When Reporters go to the Zoo

And write about it, this is about what you’d get.  A profile article in The Washington Post about the family that Dylann Roof crashed with during the weeks immediately preceding his murderous rampage in Charleston.

The home’s occupants are, in no particular order, a twice-abandoned mother who’s working her country ass off at the local Waffle House, her three useless-as-tits-on-a-boar-hog sons, Justin, Joey, and Jacob (how cute! matching names), the slatternly girlfriend of one of them (does it matter which?), and a motley assortment of people who seem to be “staying there,” as the lower orders around here say, for different reasons and periods.

“Home” is a beat-up ol’ single-wide out in the sticks in up-country South Carolina.  It houses Mom, the three boys, the girlfriend (for the time being), and whatever dead-beat loser buddy of whichever of the three brothers feels like imposing himself on whatever the mother can earn down at the Waffle House, together with such cash-under-the-counter scrapings as come in whenever one of the boys feels like getting far enough off his ass to scratch his own fleas.  There is a dog, Daisy, whom the reporter identifies as a “pit bull puppy,” but whom the picture with the article plainly shows to be a beagle or some other hound breed.  [If that’s the standard of the WaPo‘s fact checking you might want to take at least some of the rest of the article with a grain of salt.]

They didn’t always live like this.  At one point they lived in a subdivision, in a clean house, with clean clothes, and predictable patterns to their lives.  Then the mother’s (second) husband just up and walked out.  She lost her job as a medical technician (the article doesn’t say why; it could have been any number of reasons — the medical industry chews people up and spits them out like seeds), then lost the house to foreclosure.  They moved to the trailer.

Among their neighbors back during “normal” was a kid named Dylann Roof.  Another was some kid named Shane who would “stay for weeks” in the family’s house, and later in their trailer “even though he had his own trailer by then.”  He used to get drunk and talk about doing crazy self-destructive things, like drinking rat poison.  Everyone thought he was just stupid drunk and running his mouth.  One evening he swallowed a shotgun; one of the Meek boys stole his cowboy boots from his still-blood-spattered home “as a memento.”  During his pre-homicidal visitation, Roof would get good ‘n’ drunk and talk about doing “something crazy,” and wave around his new .45 ACP (in a really interesting data point, he’d also get good ‘n’ drunk and go sit in his car to listen to . . . opera; the article doesn’t vouchsafe us which composer(s)).  At one point one of the brothers took Roof’s gun away from him and hid it.  Not because they thought he might go and calmly murder nine people in a church, but because they thought he might swallow the gun.  Like their buddy Shane had in fact done.  They gave Roof his gun back.

The article asks, not so subtly, why this family didn’t take Roof’s announcements seriously and call the cops.  I have news for the reporter:  No one takes anything about people in that world seriously.  Not even they do.  When they tell each other they love someone, it’s generally neither meant nor received in earnest; when they announce an intention to turn the page and get themselves straightened out, everyone who hears the statement knows it won’t happen.  When one of them finds Jesus, everyone mentally calculates the date when he’ll backslide and end up with another drunk-and-disorderly on an ever-lengthening rap sheet.  When one of them expresses an ambition, it’s accepted that he’ll never stir from the couch to realize it.  When one of them is drunker than Cooter Brown and allows he’s not going to take that shit from the boss/neighbor/teacher/wife/husband/police or whatever other source of momentary friction has intruded into his world, no one believes for a moment that his statement will turn out to bear any correlation with his actions.

Among the cameos put in by the rotating cast of drifters, scroungers, and layabouts is a heavily-tattooed black kid identified as Christon, who professes even yet to “love” Roof as a friend.  The value of Christon’s love for anyone can be measured by his later quotation, “I have no sympathy for people. Nobody has any sympathy for me. I care for me and me only.”  Spare me your love, Christon old man.

The only person even slightly sympathetic in the whole show is Mom.  She is shown cleaning, “constantly cleaning. She wipes the kitchen counters. She straightens the blinds. She folds up the sofa where Lindsey and Joey sleep, folds the sheet and zebra blanket, and drops them in the corner where Roof often lounged, as Jacob does now.”  She’s shown at work, exhausted and — one suspects — shell-shocked that her existence, once so . . . so . . . normal, has degenerated to the point that now they themselves are the target of an investigation by the feds in connection with this punk Roof’s crimes.  [I’d like to know just what the hell law it’s believed these people broke.  Not listening to a drunk-ass dead-beat is not a crime; it’s called ordinary common sense.]

No details are given on what lead to both marriages to break up in similar fashion, with the husband leaving.  I can imagine the second husband getting good and sick of having some neighbor kid invading his home for weeks on end, drunk, high, or both, to whoop it up with the wife’s layabout children by another man.  Or maybe he was cool with it.  Who knows.

The only knock on Mom which immediately appears from the article is her abysmally poor judgment.  Step One on her Back to Normal project needs to be to kick out everyone but the 15 year-old, change the locks, and tell little junior if he fucks up one more time, even just a little, it’s off to juvie for him and she’ll never have anything more to do with him.  The older two need to go sleep on a park bench or wherever it is until they realize that being able-bodied males and mooching off their mother who’s killing herself by inches at the Waffle House is the kind of public disgrace that no one ought to be able to endure and still hold his head up and call himself a man.  I’m sure Mom loves her boys; she’s their mother.  But hell and blast, lady, your children have got themselves and you on a path to where one or more of you is going to come to a violent end.  Stop it.  Now.  You’ve got to be the adult in this picture.

I ran across the article on a friend’s Facebook page.  His comment:  “I read this story, riveted, from front to back, in the paper this morning and decided it’s the most depressing thing I’ve read in months. These people have a miserable life, and it’s hard to imagine what could be done to help. It really does seem hopeless. And learning that people from this milieu are resorting to random violence should not come as any surprise.”

Oh dear.  Where to start with this sort of non-comprehension?  For starts, the United States is full of families who live in beat-up old single-wides out in the woods.  They’re either momentarily down on their luck or fate has dealt them a bad hand which they’ve played poorly.  But as the mother demonstrates, you don’t have to live like that.  Or as P. J. O’Rourke quotes his dead-broke Irish mother during the depths of the Great Depression, “No one is too poor to clean up his front yard.”  Living like this family does is an active choice, for which they deserve censure, not pity.  And guess what else?  The percentage of people who live like this and who “resort to random violence” is almost incalculably small.  True enough, many of them live like that precisely because they are or have been criminally violent in their pasts, but it’s generally exactly the kind of violence that’s always existed in society:  Violence among one’s own circle of acquaintance.  I can’t recall the precise number just now, but the overwhelming proportion of victims of violence personally know their assailant.  Not “random” at all, in other words.  They’re not “resorting” to it from misery or hopelessness; they’re violent because that’s who and what they are.  It’s how the world works that they live in, a world they are fully participatory in making.

All of which is to say that I know way too many people who either right now live like that, or grew up living in circumstance in comparison to which this family is on Easy Street, and who are decent, law-abiding, hard-working, community-supporting people.  In fact, not a few of them are the most hard-working and financially (for their circumstances) generous supporters of operations like the humane society, the food bank, the help center, and their respective churches.  Need a pull out of a mud-choked ditch?  They’ll be there, with their tow strap or chain and a 25 year-old pick-up truck that has its license plate in the rear window because there isn’t a bumper on it.  Church has a leaky roof?  They’ll be up there with a hammer or holding the ladder.  Dog gets dumped out on a back-country dirt road?  It’ll come home with them.  They are really ordinary folks whom you’d be happy to pass the time of day with, if you found them on a park bench beside you.

It wouldn’t surprise me at all if Mom in this story was one of those people.  But Jesus Christ and General Jackson! lady.  Get your worthless-ass sons out of your house.  You can’t help them until you get your own life back on track, and that’s not going to happen as long as you’re the pack animal for these thugs.

I do agree with my friend’s characterization of this story as depressing. It is every bit that.  It’s depressing because you know you cannot help these people.  Even Mom, who knows how not to live like this, has more or less chosen to do so, by permitting her useless children to create that world around her.  You cannot stop a person bent on self-destruction.

What’s striking about the newspaper article is the reporter’s tone.  It’s as if he’s gone to the St. Louis Zoo and is reporting from the primate house.  “Zerlinda, the matriarch of the band, plucks lice from the fur of Josephus, the dominant silver-back.  He occasionally gives her a smack on the head, sending her reeling.  She sulks, never for more than a few moments, then tenderly returns to her grooming.  Pluck.  Smack.  Pluck.  Every so often they will stare through the glass at us.  What in the world might be crossing their ape minds?”

The dog dies at the end of the story.

Something Upbeat, for a Change

I suppose it’s embarrassing that I have to use that post title.  Yeah, yeah, I know:  If you’re not outraged you’re not paying attention.  Nonetheless in looking back at many, if not most, of the posts I’ve put up over the years, I have to acknowledge that levity and good feelings are comparative strangers around here.

Today I make an exception.

Over Labor Day weekend the family and I hied us to the National Museum of the U.S. Air Force, located at Wright-Patterson Air Force Base in Dayton, Ohio.  It’s easy to get to, it has free parking and admission, and oh by the way, did I mention it rocks?  We spent Saturday afternoon, most of Sunday, and Monday morning there.  If that’s all you did you should still budget at least two full days if you want to see everything they have, and read all the explanatory material, and actually spend some time contemplating the exhibits, rather than just rushing on towards the next one.

The museum is set up in gigantic (I mean, like, really enormous . . . like multiple football field big) hangar-like buildings, each connected to the next via covered (and mercifully air-conditioned) passageways.  The most interesting exhibits are at floor level, although they also have many suspended above you, chiefly the (for me, at least) less interesting ones, like drones, air-launched missiles, small trainer and transport aircraft, and so forth.  The exception to the pattern is the exhibit hall for the ICBMs, which is set up to remind the visitor of a missile silo (round and very, very tall).  Obviously, most of the exhibits are United States warbirds, although they do have quite a number of German, several Japanese, and a few Soviet exhibits.  They’ve got a V-1 and a V-2, a Bf-109, MiG 15, MiG-29, etc.  Interesting stuff.

What they don’t have very much of is — with the exception of one specific exhibit hall, on which more later — individually historical aircraft, by which I mean specific airplanes that in and of themselves are historically significant.  By way of counter-example, the National Naval Aviation Museum, located at NAS Pensacola (and itself likewise worth the trip from wherever Gentle Reader might be) has the only known survivor of both Pearl Harbor and Midway; it has the NC-4 (the first airplane to fly the Atlantic); it has quite a bit of the bridge equipment from USS Enterprise (trivia note: the chap who founded Enterprise Rent-a-Car served in her during the war, and named his company after his ship), and so forth.  I can understand that:  Most of the historically significant land aircraft are going to be found at the Smithsonian, so the Air Force Museum is going to have to take second pick.  Illustrating that literally is the fact that Enola Gay, the airplane that dropped the first atomic bomb, on Hiroshima, is in the Smithsonian.  Bockscar, which dropped the second bomb, on Nagasaki, is in Dayton, viz:

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The major exception to the above pattern is the presidential gallery, in which they have a fistful of airplanes which served different presidents.  They have, for example, the last of the several airplanes nicknamed Sacred Cow, which ferried Roosevelt to the Yalta Conference.  It was a built-out C-54 and featured an elevator mounted in its tail to hoist FDR aboard in his wheelchair.

