Monthly Archives: September 2012

Tessio and the Film Maker

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There’s a neat site out there, Quick Meme, www.quickmeme.com, which allows folks to throw a picture up and have a caption contest. Some of their stuff is truly hilarious. Some of the pictures, however, are of, shall we say? current events.

Like the picture of the Los Angeles County sheriff’s deputies hustling Nakoula Basseley Nakoula, a.k.a. Sam Bacile, an American citizen into a squad car, shortly after midnight, for a “voluntary” ride downtown to talk with them about . . . a potential violation of his probation agreement on a bank-fraud case from two years ago. Folks, from some pretty up-close experience I can tell you that bank fraud just doesn’t put that big a blip on prosecutors’ radar screens. Not sexy enough; not enough good ink. And in no event worthy of a media-saturated midnight visit to a probationer’s house. 

For starts, with the possible exception of a fire-bombing down at the local tax collectors’ office, in a bank fraud case you’ve got perhaps the single least attractive victim imaginable (OK, Jeff Dahmer comes close). Secondly bank fraud can be stupendously difficult to prove. The ways are nearly infinite for a determined operator, especially an insider, to fleece a bank, and in the back of a prosecutor’s mind has always to be the question, “How’m I going to get the jury to see this?” Juries understand drug lords putting hits out on people. Juries understand torching one’s house for the insurance money. Juries understand a pervert who can’t keep his hands off the kiddies. But getting the jury to see a bad bank officer, a pliable appraiser, and a third party who feeds “purchasers” into the bank to buy properties at inflated prices, the mark-up to be shared around, and the purchasers assured that they can walk away from it all in bankruptcy . . . well, that’s hard to stay awake for, in the jury box. 

Which is to say that, even assuming your probation officer had office hours at 1:00 a.m., which he doesn’t, and assuming the prosecutor who took the scalp in the first place normally schedules interviews at that hour, which he doesn’t, making a movie is simply not the sort of thing you drag your con downtown to talk over in the dead of night. 

But that’s what we were told by the administration. You see, we’re asked to accept at face value that a citizen just “voluntarily” decides he’d really like to go for a midnight ride to chat about whether a particular exercise of his First Amendment rights – however tastelessly he might have done so – did or did not violate a plea agreement. Because that same administration was peddling, peddled for a week or so, in fact, the story that an attack on our consulate by a thoroughly armed mob, consummated by our ambassador’s murder and that of three other Americans, was nothing more than film criticism gone overboard. Peddled that story in the face of all the facts they had, some of which they had before the attack, peddled it in the face of the locals’ telling them that it was organized. In other words, at the time the administration leaned on the local law enforcement to drag in this citizen to rake him over the coals, it knew that its attempt to tar this man and his collaborators with the murder of a United States Ambassador was a vicious lie. 

Well, as they’d no doubt say – no doubt have said among themselves – it wasn’t really vicious. In fact, it wasn’t even personal. It was just spin. As was perceived by a participant on Quick Meme: 

When I saw that caption I was just naturally reminded of the cultural icon which popularized the expression “just business” in the American language, and I was fairly confident I could find an appropriate clip of it from YouTube. And sure enough, I was right:

I’m sure that Nakoula must be comforted to know it was nothing personal, just business, and that Dear Leader really liked him, all this time. They’re both African Christians, after all. Right?

 

O’zapft Is!

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Dieses Jahr hat er’s mit Schlägen geschafft; letzes hat er drei benötigt.  Hauptsache ist, daß angezafpt worden ist und ausgeschenkt werden darf, auf der Wiesn und auch in aller Welt.  Bedauernswert ist nur, daß bei uns hierzulande die Tradition des gemeinsamen und gemeinschaftlichen Genußes von dem heiligen Gerstensaft niemals Fuß gefaßt hat.  Sitzt man auf der Bank vor einem langen Tisch, einem völlig Unbekannten auf der anderen Bank gegenüber, verzehrt das frische Hendl und bestellt sich abermals eine Maß und noch eine, so steigt man am Ende mit einem neuen Nachbarn und Dutzfreund auf, egal ob sicher ist, daß man sich nie wieder sieht.  Man hat doch — wenn auch nur für eine kurze Zeit — wieder die menschliche Verbindung verspürt, das Zusammensein mit Händen gegriffen, das Menschliche überhaupt für diesen Moment, an diesem Ort, wiederhergestellt und damit der argen Welt getrozt.

Drum reichet Freunde euch die Hand, damit es sich erneuet.

Title Insurance is a Rip-Off, Right?

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Some years ago I read an article in Forbes magazine. It must have been eight or ten years ago, now, and while I seldom read the magazine itself, the title of the article caught my eye because it related to title insurance and the title insurance industry, and I happen to wear, among other hats, that of a title insurance agent. So on I read.

The thesis of the article in plain English was that title insurance was just the world’s biggest scam, the insurance companies were no more than rent-seekers, and in any sane world everyone would just rely on the government to insure land titles and cut them awful rip-off artists out of the loop and there that will show them. Alternatively, all you need is a title opinion and there’s no reason to pay much for one of those, is there? In partial support of the author’s thesis he trots out the example of some mid-West state, Iowa I seem to recollect (I’ve slept since then, so don’t hold me to too high a degree of accuracy), in which the state guarantees, through its land registration system, that the record state of title as revealed in their indices will match the actual state of title. Can’t recall whether or not the government charged extra for the service or not.

I have a number of issues with the argument, but for the nonce let’s confine ourselves to some simple practicalities. The land registration systems in effect about the country are, to put it mildly, not uniform. The single biggest distinction is between those states on the one hand which were surveyed out under the Northwest Ordinance, and those which weren’t. For those not familiar with the story I refer you to a fascinating book, The Point of Beginning, which starts with a description of the evolution of the land surveyor’s art (there is, apparently, no coincidence in the fact that an acre is 43,560 square feet and not some other number) and then segues into a history of how the land that became the United States of America north of the Ohio and west of the Mississippi was surveyed out into parallelograms of various sizes. The book’s title refers to the actual point of beginning for the whole shebang. That’s right: There is a single remote point of beginning for every survey outside the original 13 states and the Old Southwest. It’s on the Ohio river, where a particular U.S. highway crosses the river; there’s an historical marker beside the road.

