Quotulatiousness

June 23, 2024

California has “a governing class that wants you to give them power, then shut up and go away”

Filed under: Government, Law, Liberty, Media, Politics, USA — Tags: , , , , — Nicholas @ 05:00

Chris Bray illustrates some of the many ways that California’s elected politicians are working to ensure that mere voters won’t interrupt their urgent and necessary work:

The Taxpayer Protection Act, a proposed referendum that got enough signatures to qualify for the November ballot, would have required voter approval for all new state and local taxes. State election officials agreed that it met the qualification threshold, and planned to put it before the voters. Democratic officeholders sued, with considerable support from public employee unions and interest groups, and the California Supreme Court ruled this week that the measure may not be placed on the ballot — because it improperly proposes to revise the state constitution, rather than merely amending it. You can watch them try to parse that distinction here, for seventy murky pages. You can change the state constitution through the referendum process, but you can’t change the state constitution through the referendum process. See, totally clear.

At the same time, California Governor Patrick Bateman is telling the organizers of a ballot measure that would increase penalties for drug and theft crimes — after a decade of sharply reduced penalties — that he’ll punish them by blocking criminal justice reform measures in the legislature unless they pull their measure from the ballot. The intended message is a very clear threat: If you insist on your ballot measure and lose at the polls, you’ll be punished with a complete blockade on your agenda through legislative means, for as long as we can manage it.

And a parental rights proposition that aimed for a place on the November ballot — falling short in its efforts to gather enough signatures — ran into a wall when the attorney general’s office assigned it a misleading label that would have described it to voters as a repressive measure that was intended to hurt children.

So a Progressive reform, the great 20th-century transition to direct democracy, is running into a progressive wall of resistance in the 21st century. California Democrats are fighting to limit the likelihood that voters will interfere with their agenda.

People outside California often shrug at the decline of the state, because Californians are just getting what they voted for. But that view misses a bunch of strangeness and ambiguity in a place that has tended to put Democrats in office, then limit their efforts with an ideologically inconsistent hodgepodge of conservative and libertarian ballot measures. The governor and the state legislature just sued to prevent their own voters, the people who sent them to public office, from voting on the new taxes they create. Democrats against direct democracy — a governing class that wants you to give them power, then shut up and go away.

This is not merely a California problem. I wrote a few days ago about the scumbag Robert Kagan and his idiotic book warning that America is facing a rebellion. Here’s the back cover of the book, and I’ve used sophisticated media software to circle the important part:

“The problem is and has always been the people and their beliefs.” This is what the American governing class believes, now. See also the pro-democracy warrior Tom Nichols and his recurring theme about the repulsive people of an ignorant country. We need to protect democracy by getting all the trash that makes up the population to somehow go away and stop bothering their wise and benevolent betters.

The great point of cognitive slippage in American governance has been the degree to which Americans have been willing to vote for officeholders whose agendas they then try to block through lawsuits, referendums, and popular resistance. We’ve voted for shit sandwich over and over again, then declined to eat the whole sandwich. The governing class is now announcing that we’re no longer allowed to refuse the complete meal. You may not have a ballot measure on that.

In the near term, and in the medium term, that pivot leads to greater friction and accelerated decline. In the longer term, preventing people from limiting the aggressive failure of the governing class can only make that failure more apparent. Geological faults that have a lot of small movements release tension in a series of minor earthquakes; faults that can’t release tension through small movements eventually have one big one. We’ll eventually recognize the California Supreme Court’s decision this week as a Pyrrhic victory. There will be more of these, in a political system of increasing brittleness.

June 18, 2024

US “birthright citizenship”

Filed under: Government, History, Law, USA — Tags: , , , — Nicholas @ 03:00

Theophilus Chilton argues against the legality of “birthright citizenship”:

“American Flag” by JeepersMedia is licensed under CC BY 2.0

One of the benefits of Donald Trump’s involvement in politics over the last ten years has been that it opened up a robust national discussion about an issue that up until recently had been largely ignored by the political class. This discussion is about so-called “birthright citizenship”, the idea that whenever a foreign national (regardless of legal status and with a very few exceptions) has a child on American soil, this child automatically becomes an American citizen from birth. This approach to citizenship has been the de facto (though not de jure) approach to the issue of “anchor babies”, the children of illegal aliens who come to the United States so that they can have their children here, thus allowing the parents to remain as well, usually helping themselves to generous American benefit monies.

Defenders of unrestricted birthright citizenship – primarily found among liberals, establishment GOP types, and the more uninformed types of libertarians – adamantly argue from the 14th amendment’s Citizenship Clause that birthright citizenship is not only legal, but is in fact constitutionally protected, and is what the 14th amendment has meant all along. They often try to buttress their arguments by appealing to English common law with its historical provisions for birthright citizenship. However, is this sort of “swim a river, fill our quiver” approach really what the 14th amendment meant? Is it really what English common law, which forms the basis for much of our own law and constitutional interpretation, historically upheld? The answer to these questions is, “No”. Let’s look at some of the history behind this issue.

The crux about which the discussion revolves is the Citizenship Clause found in the 14th amendment, Section 1,

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

More specifically, what is at issue is the phrase, “and subject to the jurisdiction thereof”. Clearly, the clause was not intended to convey American citizenship to an unlimited pool of children born to aliens on American soil. If this had been the case, then the phrase under discussion would not have been included. Obviously, some limits were intended, those circumscribed by the intent of being “subject to the jurisdiction thereof”.