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They also have the airplane which brought Kennedy’s body back from Dallas.  Not wanting to shove his casket into the cargo hold, they sawed out a chunk of an aft bulkhead and wedged him in that way, with his widow making the trip sitting in a seat opposite.  They’ve got Truman’s plane, the Independence, as well as several smaller airplanes which served in different roles.  What they don’t have is a Marine One, which is understandable, it being Navy (you can see one at the Naval Aviation Museum if so inclined).  The presidential exhibit shares an off-site (for the time being; starting at the end of the month they’re going to move both to the main facility) hangar with their collection of experimental aircraft.  They’ve got the only surviving XB-70 (the other one crashed during test flight), the prototype of the XF-23, the competitor which lost out to what became the F-22 Raptor, and a raft of other things some of which you have a hard time imagining in the air.

What struck me — and here I am perhaps betraying an ignorance born of sloth — is the sheer variety of aircraft the U.S. has put into the air over the years.  Sure, everyone’s heard of the B-52, the B-24, the B-1, the P-47, the F-4 Phantom, and so forth.  But how about the RB-47, or the A-20?  Or the B-50 Hustler?  To say nothing of the inter-war aircraft?  The Air Force Museum has got ’em all.  Among the most impressive for me was the B-36 strategic bomber.  Again, although I’d heard of this one, I’d never really paid attention to it, considering it to be one of those stop-gap planes that we just shoved onto the flight line until we could get the B-52 in the air.  Well, it was our principal strategic weapons platform for most of the 1950s, and man alive! is it huge.  It’s got ten — count ’em — engines: six pusher propellers and four jet engines mounted in twin pods outboard of the props.  And did I mention the thing’s ginormous?

As with any exhibit of historical artifacts, you get a sensation of times which were in important ways profoundly different from our own.  F’rintsance, you kind of get a notion that the concept of “micro-aggression” hadn’t made it into the lexicon of the U.S. Army Air Force when you take a look at the nose art on their B-24 Liberator:

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Around the walls of the exhibition halls, as well as interspersed among the airplanes, they’ve got thematic exhibits of documents, artifacts, and so forth.  Some of them are personal to specific aviators, who either died in combat or who otherwise were of significance.  There are POW exhibits for both World War II and Vietnam.  There are exhibits on the strategic bombing campaigns over both Europe and Japan.  One omission I found interesting is the complete absence of any mention of Dresden.  They do have a small mention of the fire-bombing raid on Tokyo, which actually killed quite a number more than the raid on Dresden did.  I wonder if that’s because Dresden was principally an RAF Bomber Command show, with the 8th Air Force showing up the following morning to make the (burning) rubble bounce.

The museum also has an IMAX movie theater.  I didn’t go to see either of the two movies they were showing (one on D-Day and the other I forget what).  If you were to do that you’d need to budget additional time accordingly.

The passageways between the main exhibit halls are not wasted, either.  In one they have an exhibit on the Holocaust, including a listing of people in the Dayton area who either were survivors, or liberators, or who have been inducted into Yad Vashem as Righteous Among the Nations.  In another passageway there’s a really well-done exhibit on the Berlin Airlift, and in a third a collection of bomber jacket art.  In another area they have a really cool exhibit, complete with video, on Bob Hope and his 50-plus years of touring to take the troops’ minds off their troubles, even if only for a few moments.

All in all, it’s a wonderful time and I can’t recommend it too highly.

The Quartet: Fascinating, With a Caveat

I just finished reading Joseph J. Ellis’s The Quartet: Orchestrating the Second American Revolution, his history of the — and there is no other word for it — scheming which attended the process by which the United States under the Articles of Confederation was transformed into the United States under the Constitution.  I’ve also read Ellis’s His Excellency: George Washington, a very useful biography and one which sheds some interesting light on the man Ellis (in The Quartet) calls the “Foundingest” of all the Founding Fathers; his Passionate Sage: The Character and Legacy of John Adams; and, if memory doesn’t fail me, his Founding Brothers: The Revolutionary Generation.

I have to say I enjoyed all of them, particularly the Washington biography and The Quartet.  He has an easy, very accessible style and he’s not afraid to make editorial comments.  They are, after all, his books, and a biographer or historian who has nothing to come right out and say beyond the bare factual narrative isn’t much of writer.  Of course, what facts the writer chooses to include or omit also says something about him, but bald statements of characterization aren’t out of place either.  Just don’t try to hide them, is all I ask.

The Washington book I found interesting because Ellis spends a great deal of time addressing the Great White Elephant in the Room, namely Washington’s Auseinandersetzung (show me a better English word for it and I’ll use it) with the institution of slavery and the relations between the races.  Hadn’t known, just for example, that up to a full 20-25% of the Continental Army was at any given time what they’d refer to as “dark green” soldiers (all soldiers being green, you see; in the navy all sailors are blue, and some are light blue and some are dark blue) in today’s army.  This experience with blacks as fighting men changed Washington profoundly, much as it did so many of the Union soldiers in the Civil War.  You simply can’t watch a man stand up to artillery pounding or gales of small arms fire and be immune to the idea that he’s just as good as you are.  [Aside:  This is why it is so historically significant that it was the U.S. armed forces which, first among all public institutions and voluntarily, de-segregated.]

It was during the war that Washington stopped selling slaves.  By the time he died a large (comparatively) number of his slaves were well past working age.  I can’t recall off the top of my head if Ellis actually uses the expression “retirement home” or an equivalent, but it’s certainly the impression that emerges from the book.  Martha Washington, notably, never changed her own attitudes about slavery or slaves.  And Ellis highlights the fact that a significant number of what we think of as “Washington’s” slaves were actually Martha’s, inherited from her father.  Washington, as I recall, was his executor, and as Martha’s husband was legally charged with the safe-keeping of her property . . . including her slaves.  This conundrum played itself out in Washington’s final act on the subject:  As is well known, he freed his own slaves at his death (nearly alone among the Founding Fathers who were slave owners), but he did not have the legal authority to free Martha’s, and so didn’t.

But on to The Quartet.  Gentle Reader will recall that I have previously written here and here about Washington’s Farewell address, his (written) valedictory to the nation he had done so much to establish.  In both previous posts I’ve mentioned the curious fact that Washington spends something like eight paragraphs addressing the calamity of disunion and the need to resist all who would insidiously suggest fracturing of the union as being the way to go . . . but nowhere breathes so much as a word to the effect that the Constitution itself simply does not permit secession.  In beginning The Quartet I’d been very keen to see what light Ellis threw on the subject, whether it would have come up in the Convention debates or in the ratification process.  [Aside:  Ellis does answer a question for me, namely whether anyone has actually studied in detail the ratification debates in all the states.  There in fact has been someone — one person — who has done so, and unfortunately I can’t call his name from memory.]  But Ellis is silent on the point, so we can’t tell from his book whether the issue was discussed or not.  He does attach, as an appendix, the full text of the Articles of Confederation, which the Constitution replaced.  Interestingly, that document does, in Article XIII, expressly provide, “And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual[.]”

There is it, in plain Anglo-Saxon; in fact, the statement that “the Union shall be perpetual” is in there not once, but twice, just a few lines apart.  Search as you may, but no similar statement is to be found in the Constitution or any amendment to it.  Lest Gentle Reader be tempted to read the provisions of the Articles of Confederation by implication into the Constitution, Ellis makes it very plain that the Constitution did not amend or supplement the Articles, but replaced them in toto.  It represented, as Ellis clearly demonstrates, not merely a change in text but a fundamental re-ordering of the very nature of the union from a confederacy of equals, in which each “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled” (Article II, in its entirety), to a nation-state in which the states are specifically subordinate entities, although not as fully subordinate as James Madison originally desired them to be.  He had in fact, in the Virginia Plan for the Convention, specifically proposed that the federal executive be given an express veto over state statutes and other laws.

All of which only heightens the interest in the omission.  It certainly goes a long way towards under-cutting the argument that the secessionists of 1861 were not only morally abhorrent for their defense of chattel slavery, but also legally and indisputably traitors to their country.  I suppose one might say the omission of 1787 was supplied at bayonet point from 1861-65.  In all events, the nature of the union has now and forever been resolved, and I for one am happy at the outcome, however good-faith the argument on the point may have been at the time.

Back to the book.  The actual “quartet” Ellis refers to are Washington, Madison, Hamilton, and John Jay.  The first three are of course well-known.  The fourth, Jay, is known as the third member of the triumvirate who wrote the essays now known as The Federalist, the most cogent arguments for ratification of the Constitution (although as Ellis points out, they were targeted specifically at New York’s ratification convention and in fact do not seem at the time to have garnered much if any attention beyond that state), and among lawyers as the first Chief Justice.  History wonks will also remember him as the negotiator of the Jay Treaty of 1794 with Great Britain (which finally removed the British from the frontier forts they’d kept occupying, the 1783 Treaty of Paris notwithstanding), and the principal negotiator, with Franklin, of the 1783 treaty itself.  Ellis shares the vignette of Jay in conference with the Spanish envoy (it must be remembered that Spain and France were allied at the time against Great Britain); the Spaniard drew a line with his finger on a map, from the Great Lakes more or less due south to Florida (Spanish at the time), to indicate that as the western boundary of the United States, everything to the west presumably going to Spain.  The Americans had been given explicit instructions by the Continental Congress to conduct all negotiations in consultation with France, which thus meant subject to Spanish veto.  Jay then took his own finger and traced the Mississippi River.  That evening he went to Franklin’s lodgings, awoke him, and convinced him to disregard their instructions in respect of France, and to make a separate peace with Britain.  Had Jay not succeeding in convincing Franklin, or had they knuckled under to Spain’s demands, the history of the entire world for the last 225-plus years would have been not just different, but radically different.

In any event, Ellis recounts how each of the four, by his own route, arrived at the conviction that the Articles of Confederation just were not going to do, and in fact that they were so hopeless as to be beyond salvage by mere amendment.  Washington and Hamilton of course had personal knowledge of the system’s failure to support the army in the field.  Jay got to experience the futility of the system as foreign minister, when the Europeans, who could read the Articles just as well as anyone else, more or less laughed in his face when he purported to represent a “United States of America” that they could see did not in fact exist.  Indeed, it not only did not exist de jure, but as Ellis also shows, it likewise had no place in the sentiments of the ordinary people.  Folks simply did not think of themselves as being “Americans” in the sense of belonging to any greater polity than their own state, if their vision extended even that far.

I won’t recount in detail either the machinations of the Constitutional Convention itself, or the ratification process.  In fact, Ellis doesn’t spend any terribly great amount of time on the ratification process, except in respect of Madison’s stage-managing (or trying to) the order of ratification among the states.  Short version:  By deferring votes in the large, questionable states until near the end of the process, the likelihood was increased that those states would be presented with an accomplished political fact of ratification, and they’d vote to join so as not to be left out.  And that’s pretty much how it worked in practice.  To reiterate, I’d have appreciated much more exploration of the extent, if any, to which issues like potential secession got aired out.

My caveats?  Well, Ellis displays his good leftish credentials in two places in the book.  The first (p. 172) comes at the tail-end of his discussion of what he describes as an “ambiguity” about where the balance of sovereignty was located by the document eventually submitted for ratification.  Key statement:

“The multiple compromises reached in the Constitutional Convention over where to locate sovereignty accurately reflected the deep divisions in the American populace at large.  There was a strong consensus that the state-based system under the Articles had proven ineffectual, but an equally strong apprehension about the political danger posed by any national government that rode roughshod over local, state, and regional interests . . . .”

From the above statement, the truth of which I think Ellis does an excellent job demonstrating, he then hikes his leg and lets a glaring non sequitur in church:  “In the long run — and this was probably Madison’s most creative insight — the multiple ambiguities embedded in the Constitution made it an inherently ‘living’ document.”