For land surveyed under that law, the government sent official survey teams into the wilderness with instructions to cut the thing into squares, more or less. Only once the land was completely surveyed off was it put out for sale, or given to the states to sell for their own purposes (when you hear of a “land grant university,” you’ve met one the founding of which was paid for with sales of that land). You could go to the federal land office in any particular area and tell exactly what land remained ready for sale, and what wasn’t on the market yet.

All well and good, but I happen to live in an area in which every one-eyed drunk with the delirium tremens and a transit strapped to his mule dragged a chain out of his tool chest and called himself a surveyor. With predictable results. How that system worked was the holder of a land warrant issued by some government (such as those issued to Revolutionary War veterans) went off into the woods and scouted around until he found him some land he wanted. He then hired him one of the aforesaid dipsomaniacs to survey it off, and then he went and registered his survey at the land office, heading back into the woods to work his land. I once saw a plat of the surveys that had been made of what was essentially the same land, superimposed on each other. It looked like one of those Spirograph drawings we made when we were kids. An absolute ball of hair, all laid out on paper by metes and bounds.

That system of land registration is why Abraham Lincoln grew up in Indiana and not Kentucky. His father couldn’t get clear title to the Knob Creek farm. Across the river the land was all laid out nice and neatly in squares and hey presto! problem solved.

The point of the above is that those lands not surveyed under the Northwest Ordinance do not come in tidy little polygons, with legal descriptions like “range such-and-so of section thus-and-such of This-and-That Township in Mulligatawny County, Illinois.” No; we get to ponder legal descriptions like, “thence in a northerly direction some 84 poles, more or less, to a rotten stump, apple tree marker.” Bear in mind that these legal descriptions are invariably found originating in deeds from 1923 and give no indication of whose memory to damn for their genesis. A pole, by the way, is 16.5 feet, and “in a northerly direction” narrows it right on down to just about 180 degrees of the compass. In other words somewhere out there you’ve got a corner. “To where the road used to be” is also an old chestnut. Or my personal favorite, “bounded on the north by the lands of Petty, on the east by the lands of Smith, and on the south by the lands of Jimson.” Bounded on the west by the Pacific Ocean, presumably. Mind you, Petty, Smith, and Jimson may or may not have been the adjoining owners at the time that legal description was put together; the surveyor may have been relying on other, even older surveys which simply designated those lands thusly.

But it gets better. Land title can be affected by all manner of things, from bankruptcy proceedings to the provisions of wills to divorce decrees to liens and encumbrances not appearing of record, but which will appear to a competent title examiner (like comparing legal descriptions to tax parcel information, or to aerial imagery of the land in question, available from Google Earth or from other public agencies). How about missing heirs’ signatures? A competent title examiner will frequently, in the course of doing a “forward search” (that is, looking for out-conveyances by the grantees identified in the “reverse search”) notice references in instruments outside the chain of title to the subject property references to siblings, other heirs, spouses, and so forth. That examiner will then look for the implications, if any, of those persons’ existence within the chain of title that’s being searched. What if the title examiner overlooks it? A title insurance policy will insure that risk; is it desirable that a government agency likewise guaranty that everyone who needed to execute an instrument in fact did so? Forty years ago?

In short about all that the land title office ought to be asked to guaranty, and all that it can practically guarantee, is that their own records correctly index the documents they have in their office. If all your local land title office is going to guaranty is the accuracy of its own records then you’ve really not got a great deal of assurance, do you?

When the government guarantees land title to be as reflected in the indices, what it’s guaranteeing are land titles the actuality of which is determined by the sorts of land surveying practices described above, and as affected by the kinds of documents and actions outside the scope of that agency’s records as described. Which is to say, the government is guaranteeing a risk the size of which it has really no effective method of even knowing, let alone controlling. Recall that the loss exposure on any title is a function of the price paid or the money loaned. Either the government will have to price its services based on actuarial risk (sort of like, you know, a title insurance underwriter), or it will have to eat that risk, or it will have to over-charge for that risk. Observation: Government agencies are not widely famed for their ability accurately to price risk and evaluate financial exposures (<cough> Fannie Mae, anyone? <cough, cough> Solyndra and $535 million out the door?).

Title insurance companies spend an enormous amount their revenue in the form of commission to their agents. Why? Because it’s the agent who is the company’s first line of loss control. A competent agent will identify title problems before they’re ever insured. Either the problem is then corrected, pre-closing, or the prospective buyer/borrower decides he’s not willing to accept the title in that condition, insurance or no, or alternatively the company makes a decision that it will “insure over” the defect. But this is the key: Eventually it’s the consumer’s choice to accept the title or no. If a title company makes a bone-headed underwriting decision, or keeps incompetent or dishonest title agents on its rolls, guess who pays? The company. In a government-underwritten system, guess who bears the loss? You and I, friend.

While we’re on the subject of governments getting into the title insurance business, let’s not kid ourselves who will be on the front lines of loss control: The people hired by local governments, or (gulp!) popularly elected, and who will be almost assuredly hired with reference to criteria having at least in part nothing to do with how reliably they can do their jobs. Oh sure, they’ll be well-enough meaning, but in all honesty, there is a reason that the IRS takes – successfully by the way – the position that a taxpayer may not rely on advice and opinions given to him by the United States government employees hired by the IRS for the specific purpose of giving advice and opinions of the kind reliance upon which may not be asserted. I assert that the same dynamics which have lead the IRS to take that position will apply in the staffing of the land registration system.

