Wild And Whirling Words

The Awful Grace of God

noreply@blogger.com (Michael Smith) — Tue, 22 Jan 2019 04:25:00 +0000

On this Martin Luther King Day, I reread King's letter from a Birmingham jail, watched his "Dream" speech, and the prescient speech he gave the night before he was assassinated. I also read up on Robert Kennedy's immediate remarks on the death of Dr. King. The speech is remarkable in so many ways.

Before leaving a campaign event at Ball State to fly to a rally in Indianapolis Kennedy was informed that Dr. King had been shot. When they landed in Indianapolis, Kennedy and his campaign were informed that Dr. King had died. The campaign was headed to a rally at 17th and Broadway, a place that has been described as the heart of the African-American ghetto in Indianapolis. The chief of police told Kennedy that the police could not provide security to the senator if the crowd rioted. Kennedy, after speaking to reporters at the Indianapolis airport, cancelled a visit to his campaign headquarters and headed toward the rally.

His press secretary and speech writer gave him some notes, but he waived them off and relied on some notes he made on the way over to the rally. Basically, his four-minute-something speech was made off the cuff. And it is one of the most memorable political speeches in United States history. Given on a podium on a flat-bed truck, here it is:

Over 100 U.S. cities erupted in riots that night. Indianapolis was not one of them.

The speech is moving to me because it is so smart, so correct, so emotional. Aides of Kennedy had never heard him speak of the death of his brother until that night.

The speech is also moving to me and an anguishing reminder because I think of what could have been if not for Kennedy's assassination just two months later.

GOP: We're the Rule of Law Party 🤣

noreply@blogger.com (Michael Smith) — Sun, 18 Nov 2018 19:18:00 +0000

The Chair of the Republican National Committee just said on Fox News yesterday that "We [the GOP] are a rule-of-law party." I 💩 you not. Let's go to the tape, shall we?

We can go back to 2000 where the Republicans on the Supreme Court in Bush v. Gore made up a rule of Constitutional law that the Court said could never be used as precedent in any other case and that gave the election to Bush. If you don't believe me, look it up.

We can look at the Iraq War where the Bush Administration lied early and often about the need for the war: weapons of mass destruction. The Vice President lied and said Iraq already had a nuclear capability. To date the war has claimed 4,424 dead and nearly 32,000 wounded US personnel and well over 150,000 Iraqis. Oh, and they outed a covert CIA agent because her husband exposed their lies.

We can go back to Iran-Contra where the President of the United States sold guns to Iran to obtain funds to Nicaragua to fight against the Contras which was expressly prohibited by law. When faced with the facts that he knew and approved of the plan, the President lied and said he didn't remember it that way.

But let's just look at the criminal charges per administration since 1970:

TRUMP (R): +100
OBAMA (D): 0
GWB (R): 16
CLINTON (D): 2
GHWB (R): 1
REAGAN (R): 26
CARTER (D): 1
FORD (R): 1
NIXON (R): 76

R: 220
D: 3

Sure.

Scary Times

noreply@blogger.com (Michael Smith) — Sat, 17 Nov 2018 14:32:00 +0000

With the Democrats taking the House of Representatives the Democrats are in the position to investigate the scandal that is the Trump Administration. A majority in the House gives the Democrats not only the gavel but also the subpoena. And this latter power may lead us to a Constitutional crisis much sooner than anything the Special Counsel's office produces.

I wrote earlier about the Supreme Court's inability to actually enforce its judgments; that it must rely on the persuasiveness of its arguments and its moral authority. Congress has more power to enforce its policies and decisions. First, it can create and pass legislation that direct actions of the Executive Branch.¹ For example, the Congress can reverse decision making in the EPA or any other department. Second, it can eliminate programs or create programs using the power of the purse. Perhaps Congress doesn't like the policy of separating families at the border. Congress can eliminate ICE by just eliminating funding for it; or it could just recreate ICE with severe limits on its authority. Third, it can, as part of its oversight function, request documents, email, and testimony from the Executive Branch. This is where the crisis could occur.

Usually, the House merely needs to request information from the Executive Branch and it complies. Usually, the House only needs to request a departmental official to testify or provide documentation and the departmental official complies. Many times there are squabbles about what the House needs to perform legitimate oversight. Usually, the House and the Administration resolve their differences. Rarely, however, the Administration refuses. The House can then use its power of subpoena to obtain the information. What happens if the Administration refuses the subpoena? A potential Constitutional crisis.

If anyone refuses a subpoena, the House can instruct the House Sergeant-At-Arms to arrest the individual and bring him or her to the well of the House and try them for contempt. While this power exists, it hasn't been used in well over 100 years because of the time and expense involved in the process. This power, called inherent contempt, basically shuts down all other business of the House while it tries the person that defied the subpoena. The House doesn't use that power any more.

Today what the House does is to refer the matter to the Department of Justice to bring a criminal contempt charge against the person. Here's where the crisis may occur. What happens if the DOJ refuses to bring charges against the defiant Administration official? That would render the House's constitutionally mandated oversight function moot; it would neuter the House Democrats.

Based on where we are today, I don't think that scenario is far fetched. The Trump administration has no regard for the rule of law. It has installed a political hack as the head of the DOJ and it's clear that Whittaker is Trump's lackey. What happens then? No one knows. But if the House sues to compel the DOJ to do its duty, the matter is likely to end at the Supreme Court and I think we know which way the Court would go on this one.

Scary times, folks. Scary times.

1. I am simplifying this a bit. The House cannot unilaterally pass laws, of course. It must obtain the agreement of the Senate and the President or have the votes to override the President's veto in both chambers. But this is a legitmate check on the President's powers.^↵

What Do We Do Now

noreply@blogger.com (Michael Smith) — Wed, 07 Nov 2018 19:14:00 +0000

In the underrated movie, The Candidate, Robert Redford's character is an idealistic lawyer who despises politicians, like his father, a former governor of California. When he decides to run for the Senate, he tells himself that he's only doing so to raise awareness of issues like the environment and civil rights. But as he gets more and more involved, he has to make compromises and deals like the politicians he despises. Against all odds, he wins and at the end of the movie he asks his campaign chair, "What do we do now?"

Democrats all over the country are asking that same question because they took back the House yesterday. I have a few thoughts.

Many will say, "Impeach!" I disagree. First, I don't think we have evidence, yet, of impeachable offenses. That may change with Mueller's investigation and from the House's own certain-to-come investigations. Second, I'm not sure there are the votes in the House to impeach and certainly not enough votes in the Senate to convict. When Nixon was about to be impeached, it was only when the tapes got out that absolutely sealed his fate and only then were there enough votes in the House to impeach. Third, that is a huge waste of political capital on something that, right now, has no chance of success. Right now it is a fool's errand.

There are far more fruitful things to do. We can start with the Voting Rights Act. In Shelby County v. Holder,¹ the Supreme Court found that the formula used for preclearance requirements was unconstitutional. That meant that certain jurisdictions did not have to submit to the Department of Justice changes to their voting practices prior to them being implemented. After this decision, jurisdictions such as Texas and North Carolina quickly disenfranchised minorities through gerrymandering and other practices. Congress can fix this situation by doing new fact finding and determining a new formula for use for preclearance requirements.

More than that Congress can do more to protect our electoral infrastructure. Congress can appropriate more funds for more polling places and mandate that waiting times be no more than 15 minutes. Congress can make Election Day a national holiday for that folks can more easily vote. I wrote about these reforms and others here. All of these would make our elections easier and more secure.

Congress can stop and reverse the sabotage by this administration of Obamacare. Nearly all Democrats ran on protecting and enhancing Obamacare. They should keep their promise. Then they should go beyond that and look at government-funded health care. Even if that would never get past the Senate or get signed by the President, it would be an awesome issue for 2020.

Congress can address our crumbling infrastructure of roads and bridges. This is a well past-due need. The problem with funding this is that members of Congress like to point to the new road or bridge that they bring to a community. No member ever has bragged about fixing a road or bridge. We can do it now.

We can return to regular order. A long time ago, boys and girls, like when the Democrats last held power, Congress would hold hearings on the budget. They would ask Cabinet members, stakeholders, and experts on their views on what is needed or desired and create budgets and appropriations that fit those needs and desires. They didn't get together in secret and then show up with a budget. The benefit of this is that the ruling party can get buy-in from the other party. This makes the budget easier to pass in the Senate because elements of their party are already in favor of it.

Congress can repeal the tax cuts recently passed to lower the deficit. This is important because right now we are running trillion dollar deficits. Now, deficits are not inherently good or bad, but they do change their quality depending on the state of the economy. Deficits during a recession are good because they pump money into the economy. Deficits during an expansion are bad for two reasons: first, they can overheat the economy and cause high inflation; and second, when the next contraction comes, the government has no ability to deficit-spend to boost the economy.

Congress can address climate change and reverse the administrative actions that are hurting our environment. Again, it is unknown whether measures like this will be passed. But it is certain that these issues will be around for 2020.

