Monthly Archives: March 2013

On Not Judging Ideas by Their Proponents

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Everyone is familiar with the notion that the Nazis came up with the concept of a nation-wide system of high-speed, limited access, heavy-capacity highways.  The story about Eisenhower being so impressed with them that he decided to cover Atlanta in concrete may or may not be apocryphal.  But just because a bunch of guys up to their eyebrows in innocent blood came up with the idea that we now know as the interstate highway system doesn’t mean it was or is a bad idea.  By like token the observation that the road to hell is paved with good intentions reflects the flip side of that coin.

It’s now breathlessly reported that Intuit, the folks who brought us Tim Geithner TurboTax, which permits millions of Americans to navigate, more or less successfully, a tax code that may as well have been designed to thwart that purpose, has spent quite a bit of money lobbying against having the IRS send you a “free” pre-filled-out tax return for you to amend, or not, sign, and send back with your money.  I don’t think anyone with more than just walking around sense is going to suggest that Intuit’s motivations here are anything other than stifling competition for its products.  If the government were to — on the pretext of reducing “greenhouse gases” — open a nation-wide chain of oil-change and tune-up boutiques, what do you think JiffyLube, Speed Lube, and the other major operators are going to do?  Just sit there while a taxpayer-subsidized competitor destroys their business model? 

Remember that “taxpayer-subsidized” means your competitor is not exposed to the vicissitudes of having to Get It Right.  That’s not an unfounded concern, either.  Part of my ability to stay in business is through knowing my job and my industry better, and delivering a better product at a lower cost to my customers, when my ability to set my cost to my customers is a direct function of how low I can keep my own costs.  Taxpayer-subsidization means that my competitor’s ability to beat me fair and square is not contingent upon his knowing his shit better than I do.  It doesn’t matter if he’s an idiot and his costs are sixteen times mine; he can still offer his products and services for half what I have to charge to make payroll and keep the lights on (let alone take something home to make the house payment and put a can of baked beans in front of the chillerns).  And because I’m a taxpayer too, my taxpayer-subsidized competitor is subsidized . . . by me.  And by the way, once he’s driven me and all the other un-subsidized competitors out of business, what’s the likelihood that his products and services are going to continue to answer the customers’ needs in a positive manner?  To put a more concrete face on it, what if Congress said that it was going to underwrite the entire cost of USPS package and parcel delivery service?  What’s going to happen to FedEx, UPS, Averitt, and the rest?  What’s going to happen to customer service in the package and parcel trade, once USPS is the only provider because no one else can match its prices?

But it gets better:  Notice how the putative IRS service is touted as “free”?  Well, it’s only “free” to the people who use it to file their tax returns.  It’s anything but “free” to the taxpayers who are paying for it.  Paul Caron, who blogs over at TaxProfBlog and whose ruminations on tax-related subjects are generally stellar (he regularly is voted by the ABA membership, with reason, as one of the top 100 law-related blogs), notes that this “free” service could be a good fit for up to 40% of all filers.  Well isn’t that grand?  I can’t say with certainty how much overlap there is between the 40% of all filers who would be suitable to use this Countrylawyer-subsidized tax-preparation service and the over 40% of the population that pays zero income tax, but I’d wager there’s quite a bit.  Let me get this straight:  I, who every quarter have to sweat how I’m going to pay my quarterly tax hit and pay the mortgage at the same time, get to subsidize a “free” service for the principal benefit of a bunch of folks who have either little, zero, or negative tax liability (the EITC crowd).  And kindly don’t suggest to me that the subsidy won’t be all that much.  California is at $910 million and counting (they asked for just over $940 million, by the way) on setting up their Obamacare exchange, when a private company — Esurance — that performs exactly the same functions as these “exchanges” for all sorts of personal lines insurance (not just healthcare, in other words) all over the country got off the ground for less than $50 million.  And in fact the linked article even mentions that the jury’s not back on whether this wonderful “return-free” system would save or cost the IRS money, on net.  Sorry, guys, this “free” stuff just ain’t gettin’ it for me.

Thus, while I’m not going to take Intuit’s arguments against “free” government tax statements, I’m also not going to write those arguments off as being invalid because selfishly advanced.

Other opponents of the notion point to the government over-reach angle of it.  Get a “filled-out tax return” from the government, based on information it claims already to be in possession of, and what does Joe Citizen do?  “Gosh, they say this is the information they have; if I deny it, am I just asking to get audited?”  Or the folks who think they’re signing up for a free tax filing service and who think that what the government sends them is an actual tax bill, which they then have to pay, and so they do.  Let’s think about this in an analogy to another situation in which a government agency not known for its friendliness to and accommodation of those citizens it does business with — your local DA’s office and police department — sits an arrestee down and shoves a bunch of papers in front of him:  “Son, this is what we’ve got on you.  You don’t have to sign this confession; you’re free to mark it up if you want.  But we’ve got you on this.”  Arrestee doesn’t have a lawyer.  Does he sign?  Is anyone going to argue that’s a really neat way to do business?  Does anyone fail to see how the IRS dealing with taxpayers in the same fashion parallels the objectionable elements of this hypothetical?

Oh but the IRS would never, ever do something like this, would it?  I’ll simply observe that this is a governmental agency which officially takes the position that a taxpayer may not rely, in preparing his tax return or paying his taxes, on the answers given to him on the IRS’s own customer service lines, established for precisely the purpose of giving taxpayers assistance with complying with their tax obligations.  I’m supposed to accept, blindly, this outfit’s goodwill and promise not to dress up its “free” pre-filled-out tax return to look like a tax bill?  Not to put its thumb on the scales and overstate citizens’ tax liability, on the theory that not one in four will be willing to check their numbers or pay a third party to do a reality check?  Not to flag for audit the returns that come back to them with disputed numbers?  I may be dumb as a box of hammers, but I’m not dumb as a quarter-box of hammers.

On a more value-neutral matter, having the government <nudge-nudge> fill in your tax return for you has the effect of concealing from the taxpayer the complexity and burden of the tax laws.  What would be the public reaction if local jails routinely kept prisoners rotting in their own filth, but drugged to the point of unconsciousness?  Is it a violation of my 8th Amendment rights if I have no idea where I am, who I am, what day of the week it is, or anything else?  One of the more salubrious side-effects of making citizens grind their own way through their annual tax returns is that it rubs our noses in just how buggered up our tax laws actually are.  It serves as an annual dose of outrage at what goes on in Washington.  I will state here as a categorical proposition that anything which fails to heighten Americans’ sense of outrage at how badly managed our country is can be nothing but bad policy.

Finally, there is a point to be made as to which I am of two minds.  For starts, I am entirely opposed to rent-seeking behavior, such as much of that engaged in by the legal system.  There’s a reason, after all, that you’ll seldom see the ABA get behind any legal reform which is likely to reduce the amount of lawyering that ordinary Americans and American business need to get from one day to the next.  You’ll never see the ABA’s monthly trade magazine ask whether Issue X is something that the law and the court system really need to get involved with in the first place.  A number of years ago one of the senior judges on the Second Circuit Court of Appeals (can’t recall his name, now, alas) let the cat out of the bag at some law-related conference.  He observed that if you pay close attention to how courts decide cases, you’ll almost never see an opinion cast in a way which fails to maximize the power and influence of lawyers and judges.  The notion that there even exists a multi-billion dollar tax preparation industry out there, which has no human purpose at all other than satisfying a gratuitously complicated and confiscatory system of tax laws, offends me. 