Well, the argument can be made, what the government will guarantee is the actual state of the title, so no one recovers unless he actually doesn’t own the title he thought he did. This would certainly address part of the loss-control issue. But here’s the problem with that from the insured’s standpoint: There is a difference, a radical difference, between good title and marketable title. “Good title” refers you back to the actual state of title; “marketable title” refers to a title that is sufficiently unimpeachable that you can actually find someone willing to buy or lend money on it.

Good title and marketable title are emphatically not the same thing. No one wants to buy a lawsuit, especially not a lawsuit to quiet title to land, which can be among the most expensive litigation outside Wall Street. Merely being confident that you’re going to win the thing will not change your mind, unless you’re the kind of feller who doesn’t mind adding tens of thousands of dollars to the cost of the property, as well as adding three to five years to whatever you wanted to do with it while your suit grinds its way up to the appellate court and back down (and God forbid your suit is remanded for a new trial or otherwise unspecified “further proceedings not inconsistent with this opinion”). Let’s throw in the fact that land title lawyers seldom end up either on trial or appellate benches, with all the implications of that fact for competent jurisprudence on the subject, and either you buy a title that is like Caesar’s wife – above question – or you find someone to accept the risk that she Got Around back in the day. That someone is a title insurer. As a taxpayer, do you want the person accepting that risk to be the taxpayer? You? If you wanted to be in the title insurance business, wouldn’t you just buy some shares in Old Republic, or LandAmerica, or Stewart Title? Because there’s no such thing as “the government”; it’s you and I, ol’ sport, together in the risk management business. Still sound like a good idea?

So much for why it’s a bad idea from a government’s perspective. Let’s talk about the Little Man (that’s you, gentle reader). As mentioned, the standard American Land Title Association (ALTA) title insurance policy insures, among other things, good and marketable title, of the estate described in the policy (ownership in fee or cotenancy, leasehold, or mortgagee), in a named person. It’s a contract of indemnity. That’s important, because to recover on a contract of indemnity the plaintiff need not show fault in anyone. “You promised me that X was the state of the universe. The state of the universe is in fact not-quite-X. I’ve suffered loss by the discrepancy. Please send money.” That’s the bare-bones structure of a claim under an contract of indemnity.

Let’s say I have my ALTA owner’s policy that insures to me marketable title, and I go to sell my property and my prospective buyer’s title examiner catches a problem or potential problem with my title that was not caught when I bought the property. My would-be buyer backs out of the deal. I’ve now lost a sale by reason of a possible title defect. So I make a claim under the policy. Assuming it’s within the scope of coverage my insurer can either buy my land for up to my limits of coverage, or it can bear the expense of establishing that my title is not in fact defective, or it can pay to fix my problem. Whichever is cheapest under the circumstances then existing. And if my insurer buggers me around on acting, most states have bad faith failure-to-pay statutes which provide for enhanced relief, as well as general consumer protection statutory framework that frequently also applies to insurance companies’ relationships with their insureds. Anyone want to wager on a government willingly exposing itself to liability under similar circumstances?

May as well ask when was the last time we heard of a government agency deciding among a range of responses which was the overall least expensive way fully to remedy a problem. In contrast, when was the last time we heard of a government agency pushing someone’s problem to the back burner, either because someone with more political suck or from a pet constituency got in line ahead, or just because the person dealing with the matter was a government worker and knew he couldn’t be fired? Does government customer service still sound like a good notion for the homeowner who’s discovered that he’s got a forged signature on a deed in his chain of title?

By like token, assume my neighbor sues me alleging that he owns at least some of the land within my policy’s coverage. My title insurer pays my lawyer to defend me (and in truth that expense of defense can be the principal economic benefit to me of having the policy in the first place).

But title insurance costs money, doesn’t it? Why, if you have to buy an owner’s policy on a $1.6 million purchase, you may have to pay as much as $5,000± for the policy, maybe more if you buy additional endorsements. Let’s see, that’s 0.3% of the deal; three-tenths of a whole percent. If I’m buying my house for $95,000 I may have to pay as much as $1,000 or so, a bit over one percent of the deal. Bear in mind that a good portion of that money is going to the title agent who’s the principal fellow standing between you and losing your house, and 1.05% on top of the deal doesn’t sound like too bad a bargain, does it? But why should the title agent get that big a slice? Well, because if the company has to pay a loss, guess to whom it looks to get well, kiddoes?

Can’t you just go and get a title opinion and get out of it even more cheaply? Well, for starts expressing an opinion as to land title is the practice of law, which means you will have to pay a lawyer for that. And of course you will have to select your lawyer yourself (title insurance companies keep a pretty tight rein on their agents; they do most of your due diligence for you in weeding out the charlatans and the fools). No lawyer smart enough to know how to search a land title is going to offer you an indemnity. He’s a lawyer, not an insurance company. If he were an insurance company he’d charge you what a title insurance company charges you. What you’ll get from your lawyer is an expression of opinion that is subject to all the caveats that your lawyer can think of.

If your lawyer’s opinion turns out to be incorrect (and not just possibly incorrect, but actuallywrong), you have an action against him, not in contract (an indemnity), but for professional negligence. Let’s ignore for the moment that the universe of lawyers who practice in the area is tiny indeed. Let’s assume you find one and he’s willing to file a suit against the guy who issued your title opinion. The burden of proof is on you to prove – for which read: you must pay to prove – that (i) his opinion was in fact incorrect (in other words, you’ve got to prove your own title to be defective, as opposed to merely possibly defective),and (ii) by the prevailing standards of professional care he ought to have caught the problem but didn’t, and (iii) that you have actually suffered a loss. But you don’t get to recover your expenses of proving up the state of your title, or of that standard of care, or of proving your lawyer’s failure to live up to that standard of care, or of the extent of your loss. Can you say, “expert witness fees,” anyone?