Very respectfully, Prof. Ellis, it is nothing of the kind.  For starts, the truly revolutionary nature of the Constitution was precisely that it was written.  Ellis correctly demonstrates the core nature of the Articles as being a treaty among equals.  The Constitution was something different; it established, to a limited extent, a hierarchical relationship between the states and this new animal, the United States of America.  But most importantly, the states’ relations among each other and with the new national state was spelled out in writing.  There was a reason, after all, why monarchs violently resisted granting written constitutions, all the way down to 1905 in Russia:  A written document pins the sovereign down.  With a written document you can point to a specific clause or word or phrase and say to the government, “Look here, Buster; it says right here you cannot do that.”

The notion of a “living document” — in the sense that Ellis is using it — is very, very much a 20th Century phenomenon, and it is specifically a judicial creation from wholecloth.  The Founding Generation would have looked at you as if you were speaking Tagalog if you had suggested that what they’d come up with was a “living document” in which judges got to make things up as they went along (“evolving standards of decency”), and under which a president such as Dear Leader claims an inherent executive authority to act to impose law for no better reason than he cannot get Congress to act as he sees fit on issues which are important to him (“I’ve got a pen, and I’ve got a phone”), and Congress can prescribe how much water your toilet uses (1.0 gal/flush, anyone?).  I’ll go so far as to state that had you tried to sell the Constitution as a “living document” in 1787-88, you’d never have got nine states to ratify; in fact, I question whether the populace of any state would have been so daft.

Secondly, the mere fact that the Constitution abandoned the state-centered structure of the Articles but rejected the All-Powerful National State which Madison had gone into the Convention advocating emphatically does not mean that the answer to the question, “Where does sovereignty lie?” is a forever mutable response.  It is perfectly possible for the answers (and there can be many) to that question to lie at multiple points between those poles, depending on which issue or question you’re asking.  Just for example, the states are prohibited from making war or peace, or coining money.  That’s specifically reserved to the federal government.  On the other hand, the regulation of “Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” while extremely broad, is not, and cannot with honesty be read to constitute, a grant of authority to Congress (to say nothing of the executive) to prohibit a man from feeding his own family with the produce of his own land.  And yet that’s precisely what the Supreme Court said the Commerce Clause does.  I’m still waiting to hear anyone make a convincing case that, had you told the farmers of any of the 13 states that they were ceding authority to Congress to dictate what they could and could not grow on their own land to feed their own children, the Constitution would have stood a ghost of a chance of ratification.  The fact that a group of sophists on the bench can articulate a rationale which, as long as you don’t actually press on it with any force, supports such an outcome does not mean that outcome was contemplated by the men who drafted or voted on the Constitution as among the permissible.  The argument that everything is both necessary and proper to accomplish some hypothetical purposed which allegedly by some remote chain of causation (think: the schoolbook example of the butterfly flapping its wings off the coast of Africa, which results in a Category 5 hurricane coming ashore at Gulfport, Mississippi) is an argument which renders superfluous the entire text of Article I Section 8.  If that argument has any validity then Section 8 could have been written simply as, “Congress shall have all Powers to enact such Legislation as it shall deem expedient.”

As if to emphasize the extent to which Ellis doesn’t Get It, he offers us this:  “Madison’s ‘original intention’ was to make all ‘original intentions’ infinitely negotiable in the future.”  Got that?  Just because it says you can’t be president unless you’re 35, it doesn’t really mean that.  Just because it says each state gets to elect two senators, a state — let’s say, Alabama — can go ahead and elect three, and have them seated.  Just because it says, “No Tax or Duty shall be laid on Articles exported from any State,” and just because Article I Section 8 gives Congress the authority to “lay Taxes, Duties, Imposts and Excises,” (and requires that such be “uniform throughout the United States”), that wouldn’t stop Dear Leader from levying a tax on tobacco shipped from North Carolina to Amsterdam, but excusing tobacco grown in northern California from that tax.  Can private property be taken for public use without “just compensation”?  According to Ellis, the answer is yes, if you can get either a majority in Congress, or the president acting without Congress, to decide to do it.  Because “infinitely negotiable.”  Right now there is a lawsuit pending in which the House of Representatives is suing Dear Leader over the “Affordable” Care Act’s spending of money.  Remember this one:  “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”?  Well, it seems that at least some provisions of the ACA produce just that outcome: expenditures not authorized by law.  According to Ellis, that prohibition is “infinitely negotiable” for all time.  Why, one wants to ask Ellis, did the drafters include a provision (Article V) for the document’s amendment, if nothing in it had any now-and-forevermore meaning anyway?  “Living documents” require no amendment; all they require is a consensus that it doesn’t mean that anymore.  Like Brown v. Board of Education, presumably.  What exactly, under the leftish framework, would prohibit Congress and the president from deciding that Brown was decided entirely wrong and well, gosh darn it, we’re going back to “separate but equal”?

Bless the dear professor’s heart.  He puts in a good word for collectivism/corporatism/fascism, but really can’t bring it off.  Not to an intelligent audience, in any event.

The second place where Ellis goes to bat for the leftists occurs beginning on page 211.  He gives Madison’s original draft of what became the Second Amendment.  The two clauses of the text we know (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”) were inverted in the original draft, with the “necessary to the security” starting out as “being the best security of a free country.”  Madison’s draft also included a specific clause excusing what we would know as conscientious objectors from “render[ing] military service in person.”  Ellis just refers to “some editing in the Senate,” and laconically observes that it became the Second Amendment.  He provides no clue as to what the substance of that “some editing” might have been.

According to Ellis, Madison’s draft was merely “to assure those skeptical souls that the defense of the United States would depend on state militias rather than a professional, federal army.”  According to Ellis, Madison’s draft makes clear that the right to keep and bear arms was “not inherent but derivative, depending on service in the militia.”  Good leftist talking point.  He’s got some problems, of course, starting with the simple text itself.  The amendment, even in its original draft, does not speak of the states being free to arm their militias; nor does it provide that the right of militia members to keep and bear arms shall not be subject to unreasonable restriction; nor grant the states the right to compel militia service.

If you look at Madison’s first draft, it consists of two independent clauses separated by a subordinate clause.  Let’s try this as a catechism.

Q:  What “shall not be infringed”?

A:  A right.

Q:  What right?

A:  To keep and bear arms.

Q:  Whose right?

A:  The right “of the people.”

Simple enough.  But perhaps Madison (and more importantly, the rest of Congress) really meant “the states” when writing “the people”?  Plausible, until you consider that in four other instances in the Bill of Rights the expression “the people” is used.  The First Amendment protects “the right of the people peaceably to assemble.”  Now read that to substitute “states” for “the people” and what result do you get?  The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  Same exercise:  Are the states to secure against unreasonable searches and seizures?  Say it with a straight face, Prof. Ellis.  The Ninth Amendment provides that the enumeration of “certain rights” shall not be construed to “deny or disparage others retained by the people.”  I guess you could read that to mean “the states,” but then what to make of the Tenth Amendment, which of course provides for the reservation of all rights neither granted to the U.S. nor prohibited to the states “to the States respectively, or to the people.”  If the leftish reading of the Second Amendment is correct, then the Tenth Amendment can mean “to the States respectively, or to the states.”  You just cannot get around the fact that in every other instance where the Bill of Rights refers to a right “of the people,” either is preservation or its reservation, the reference is plainly to individual humans.

Well, maybe “shall not be infringed” really means “shall not be subject to unreasonable restriction”?  Why, then, does that “unreasonable” qualifier appear in the Fourth Amendment but not the Second?  But what of the subordinate clause about well-regulated militias?  That’s very nice, but that phrase has neither subject nor verb.  Structurally it bears the same relationship to the grammatically operative portion of the text that the Preamble bears to the overall document.  Actually, that’s not quite true:  The Preamble does contain a subject, verb, and direct object:  “We the People . . . do ordain and establish this Constitution for the United States of America.”  This is in marked contrast to the prefatory clause of the Second Amendment.

So far as I am aware there has never been serious suggestion that the language of the Preamble operates to qualify or limit the scope or operation of any substantive provision of the document.  Does Congress only have authority to regulate commerce among the several states if and to the extent reasonably necessary to “provide for a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity”?  Of course not; it has all authority “necessary and proper” to regulate that commerce for any purpose not prohibited by the balance of the Constitution.  Any at all.  Or read the Preamble as a qualifier to the judicial power granted to the Supreme Court and such subordinate courts as Congress may establish.  How is that going to work?

[Purely as an aside, I’d note that — except for those boobs on the bench, of course — no one makes an argument that the Free Exercise Clause, or the right of peaceable assembly, or the freedom of the press are subject to any purpose-based restriction, as is argued by the leftists about the Second Amendment.  Nor is the “unreasonable searches and seizures” clause of the Fourth Amendment so read as to provide that hiding one’s criminal activity is not a legitimate object of that protection.  In fact, the Second Amendment is the subject of its very own interpretive scheme under the leftish project.  Curious, isn’t that?]

I’d also observe that what Ellis is arguing for is not only the “original intent” which he just 39 pages before disparaged in favor of a “living document,” but he’s arguing for the “original intent” as contained in a draft that never made it into the document.  Priceless; but, it illustrates rather well the leftish principle that all means are permissible to the Party, because what the Party line is at the moment is by definition the Truth.

Again, dear Prof. Ellis takes a mighty swing at the bat for his Party, but comes up with air.  I was a bit disappointed that he didn’t work in something about Global Climate Change or how Citizens United is just such a horrible decision because Koch Brothers.  Or something like that.

Notwithstanding his gratuitous introduction of 20th Century political theory into 18th Century politics — and let me allow that I think Ellis is entirely correct in his portrayal of the Convention and ratification process as being as much or more about practical politics than it was the implementation of a theory — I still highly recommend this book.  It grates to have to read a book like this with one’s bullshit filters at high alert, but nowadays when there’s no such thing as a politics-free zone, I guess we’ll just have to learn to live with writing like this.

The Quartet does a marvelous job of showing just how unlikely a prospect was the transformation of the United States from a maelstrom of co-equal sovereigns to a multi-polar entity almost serendipitously adapted to the task of subduing and populating the better part of an entire continent.

Read it for the story of a political miracle, not for its legal analysis.

When the Loose Ends are People

In September/October 1938, Hitler, with the active connivance of the cowards in Downing Street, dismembered a sovereign neighbor state, Czechoslovakia.  This despite the very specific French treaty with Czechoslovakia which had been signed for the very express purpose of thwarting German aspirations against the Czechs’ territory.  Had Chamberlain been willing to support the French by watching their backs on the Rhein, the French were willing to honor their treaty commitments to the Czechs.  But Chamberlain was a coward, and his ruling Conservative Party had so neglected (under the circumstances, one might with some justice say “subverted”) the Empire’s defenses that Neville backed down, leaning on the French to do the same, and thereby selling out France’s treaty partner.

As only became known five years later, when the July 20 conspirators were in the process of being liquidated, had Chamberlain not chickened out in fall, 1938, there were armed groups of assassins literally gathered within blocks of the government district in Berlin, with detailed plans to kill or capture the entire Nazi senior leadership and liquidate the National Socialist state.  They were standing by for orders which their leaders expected to be able to give them at any moment.  Most of the senior military command was on board with the plot; Czechoslovakia had extremely formidable defenses and a very-highly-regarded self-defense capacity.  But when Chamberlain caved and the military realized they were going to be handed the Czech defenses without a fight (I can’t recall which of the senior German commanders it was who, upon touring those defenses later, opined that there was no way they’d have taken them by assault), leaving the balance of the country indefensible, they were unwilling to move forward and the whole thing fizzled.  The armed men stowed their weapons and went home.  Many of the top players later were hanged for their parts in the July 20 conspiracy, or for their associations with those folks, or, in the case of Admiral Canaris and his assistant, Major General Hans Oster, when their parts in the 1938 conspiracy came to light in consequence of the post-1944 purges and investigations.