So what were these limits? Typically, it will be pointed out that the limits due to this jurisdictional issue were that citizenship was not being conveyed to children born of ambassadors and others aliens employed by their foreign governments, nor was it being conveyed to members of various Indian tribes which exercised sovereign powers within their own territories (this latter was rescinded by an act of 1924 which granted Indian tribes full American citizenship). Were these the only restrictions on birthright citizenship intended by the author and debaters of the 14th amendment?

No, actually. Let’s understand what the original intention of the 14th amendment was, which was to grant American citizenship to former black slaves and their children, and to prevent these newly freed citizens from being denied citizenship rights by certain of the southern states. That’s it. This was made clear by Sen. Jacob Howard, who authored the amendment in 1866, who clearly provided the intent for this section of the amendment,

    Every person born within the limits of the United States, and subject to their jurisdiction, is, by virtue of natural law and national law, a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great issue in the jurisprudence and legislation of this country.

Clearly, other classes of foreign citizens were intended besides the children of ambassadors and other diplomatic personnel. Indeed, Howard’s statement appears to be quite all-encompassing – if taken at face value, it would appear that he did not even intend the 14th amendment to grant citizenship to the children of foreign nationals here legally, much less to those here illegally.

June 17, 2024

For want of a security clearance, the (potential) traitors escaped scot-free

Filed under: Bureaucracy, Cancon, Government, Law, Media, Politics — Tags: , , , , , , , , — Nicholas @ 05:00

In the free-to-cheapskates section of this week’s Dispatch from The Line, we get a summary of the state of brain-freeze in Parliament over the NSICOP (National Security and Intelligence Committee of Parliamentarians) report, that in a functioning state would have triggered much more action than it has in the dysfunctional Dominion:

The cover of the NSICOP special report on foreign interference (PDF – https://nsicop-cpsnr.ca/reports/rp-2024-06-03/special-report-foreign-interference.pdf )

The lead story this week, clearly, was the continuing fallout from the NSICOP report last week. Because of this report, even though there is much that we do not know, there are absolutely some things that are clearly established. Let’s run through some of the key points that are uncontested and draw some very modest and safe conclusions from them.

Here are facts.

  • There are multiple parliamentarians, meaning members of the House of Commons and the Senate, who have been deemed by eight of their colleagues to be engaged in activities with hostile foreign powers on either a witting or semi-witting basis.
  • The prime minister and the PMO have been aware of who these individuals are for at least a month, if not longer. That is when NSICOP filed its unredacted report to them for review, as required.

The above facts are unchallenged. Now let’s draw a few conclusions.

The phrasing of the NSICOP report, as well as both Elizabeth May’s and Jagmeet Singh’s press conferences this week, led us to believe some of these individuals are still sitting in both the House of Commons and the Senate. We acknowledge that Elizabeth May and Jagmeet Singh differ considerably on the severity of what these individuals are alleged to have done, but both seem to agree that the relevant parties, in at least some cases, remain in Parliament.

The prime minister, as the person responsible for the administrative and legal apparatus of government, could call the Clerk of the Privy Council, the Director of CSIS, the minister of public safety and others as necessary into his office today, and inform them that he would be making the names public, and that it would be the responsibility of those individuals to figure out how that could be accomplished while protecting intelligence sources and methods. At this time, there is no indication that he has done so, or has any interest in doing so.

So we got the grotesque theatre that was the House of Commons this week. The government has spent the last week and change challenging various opposition leaders to obtain security clearances so that they could view information that the prime minister has had for at least a month, and perhaps longer, even though both the Security of Information Act and the National Security and Intelligence Committee of Parliamentarians Act (depending on the auspices under which their security clearances were issued) prevents them from disclosing what they read.

And, therefore, doing anything about it. Because to remove a caucus member would be to reveal it, and if a leader has no caucus members that are implicated, there is no urgency to their reading the report.

Protecting the national security of Canada, and the democratic institution of parliament itself, is the prime minister’s job before it is anyone else’s. And the prime minister has had this information for at least a month.

It’s worth repeating that because we want you to envision something. Imagine there are three U.S. Senators accused of aiding and abetting a foreign power, and Joe Biden knew about it for a month.

When do you think impeachment proceedings would start?

Boris Johnson was unceremoniously dumped by his party for lying about throwing a party during COVID lockdowns (and we have no problem with that). Our prime minister has known that there are people currently sitting in parliament that have turned themselves into intelligence assets for hostile foreign powers for a month, and …

… the government would like you to know that it thinks Pierre Poilievre should get a security clearance so that he can read the documents.

We think Poilievre should, too. Because here’s the thing. The Security of Information Act says right there in Section 24 “No prosecution shall be commenced for an offence against this Act without the consent of the Attorney General”.

That reads to us like so: Pierre Poilievre can read those documents, release the names, and then dare Justin Trudeau to prosecute him. Indeed, anyone with the names could.

Your Line editors have raised this before on the podcast, but it bears repeating. Canada’s international reputation has taken a lot of hits lately. So imagine if you would, gentle reader, a situation where Justin Trudeau’s Attorney General signs off on having his political opponent arrested for revealing that hostile foreign powers have coerced sitting MPs into becoming intelligence assets … especially if one or more of those MPs is revealed to be a Liberal.

That’s a front page international news story. We’d look like a banana republic. Our international reputation would take decades to recover.

Spoiler: we already do look like a banana republic and our international reputation is lower than it has ever been. Trudeau isn’t a dummy: he figures that our reputation literally can’t get much worse no matter what he does, so he’s choosing to protect … someone … and what’s Poilievre going to do? He proved during the lockdowns that he’s not willing to get arrested on a matter of principle (unlike Maxime Bernier), so he’s likely to just posture endlessly until something new pops up in the silly season news rotation.