There aren’t any bad faith failure-to-pay statutes that apply to defending oneself from a malpractice claim. Nor will your typical consumer protection statute prevent your lawyer from defending himself. Barring truly egregious conduct, professional malpractice claims don’t get resolved in the plaintiff’s favor on summary proceedings. If they don’t settle they go to trial, and then to appeal. Your lawyer of course will be defended by his professional liability insurance carrier. Your lawyer will be paid by you, and a claim involving a claim for professional negligence on something as esoteric as a title examination is not one you’re likely to find anyone competent to represent you on a contingency fee. And in the meantime of course your title to your land is all screwed up and you can’t safely dispose of it or borrow money against it, and you’d be foolish to put any of your own money into keeping it up, lest you lose your suit.

All of which is to say that that Forbes article was one of the most foolish loads of bilge water I believe I’ve ever read, Justice Brennan’s opinions not excepted.

Wanting it Both Ways

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In India.  Seems that large portions of the industrialized/commercialized areas are in the grip of massive strikes, brought on by proposed fiscal and economic reforms.  The government is proposing to cut the subsidy to vehicle fuel, and is also proposing to open India to big-box retailers.  The small operators are livid.  And so transportation especially is being hard-hit, with large segments of the rail network idle.  It’s not uniformly spread about the country, though; from the admittedly brief reports it seems as if some large cities are more affected than others.

India is of course the world’s largest democracy.  Not perfect, but then who is?  It’s got massive problems with corruption, over-regulation, and inefficiency, and desperately needs to address those problems (as was demonstrated earlier this summer when hundreds of millions of people were without electricity for a prolonged period).  It can try to do so through governmental action, but the government appears to be a good part of the problem and besides, if the government could by fiat change the rules of the game, would it not already have done so?  What to do?  I’m going to suggest that introducing into the economy large players who have no mind to put up with that sort of nonsense, either from their customers, their vendors, or officialdom are a relatively efficient way to begin the process of cultural transformation which is what really needs to occur.  Perfect?  No, but there’s no ideal way to change traditions that run back generations upon generations, in a population of a billion-plus.  And by the way, enlisting private actors lets you shift some of the unquantifiable but all-too real costs of the effort onto them.

Here’s hoping that India figures out a workable way forward.

Valedictory and Unheeded Lesson

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From 1796, George Washington speaks to us today, through his Farewell Address (actually never spoken but rather printed), published 19 September of that year.  Easily available on-line, I finally read the whole thing in preparing to write this post.  It’s got some interesting things in it, some of which one would expect, but others of which were to me at least nothing less than astounding.

His first encomium and admonition were his comments about the blessings and indispensability of union to secure the new country’s independence and its people’s liberty, and the corresponding evils of sectionalism, party, and internal foreign influence.  But reading through his comments, and bearing in mind he was the chairman of the Constitutional Convention, this is what stuck out:  In multiple places Washington counsels against the pernicious seduction of disunion as being inimical to liberty.  The citizen is repeatedly warned to have no truck with those who would whisper in his ear that his region or his state would be better off alone.  Disunion is presented as the harbinger and handmaiden of liberty’s destruction.  But in no place at all does Washington say anything along the lines of, “And besides you can’t leave the union in any event.  Our union is indissoluble, eternal, and final; we’re all stuck here together, forever.”  Washington doesn’t come out and say that secession is permissible, but the whole bit about resisting the temptations of dissolution makes little sense unless you assume that it is possible in the first place.  I found that omission extremely curious, given how much space he devotes to advocating against disunion.  In point of fact he leaves it in the air.  Intentionally?  Who can tell, at this remove?  But recall how bitter were the debates over ratification.  Maybe there were questions that people sort of agreed weren’t to be asked or answered just yet.

All of which goes to demonstrate two things: (i) The Supreme Court is not in fact the highest arbiter of the Constitution’s meaning; there is another tribunal, and thank God we’ve only had to litigate there once.  It took us four years to try the issue, cost us millions upon millions of dollars, hundreds of thousands of dead, even more wounded and maimed, and like many actions left a lot of side issues unresolved.  But we did settle the fundamental nature of the union.  (ii)  The most important outcome of that trial was not slavery’s destruction, but the preservation of the Union.  If the issue had gone the other way then the 13th, 14th, and 15th Amendments would have been dead letters from Day One.  Whatever was left of the country could have enacted any damned law it pleased and it wouldn’t have made a difference to those in bondage.  Washington was right: Only in union is liberty achievable.

Interesting as well are Washington’s warnings about piling up debt except in dire national emergency, and the need to pay it off ASAP so that we do not put off on our descendants the burdens we should have borne ourselves.  Even though the address has been read aloud annually in Congress, beginning in the 1860s and continuing (at least in the Senate) up until now, it doesn’t appear that many of the members of either house have been paying too much attention to that part, certainly not for the last 80 or so years.  I mean, it’s been over three years since we’ve even had a federal budget.

Nor does the judicial branch come off well from a close reading of the address.  Washington observes that the Constitution contains within it a specific mechanism for its own amendment, and that recourse should be had to that mechanism very sparingly, and only after lengthy deliberation. 

“Towards the preservation of your government, and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. * * *  If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.”

The fundament of our liberty is not something to be tinkered with based upon the cogitations of the moment (what he would have done with the Supreme Court’s “evolving standards of decency,” “emanations,” and “penumbras” makes for amusing thinking), because speculative opinion is almost sure to be incorrect.  As have proven to be large amounts of the court’s ruminations and announcing their own prejudices as the law of the land.  For “usurpations” read “living document,” “substantive due process,” and similar expressions.