In March, 1939 Hitler completed his liquidation of the rump Czechoslovakian state.  The Western powers looked on in fear.  Britain’s response was to issue the unilateral guaranty of Polish territory which then was called on September 1, 1939, when Hitler sent his armored columns swarming into that country.  With eventual results as known.

Hitler’s pretext for his initial assault on Czechoslovakia was the Sudeten Germans, who had settled in Bohemia centuries before, as early as the 12th Century, at the invitation of the then-kings of Bohemia (this was even before the Habsburgs acquired the franchise, so to speak).  What is important to understand is that the areas in which they principally settled never were part of any of the lands which later went to make up the German Reich.  The Germans who settled there occupied precisely the same relationship to their land of origin as the Chinese who settled in Manhattan.

All that notwithstanding, the Nazis cooked up this “heim ins Reich!” movement among the nationalistic elements of the Sudeten Germans (although they’d also settled elsewhere — Franz Kafka was a German Jew born and raised in Prague — they were concentrated in the Sudetenland).  I’ve never read a specific history of that era in that place and among those specific actors, but what is pretty easy to glean is that Hitler was using the Sudeten Germans to de-stabilize the Czech government, both from within (via the usual 1930s-vintage political thuggery) and from without, as Dear Concerned Führer stepped forward to offer himself as their protector.

Suffice it to say Hitler got everything he could have dreamed of, and more.  The Sudeten Germans went heim ins Reich, all right, and a fat lot of good it did them.  And then of course Hitler loses the war and offs himself, leaving the Sudeten Germans to their fate.  And what a fate it was.  Gentle Reader must understand that Reinhard “Hangman” Heydrich earned his nickname as the deputy “Reich Protector of Bohemia and Moravia,” which is to say, a good chunk of what had been Czechoslovakia before the war.  The Czechs took him out in mid-1942, using explosives dropped to them by the British.

When the war was over, Edvard Benes (sorry: can’t rig the diacritic over the final “s”; Churchill, by the way, pronounced his name “Beans”), the Czech president so viciously sold down the river in 1938, resumed his office, and promptly set about giving the Sudeten Germans their stated wish, insofar as that conformed to what they’d allowed to be done in their name seven years before.  He expelled them en masse, back to the dear ol’ Reich.

Seventy years ago today, in a town then called Aussig (now called Usti nad Labem), there was an explosion in town, in a former sugar factory (must have processed sugar beets there).  In the time-honored tradition — think principally of what happened to towns’ Jewish populations from the 14th Century onward every time the plague, or the cholera, or a swarm of locusts, or whatever passed through — the locals decided it must have been the work of the (newly declared) outsiders, viz. the Sudeten Germans.  And the pogrom began.  Their homes were ransacked, their businesses trashed, they were herded into the streets — men, women, and children indiscriminately — and beaten, or shot.  Quite a number of German workers on their way home after shift were crossing a bridge over the Elbe on their way home.  They were thrown into the river and shot as they swam.  Total dead may have been over 200.  No information about the total injured, or the extent of the property destruction.

The bridge the workers were thrown from was at the time, and to this day remains, named after Edvard Benes.  It was Benes and his administration who crafted the expulsion statutes.

Since the fall of the Iron Curtain there has been some movement of reconciliation between the Czechs and the Germans.  But from this write-up about the pogrom at Aussig in today’s Frankfurter Allgemeine Zeitung, it seems to be of extremely modest extent.  In fact it seems that the Czechs have held, more or less, to a philosophy of good riddance.  They certainly didn’t ask for the war.  In truth, in 1945-48 as the new political and ethnic polarities of post-war Europe were taking shape, can you really blame someone who was born and grew up in a Wilsonian hell-hole of “self-determination” among the crazy-quilt patchwork of Eastern and Central Europe for deciding that he was going to lance, once and for all time, that particular ethnic boil?

The Sudeten Germans were a loose end in July, 1945.  And they got tied up.  The dead among them as well must be reckoned with the war’s casualties, as must the dead in Poland, where the killing also extended for months past the war’s nominal end.

As with so many other things, I confess myself ambivalent about what happened to the Sudeten Germans.  It was unspeakably cruel, of course, forcibly and with no compensation at all, to uproot an entire people from what had been their homeland for up to 700 years.  On the other hand, so long as they were there they were available for further exploitation by future unscrupulous madmen, uses which the Czechs had just watched play out on their own home soil.  Gentle Reader might protest, “But the war was over.  Everyone could tell that would never happen again.  Those days were over and done with.”  To which the only reply is that no one could tell anything of the kind.  “It’ll never happen again,” is precisely what was said in 1918-19, exactly the promise that goofy megalomaniac Wilson made to the peoples of the old Habsburg Empire.  Remind me how that worked out, again?

I’m paraphrasing here, but I recall running across a quotation from Winston Churchill, from when he was First Lord of the Admiralty.  He presided, as Gentle Reader will recall, over one of the most portentous arms races in human history, the naval capital ship race between Imperial Germany and Great Britain.  Someone tried to downplay the necessity of Britain’s engaging in and winning that race by pronouncing that of course Germany would never dream of attacking Britain and destroying its existence by intercepting its sea lines of communication.  Churchill pointed out that at the Royal Navy it wasn’t their job to see that Germany wouldn’t do it, but rather that it couldn’t.  I will submit that in the immediate post-war years, Edvard Benes was faced with similar considerations.  Gazing out over his bleeding, war-torn land, his job was not to see that groups like the Sudeten Germans wouldn’t again be used to destroy the country he was sworn to defend, but that they couldn’t be so used.

And so the Sudeten German question got finally resolved.

The Things You Learn

One of my favorite books is William Manchester’s The Arms of Krupp.  I have it in paperback and it’s been read enough that my copy is falling apart.  Once day I suppose I’ll hunt up a hardcover copy on Amazon, but that’s a priority that’s going to have to wait.  I have a few of Manchester’s other books, including his now-completed (posthumously, by his hand-picked editor) biography of Churchill — The Last Lion — and the last book, I think, that he ever wrote himself, A World Lit Only by Fire, a book about the world and plane of human understanding shattered by Magellan’s voyage.

At the risk of understatement, in the Krupp history Manchester avoids the pitfall of falling in love with his subject.  Rather the opposite; in fact, at least some contemporaneous reviews — here, for example — took him to task for erring too far in the other direction.  A few years ago, a Harold James published a new history of the family and its company, Krupp: A History of the Legendary German Firm (here I am violating one of my informal rules (hey, it’s my blog, right?), namely that of not linking to books that I have not read), which has been favorably contrasted — here and here, for example — to what is now perceived as Manchester’s lop-sided portrayal of the family and its doings.

All that is as it may be, as the English say.

I wanted to focus on a person who figures prominently in the latter part of Manchester’s book, a boy name of Berthold Beitz.  Beitz was brought in as the front-man of the firm in the 1950s.  He’d been head of an insurance company after the war.  Here it is helpful to understand the outsized role that insurance companies play in the German economy and in society.  Let’s just say that insurance occupies a much more honored niche in both than is the case here.  Manchester portrays Beitz as being almost a cartoonish wanna-be American.  Using first names.  Glad-handing.  Everything big, loud, and overdone.  Very much contrary to how the family and firm had done business before.

The family and firm had need just at that time (1953) of a front-man.  Alfried Krupp, the last sole proprietor, was then still somewhat in bad odor, he having been caught with a large number of dead slave laborers about his person.  Manchester’s book is in fact dedicated to the nameless dead children in the cemetery at Buschmannshof, in Voerde-bei-Dinslaken, who were born to Krupp’s slave laborers, died, and were buried there.  His father, Gustav Krupp von Bohlen und Halbach — who was not even a born Krupp; the Kaiser himself gave Gustav the Krupp name upon his marriage to Bertha (for whom the Big Bertha siege gun of the Great War was nicknamed) — was to have been one of the defendants at the first Nuremberg trials, sitting in the dock with Goering, Heydrich, Sauckel, and the rest of them.  That’s how egregious their behavior was.  But by the end of the war Gustav was a drooling imbecile and in fact had in 1942 (I think; it may have been the next year) given the entire firm to his son Alfried.  For whatever reason the Allies never tumbled to that fact, and so Alfried, under whom the worst of the firm’s wartime atrocities occurred (Manchester even cites to an occasion on which the S.S. complained of how Krupp was treating its slave laborers), escaped a hanging court.

So Beitz was brought in as the first outsider to have a decisive voice in the firm’s running.  Manchester portrays him has more or less running it into a ditch, over-extending it with questionable dealings with Third World countries and Warsaw Pact countries, the abilities and willingness to pay of which were all dicey at the time and proved to be the firm’s undoing.  Again, according to Manchester (it’s been several years since I re-read the book), the firm began doing an ever-greater percentage of its business in places where a prudent vendor would have given serious thought to the merits of up-front payment.  And then of course those same “developing” (a misnomer: they didn’t “develop”; the West developed them, and paid through the nose for the privilege) countries welshed on enormous contracts, which drove the firm from private ownership.  Ended up going public, a step which the Founder, Alfred (his parents gave him the English spelling of the name) had vehemently opposed.  Of course, to complete the irony, Krupp and Thyssen have now merged (look at the next elevator Gentle Reader rides in).  Thyssen was Alfred Krupp’s arch-enemy back in the day.

The merger, by the way, was Beitz’s doing.  He stayed with the firm for 60 years, and died July 30, 2013, just shy of his 100th birthday.

What I didn’t know until I read his obituary in the Frankfurter Allgemeine Zeitung (sorry, their archives are pay-walled) was that he was inducted into Yad Vashem for his actions in saving Jews during the war.  He’d been in charge of a large petroleum facility in the Ukraine, sufficiently high up that he had the power to designate workers as critical war workers.  He also was sufficiently lofty to receive advance notice of proposed round-ups and liquidations.  And so he began using his critical-worker designation powers willy-nilly.  In favor of all manner of people, including children.  He and his wife also hid Jews in their home.  According to the Wikipedia write-up here, he was eventually credited with saving on the order of 800 Jews from extermination, for which he was honored by Yad Vashem as Righteous Among the Nations.  It is, I understand, the highest accolade that the children of Abraham can bestow upon a Gentile.

I can think of no higher recognition than to be recognized in one’s own lifetime as Righteous Among the Nations.  Has a biblical ring to it which sort of chokes one up, upon reflection.  I think what impresses as significant is the mental image of the individual standing on his own, alone, among the nations of all the earth, all acknowledging his virtue and courage (part of the selection criteria for Yad Vashem is that the person must have acted as he did at peril of his own life, and for the purpose of saving the lives of Jews).

I don’t know whether Beitz’s war-time rescue activities were widely known when Manchester was writing (his book dates to the late 1960s, which means it would have been researched and written towards the middle of the decade).  Would knowledge of that have altered how he was portrayed in the book?  I’d sure hope so, given how negatively he is shown.

The take-away from all this is that it’s going to be a long, long time before the last is written or spoken upon any of us.

Farewell and rest in peace, Berthold Beitz, Righteous Among the Nations.

Perhaps not the End of Days

But certainly more than slightly reminiscent of the latter days of the Roman Empire.