On the other hand, we do in fact have a gratuitously complicated and confiscatory tax system.  So long as we do, citizens are going to require help to navigate it.  There are private people and companies willing to do that, for a fee.  While the necessity for that service is an abomination, the fact remains that it is a necessary and valuable service which one private party may provide to another private party, to their mutual advantage.  And the other side of me has a serious problem with the government undertaking to do, and shifting the cost of doing to unknown third parties, anything which private citizens can accomplish in an orderly, efficient fashion.

I have to say, on the balance I’m with Intuit on this one.

Once More, Everything Old is New Again

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Back in the day, in the 1500s and earlier, when Europe’s crowned heads got their financial butts in a crack, one of their favorite devices to raise a bunch of money without calling it a “tax” was the involuntary “loan,” which of course was typically never paid back.  Henry VIII, if my memory on the subject serves, was rather a fan of the method, since for all his absolutist yearnings he still had a Parliament that was very conscious of its control over taxation (itself a power wrested from Edward III in the course of his pouring money down the rat hole of the Hundred Years War).  Later on, in the early 1600s, when Charles I was falling out with Parliament, he attempted to use the ancient levy of “ship money” to raise general revenue.  It didn’t work for him.  Even later, in the 1860s, when Wilhelm I wanted to raise the length of conscripted service in the Prussian army from two years to three, the Landtag balked at raising the money for it.  A constitutional crisis threatened and in desperation Wilhelm summoned a previously-obscure Prussian Junker to Berlin.  Otto von Bismarck was Johnny-on-the-spot and got down to business, with results as known.

But O! what Henry, Charles, Wilhelm, and the rest of them could have done if only they’d thought up a single currency — call it the “Euro,” perhaps — and a continent-wide central bank, and a raft of bureaucrats to administer the whole show.  They all could have lived far above their means and then handed the bill to their neighbors.  They could agree to a “bail-out package” that makes the levy of ship money look like pocket change.  They could agree to deals which cut their troublesome parliaments, Landtag, and the like out of the picture.

Just like is happening in Cyprus, right now.  Cyprus, in addition to being the site of one of the Western world’s most ancient cultures — and most intriguing, with its as-yet undeciphered linear script and its cataclysmic destruction — as well as a bone fought over since the dawn of history — the Ottoman sultan’s flaying alive the commanders of captured garrisons was neither the first nor the last barbarity played out — is almost a self-parody of a nasty, corrupt little hell-hole of a country that is run more as an off-balance-sheet investment of international criminal circles than anything else.  Its banking and finance sector especially, we are told, has battened on money-laundering Russian kleptocrats and their ilk.  In one respect, however, it also resembles its other Mediterranean neighbors:  For years it’s been living beyond its means and now the piper must be paid.

And so once more the world gets a front-row seat as you have, on one side, the compulsive addict/alcoholic who demands that the rest of Europe cover not only his accumulated bar tab, but also negotiate a special all-day happy hour price for his continued tippling, which he adamantly refuses to cut back, and on the other side a bunch of deep pockets who can’t decide if they’re the Temperance League, a methadone clinic, a personal life coach, a bartender, AA, or some combination of all five.

There is this difference, though:  If Cyprus went bust and left the Euro, no one would really notice the difference one way or the other.  I mean, the total bail-out numbers being bandied about are in the €15 billion range, which is a rounding error in Spain, Italy, and Greece.  As one might expect, this point of distinction expresses itself, among other ways, in the conduct of the bargaining process, and the degree to which the Golden Rule (i.e., the man with the gold makes the rules) is applied.  In Greece and Italy there’s been a great deal of back-and-forth, and extensions of deadlines, and re-negotiations of terms, and so forth.  Cyprus is getting a whacking great dose of “Shut, they explained.”  Specifically, they’re having to come up with roughly a third of the cost of the total bail-out package, in cash, and do that from their own economy.  Five billion Euros might be a rounding error in Greece, but in Cyprus that’s a pretty big nut.

The original package contemplated a levy on all bank accounts (even the insured bank accounts), ranging from around 6.6% for smaller depositors to a figure just under 10% for the Russian kleptocrats.  That deal got shot out of the saddle by the Cypriot parliament.  The next idea floated was to nationalize the retirement funds of government employees into a “solidarity fund” that was to be secured by gas concessions to be granted; additional money was to come from the Cypriot Orthodox church’s assets.  That idea went nowhere as well.  Mind you, the banks are closed right now and have been for some days.  The country’s ATMs are letting people pull out as little as €100 per day, and the lines are getting longer by the hour.  After the “solidarity fund” notion tanked, the discussion turned back to a variant of the original deal, with some significant modifications.

On the sidelines is Vladimir Putin, whose kleptocrat buddies have over €24 billion on deposit in Cypriot banks, and have made a further €31 billion in loans to companies based (nominally cough! cough!>) in Cyprus.  In considering those numbers one must bear in mind that a good chunk of it represents money laundering and asset-hiding, and that the people doing it are Putin’s friends, political supporters, and very possibly undisclosed business partners.  So Vlad has has Gazprom, the slush fund piggy bank national hydrocarbon giant offer to restructure Cyprus’s debt in exchange for that seven trillion cubic feet of natural gas.  If not he’s toying with his options, including dumping some sizable portion of Russia’s Euro-denominated foreign reserves (wonder what that would do to the calculations of the savants in Brussels?).

I’m not sure whether I see it as a proxy fight between Germany and Russia, as this article does.  Nor do I necessarily fault Merkel for respectfully declining to use German taxpayers’ money to bail out Russian criminal enterprises.  But there’s no denying what’s going to happen when the banks open back up.  Everyone who can — including the small depositors — is going to bust a gut to put his money anywhere other than a Cypriot bank.  Lopping off a chunk of some people’s deposits is to let a horse out that cannot be re-stabled.  The Cypriots may be running a banana republic without the bananas, but they’re not stupid; they know that once you go down that road it’s just a question of time before some government does come after their money, or their retirement accounts.

Now the EU weenies and the Cypriot government have reached a deal.  It goes back to the original notion of a decapitation haircut for depositors and bondholders.  There are some differences.  Most importantly, deposits less than €100,000 are to remain untouched; they will, however, get a new banker: the Bank of Cyprus, the country’s largest bank.  Deposits above that sum are looking at a levy of up to 40% (although over at ZeroHedge they’re not buying that 40% limit for a moment), and being stuck at Laiki Bank, which will be wound up.  The whole deal has been structured so that it’s technically not a tax on the big depositors; were it otherwise the deal would have to be passed on by the Cypriot parliament.  Gentle Reader is invited to speculate on what is the likelihood that those folks, most of whom can be presumed to be directly or indirectly on the Russian payroll, and who’ve already rejected the much milder 9-odd percent levy, would approve a deal that essentially takes their party boat out over the continental shelf and blows scuttling charges all up and down its keel.