Those are all positive measures that the next Congress could enact. These are measures that members can point to and say that they are working to improve their constituents' lives. They are not just negative to hurt the administration.

However, there are critical investigations that they should pursue. The House Intelligence Committee can undertake a real investigation into the 2016 election. Congress could prevent or otherwise curtail the separations of families.² Congress could reverse the deplorable decisions made by the Departments of Education and Interior, and the EPA and the CFPB.

And, of course, Congress can get Trump's tax returns.

It's time to get to work.

1. 133 U.S. 2613 (2013).^↵
2. Something that many don't understand about the "caravan" is that for someone to apply for asylum in the United States, they have to be in the United States. See this.^↵

They. Were. Traitors.

noreply@blogger.com (Michael Smith) — Wed, 07 Nov 2018 15:13:00 +0000

You may have heard that Trump praised Robert E. Lee a few weeks ago in Ohio. That's strange on so many levels. Lee's army killed thousands of Ohioans. Why would you praise a killer of thousands of sons of Ohio? Because you know who likes Confederate generals? Racists; also known as Trump's base.

We really need to put a few things to rest. First, Lee was not that great of a general. Tactically, he was good, for the most part, until Gettysburg where he destroyed the Confederacy's chances. Strategically, however, he was exactly wrong. Faced with an enemy that was much larger, better financed, and with vastly more war-making resources, Lee should have followed the Washington model. He should have picked his battles, fighting only when necessary and when absolutely winnable. He should have focused on keeping an army in the field until the Confederacy was recognized as a nation (which it nearly was) and the enemy wearied of the fight (which it nearly was). The burden was on the North to conquer the South. The South would "win" the war with a stalemate. Instead, Lee adopted the Napoleon model: attack, attack, attack. Notably, both generals, Lee and Napoleon, lost.

Second, Lee was a brutal slave owner and supporter of slavery. Adam Serwer writes in The Atlantic:

Lee’s cruelty as a slave master was not confined to physical punishment. In Reading the Man, the historian Elizabeth Brown Pryor’s portrait of Lee through his writings, Pryor writes that “Lee ruptured the Washington and Custis tradition of respecting slave families,” by hiring them off to other plantations, and that “by 1860 he had broken up every family but one on the estate, some of whom had been together since Mount Vernon days.” The separation of slave families was one of the most unfathomably devastating aspects of slavery, and Pryor wrote that Lee’s slaves regarded him as “the worst man I ever see.”¹

When slaves escaped his plantation, Lee whipped them himself when they were returned or had his overseer do it and then drench their wounds with salt water. In the Battle of the Crater in 1864, Lee's soldiers massacred black Union soldiers when they tried to surrender. When later that year Lee proposed a prisoner exchange, Grant agreed provided that black soldiers were included. Lee objected saying that “negroes belonging to our citizens are not considered subjects of exchange and were not included in my proposition.” Grant refused the exchange.²

Finally, Lee was a traitor, plain and simple; and dishonorable. When Lee was commissioned into the United States Army, he took this oath:

I, _____, appointed a _____ in the Army of the United States, do solemnly swear, or affirm, that I will bear true allegiance to the United States of America, and that I will serve them honestly and faithfully against all their enemies or opposers whatsoever, and observe and obey the orders of the President of the United States, and the orders of the officers appointed over me, according to the rules and articles for the government of the Armies of the United States.

He violated that oath.

Not only that, he took up arms against his country to support the institution of slavery. Taking up arms against your country is, by anyone's definition, treason. The Union took his plantation and made it a cemetery for Union soldiers. It is now called Arlington National Cemetery.

All who fought in the South were by definition traitors to their country. I've heard, here in Virginia, someone make the argument that their ancestors didn't have slaves; that they were fighting invaders. But they didn't have do, did they? And do you know why we know that? Two words: West Virginia.

1. Serwer, Adam. “The Myth of Kindly General Lee.” The Atlantic, 4 June 2017, www.theatlantic.com/politics/archive/2017/06/the-myth-of-the-kindly-general-lee/529038/.
2. Ibid.

Its Only Power

noreply@blogger.com (Michael Smith) — Tue, 06 Nov 2018 23:37:00 +0000

One thing that has always stayed with me after studying Constitutional law is that the Supreme Court has no physical authority. The President, obviously, has immense physical authority. The President has the vast powers of the Department of Justice and the FBI. The executive has the authority to order the CIA, ICE, and other agencies to physically detain or to kill individuals. The Congress also has physical powers; it can compel testimony, refer persons for criminal prosecution.

The Supreme Court can do none of those things. It can only adjudicate cases. But it cannot enforce the judgments in those cases. It has no marshall service or police force. It must, necessarily, rely on its moral authority and its power to persuade to compel the other branches of the government to enforce its judgments. Perhaps the best case-in-point is its decision in Brown v. Board of Education. That unanimous decision declared that "separate, but equal" education was unconstitutional and that desegregation of public schools systems should proceed with "all deliberate speed".

The decision was handed down in 1954. Soon after the NAACP began registering black students for attendance at white schools. In Little Rock, Arkansas, in 1957 nine black students enrolled in Central High School, an all-white school. On the first day of school a white mob gathered in front of the school and Arkansas Governor Faubus deployed the Arkansas National Guard to block the black students from entering the school. The NAACP¹ obtained an injunction from a federal court ordering the governor to cease blocking entry of the students. With police escorts the students entered through a side door but fearing mob violence they went back home. President Eisenhower reluctantly ordered the 101st Airborne Division to protect the students for the remainder of the year. And 61 years ago last September, the Little Rock Nine began attending school at Central High.

The point of this little bit of history is that even though the Supreme Court had ordered the integration of schools with "all deliberate speed" and even though a federal court had ordered that the governor cease blocking entry, neither court had the ability to physically enforce their decisions. They had to rely on other elements of the government to enforce their decisions. And, of course, it took decades to reach "all deliberate speed" to desegregate school systems. Those that enforced the decision had to respect the moral authority of the courts and the rule of law in our Constitutional system in order to enforce the decisions. If the Supreme Court loses its moral authority and its power to persuade it can hand down all the decision it wishes, but they will go unenforced. The GOP is destroying the Supreme Court's moral authority.

They began by stealing a seat that should have gone to Merrick Garland. The GOP refused to even grant the nominee a hearing. That is unprecedented. The result became that a much more conservative jurist, Gorsuch, was elevated to the Supreme Court.

In September the GOP jammed through the nomination of Kavanaugh even though there were credible allegations of perjury, attempted rape, alcohol-induced blackouts, and gang rape; none of which were investigated. Oh, and by the way, Kavanaugh is a political animal, through and through. He is not going to be "just calling balls and strikes." And this is not even a slightly controversial assessment.

So, the GOP stole a seat and installed a partisan justice that still faces credible criminal allegations. How now will the Supreme Court enforce its decisions? Should Democrats, when they regain the White House and the Congress, enforce a decision when the two deciding votes were cast by Kavanaugh and Goursuch? Why? The justices, at best, are illegitimate. Should their votes be enforced?

You see what I mean here. The GOP has destroy the legitimacy of the Court. And we will grapple with this for decades.

1. The NAACP was represented by, among others, Thurgood Marshall, perhaps the most successful litigator in Supreme Court history.

The New Voting Rights Act

noreply@blogger.com (Michael Smith) — Tue, 06 Nov 2018 15:08:00 +0000

Seeing as how this is Election Day, I would like everyone to support the passage of what I am calling The New Voting Rights Act. The act is aimed at getting higher and higher turnout, more secure elections, and more participants in our democracy. The act expands voting rights, makes it easier to vote, secures votes and voter rolls, and eliminates barriers to voting. The act has the following eight major provisions:

Expand the number of polling places
Make all voting machines have paper trails for audit
Move election day to a weekend or make it a holiday
At least two weeks of early voting, but not more
Eliminate criminal disenfranchisement laws
Automatic voter registration
Eliminate Voter ID (or make IDs as easy to buy as candy)
Eliminate gerrymandered districts

I'll more fully explain these provisions and the reasons for having them.

Expand The Number of Polling Places

This is easy. We should have enough polling places so that if a high turnout occurs, a voter can get to a voting machine within 15 minutes. This is a mathematical calculation, really. We determine what constitutes a high turnout (60%? 70%). Then place the appropriate number of machines relative to the population density of the area so that folks can get in and get out. Expanding the number of polling places makes it easier for people to vote and should encourage higher turnout.

All Voting Machines Must Have a Paper Trail

With the 2016 election we have witnessed foreign governments hack our elections, not only with "fake news" and Twitter and Facebook bots, but also with attempted hacking of voter rolls and voter machine software. I may be a Luddite, but a more secure election would be made if the voter voted on the machine and then initialed the paper trail. The election could be speedily tabulated, but if any question arose or if a recount is required, the paper trail can validate the outcome. Also, with a electronic ballot and a paper trail, the sudden appearance of a Ballot Box 13 is eliminated.

