of Columbia or the attorney general of the United States that any change in a “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” does not abridge voting rights. Without that declaration, no one “shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure.” Despite its text, this provision has been interpreted to mean that any change in a covered jurisdiction’s election law has to get preclearance from the Justice Department or the U.S. District Court for the District of Columbia—including laws that draw electoral districts, which are not a “procedure with respect to voting” and do not deny anyone the right to vote for failure to comply with them. (A voter can’t comply—or not comply—with an ordinance that says councilman shall be elected at large.)
Section 5 was supposed to be a temporary, emergency provision expiring five years after the Voting Rights Act was adopted in 1965. It applied to states and political subdivisions that met two criteria set out in Section 4(b). The first was that the attorney general determined that on November 1, 1964, the jurisdiction had a “test or device” requiring a voter to prove his education, character, or morals. The second was that less than 50% of voting age citizens in the jurisdiction were registered on November 1, 1964 or less than 50% of such persons voted in the 1964 presidential election. At the time, this coverage formula was a good measure of whether blacks were being kept from voting. Southern states had been very resourceful in finding ways to do that without violating earlier civil rights laws.
Early on, these provisions were found to be within Congress’s constitutional powers. The Fifteenth Amendment says that the right of citizens to vote “shall not be abridged by the United States or by any State on account of race. . . .” Section 2 of the Fifteenth Amendment gives Congress the power to enforce the amendment “by appropriate legislation.” In 1966, the Supreme Court held that Section 5 of the Voting Rights Act, although “an uncommon exercise of congressional power,” was appropriate under the “unique circumstances” of the time, namely, pervasive defiance of voting rights that previous congressional remedies had been unable to stop. South Carolina v. Katzenbach, 383 U.S. 301, 309-10, 335 (1966). The Court found that Section 4(b)’s coverage formula “was relevant to the problem of voting discrimination” and was “rational in practice and theory.”
It did not remain rational in practice or in theory. Section 5, the eternal temporary provision, was renewed in 1970, 1975, 1982, and finally was renewed once more in 2006—until 2032! Although Congress repeatedly renewed Section 5, it never updated the coverage formula in the sense of basing it on recent conditions alone. In the first two renewals, Congress overlaid upon Section 4(b) the same tests with different years. So in 1970 jurisdictions that had a literacy test in November 1968 or less than 50% registration and turnout in the 1968 presidential election became subject to preclearance, in addition to jurisdictions already covered. In 1975, jurisdictions that had a literacy test in November 1972 and less than 50% registration or turnout in the 1972 presidential election also became subject to preclearance, in addition to jurisdictions already covered. The coverage formula was not changed when Section 5 was renewed in 1982 and 2006. All of the tests, including those based upon events long past, remained in effect.
The only way a jurisdiction entrapped by one of the tests could get out was to prove to the satisfaction of the D.C. District Court that no test or device had been used in the jurisdiction for ten years, that it had not committed any other voting rights violation, and that it had made an effort to eliminate intimidation and harassment of voters.
This “bail out” provision allowed the Supreme Court to avoid deciding whether the preclearance requirement was still appropriate in 2009. That happened after a Texas utility district filed suit in the D.C. District Court seeking a declaration that it could bail out or, in the alternative, that Section 5’s preclearance requirement was unconstitutional. On appeal, the Supreme Court held in Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193 (2009), that the utility district was eligible to bail out and, as a result, avoided deciding whether Section 5 or Section 4(b) was constitutional. But the Court had plenty to say about it nonetheless. Writing for the Court, Chief Justice Roberts cast doubt on the constitutionality of the preclearance requirement. The chief justice discussed the dramatic increases in registration and election of minorities (for which the Act deserves credit), the substantial federalism costs imposed by preclearance, and the antiquity of the coverage formula. Justice Thomas, concurring in part and dissenting in part, contended that the Court should have reached the constitutional questions and held Section 5 unconstitutional. No one wrote separately to defend Section 5. Justice Thomas wrote, “The Court quite properly alerts Congress that § 5 tests the outer boundaries of its Fifteenth Amendment enforcement authority and may not be constitutional.”
Congress ignored the warning and left Section 5’s preclearance requirement and Section 4(b)’s coverage formula unchanged. Rep. Robert Scott (Democrat of Virginia) even issued an obtuse press release boasting that the decision validated Congress’s work in establishing the continuing need for Section 5.