I haven’t seen anything on whether capital controls are also part of the deal but seriously, aren’t they almost inevitable?  I mean, why would a Cypriot small business owner continue to deposit his money at home when under EU rules he can dump it into a Deutsche Bank account in Frankfurt?  After the terms of the Greek bail-out began to take shape, billions of Euros left that country, large sums of it being transferred by senior politicians.  So let’s see where that leaves Joe Cypriot.  If you save your money by putting it in a bank account at home, you have no idea whether in the dead of night the government is going to lock down your bank and take as much of your account as pleases them for that night.  If you save for your retirement by putting your money into the Cypriot equivalent of a 401(k) or 403(b), your retirement nest egg might or might not be nationalized.  If you earn — on the books — more than bare subsistence, you have no place to put your money other than a fruit jar buried out back.  Since most if not all of your fellow-citizens will be able to figure the game out just as well as you, your local banker is going to be starved of depositors and thus liquidity, and so good luck on getting that bank loan to start/expand a business, or even earn a halfway decent return on what you do dare deposit.  If you’re a business looking to expand or invest overseas, exactly what positive incentive do you now have to consider, even for a fleeting, drunken moment, putting your money into Cyprus?

What is all that going to do to the Cypriot economy in the long term?  Well, for starts it’s going to drive a healthy part of it underground.  What the government can’t see it can’t expropriate and can’t tax.  Secondly it’s going to shrink the size even of that partially-underground economy.  Just about every history of the Scottish and English border marches ascribes its grinding, unending poverty to the structural uncertainty of limited land tenure, endemic public and private violence, and general inability to have any reasonable assurance that the fruits of today’s labor would not go up in smoke — quite literally — tomorrow.  Cyprus and the EU have just recreated that world, which James I in Britain crushed at the outset of the 17th Century, in a modern European island paradise.  True enough, the Russian criminal element will take a beating, but they’ll get theirs back from the skin of the patient, ever-oppressed narod of that unfortunate land.  But the true victims of all this are going to be exactly those small depositors in Cyprus who might, given enough generations, have made something of their homeland.  When economies collapse the already poor have nothing left to lose and the upper echelons have the ability to weather the storm.  It’s the middles who are destroyed.  Germany in the 1920s and 30s got to experience where that train takes you.  Will we see something like that in Cyprus?  Will Russia step into the shambles and set up shop?  Just a couple hundred miles from Syria, and less than 100 from the Turkish coast?  How’s that likely to work out?

Update [26 Mar 13]:  And sure enough, the Powers That Be are already wistfully wondering whether the Cyprus bail-out might become a template for future Eurozone bail-outs.  Immediate push-back, of course, arises, with the spokesman for the EU internal market commissioner emphasizing (a) that Cyprus is plainly (got that? plainly) a one-off case that cannot serve in any fashion as a precedent for any future situations, and (b) we need to figure out a way that taxpayers don’t keep getting stuck with the bill.  OK, as long as we’re clear about that.

The Luxemburg foreign minister is also quoted in the linked article.  He’s upset that Germany’s finance minister observed that Cyprus needs to alter its “business model.”  He objects to that expression, implying as it does that Cyprus (and other tiny European countries, such as . . . Luxemburg) has whored itself out as a haven for tax evasion and shady financial dealings.  The foreign minister accuses Germany, France, and Great Britain of seeking “hegemony” in the international finance markets.  It’s “un-European” for the big players to suggest that outfits like Cyprus ought to limit their financial sectors to ahem> legitimate financial business, and not serve the Putins of the world.  It bothers him that Germany is leading the charge in suggesting that those who benefit from playing in the shadows of places like Cyprus need to pony up when it’s time to bail out their benefactors.

Stand by to stand by, as we used to say in the navy.

Update [28 Mar 13]:  Well, here’s one for can’t-put-it-back-in-the-horse:  The EU internal markets minister is proposing to introduce a bill that will explicitly permit larger depositors (those above €100,000) to get shorn in the bank liquidation and/or bail-out process.  That didn’t take long.  So much for the Luxemburgers’ pronouncements that Cyprus is just obviously a one-off, no-precedent-here situation.

Section 5, The Self-Violating Statute

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I do not practice voting rights law. I am more or less completely unfamiliar with the pronouncements of any court at any level on the various arcana of what does and does not comply with the provisions of applicable federal and/or state constitutions and statutes which govern the subject. So my ruminations on this subject should be discounted accordingly.

Recently the U.S. Supreme Court heard argument in a case involving Shelby County, Alabama and Section 5 of the Voting Rights Act of 1965. That act was the result of Congress finally getting serious about enforcing the Fifteenth Amendment, which provides that voting rights may not be “denied or abridged” by reason of race. The second section of the amendment provides that Congress may enforce its provisions by “appropriate legislation.” The Fourteenth and Fifteenth Amendments were the so-called Reconstruction Amendments, adopted in response to the Southern states’ “Black Codes,” which were the efforts of the former Confederate states to re-impose, piece by piece, all of the legal disabilities associated with status as a slave, without actually having chattel slavery any more. 

Let’s just say that throughout more or less the entire South, and in more than a few parts of the country that had not been part of the secession, the Reconstruction Amendments were dead on arrival.  The state and local governments’ contempt for those amendments’ guarantees was so blatant that a reasonable person can only conclude that had they had been able to ignore the Thirteenth Amendment as well they would have. The old Confederacy’s bag of tricks to prevent blacks from casting ballots was almost limitless. It ran from outright personal violence to the infamous literacy tests, poll taxes, cock-eyed residency requirements, obscure registration requirements, disenfranchisement for any number of different reasons, and on and on. Among them also were the drawing of voting district and precinct boundaries so as to ensure that blacks, even if they all voted and all voted for the same candidate, would never be in a position to cast the majority of ballots in any single election. At-large districts were a favorite tool, where a densely-populated, largely black area was broken apart and its pieces each lumped in with a much larger, nearly all-white area, so that the whites could and would predictably out-vote the blacks. Poll taxes were outlawed by constitutional amendment, but that only took out one single block from a very strongly built edifice of oppression. 

By 1965 the balance of the country had finally had enough, and the Voting Rights Act was the result. Among its provisions was Section 5, which applied only to certain states, and which subjected all changes in those states’ voting laws, voting qualifications, redistricting, and other related measures to review and pre-approval in Washington (interestingly Congress didn’t even trust the local federal judiciary to have the balls to enforce the act’s requirements). A state or political subdivision or other voting district (such as a school district) which wished to change its voting practices (for want of a more technical description) could either file a declaratory judgment action in the U.S. District Court for the District of Columbia seeking a determination that the proposed changes did not violate applicable law, or it could ask for an administrative review and approval by the U.S. Department of Justice. 

The Voting Rights Act of 1965 came with a sunset clause, but each time it’s come up for re-authorization that’s handily been done. Initially the re-authorization was for seven-year increments, but beginning in the 1970s and then again in 2006 re-authorization has been for 25-year periods. Here’s the text of Section 5 (codified at 42 U.S.C. § 1973c) as it was re-authorized in the 1970s, and remained in force through 2006: 

“Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the first sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the second sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1968, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the third sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General’s failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. In the event the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court.”