No Work On Election Day

Of course, one of the major points of the New Voting Rights Act is to make everything easier; make registering easier, make voting easier. Moving election day to a weekend is a perfect example of making it easier for people to vote. Tuesday was selected in the 19th century because it enabled farmers to travel to the county seat on horseback by Tuesday (having had to go to church on Sunday). Of course, this makes no sense in the 21st century. Further, moving the date to a weekend only requires a bill out of Congress and a President's signature. Also, making "Election Day" actually two days, gives everyone a better opportunity to vote. Also, it avoids any problem with religions that don't work on the Sabbath, be that day Saturday or Sunday. Alternatively, we could make the first Tuesday in November a national holiday. This is not without precedent in this country. Many states used to make Election Day a holiday (and many a voter was influenced by a free whiskey or two on those holidays). That's also an alternative that only requires a bill out of Congress and a President's signature.

Two Weeks of Early Voting - But Not More

This sounds a bit antithetical to the New Voting Rights Act, but it's not. We should have some period of early voting to make it easier for folks to make it to the polls and for those who can't make it on Election Day or Election Weekend. However, it should not be more than two weeks. That is because in the final days of any campaign critical things can happen. Scandals can be unearthed, crimes or misdemeanors can be revealed, political positions can be changed. All of these types of game-changing events would mean that early voters could have voted for someone that they otherwise wouldn't have voted for.

Eliminate Criminal Disenfranchisement

Look, I get that everyone wants to be tough on crime, but criminal disenfranchisement only makes sense if you want to keep minorities from voting. So, if you're for criminal disenfranchisement we know your bigotry. Criminals that have served their sentence should not be further punished by forbidding them from participating in our democracy. Disenfranchisement does nothing to advance criminal justice. It is not a deterrent. And it certainly is not much of a punishment. If you ask someone if the only penalty for committing a crime is not being able to vote again, I'm sure that they would agree that that penalty would not deter them, nor would they look at it as much of a punishment. Further, we should be encouraging felons to re-engage in our society and participate in our democracy. We should be getting felons back to normalcy, back to a civilian life. Voting should be part of that. Also, believe it or not, they have views that we should want to hear, like about prison or criminal justice reform.

Automatic Voter Registration

Automatic voter registration does two things: it makes it easy and seamless for the voter to be registered, and it makes our voter rolls more accurate. The way it works is every time a citizen interacts with a designated agency, he or she is automatically registered to vote unless he or she declines to be registered. If the citizen does not decline, the agency takes the voter's information and ships it to the appropriate voting agency, like the Secretary of State, in a form that can be electronically added to the voter rolls. The agency must collect proof of citizenship, age, and residency. The voting agency then takes the information from the government agency and adds that person to the voting rolls or verifies or updates the persons voting information. Thus, the voter is seamlessly registered and his or her information is continually updated or corrected. Hey, you phony voter fraud folks: this actually prevents voter fraud.

Eliminate Voter ID Laws

Look. Voter ID laws are stupid. They are a solution in search of a problem. No one in their right mind would commit voter fraud; that is, voting in an election in which you were not a registered voter. What is the gain for the fraudulent voter? His or her candidate is elected and he or she might go to jail? And to affect an election, tens of thousands of such voters would have to be

recruited to perform such a fraud in order to change the outcome of very close elections. And that kind of operation doesn't lend itself to secrecy; which is why it has never happened.

But, whatever. I propose the elimination of such laws. As shown above, AVR pretty much eliminates voter fraud. But if you must have voter ID laws, then you can; you just have to make the acceptable IDs as available as gummy bears and free. Every 7-11 and grocery store will be paid to distribute IDs. Not only that, but they will be paid a fee, an incentive, to do so. Not enough of a fee so that they will be motivated to cheat, but enough so that it is worth their while. Wherever you can buy a lottery ticket, you should be able to get an ID. You want voter ID? Pay for it.

End Gerrymandering

It is time to end gerrymandering.¹ The practice destroys democracy and prevents the people from having representative government. It destroys democracy because if a politician knows that his or her district is bullet proof, where is his or her incentive to compromise? However, if the district is 51-49 or similarly close, he or she better pay attention to his or her constituency. Also, extremely gerrymandered districts effectively disenfranchise those voters who do not support the favored party. For example, if you are a Republican in a heavily gerrymandered Democratic district, your vote will never matter because the Democratic candidate will always (or almost always) win. Your ability to influence legislative action is effectively neutered because the Democratic official doesn't have to listen to your opinion; that Democratic official will win regardless of your opinion or vote. Ironically, if you are a Democrat in that district, your vote becomes less valuable because the Democratic official doesn't need your vote as much as he or she would in a non-gerrymandered district. Thus, even Democrats' votes lose value. Eliminating gerrymandering also lessens the influence of money in politics. If an incumbent is in a 51-49% district his or her votes must reflect what the majority of his or her constituents want. So, for example, if this district heavily favors gun control it doesn't matter how much money the NRA gives to the representative; he or she will have to vote with his or her district or face being defeated at the next election.

So, there you have it, the New Voting Rights Act. I proposed this as a exercise in what can happen if we truly believe in our democracy. If you feel like I do, please urge your representative to support this.

1. The term,"gerrymandering" originated when, in the 19th century, a district for the then governor of Massachusetts was so wildly drawn that it resembled a salamander. The governor's name was Gerry; hence, gerrymandering.

5G

noreply@blogger.com (Michael Smith) — Mon, 05 Nov 2018 19:49:00 +0000

I wrote here that if you've recently purchased a car, it's likely that that car will be the last one you'll ever buy. That's because transportation will soon be a service with electric, autonomous cars provided by Uber or a similar service. There I cited two sources, Tony Seba and Lawrence Burns. I just found another data point that supports their theory: 5G.

5G is the next generation of wireless telecommunication. 5G is predicted to be transformative. Data transmission rates will be more than 10-100 times faster than 4G. Transmission rates are estimated to be faster than fiber-optic cables. More importantly is the reduction in latency. Latency is the time between you click a link or otherwise make a request on a network and the time the network responds. Now that latency is about 20 milliseconds. 5G will reduce that to 1 millisecond; about the time for a camera flash to finish.

While 5G will certainly speed up phone and computer data transmission, it is expected to have a big effect on the internet of things. And one of those things is the automobile. Experts expect cars to have sensors that will broadcast its location, speed, and velocity and devices that can receive that data from other cars. Thus, as your electric car approaches an intersection it can determine what cars in their vicinity are braking, accelerating, turning, etc. 5G will make autonomous vehicles, already safe, even safer.

It's coming, folks.

The Clean Disruption

noreply@blogger.com (Michael Smith) — Fri, 05 Oct 2018 00:40:00 +0000

I've seen two very persuasive things that predict the same thing: if you've recently purchased a car, it may be the last one you'll ever buy. Why? Because of autonomous electronic vehicles that will transform transportation into a service industry. The first thing I saw was the talk below by Tony Seba. Seba is an entrepreneur and think tank guy. He has an MBA from Stanford and a BS in computer science from MIT. He's no dummy. The second piece I saw was this, an interview with Lawrence Burns, the author of Autonomy: The Quest to Build the Driverless Car—and How It Will Reshape Our World. Burns is the former head of R&D at GM and is currently an advisor to Google's driverless car subsidiary. They both predict that within the next 10 years, autonomous electronic vehicles will be ubiquitous.

If you didn't watch the video, Mr. Seba predicts that autonomous electronic vehicles will be ubiquitous in 10-15 years, that they will be powered by solar power, and that most homes as well will be powered by solar power. The reason for this, Mr. Seba postulates, is the convergence of 5 technologies and how technological advances are adopted, consistently, in an "S" curve, and that technological advance in the information age are adopted on an increasingly fast pace. The technologies Mr. Seba discusses are the lithium-ion battery, solar power, electric vehicles, autonomous vehicles, and ride sharing apps and companies. Assume that what he says is true, that within 10-15 years, driverless, autonomous electric vehicles (EVs) will be ubiquitous.

Mr. Burns makes nearly the same prediction: a market disruption of over $4 trillion. While Seba predicts nearly universal adoption, Burns thinks regular cars and autonomous cars may co-exist for a good time, but that eventually autonomous cars will be everywhere and no one will own cars. He says that even the car industry is recognizing this. This is partially because the business model of car ownership won't make sense. People only use their cars 4-5% of the time. The rest of the time it's parked. People will understand that they only want to pay for transportation that they use.

This will be the most disruptive transition in human history. It will be cataclysmic. It will be cataclysmic not only because of the disruption, but because of the speed of the disruption. Think of the implications.

No one will own a car.

There will be no driveways or garages. Folks will rehab their garages and tearout their driveways.

Seba says that here will be no parking lots. As Seba says in his presentation, if you eliminate parking lots in L.A., you can fit 24 San Francisco's in L.A. I disagree with some of this: even driverless cars need someplace to go when they are not in use. But there will be far fewer parking lots because there will be far fewer cars.