And of course the most devastating comparisons just naturally arise when you read Washington’s evaluation of his own qualifications for the office and character of service in it, and compare them with the un-self-conscious self-evaluation of the office’s present occupant.  To wit:

“The impressions with which I first undertook the arduous trust were explained on the proper occasion. In the discharge of this trust, I will only say that I have, with good intentions, contributed towards the organization and administration of the government the best exertions of which a very fallible judgment was capable. Not unconscious in the outset of the inferiority of my qualifications, experience in my own eyes, perhaps still more in the eyes of others, has strengthened the motives to diffidence of myself[.]  * * *  Though, in reviewing the incidents of my administration, I am unconscious of intentional error, I am nevertheless too sensible of my defects not to think it probable that I may have committed many errors. Whatever they may be, I fervently beseech the Almighty to avert or mitigate the evils to which they may tend. I shall also carry with me the hope that my country will never cease to view them with indulgence; and that, after forty five years of my life dedicated to its service with an upright zeal, the faults of incompetent abilities will be consigned to oblivion, as myself must soon be to the mansions of rest.”

The above was written by a man who had commanded troops in the wilderness (what’s not widely known is that the first shots of what became the Seven Years War were fired by American militiamen under Washington’s command in the wilds of trans-Appalachia against French troops), who’d been a surveyor, a planter, the field commander of the entire American war effort (at a time when there was no such thing as a $600 hammer), who’d chaired the Constitutional Convention, and who then had supervised the building of the first United States government.  The present feller has never held a real job in his life that anyone knows of, and to all appearances has got where he has through indulgences (academic records, anyone?) and lies [Either he was lying that he was born in Kenya in order to get into college and get himself published favorably, or he’s been lying to the American people that he was born in Hawaii; he’s made both statements repeatedly and publicly, and both cannot be correct.].  Before he was even elected, he modestly announced that his mere nomination was sufficient to cause the world’s oceans to recede and the planet itself to cool.  Under his superintendence the unemployment rate has remained above 8% for more months (consecutive, as it happens) than under his eleven predecessors combined.

What is also interesting, and in no small measure distressing to contemplate in light of where we have come to and the terms of our public debates, are Washington’s comments about the roles of public virtue and religion in the maintenance of a free and republican government:

“Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice ? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.

“It is substantially true that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government. Who that is a sincere friend to it can look with indifference upon attempts to shake the foundation of the fabric?”

Go back and read what he has to say about oaths in court.  I remember a conversation I had in roughly 1998 or so.  This was shortly after Clinton had admitted to lying under oath about a certain blue dress.  We were assured by everyone from the NYT to NOW that it really didn’t matter that he was a confessed perjurer, because well, you know, those questions just weren’t really anyone’s business, and what does “is” mean after all and shut up.  I pointed out that once you abandon the notion that the oath a witness takes actually means he will tell the truth, then you may as well hang it up, because there is nothing at that point to separate you from the mess then prevailing in the former Soviet Union.  My interlocutor just wasn’t having it.  It didn’t matter; it was a side issue because it wasn’t any of our business and besides shut up.  And now we have the spectacle of the U.S. Attorney General lying to Congress about when he was briefed on an illegal gun-smuggling operation being run from the highest levels of the Dept. of Justice.  I’m just going to come right out and state that there is a straight line between those two data points.

In any event, Washington’s Farewell Address is a document that bears re-reading, frequently.

 

Friends of Free Speech, Bustin’ Out All Over

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Brought to you by the same folks who brought to the world the concept of Gleichschaltung as government policy, this observation by the German interior minister:  freedom of opinion is not without boundaries.  And because Beschimpfung of religions is prohibited there (understandably, given the particulars of their history), the government’s just going to have to examine very carefully whether this hack-assed film about Mohammed is going to be permitted to be shown in Germany, either on a nation-wide basis or locally on a case-by-case basis.  For the moment at least they’re not thinking in terms of a blanket prohibition.  But locally, where “Sicherheit” (security) and “Ordnung” (jeez; talk about dog whistle words) may be endangered by permitting the film’s showing, there may be implications from the perspective of German law on freedom of assembly.

Well, that’s a comfort.  Got that?  We’re not going to restrict your speech; we’re just going to prohibit you from speaking publicly to more than a person or three at a time.  Gotta have our Sicherheit and Ordnung, after all.

And here’s where the word Beschimpfung (the noun) and its definition become rather important.  Duden, Germany’s analogue of the OED, a copy of which I happen to have in arm’s reach, gives two definitions for beschimpfen, the verb.  The first is to denigrate “mit groben Worten” — “with coarse words”; the second is simply “beleidigen” — “to insult.”  But the latter is not, in practice, synonymous with the former.  To illustrate, if one publicly observed that the present occupant of the White House is with the arguable exception of Warren G. Harding the least qualified — experientially, mentally, and morally — person to hold that office ever, that he only holds it by result of a very concerted effort to blot from the public sphere all hard information on his personal actions, associations, and background, and that in office he’s run an administration that is every bit as personally corrupt as Harding’s, that’s an insult.  Happens to be true, but it’s still defamatory (remember that untruth is not an element of defamation; truth is an affirmative to defense to what’s unquestionably defamatory).  But if one were to go all amended to read: Sen. Byrd on our present Dear Leader, using every epithet that 300 years of racial animosity have cooked up, that’s to denigrate with coarse words.

It is easily understandable why Germany would prohibit the Beschimpfung of particular religions.  We did, after all, hang the editor-in-chief of Der Stürmer at Nuremberg, and that little rag was about little other than Beschimpfung of Judaism and Jews.  But it is simply logically indefensible to equate a film showing in an unfavorable light a specific historical personage who’s been dead for nearly 1,300 years with Der Stürmer or the Protocols of the Elders of Zion.  If that were true then every book, film, play, or speech denigrating Jesus (and those are enormously popular, in Germany as here) would likewise need to be suppressed.

Oh, but there’s a difference, you see.  Piss Christ can stay on public display until it rots, and the Christians of any country will not slice off anyone’s head, nor burn anyone’s embassy, nor torch any quarter of a city.  The difference is that the adherents of one particular religion, and only one, will do all those things and more.  When they annihilate Ordnung, it’s not they who ought to be rinsed off the streets with water cannon, it’s we who should shut up, stay at home, and mind our p’s and q’s.

