No, not “traitors”

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Having despaired for years about the unwillingness of the mass media to call out the Banana Republicans for their extremism and disregard of Constitutional norms, I’m happy to see the New York Daily News reacting strongly against the Logan Act violation by Tom Cotton and 46 other Republican senators.

 

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But the word “traitors” is simply wrong. A “traitor” is someone who commits “treason.” Treason is the one crime defined in the Constitution, precisely to avoid what had been the English habit of stretching the meaning of the word to encompass all sorts of political dissent:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.

Note that the often-misquoted “aid and comfort” clause doesn’t constitute an independent definition of “treason.” The crime is “making war on the United States” or “adhering to their enemies.” “Aid and comfort” clarifies the meaning of “adhering”: merely sympathizing with an enemy doesn’t constitute “treason” unless there is what current law calls “material assistance.” That’s clarified further by the next sentence, requiring eyewitness proof of an “overt act.”

You can think, as I do, that the Senators’ letter was wrong, foolish, and even unpatriotic in its effects; you can think that it helped foreign powers hostile to the United States by weakening American diplomacy and making our government look frivolous to the rest of the world. But even if you think – contrary to any evidence I’m aware of – that Cotton & Co. were trying to damage the United States as well as actually damaging the United States – that still wouldn’t amount to “treason” in the Constitutional sense of that term. An “enemy” is the other party to a war (as the Declaration of Independence says, we hold all of mankind “enemies in war, in peace friends”). Arguably we are currently at war with al-Qaeda and with ISIS, and perhaps with the Transnational Criminal Organizations on the Treasury’s asset-control list; with the rest of the world (and yes, that includes Russian and China and Cuba and North Korea and Iran) we are currently at peace.

There’s a good case that the Cliven Bundy crowd was committing “treason” when it pointed loaded weapons at U.S. government employees to prevent them from carrying out their lawful duties. But other than that sort of civil-war activity, or helping the designated transnational criminal and terrorist groups, it’s not actually possible today for an American citizen to commit the crime of treason, for lack of “enemies” to adhere to. Edward Snowden, for example, whatever you think of his actions, did not commit the crime of treason. (Espionage is a different matter.)

So go ahead and abuse those Republican senators – including the three currently seeking to occupy the Presidency whose lawful powers they have done their best to weaken – as much as you like. Point out that their actions actually weakened U.S. bargaining power vis-a-vis Iran. Agree with Les Gelb’s conclusion that “Congressional Republicans hate President Obama more than they love America” and with Fred Kaplan that the GOP has “revealed itself as utterly unsuited for national leadership.” Demand, if you please, that the Twoscore and Seven Clowns be prosecuted under the Logan Act, whose (probably unconstitutional) terms their letter clearly violated:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

But please don’t call what they did “treason.” For that crime, they lacked the opportunity,  the intention, and the guts.

 

 

The Harold watch

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Apple has a fancy new watch, which can be customized to cost $10,000 if one is so inclined. I have a cheaper model. It costs about $2,500. It also comes with rain protection, night illumination, a radio, and a small but useful storage.compartment.

Continue Reading…

Non sequitur

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The American Historical Association, along with a group of historians of the family, has submitted an amicus brief to the Supreme Court on the marriage-equality cases. Naturally, they’re for it. So am I. And – since I’m not an historian – I learned a good deal from the material presented in the brief, which is admirably well-written.

So why does it make me uncomfortable?

For one thing, the inclusion of the AHA on the brief strikes me as odd. Not all historians agree with the arguments it makes: I note for example, that Mary Ann Glendon, one of whose works is cited to good effect, is not a signatory. If there remains substantial professional controversy on some disputed point, it seems to me that a learned society should not, as an institution, weigh in, even on the side of the dispute that commands a solid majority within the discipline. Historians are entitled to views on the role of the family in American history, but the discipline of history does not have any such view. There will of course be cases where something that is disputed politically is no longer in dispute within a discipline, and in that case it may be appropriate for a disciplinary organization to speak with the voice of the entire discipline. But I take that not to be the current case.