The price of oil will plummet.

The political and economic leverage of Russia, the Middle East (including Saudi Arabia and Iran), Venezuela, Mexico, Indonesia will be erased. The speed of the collapse will be devastating. If those economies lose their only product major internal conflicts will occur in some or all of those countries as their economies collapse.

Nuclear power plants will be decommissioned. Major utilities will go bankrupt. The cost of the decommissioning of the power plants most likely will be borne by the public sector as the private sector utilities will not be able to afford to do so. Pipelines and some electric transmission lines will need to be decommissioned. Again, these costs will likely be borne by the public sector.

Major auto companies will go bankrupt. Their suppliers will also go under. Some automakers will survive, but there will be fewer companies over time. Internal combustion engine autos (ICEs) have a lifespan of 100,000 to 150,000 miles. EVs' life spans are in excess of 500,000 miles. Thus, as the ICE capacity is replaced by EVs, fewer cars will be required to be produced annually. There will be large scale unemployment in the automobile industry due to two reasons. First, as noted above, there will be fewer car companies. Second, there will be not as much demand for autoworkers to produce EVs because they are far simpler to produce. Large-scale unemployment - EVs are much simpler to make.

Some major oil companies will go bankrupt.

The economy of Houston and the Texas Gulf Coast will be decimated. Indeed the economy of the State of Texas will be destroyed.

Trucking industry as we know it will be destroyed for the most part. Trucks will still exist, but they will increasingly become autormated. They will be much simpler and more efficient because they will not need drivers, cabs, or air conditioning. So they will be smaller and more efficient. Trucks will be able to run 24/7. Consequently warehousing will need to operate 24/7. This should lead to either more warehousing jobs or more automated warehousing; I'm betting on the latter.

Traffic crashes, injuries, and fatalities will be greatly reduced. DUI's will become a thing of the past as will speeding tickets and other traffic tickets. Many police departments will take a large hit from the loss of revenue from those fines. While those departments' expenses will go down because of the elimination of traffic cops, that most likely will not offset the loss in revenue. State police departments will be greatly hit, but their expenses will be reduced more. Consequently police departments focus will be on other crimes.

The cost of automobile insurance will be greatly reduced. Of course, only EV fleets will pay it (although they will pass through the costs to customers), but because of reduced chances of accidents and reduced liabilities, many will choose to self insure. Insurance companies' value will be greatly reduced, but because they sell other insurance, they will remain in business.

Deliveries, from everything from pizzas to mail to UPS, will become more efficient because the automated EVs will use AI to plan routes and real time traffic analysis to make deliveries. But mail carriers and other delivery workers will not become displaced because of the "last 10 feet problem": getting the item from the EV to the customer's door or mailbox.

Gasoline taxes will be replaced by some other tax in order to maintain roads and bridges.

No, General Ackbar, It's Not A [Perjury] Trap

noreply@blogger.com (Michael Smith) — Tue, 21 Aug 2018 20:02:00 +0000

The term "perjury trap" has been bandied about quite a bit lately and it has been incorrectly used every time. The President's lawyers, Giuliani and Seklow, have repeatedly said that they would not let Trump speak to Mueller because he would be walking into a perjury trap. That's untrue. They are worried, correctly, that Trump would commit perjury, but testifying to Mueller is not a perjury trap. The term "perjury trap" in law is a defense to a charge of perjury, not a situation where you think your client is going to lie.

"Perjury trap" is an affirmative defense to the charge of perjury. An affirmative defense is a defense against a charge that a defendant must prove usually by a preponderance of the evidence. The defendant, not the prosecutor, bears the burden of proof to establish the defense. So, once the prosecution rests its case on the charge of perjury, the defendant must then introduce evidence that proves a "perjury trap".

What, then, is a "perjury trap"? The term refers to prosecutorial misconduct of a prosecutor (or an FBI agent or counsel) who brings a person to testify for the sole purpose of obtaining perjurious testimony. In other words, there is no other legitimate inquiry for which the person is examined. For example, imagine that a defendant robbed a bank, but was never prosecuted and now the statute of limitations has run and he cannot be prosecuted for it any more. Further imagine that a prosecutor knows the defendant did the robbery. So, the prosecutor brings the defendant to testify about another crime but then questions the defendant about the bank robbery. If the defendant lies about the bank robbery, the prosecutor could try the defendant for perjury. In that instance, the defendant was merely brought before the grand jury to elicit perjurious testimony. He or she would be entitled to raise the defense of perjury trap.

Mueller is investigating, among other things, campaign finance violations, conspiracy to commit those violations, money laundering, obstruction of justice, and probably, abuse of power. He's already obtained numerous convictions and indictments on some of these charges. There is no doubt that Trump has evidence that would be relevant to Mueller's investigation. There is also little doubt that Trump will lie to Mueller. But Trump would not have "perjury trap" as a defense to his perjury.

Clear As Day

noreply@blogger.com (Michael Smith) — Tue, 07 Aug 2018 13:31:00 +0000

So, it is clear as day that Don Junior, Jared Kushner, and Paul Manafort are felons. It is most likely that Don Senior is too.

So, back in June, 2016, a Russian promoter named Goldstone, emailed Don, Jr. and said, "The Crown prosecutor of Russia met with [the father of his client] this morning and in their meeting offered to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father. This is obviously very high level and sensitive information but is part of Russia and its government's support for Mr. Trump . . . ." ¹

Don Junior responded and agreed to the meeting, saying, "Seems we have some time and if it's what you say I love it especially later in the summer."

Later in the summer, like around the Democratic National Convention.

Now, Don Jr., et. al., said that nothing came from this meeting, but we cannot know that that's true because they've consistently lied about the content of this meeting and, in fact, of the very existence of this meeting. But that doesn't matter. Merely soliciting the information at the meeting is a felony. How do we know this? Because we can read the statutes.

The pertinent statute, 52 U.S.C. § 30121, reads, in part, "It shall be unlawful for . . . a person to solicit a [campaign contribution, donation or other thing of value] from a foreign national." Opposition research has been determined to be a "thing of value" under this statute.

And now we know, without a doubt, that the June, 2016 meeting was taken by the Trump Campaign to obtain opposition research from a foreign national because Don Senior tweeted that the meeting "was a meeting to get information on an opponent." So The Donald admitted that Don Jr. solicited a thing of value from a foreign national.

That act is a felony punishable by up to five years in prison.

There is much more that we don't know about that meeting. For example, what did the Donald know about the meeting, before or after it occurred. Michael Cohen alleged that there was a meeting among the Donald, Don Jr., and others that was in preparation for the meeting with the Russians. If that is true, then the Donald could be on the hook under conspiracy laws. We also don't know what the Russians wanted in that meeting. Some have alleged that they wanted relief from sanctions imposed by the Obama Administration. Did Don Jr. et. al. agree to relieve those sanctions in return for dirt on Hillary? Even if they didn't get the dirt, that's a crime. Some have also alleged that the principals from the Trump campaign desired a back channel to communicate with the Russians. Did they agree to that at this meeting?

There's is quite a bit that we don't know. We don't know the extent to which the Trump campaign coordinated with the Russians to divert attention from the Hollywood Access tape or the DNC convention. The timing on both of those events is too coincidental to be accidental.

But the thing that we now surely know is that Don Jr., Manafort, and Kushner committed a felony; one that could put them in jail for half a decade. That we know for sure. Clear as day.

1. Remember this. If it wasn't clear before, it is clear as day that the Russians wanted to help Trump win the election.

Juneteenth

noreply@blogger.com (Michael Smith) — Wed, 20 Jun 2018 01:01:00 +0000

Many people don't know about this holiday. I didn't until I moved to Texas. Juneteenth, June 19, 1865, is the date that General Granger, in Galveston, Texas, read General Order 2, which freed all slaves from bondage.

This is a pretty big deal in Texas. Parades. Drink Specials. You name it.

And I was thinking, with the Trump administration's tearing apart families that there is a connection. Sister Helen Prejean said it better than I could:

Sister Helen Prejean‏Verified account @helenprejean
There used to be a slave auction block right on Jackson Square in New Orleans. Families were separated there every single day. Tearing children away from their parents and justifying it with the Bible was immoral then and it’s immoral now. #FamilesBelongTogether

Monumental Decisions Part Deux

noreply@blogger.com (Michael Smith) — Wed, 11 Oct 2017 20:34:00 +0000

I have previously argued that the Confederate monuments should come down and that question of whether or not to remove them is not even close. Since then, I've attended two panel discussions sponsored by JMU. And those discussions have convinced me that I was wrong. The question of removal is close, but that is not to say that they should remain in place unmodified. People that argue that taking down the monuments is akin to erasing history are correct. Removing the monuments does erase history; just not the history that they are thinking of.