June 14, 2024

Britain’s anti-gay hate crime epidemic

Filed under: Britain, Law, Media — Tags: , , , , , , — Nicholas @ 04:00

Andrew Doyle suggests you take the recent reports of burgeoning hate crime in Britain with a fair bit of salt, because the hate crime statistics are far from trustworthy:

When things like this can be reported as “hate crimes”, and the definition depends on the reporter’s assumption of hateful intent, you’re going to see a lot more “hate crimes”.

We all know by now that the Metro is an activist publication masquerading as a newspaper. And so we ought to approach with some caution its article this week claiming that the UK has seen a surge in hate crime against gay people. There’s even a handy rainbow-coloured map which pinpoints the most homophobic locations in the country. Thankfully St Ives isn’t on the list, so I won’t have to cancel my holiday.

What are we to make of the article’s claim that there has been a 462% increase in homophobic hate crime and a 1,426% increase in transphobic hate crime since 2012? The source for these remarkable figures is the House of Commons Hate Crime Statistics report. If true, it would seem to confirm activists’ claims that we are living in an anti-LGBTQIA+ hellhole.

The truth is not so melodramatic. The supposed escalation of hate crimes in the UK can be accounted for by the way in which they are now recorded. Police actively trawl for complaints, inviting citizens to report offensive comments or any action – criminal or otherwise – that the “victim” perceives to have been motivated by prejudice. No evidence of “hate” is required for it to be recorded as such, other than the assumption of the complainant. With such methodology in place, it is inevitable that the statistics will rise.

And perhaps that’s the whole point. The police in the UK are just one of the many major institutions that has been captured by intersectional ideology. Police are regularly seen dancing at Pride parades, driving rainbow-coloured cars, and harassing gender-critical women for wrongthink. In February 2021 in Merseyside – a county that tops the Metro‘s list of homophobic hate spots – police were photographed next to a digital advertisement which read “Being offensive is an offence”. This belief-system can only be sustained by the narrative of widespread hate, and so we should not be surprised to see that police practice has been modified to ensure this outcome.

In fact, the College of Policing had made it clear that a fall in hate crime statistics would not be acceptable. Its operational guidance says that “targets that see success as reducing hate crime are not appropriate”. And by the Home Office’s own admission, “increases in police-recorded hate crime in recent years have been driven by improvements in crime recording and a better identification of what constitutes a hate crime”. In other words, there is no hate crime epidemic at all. It’s simply that the definitions have expanded.

Rather than rely on the Home Office statistics, we would be better turning to a source that hasn’t been corrupted by ideology. The Crime Survey for England and Wales hasn’t adopted the new police methods of recording, and shows that hate crime has been consistently dropping. Between 2008 and 2020, the number of hate crimes fell by 38%, and all the while records of hate crime kept by the police kept on rising. The disparity between the reality and the narrative couldn’t be more stark.

June 4, 2024

How Wall Street billionaires are reacting to the verdict against Trump

Filed under: Business, Law, Media, Politics, USA — Tags: , , , , — Nicholas @ 05:00

Under normal circumstances, you might think that Trump would find doors closed to him among the big-money folks on Wall Street after his trial ended with 34 guilty verdicts … yet the opposite is reported to be happening and his campaign is being inundated with big financial donations:

My quite strong suspicion is that Leticia James and Alvin Bragg have caused alarm by targeting business records and real estate valuations in corporate borrowing, things that everyone shares in finance, insurance, and real estate, for criminalization and destructive litigation. My bet is that capital is turning hard against lawfare, seeking to disincentivize and punish an attack on the basics of corporate business. People in business are horrified by a flamethrower of a prosecution over old business records.

So Bloomberg’s interpretation is that Wall Street is standing with Trump despite the verdict, but my bet is that Wall Street, Silicon Valley, and other business interests are turning against Democrats because of the verdict — because Democratic prosecutors in New York (and especially Manhattan), America’s financial capital, are doing things like turning seven year-old business record misdemeanors into a long list of Frankenstein felonies.

That interpretation makes capital’s support for Trump self-interested rather than morally outraged, though not over Bloomberg’s explanation of lower taxes, as people who keep business records turn against the party that bizarrely overcriminalizes the handling of business records when the target becomes politically unfashionable. If capital turns against the Democratic Party — if the ATM machine stops spitting out campaign funding — the moment becomes pretty significant, and Alvin Bragg becomes the dog who caught the car.

June 1, 2024

Guilty!34

Filed under: Law, Media, Politics, USA — Tags: , , , — Nicholas @ 03:00

The New York City jury did what the presiding judge told them to do and returned a “guilty” verdict on all charges against former US President Donald Trump. Sentencing is apparently going to take several weeks, because … reasons, I guess. eugyppius provides the German media’s gleeful response to the verdicts:

Der Spiegel‘s characteristically dignified, restrained way to present the news.

Yesterday, a Manhattan jury found former US President Donald J. Trump guilty of 34 felony charges. It is impossible to describe this highly contrived case clearly in a single paragraph, but the upshot is that hush-money paid to the porn star Stormy Daniels violated campaign spending limits, amounted to tax fraud, or constituted an attempt to unlawfully influence the 2016 election – either all of these things at once, or some mixture of them.

The naked political motivations of the prosecution are so obvious that they preempt all possible commentary. In the United States, the establishment have felt it necessary to fortify their free and open democratic elections against unpalatable outcomes by enlisting the help of the judiciary.