What this sort of reaction from the forces of public decency does is teach a lesson:  The lesson it teaches is not “respect for all peoples and cultures.”  It teaches the much simpler lesson that Violence Works.  Two words, very easy to absorb and utterly destructive of civil society.  Violence Works.  If you teach it long enough, and provide full-color, live-on-your-television-screen tutorials in it often enough, you get entire slices of your population who internalize it, for whom a nice riot in the streets is precisely the way to get what you wish from someone who’s not legally or morally obliged to give it to you.  When the slices of the population carrying that lesson in their souls get big enough, you get 1933.  You get the Sicherheitsdienst (the SD, which was the SS’s foreign-service counterpart to the Gestapo) and the Ordnungspolizei, a key player in the domestic surveillance culture.

You get Gleichschaltung.

Pyotr Stolypin’s No Good, Awful, Very Bad Day

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18 September 1911:  Pyotr Stolypin, Tsar Nicholas II’s most only capable minister, dies the day after he’s shot at the opera.  With him dies the last faint glimmer of hope to reform Tsarist Russia. 

He’d made his bones, so to speak, in putting down the Revolution of 1905 and its offshoots.  He’d also made significant progress in getting the monarchy’s fiscal house in order, but his biggest gambit, and the one that might well have got him killed, was his land reform scheme, just getting underway when he was shot.  The problem went back to Alexander II’s emancipation of the serfs, and in fact to some degree even before.  Well, in fact way before, all the way back to the medieval land-ownership and cultivation practices.  Very simply described, land ownership in the village was in exactly that — the village, the commune.  In that sense the peasants were communists well before the communists.  And they demonstrated, once more for the slow-witted, the everybody/nobody conundrum.  When everyone owns something, no one takes care of it.  Russian peasant farming practices were notoriously wasteful of their land, and unproductive (hence the invitation to what became the Volga Germans).  Russian land ownership actively hindered any motivation to progress.

Stolypin’s insight — almost assuredly correct, although it never got a fair chance — was that what Russia needed was a class of independent, land-owning peasants who owned economically viable farms.  This required restructuring how land at the village level was owned.  The cultivated strips had to give way to contiguous tracts of arable land that could actually support a peasant family at something above a subsistence level.  True, he had to contend with the pig-headedness innate conservatism of the peasants themselves, but where his reforms were adopted the proof of the pudding was in the tax receipts, which began a noticeable rise, and kept on rising in those areas where the land reforms had been taken, all the way up until the war in 1914.  By the way it was decades after the revolution before Soviet agricultural output re-attained its 1913 levels.

To fast-forward a bit, the peasantry’s motto in the revolutionary years of 1917-18 was to be “land, bread, and peace” (can’t recall off the top of my head whether exactly in that order).  Pyotr Stolypin had started on the land; as the only really competent minister in Nicholas II’s entourage, is it too starry-eyed to think he might have been voice of reason, counselling that mobilising against Austria-Hungary for the sake of what we would recognize now as terrorists was Just Not a Good Idea?

The chap who shot Stolypin was not only a revolutionary; he was also an agent of the Okhrana, the secret police.  It’s long been mooted as a hypothetical that it was the reactionaries within the government who put the hit on Stolypin, because his reforms would have altered the ancient structure of Russian society: a tiny crowd of fabulously wealthy hereditary nobles standing perched, whip in hand, atop a ground-down mass of ignorant, starveling peasantry.  Never been proven, though.  What is known is that the investigation into the circumstances of Stolypin’s assassination was intentionally truncated after a few weeks.

It wouldn’t necessarily have been the very first time something sinister on that line had happened, either.  A recent biography of Alexander II, who was assassinated literally hours before he was going to promulgate a broadly reformist constitution, makes a very convincing argument that he was taken out by those forces of reaction.  Why, the author asks, was the Okhrana able to roll up the People’s Will (and other revolutionary organizations) with such ease immediately after Alexander’s death, when it had proven so incapable of doing so before he was killed, notwithstanding several attempts on his life, some of which came closer than others?  Russia has always been a land where nothing is quite what it seems, and it can’t be ruled out that Stolypin was marked for death precisely because he represented Change to a dying caste for whom Change spelt ruin.

Stolypin doesn’t seem to have been very widely mourned, which if true is sad, because however cordially despised he was, without his calming, mature judgment to rein in the monarch who really has to be one of the most priceless asses ever to end up on a throne, Russia had no anchor to stop her drift into madness and blood-soaked turmoil.  Had Stolypin been alive in 1914, it’s not all that crazy to think that there might not have been a Great War, or if there was, that he could have exercised some restraining influence on the bizarre fashion Nicholas chose to fight it.  With Stolypin’s organizational ability, he might have been able to organize a war economy just enough that the monarchy might have survived.

Ironically, in the “Stolypin car,” the prisoner transport train wagon of the Soviet Union (pretty much every Gulag survivor’s stories I’ve come across treats of them; they were hell-journeys) the communists paid tribute to the man whose death went a good way towards clearing their path to power.

And in a curious parallel, the man whose assassination — also by a cock-eyed revolutionary — was to light the fuse to the powder keg that exploded the world in 1914 was also the best hope of those who killed him.  Franz Ferdinand grokked that the Austo-Hungarian monarchy had to change to accommodate the legitimate aspirations of its Slavic and other minorities.  Stolypin’s reforms were the peasant’s best shot at climbing from the muck; Franz Ferdinand’s accession would have meant a massive sea change in the power relationships within the empire.  Both were shot by men claiming to represent precisely those whose interests were most devastated by their actions.

The man who waves your flag isn’t necessarily your friend.

So It’s the Copts’ Fault

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. . . According to the Egyptian state’s attorneys, as quoted in the Frankfurter Allgemeine Zeitung.  Well good.  I was afraid they’d tar them Jooooossssssss with it.  They may yet, of course; there just aren’t enough Copts in Egypt that killing the rest of them would satisfy Mohammed’s honor, and once they’ve killed all of them the Brotherhood may just have to reach for the ol’ tried and true.