The issue returned to the Court four years later in a case brought by a county that was ineligible to bail out. In Shelby County v. Holder, the Court could not avoid the constitutional issues, or not all of them.
The Court wasn’t ready to declare Section 5 preclearance unconstitutional (although Justice Thomas was), but it did declare Section 4(b)’s coverage formula for preclearance unconstitutional. Again Chief Justice Roberts wrote the majority opinion. He said that preclearance is extraordinarily intrusive into the reserved powers of the states under the Tenth Amendment. It reverses the burden of proof, requiring some of the states to come, hat in hand, before the civil rights division of the Justice Department or a distant court to prove that a new law does not violate the Act and to beg for permission to implement it. Only some states are subject to this indignity despite the equal sovereignty of the states.
The purpose of the Fifteenth Amendment (often ignored in discussions of the Voting Rights Act) is to prevent denial of suffrage based on race. “To serve that purpose,” Chief Justice Roberts wrote, “Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in the light of current conditions.” Apparently that’s the standard of review the Court used. If so, the Court side-stepped a question the lower courts debated and Northwest Austin acknowledged. The Court’s precedent had suggested that the test for whether a law was within Congress’s power under section 2 of the Fifteenth Amendment was either that the law was congruent and proportional to the constitutional violation or just that it was a rational means to enforce the Fifteenth Amendment. Foregoing the choice between the two, the Court seems to have created a special test for laws that divide the states, i.e., they must “makes sense in the light of current conditions.”
Section 4(b) failed that test miserably. The House Report acknowledged progress made in minority registration, turnout, and office holding; yet Congress reauthorized the same requirements and coverage formula as if nothing had changed. Congress compiled a voluminous record full of stories about “second-generation barriers,” that is, electoral districts that allegedly dilute minority voting strength. Those so-called barriers did not bar anyone from voting and aren’t even prohibited by the terms of the Voting Rights Act. More to the point, such barriers as there are today did not inform the design of the test. The coverage formula based upon literacy tests no longer in force and turnout in the 1964-72 presidential elections was reenacted as if out of habit.
While that’s hardly sensible policy, how it adds up to a violation of some constitutional provision or other is not exactly clear. After completing his critique of the coverage formula and relating the unheeded warning in Northwest Austin, the chief justice simply announces that Congress’s “failure to act leaves us today with no choice but to declare §4(b) unconstitutional.” We’re not told if by some measure Congress exceeded its power under the Fifteenth Amendment or the Fourteenth Amendment or if Section 4(b) violated the Tenth Amendment, which Shelby County also argued. In this respect, the opinion is as bad as the one the Court rendered the next day in United States v. Windsor, 133 S. Ct. 2675 (2013), in which Justice Kennedy follows his social and sentimental objections to the Defense of Marriage Act with “legalistic argle-bargle” abruptly leading to the conclusion that the Defense of Marriage Act violated the Fifth Amendment’s due process clause, the equal protection component of the Fifth Amendment’s due process clause or of the Fourteenth Amendment, or something like that.
The declaration of the unconstitutionality of Section 4(b) is followed by dicta that have been misinterpreted as an “invitation” to Congress to come up with a better formula. Actually, the Court said, “Congress may draft another formula based on current conditions. Such a formula is a prerequisite to a determination that exceptional conditions still exist justifying such an ‘extraordinary departure from the traditional course of relations between the States and the Federal Government.’” Shelby County, 133 S. Ct. at 2631 (quoting Presley v. Etowah County Comm’n, 502 U.S. 491, 500-501 (1992)). A new coverage formula is not a goal the Court is setting for Congress; it’s a prerequisite to deciding whether Section 5’s preclearance requirement remains constitutional even with a sensible test for its application. If Congress were to establish that prerequisite by devising a new coverage formula and then the Court were to strike down the whole preclearance edifice, the howls of the Left that the Court had played whack-a-mole with the civil rights community would be entertaining indeed.
The president has shown uncharacteristic respect for the separation of powers by refraining from enacting a new coverage formula by his own fiat. And true to form, the 113th Congress, one of the best Congresses ever (using the correct metric of fewest bills passed), hasn’t enacted anything either.