Because the German press are complicit in an essentially identical strategy on this side of the pond, they are thrilled – just thrilled – at Trump’s guilty verdict. Their reporting is as voluminous as it is identical, and it’s hard to keep the different think-pieces, op-eds and articles straight. This one from the Süddeutsche Zeitung is useful mainly for hitting all the common themes:

    Guilty. Criminal. From now on, these are the official trademarks of Donald J. Trump, at least for now. He is no longer just the first former US president ever to be criminally charged, and in four different cases at that. He is now the first former US president and current presidential candidate to be convicted in criminal proceedings – unanimously, at least in the first instance. Guilty 34 times over.

    Trump is a criminal! He is guilty! It feels so good to say that! Guilty guilty guilty!

    After such a judgement, a candidate for the most powerful job in the world should be politically finished. Who can imagine a convicted criminal in the White House? What’s more, Trump is theoretically facing three further and far more important trials. Under civil law, he has already had to pay hundreds of millions of dollars in fines for sexual abuse, defamation and illegally inflated assets. But this is the USA of the Trump era, so logic hardly matters …

This is a historic case! It’s hugely important! Even though we’re far from confident it will have any meaningful impact on the election which was the whole point of this farce in the first place!

It was always going to be difficult for someone as polarizing as Donald Trump to get anything remotely like a fair trial, just like poor old Senator Bedfellow in Bloom County:

Mark Steyn, who has had his own bitter experiences with the American “justice” system, on the proceedings of the NYC kangaroo court in the Trump prosecution: “[they wouldn’t] have gone to all this trouble for a fine and a suspended sentence. They want him dead.”

As everybody but the New Guinea tribesmen who ate Joe Biden’s uncle knows by now, Donald J Trump has been found “guilty on all counts” – a quintessentially American expression because, of course, the multiple-counts racket is one of the many perversions of judicial norms that have long disgraced the US courthouse.

[…]

Be that as it may, his legal reasoning would be fine if America were a land of laws, but unfortunately it’s a land of men: whether for the forty-fifth president or a “niche Canadian”, we’re in basic “Who? Whom?” territory, as the Leninists would say. After my own experience of both the New York and Washington appellate benches, I would rate the chances of Trump getting this reversed at the state level as way lower than Mr Otis’s five per cent. It’s the same in my own case: all involved know the DC Court of Appeals is merely an interlude in order to get it wafted up to the US Supreme Court. Likewise with Trump. So we’re betting the farm on John Roberts and that rock-ribbed six-three “conservative” majority on which Republicans have expended so much energy to the exclusion of every other societal lever. And, even were they minded to intervene, as I remarked on-air to Tucker a fortnight before the last so-called election, “A judges’ republic is a contradiction in terms“.

So Mr Otis’s legal arguments have very little real-world meaning in terms of November’s exercise in republican self-government. Meanwhile, back in what passes for reality in the courts of New York, the exciting bit having concluded, we are now back to the leisurely proceduralist folderol: The corrupt Judge Méchant has scheduled sentencing for July 11th. So, for viewers of English courtroom dramas on PBS, there’s none of the traditional “Take him down!”, with the guilty party being led down the steps ten minutes after the verdict to be driven away to begin his sentence. Let me see now, July 11th is, oh, a mere six weeks away, which torpor is also very familiar to me: my own verdict came down in February, but the various post-trial motions keep getting kicked down that endless road.

July 11th is also, as it happens, four days before the GOP convention is due to start in Milwaukee. So, at a time when the presidential nominee should be practising his acceptance speech in front of his bedroom mirror, he will be a thousand miles away waiting to hear whether he is to be belatedly taken down.

Thus, Judge Méchant will have once again subordinated the election calendar to the caprices of his filthy courtroom.

In theory, Trump has been convicted of a crime and could be headed to gaol. Also in theory, his term of confinement could be put on hold pending the outcome of his appeal. But they didn’t do that with Peter Navarro, did they? And it seems highly unlikely to me that they would have gone to all this trouble for a fine and a suspended sentence. They want him dead. If you don’t get that, go over to Larry Hogan’s pad and start cooing over your “respect” for “the rule of law”.

May 23, 2024

Where does a former general go to get his reputation back?

Filed under: Cancon, Law, Media, Military, Politics — Tags: , , — Nicholas @ 04:00

The National Post reports on a former Canadian senior officer launching a lawsuit in an attempt to clear his reputation after an abortive court martial brought his career to an end:

Lt.-Gen. Steven Whelan, a three-star general who was accused of sexual misconduct in what he claims was a politically motivated prosecution that was then abandoned before he was able to defend himself, is looking for his day in court.

“I didn’t get a chance to tell my side of the story,” he told me.

Whelan’s lawyer, Phillip Millar of Millars Lawyers, has just filed a bruising statement of claim with the Federal Court in Ottawa, naming a who’s who of Canada’s military establishment as defendants; a litany that makes allegations of abuse of office, negligent investigation, malicious prosecution and involvement in media leaks that destroyed Whelan’s reputation and career.

Defendants named in the lawsuit include His Majesty the King in Right of Canada (the Crown) and top brass in the Department of National Defence (DND) and Canadian Armed Forces (CAF): Jody Thomas, former deputy minister of National Defence and former national security advisor to the Prime Minister; General Wayne Eyre, chief of the defence staff; Lt.-Gen. Frances Allen, vice chief of the defence staff; and Lt.-Gen. Jennie Carignan, CAF’s chief of professional conduct and culture.