 What’s interesting is that neither the declaratory judgment option nor the administrative review option has any preclusive effect upon a subsequently filed lawsuit to enjoin the changes’ effectiveness. But more to the point, let’s focus on what Section 5 prohibits: Changes that “have the purpose [or] have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title.” The test is two-pronged, both subjective (intent) and objective (effect). The situation which must be shown not to be aimed at or effected is the denial or abridgement of the right to vote “on account of race” or contrary to the guarantees of Section 1973b(f)(2). As one might suppose, the courts have not been at a loss to find any number of proposed arrangements either to evidence the intent to diminish voting rights on account of race or to have that effect.

It’s been nearly 50 years since the Voting Rights Act was adopted. Across large areas of the South, voting participation by blacks now closely mirrors that of their white fellow-citizens. Similar proportions of eligible citizens register, and similar proportions of registered voters actually do so. More to the point, black voting participation rates in large areas of the South now exceed comparable measures in many areas of the North, including specifically some areas which are commonly (and justifiably, in many cases) viewed as having been at the forefront of the national struggles to end slavery and a hundred years later to fight for civil rights. Blacks are elected to public office not only by other blacks, but also by whites as well. One thinks of Allen West of Florida and J. C. Watts of Oklahoma. Mia Love in Colorado came within a whisker of winning election to Congress in 2012. There are also whites in Congress who regularly win election in so-called “majority-minority” districts; one thinks of Steven Cohen of Tennessee. If I were more of a political junkie I’m sure I could come up with numerous other examples of each; those are just the ones that come to mind as I sit here on the couch. Racially-motivated voter suppression is now a two-way street. The New Black Panther Party case came out of Philadelphia, and involved armed black thugs intimidating white voters. There was another case – in Mississippi, of all places – in which a black public official got busted for suppressing white votes. 

So you can pardon, perhaps, folks looking around and asking, if voters across the old Confederacy now behave alike, irrespective of race, and participate in the process in ways that are not explicable with reference to race (as opposed to other, legally unobjectionable markers which do happen statistically to correlate with race, such as felony conviction rates, which have a disparately negative impact on blacks’ voting rights in general (in most places felons can’t vote), and black males specifically), why it is that some parts of the country but not others must still go through this pre-clearance nonsense. It’s not as though anyone’s proposing to exempt anyone in any part of the country from the duty to refrain from denying or abridging voting rights on account of race. But why is there still a statutory presumption that governments in some but not other parts of the country are still up to their old tricks, a half-century later? 

But it gets better. The existing Section 5 wasn’t good enough the last time the act was re-authorized, in 2006. Now the text of 42 U.S.C. § 1973c reads like this (new matter in italics): 

(a) Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the first sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the second sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1968, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the third sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General’s failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. In the event the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court.

(b) Any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, to elect their preferred candidates of choice denies or abridges the right to vote within the meaning of subsection (a) of this section. 

(c) The term “purpose” in subsections (a) and (b) of this section shall include any discriminatory purpose. 

(d) The purpose of subsection (b) of this section is to protect the ability of such citizens to elect their preferred candidates of choice.

Pay close attention to new subsection (b) and what it must assume in order to make any sense at all. Anything that has either the purpose or effect of – “on account of race” – diminishing citizens’ ability to “elect their preferred candidates of choice” is declared to violate the strictures of subsection (a). Notice that what’s being aimed at is no longer voting for one’s candidate, but actually electing one’s candidate; it’s the outcome that is now the objective, not the process. Now exactly how can anyone discern that one’s ability to elect one’s “preferred candidates of choice” (by the way that redundant formulation is indication of sloppy logic on the draftsman’s part) has been or may be adversely affected specifically on account of race without assuming that people of specific races must necessarily want, by reason of their race, to vote for specific candidates and not others? More to the point, subsection (b) assumes that a group of three judges sitting in Washington can decide who a bunch of black voters really want to vote for. You have to make that assumption because without it you cannot measure whether something has had the effect of diminishing any group’s ability to elect a candidate (and you have to make the measurement at the group level because no single voter can elect anyone to office).

And here we have the left’s bird-dogging their goal: It’s not that the left objects to blacks’ being denied the right to vote, because they aren’t any more, or at least not because of the color of their skin. What the left objects to is how blacks exercise that right. In the left’s view, a black citizen’s franchise in fact does not belong to him as an individual but merely as a unit of a group which is defined for him – into which he is defined, you can say – by a bunch of guys in Washington. The result is that a black voter who lives in an area where there is a concentration of voters who superficially look like him is going to find himself gerrymandered into a voting district that has been tinkered with, stretched, and twisted to produce a specific pattern of electoral outcomes. It does not matter that he has or may have nothing at all in common – other than his skin color – with the vast majority of his fellow voters in that district, who may live not just miles but hours away from him. His interests, his objectives, his policy preferences, his mode of existence, his life habits, may be entirely at odds with his fellow voters in the district. But a bunch of guys at the DOJ get to decide that, because he is black, he must want to vote for a specific and definable narrow range of candidates, and they – not he – get to decide who those candidates are.

Pray tell me how is that black voter not being denied a reasonable ability to elect his preferred candidates, and when he is lumped in with other voters for no reason but his skin color, how is that denial not occurring on account of his race? We have created the perverse situation where Section 5 effectively mandates its own violation.

Many people who make a habit of reading the Supreme Court tea leaves are cautiously hopeful that Section 5, the constitutionality of which is directly attacked by Shelby County, will be struck down. I am not so hopeful as they. This is the same court, after all, which last year ruled that Congress can tax you for not doing what it cannot constitutionally compel you to do (are we next to see a tax on criminal defendants who refuse to testify? after all, we’re not making them testify against themselves, we’re just taxing them to recover some of the undeniable economic externalities of having to convict criminals without their active cooperation).

Either this country is founded on legal distinctions between groups of people we arbitrarily call “races,” or it is not. If it is, then we might as well have saved ourselves the trouble of a civil war and a civil rights struggle, because this circle will complete itself. If we do not consciously and steadfastly turn our backs on the notion that some groups of people must be treated differently because of arbitrarily-chosen physical characteristics, then eventually we get back to where we were in the 1890s, when Plessy was the law of the land. If it is not so founded, then Section 5 of the Voting Rights Act needs to be composted.

Update [25 June 2013]:  And the ruling is in.  Section 5, at least insofar as it relies on a formula cobbled together in the 1960s, and which no one alleges can still be shown to exist anywhere, is unconsitutional.  Full opinion here.  Haven’t read the full thing yet (Thomas’s concurring opinion is, as usual, the most straightforward of the lot), but the take by the professional tea-readers is that it’s going to be awfully hard for Congress to come up with a formula that will pass muster.  Which means it’s going to be interesting to see Congress try to reimpose the ability for a left-wing bureaucracy to bugger around only those states not likely to vote for Democrat candidates.