The first panel discussion that I attended was entitled, White Supremacy, Confederate Monuments, and Free Speech in Charlottesville. The panelists were professors at JMU: Tammy Castle, Ph.D., Justice Studies, Gianluca De Fazio Ph.D., Justice Studies, Steven Reich, Ph.D., History, Roger Soenksen, Ph.D., School of Media Arts & Design. Dr. Castle spoke about the Neo-Nazis that attended the rally.¹ She noted that these guys did not come to Charlottesville to engage in dialogue; they came to engage in violence. They apparently indicated as much on their message boards prior to the event. Dr. Reich spoke about the history of the monuments. These monuments, as I earlier noted, are meant to be symbols of white supremacy. They were erected, mainly, during the Jim Crow Era from 1890-1930 and during the Civil Rights Era from 1950s to the 1960s. Their entire purpose was to intimidate African-Americans and legitimize white supremacy. It was after this panel that I was convinced that these monuments had to go.

Then, I attended another panel discussion, Why Confederate Monuments Matter. This one was led by an art historian at JMU, Dr. David Ehrenpreis, and a professor from UVA, Dr. E. Franklin Dukes. Dr. Dukes was on the Charlottesville commission that advised the city council on what they should do about the Confederate monuments in Charlottesville. Dr. Ehrenpreis is an expert on public memorials and he went through some examples of what other societies have done with memorials.² Some, like Iraq, have torn them down.

Others, like East Germany with Engels and Marx and St. Petersburg with Lenin and Stalin, have left the statues alone.

Dr. Ehrenpreis emphasized that context is everything. How different would the Lee monument in Charlottesville look if it were moved to a battlefield or to a museum? There, arguably, the monument would not be there to honor Lee, but rather to put him in historical context. Dr. Ehrenpreis gave an example of context using the monument to Turner Ashby here in Harrisonburg. Ashby was a calvary commander in Jackson's army during the first Shenandoah Valley campaign in 1862 and was killed in the Battle of Harrisonburg (also known as the Battle of Good's Farm). Several miles from downtown, tucked away by soccer and lacrosse fields is this small monument where Ashby was alleged to have been killed.

Dr. Ehrenpreis pointed out that this remotely located, somewhat hidden monument, placed on a former battle field, would acquire a different meaning if it were placed on the courthouse square in downtown Harrisonburg.³

Dr. Dukes spoke primarily about white supremacy and how it is systemically perpetuated in our society. He also spoke about the Charlottesville monuments and the commission he served on. Some that the commission surveyed did not want any changes to the monuments. Others absolutely wanted them removed. Others came up with interested solutions. One suggested with respect to the Lee monument that they remove Lee from the pedestal and place Lee and Traveler in a trench so that Lee is at eye level with the viewer. That way the sense of honor or tribute is taken from the monument. Another was to surround the Lee monument with plexiglass and have etched in the plexiglass words like "slaveholder", "traitor", "abolition", "emancipation" so that to view the monument you have to view the words. It would give greater context to the monument.⁴

Dr. Ehrenpreis said that any time you remove a monument you do erase history. At first I disagreed with him: you're not erasing history; you're removing the honor to a person that a monument bestows. But now I agree with him. When you remove these monuments, you are erasing history, but not the history of the Civil War, but the history of white supremacy.

I now think that these monuments should not be removed, but modified and contextualized. They should be taken down from their pedestals, to remove any notion that we, as a society, are honoring those individuals. Then some monument or plaque should be added to the site to add context. It should be a plaque that notes that this statue was once placed here by white supremacists in an on-going effort to assert their white supremacy and to subjugate African Americans. It should note that it was erected during a time when whites passed discriminatory laws meant to keep African Americans from voting, from obtaining a good education, from obtaining good jobs, and from fully participating in our society. The plaque should inform and change the monument's context from one of honor to one of shame.

While I have no great objection to the removal of the monuments from the public square, I think it is more fitting to acknowledge their racist purpose and to acknowledge our racist past. They cannot remain unmodified; that is not the society that we should be. They can, with proper context, inform and teach us about our racist history.

1. Dr. Castle is an expert on hate groups. She has the worst job in the world. She studies Neo-Nazis and white supremacists. She monitors their message boards and attends their rallies.

2. Dr. Ehrenpreis used this image to introduce the topic, mocking the "erasing history" argument:

3. Why there is a monument to Ashby befuddles me. There's even a local high school named after him. For the life of me, I can't figure it out. He was a minor commander who did not have much of a military career, seeing as he was killed early in the Civil War. He was not from around Harrisonburg and did not have any ties to Harrisonburg. It's passing strange.

4. The commission recommended removing the Lee monument and letting the Jackson monument stand. The Charlottesville city council voted 3-2 to remove both statues. That decision has been stayed as the city has been sued by the Sons of Confederate Veterans among others. Now the monuments are covered in shrouds. Dr. Dukes said that the city really has no choice now but to remove the Lee monument as it has become a magnet for white supremacists.

Fixed Stars In Our Constitutional Constellation

noreply@blogger.com (Michael Smith) — Thu, 28 Sep 2017 23:51:00 +0000

This is a fun little story. In 1942, in the middle of World War II, the West Virginia Board of Education promulgated a rule that every school child salute the flag and pledge allegiance -- by extending the right arm, palm upward, exactly like a Nazi salute, and declaring, "I pledge allegiance to the flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all." The penalties for non-compliance were incredible.

Failure to conform is "insubordination," dealt with by expulsion. Readmission is denied by statute until compliance. Meanwhile, the expelled child is "unlawfully absent," [Footnote 5] and may be proceeded against as a delinquent. [Footnote 6] His parents or guardians are liable to prosecution, [Footnote 7] and, if convicted, are subject to fine not exceeding $50 and Jail term not exceeding thirty days. [Footnote 8]

So, not only were the kids in trouble, but the parents could be jailed and fined. $50 in today's dollars would be about $780. Not an insignificant sum.

Well, people objected. Specifically, Jehovah's Witnesses who objected because their religion informed them that they could not salute a "graven image" and that the U.S. flag was such a "graven image."

Now, you'd think that the Supreme Court would address this as a freedom of religion case, that the state could not infringe on the Jehovah's Witnesses' religious belief to not salute "graven images." (they did so later). But the Court expressly side stepped that issue. It said that the issued did not turn on whether the Jehovah's Witnesses' beliefs exempted them from compulsory salutes because other students who did not hold those beliefs were also required to salute. The Court said, "It is not necessary to inquire whether nonconformist beliefs will exempt from the duty to salute unless we first find power to make the salute a legal duty."

Spoiler alert: the Court found the State had no power to make a salute to the flag a legal duty.

And it did so on freedom of expression grounds. It said that the answer in this case was whether the central point of in an earlier decision of the Supreme Court was valid, the assumption and proposition that given that,

"National unity is the basis of national security,". . . the authorities have "the right to select appropriate means for its attainment," and hence reaches the conclusion that such compulsory measures toward "national unity" are constitutional.

The Supreme Court overturned that decision. It did so in nearly poetic prose. I'll not interrupt it:

National unity, as an end which officials may foster by persuasion and example, is not in question. The problem is whether, under our Constitution, compulsion as here employed is a permissible means for its achievement.

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. Nationalism is a relatively recent phenomenon, but, at other times and places, the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity.

As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. [Footnote 19]

This case, West Virginia State Board of Education v. Barnette, is still good law. President Trump has never heard of this case.

Monumental Decisions

noreply@blogger.com (Michael Smith) — Tue, 15 Aug 2017 21:47:00 +0000

The fight over monuments to Confederate generals and other luminaries shouldn't be a fight at all, once we understand the purpose of the monuments, the red herring that is the argument about the white-washing of history, and fallacious slippery slope argument. At the end, we are left with is whether as a society we want to create and tolerate monuments to traitors and racists. When it comes down to that, the answer is as self-evident as the truths in the Declaration of Independence.

Before we go much further the purpose of these monuments should be understood. Monuments in the public square are erected, ostensibly, to honor past heroes or past moments of significance. For monuments to persons, these are ostensibly erected to show these people to be persons whose lives are paragons; these people so honored should be people that reflect our values and educate our populace and, indeed, the world what values our society honors. These Confederate monuments do that but have other purposes as well. The purpose of these monuments is to remind us of history, but not in the way you think.

These monuments were erected decades after end of the Civil War. The statues in Charlottesville were erected in the 1920s. The statue of Lee in Dallas, in Lee Park, was erected in 1936 (it was dedicated by FDR; remember the Democratic Party was the refuge for white bigots in the South until the Civil Rights Act and Voting Rights Act in the 60s). They were erected for the most part during the Jim Crow era. Their purpose is not to honor generals. They were erected to signal to whites in the South that racism is still fine. They were erected to signal to blacks in the South that dead traitors are more valued than black lives.

And make no mistake: these generals were traitors. Lee, Jackson and the rest made this oath, hand on a Bible, "I . . . do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States . . . ." Each of the men violated that oath that they made to God. They literally took up arms against the United States and did so so that states could permit humans to be enslaved. There can be no clearer case of treason.

