So, as I am devoting all my energy and time to finishing the first draft of another book, I have been following with lashings of sorrow, pity, dread and the merest splash of schadenfreude developments in Europe. Germany, which seems to be cracking under the weight of a full load of so-called refugees, Sweden, ditto, Brussels, where the concerned citizens appear to be too frightened to continue with a protest march against fear, and the governing authorities appear to be more concerned about the legendary anti-Muslim backlash than the certainty of Islamic terror unleashed in some European or English city.
Civil Liberties
Who is giving Apple legal advice?
The government is asking Apple to give it the password to Syed Rizwan Farook’s iPhone and iCloud account. Apple is refusing to do so based on its First Amendment rights. This seems to me to be a very weak argument. Just ask Judith Miller. And there really is very little difference. Apple will have to spend $100,000 to comply and all Judith Miller needed to do was name a source. But Apple’s case involves a national security threat to each and every American whereas Judith Miller’s involved only an implausible threat to Valerie Plame who chose to garner all kinds of media attention thereafter. If there were a safe deposit box the government wanted opened, it would go to a court and get an order for the bank to drill the locks out so that the box could be removed. The bank would comply. Apple will lose.
And if Apple does not lose, the matter will go, as its pleading requests and as it may, even if it loses, now that Apple has made such a ruckus, from the fairly rational precincts of the judiciary to the fully irrational floor of the Congress. Let’s suppose that before legislation is completed there is another domestic terror incident in the US and the terrorist used an Apple iPhone. What kind of legislation would Apple get after that? While not yet widely known, Apple has likely put a back door into every Chinese iPhone via a Chinese designed chip added to the iPhone at China’s insistence for phones sold in the PRC. If this is confirmed, Congress would go even more non-linear.
And what other things might the government do if Apple were to prevail? Well, in the extreme it could ask GCHQ or some other foreign service to crack the iPhone in general. No device is uncrackable. It could also signal the Chinese that it would not be aggressive in pursuing IP violations by China in the case of Apple products. Apple is refusing to cooperate with its government in the first responsibility of that government, to protect its citizens. There would be consequences. Is it really good legal advice to let your client take such risks?
Apple should have quietly cut a deal with the government that would offer its customers the maximum security and quietly complied with court orders until a truly offensive order was received. Barring that, Apple would have a far better argument saying that ordering it to break its phones would lower their value to customers, lowering Apple’s revenues, and lowering Apple’s market cap. This would constitute an uncompensated taking by the Federal government of enormous monetary value from every Apple shareholder for which Apple should be compensated.
With existing technology, you have no privacy. Products are in development that will allow retailers to know how long you look at an item on a shelf, if you pick it up, if you return it to the shelf, how long you look at it and if you buy it. And if you wear an iWatch or other wearable, it will know how much your pulse and bp increased at each step of engagement. If you use gmail, as almost everyone seems to, Google knows the content of every email you send and receive. Who is more likely to release or resell your email, Google or the FBI? The Silicon Valley forces lining up against the government are the most probable threat to what you think is your privacy. It’s been almost 20 years since Scott McNealy said “You’ve got no privacy. Get over it.”
Apple will be made out to be protecting the ability of terrorists to communicate in secret. We are at war with these terrorists. They will kill any of us where ever they can. Article III, section 3 of the Constitution states,”Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” That sounds a lot like what Apple is seeking to do under protection of the first amendment’s emanations and penumbras.
Tim Cook is engaging in the same kind of magical thinking that has dominated the boomer elite and led to so many tragedies for the last 24 years. Losing wars has consequences.
A Transition of Moral Cultures?
Jonathan Haidt summarizes a paper (by Bradley Campbell and Jason Manning) which may help explain some of the dynamics now manifesting themselves on college campuses and even in the larger society. In brief: prior to the 18th and 19th century, most Western societies were cultures of honor, in which people were expected to avenge insults on their own–and would lose social respect and position should they fail to do so. The West then transitioned to cultures of dignity, in which “people are assumed to have dignity and don’t need to earn it. They foreswear violence, turn to courts or administrative bodies to respond to major transitions, and for minor transgressions they either ignore them or attempt to resolve them by social means. There’s no more dueling.” The spirit of this type of culture could be summarized by the saying “sticks and stones may break my bones but words will never hurt me.”
Campbell and Manning assert that this culture of dignity is now giving way to a new culture of victimhood in which people are encouraged to respond to even the slightest unintentional offense, as in an honor culture. But the difference, Haidt explains is this:
“But they must not obtain redress on their own; they must appeal for help to powerful others or administrative bodies, to whom they must make the case that they have been victimized.” Campbell and Manning distinguish the three culture types as follows:
“Public complaints that advertise or even exaggerate one’s own victimization and need for sympathy would be anathema to a person of honor tantamount to showing that one had no honor at all. Members of a dignity culture, on the other hand, would see no shame in appealing to third parties, but they would not approve of such appeals for minor and merely verbal offenses. Instead they would likely counsel either confronting the offender directly to discuss the issue, or better yet, ignoring the remarks altogether.”