Angie Shows Barry How It’s Done

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Back in 2009, when the flames of the collapse were still climbing to the heavens and no one really knew where the bottom was going to turn out to be, the newly-elected American president — Dear Leader, we’ll call him — had his folks in Congress ramrod through a $780+ billion “stimulus” package to keep unemployment under 8% and get us back down to 5% unemployment by what is now several years ago.  In fact, that’s how the “stimulus” was billed and sold, as a mechanism to keep ordinary Joes and Janes at work.  At the time the “stimulus” was pushed through Congress, on a largely party-line vote, there were dissenting voices who had the ill graces to point out that the “stimulus” bill was really the last 40 years of Democrat Party Christmas wish list.  It was overwhelmingly targeted towards keeping state and local government employment rolls topped up, and even expanded.  And so it turned out to be:  The private sector shed millions of jobs, most of which haven’t come back yet, either in an absolute sense or in the sense of keeping up with population growth among the working age.  Labor force participation rates are in the 65% range, lower than they’ve been in nearly 40 years.  The U6 unemployment data, which captures not only those actively looking for work, but also those who’ve dropped out of the game from disappointment or despair, has been hovering in the 14-16% range for months and months and months.  Even nominal unemployment has only in the past month or so dropped below 8% . . . and most of that drop is attributable to ever more people giving up on ever finding work again, and so dropping out of the labor force entirely.  During this time government employment rolls barely shrank at all.

We’re now well over 1,400 days since the last federal budget.  We’re $6 trillion deeper in debt than when Dear Leader began his first term.  Other than soak-the-rich, we’ve heard nothing in the way of suggestions to get the country back to work.  On the contrary, we have an EPA which, by executive fiat, has intentionally set out to decimate the country’s electrical generation capacity.  We’re sitting on top of the largest discoveries of petroleum and natural gas in history (literally:  in the Green River Formation they’re estimating as much petroleum as has been used in all human history, since they first started pumping the stuff in 1859 on Oil Creek in Pennsylvania), and Dear Leader sits placidly by while his agencies and allies erect roadblock after roadblock to their exploitation . . . while a gallon of regular gas costs $3.70 or more in most of the country.  We’ve enacted a “healthcare reform” program the mathematical consequences of which will inevitably be the bankrupting of the private insurance industry, leaving a formal government take-over as the only remaining option.  “Never let a good crisis go to waste,” as one of Dear Leader’s least savory advisors famously quipped, and if you can’t find something that’s wrecked, why, you just go out and wreck it yourself.  There’s your crisis.  Dear Leader has got business so spooked by his incessant demonization and vindictiveness that they’re too damned scared to hire or invest.  They don’t know how much of what they make they’ll be allowed to keep.  We’ve enacted a monstrosity of a financial sector “reform” one of the side effects of which will be to destroy the community banking industry (where do Dear Leader and his cronies suppose small business America banks?) by imposing on it compliance costs it will never be able to recover from its customer base.

And so America drifts, out of work, decaying, directionless, the plaything of a tribe bent on fundamentally changing the structure of American society and the relationship between Americans and their governments.

At the same time Dear Leader was borrowing and spending his way into the hole, the Germans went the other way.  They began looking for ways to spend less.  Dear Leader even lectured Chancellor Angela Merkel about the un-wisdom of “austerity” measures when what was really needed was going on a toot like a crowd of drunken sailors on their first shore liberty in ten years.  Merkel, who unlike Dear Leader actually has some demonstrated intellectual horsepower (before she went into politics she was a practicing physicist, as opposed to a “community organizer”), politely told Dear Leader to mind his own business.

Germany’s new budget proposals for 2014 (“budget”? what’s that? what does a “budget” look like?) project the lowest levels of new borrowings in 40 years.  In 2015 the budget will be balanced, and in 2016 they’re looking at €5 billion surplus.  Being Germans, what are they proposing to do with that surplus?  Right:  Pay down their accumulated debt (which is €1.3 trillion).  Does anyone seriously suppose that any American government with a budget surplus wouldn’t tear out and spend it?

What Germany’s accomplished is even more remarkable when you consider not only its overall history but more particularly what’s been going on the past few years.  For starts, most of the post-war reconstruction in Germany was not financed by things like the Marshall Plan (both France and Britain, with much lower levels of destruction, got much more money out of Uncle Sugar).  The entire eastern quarter, in fact, was ruthlessly plundered by the Soviet Union.  Western Germany largely re-built itself.  After reunification, it then turned around and re-built the former East Germany as well, the physical plant of which had been studiously neglected for 45 years in order to keep up a massive military and secret police apparatus.  West Germany itself had also contributed to its own defense as well, after 1955.  Granted, it did not have the overseas commitments of the U.S. or Britain, and its total military spending as a percentage of GDP was never as much as half of America’s expenditures.  On the other hand German society also had to pay for stuff that America hasn’t.  Like food; Germany hasn’t been self-sufficient in foodstuffs since before World War I.  And energy:  Barring coal, the economically recoverable deposits of which have been played out for 20 years or more, Germany produced roughly zero of its own energy requirements.  And ores:  Germany produces little of its own metal ores (and in an economy the flagships of which are heavy industry and chemicals, that’s a hard nut to crack).  And then in the last two or three years,  Germany has been propping up entire countries across Europe’s southern fringe.  Most of the money that’s keeping the lights on in Greece and Italy is coming out of Germany.

Yes, Germany has much higher income taxes than America does.  But in point of fact they’ve been reduced, somewhat, in recent years.  Germany also turned away from its single-payer healthcare system.  And German taxes on capital gains and businesses are significantly less than their American equivalents.  But mostly what Germany brings to the table is a cultural memory of the Weimar years, and what came afterward.  This instills in them a discipline that America, the Land of Perpetual Plenty, of Wish-it-True, simply lacks.  America has had downturns here and there.  So has everyone.  But only on three occasions has the fabric of the American economy had gaping holes blown in it, the kind that take years if not decades to mend:  in 1837, 1873, and 1929.  No one is left to remember anyone’s first-hand tales of the first two.  While the Great Depression was awful in the U.S., it was cataclysmic in Germany.  Most of what Germans thought to be their late 1920s prosperity, such as it was (remember this was after the terrible inflation of 1923-24), was financed by cheap credit from the U.S.  When America no longer had money to lend, and when the rocket scientists in Congress came up with the Smoot-Hawley Tariff, thereby blowing up large chunks of the international trade economy, suddenly Germany had no credit sources and their economy, which since the 1870s had been highly dependent on exports, just disintegrated.  Today’s German leaders aren’t old enough to have personal memories of the 1920s, but at least some of their parents were, and certainly their grandparents were.  And they’ll have heard stories about family fortunes blasted to bits, about lifetimes of effort brought to naught, about hopes destroyed and opportunities forever denied.  And then of course came the Nazis, and the war, and the Soviets.

So we and Germany have chosen divergent paths, it seems.  Curiosity suggests it will be interesting to see where they end up.  A solicitude for my children’s future terrifies me at the thought.

Hot off the Presses! Human Nature is Still Human Nature

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An apparently moderately well-known (but not all that well-known, it seems) “character actor” is stopped and frisked by a sales clerk in a deli on the Upper West Side of Manhattan. The store clerk thought he saw a little hocus-pocus with the merchandise. It turns out the clerk was wrong. No dialogue of the encounter is given.

The actor in question is black. The ethnic data on the clerk is not given. According to a commenter here, at the deli in question, a venue rejoicing in the name of Milano’s, all the help is Hispanic, African, or “Muslim” (by which I take it he means of apparently Middle Eastern extraction. Per this commenter, there is no “white” (in the stereotypical sense) help in those little markets in that part of town. It’s been seventeen years since I last lived in that neck of the woods, and so my memories are blurred. I do recall that I couldn’t afford to patronize the snazzier joints up and down Broadway, where this particular place is located; a bagel from Hamilton’s on Amsterdam right across from campus was about my speed, and that had to last from mid-morning until supper, usually.