There have been proposals, though, ranging from the ridiculous to the not terrible. On the ridiculous end of the spectrum, Michael Lind in Salon and Dylan Matthews in the Washington Post‘s Wonkblog imagined that the Court would have no choice but to uphold blanket coverage of all fifty states. On the contrary, the Court’s choice would be easy: imposition of the extraordinary burdens of Section 5 on each state, regardless of whether pervasive violations of the Fifteenth Amendment or none at all occurred in the state, would not survive any constitutional standard that the Court would apply.
More seriously, Sen. Patrick Leahy (Democrat of Vermont) and Rep. Jim Sensenbrenner (Republican of Wisconsin) introduced in January a bill (S. 1945 and H.R. 3899) prescribing a coverage formula based on violations of the Voting Rights Act and low turnout in the last fifteen years. Violations resulting from a requirement that voters present a photo ID would not count. That’s a welcome concession, but Republicans should insist that the bill clarify that statutory voter ID requirements are not a violation of the Voting Rights Act at all. To its discredit, the bill also imposes on the states meddlesome reporting requirements regarding polling places, changes in election laws, registration, and election results.
In March the bill was referred to the House Subcommittee on the Constitution and Civil Justice. It was referred to the Senate Judiciary Committee in January. Neither committee has held hearings. That’s just as well. It is past time to allow Section 5 to expire, but Congress has never had the courage to let that happen. Inaction on the coverage formula is the next best thing, at least until Republicans control more than the House of Representatives. What we need now is a do-nothing Congress.
This would appear to be the new theme song for the Fed-Gov’s Bureau of Land Management – that bane of ranchers like Cliven Bundy – as well as a whole lot of other ranchers, farmers, loggers, small landowners, and owners of tiny bits of property on the edge of or in areas of spectacular natural beauty, west of the Mississippi and between the Mexican and Canadian borders.
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–Will Israel Be the Next Energy Superpower? – A balanced, thoughtful look at recent developments from Arthur Herman. There is cause for optimism.
–Wildlife photographer pleads guilty to violating Endangered Species Act – The gist of the story is that some guy was photographing “endangered” birds from less than 500 feet away, which apparently is a violation of the Endangered Species Act, and was turned in to the feds by zealous environmentalists who saw him do this. Of course he copped a plea. If he had taken his chances in court he could have ended up in jail for years. As it is he may still do time and will end up with a felony conviction and probably a big fine to make an example of him. The birds he supposedly harassed aren’t even rare, merely locally rare in Florida, and he didn’t harm any of them. At most he should have been fined a few hundred bucks and warned to stay farther away from the wildlife. But nowadays everything is a federal crime with draconian penalties, and you can’t fart in a wetland without violating some rule. And the enforcement agencies have to justify their budgets. He should have left the birds alone, but his punishment is cruelly excessive. Some of the comments in response to the article are remarkably heartless. Not just the EPA but also the Fish and Wildlife Service and the Park Service deserve substantial defunding.
The “Affordable Care Act,” aka Obamacare, seems to be full of surprises. For example, it seems that many Americans are being forced onto Obamacare exchanges where most plans provide only local medical coverage…a bit of a problem for people who travel, change jobs, or have vacation homes. To take another example, this Washington Post article says Obamacare may make it impossible for people living in American territories (such as Guam and the Northern Mariana Islands) to purchase health insurance policies at all. “Unexpected!” results of Obamacare seem to be almost daily news.
These surprises especially strike those ordinary Americans who are the targeted users of Obamacare, of course…but also, they seem to strike many of the creators of the program. Some members of the government classes, of course, simply lied about Obamacare’s effects…first and foremost this is notoriously true of Obama himself. But I also feel sure that there are many among those CongressCreatures who voted for this 2000-page bill who have been genuinely surprised by some or many of its outcomes. It is simply not possible to clearly predict in advance the effects of a piece of legislation so all-encompassing, so verbose, and so quickly pushed through.
Rose Wilder Lane, still at that point a Communist, visited the Soviet Union in 1919. After she explained the benefits of central planning to a disbelieving village leader, he shook his head sadly and said:
It is too big – he said – too big. At the top, it is too small. It will not work. In Moscow there are only men, and man is not God. A man has only a man’s head, and one hundred heads together do not make one great big head. No. Only God can know Russia.
Indeed, one hundred or one thousand or ten thousand heads together in the form of CongressCreatures or health care bureaucrats did not suffice to make one great big head that would fully grasp the implications of Obamacare. Nancy Pelosi was sort of right when she said “But we have to pass the bill so that you can find out what is in it”…she should have carried it further and said: “We have to pass the bill so that we can find out what’s in it.”