The other day I went to a first-run movie, a thing I seldom do.  In fact, I’ll go farther: a thing I pretty much studiously avoid doing.  But my father, who adores movie popcorn and has few other pleasures left in life other than his dog, likes to go and I go with him.  He likes to get the exact middle seats of the very top row, and grouses if there are more than four other people in the theater.  Same thing with restaurants, by the way.  Part of me delights in the magisterial disregard of the basic logic of the thing:  If it’s worth seeing, or worth eating there, people are going to go.  If you want it to yourself you more or less have to confine yourself to places and things that are not desired.  Part of me gets very fatigued with the expression “jammed up” to refer to any crowd in excess of ten.

Be all that as it may, we went to see Spy, a fairly harmless and mindless comedy vehicle for the lead actress, Melissa McCarthy (who came close to stealing the show in Bridesmaids).  If F-bombs tossed about like confetti upset you, it’s probably not a movie for you.  It certainly isn’t for younger children.

Enough of the feature.  Getting there as early as we did — and do, considering my father’s morbid fear of not getting the Right Seats — we got to see the trailers.  Among them was a trailer for what seems to be a television show, which these days is, as I understand, equivalent to saying “reality” television show.

I have very few accomplishments in life I can point to.  Among them is that I’ve never seen an installment of Here Comes Honey Boo-Boo, or Jersey Shore, or Swamp People, or Real Housewives of East Jesus, Arkansas, or even much of Duck Dynasty.  All the Survivors and their interminable spin-offs have also left me serene in my pop-culture ignorance.  I now have another to add to the list.

Gentle Reader, we are about to witness a show identifying itself as Little Women: LA.  This show is about midget and dwarf women, in Los Angeles.  When one is an abnormally small female in Los Angeles, apparently the thing to do is behave trashy.  People will film you, and then (shudder) a country full of people will watch you behaving trashy.

Consider how many ideas for television shows get pitched every day in Hollywood.  Consider how many people in how many roles and with how much money and influence must all sign off on the concept, the financing, the production details and budget, the marketing strategy, and on and on and on.  Consider how few of the ideas pitched ever see so much as a minute of production.  Consider how many of the ones that actually do get so far as having a pilot filmed get canned before ever being shown.  What I’m getting at is that the tripe that makes it onto your television screen on a daily basis, Gentle Reader, is the surviving remnant of not just a mountain, but an entire mountain range of Stuff That Didn’t Make the Cut.

All of which is to say that, while we might not know their names (I’d hope they’d have enough self-respect to give false ones in the credits: “Executive Producer:  Vyacheslav Molotov; Casting Director:  Richard M. “Bingo” Little.  Editing:  Boris Godunov.  And so forth.), we know by the tracks they are about to leave across the smoldering remains of American pop culture that they do exist.  They are all the people who thought this was a Good Idea.  Stop and ponder, Gentle Reader what must have been the ones they thought too silly, too degenerate, too uninteresting to the breadth of the American television consuming public.

Many years ago, while I was stationed in Charleston, South Carolina, the state legislature felt called upon to outlaw a sport, self-explanatorily identified as “dwarf tossing.”  I understand it involved, other than the physical actions which gave it its name, a great deal of beer.  I assume the dwarves were willing participants (never so familiarized myself with it as to know how they were compensated).  Can’t say that I ever saw an evening of dwarf tossing advertised on any venue I drove past (maybe I just wasn’t driving through the right parts of town in the right parts of the state), but I’m not sure how the Scourge of Dwarf Tossing came to be viewed as such a crisis.  Again, this sounds like the sort of function where one gives a false name at the door, just in case there’s a raid and your picture appears on the front page of the local paper.  Caption:  Leon Trotsky, 43, of Spartanburg, is arrested after police raid dwarf tossing den.

Iran is getting the Bomb, the U.S. Supreme Court is re-writing statutes for the express purpose of saving them from the drafters in Congress, Greece has wheedled the EU, which jolly well knows better, into handing over another several billion Euros while they pass empty reform measures they have no intention of ever putting into effect . . . and we’re watching Little Women: LA.  I’ve read several books on the end of the Roman Empire, all the way from Gibbon to more recent re-examinations, but a common theme is that those responsible for keeping Rome shiny side up and rubber side down just finally gave up on it.

As I ponder Little Women: LA, I have to ask myself whether we’ve given up on this peculiar experiment in self-government.

The Stars and Bars

Among the things going in the world while I was buried up to my eyebrows in trials was this bigot fellow sat down with the pastor and several members of the congregation at one of the most historically significant black churches in the United States, engaged in “bible study” with them for over an hour, and then shot nine of them dead, leaving two surviving for the express purpose of telling the world what he did.

This actually was a “hate crime,” if by that term you mean a crime whose underlying motive was animosity towards the victims based on something other than their actions or freely-chosen affiliations.  Like what happens to Jews all over Europe and elsewhere on a daily basis.  Like what happened to the manager of that French factory who got his head sawed off by one of his employees who propounds the Religion of Peace.  Like what happened to the dead and wounded at Fort Hood at the hands of a madman screaming Allahu Akbar! while gunning them down.

While the people of Charleston — a magical city where I was privileged to live for four years, many years ago — both black and white, showed the rest of the country how it’s done, in coming together in their grief, their outrage, and their demonstration of the very Christian virtue of forgiveness, the opportunity to strut and preen was just too tempting for the usual suspects.  Dear Leader of course chimes in on cue with the call to ignore that pesky ol’ Second Amendment, which he lards up with a slap at America and Americans.  “‘This kind of mass violence does not happen in other advanced countries,’ the president said. ‘Wedon’t have all the facts but we do know that once again innocent people were killed in part because someone who wanted to inflict harm had no trouble getting their hands on a gun.'”  Of course, this month Europe is observing the 20th anniversary of the massacres at Srebrenica.  We know Dear Leader can’t count (“all 57 states,” anyone?), but just to make it simple, this scum bag in Charleston gunned down nine people because of the color of their skin.  In Srebrenica they gunned down 8,000 men and boys because of how they worshipped.  Or how about the Christians paraded on the beach and then beheaded?  Remind me again how many that was?  Bit more than nine, as I recall.  And wasn’t it just recently that a satire magazine’s office in Paris got to experience some of that ol’ “workplace violence” courtesy of the Religion of Peace?  Twelve dead, weren’t there?

But back to the title of this post.  In the weeks since the Charleston shooting everyone and his cousin has been falling all over himself to expunge all traces of the Confederate flag from public spaces and even from commerce.  Apple, for example, has discontinued a video game app of Civil War combat . . . because the Confederate flag is depicted in it.  You don’t say?  Have they discontinued all the World War II games because you can see the insignia of Nazi Germany in them?  In South Carolina the (Republican-dominated) legislature voted massively to remove the flag from the state house, where (Democrat) governor Fritz Hollings put it in 1962.  Think about that:  The cradle of secession somehow managed to soldier along for nearly a full century without waving that flag.  Amazon and Wal-Mart do not sell merchandise depicting the Confederate flag any more. Around here where I live I can’t say that I’ve noticed either greater or lesser display of it (although I’d be guilty of over-statement to say that I’ve really been looking).

Certainly opinion in general on the flag and its symbolism doesn’t seem to have shifted much.  Fifteen years ago 59% of people surveyed (I think it was a Gallup poll, but don’t hold me to that) allowed that they did not perceive it as being principally a symbol of hatred.  In the aftermath of the Charleston shooting that’s down all the way . . . to 57%.  I suppose you can read that either of two ways: (i) Proof positive that America is an inherently racist country which isn’t willing even to give up the visible and historically undeniable symbolism of racial oppression and exploitation, or (ii) All this hand-wringing and posturing (see: Apple) is vastly over-blowing a non-issue.

I confess to ambivalent feelings about that flag.  As the reader of this blog will have observed, I’m not terribly apologetic about the South or being from the South.  I kinda like it here (as do the tens of thousands of my black fellow citizens who are moving here from the O! so Tolerant North).  So far as I know none of my Southern ancestors owned any slaves, and among my Yankee ancestors is at least one veteran of the Army of the Tennessee (excellent history of that amazing army here (I think, in fact, that my ancestor’s name even appears in it, but that’s not been confirmed); Victor Davis Hanson treats of the army’s march through Georgia in a wonderful book that — alas! — because it was borrowed, I had to return).

Did my Southern ancestors profit from the existence of chattel slavery in their society?  Well, possibly so, although I’d like to see someone try reliably to measure how much better off a small, non-slave-owning farmer in this part of the South really was because of slavery as such.  I will point this much out:  It wasn’t the destruction of slavery that wiped out such large swathes of Southerners, but the physical destruction of the war.  Before the war they’d been more or less scraping by; after the war the people whose homes and farms weren’t burnt to the ground were still more or less scraping by, and the ones whose homes and farms had gone up in smoke to make Sherman’s neck-ties were wiped out.  If slavery as such was that much the foundation of prosperity for any significant portion of the population, then you’d expect to see vastly more disruption just from abolition.

In point of fact at home I actually have a full-size, flyable (it’s of real bunting, with brass grommets) Stars and Bars.  Haven’t laid eyes on it since about 1991; it’s packed up in a box somewhere.  I have a print of a Civil War painting depicting fraternization between the lines (a genuinely common occurrence); back in the day I folded the flag carefully so a single star showed in the center, then draped it across the top of the picture frame.  So sue me.  So far as I know that flag has never actually flown or been displayed so as to be visible from outside the room where that picture was hanging.

Is it a symbol of hatred and oppression?  It sure is for some people, like that shit-bird in Charleston.  It sure is for American blacks (in contrast to that 57% figure cited above, something like 85%+ of blacks perceive it to be inherently a racist symbol), and understandably so.  I’m equally sure that for quite a number of people it symbolizes something else entirely.  That’s the thing about symbols:  The viewer reads into it what he chooses.  But mostly I’m sure that for millions of people the Stars and Bars is a whacking great pile of Get Over It Already.  Like me.  It is neither inherently racist nor inherently innocuous.

Should that flag be flown over public buildings?  I don’t think that’s appropriate, even if only for the fact that for so many of my fellow citizens it in fact does, and on legitimate basis, speak to them of racial hatred, oppression, and the entire sad story of what has happened through the years to the descendants of the Africans brought here in chains (although, irony alert! those descendants are pretty uniformly vastly better off in every material sense than the descendants of those Africans who captured their forebears and sold them into slavery).  As a government we are supposedly all for one and one for all; you shouldn’t knowingly and gratuitously offend 13% of your population.

On the other hand should all these private actors get all hyperventilated about rushing to expunge all traces of the flag?  Well, that’s their privilege, of course.  But it savors of more than just a tiny bit of moral posturing.  They were perfectly willing to deposit all those sales receipts for all those years, and somehow their black customers and their white customers always seemed to survive the trip up and down the aisles.  They’re perfectly willing to flog communist chic apparel (Che Guevara very intentionally had his office overlooking the execution yard so he would watch his victims being slaughtered day by day . . . his picture is very much still for sale on Amazon).  I’d be wiling to bet not a single World War II video game is going to be taken down at the Apple (or Google) store, just because there happens to be a swastika waving somewhere in the background.

I forget who it was who first pointed this out, or where I first ran across the observation, but it’s true, I think:  Much of political correctness is about permitting one group of white people to feel morally superior over other white people, and to parade that superiority as conspicuously as they can.

Seems to me that’s what’s going on here.

I’m not getting rid of my Confederate flag, and it can jolly well stay in that box in the attic.

Of Elephants

Back in the 19th Century, it was rare for anyone living out in what is now generally referred to as “flyover country” ever to have seen an exotic animal.  There were pretty much no zoos, and back then the notion of loading up the family and going on a “vacation” didn’t exist for any but the very, very wealthy, and they didn’t live in small-town America.  About the only time that your typical 1840s child had a shot at maybe seeing something so outlandish as an elephant was when the circus came to town.  Back then, the circus company, in addition to setting up the big top outside town, would parade through town, with its dangerous beasts in cages on wagons, and invariably The Elephant being the star attraction.  The kids — especially the farm kids — would come from miles around “to see the elephant.”