The allegations stretch all the way to the Prime Minister’s Office.

Last September, Whelan faced a court martial, accused of sexual misconduct purported to have taken place more than a decade ago.

At the trial’s outset, military prosecutors dropped the more serious allegation of improperly communicating with a female subordinate (flirting, in colloquial terms). A week later — following the testimony of the complainant and minutes before Whelan’s lawyers could cross-examine her or hear from other witnesses — prosecutors dropped the remaining charge accusing Whelan of doctoring the same subordinate’s performance evaluation in 2011, allegedly fearing she would disclose their friendly but not physical relationship to others. The court martial came to an abrupt end. Notwithstanding the technical win for Whelan, the allegations effectively sidelined the three-star general.

Casual observers, seeing just how many Canadian generals’ and admirals’ careers have run aground in scandal of one sort or another, might draw conclusions about the quality of the leadership and the deep culture of the Canadian Armed Forces at both military and political levels.

May 6, 2024

QotD: Confident cultures … unlike our modern one

Filed under: Britain, History, Law, Quotations, USA — Tags: , , , , , , — Nicholas @ 01:00

A self-confident culture, like the Victorian, can handle ambiguities. It has a healthy respect for hypocrisy, which, as I think Snoop Dogg once said, is the tribute vice pays to virtue. It’s ok with concepts like legal-but-forbidden and illegal-but-tolerated. Prostitution was the former, homosexuality the latter, and so far was it illegal-but-tolerated that feminist icon Naomi Wolff got herself into a spot of bother over it, the kind that only a feminist icon can (i.e. “the kind that even the most basic research would’ve disproven in about five minutes“). The point of the statutes isn’t so much to regulate behavior, as it is to express society’s mores.

Only in the modern period do we feel we need black-letter law for everything. And once we’ve got formal law, of course, the very next thing we do is start carving out penumbras and emanations, because we are so far from a self-confident culture that we must constantly prove to ourselves what clever, clever boys we are …

Severian, “Barely Legal”, Rotten Chestnuts, 2021-06-21.

May 3, 2024

So, what Richard Hanania is really saying is “US civil rights law is bad”

Filed under: Books, Government, Law, Media, Politics, USA — Tags: , , , , , — Nicholas @ 03:00

Scott Alexander reviews Richard Hanania’s recent book The Origins of Woke: Civil Rights Law, Corporate America, and the Triumph of Identity Politics:

The Origins Of Woke, by Richard Hanania, has an ambitious thesis. And it argues for an ambitious thesis. But the thesis it has isn’t the one it argues for.

The claimed thesis is “the cultural package of wokeness is downstream of civil rights law”. It goes pretty hard on this. For example, there’s the title, The Origins Of Woke. Or the Amazon blurb: “The roots of the culture lie not in the culture itself, but laws and regulations enacted decades ago”. Or the banner ad:

he other thesis, the one it actually argues for, is “US civil rights law is bad”. On its own, this is a fine thesis. A book called Civil Rights Law Is Bad would – okay, I admit that despite being a professional Internet writer I have no idea how the culture works anymore, or whether being outrageous is good or bad for sales these days. We’ll never know, because Richard chose to wrap his argument in a few pages on how maybe this is the origin of woke or something. Still, the book is on why civil rights law is bad.

Modern civil rights law is bad (he begins) for reasons baked into its history. The original Civil Rights Act of 1964 was supposed to be an ad hoc response to the outrageous level of anti-black racism going on in the South, which protests and TV news had finally brought to the attention of the white majority. There was broad support for a bill which was basically “don’t be the KKK”.

Sex discrimination got tacked on half as a joke, half as a poison pill by its enemies to make the bill unpalatable (fact check: true – but there’s a deeper story, see this Slate article for more details). Ideas about “affirmative action” and “disparate impact” weren’t tacked on at all; the bill’s proponents denied that it could be used to justify anything of the sort, and even agreed to include language in the bill saying it was against that. Still, after the bill was passed, a series of executive orders, judicial decisions, and bureaucratic power grabs put all those things in place.

The key point here is that “quotas”, or any kind of “positive discrimination” where minorities got favored over more-qualified whites, were anathema to lawmakers and the American people. But civil rights activists, the courts, and the bureaucracy really wanted those things. So civil rights law became a giant kludge that effectively created quotas and positive discrimination while maintaining plausible deniability. This ended up as the worst of both worlds. Hanania specifically complains about1:

Affirmative Action

Hanania’s take on affirmative action involves the government sending companies a message like this:

  1. We notice your workforce has fewer minorities than the applicant pool.
  2. If this remains true, we’ll sue you for millions of dollars and destroy your company. So by the next time we check, your workforce had better have exactly many minorities as the applicant pool.
  3. But you’re not allowed to explicitly favor minority applicants over whites. You certainly can’t do anything flagrant, like set a quota of minority employees equal to their level in the applicant pool.
  4. Have fun!

(here “the applicant pool” is an abstraction, often but not always the same as the general population, which is poorly defined and which bureaucracies can interpret however they want. It’s definitely not the same thing as the actual set of qualified applicants to the business!)

This satisfied the not-really-paying attention white electorate, because politicians could tell them that “quotas are illegal, we’re sure not doing anything like that”. And it satisfied civil rights activists, because inevitably businesses/departments came up with secret ways to favor minorities until representation reached the level where they wouldn’t get sued.