The first half of the brief is devoted to challenging the argument, accepted by the Sixth Circuit, that procreation is the fundamental purpose of the family, and that it is therefore rational for a state to deny family status to non-procreative pairings. Against that claim, the historians present a rich array of other purposes served by the family and by family law. In doing so, it seems to me that they are acting as “friends of the court” in the proper sense: bringing to the attention of the court facts and analysis relevant to the case it has under consideration. And – this is something I don’t know – perhaps the limited assertion that family and family law have always served multiple purposes is in fact uncontroversial within the discipline of history, and therefore appropriate for the AHA to opine about officially. But surely the question of the primary social “meaning” of an institution is hermaneutical rather than empirical. Even if all historians somehow agreed on it, it’s not obvious to me why their combined view ought to be binding on the rest of us. When the brief says:

Based on their historical perspective, amici support Petitioners’ position that the important and varied interests that states have in marriage warrant inclusion of same-sex couples within that institution.

that seems to me an assertion well beyond the scope of the historian’s academic authority. (Try a simple thought-experiment: If that proposition, in the form of a question, were included in a Ph.D. qualifying examination, would it have a “wrong” answer that ought to disqualify the student from advancement to candidacy?) Whether something is “warranted” is not an historical question, but a political or legal one. I think it would have been better tactics for the historians to stick to their historical knitting, and not draw legal or policy conclusions. What I’m sure of is that the AHA should not have implied that history, as a discipline, has the capacity to draw those conclusions.

The second half of the brief reviews the history of laws against mixed-race pairings, in order to show that ideas about what constitutes legal “marriage” have not been either fixed or immune from judicial intervention. Again, that material seems to me completely convincing, and no doubt it damages, by analogy, the “traditionalist” case. And again, I’m happy to believe that there isn’t another side to that story that would count as competently written history.

But then the brief continues:

Throughout American history, the rights to marry and to choose one’s spouse have been profound exercises of the individual liberty central to the American polity and way of life. The past century has witnessed societal and constitutional emphasis on freedom in choice of marital partner and freedom from racial and gender-based restrictions in marriage. Recognizing the right of individuals of the same sex to marry is the next step in this historical trend.

If all that means is that the historians predict, based on observed patterns of regularity, that the Court and the rest of the political process will recognize marriage equality, there are two logical responses:

1. Sez who?
2. So what?

Historians, not being prophets, have no professional license to predict the future. Moreover, even if the prediction were correct, it’s hard to see what weight the Court should give it. The Court isn’t looking for a prediction about its decision, it’s looking for advice relevant to that decision.

If, instead, that passage means that recognition of same-sex marriage is the next logical step in the progression, then the historians are again acting ultra vires. No doubt there are substantial numbers of competent historians who regard SSM as a bad idea. That being the case, the AHA has no business pretending otherwise.

Finally, the document concludes (in a section headed, conveniently, “Conclusion”)

The judgment of the court of appeals should be reversed.

To which – offered as the position of the American Historical Society – I can only say: NOOOOOOOOOOOOOOOO! Maybe it should. I think it should. I hope it is. But those are political and legal opinions, not historical ones.

For scholars to exert the sort of authority they ought to exert in public deliberation, they need to distinguish rigorously between matters on which their scholarly knowledge gives them legitimate authority and matters on which their opinion is no better than that of any other voter. That – far more than issuing pseudo-official views on policy questions – is among the legitimate roles of scholarly organizations such as the AHA. I’m sorry that organization didn’t do a very good job this time. I only wish I thought that there were in fact an “arc of history” bent in some particular direction that would justify making a prediction based on my hope that AHA will do better next time. But there isn’t.

Violent Crime and Imprisonment

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Dana Goldstein at the Marshall Project has created a useful interactive graph showing who is in prison and how we might build further on the de-incarceration trend which started five years ago. Goldstein also echoes a point that Mark Kleiman and I have made here many times: It’s a myth that prisons are full of non-violent drug offenders.

The chart below presents Bureau of Justice Statistics data on state prisons, which is where is over 90% of U.S. prisoners reside. Violent crime has consistently been the leading cause of imprisonment, and most state prison inmates are serving time for a violent offense. Importantly, the data reflect current controlling offense only and thus understate the proportion of prisoners who engage in violence: Many inmates currently serving time for a non-violent offense have prior convictions for violent crimes.

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These data make de-incarceration more complex in at least two ways , which is perhaps why so many people don’t want to believe them.

First, the noble ongoing efforts to reduce the size of the prison population should take substantial care to protect public safety as violent offenders are released. Mass dumping of violent offenders into communities with no monitoring and no services would be dangerous for them, for their families, and for their neighbors. Further, if it leads to released prisoners committing high-profile acts of violence, it could also choke off political support for continued de-incarceration.