According to Our Author, the whole thing is obviously a case study in racism.

Let’s let Our Author set the stage: “The deli where Whitaker was harassed happens to be in my neighborhood. Columbia University is up the street. Broadway, the main drag, is dotted with nice restaurants and classy bars that cater to beautiful people. I like my neighborhood.” Get that? “Nice restaurants” and “classy bars” that cater to “beautiful people”; not to people like them . . . you know . . . them. But to “beautiful people,” people who read The New York Times. People like us. Our kind. Good people. 

In the aftermath of The Incident, Our Author has “read and listened to interviews with the owner of the establishment. He is apologetic to a fault and is sincerely mortified. He says that it was a ‘sincere mistake’ made by a ‘decent man’ who was “just doing his job.’ I believe him.” That is, however, according to Our Author, not quite good enough. 

“The idea that racism lives in the heart of particularly evil individuals, as opposed to the heart of a democratic society, is reinforcing to anyone who might, from time to time, find their tongue sprinting ahead of their discretion. We can forgive Whitaker’s assailant. [huh? ed.] Much harder to forgive is all that makes Whitaker stand out in the first place. New York is a city, like most in America, that bears the scars of redlining, blockbusting and urban renewal. The ghost of those policies haunts us in a wealth gap between blacks and whites that has actually gotten worse over the past 20 years.” 

I do remember this much about the neighborhood Our Author is describing – you know, the neighborhood where they “cater to beautiful people.” No person of any color, of any nationality, of any physical attribute, or even of any observable behavior at all, stands out there. No one. I used to delight in wearing my Liberty bib overalls (we call ‘em “overhauls” around here, but then around here we don’t cater to beautiful people) about the place and with my . . . errrmmmm . . . unmistakable accent, I came as close to “standing out” as anything I saw during three years. And I still didn’t stand out. So the suggestion that this actor somehow “stood out” because of the color of his skin in a place that is swarming with people who, except that their mugs haven’t graced either large or small screens, are utterly indistinguishable in that respect at least from Veteran Character Actor is just risible. 

Secondly, that part of Manhattan doesn’t “bear the scars of redlining, blockbusting, and urban renewal.” It bears the “scars” of a gargantuan tax-exempt hegemon that as of the mid-1990s owned all but one single building in that entire part of town. When you don’t have to pay taxes on what you rake in or on what you own, and when the folks who want to give you tons of money so you’ll paste their names on a wall somewhere can also claim a deduction against their ordinary income taxes up to 50% of their A.G.I. during any year for what they fork over, with unlimited carry-forwards of the excess, it’s hard to find a prospective purchaser to compete against you.  If any part of New York City can be considered a protected little bubble of smug endowed socialist outrage, its own biosphere of wealth-despising trust fund babies, the area around Columbia University is it.

Thirdly, and this is something you don’t necessarily pick up on unless you’ve lived there for some while, but there isn’t really “a” New York City. You can go fifteen blocks in almost any direction and find yourself in a socio-economic atmosphere that bears scant resemblance to where you were thirty minutes ago. The “wealth gap between blacks and whites” that so exercises Our Author is not a wealth gap between “blacks and whites,” but between a very narrow slice of whites and Every Damned Body Else. As noted in one of the most self-absorbed bits of navel-gazing to be published in recent memory, New York is becoming a city of a small number of extraordinarily wealthy people, who are waited on, preyed on, and served by a large number of people who are increasingly drawn from the bottom ranges of the wealth-and-income continuum. It’s not so much that the blacks (or any other group) have got measurably poorer as that the ever-increasing cost of living in New York is running off ever greater swathes of the middle ranges, a goodly number of whom are, of course, themselves black. It’s the poorer who can’t afford to move (they can’t pack up their government housing, for one thing). Our Author neither notes the demographic catastrophe playing out in New York, nor does he note that the root causes of the eternal ratcheting up of the cost of living are in large measure policy preferences adopted to soothe the sensibilities of the sorts of “beautiful people” catered to in the “classy bars” which make Our Author’s neighborhood so pleasant for him. Irony, like subtlety, is a lost art. 

Fourthly, and this is a point that escapes Our Author, as it does most “beautiful people”: Shoplifting is a non-insurable risk. It’s not unreasonable to suppose that well over 1,000 people a day come through even one of those tiny little shop-front establishments in that part of town (if you’re open from 7:00 a.m. to 6:00 p.m. that’s eleven hours and it’s not at all a stretch to run 90 people per hour through, especially if not all of them actually buy). If only 3% of those people – 30, total – are shoplifters, and if they steal only something worth $2.50 each, that’s $75.00 per day the store has lost. At $9.00 per hour for a store clerk (yeah: I know, that’s a lot of money for a clerk but then again prevailing wages in Manhattan perforce have to be higher) the shoplifters have just about added an entire employee to the store’s overhead. In fact, you might say that shoplifters at one single store are keeping one person out of a job that might tide him over after unemployment runs out. Now multiply that by the thirty or so stores which might be in the one-seventh of a mile along an avenue between numbered cross-streets in Manhattan. So the prudent store owner’s staff is going to err, if anything, on the side of over-vigilance, because unlike “beautiful people,” us regular trash lose our jobs when the boss man hits hard times. 

Our Author is a columnist whose regular gig is The Atlantic. I don’t think it a stretch to suppose that he counts himself among the “beautiful people” catered to by the “classy” places he describes. He’s black, too. So, apparently, is his wife. What Ed Driscoll calls the “bombshell” comes at the end of the piece. When Our Author’s wife was six, some white person addressed her cousin with a particular racial epithet. Since then she’s been more or less “at war” with white people in general. I don’t know if I’d go so far as to label her a “racist,” as some have who have weighed in on the story. I will observe, though, that there is no logical stopping point for her way of thinking. It could be used to justify unthinking animosity towards the general members of any identifiable group based upon the vicarious (or even personal; I’m sure Our Author’s wife has been herself addressed with the same expression during the course of her life since then) outrage committed by one member of that group. 

Does Our Author’s wife concede the same right of personal “warfare” to all Americans of Korean extraction, based upon the undeniable outrages committed during the Los Angeles riots against the persons and property of such persons by people who . . . uummmm . . . superficially look a great deal like Our Author, his wife, and their son for whom she feels such understandable solicitude? I know, not well or very personally, but certainly enough to maintain a polite conversation, someone whose mother and step-father were struck head-on by a drunk driver who happened to be an illegal immigrant from Mexico, and who had a string of felony arrests (including drunk driving, by the way). Under no set of circumstances ought this person to have been in the United States at all and certainly not at large and behind the wheel of a car. They both died at the scene. Is this person’s tragedy a justification for her, me, or anyone else to nurture a hatred of all immigrants from Mexico and their descendants? 