A recent case illustrates the results of this double-bind. The FAA hires air traffic controllers. They used to judge applicants based on a test which measured their skills at air traffic control. This resulted in comparatively few black air traffic controllers. Various civil rights groups put pressure on them, and they replaced the test with a “biographical questionnaire”. The questionnaire asked weird unrelated questions about your life, and you got points if you gave the answer that the FAA thought black people might give (for example, if you said your worst subject was science). This still didn’t get them enough black employees, so they secretly told black communities exactly what answers to put on the questionnaire to go through.

It’s easy to blame the FAA here, but (Hanania says) civil rights law almost forces you to do something like this. People tried simpler things, like keeping a test but giving minority applicants extra points. The courts and civil rights bureaucracy struck these down as illegal. The almost-explicit policy was that you had to get more minority employees, but you had to hide it carefully enough that the American people (who were still against racial preferences) wouldn’t catch on.

    1. I’ve included three of Hanania’s four civil rights law subtopics. The book covers a fourth, Title IX (mostly focusing on women’s sports in college). Although the book provides lots of examples about how the laws here are unfair and outrageous, I can’t bring myself to care about college sports enough to give it the same subtopic status, as, say, the hiring process for all the corporations in America.

May 1, 2024

The Supreme Court of Canada has created “Charter-free zones” in Canada

Filed under: Cancon, Government, Law, Liberty — Tags: , , , — Nicholas @ 05:00

A recent Supreme Court of Canada decision to allow the Charter of Rights and Freedoms to be overridden in cases where First Nations’ laws conflict with the rights guaranteed to all Canadians by the Charter:

Governments of the over 600 First Nations bands and self-governing Indigenous communities across Canada have been given the green light by the Supreme Court to, in their laws, legally abrogate and override the civil liberties of their band members and citizens.

In its Dickson v. Vuntut Gwitchin First Nation decision the Court ruled that so long as an Indigenous government law “protects Indigenous difference — understood by the collective as interests connected to Aboriginal cultural difference, Aboriginal prior occupancy, Aboriginal prior sovereignty or Aboriginal participation in the treaty process” — then, despite the fact that the law infringes the Charter rights of its citizens, those Charter rights cannot have any application or be given any effect to.

Four of the seven Judges who ruled on the case ruled that the Canadian Charter of Rights and Freedoms prima facie applies to Indigenous government laws, but notwithstanding that, if the law is to “protect Indigenous difference”, and the exercise of a Charter right would have the effect of diminishing that “Indigenous difference”, then section 25 of the Constitution Act “shields” the law from Charter application.

A fifth Judge ruled that section 25 meant that the Charter didn’t apply at all to Indigenous government laws, not even prima facie.

Two of the seven judges dissented, one of whom very significantly was Madame Justice O’Bonsawin, the Indigenous person appointed to the Supreme Court supposedly to import an “Indigenous perspective” into its judgments. These two dissenting Justices wrote correctly that the majority opinion creates “Charter-free zones” in Canada. They further wrote:

    Minorities with Indigenous communities (will) not be protected from the actions of their own governments. All Canadians, including Indigenous people, need constitutional tools to hold their governments accountable for breaches of their entrenched rights and freedoms. It is against the purposes of the Charter and s. 25, as well as being profoundly inequitable, to deny members of self-governing Indigenous nations similar, rights, remedies and recourse.

There are more than 1.8 million Indigenous Canadians, two-thirds of whom live “off-reserve” in Canada’s towns and cities. The Supreme Court of Canada has deprived all these Canadians of the protections afforded by the Charter of Rights and Freedoms on their home reserves and territories.

The Court employed cloud castle reasoning to bring about this illiberal and un-Canadian result, heavy on empty verbal assertions and abstractions with little relation to practical life.

Cloud castles are pleasant and charming to conjure up, even more so because they have no foundations.

The factual foundations of the Court’s decision, such as they, like those of cloud castles, are mainly imaginary. To the extent that may exist in reality, they are wrong.

In an earlier article the writer wrote on this case Cindy Dickson discussed the discriminatory, black sheep treatment she faced when trying to run for office in Vuntut Gwitchin.

The article pointed out other negative, First Nations realities ignored by the majority of the Supreme Court of Canada in its judgement: the “banana republic” nature of small Indigenous governments, and alpha-type band chiefs and councils — “colonizers of their own people” — overseeing a conflicted, family-based system of self-dealing and crony capitalism.

Indigenous Justice O’Bonsawin, as part of her “Indigenous perspective”, expressly acknowledged these entrenched negatives and listed other illiberal aspects of the “Indigenous difference” that the Charter exists to prevent or remedy: the unequal role given men in debating constitutional reforms, band membership rules that excluded some women and their children, election codes that prevent individuals from running for office on the basis of their gender, marital status or sexual orientation, and warrantless searches of homes.

April 30, 2024

The CDU’s “five-point plan to protect German democracy from … the free and open internet”

Filed under: Germany, Law, Liberty, Media, Politics — Tags: , , , , — Nicholas @ 04:00

German mainstream politicians are struggling to keep extreme right populist anti-democratic voices from being heard by innocent and trusting German voters, so the leader of the CDU in Thuringia has a master plan:

The duel between our leading Thuringian politicians was all but unwatchable, as indeed almost all political debates turn out to be. While [AfD leader Björn] Höcke could’ve acquitted himself better, [CDU leader Mario] Voigt’s performance was flat, uninspired and profoundly banal. Among other things, the man suffers from a peculiar rodentine aspect; he bites his way stiffly through bland preformulated arguments like a squirrel chewing a stale nut or a beaver gnawing through saplings. After the event, the CDU took to the press to declare victory, but polls showed that viewers found Höcke on balance more persuasive, which is of course the real reason that everybody told Voigt to avoid the confrontation. Voigt is intensely democratic and therefore extremely right about everything, but somehow – and this is very awkward to discuss – his being eminently righteous and correct in all things does not manifest in an ability to defeat the very wrong and evil arguments of his opponents. It’s very weird how that works, perhaps somebody should look into it.