Second, even assuming the best of all policy worlds in which reducing incarceration continues to be a priority, the U.S. is probably too violent of a society to ever shrink its prison population to a Western European level. The proportion of the U.S. population that is serving time for violent crimes is larger than the proportion of the Western European population that is serving time for all offenses combined.

The GOP’s political incompetence in Selma

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I share Mark’s admiration for the president’s speech for the ages in Selma. It was written for the history books commemorating what happened fifty years ago, and for the history books yet to be written about President Obama himself. We will soon miss his eloquence, not to mention his no-drama integrity.

The contrast yesterday in Selma between the president’s largeness of spirit and Republicans’ small response was fairly astonishing. Two presidents Bush attended, to their credit. Some senior Republican lawmakers scrambled to attend once their pending absence became embarrassing news. But where was John Boehner? Where was Mitch McConnell? Where was Paul Ryan? Where were the main Republican 2016 presidential candidates? Where was Mitt Romney, whose father did so much to advance civil rights?

This was horrid optics bordering on the politically incompetent. A party trying to reassure moderates that it’s more than a party of cranky old conservative white people might have used this occasion to mark its own civil rights heroes who helped pass landmark civil rights legislation. The Republican Party of 1960 actively competed for black votes. Its civil rights wing included liberals who would later become Democrats. This wing also included more traditional conservatives on other matters.

That was a long time ago. There is now the tawdry effort to reverse-engineer and hinder the Obama ’08 campaign’s success in turning out African-American and Latino voters. In battleground states where the GOP controls the statehouse, Republicans seem conspicuously more interested in hindering early minority voting practices than in actively engaging minority communities. Ninety percent of poor adults being denied ACA’s Medicaid benefits live in Texas, Florida, Georgia, South Carolina, and a few other southern states.

Republicans’ awkward handling of an event sacred to African-Americans sent an unavoidable message: These are not our people. It strains credulity to imagine Republicans would have offered up same bumbling and belated response if African-American voters were key constituents in Republican primaries or in Republican fundraising. More Republican candidates participated in Sheldon Adelson’s various personal primaries than chose to make their appearance yesterday in Selma.

Barry Goldwater, Richard Nixon, Ronald Reagan, and others damaged the soul of the Republican Party to court race-conservative whites.  There’s no denying that the southern strategy and its successors helped win big elections. Such discomfort with a widening circle of “others” still works for many in the congressional GOP, especially in non-presidential years. On a national level, it is increasingly out of step with a changing society.

Love of country

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You want patriotism?
Got some red-hot patriotism right here.

On the 50th anniversary of the Selma march for voting rights, Barack Obama gives one of the all-time great patriotic orations.

“That’s what it means when we say that America is exceptional.”


 

Take your pick, friends. Stand with the President on the side of  John Lewis, or stand with the Republicans on the Supreme Court  and in Congress on the side of Sheriff  Clark. That (among other things) is what the election of 2016 is about.

 

Two sad stories, not just one

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Jon Ronson tells the story of “Hank,” who joked about “a really big dongle” and “forking someone’s repo” at a tech conference.

Another conference attendee was offended and complained to the conference organizers, including a photo of “Hank.” As a result, “Hank” lost his job. Ronson thinks this is a sad story, and I agree. So does Christina Hoff Summers, who Tweets:

Man tells innocuous joke to friend at conference. Overheard by aggrieved woman. What happened next is frightening.

And, yes, the story is pretty much as you might guess. In Ronson’s telling, the complainant is a “men’s movement” caricature of the sort of woman who uses “being offended” as a weapon and has no remorse about wrecking someone’s life for an off-color joke.

But – also in Ronson’s telling – the complainant, named Adria Richards, is then the victim of an internet lynch mob. She is subjected not only to insults but to physical threats. She, too, loses her job: the on-line mob takes down her employer’s server, and threatens to keep it down unless she is fired; the employer (not named by Ronson) complies.

And, unlike Hank, who quickly finds a new job (at a place that, conveniently for him, doesn’t employ any women), the complainant is still out of a job, and still subject to digital harassment, two years later.

Ronson skilfully uses language and selects facts to make “Hank” sound like an innocent victim, and Adria Richards like someone who was last seen knitting next to the guillotine. Naturally, Richards (as relayed by Melissa McEwan) tells the story somewhat differently: among other things, she asserts that she protested against the firing of “Hank.” She also, (quite plausibly) accuses Ronson of practicing the bait-and-switch characteristic of low-rent journalism, setting someone up for character assassination by pretending to provide a sympathetic ear.
But put that aside for the moment.