Some have made the argument that by removing these monuments we are some how "whitewashing" history. Nothing could be further from the truth. Removing these monuments would show that our society believes that these men were not honorable or worthy of honor. Further, if you're worried about forgetting history, instead of a monument to Lee, create a monument to the Union dead with a plaque noting how many were killed by armies under Lee's command.

Finally, some have wondered where will this all end; there are monuments to Jefferson, Washington, and Madison, among others, and all were slave owners. Shouldn't those monuments be removed? In a word, no. There is a clear distinction between our Founding Fathers who literally fought to bring our nation into being and between Confederal generals who literally fought to destroy our nation. We can have a conversation on how these men owned slaves and how they helped bring the nation into being with the scourge of slavery intact. But there is a clear difference between those who created and those who sought to destroy this nation.

So, in the end, the question is do we, as a society want to continue to honor racists and traitors? Are those the values that we want to cherish? I have not spent one minute of my life as a black man, but I cannot believe that I would feel comfortable if I had to walk by monuments to people who literally fought to keep my ancestors enslaved. Why don't we do something like creating statues to W.E.B. Du Bois, or Thurgood Marshal, or Ralph Bunche, or Percy Julian? There are hundreds of actual heroes that we could honor. We do not have to be stuck with traitors.

Sunday Afternoon in the Park

noreply@blogger.com (Michael Smith) — Mon, 14 Aug 2017 00:29:00 +0000

Never forget, but also always remember this:

Not quite an hour from Charlottesville, just over the mountains, in a small city in Western Virginia, people came out to play at a park.

There were kids on scooters, and bikes, and skates, going after each other or not, racing at break-neck speeds on tiny paths and through picnic areas because, well, kids are idiots.

There was a large extended family across the park in the large pavilion celebrating a young one's birthday with balloons, cake, and a piñata that is a requirement at all birthday parties for children of a certain age.

There were kids of all kinds, African American, Latino, White, Asian, jumping on each other in the hammock and, then, trying to push each other off the hammock with their feet, a kind of "King of the Hill" with a hammock because, well, kids are idiots.

There was a group of Orthodox Jewish men playing ultimate frisbee with their boys on this warm summer afternoon while their wives and other children played close by and took pictures of each other.

There were kids of all kinds playing chase, playing tag, running up and down playscapes, tackling each other, pushing each other on the swings and daring them to jump higher because, well, kids are idiots.

There was a Latino man in a turquoise Aeropostale shirt and mirror aviator sunglasses pushing his daughter's pink training-wheeled bike, who was not old enough to power it herself, chasing after his older daughter's larger but otherwise identical bike, who was old enough to power it herself, handing off the duties to his wife clothed in a similarly colored turquoise top, saying, "Te toca."

And everyone was laughing, and shouting loudly about kid's game rules and race contests; all happiness and joy save the cry that accompanies the occasional quickly-soothed boo-boo or the longer wail when it is understood that it is time to leave the park.

And there was me, an older white dude, with gray hair, reading his Father's Day gift, Lincoln at Gettysburg, and looking up from time to time, smiling, infused by the feelings that surrounded me and searching from time-to-time for my nine-year-old son to make sure that he wasn't about to launch himself off the top of a playscape.

Because, well, kids are idiots.

All Men Are Created Equal, Or, Well, Not Really

noreply@blogger.com (Michael Smith) — Sun, 02 Jul 2017 17:32:00 +0000

I read a tweet from the American Enterprise Institute that mystified me: "The birth of the United States was unique because it was a nation founded not on blood or ethnicity, but on ideas." I thought that they were wrong on both fronts: we fought a war to gain our independence and condemned millions to slavery because they belonged to a certain ethnic group. When I read the full piece, it made a little more sense:

But the birth of the United States was unique because it was, and remains, a nation founded not on ties of blood, soil or ethnicity, but on ideas, held as self-evident truths: that all men are created equal; they are endowed with certain inalienable rights; and, therefore, the just powers of government, devised to safeguard those rights, must be derived from the consent of the governed.

The reference in the tweet to "blood" was to "ties of blood", i.e. a monarchy or a government based on lineage. True enough in that we rejected monarchial rule. As to the portion of the tweet that said that the nation was not founded on ethnicity is only true if you consider that white men from certain nations are an ethnic group. That is, it is true that white men from several different European nations rebelled against the English nation and ethnic group. But that's as far as it goes. Further, that the delegates believed in self-evident truth of equality of all men is belied by the debate in the Continental Congress adopting the Declaration of Independence, the United States Constitution, and the statement itself.

Many point to that portion of the Declaration of Independence, "that all men are created equal", as evidence that our country has had a commitment to equality for all since our inception. That is, of course, far from true. It is often overlooked that Jefferson's draft of the Declaration included this paragraph:

[King George III] has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidel powers, is the warfare of the Christian King of Great Britain. Determined to keep open a market where Men should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or restrain this execrable commerce. And that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people on whom he has obtruded them: thus paying off former crimes committed again the Liberties of one people, with crimes which he urges them to commit against the lives of another.

This paragraph was deleted from the Declaration at the insistence of the delegations of Georgia and South Carolina, and certain delegates from the North who were involved in the slave trade. The debate in the Continental Congress makes it clear we, as a nation, were not committed to equality for all from our inception; far from it.

Further, that commitment to inequality was enshrined in our Constitution, drafted a mere 11 years after the Declaration, with the infamous 3/5 clause that counted slaves as 3/5ths of a person for the purpose of determining the population of states to apportion representatives to Congress. It is clear, also, from the debate at the Constitutional Convention that delegates considered slaves as property, not as people. When the question of proportional representation in the lower house of Congress was raised, southerners wanted the entire population of a state counted, free persons and slaves alike. Northern delegates objected asking, if they counted slaves, why not count other property like horses and cows.

While this proposal was introduced in the Constitutional Convention by James Wilson of Pennsylvania, the compromise was first proposed by James Madison as an amendment to the Articles of Confederation to better allocate taxation. The amendment first proposed to tax states according to their population, not the value of their property. Southern states objected because they would be taxed higher than northern states because slaves would be included in the population count. Madison proposed the 3/5ths compromise, which was adopted, although the amendment failed to pass. Jefferson, the author of the phrase, "all men are created equal", in his notes on the debate over the 3/5ths amendment acknowledged that slaves were not men because he noted that because of the revised amendment "southern states would be taxed according to their numbers and their wealth conjunctly, while the northern would be taxed on numbers only." Clearly our Founding Fathers equal rights excluded African-Americans. Of course, we would also discover that our nation rejected equal rights to Latinos, Asian-Americans, and Native Americans.

Finally, the statement itself denies the notion that our nation was conceived committed to equality for all. The word "men" in the phrase, "all men are created equal", was not metaphorical. It meant men, specifically white men as shown above, and not women. Women did not get the vote until 144 years after those words were written. Women couldn't make a contract in Texas without their husband's consent until the 1960s. Women still do not get equal pay for equal work.

To achieve the ideal of equality for all we must rid our selves of the notion that we have always believed that "all . . . are created equal." We have never actually achieved that. Only a few years ago did we get marriage equality. And one reason that we have that train-wreck of a President today is because of the backlash of electing a black man to the Presidency and proposing to elect a woman to the Presidency. Only when we acknowledge that we never meant equality for all in the Declaration of Independence can we all work together to actually achieve equality for all.

STFU And Do Your Job

noreply@blogger.com (Michael Smith) — Fri, 16 Jun 2017 12:22:00 +0000

There are a surprising number of bakers who don't feel like baking wedding cakes these days. There's a baker in Colorado¹. There's a baker in Oregon². It's passing strange because wedding cakes are really, really lucrative. Why would they not want to bake those cakes? Because the people to whom they are serving offend them.

That's right. They don't want to prepare wedding cakes for gay or lesbian couples, because they are getting married. They allege that making a cake for those folks is an affront to their religious beliefs. In the Oregon case, one of the owners of the bakery, Aaron Klein, said that he "politely" told the couple that he didn't want to be a part of their ceremony because the ceremony offends his religious beliefs.

Two things. First, in no marriage ceremony that I am aware of is wedding cake a part of the ceremony. The cake is for the party after the ceremony. Making a wedding cake is the same as making a cake for a birthday party - it's a cake for a party³. Second, make no mistake, you are discriminating against people because their beliefs are offensive to you. Instead, you should just do your job.

Steve Scalise was shot on Tuesday at a baseball diamond in Arlington, Virginia. The House Majority Whip has always been a vocal opponent of same-sex marriage. While a representative in Louisiana, he co-authored a constitutional amendment to outlaw same-sex marriage in Louisiana. He supported the North Carolina bill filed only in April of this year to outlaw same-sex marriages. He also supported a bill in the United States Congress that would prohibit penalties against persons who discriminate against other people because of their sexual orientation.