It is precisely this difficulty in predicting the outcomes of sweeping change, on a society-wide scale, that makes such sweeping and radical change something to be usually avoided..and when indeed necessary, to be conducted with caution and careful forethought. British statesman and political philosopher Edmund Burke made this point eloquently and famously. Nothing could be more anti-Burkean than Obama’s statement on October 30, 2008: “We are five days away from fundamentally transforming the United States of America.”
After coming to realize that the defects of Communism are inherent and not just due to problems with one particular implementation of it, Rose Wilder Lane also became convinced that:
Centralized economic control over multitudes of human beings must therefore be continuous and perhaps superhumanly flexible, and it must be autocratic. It must be government by a swift flow of edicts issued in haste to catch up with events receding into the past before they can be reported, arranged, analyzed and considered, and it will be compelled to use compulsion. In the effort to succeed, it must become such minute and rigorous control of details of individual life as no people will accept without compulsion. It cannot be subject to the intermittent checks, reversals, and removals of men in power which majorities cause in republics.
Note how this comment ties in with the Obama administration’s tendency to adjust the healthcare insurance program via quick and arbitrary administrative rulemaking, rather than via the legislative process. RWL would say that this kind of behavior is inherent in a program intended to establish government control over vast swaths of society.
She also notes that:
Nobody can plan the actions of even a thousand living persons, separately. Anyone attempting to control millions must divide them into classes, and make a plan applying to these classes. But these classes do not exist. No two persons are alike. No two are in the same circumstances; no two have the same abilities; beyond getting the barest necessities of life, no two have the same desires.Therefore the men who try to enforce, in real life, a planned economy that is their theory, come up against the infinite diversity of human beings. The most slavish multitude of men that was ever called “demos” or “labor” or “capital” or”agriculture” or “the masses,” actually are men; they are not sheep. Naturally, by their human nature, they escape in all directions from regulations applying to non-existent classes. It is necessary to increase the number of men who supervise their actions. Then (for officials are human, too) it is necessary that more men supervise the supervisors.
…and discusses the temptations of power to a leader who believes in expansionist government:
If he wants to do good (as he sees good) to the citizens, he needs more power. If he wants to be re-elected, he needs more power to use for his party. If he wants money, he needs more power; he can always sell it to some eager buyer. If he wants publicity, flattery, more self-importance, he needs more power, to satisfy clamoring reformers who can give him flattering publicity.
Posted by Lexington Green on 20th December 2013 (All posts by Lexington Green)
[The Rule of Law] means in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government …. It means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts … [and], lastly,… that, in short, the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and of its servants; thus the constitution is the result of the ordinary law of the land.
Restated, Dicey says the Rule of Law consists of: (1) disallowing arbitrary power, restricting the use of power to what is permitted by law, (2) treating all person to the exact same law, in the same courts, without regard to their status, and (3) treating the officers of the government to exactly the same law as everybody else.
Nota bene: Each of these elements is crumbling before our eyes in America in 2013. In particular, Mr. Obama’s arbitrary use of executive power, unmoored from legal foundation, is literally frightening.
The Rule of Law is a standard we must demand and enforce as citizens. To the extent it has decayed, it must be restored. Any reform platform must include provisions to restore each of these features.
It is alarming when a serving military man publicly ignores the law. It is doubly so when he is not only a Lieutenant Colonel but also a professor who has taught at the military academy at West Point. LTC Robert Bateman’s recent Esquire blog misstates the law and misunderstands the role guns play in US society.
LTC Bateman asserts “As of 1903, the “militia” has been known as the National Guard” and links to an analysis of the act. The reality is quite different if you actually read the first paragraph of the act.
That the militia shall consist of every able-bodied male citizen of the respective States, Territories, and the District of Columbia, and every able-bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age, and shall be divided into two classes—the organized militia, to be known as the National Guard of the State, Territory, or District of Columbia, or by such other designations as may be given them by the laws of the respective States or Territories, and the remainder to be known as the Reserve Militia.
In other words, the heart of his argument that the militia is not the whole of the people rests at the very beginning on a lie. In the case of an ignorant youth, this might be excused but not a high ranking military professional who has had the responsibility of teaching our future military leaders. It is inexcusable. Given further legislative developments since 1903 regarding discrimination based on sex, I doubt that even this definition of militia is supportable at present because it is too narrow but even this outdated definition is an ocean compared to the teacup that LTC Bateman wants to leave for 2nd amendment rights.