Let’s assume arguendo that Adria Richards is precisely the sort of unsympathetic character Ronson portrays. (Of course, it’s also possible that being fired and then harassed for two years might have somewhat depleted her stock of empathy.) She is also – again, by Ronson’s account – the victim of a crime, and someone who lost a great deal more for complaining about the rude jokes told by “Hank” than Hank did for telling them. But somehow Ronson and Sommers sympathize only with “Hank.” Like millions of battered women and rape victims before her, apparently Adria Richards was asking for it. How is it possible that Ronson, Sommers, and editors of Esquire, and the publishers of Ronson’s book all missed a point which was obvious even to me, based entirely on Ronson’s own account?

After all, I’m squarely in Ronson’s target audience. I’ve been the victim of enough “STFU-you-privileged-white-male” treatment to fully sympathize with someone in the position of “Hank.” My natural response to pompous unsolicited moral advice is a rude gesture; I’ve been known to respond to the two hours of dim-witted “sexual harassment” training the University of California imposes on me every year by asserting I am already expert at sexual harassment and require no further training.

But how morally challenged do you have to be not to sympathize with Adria Richards, the victim not merely of organized intolerance but of a criminal conspiracy involving extortionate threats?

There’s a broader point here, too “Hank” and Richards both lost their jobs, though neither had done anything anywhere close to violating the law, or even raised serious questions about their job performance. That was possible because of the doctrine of “employment at will,” which makes puts every (non-union, non-civil-service, untenured) employee at the complete professional mercy of his or her employer. I think professors and civil servants are somewhat over-protected against being fired for incompetence or shirking. But it seems obvious that the rest of the population is grossly under-protected against the whims – or, in Adria Richards’s case, the mere cowardice – of the kind of people who wind up working in “human resources” departments.

Weekend Film Recommendation: 20,000 Days on Earth

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“Writers are awful to people who ask us where we get our ideas from,” said Neil Gaiman. “We get mean, in a writer-y way, which means we make fun of you for asking.” Creativity will always inspire curiosity, especially among those of us who lack it. We want it to be laid bare, explained, deconstructed. We who lack a true sense of imagination sometimes feel as though there’s a manual out there, possessed by all the geniuses who manage to spin beauty out of nothingness, the contents of which provide instructions on how to create art. Perhaps this curiosity is precisely why there’s an inexhaustible interest in artists explaining their method to us, like in this week’s movie recommendation, 20,000 Days on Earth. Continue Reading…

Hey suburban parents—let’s stop spending money at Abercrombie and Fitch

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Not long ago, I followed my daughter to Abercrombie and Fitch in a suburban mall.  I and a legion of other middle-aged parents were fairly stunned by the throbbing background music and frenetic atmosphere. I was also fairly stunned by the high price of the clothes.

Abercrombie and Fitch is now in court because the company declined to hire an otherwise qualified young woman because she wears a Hijab. Apparently she didn’t fit the company’s preferred look.

Shabby treatment of this Muslim young woman is just the latest infraction. Abercrombie and Fitch has attracted controversy for its refusal to sell women’s pants above size 10, its icky soft-core advertising, its apparent race/ethnic bias in recruitment, its mistreatment of an employee whose prosthetic arm ran afoul of the company’s “look” policy, and—not least–its CEO’s casual description of its cool-kid marketing philosophy:

In every school there are the cool and popular kids, and then there are the not-so-cool kids… We go after the cool kids. We go after the attractive all-American kid with a great attitude and a lot of friends. A lot of people don’t belong [in our clothes], and they can’t belong. Are we exclusionary? Absolutely.

To paraphrase Barry Goldwater, every attractive all-American kid should deliver this guy a swift kick in the pants.

Our kids, particularly our daughters, are forced in so many ways to contend with a predatory commercial culture that reinforces the most crummy and stupid aspects of adolescent life.

As adults, this is partly our fault. We bankroll many purchases in stores that can’t be bothered to sell a pair of pants to somebody’s wonderful 16-year-old girl who wears plus-size pants.

I have no idea whether Abercrombie’s various policies violate various employment laws. I know that this company that doesn’t deserve my money. If every parent did the same, maybe the people hawking stuff to our kids would at least pretend to some basic decency.