Crystal Griner was also shot on Tuesday. Ms. Griner is a member of the Capital Police force. They were there because Representative Scalise is part of the House leadership and they are tasked with his security. The Capital Police were widely praised as preventing a blood-bath on Tuesday. One congressman said that, but for the actions of the Capital Police, the Tuesday shooting would have been a massacre, that many would be dead from the M4 assault rifle that the assailant wielded, including Rep. Scalise.

Ms. Griner was recovering in the hospital from her gun shot wound. Fortunately for Ms. Griner, she had family that could comfort her in her recovery. Tiffany Dyer was on hand when President Trump brought by some flowers for Ms. Griner. Ms. Dyer is Ms. Griner's wife.

Yes, Ms. Griner saved the life of a man who has spent much of his life making and supporting laws that discriminate against Ms. Griner. Ms. Griner was shot defending the life of a man whose beliefs are offensive to her.

If Ms. Griner can put her life on the line for a guy that has spent life trying to minimize her very existence, bakers should be able to bake a freaking cake. STFU and do your job.

1. The Supreme Court of Colorado has declined the baker's appeal of the Colorado Discrimination Commission's decision against the baker. The United States Supreme Court has so far not agreed to hear the case.

2. The Oregon Court of Appeals is hearing the decision of the labor commission against the baker.

3. What I'd like to see is for a gay or lesbian couple to go into one of these shops, all lovey, dovey and all; being the gayest gay that they could imagine. Then I would like to see this scene take place:

Couple: We would like a birthday cake.

Baker: Ok. What did you have in mind?

Fiancé 1: Well, we want it white, you know, like Italian butter cream, with a white cake. And we want, like a three tiered cake, each with a three-layer cake, but the second and third cake each smaller that the previous one. Then, on the top, in red icing, write "Happy Birthday."

Baker: Ok. That'd be fine.

Fiancé 2: Except, don't you think (looking at Fiancé 1) that instead of "Happy Birthday", they should write "Congratulations", and add two male (female) figurines?

Fiancé 1: Yes. Perfect.

Baker: Nope! You've offended my religious beliefs! Away with you heathens that want a cake with two same sex figurines and the word "Congratulations"!

Let's treat guns like cars and driving!

noreply@blogger.com (Michael Smith) — Wed, 14 Jun 2017 17:05:00 +0000

Seriously. Here's my modest proposal, reissued.

First, you have to be licensed to own a gun. Just like a driver's license, you will need a gun owner's license. Obtaining a gun owner's license means that you have to pass a gun safety course and provide a doctor's note that you are not mentally disturbed such that you are a danger to yourself or others. The latter part of obtaining a gun owner's license is different from driving because a Glock is different from a Gremlin: buying a car when depressed is less dangerous than buying a deadly weapon when depressed. The gun owner's license would have to be renewed periodically, like a driver's license. There may be other things that you might want to add to the list of items to prove in order to obtain a gun owner's license, like a criminal background check, a DHS background check, and the like. Those are not part of my proposal, but they would be welcomed.

Second, like cars, each gun that you own must be licensed. And, like cars, upon transfer, the registration is changed and the new owner must show that he or she is legally able to own a gun, i.e., that the new owner has a valid gun owner's license. Don't come at me about a gun registry and the federales coming for your guns. There are over 300 million guns in this country. We have neither the time, ability, nor inclination to round up guns. Also, this idea that guns are a bulwark against governmental tyranny is sill when you consider that the government has drones that can literally bury you. Further, I want law enforcement to know the size of your armory if they have to have a chat with you. Law enforcement wants that too.

Third, like cars, gun owners will have to obtain liability insurance for each gun that they own. Should a gun injure someone, the insurance company will compensate the victim. Insurance premiums on guns will help regulate the safety of the gun marketplace. You want to own an M4? Fine. Your premiums went up. No trigger locks? No gun safe? Cool. Pay the insurance company. You want to own 10 guns of all sorts. Great! Pay up.

Politically, this proposal could be a winner also. Think of the constituencies that would line up behind this: law enforcement, gun-control advocates, victims rights advocates, and, most importantly, insurance companies. Think like an insurance company: you mean, all at once, we have an entirely new line of business? Over 300 million guns and each requires liability insurance and underwriting? Yes, please!

Of course, not all will comply with the law. What else is new? Not all comply with the scant laws that we have on the books. And sensible gun ownership will not happen overnight and there will be some who will never be responsible gun owners. But this is a good start. And after decades of enforcement, perhaps we can reduce the level of gun violence in this country.

New Book

noreply@blogger.com (Michael Smith) — Tue, 14 Feb 2017 18:51:00 +0000

Author: "Ok, so here's the idea for the book: Russian cyber spies hack one political party and collude with the other political party to get their guy elected. Why? Because the Russians have dirt on the guy and think they can control him, but not his political opponent. Meanwhile, the Russians have developed a mole who, get this, used to be a Lieutenant General in the Army. He works his way to become National Security Director to the new President. But he's just the obvious mole. Just when some in the FBI are about to find out who the true mole is, the NSD is fired. The Russians deploy spy ships just 70 miles off the East Coast of the US. In the meantime, the Russians deploy a new cruise missile in violation of a treat, which they can do because they know the guy they helped get elected won't do anything . . . "

Publisher: "I'm going to have to stop you right there, Mr. Clancy. There's no way anyone would believe that."

The Ninth Circuit and Trump's Muslim Ban

noreply@blogger.com (Michael Smith) — Fri, 10 Feb 2017 13:58:00 +0000

I read the 9th Circuit's decision on Trump's Executive Order so you don't have to. First, everyone should just tap the brakes just a bit. This was an appeal of the granting of a temporary restraining order (which court treated as a preliminary injunction). So, the parties have not really briefed the substance of the case. Second, it is very telling that the court did not even discuss the statute that grants the President the authority to issue the Executive Order. That statute is very broad and, I suspect, is broad enough to cover this Executive Order and, at the end of the day, President Trump will prevail. But, we will see. There are some very interesting and disturbing aspects of the decision, however. The government made some very dangerous arguments and engaged in very sloppy advocacy.

The scary part of the decision was the approach that the government took to the appeal. It was very Trump-ian. The first substantive argument that the DOJ made to the court was that the order was unreviewable by the court. The government argued that the President has "unreviewable authority to suspend the admission of any class of aliens." The court noted that the government was not arguing that the courts owe substantial deference to the President and the executive's orders on immigration and national security policy, which the court said was settled law. No, the government argued that the President's decisions regarding immigration policy, especially when motivated by national security concerns, are unreviewable by the courts, even if those decisions violate the Constitution.

This is stunning. This is not the sign of an imperial Presidency; this is the sign of an emperor.

The court was flabbergasted by the argument. It noted that there is no precedent anywhere for that argument and that the government could cite none. The court stated that the government's position, if accepted, would destroy the foundations of our republic. And the court is correct. Yet, this is what the government under Trump seeks to accomplish.

This decision is necessarily limited as there was a very short evidentiary hearing and the scheduling of hearings and briefings was very time limited. However the advocacy by the government was surprisingly shoddy. For example, there is one sure fire way to really piss off an appellate court: leave out portions of a citation so that it appears to support a position that it does not support. Yet that is exactly what the government did in this case. This is also stunning. This kind of advocacy gets you thrown out of moot court in law school.

Another example comes from the briefing materials or lack thereof provided to the court. Instead of providing evidence that the ban in the Executive Order was necessary, the government, as noted above, argued that the court could not review it. In furtherance of that argument, the government argued that courts are inadequate to review these orders because the courts, unlike the President, do not have "access to classified information about the threat posed by terrorist organizations in particular nations, the efforts of those organizations to infiltrate the United States, or the gaps in the vetting process." To which the court said, bring it. It said the courts have long been able to review classified material and evidence; there are statutes and regulations that have been in place for years that permit the government to present the court with evidence that is classified in furtherance of its arguments. So, the court said, if you, government, have the evidence, bring it.

Now, I'm sure that the court knows that the government knows that the courts can safely review sensitive material. And I'm relatively certain that the government is aware of this, but maybe not. What was left unsaid by the court was that if the government had had evidence to support the ban, it would have provided it. But it doesn't have that evidence.

And I think we all know that that is true.

There you have it. But just remember: this case is just like that Trump presidency; we're just getting started.

Own It

noreply@blogger.com (Michael Smith) — Sat, 08 Oct 2016 18:01:00 +0000

In case you missed it, the Donald was caught on video on a hot mic bragging about how he wanted to sleep with a married woman and how he gets away with sexually assaulting women. He said it much more crudely than that, but this is a family paper. You can find the video, well, everywhere.

Now many Republicans are withdrawing their endorsement of Trump and calling for him to step down. Screw you, all of you. This is your nominee. You elected him. Not only that, but it wasn't even close.