Stung by this failure, Voigt has set off to find other means of defending democracy. This week, in the Thüringen state parliament, he gave an amazing speech outlining a five-point plan to protect German democracy from that other great menace, the free and open internet:

    So how do we protect democracy in the area of social media? There are five approaches:

    Ideally, we should agree to ban bots and to make the use of fake profiles a criminal offence.

    There is also the matter of requiring people to use their real names, because freedom of expression should not be hidden behind pseudonyms.

    Then there’s the question of whether we should create revocable social media licences for every user, so that dangerous people have no place online.

    We need to consider how we can regulate algorithms so that we can revitalise the diversity of opinions in social networks.

    And we also have to improve media skills.

For all that Björn Höcke is supposed to be a “populist authoritarian” opposed to representative government, I’ve never heard him say anything this crazy. Voigt, meanwhile, is a leading politician for the officially “democratic” Christian Democratic Union (you know they are democratic because the word is in their name), and he’s actually dreaming of requiring Germans to obtain state-issued licenses for permission to post their thoughts to the internet.

Because Voigt’s regulatory regime would entirely abolish online “freedom of expression”, it is unclear how banning bots and pseudonymity could ever defend it. Generally speaking, for a thing to be defended, it must first exist. Equally curious is Voigt’s belief that any “diversity of opinion” will survive his social media license scheme to benefit from the regulation of social media algorithms.

April 27, 2024

QotD: Roman magistrates during the middle Republican period

Filed under: Europe, History, Law, Quotations — Tags: , , , — Nicholas @ 01:00

Last time we discussed Rome’s popular assemblies, which at least notionally expressed the will of the people. One of the key tasks those assemblies had, we noted, was the election of magistrates, the executive officials of the Roman state. Those magistrates will be our focus this week, though we’re not going to get through all of them. Today we’re going to focus on the structure of a Roman political career, the cursus honorum and the first few steps on that career: serving as military tribunes, quaestors and aediles.

Similar to the magistrates in the Greek polis, Roman magistrates should not be thought of as bureaucrats within a unitary governing institution. Rather each magistrate is an independent actor, granted certain powers to oversee the public interest in a specific field. This is perhaps even more true of Roman magistrates, who rarely function as “boards” the way Greek magistrates often do (none of the senior magistrates in Rome function as a board, they are all individual actors). Instead of having an chief executive (like a president or prime minister) to coordinate the different actions of government, the Romans in the Middle Republic instead rely on the Senate, which will be our topic for next week, though the Senate’s guidance is going to show up a fair bit here as well.

Each of these offices has a range of functions and some interesting powers and prerogatives, so it is worth discussing each one in turn.

Bret Devereaux, “Collections: How to Roman Republic 101, Part IIIa: Starting Down the Path of Honors”, A Collection of Unmitigated Pedantry, 2023-08-11.

April 24, 2024

Australia cribs from Trudeau’s notes and tries to censor the internet outside their borders

Filed under: Australia, Government, Law, Liberty, Media, Technology — Tags: , , , , — Nicholas @ 05:00

Tim Worstall explains to the Australian federal government why their attempt to force Elon Musk to obey Australian diktats on Twit-, er, I mean “X” outside Australia is extreme over-reach and should be firmly rejected:

It’s entirely true that Elon Musk is a centibillionaire currently telling the Australian Government that they can fuck off. It’s also true that if Elon Musk were of my level of wealth — or perhaps above it and into positive territory — he should be telling the Australian Government to fuck off.

This also applies to the European Union and that idiocy called the right to be forgotten which they’ve been plaguing Google with. Also to any other such attempts at extraterritoriality. Governments do indeed get to govern the places they’re governments of. They do not get to rule everyone else — the correct response to attempts to do so is fuck off.

So, Musk is right here:

What this is about doesn’t really matter. But, v quickly, that attack on the Armenian Church bishop is online. It’s also, obviously, highly violent stuff. You’re not allowed to show highly violent stuff in Oz, so the Oz government insist it be taken down. Fair enough – they’re the government of that place. But they are then demanding further:

    On Monday evening in an urgent last-minute federal court hearing, the court ordered a two-day injunction against X to hide posts globally….

Oz is demanding that the imagery be scrubbed from the world, not just that part of it subject to the government of Oz. Leading to:

    Australia’s prime minister has labelled X’s owner, Elon Musk, an “arrogant billionaire who thinks he is above the law”

And

    Anthony Albanese on Tuesday said Musk was “a bloke who’s chosen ego and showing violence over common sense”.

    “Australians will shake their head when they think that this billionaire is prepared to go to court fighting for the right to sow division and to show violent videos,” he told Sky News. “He is in social media, but he has a social responsibility in order to have that social licence.”

To which the correct response is that “Fuck off”.

For example, I am a British citizen (and would also be an Irish one if that country ever managed to get up to speed on processing foreign birth certificates) and live within the EU. Australian law has no power over me — great great granny emigrated from Oz having experienced the place after all. It’s entirely sensible that I be governed by whatever fraction of EU law I submit to, there are aspects of British law I am subject to as well (not that I have any intention of shagging young birds — or likelihood — these days but how young they can be is determined not just by the local age of consent but also by British law, even obeying the local age where I am could still be an offence in British law). But Australian law? Well, you know, fu.. … .