The experience of “seeing the elephant” and making a special effort to do so was so common that “to see the elephant” became a metaphor for any Life Experience long desired and finally attained.  In the Civil War, the initial experience of combat — remember that thousands of young men had enlisted in fear that they might miss out on the fun — was universally known as “seeing the elephant.”  There is a very famous letter from a soldier to his family back home (it’s quoted in Ken Burns’s film series, although I first ran across its mention in Bruce Catton, if memory serves), right after his first battle.  At some point in the letter he allows, “Well sister I have seen the elephant, and now I don’t want to be a soldier no more,” or words to that effect.

These past two weeks I have seen the elephant.

I post under the nom de blog of Countrylawer because that’s what I do for a living.  Been doing it for roughly 20 years, give or take a bit.  I don’t do criminal defense and I don’t do either plaintiffs’ tort or insurance defense litigation.  Which is why I’d lasted so long without ever trying a case to a jury.  Such courtroom work as I have done, up until now, has all been bench trials.  Commercial contract disputes, eminent domain, deficiency actions, land title and boundary lines, business entities, and so forth.  I got started on a jury trial a couple of years ago and then the judge made an absolutely imbecilic evidentiary ruling which resulted in a mistrial.

Way long time ago — January, 2006, to be precise — I filed a bad house case on behalf of a couple who’d built their dream house and within less than a year of completion the thing was coming apart on them.  Massive water intrusion into the basement, exterior walls out of plumb, the entire brick veneer bleeding white all over, the dining room ceiling repeatedly leaking despite the contractor’s repeated statements that he’d fixed the problem.  And then the foundation walls started sprouting cracks; some vertical, but some horizontal, and it’s the horizontal cracks that are the more serious.  What a horizontal crack is telling you is that your basement wall is bowing inward from lateral pressure on the outside of it.  As things later turned out, the basement walls (concrete blocks) had been built eight feet below grade, with zero reinforcement of any kind in them.  The brick veneer had been largely put on in weather that was getting down below 24 degrees at night, with no protection from the elements.  What was supposed to have been a 1″ air void behind the veneer was partially plugged in large areas by enormous cakes of excess mortar, some of them three feet tall and ten or more feet long.  The windows had been flashed so that water would run behind the house wrap vapor barrier, which itself had been installed in part reverse-lapped, so that it would channel water into the interior of the wood frame.  And the wall penetrations had no through-wall flashing or weepholes beneath them so that water intruding would find its way back to the surface.  The chimney, the first time they lit it off, bled oozing, sticky, black creosote all over its surface (interestingly the heaviest concentration of creosote matched, on a 1:1 basis, the areas of strongest white leaching on the brick’s surface before they began using their basement wood stove).  And so on and so forth.

I sued their builder, who hired a lawyer who has a reputation for taking very aggressive positions on his clients’ behalf, even when that’s not necessarily in his client’s best interests.  As happened now.  We did depositions, we did discovery, we had petrographic examination of brick and mortar sections of the veneer (had to fly to Chicago to take our petrographer’s deposition), and on and on and on.  The case took forever, in no small measure because it took roughly a year to get them to make discovery.  We finally got the thing set for trial in early June, 2013.  That was continued at the defense’s request to October, 2013, which was continued once more, again at the defense’s request, to February of this year, which was continued by the court sua sponte (perhaps uncharitably, I cannot dispose of the suspicion that the last continuance came about because the judge before whom it would be heard was new to the bench and had never practiced civil law a bit, having been an assistant district attorney for 25 years).

So we finally had our trial date beginning June 22.  It took eight mortal days of proof, and over a full day of jury deliberations, but we got our verdict yesterday evening.  Although they didn’t give us everything we asked for, it was still a plaintiffs’ verdict, and the jury specifically ruled in our favor on every single count of the complaint.

Now I can say I’ve seen the elephant.  Here are some things I hope I have learned.

1.     Do as much of the work up front as you can.  I had done my requests for jury instructions and special verdict form two years ago.  Everything was just so and all I had to do was print them out, make service copies, and ship them out before trial.  By like token I had combed and combed and combed through all the parties’ and witness depositions, cross-indexing, gathering specific quotations with page citations into themes, and so forth.  While it didn’t completely avoid some late nights during trial, there was only one night I dragged back into my house past midnight, and that was the last night before cross-examining the defense’s star witness, their consulting engineer.

2.    Include not just citations to authority in things like requests for jury instructions.  Put in the actual quotations of the relevant language so the judge can see for himself that you’re not just making it up.  Also generate a “clean” copy of the proposed instructions, without citations; save them in as many different document formats as you can, organize them in folders on a CD, and include that with your courtesy copies of your motions that you send to the judge.  Judges and their assistants aren’t any less susceptible to letting someone do their work than anyone else is, and the easier you make it for them to use your work, the more likely you are to own more of the process.  Inertia is a powerful mental force as well as physical.

3.     Eat well, but not copiously, during trial.  This trial was a good 40 minutes away from my home.  So each morning I would grab a 24-ounce cola and have that, with two bananas, on my way to court.  I kept a granola/power bar or two in my brief bag, so that if I weren’t in a position to take lunch I would have at least some fuel.  On those days I did have lunch, it was never more than a 6-inch Subway sandwich, so I never got bogged down in the afternoon.  I’m a big ol’ boy (the less euphemistically inclined would describe me as “fat,” I’m sure), and one of my large concerns was hypoglycemia during trial.

4.     This ties in with doing as much work up front as you can, but get good sleep in adequate amounts.  Remember your body is used to X hours of sleep per night, and if you suddenly ask it to continue for longer stretches on less than that, it will rebel.  I made sure to come home as early as I could, take a shower, grab a modest supper, and then read something that had nothing at all to do with law, lawyering, or especially this case for a half-hour or so.  I’d take a melatonin tablet (never tried them before, ever, by the way) around 8:45 p.m. and by an hour later be turning out the light.  I was able to sleep and get up aware and ready to hit the decks running at 5:30 a.m.  Mental activity uses enormous amounts of calories, and in addition to the adrenaline of a full day in front of the jury, your levels of concentration are going to be ferocious and sustained for much longer periods than you’re used to.

5.     If you can, get your family out of the house.  Spouses and children, especially young children, are going to have a very hard time wrapping their minds around the notion that You Need to Stay Away From Daddy/Mommy until this trial is over.  They’re going to be knocking about the house, making noise, impinging on your dwindling attention energies.  I know it sounds heartless as all get out, but playing with the kids, or playing with the kids’ mommy, is going to tax a limited reserve of psychic energy.  They’ll still be there when the jury has come back; you can catch up with them then.

6.     Get to court early each day.  You need to get set up, get yourself calmed down, and focus in on the work you’ve got ahead of you.  Get there early enough and you should have the courtroom to yourself.  If you should need to finish up your morning business in the bathroom, you’ll be able to do so without risking a jury member strolling in and wondering what just died and can’t you give it a decent burial.  Take a breath.  If you need to set up any demonstrations or suchlike, you can tinker with the physical arrangements.  And if your projector blows a lamp, or your laptop won’t read a disk, or whatnot, you may have time to come up with a work-around.

7.     Google every last single witness.  I mean that:  Search Facebook, Twitter, MySpace, anything.  This especially applies to experts.  In fact, I am convinced that it’s why I got that verdict.  The defense’s testifying engineer was an accomplished liar (he’d screwed over some friends of mine 18 years ago, back when he was, in addition to his regular engineering gig, running a foundation repair service).  And I mean he was good; in some ways I think he could give Bill Clinton a close run.  Perfectly dishonest, of course.  He was perfectly willing to take a photograph of mold growing so thickly on a block wall that it cast its own shadow when photographed with a flash, and testify that was calcium carbonate efflorescence (even though a swab sample of it showed it to be Aspergillus/penicillium).  He did no testing or sampling of anything (or even asked to) in the house over the 9+ years of the suit, and then felt perfectly comfortable sliming the competence, methods, and integrity of a petrographer who not only followed the ASTM book in analyzing the mortar work, but in fact to some degree participated in writing that book, so to speak.

Our petrographer’s résumé listed two and a half pages of publications in all manner of masonry industry publications, as well as papers presented at international industry conferences.  I wanted to see if this opposing engineer had any publications out there, so I looked around.  I didn’t find any, but I did find his blog.  And on his blog I found a blog post.  And that blog post dealt in great depth with an issue that formed a central pillar of his testimony:  To what extent is it appropriate to use residential building code standards to evaluate the workmanship and quality of a house in a county in which no building codes have formally been adopted by whatever government authority would do so?  As you might surmise, on the witness stand he pooh-poohed the notion that the building codes were helpful.  “Out here where there aren’t any codes,” you see, you have to look into what are the “community standards.”  In other words, if every builder in the county builds a lousy building, then it’s perfectly acceptable that you got a lousy building, too.  And on his blog he in great detail and in unambiguous words (that last in marked contrast to his rambling, Cliff Claiborne-like trial testimony) gave exactly the opposite opinion.  As in 180 degrees out.  As in no way to reconcile the same.

Thus, at the bottom of my cross-examination of him, having previously got him to nail his flag to the mast of codes don’t apply here, I popped a print-out of his blog in front of him and then proceeded to read, one juicy snippet at a time, his opinion when he wasn’t being paid for it.

When the jury’s special verdict form came back, it was obvious that they hadn’t accepted any part of his testimony.

8.     Don’t play gorilla.  You’re not a gorilla, and anyone acting like a gorilla who is not, in fact, actually a gorilla only looks silly.  Chest-thumping isn’t likely to work on anyone who’s been doing this for more than six months, and all you’re going to do is convince the other guy that you in fact have that little class.  My learned opposing counsel kept making these just incredibly tacky remarks to me over the course of the trial.  On the first day, at the lunch break, he excused himself with the observation that “we’ve got trials to win.”  Well, dontcha now, buddy?  He kept busting on the minivan I drove to court.  It’s filthy, because for years now it’s sat under an oak tree in my driveway.  Well, what of it?  For starts, those jury members (this was a small overwhelmingly rural county) got to see me loading and unloading myself and my stuff from what was obviously a beat-up old vehicle.  At any rate, Dear Opposing Counsel kept making snide observations about the condition of my van, and at one point he said, “After I’ve won this trial, I’m going to come out to your office and wash your van.”  Knock yourself out.  He borrowed a laser pointer from his engineer, to use while he was taking his engineer through the pictures he took, and during breaks he’d keep shining it at my face.  Never in my eyes, but on my moustache (I do enjoy my soup-strainer), hair, etc.  He even called my attention to it and asked if I didn’t think it just hilarious.  I only observed that me must have been just an absolute prince on Halloween, back in the day.  As I said:  Tacky.  And now he gets to eat his words.

9.     Do not have your gas-bag of an expert witness explain each and every last one of 250-plus photographs to the jury, especially if many of them either don’t show anything that’s directly relevant to the claimed subject matter of the lawsuit, or show the same penny-ante detail from three separate perspectives and with as many different shutter speeds or contrast settings.  This Cliff Claiborne of an engineer just about put me to sleep, and I can only imagine what he did to the jury members, every one of whom could see that was a fucking water stain on a concrete block.  It took hours.