Since it’s established that LTC Bateman doesn’t necessarily respect the truth, it’s important to check on the rest of his assertions. One of them is that “Weapons are there for the ‘well regulated militia.’ Their use, therefore, must be in defense of the nation.” The police are not in the national guard, does their use of arms defend the nation? Are they a well regulated militia? Is he calling for the disarmament of the police? Perhaps he does, perhaps he doesn’t. By the terms of his argument, they shouldn’t be armed but perhaps he did not want to completely embarrass himself. The alternative is that he is arguing that the police are a militia. This militarization of the police is an entirely different kind of problem, no less disconnected from the American tradition or problematic for our liberties but different than the question of their armament.
LTC Bateman repeatedly says in this article “hunting is valid”. Then again he also says that weapons “must be in defense of the nation”. So why is hunting valid? I’m guessing because it polls well enough that gun controllers would earn permanent minority status if they were to be perceived as anti-hunting and he personally knows a few hunters who he’d like to continue to see socially.
A little investigation yields the possibility that the whole thing is part of a joke of a presidential run which includes such gems as the forced deportation of gun owners (unclear whether they can come back afterwards) and bringing back the draft. So one viable theory might be that he’s just kidding here.
I’m inclined to a different one, that we should feel sorry for LTC Bateman and his recent stroke that has apparently affected his mental capacity. Our ire should be saved for Esquire magazine and its editorial staff that has encouraged this man to nationally embarrass himself.
cross posted: Flit-TM
Bruce Webster writes about the parallels (and differences) between the design of legislation and the design of software systems.
(via a thread at Bookworm)
My profession is much in the news at the moment, so I thought I would pass along such insights as I have from my career, mostly from a multibillion-dollar debacle which I and several thousand others worked on for a few years around the turn of the millennium. I will not name my employer, not that anyone with a passing familiarity with me doesn’t know who it is; nor will I name the project, although knowing the employer and the general timeframe will give you that pretty quickly too.
We spent, I believe, $4 billion, and garnered a total of 4,000 customers over the lifetime of the product, which was not aimed at large organizations which would be likely to spend millions on it, but at consumers and small businesses which would spend thousands on it, and that amount spread out over a period of several years. From an economic transparency standpoint, therefore, it would have been better to select 4,000 people at random around the country and cut them checks for $1 million apiece. Also much faster. But that wouldn’t have kept me and lots of others employed, learning whatever it is we learn from a colossally failed project.
So, a few things to keep in mind about a certain spectacularly problematic and topical IT effort:
- Large numbers of reasonably bright and very hard-working people, who have up until that point been creating significant wealth, can unite in a complete flop. Past performance is no guarantee, and all that. Because even reasonably bright, hard-working people can suffer from failures of imagination, tendencies to wishful thinking, and cultural failure in general.
- Morale has got to be rock-bottom for anybody with any degree of self-awareness working on this thing. My relevant moment was around the end of ’99 when it was announced, with great fanfare, at a large (200+ in attendance) meeting to review progress and next steps, that we had gotten a single order through the system. It had taken various people eight hours to finish the order. As of that date, we were projecting that we would be doing 1,600 orders a day in eight months. To get an idea of our actual peak rate, note the abovementioned cumulative figure of 4,000 over the multi-year lifespan of the project.
- Root cause analysis is all very well, but there are probably at least three or four fundamental problems, any one of which would have crippled the effort. As you may infer from the previous bullet point, back-office systems was one of them on that project. Others which were equally problematic included exposure to the software upgrade schedule of an irreplaceable vendor who was not at all beholden to us to produce anything by any particular date, and physical access to certain of our competitors’ facilities, which they were legally required to allow us into exactly two (2) days per year. See also “cultural failure,” above; most of us were residing and working in what is one of the most livable cities in the world in many ways, but Silicon Valley it ain’t.
- Not to overlook the obvious, there is a significant danger that the well-advertised difficulties of the website in question will become a smokescreen for the fundamental contradictions of the legislation itself. The overall program cannot work unless large numbers of people act in a counter-incentived (possibly not a word, but I’m groping for something analogous to “counterintuitive”) fashion which might politely be termed “selfless” – and do so in the near future. What we seem likely to hear, however, is that it would have worked if only certain IT architectural decisions had been better made.