Trump opened his campaign by saying Mexicans are rapists. Shortly thereafter he proposed banning all Muslims from immigrating to the US. He proposed a deportation force to round up and deport all undocumented aliens. He implied that Megyn Kelly was unfair to him because she was menstruating. He repeatedly hurled insults at his political opponents that were unworthy of a third-grader (I know. I have a third-grader). He promoted stupid conspiracy theories and insulted his opponents parents and wives. He showed his racism by saying that an American judge could not be fair to him because he is of Mexican heritage. He has embraced the support of the KKK and the alt-right. He showed himself to be extremely ignorant, uninformed, and entirely uninterested in becoming educated or informed. And he lied on the average of every one for every two minutes of speaking; and that is not hyperbole. That's what he did in the first debate with Clinton.

And he started his political life by continuing the birtherism against President Obama, which even Republicans have called racist B.S.

And all of these weren't bugs; they were features.

And he won 41 out of 50 primaries or caucuses. He won more than two times the number of votes than his nearest competitor. And that was against a field of 16 at some point.

And now you want to pull your endorsement and want him to drop out. No. First of all because calls for him to drop out are bull. You, and any election lawyer knows, he can't be dropped from the ticket. It's far too late. Ballots have been set. Absentee ballots have been mailed out. Hell, early voting has started and many have already voted, including President Obama. So, legally, you know he can't be dropped.

But second, and most important, you can't unendorse him because you were fine with everything he had done previously. His "picadillos" were what endeared him to you. You were fine with a PRESIDENT that was a xenophobe, a misogynist, a bigot, a racist, an unapologetic liar with the temperment of a third-grader with ADHD. Again, not hyperbole. This is what nearly the entire GOP wanted to become President.

No. You have to own this. And Democrats should run ad after ad of you praising this misanthrope. You should be forced to carry this to your grave; the one that you dug yourself.

Yes. There IS Crying In Baseball.

noreply@blogger.com (Michael Smith) — Tue, 27 Sep 2016 16:26:00 +0000

Late Sunday morning, Jose Fernandez, the 23-year-old phenomenal pitcher for the Marlins was killed in a boating accident. The 30-foot cigar boat was apparently going at a high rate of speed and hit some rocks and flew several feet in the air and capsized, killing Fernandez and two others. Just days before he had tweeted out a picture of his girlfriend; they were expected their first child.

Fernandez's story is amazing. He was Cuban. He spent time in a Cuban prison for being a dissident. When he successfully defected, he saved his mother from drowning during the journey.

He was the best young pitcher in baseball and it was not really close. In 2013, he was the NL Rookie of the year, an All Star, and came in third in Cy Young voting. He had Tommy John surgery in 2014, so he was limited to a total of 19 starts during those two years. This year he returned to form and was named an All Star. In games he started at home, over his career, Fernandez was 33-5. And he did so on a team that lost 100 games in his first year and have not yet finished over .500 or higher than third in its division.

Not only was he the best, he may have been the person in the majors that loved playing baseball the most (although Adrian Beltre may have something to say about that). He played loose and with pure joy. His face lit up at any good turn. It made you happy to watch him be happy.

The Marlins cancelled their game with Atlanta on Sunday. The entire squad was stunned and unbelievably saddened. They were shocked that a guy that they loved and loved playing with would no longer be playing the game he loved.

The team announced that were retiring Fernandez's number 16. In tribute, the team painted that number on the back of the mound. They held a short ceremony on the mound before the game. Every Marlin wore Fernandez's jersey.

The lead off hitter, Dee Gordon, took the first pitch as a right handed batter, in tribute to Fernandez, who was a righty. He then switch to left side and two pitches later, this happened:

Yes. There IS crying in baseball.

Vin

noreply@blogger.com (Michael Smith) — Mon, 26 Sep 2016 23:56:00 +0000

In 1862, during the Civil War, Connie Mack was born. He became the long time manager of the Philadelphia Athletics. He was still managing the A's when Vin Scully broadcast his first game for the then Brooklyn Dodgers. Baseball is great for many reasons, but one of them is its connection through the ages. Another is when they have those times that had to be scripted but aren't. Like these or these. Or the last call of Vin Scully.

Scully has been the broadcaster for the Dodgers for 67 years, the longest ever for a broadcaster and a team. Mickey Mantle made his debut in an exhibition game against the Dodgers. Scully had the call. Bryce Harper, a player many compare to Mantle, made his debut on August 28 2012. Scully had the call. Scully called Sandy Kofax's perfect game against the Cubs. He called Hank Aaron's 715th home run to break Babe Ruth's record. Scully called Buckner's between the legs error that lost the Red Sox the World Series. He also called Kurt Gibson's game winning home run, on crippled legs, in the World Series against the A's. He has been at or on nearly every significant aspect of baseball for nearly 70 years.

Scully loves the game; always has. In 2000, he was having a drink at a bar and an umpire saw him. Scully bought him a drink and they had a talk. Scully knew the ump; he knew all the umpires like he knew all of the players, managers, executives, and coaches. Scully never shows up the umpires. He views them as part of the game. They do the best they can in a nearly impossible job, Scully understands. And he gives them their props when he can. Scully discussed his philosophy with this umpire. The next day, the umpire convinced his crew to salute Scully after the lineups were exchanged. Scully rose and saluted them back. Umpires have been doing this to Scully since then. They don't do this for any other person, much less any other broadcaster.

Scully broadcast his last game last Sunday. It was all about honoring Scully. But what happened in the game was magical. The game went to extra innings. And the Dodgers won it on a walk-off home run. Scully had the call:

Baseball is magic.

"I Am Not A Crook"

noreply@blogger.com (Michael Smith) — Mon, 15 Aug 2016 13:28:00 +0000

Hillary Clinton, this past week, released her income tax return for the last year. She has done this every year for over 30 years. She did so this year as is custom for Presidential candidates and sitting Presidents to do, a custom that started in 1976. Donald Trump has not released his taxes. We all may speculate as to why he hasn't (no, it's not because he's under audit: releasing his tax returns has no affect on his audit; after all, the IRS already knows what he would release): perhaps he is not as wealthy as he claims; perhaps he is heavily indebted to foreign banks or oligarchs; perhaps he doesn't actually pay taxes. In any event, he hasn't released them and he really needs to.

You may be saying, "What's the big deal? Trump is getting beat like a drum and it looks like the solo is going to last longer than John Bonham playing Over The Top." It is important to our democracy and I'll tell you why. It is an interesting story and it involves our favorite sociopath President, Richard Milhouse Nixon.

You may remember this little piece from a press conference in November, 1973:

I remember that sequence but I did not remember the context. I had always thought that that answer was in response to some question about Watergate. It wasn't. It was about Tricky Dick's taxes. The tax scandal, however, was eclipsed by the enormity and gravity of the Watergate scandal.

The whole brouhaha began in 1969 when, in July of that year, Congress repealed part of the tax code that permitted presidents to take a very large tax deduction in return for donating their presidential papers to a public or nonprofit archive.

In his 1969 tax return Nixon claimed that he had donated over 1,000 boxes of his papers to the National Archive in March, 1969. Nixon claimed a tax deduction of $500,000 for that donation. This was first reported by the Washington Post in June, 1973 and it was confirmed by Nixon's tax lawyer. This raised huge questions by reporters. They could do the math: the amount of the deduction would likely wipe out any taxes due from Nixon for years. Reporters began demanding the release of Nixon's tax returns. The Nixon administration stonewalled for months.

Then along came Jack White (no, not that Jack White). White was a reporter for the Providence (R.I.) Journal-Bulletin. He usually covered local politics and high-society events. In October, 1973, however, a source provided him with evidence that Nixon paid taxes of only $792.8 in 1970 and only $878.03 in 1971. That's the equivalent of the taxes due for a family of three that earned between $7,500 and $8,500 for those years. Nixon had earned in excess of $400,000 for those years.

The clamour for the release of his taxes became overwhelming. Eventually, a few weeks after his "I am not a crook" comment, Nixon released his returns to the Joint Committee on Internal Revenue Taxation (JCIRT) and asked that they review the returns and promised to pay any past due taxes. That promise would cost him half of his net worth.

The JCIRT found, in April, 1974, that Nixon owed over $475,000 in back taxes due, in large part, to the deduction he took for the donation of his papers. It turned out that the deed of gift of his papers was dated March, 1969, but it wasn't signed or delivered to the National Archives until April, 1970, nine months after the tax deduction was eliminated. Well, deeds of gift are not effective until they are signed and delivered. Moreover, the deed of gift was signed, not by Nixon, but by the deputy counsel to the President who was not authorized to sign the deed of gift.

While the JCIRT did not find negligence or malfeasance on the part of Nixon, the public concluded that indeed their president was a crook. In the month after the JCIRT report was issued, Jack White was awarded the Pulitzer Prize for his reporting on Nixon's taxes. Nixon's tax scandal was so large that the Chair of the JCIRT, Wilbur Mills, said that when analysis of Nixon's taxes from 1969-1972 was completed, Nixon would surely resign. In August, 1974, Nixon resigned not because of his taxes, but because of Watergate.

In any other presidency, a tax scandal like this would cause a resignation. This is why we need to see a president's tax returns and to see presidential candidates' tax returns. The American public needs to know that their President is not a crook.