10.     Be very careful how you call a man a liar.  In my closing argument I explained to the jury that they had to decide whether to believe my clients’ engineer, who had not been hired to help in a lawsuit, who had not been hired to come up with any corrective action plan (they had a different engineer do that), but rather had been hired months before anyone lawyered up and only to help two distraught people figure out what was wrong with their house, or alternatively the defendants’ engineer.  Then I observed that if they were going to believe this other fellow, they needed to decide whether they believed the opinion he had when he was undeniably speaking just for himself and wasn’t getting paid for it, or alternatively the one he’d just offered to them on the defendants’ behalf.  And I left it at that.  I also had, after much consideration, decided not to bring out on cross-examination that the defendants’ lawyer was also this engineer’s personal business lawyer.  Two lawyers getting in a pissing contest and descending to personalities is the sort of thing that can put a stranger off, and prompt in him thoughts of a pox on both your houses.  In contrast, during Learned Opposing Counsel’s closing, he alleged that, in presenting the defendants with a detailed, written repair agreement (it even attached the most recent engineering report they’d received the week before) to be signed before they’d let the defendants back on their property to take yet another shot at getting the work right, that I — I, the lawyer — had “attempted to imposed [my] will” on these poor defendants.  Huh?  I just have a real hard time imagining that he scored many points with that theory.  I could be wrong, of course, but I doubt it.  And remember a jury member whom you’ve offended by your conduct is going to do your client’s case a great deal more harm than one who hasn’t formed a personal opinion of you one way or the other can do you good.

11.     Practice with your clients, especially if they’ve never been personally involved in courtroom proceedings.  Then practice some more.  Then some more.  If you have multiple clients (like a married couple), work them through actual outlines of their testimony, both yourself with them and them with each other.  Their answers can’t meander.  They can’t come across as either hesitant or as too-well rehearsed.  They can’t answer you in a questioning tone of voice, as if they were looking to you, the lawyer, for confirmation they’re correct.  They need to practice phrasing answers to include punchy, easily-comprehended visible images.  One of my clients, when I asked why they hadn’t gone behind this builder to check up on every last thing he told them, responded that that’s why they’d hired a licensed contractor; when their car breaks they go to a mechanic; when the husband had a hernia that needed fixing, they went to a doctor.  Avoid trying to script things, however.  It won’t work.  You’ll get a feel that a particular line just isn’t playing well, or something else will come up to knock your flow a little out of channel.  It’s a guide, not a script.  This is not for you and your client to memorize (it’s impossible to memorize proposed testimony anyway), but rather so that your client will feel comfortable with, because thoroughly familiar with, the substance and general phrasing of everything you’re going to ask.

12.     Ask as many of the other guy’s questions for him.  If your client has said something stoopid in his deposition, drag it out.  He might look poorly, but I guarantee he’ll do better at damage control if he’s taken through it by a friendly questioner.  Especially ask the other guy’s rhetorical questions for him.  My clients noticed their house’s moisture and mold problems gradually getting worse over the first summer they lived in the place.  They’d decided to get their contractor back out there in early September, and then a hurricane blew through, causing their dining room ceiling to leak a stream of water for the fourth time (the first three times had been during construction).  They got the contractor out there afterward and he looked at the saturated top-to-bottom basement block walls (including the two-plus courses of block above grade level), and allowed he couldn’t understand where the water was coming from.

So my folks got another contractor out for a second opinion.  That guy recommended a home inspector, who looked around, found indication of multiple other serious problems, and he recommended an engineer, who came, saw, and noted several major issues in a formal report.  My folks got that in early October and, in shell shock, they spent the next five or so weeks gob-smacked.  Then in mid-November they lit fires in their wood stove and the creosote came blooming out.  Beginning the first week of December their rear basement wall grew cracks so fast they were visibly longer from one day to the next.  So they got their engineer back out (he couldn’t make it until after the new year).  But between that early-September visit from the contractor and the second week of January, my people didn’t call the contractor.  The contractor alleged as a defense the failure to provide notice and an opportunity to cure.  And so repeatedly I worked my way back around, with my witnesses on direct, to the question of, “Well, why ever did you not call?”  By the time Learned Opposing Counsel got to cross, they jury would have been thinking This is Old News and They’ve Already Explained It Four Times; Now Move Along.

13.     If you know your clients’ case better than your clients, you’re both in trouble.  They’ve got to be able to articulate, in their own words, in coherent form, what happened, when, in what order, by or through whom, and What It All Means.  If they can’t do that, in painful detail, then they’re not going to be able to convince a jury to make some stranger (at least from the jury’s perspective they’re strangers) cough up money to your client.  Just not going to happen.  I once years ago tried a bench trial on an option to purchase commercial real estate.  The case had been pending for not quite four years when it went to trial.  My client spent seven hours on the witness stand that day, and under cross-examination she was nearly completely unable to explain to the court what she wanted by way of relief and why she thought she was entitled to it.  We won the case, but the judge ruled in a manner that cost my clients about an extra $250,000.  If your client obviously doesn’t know his own damned case, don’t expect your jury to spend much effort trying to understand it either.

14.     Don’t ask your witnesses to be any more positive than they genuinely are comfortable being.  If they’re basically honest, that stretching of their narrative will stick out like spines and the jury will conclude they’re lying.  If they’re basically dishonest (and you know, sometimes the only witness you have to something is one of your county’s notorious crooks; it just works out that way and if that’s the only way you’ve got to get your facts into evidence then you’re going to have to figure it out), you’re shooting dice that nothing will happen like happened to that engineer.  All through my case in chief Learned Opposing Counsel was cock of the walk, strutting about and playing Dutch Uncle to my poor little dirty-assed-van redneck self.  He acted like he had a massive bombshell in reserve, just waiting to chamber it up and send it down-range onto our target coordinates.  After I blew up his star witness in front of God and everybody that sonofabitch “sulled up” as we say around here and spoke scarcely eight words to me until late yesterday afternoon.  All that having been said, if your witness has a fact to recite, or an opinion to form, for God’s sake don’t pussy-foot around about it.  That comes across as dishonest as well.  Purge “I might have,” and “I think,” or “it could be that” or “it might have been” or “As I remember it” from the vocabulary.  This did happen.  So-and-such did not happen.  I saw whatever-it-was.  Don’t have your expert say, “My opinion is such-and-stuff”; you ask him if he has an opinion and let him state his opinion in the form of a fact:  “There was nothing wrong with this house that a little time wouldn’t have cured without spending a bunch of money.”  “There were no termites present on whatever-date-it-was.”

15.     Never, ever, ever, ever put on proof, unless the substance of the claims or defenses makes it absolutely unavoidable, of what your client is paying you or has paid you, especially if you’re a big-city lawyer appearing in front of a jury full of people at least half of whom either live from government hand-outs themselves, or have relatives or friends who do.  Our total claim for compensatory relief was for not quite $90,000; ol’ Learned Opposing Counsel had one of his clients testify that, exclusive of the trial, they’d already paid over $96,000 in attorney’s fees.  That didn’t even get to the engineer’s fees (and they’d paid him to be present for the trial from Day 1).  Think about it:  How likely is it that Average Jury Member is not going to ask himself the deadly rhetorical question, “Wouldn’t it just have been simpler for you to have built the house right in the first place?”

And so I saw the elephant over the past two weeks.  We have post-trial motions and then I am assuming Learned Opposing Counsel is going to file an appeal, which for several tactical reasons I’m all for, since it is likely to make my clients’ ultimate collection much more certain.  I cannot say I have enjoyed it, except to the extent that winning (assuming nothing blows up between here and the final order) beats losing all to hell and gone.  It was an 8-day adrenaline rush and I’m still coming down off it.  But at least the magic spell is broken.

I can do this.

If You Call a Calf’s Tail a Leg

How many legs would a calf have?  This was a rhetorical question put to his cabinet by Abraham Lincoln during a discussion that seemed to be running in circles.  They all answered, “Five,” at which point Lincoln corrected them.  Calling a tail a leg doesn’t make it a leg.

Nor can you credibly claim that fossil fuels are being “subsidized” by re-defining “subsidy” into meaninglessness, as a several authors affiliated with the International Monetary Fund seems to have done.  According to those sages, world-wide energy costs — by which they overwhelmingly mean fossil fuel energy costs — are being “subsidized” to the tune of $5.3 trillion annually.  The Frankfurter Allgemeine Zeitung has the articleHere’s the blog post.  The blog post relies heavily on an IMF working paper, “How Large are Global Energy Subsidies?,” available in .pdf here. The reader doesn’t get past the headline without tripping across the writers’ leftist bias splashed across the screen:  “Act Local, Solve Global: The $5.3 Trillion Energy Subsidy Problem”.  Isn’t $5.3 trillion a rather large number?  How did they get there?  Did they add up governmental hand-outs, direct or indirect, to energy producers or consumers?  Well no, no they didn’t.  What they did was define a calf’s tail so that now it’s a leg:

“We define energy subsidies as the difference between what consumers pay for energy and its ‘true costs,’ plus a country’s normal value added or sales  tax rate. These ‘true costs’ of energy consumption include its supply costs and the damage that energy consumption inflicts on people and the environment. These damages, in turn, come from carbon emissions and hence global warming; the health effects of air pollution; and the effects on traffic congestion, traffic accidents, and road damage. Most of these externalities are borne by local populations, with the global warming component of energy subsidies  only a fourth of the total.”

“Externalities.”  “True costs.”  And of course, “global warming.” The latter of which hasn’t been occurring for the past 15-plus years, and the extent to which it is anthropogenic is the subject of massive debate, despite what the acolytes of The Economist, The New York Times, The Washington Post, the television talking heads, and the rest of the left-extremist media repeatedly assure us is “consensus” scientific opinion.  Even on the assumption that, long-term, the earth overall is in fact warming up, as of right now there is little robust (in other words, non-manipulated) data to indicate that human activity is the dominant cause of it.  Looked at slightly differently, for the past 15 years, during which time everyone now agrees there has been a “hiatus” in warming, the amount of carbon dioxide in the atmosphere has been steadily climbing.  By every one of the climate alarmists’ models the world should be cooking.  But it’s not.  Why not?  Well, there are a bunch of theories out there, all of which — hardly surprisingly — rely on naturally-occurring phenomena to explain “where the heat is being hidden.”  But what does that tell us?  What it tells us is that naturally-occurring phenomena can very easily overwhelm the anthropogenic component of warming trends, and that assumes that the computer models which are the source of our estimates of the magnitude of that component are accurate in the first place.  Which may or may not be the case.

These IMF writers are perfectly comfortable not only assuming that the world is warming and will continue to warm, but that it’s human carbon emissions that are the cause of it.  And then they pull a number out of thin air to slap a price tag on it, and call it an “externality” which must be accounted for in calculating the “true” cost of energy.

The health effects of air pollution are a genuine external cost of the use of fossil fuels.  And it’s not hard to put some pretty robust numbers on that cost.  Most countries keep pretty good track of mortality and morbidity, and the range of illnesses and diseases reliably connected to ambient air pollution is pretty well-settled.  So when they authors write, “In China alone, the World Health Organization estimates there are over one million premature deaths per year due to outdoor air pollution, caused by the burning of polluting fuels, particularly coal, and other sources,” that’s a number I can take at close to face value (ignoring the extent to which international NGOs have joyfully prostituted themselves to various left-extremist causes).