Our Author, who by the way appears to enjoy a rather comfortable standard of living, or at least comfortable enough to patronize, several times a day, the sort of place where “beautiful people” go to be catered to, sadly finds that “racism” lives not, or even principally, in the “hearts of particularly evil individuals, but in the heart of a democratic society[.]” Apart from the subtle anthropomorphism of attributing human motivation to an impersonal agglomeration of individuals who have bugger all to do with each other, Our Author could use a bit of a history lesson. Particular forms of political organization have nothing at all to do with whether or how any one group may stand on the necks of other groups. Ancient Athens, the paragon of direct participatory democracy – gave us the word itself, they did – was a slave society. Its sister and deadly foe Sparta, certainly among the most egalitarian of societies, even though a monarchy, ritually declared war each year on its helots, so that they might be plundered and even killed with impunity by a Spartan. The Greeks even gave us the notion of the “barbarian” as The Other incarnate, the repository of everyone who was Not Greek; if that isn’t bigotry then nothing is. 

Rome, which gave us the republican form of government which we in the United States presently enjoy (Our Author might examine the relevant passages from the U.S. Constitution, which guarantee to each state a “republican form of government,” not a democracy), was likewise a slave society, and it was chattel slavery, too. If you were a Greek or Syrian or German or British slave your children and their children after them were likewise slaves. 

Bigotry is not something that lives in societies. It is something that dwells within each and every last one of us. Our Author, for whom the world seems to have begun with his own birth, does not pause to reflect that the ability to recognize and react against The Other is not just some social construct wrought by the descendants of one group of settlers upon the backs of another group of involuntary settlers. It is a biological defense mechanism. In primitive, tribal life, the man who is an outcast is dead. The Mark of Cain was a protective mark placed by God on Cain, in response to Cain’s plea that every man’s hand would be raised against him. Cain was right. In a world of hunter-gatherers (and folks, that’s all of human history bar the last 10,000 or so years; “classy bars” catering to “beautiful people” are decidedly a recent feature of human existence), if you strip that branch of berries before I get to it, I, my mate, and my children go hungry. It’s as simple as that. So if I fail to recognize and engage The Other, my own genetic material gets intercepted. 

As with any hard-wired human defense mechanism, such as the fight-or-flight response, it takes a great deal of psychic energy to overcome the inclination to recognize and bar The Other. How we define The Other is of course partly voluntary (show up in a group of school teachers and let drop that you were at the most recent Tea Party organizing session and see, Sesame Street-fashion, which One of These Things Does Not Belong), but it’s also involuntary. It’s conditioned by what we know of particular groups at very gross-level generalizations. Jesse Jackson (Sr.) once famously observed how humiliating he found it to hear footsteps behind him, turn around, and be relieved to find it was a white man as opposed to a black one. Surely Our Author will absolve St. Jackson from the imputation of racism? I mean, let’s say that you’re in line at a bank. There’s some guy in the next line over. White guy. He’s got a calf-length dark coat on, buttoned loosely. He’s got a full beard and a hat pulled down straight on his head. He’s not looking to the right or the left. He’s got his hands buried in the pockets. Are you comforted by his appearance, or not? Now add the side locks of a Hasidic Jew to the picture and ask yourself that same question again. Are you a bigot? Or is it just that you find the notion of an Orthodox bank robber silly because no one’s ever heard of such?  Or let’s suppose a group of eight or ten young males walking down the street in a group.  Longish hair, unshaven, all of them in clothing of the same style and colors.  Big heavy boots on their feet.  They’re speaking among themselves in a language that sounds a lot like English, but it sure isn’t any kind of English you’re used to hearing.  Gang members, maybe?  Now let’s put them in the blue trousers, white shirts, black braces, and straw hats of the Amish.  Think you’re a bigot?

You’ll notice in both my examples above that the stereotype that comes to mind is of a group about whom the objectionable behavior you might viscerally sense is known to be a behavior not widely — or even at all all — engaged in by members of that group.  Now, other than the fact that he’s presumptively one of the “beautiful people,” what precisely about Veteran Character Actor’s appearance alone was supposed to exclude in the store clerk’s mind the possibility of his being a shoplifter?

I could go on. But why? 

The whole point, if you can call it that, of Our Author’s column is that he must confront the discovery of racism even in “the good people,” the people who cater to “beautiful people” such as himself. The people who read The New York Times, who’ve never set foot in fly-over country, who don’t even know anyone who voted for Nixon. So, world-weary (and utterly unreflective), he turns his back on the good people. He’s had all of good people he can take. Let’s not disturb his moment of cognitive dissonance, in which even people so self-evidently “good” as to live and work in a part of the country that voted 90%+ for Dear Leader, who believe to the point of ecstasy in anthropogenic Global Warming, who religiously recycle their trash and buy only certified “organic” fruit and whatnot, can be so “racist” as to mistakenly suppose that a patron obviously so discerning as to go where they know how to cater to the “beautiful people” might be a shoplifter.  And certainly let’s not belch in his chapel and question whether this whole story actually does have anything at all to do with Veteran Character Actor’s skin color.

Poor man. It’s hard to be gob-smacked, even if only metaphorically and vicariously, by one of the canaille, the Pöbel, the plebs.

 

And This is Why the Republicans are Where They Are

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[Note:  I’ve been off dying for the better part of the past week.  Well, not exactly dying, but it sure felt a great deal like it over the weekend, and like Strom Thurmond whatever invaded my lungs didn’t know when to pack its bags and leave gracefully.]

The past couple of days have witnessed a good old-fashioned political show that is vaguely reminiscent of the days when the U.S. Senate might have earned its self-proclaimed moniker of the greatest deliberative body in the world.  A still fairly-junior senator from Kentucky decided Wednesday, and apparently on the fly, that he was going to filibuster the nomination of John Brennan, one of Dear Leader’s more unsavory characters, to be head of the CIA.  Senate rules allow him to do that.  He exercised his right to hold the floor until physically unable to do so for the purpose of extracting a yes-or-no answer to a fairly straightforward question:  Does this administration claim it has the lawful authority to order the extra-judicial killing (that is, no warrant, no indictment, no evidence, no trial, no verdict) of an American citizen on American soil who does not pose an imminent risk of violent harm?  

I’ve not heard anyone dispute that, for example, Geo. W. Bush could have ordered fighter interceptors to shoot down any of the Sept. 11 aircraft had we had sufficient advance notice of their intentions.  My understanding (admittedly incomplete) is that under certain circumstances of civic unrest, such as massive rioting (think Los Angeles in the wake of the first Rodney King verdict) or natural disaster (Katrina), shoot-to-kill orders are lawful.  But all those involve targets who are actually, you know, doing something which, if violent intervention is not interposed right-now-this-minute, will result in the actual destruction of lives or property.  Rand Paul’s question, phrased colloquially, was whether Dear Leader claimed the right without any judicial process whatsoever and within the territory of the United States, to whack an unarmed someone sitting at a restaurant table eating supper, just because of his involvement in some sort of activity, not actually engaged in at the moment, the objectives of which tended towards violence towards . . . well, someone.

Since the administration leaked an internal memo setting forth its arguments that it does have that authority overseas, several people and organizations have been trying to get a straight answer as to whether Dear Leader claims that authority on U.S. soil.  Eric Holder’s DOJ  issued a really insulting letter to Paul which basically refused to answer the question, and the overall tenor of which was the functional equivalent of telling a female reporter not to worry her pretty little head and doesn’t she know there’s a special on shoes down at Nordstrom’s.  Run along, children, can’t you see daddy’s working on closing a gun-running deal to Mexico?