I had read something about this model a couple of months ago, and was reminded of it by a discussion at Bookworm Room. She described a scene of insanity at Rutgers “university,” in which students were so traumatized by a speech given by Milo Yiannopoulos that “students and faculty members held a wound-licking gathering at a cultural center on campus, where students described “feeling scared, hurt, and discriminated against.”
Greg Abbot’s Constitutional Convention
Texas Governor Greg Abbot has called for a Constitutional convention of states.
UPDATE: Conservative Wahoo is in favor.
Why do I support it? A few reasons:
1) I am a political junkie. I’ve seen two impeachments proceedings in the House and one Trial in the Senate. I’ve never seen a convention of the states.
2) I think there are some places where the Constitution could be improved (see below), but I prefer that those improvements be WITHIN the Constitutional process rather than by Executive fiat (see, Obama, B.)
3) I believe it would energize people in this country to a great degree–equaled only maybe by war–to really think hard about what this country means to them.
He has a summary of the Mark Levin proposed amendments from his book.
A convention is one of two ways that the U.S. Constitution can be amended, and it’s described in Article V. One way is that Congress can propose amendments approved by two-thirds of the members of both chambers. The other method allows two-thirds of the state legislatures to call for a convention to propose amendments. Republicans backing the idea are confident that because they control state government in a majority of states, their ideas would prevail.
Democrats are horrified. The Huffington Post first ran this post with a headline that he wanted Texas to secede! I guess they thought better of the scare tactic.
Texas Gov. Greg Abbott (R) on Friday proposed a series of amendments to the U.S. constitution that would permit states to override the Supreme Court and ignore federal laws.
One of the proposed measures would allow a two-thirds majority of the states to override federal regulations, while another sets the same threshold for overturning decisions by the Supreme Court. The governor also wants to change the Constitution to block Congress from “regulating activity that occurs wholly within one state,” and to require a supermajority of seven Supreme Court votes before a “democratically enacted law” can be overturned.
OK. That’s fair enough.
The plan lays out nine specific proposed amendments that would:
Prohibit congress from regulating activity that occurs wholly within one state.
Require Congress to balance its budget.
Prohibit administrative agencies from creating federal law.
Prohibit administrative agencies from pre-empting state law.
Allow a two-thirds majority of the states to override a U.S. Supreme Court decision.
Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law
Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
Give state officials the power to sue in federal court when federal officials overstep their bounds.
Allow a two-thirds majority of the states to override a federal law or regulation.
Balancing the budget is probably pie-in-the-sky but the others sound reasonable to me.
A Conservative Case for the Militia Clause in the 2nd Amendment
The traditional modern conservative opinion on the 2nd Amendment diminishes and almost entirely dismisses the opening clause, “A well regulated Militia, being necessary to the security of a free State”. I believe this to be an error that leaves leftists an opening to prolong the Second Amendment assault forever. That opening needs to be closed. A substantive construction of this clause that makes sense to the general public is necessary to put down the gun control movement permanently.
But first, a little Latin. Crimes can be generally divided into the categories “malum prohibitum” and “malum in se”. Malum in se are crimes that are universally considered wrong or immoral that all just societies prohibit. Malum prohibitum are crimes that a legislature creates and are only crimes because they told us so. Tyrannies thrive by multiplying malum prohibitum crimes and turning honest citizens into fearful subjects that can be seized by the law at any time. Militias only go after malum in se crimes and are thus useful to the people who want a just society but useless to any sort of tyrant.
The militia’s uselessness to tyrants is its greatest selling point and one that the colonists implicitly understood because none of the abuses of King George were ever enforced by the militia (if there are examples where this actually happened, please share in comments). With that understanding, the introductory clause makes perfect sense to us all and gives us a common sense reason why even today, it’s important to have a strong militia so that our security is, as much as feasible, in the hands of people who will not sweat the small stuff. In fact, it’s truly necessary for the security of a free state.
The alternative is to entirely rely on paid agents of the state for our security, whether military or police. Is there ever a case where governments who are hard up for cash don’t make petty rules to extract fines and hem in the people’s liberty? Is there a government out there that does not favor its supporters and disfavor its opponents? Controlling these agents’ salaries is a powerful inducement for them to do the wrong thing if the government asks them. Over time and across a large number of governments, there will always be cases where they will be asked and there will always be agents who are willing to be tin pot tyrants. They have households to maintain after all.