It seems that the film, made by an American from Egypt who happens to be Coptic, was sponsored and propagated in the Arabic world by an organization of what is described as a Coptic nationalist-separatist organization.  They even have their own website, complete with proposed national flag, anthem, shadow cabinet, and more importantly, proposed division of the area.  The muslims will get to keep a portion of Egypt, but the Copts are to get the bulk of it, with Alexandria as the capital.  The Jews of Egypt will also get to wet their beaks with a slice of territory.

The article characterizes the participants in this exercise in fantasy as “extremists,” a label not, so far as I’m aware, recently applied to Hamas, the PA, the President of the United States, who is on record as calling for Israel to be partitioned and pared back to its 1967 borders, or one of the two major American political parties, which recently expunged reference to Jerusalem as the capital of Israel from its official platform and whose delegates from the floor greeted an effort to return that plank with boos and catcalls.  And yet the logical and moral distinction is . . . what?  Two minority groups, neither of which is terribly happy living in a land in which the majority is of an entirely different religious tradition.  Both groups have histories going back centuries.  Both groups ended up in their positions through the conquests of third parties who are no longer there.  Both dream of a land which is purged of the “other.”  Of course, there are a few tiny little differences:  No one in Israel is organizing the burning of mosques, or the random slaughter of muslims.  An Arabic citizen of Israel can go to the polling booth on election day and freely cast his ballot for whomever he pleases, without having to worry about having his wife’s throat slit.  And no bona fide terrorist organization has its paws on the Israeli levers of power.

The Egyptian law enforcement officials have pending arrest warrants for the persons identified on the Copts’ website.  Should they ever stray into Egyptian territory they may count on arrest and the usual tender mercies which the Religion of Peace reserves for those who fail in their submission.

Someone explain to me, again, exactly what there is to be “relieved” (our dear leader’s expression) about in the Muslim Brotherhood’s attaining power in Egypt?

 

The Timorous May Stay at Home

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The above is a Judge Cardozo quotation, but it applies with equal force to what happened at a creek called Antietam on 17 September 1862.

Geo. McClellan, through one of history’s truly great turns of fortune, is supplied with Robt Lee’s plan of campaign, and runs him to ground outside Sharpsburg.  As was almost always the case on all fields in the war, the federals outnumbered the confederates by a significant margin, and as was also always the case when the chief federal was McClellan, he thought exactly the opposite.  So McClellan holds roughly a full quarter of his force in reserve that day.  Lee is cut off from his base of supply, with his only avenues of retreat over a deep-water river (the Potomac), and McClellan can’t bring himself to throw the Big Punch.  Even if Lee had badly whipped him, Lee’s army would have been as disrupted by the victory as McClellan’s by the defeat (a dynamic that Ludendorff found was still true in March-April, 1918), and an army in hostile territory with no reliable re-supply does one thing in those circumstances:  it falls back on its bases and reorganizes.  All of which is to say that whatever the tactical outcome of the battle (barring a battle of annihilation, which seldom occurs on land other than a complete encirclement as in Cannae, Tannenberg, or Stalingrad), the strategic outcome would have been the same.  Lee’s invasion would have been at an end.  One can’t help feeling that Grant or Sherman would have recognized the strategic implications and fought the battle accordingly.

Even within the setting of the battle, there shines one blundering commander, from whom more was — unfortunately — to be heard later.  Ambrose Burnside on the federal left, with over 12,000 men and several dozen guns, was given the task of crossing Antietam Creek on the confederate right, punching through the confederates atop the bluff overlooking the creek, and swinging in behind the main body.  This was later in the day, after Lee had denuded his right to reinforce his center and left during the day’s earlier action, and so there were scarcely 3,000 confederates and a handful of guns to oppose the crossing.  Burnside sees a bridge, and everyone knows you cross creeks over bridges, right?  So he spends three hours sending units to cross that bridge and get cut to pieces in the attempt by the confederates, notwithstanding the creek was waist-to-chest high for significant lengths along his front.  Granted, getting the artillery across would have required the bridge, but (to quote Adm. Halsey) Jesus Christ and General Jackson! you throw your infantry across the creek, clear the confederates from the bluff and its crest, and then you can drag whatever you jolly well want across the bridge without having your men and horses shot to ribbons.

Burnsides’s delay allowed to play out one of those Hollywood-wouldn’t-have-dared-to-script-this-because-no-one-would-believe-it moments.  A. P. Hill’s division, fresh from securing Harper’s Ferry — well, “fresh” isn’t really the right word, because they had more or less jogged 17 miles to the battlefield, losing almost as many men to fatigue as they did to the federals when they got there — arrives on the field literally at a run and opens up a big ol’ can of Southern whup-ass on Burnside’s men, rolling them back off the ridge and down to the creek.  After which point McClellan, with a quarter of his army still in reserve, calls it a day.

So what, other than some priceless quotations (e.g., Thos. Jackson looking out over the remnants of his troops and observing, “God was very merciful to us this day,” which, if you take it to mean arranging affairs so that the opposing commander was McClellan with Burnside on his wing, instead of Grant with Sherman ditto, was strictly the truth), does Antietam have to say to us civvies today?  I’ll suggest a few thoughts as applying across all human endeavor: (i) opponents outside prepared positions, and especially if they’re on your turf, generally do not have prepared positions, ambuscades, etc. in their hip-pockets; (ii) fully-engaged opponents can be forced to neutralize or at least severely weaken such trickery as they have set up; (iii) even a tactical defeat can produce a strategic victory; (iv) no one ever won a fight who didn’t throw a punch; (vi) you may lose as much piecemeal fighting on a small front as you would have with a Big Swing on a wider front, but the former will seldom force a decision, and certainly not in your favor; (vii) know your own strategic resources, and exploit them. 