So Sen. Rand Paul of Kentucky decided he was going to shove a spanner into the works.   And so he spoke, and spoke, and spoke.  At first alone, but as the hours went by and it became apparent that he was quite serious about what he was doing, he got some help.  And Twitter exploded in his support, including from some of Dear Leader’s most blinkered cheerleaders.  Paul ended up holding the floor for roughly thirteen hours, the ninth-longest filibuster in Senate history.

But he got his yes-or-no answer yesterday.  Dear Leader, in what may be a first, has disclaimed a legal authority to act on his own whim (which as we all know, is the highest law, an opinion he shares with the late Kaiser Wilhelm II).  For the moment it is not asserted that the president lawfully may, sitting around a table with unknown folks — or even entirely on his own in the watches of the night — issue an order for a Hellfire missile to come screaming out of the clouds and into John Q. Citizen’s bedroom where he lies asleep with his wife and two year-old, solely on the basis that he’s a member of an organization at least some of whose members may have bomb-making equipment and supplies in their garage, over on the other side of town. 

[Side note:  Holder’s letter is an illustration of why English composition class is important.  Look at the adverbial phrase “on American soil”; what does it modify?  Adverbs can modify adjectives, verbs, or other adverbs.  In Holder’s letter the two possibilities are “kill” and “not engaged,” and because of the way the sentence is written you can’t really tell which it is just from reading the text.  If it’s the latter then it’s a reversal of a position which the administration has explicitly taken (and with which I actually agree, but that’s a subject for a future blog post), namely that it may lawfully kill an American overseas who is not at the moment of killing engaged in combat but who is otherwise generally actively engaged in the activities of organizations which do pursue combat against us.  If “no” is the answer to the question whether the president can order the killing of an American, wherever located, who isn’t engaged in combat on American soil, then that’s a major reversal of position.  So I think the only way intelligently to read the sentence consistently with Dear Leader’s already-staked positions is to apply “on American soil” to modify “kill.”]

You’d think this would be, in the language of the Pythons, a happy occasion.  The minority party, which has a reputation for being less concerned with ordinary citizens’ liberties than is desirable, on a point of principle that addresses itself to the most basic nature of the relationship between citizen and state (“Under what circumstances may you lawfully kill me?” than which I suggest no question is more fundamental), and in the face of cynical refusal by an administration which has made bald-faced contempt for constitutional structures of government its habitual mode of proceeding, forces a fairly plain statement of principle from the administration.  Whether from a partisan, bi-partisan, or institutional perspective, what’s not to love about it?

Plenty, according to John McCain of Arizona.  You’ll recall him; he was the feller who did such a good job of keeping in good with the press corps during his 2008 run for the White House that he got his ass handed to him without ever actually engaging his opponent on any of that opponent’s gaping weaknesses.  McCain’s an aviator and a combat survivor.  I’m an old destroyer guy and never came close to hearing a weapon fired in earnest.  But by God we had a saying on our ship that the probability of achieving a kill with an unfired missile was zero.

Since getting to the Senate McCain’s made something of an art form of the unfired missile.  He’s so consumed with the gentility of the Senate that he’d rather abandon just about any position rather than kick up a fuss.  And this is the guy who while a prisoner of war regularly got the snot beat out of him for gratuitously kicking up a fuss with his captors.  He wasn’t willing to vote for his former colleague Hagel, perhaps the least appropriate nominee for civilian head of the armed forces ever.  But he wasn’t willing to use the tools which the Senate’s own rules provide to prevent that nomination from being confirmed.

And now, according to McCain, what Paul did was “mak[e] the ‘offensive’ suggestion that the president could assassinate” non-combatant Americans on American soil; or, rather, that his demand that the president come out and say that he could not lawfully do so was “offensive.”  According to Senator Comity, “To infer that our government would drop a Hellfire missile on Jane Fonda brings the conversation to a ridiculous tone.”  Does it, now, Senator?  Because this administration has already claimed — and in fact has exercised — the power to drop a Hellfire missile on Jane Fonda overseas.  The morality of so-called “targeted killing” (as opposed to indiscriminate killing, in the manner of Dresden?), even in wartime, even in a combat zone, and even against a uniformed member of the enemy’s armed forces, is not a new topic.  To remind Senator Collegiality, that specific question was perceived to be sufficiently legitimate that we actually debated the mission that shot down Admiral Yamamoto. 

So no, Senator Back-Scratch, it is anything but “ridiculous” to ponder the implications of targeted killing.  The moral and legal implications of drone warfare are anything but clear, anything but settled.  It’s likewise not “ridiculous” to ponder those questions in respect of someone who is, so far from being a member of a declared enemy’s armed forces, not actually engaged in combat operations, either at the moment or generally.  Think that’s a distinction without a difference?  How about the guys driving the truck full of Iranian-supplied weaponry versus the guy who is part of Al Qaeda-in-whatever-hell-hole but whose actual job is more or less that of webmaster for one of their communications networks?  As mentioned, Dear Leader has asserted and in fact exercised the power to deal with both those people in identical fashion, if they’re found overseas. And as mentioned I agree with him in that setting.  Why then is it “ridiculous” to ponder the implications of that same distinction within the territorial boundaries of the U.S. and its possessions?

Not to be outdone by Senator PressCorps, Lindsey Graham of South Carolina chimes in with, “This president is not going to use a drone against an innocent person sitting at a café because it would be illegal.  It would be murder.”  Errrmmmm . . . Sen. Graham, isn’t that word “innocent” sort of the whole point?  Holder’s first letter condescendingly refused to disclaim, within U.S. territory, the right to decide who’s “innocent” and who isn’t.  Besides, illegality is nothing very troubling to this tribe.  Dear Leader’s administration has intentionally run large quantities of weapons to Mexican drug cartels, all quite illegally.  It made personal threats against individual employees and officers of bondholders of companies it desired to hand over to its labor union allies, again, illegally.  It directly, and very illegally, intervened in a decision of the Pension Benefit Guaranty Corporation to stick it to the non-union employees of a General Motors subsidiary in order to top off the pensions of the unionized employees.  It — once more, quite illegally — flat-out lied to a United States court about bailing out a Canadian subsidiary of General Motors in order to get the GM bail-out approved.  And I’m supposed to comfort myself that this outfit won’t do something because it’s illegal?

I’d also remind Sen. Graham and Sen. Limelight that Dear Leader is not going to be the last president of this country.  I don’t know who will be president in six years, or ten, or forty.  But my three sons will have to live under that unknown person’s administration.  If we are silent now as Dear Leader refuses to disclaim the unilateral power of life and death, what is likely to be the state of the debate thirty years from now?  When was the last time that an executive voluntarily relinquished a power his predecessors had either affirmatively claimed or had refused to disclaim?

This sort of muddled thinking, this inability to discern what is actually at issue, this willingness to pull in harness with people and groups whose unabashed tendencies are towards totalitarianism is why the Republican party brand is where it is.  What does this party stand for?  Does it stand for anything?  Does it aim for anything more exalted than just taking back the same reins of power currently held by the other party?  Is there any point at which it is willing to plant its feet, set its face against the winds, and say, “Thus far and no farther”?

Sens Hop-on-my-Bus and Graham are considered elder statesmen of their party.  Perhaps they are.  If they are then that party is in more serious trouble than their most sincere enemies could wish it.