This thing would be a case study for the next couple of decades if it weren’t going to be overshadowed by physically calamitous events, which I frankly expect. In another decade, Gen-X managers and Millennial line workers, inspired by Boomers, all of them much better at things than they are now, “will be in a position to guide the nation, and perhaps the world, across several painful thresholds,” to quote a relevant passage from Strauss and Howe. But getting there is going to be a matter of selection pressures, with plenty of casualties. The day will come when we long for a challenge as easy as reorganizing health care with a deadline a few weeks away.
Posted in Big Government, Book Notes, Commiserations, Current Events, Customer Service, Health Care, Internet, Law, Medicine, Personal Narrative, Politics, Predictions, Systems Analysis, Tech, USA | 6 Comments »
In spite of the widely popular beer festival going on in Exposition park …
My daughter wanted to stop at Schilo’s Delicatessen for lunch – and this was the first time we have ever been downtown where it wasn’t packed to the point of an hour wait for a table. So we got to Alamo Plaza after the participants had pretty well scattered. But there were a lot of them still, sprinkled here and there, among the tourists, AF Basic graduates, and beer enthusiasts.
Read the rest of this entry »
Posted by Lexington Green on 9th September 2013 (All posts by Lexington Green)
Happily for this country, we received our jurisprudence from England in its highest vigour, and in its most cultivated state. The leading statesmen in the colonies, and especially the members of the bar, had the sagacity to perceive, and the courage and patriotism to assert, the indefeasible title of their countrymen to all the securities and blessings of the English common law. They had inherited its free and liberal spirit, and in almost every colony there were individual lawyers, equal in character, learning, and eloquence, to their brethren in the courts of the parent state. They were lawyers of the old school, who actually led on the American revolution. They were the daring patriots and intelligent statesmen who roused their countrymen to the duty of insisting on the exclusive right of self-taxation, and to all the other liberties and privileges of English subjects, resting on the basis of the common law, and the sacred stipulations of chartered contracts. It was the lawyers that guided the deliberations of the congress of 1774, and penned its admirable addresses, and stimulated their associates to unite with them in pouring forth their grievances and their exhausted patience, and their determined purpose, in the monumental act of independence.
An Address Delivered Before the Law Association of the City of New York, October 1, 1836, by The Hon. James Kent.
We had this to say about James Kent in America 3.0:
We ended up with a common American legal culture for reasons beyond the Constitution. In the early years of the country there was popular animosity toward anything English and some resistance to relying on the Common Law and English precedent. American lawyers and judges rejected this notion and created an American style of law that was continuous with England’s, though not the same. They managed to keep this system roughly consistent across the entire country by relying on legal treatises that were considered authoritative. The most important example was James Kent’s Commentaries on American Law, which went through many editions.
Chancellor Kent was one of the most important lawyers and legal thinkers in the history of the Anglosphere. America is an enormous free trade area where business can be transacted efficiently over 3.7 million square miles among 310 million, or more, Americans. We have a common legal culture which makes this possible in significant part due to the work of Chancellor Kent.
The lawyers never get any credit, though Ronald Coase appreciated what they contribute. The quote above shows that James Kent not only made a quiet, almost invisible contribution to founding our nation. He also understood and appreciated what the lawyers of the Founding generation gave us, precisely because they were thinking as lawyers and made a legal case for our independence, and preserved the legal culture we had inherited from Britain, the common law — though of course with American characteristics.
Reason: Some people would say that it’s just paper transactions, that all the efforts of the lawyers are a waste, a mess, a scourge on society. You have a slightly different view.
Coase: Lawyers do a lot of harm, but they also do an immense amount of good. And the good is that they are expert negotiators, and they know what is necessary in the law to enable deals to be made. Their activities are designed, in fact, to lower transaction costs. Some of them, we know, raise transaction costs. But by and large, they are engaged in lowering transaction costs. People talk about the information age and how large numbers of people are engaged in information activities. Well, gathering information is one of the difficulties when you’re in a market. What is being produced, what are the prices of what is being offered? You’ve got to learn all these things. You can learn them now a good deal more easily than you could have done before; you don’t have to search. If you’ve ever tried to buy anything, you know how much time goes into finding out what’s available and all the alternatives.