McClellan husbanded his troops as if they were all that the federals had between themselves and ruin.  They weren’t, not by a long shot.  Had Lee’s army been destroyed on the Antietam, however, Richmond and the south’s remaining war effort would have been doomed.  The stakes, in other words, were entirely different for the two sides.  McClellan commanded as if he were (as Churchill later said of Jellicoe of the Grand Fleet) the only man who could lose the war in an afternoon.  He wasn’t.  Whether McClellan’s self-perception was an outgrowth of his well-documented megalomania and self-importance is hard to know at this remove, but it’s perhaps no accident that Grant, famously at the opposite end of that particular spectrum, fought like the war was his to win, not his to lose.

All of which is to say that once again we see played out something that I’ve seen time and again, in both personal observation and from reading, from school-kids’ games to business to politics to military history, that what separates the winners and losers has every bit as much to do with character as it does with talent, money, advantage, or smarts.  In America at least, it is in fact hard to keep a good man down.

And maybe that reminder is what Antietam has to say to us, 150 years to the day later.

Paging Mr. Solzhenitsyn! Mr. Solzhenitsyn!

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So let’s see where today finds us:  (1)  Someone from within our State Department is familiar enough with the movements of a United States Ambassador that they know precisely where to find him, viz. in a “temporary,” largely unsecured facility, on (2) the anniversary of the September 11 attacks.  By the most curious happenstance (3) several hundred “protesters” show up at that self-same “temporary” facility, armed with rocket-propelled ordnance.  Even though (4) the same State Department has had 48 hours’ advance notice that our facilities in the region are likely to be targets of violence, (5) the ambassador is permitted to be at that largely-unsecured “temporary” facility, and while there is left to the care of native security “forces,” perhaps the single most vulnerable security measure imaginable.  Events unfold as pretty much anyone (at least anyone outside the administration) could have predicted.

But wait!  There’s an explanation!  Some guy with more time and money than talent put together, months before, a film in which there are portrayals allegedly less than wholly flattering to the peculiar religious views of certain people.  Mind now, this film has been floating about out there for months and months, but it’s not until — will wonders never cease? — the anniversary of the September 11 attacks that the wounded sensibility of these “protesters” finally cries, “Thus far and no farther!” and 400-odd of them, all at once coincidentally, grab an RPG and head on down to the “temporary” U.S. diplomatic facility where — well, who woulda thunk it? — the U.S. ambassador just happens to be.

Now folks, just ignore the Al Qaeda pronouncement that these attacks are retaliation for a specific hit put on a named individual.  No, what our administration, the folks with their hands on the levers of what is at least on paper the most powerful single organization in world history — the executive branch of the United States government — elects to do is publicly buy in to the “protesters'” assertion that this is about some made-in-the-back-bedroom-closet movie.  Administration has a range of choices with that public stance.  It can confine itself to the facts on the ground, namely an act of war perpetrated against high United States officials, and take a position on that basis.  It can tell the “protesters” that, really you know, it’s about time y’all grew up to be a Big Boy Religion and learned to take a damned joke, and if this high-school drama department-level production is the worst your faith has to fear, y’all can go home, put the dogs up, crack a cold one, and watch you some pornography after the fashion of your jihadists over in Iraq and Afghanistan.  Or the administration can go all legalistic and say that, well, over in America under our laws we simply don’t recognize the validity of your demands.  If this guy wants to call your religion’s founder everything in the book and then some, that’s between you and him, and we utterly reject any suggestion that his actions can legitimize yours.  Go pound sand, and oh by the way, stand by for a special delivery of 150-175 tomahawk missiles, delivered right to your front doors.  Please wait 25-30 minutes for delivery.

Or the administration of the most powerful goverment on the planet can do what it in fact did.  It can deliver itself of a well-there-are-arguments-on-both-sides load of dishwater, and earnestly regret that an American citizen’s exercise of a right guaranteed to him by our nation’s founding document upset some folks who have made grievance-mongering into an art form (tacky thought:  Our dear president may well envy them the artistry with which they practice “community organizing”; I mean, did O ever manage to put RPGs out in support of new flooring in the projects’ elevators?).  It can demand of a private party (YouTube) that it suppress this movie (bravo! to YouTube for giving the feds the bum’s rush on that one).  And it can lean on county officials (since when does Washington give instructions to the sheriff’s department of Bugger Anywhere, by the way?) to appear, literally in the dead of the night, but not without first arranging for maximum media coverage, at this guy’s door and drag the schmuck in for “questioning” about . . . what?  That’s right: a “possible parole violation” relating to a two year-old conviction for . . . bank fraud.  Yup.  The federal probation officer out in Los Angeles does business late at night, it seems.  The white-collar crime boys in the U.S. Attorney’s office out there likewise keep late hours.  None of this could have been arranged with a morning phone call to the guy or his lawyer, course.  Drive around back, old fellow, and tell the guy at the gate you’re here to see Dept. U.S. Atty Schmuckatelly.  Nope; let’s put more American firepower on the ground (every one of those deputies is packing, notice) to haul in some two-bit amateur movie-hound than we did to protect our ambassador to Libya; let’s have more rounds in the clip than the U.S. Marines defending our embassy in Cairo were permitted to carry.

I have just a few questions:  Did the vehicle they shoved this guy into, for his “voluntary” midnight ride to the Lubyanka sheriff’s department (why the sheriff’s department, if it was a federal rap?), have on its side an advertisement to “Drink Soviet Champagne”?  Who’s going to play Vyshinsky in this guy’s show-trial of a parole violation hearing?  Who’s going to play Yagoda to soften him up and rehearse his lines before they trot him before the cameras in the court room?  Will there be places reserved on the front benches for Al Quaeda to seat its operatives?

Every couple of years I read through, just to refresh my recollection, the entirety of Solzhenitsyn’s Gulag Archipelago, all three volumes of it.  The last sentence in the last book of the last volume:  “There is no law.” 

This is where we find ourselves today, September 16, 2012.