April 20, 2024

How much of your language do you have to destroy to avoid the taint of historical fascist usage?

Filed under: Germany, History, Law, Liberty, Media, Politics — Tags: , , , — Nicholas @ 05:00

For understandable reasons, German governments since the end of World War 2 have been twitchy about any symbols, songs, words and phrases that were used by Hitler’s various fascist organizations … to the point of making many things illegal. eugyppius outlines one particular case where the use of a simple German phrase by an AfD politician has landed him in court, facing a possible three-year prison sentence even though he denies that he knew the phrase had such connotations:

Today, the leader of the Alternative für Deutschland faction in the Thuringian state parliament, Björn Höcke, appeared before the district court in Halle for the first day of his long-awaited speech trial. He stands accused of having used a forbidden Nazi slogan favoured by the Sturmabteilung at a political rally in Merseburg on 29 May 2021. Höcke pleads that he used the three-word phrase in a moment of spontaneous elaboration at the end of his speech, without knowing its National Socialist associations. Out of an abundance of caution, I won’t quote the phrase here, even in translation, but I’ll provide it in context below; it begins with the words “Everything for” (“Alles für“) and concludes with the name of the Federal Republic. As slogans go, it is so seemingly banal that before the trial many Germans would have been surprised to know it had any Nazi associations at all.

For the moment, not much has happened. Höcke’s lawyers filed a variety of requests, among them that the Federal Constitutional Court answer a question surrounding the court’s jurisdiction. In consequence, it’s unclear whether the trial will continue as scheduled next week or whether it will have to be substantially delayed. The state prosecutor’s position is that Höcke’s background as a history teacher makes his claims of ignorance implausible. The prosecutors’ office have also added an additional charge for Höcke’s defiance at a rally in Gera last December, where he shouted the first two words of the slogan at the crowd, and invited them to supply the last one. I fear that this was a grave mistake, because as we will see, the original case against Höcke is laughably weak.

If found guilty, Höcke could be fined or sentenced to prison for up to three years. It is also conceivable that his right to vote and run for office could be suspended. Whatever you think of Höcke or his politics, the political dimensions of this trial are undeniable, as it is occurring mere months ahead of the Thuringian state elections, and as Alternative für Deutschland commands a solid plurality of polling numbers in that state.

[…]

That Höcke deliberately used the SA slogan as a subtle enticement to the extreme right is more than doubtful; that he also did so in hopes that he would be prosecuted and profit politically from his victimisation is so ridiculous, I can’t imagine that even Hillje really believes this. This obnoxious thesis nevertheless recurs whenever the German press report on the harassment of AfD politicians; it is somehow their fault, because they are held to benefit from it.

Der Spiegel, always a source of unintentional amusement, ran a headline today mocking Höcke as a “history teacher with no knowledge of history“. “He claims not to know it was an SA slogan”, they report, “but there are doubts about this”. Alas, the very same news magazine last September accidentally used the forbidden phrase to headline an approving article on Olaf Scholz’s proposed “Germany Pact”. They rapidly changed the headline, appending this brief and embarrassing correction to the bottom:

    An earlier version of the article was headed with a line that was used by the SA as a slogan. This was not intended by the author and editors and has now been changed.

April 19, 2024

Yet another unintended consequence of the Online Harms Act – easier deportation of non-citizens

Filed under: Cancon, Government, Law, Liberty — Tags: , , , , , — Nicholas @ 03:00

In The Line, Kevin Wiener explains another of the hidden “gems” of the Trudeau government’s ill-considered and repressive Online Harms Act that at least will please a few anti-immigration activists:

According to the Trudeau government and its defenders, the Online Harms Act is nothing to worry about. This is supposed to be a bill that will protect equity-seeking groups like racial minorities — yet one little-discussed provision will make millions of permanent residents open to deportation for even the most minor criminal offences, as long as a prosecutor can show that the crime was hate-motivated.

The resulting power to turn any crime into a deportable offence will make non-citizens — many of whom are racial and religious minorities — even more vulnerable in the criminal justice system compared to citizens.

The main focus of the Online Harms Act is regulating online platforms, but it also makes major changes to the way the criminal justice system deals with hate-motivated crimes. Under current law, if a crime is motivated by hate based on a protected characteristic, that’s considered an aggravating factor at sentencing. That means the judge can impose a higher sentence than they normally would, although they can never exceed the maximum sentence for the underlying crime. For many minor crimes, that maximum sentence is two years less a day.

The Online Harms Act uses a totally different approach to hate crimes. Rather than just being a sentencing factor, the Act would create a brand-new hate crime offence. Committing any crime, if motivated by hatred, would make someone guilty of a second crime, with a maximum sentence of life imprisonment. To counter public concern, the Trudeau government has recently sent one of its senior advisors, Supriya Dwivedi, to argue that critics of this provision are “engaging in bad faith tactics”, going so far as to make the absolutely false statement that the bill won’t allow an increased sentence unless the underlying crime already had that sentence.

That is an accurate description of the current sentencing regime, but the text and clear purpose of the new bill is to let judges go further: a serious aggravated assault that might normally attract the maximum 14-year sentence can lead to life imprisonment if the attack was hate-motivated.

Further, Dwivedi’s defence of the bill ignores that maximum sentences play an important role in Canada’s immigration policy. If someone is neither a citizen nor a permanent resident, they can only be deported if they commit a more serious (called an “indictable”) offence, or two separate less serious (or “summary”) offences.

The new hate crime provision would be an indictable offence.

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