That million-premature-deaths-per-year data point really doesn’t take full account to the full consequences of China’s fuel consumption, does it?  Let’s look back a few decades to see what life in Red China was like before its economy took off.  China was a land of — in many provinces still is — dirt-poor peasants, without clean drinking water, transportation to keep the villages fed, reliable modern or semi-modern healthcare, or most of the other advantages of modern economies.  They died like flies.  What has happened to overall life expectancy in China as a result of its economic modernization?  Here are the charts: overall life expectancy went from 68.31 years in 1985 to 73.27 years in 2010.  These IMF folks are counting only one side of the equation.  If I increase life expectancy across several hundred million people by five years through generalized, wide-spread economic development — a development which would be utterly impossible without cheap, for which read “fossil” energy — but out of those hundreds of millions, 1 million annually die prematurely, then I’m not only still to the good, I’m massively to the good.  In India, one of the other major “sinners” in fossil fuel consumption, the increase is even more stark.  We see life expectancy going from 62.5 to 67.14 years between 2000 and 2012, five years’ increase over just twelve years.

By the way, despite the obviously Marxist leanings of these IMF wonks, general economic development and prosperity inures to everyone’s advantage.  Everyone’s.  If air pollution is an external cost, then general economic advancement is an external benefit, and it’s asinine — and dishonest — to include the one without accounting for the other.

“The effects on traffic congestion, traffic accidents, and road damage”:  These are likewise “external costs” that amount to “subsidies” of energy.    I’d love to see someone demonstrate that “too-cheap” energy prices result in traffic congestion and accidents.  What produces traffic congestion and road accidents are too many people trying to fit their vehicles onto a given surface of road at the same time.  And what produces that is geographically concentrated economic opportunity that grows faster than government’s ability to respond to it.  Unemployed people don’t drive to work, to put it bluntly.  Businesses that go out of business don’t run their trucks.  So if we just tamped down productive economic activity our roads would be safer and less congested.  Which appears to be the objective of these authors.

The kind of economic advancement which produces crowded (and dangerous) traffic condition arises from, and only from, relatively inexpensive transportation, and that requires relatively inexpensive energy.  By “relatively,” I mean, incidentally, relative to other mechanized and non-mechanized forms of transportation.  When you had to own and maintain a horse and wagon in order to “drive” anywhere, that was both highly inefficient and very restrictive.  As Paul Johnson describes travel in pre-railroad England in The Birth of the Modern, the vast majority of people walked wherever they went, because they couldn’t afford to ride, not because they wanted to stop and smell the flowers.  That’s still true elsewhere in the world.  Despite all the picturesque photographs in The National Geographic of swarms of passengers so covering rail cars that you can’t see the rail car beneath them, most people in the less developed world walk, and not from choice.

Non-mechanized travel is slow, it’s inefficient (how many horse-drawn wagons would it take to deliver the lumber and brick to build a single house? how many guys driving flat-bed trucks?), and it is, relative to fossil-fueled mechanized travel, horribly, horribly expensive.  Among forms of mechanized transportation, railroads are phenomenally inefficient in any sense of how much energy it takes to move X people or weight of objects Y distance, from any given Point A to Point B.  Those who extol the virtues of rail conveniently pay attention to the first component X over Y, forgetting that niggling little issue of where it’s being transported from and to: which Point A to which Point B.  There is not money enough in all the world to build and run railroads to everywhere that needs cheap transportation.  If I’m 30 miles from the nearest railroad point of embarkation (and many, many places, even in the Easter U.S., are), then it doesn’t really do me much good to ponder how much weight a train can pull per unit of energy, does it?

Once more, the “too-cheap energy” hand-wringers need to answer the question of precisely how they account for the overall benefit, in length and quality of life, provided by modern capitalistic economies operating through the inter-connectedness of inter-continental markets for everyday goods (and even services, although to a lesser extent).  These authors’ outlook assumes a pre-lapsarian paradise where an increasing population somehow has jobs that somehow enable its individuals to pay the bills and somehow live long, relatively-healthy lives, without a relatively inexpensive way to move people and goods, to heat, cool, and light houses and businesses, and to operate the machines which make the physical objects that make it all possible.

How do our authors propose to impose on consumers the “true cost” of energy?  Why, through taxation, of course.

“The fiscal gains from subsidy reform are sizeable and could be a game changer for fiscal policy in many countries.  This would give room, for example, for governments to reduce some types of taxes (such as those imposed on labor) that weigh down growth;  raise growth-enhancing public expenditure (e.g. for infrastructure, health  and education); and finance targeted cash transfers for the poor.  Furthermore, there would be appropriate incentives for investment in green technology because dirty energy would no longer be artificially cheap.”

In the working paper linked above you get a better idea of just how purely theoretical all these wonderful “savings” actually are.  Reducing a tax on labor sounds nice, but it really doesn’t answer the question where you are going to replace the money from all the income tax revenue lost from jobs destroyed or more importantly jobs never created.  Moreover, if you just read the above paragraph you’ll notice a curious contradiction:  Increasing energy costs will reduce energy consumption, and we’re going to use all that money flowing in to . . . build and repair more roads and bridges for all the cars and trucks that aren’t being driven any more.  It also assumes an infinitely linear relationship between economic growth and government expenditure on “education” (no such relationship has ever been shown above a certain level; if that were the case the United States would be a nation of Einsteins) or “health” (ditto).  And finally we get to the nub:  more money to hand out to our pet constituencies and “green energy” cronies.

On a more practical level, when has there even been a sustained pattern of government taking one tax revenue source and using it to reduce another?  That is a supposition that defies uniform experience of government since the days of the pharaohs.  For that matter, it seems to me that if most of the externalities of energy consumption are experienced locally, then paying a whacking great chunk of money to a centralized bureaucracy to siphon 40-80% of it off the top in “administration” costs and then dole the balance out to its favored constituents is precisely the wrong way to match externalities with those who must experience them in the actual lives.  I’ll give you a hint:  There aren’t a whole lot of “green energy” mooches in Atlanta, and yet there’s a boat-load of externalities to experience there (as anyone who’s tried to drive further than three blocks around there can tell you).  So the solution is to impose a tax on all those who live and work in Atlanta, so some firm in Silicon Valley can be handed $535 million in taxpayers’ money to get behind the major-political-donors’ equity position when the firm, which was already irretrievably broke when the money was paid, files its bankruptcy petition?  Color me uninterested.

Finally, other than using less energy, what do the authors’ suggested uses of this tax revenue actually do to reduce the externalities of energy consumption?  China could burn 17% less coal and it would still have lousy air quality in its large cities.  New Yorkers could burn 17% less automotive fuels and mid-town would still be a parking lot for most of the day.  Where the change would occur would be at the margin and in truth would largely occur in the form of lack of economic activity.  In any single year that might not be a terribly large number, but once you slice 0.5% off your annual rate of growth over several decades because energy is now so damned expensive, and suddenly the difference in overall societal condition is the difference between the American Midwest and rural India.

Also noteworthy is the authors’ pointing out that the “externalities” of “too-cheap” energy are very predominantly local.  Even assuming all the climate alarmist chatter to be true in every detail [It’s not; all these models and projections trace themselves to data held by the University of East Anglia, data so thoroughly corrupted by manipulation that the man they hired to recreate their original measurements gave up after about three years of trying; the source data has been so monkeyed with that it is unusable for any other than propaganda purposes . . . which coincidentally is what it’s being used for; useful entry points to understand what’s been going on here, here, and especially here.], something like half the total is accounted for by local air pollution.  Local.  All of which is to say that there are enormous swathes of every country on the face of the earth where the air simply isn’t all that bad.  Yet the taxes proposed will hit everyone in the country.  Seems like what they’re proposing is to shift the externalities from one subset of people (residents of dense urban pockets) to another subset (everyone else).  I’d also note that non-residents of dense urban areas tend to use — at least in their personal existence — more energy for things like transportation than their urban cousins.  Ditto businesses.  If you live or work out in the sticks, you’ve got further to move yourself and your stuff than if your customer base all lives within 25 miles of you or your business.

In fairness to the authors of the linked paper, they do come right out and admit that their conclusions rely on enormous assumptions that may or may not be true, especially on the benefit end of things.  This is significant, because we do know a great deal about the cost of suppressing growth.  Take a look at the life expectancies as of 1960 in — China: 43.47 years; India:  41.38 years; Brazil: 54.69 years.  Those truncated lives are the “externality” of allowing a bunch of coastal elites to feel good about themselves by taxing the rest of us into oblivion so they can have more of our money to play with.

I humbly suggest that willfully knocking the creation and aggregation of wealth back to an era when we didn’t have a million Chinese dying “prematurely” each year, but rather hundreds of millions of Chinese with over 20 years’ less life expectancy at birth, all based on pie-in-the-sky assumptions about all this magical government revenue that will roll in from a shrunken economy, is a suggestion that does not deserve to be taken seriously.

And those assumptions sure as hell are no basis to claim that energy is being sold at $5.3 trillion below its “true cost” annually.

California Goes to India

And from the Dept. of You Can’t Make This Up, we have a report from The Times of India of a judgment rendered by a court in Delhi, identified as the Delhi High Court.

Some Indian analogue to PETA had freed a bunch of birds from the cages in which a bird merchant was keeping them.  Legal proceedings ensued (the report doesn’t make very clear whether civil or criminal, and by whom initiated and against whom).  A trial court had directed that at least some of the birds be released  back to the merchant from whom “liberated,” and the animal rights folks had sought an injunction barring that release.  [I’m curious how the birds, who had after all been freed from their cages, were re-captured so as to be released back to the merchant in the first place.  I mean, if I’m a bird kept locked up and someone comes along and pops open the door to my cage, my country ass it outta there.  You couldn’t, as an old judge friend of mine says, find me with a search warrant.]

The animal rights group appealed that portion of the trial court’s action, and the appellate court bit down on their argument in toto, in language that seems alarmingly over-broad for a society which has some difficulty feeding itself.   Justice Manmohan Singh allowed:  “I am clear in mind that all the birds have fundamental rights to fly in the sky and all human beings have no right to keep them in small cages for the purposes of their business or otherwise.”  Really?  “All birds” have a “fundamental right” to fly “in the sky” and humans have “no right” to keep them for any “purpose” (how else can you read the “otherwise” in that sentence?).  “This court is of the view that running the trade of birds is in violation of the rights of the birds. They deserve sympathy. Nobody is caring as to whether they have been inflicted cruelty or not despite a settled law that birds have a fundamental right to fly and cannot be caged and will have to be set free in the sky.”

The breadth of that statement would sweep in chickens, geese, ducks, or any other bird raised for food or for their eggs.  According to Justice Singh, even keeping your chickens in a hen-house with an outdoor run enclosed by fencing would violate the birds’ “fundamental right” to fly “in the sky.”  The full opinion isn’t quoted in the article, but if the decision had turned on a law proscribing the birds’ being in the possession of the merchant — such as American federal law which criminalizes such private possession or trade (and I actually had a client once who’d recently been enlarged from Club Fed for precisely that offense) — you’d think the court would have mentioned it and the article likewise.  But there’s none of that, but rather only the categorical announcement of a “settled law” establishing a “fundamental right” to fly in the unrestricted “sky.”  The specific source for the right is not cited in the article, so I wonder whether it’s in India’s constitution or some statute somewhere, although the judge’s invocation of a “settled law” is a pretty strong clue that he’s just making it up as he goes along, the South Asian variant of black robe fever being presumably indistinguishable from its American strain.

Wow.  I mean, just wow.  Eating beef is severely constrained in India by reason of religious scruple.  Pork is considered by a sizable proportion of the population to be unclean, likewise on religious grounds.  And now an appellate court has decided that the only practicable way to keep domestic birds for eggs or food is as a proposition of “fundamental right” impermissible?  I guess the population living near the ocean or near rivers can fish, if the water’s not too polluted.  But what are the rest of India’s one billion-plus population to do for animal protein in their diet?

I guess it shouldn’t surprise us that Indian judges are just as susceptible to silliness as our own.