Property rights are fragile things: a lesson from Zimbabwe

The New York Times has a fascinating story posted online about the instability of property rights in Zimbabwe: "No One is Safe": Zimbabwe Threatens to Seize Farms of Party Defectors. All part of a continuing pattern of repression by the regime there.

Zimbabwe is the successor state to the formerly white minority governed Rhodesia. In 1979 the Lancaster House Accords led to the demise of the white minority regime and one of the leaders of the black revolutionary movement there, Robert Mugabe, took over. In the late 1990's and early 2000's, the Mugabe regime began what can only be called a terror campaign to drive white farmers out of the country and redistribute their property to the regime's political supporters. Disregarding the property rights, and in many instances the right to life, of white farmers, their families, and black workers who earned their livings on those farms, the Mugabe regime was brutally effective in its efforts.

Now, the same tactics are being revved up again by the Mugabe regime (yes, he's still in power at a frisky 92 years young). This time, though, the targets are black Zimbabwean's who object to his regime's policies. With the failure of the regime's "Look East" program of economic collaboration with China, political opposition to Mugabe within the ranks of his political party has grown. Mugabe and his supporters have been expelling party members who have dissented from his regime. As these dissenters now join the opposition, they are finding that their large farms -- which they received from the regime after it had driven out the previous white owners -- are in danger of being seized by violence. As The New York Times quotes one of the dissenters, the possessor of farm stripped from its previous owner under Mugabe's earlier "land reform":

"When it was happening to the whites, we thought we were redressing colonial wrongs," said Mr. Mutambara, 64, who got his farm after it had been seized from a white farmer. "But now we realize it is also coming back to us. It's also haunting us." 

Yeah, funny how things happen like that.

Land reform in Zimbabwe was a good idea in principle -- but the way it was carried out, as a tool to oppress the white minority population -- ended up destabilizing not only the economy of that country but security of land ownership itself. Of course, the was always in no small part the ultimate goal of the regime, to erode property rights so land and its possession could be used as a tool to ensure obedience from the populace lucky enough to be in on the gravy train to get the redistributed farmland. Again, as the Times reports:

“No one is safe,” said Temba Mliswa, 44, who was the chairman of the party’s chapter in Mashonaland West Province before his expulsion from the party in 2014.  

Mr. Mliswa got a 2,000-acre farm belonging to a white Zimbabwean in 2005. When he took possession, Mr. Mliswa said, police officers beat the white farmer and his workers.  

But last year, Mr. Mliswa said, hundreds of youths sent by the party invaded the farm again, destroying property and beating his workers. They eventually left, but one of Mr. Mugabe’s ministers recently held a rally in which he threatened to take Mr. Mliswa’s farm unless he stopped criticizing the president’s party.

“They use the land to control you,” Mr. Mliswa said.

Sow the wind, reap the whirlwind.

Property rights, like the rights to life and liberty, are natural rights, but like every right they are also the product of an intricate interplay between history and culture. They are, as a result, fragile things, the result not of political rhetoric and party platforms but the painstaking work of centuries of legal precedent, custom, tradition, social convention and limited government. Once those rights are shredded -- to oppress the disfavored, pay off lackeys or some combination of the two -- it is very difficult to restore them down the road.

A last quote from Mr. Mliswa highlights part of the problem that besets Zimbabwe:

“There was blood spilt on my farm, there was violence, which I really, really, really, really regret,” he said of the seizure of his farm from its white owner in 2005. “I apologize profusely, but it was because of the system I was involved in. I belonged to a party whose culture is violence.”

But parties and cultures are made up of people, including people who benefit from stripping rights from others. A disrespect for property rights is accompanied, inevitably, by the threat and eventual implementation of violence, which is one reason why revolutions usually end up devouring their own.  In this, Zimbabwe serves as a cautionary tale.

Letter to the Editor at The Guardian, Response to Sisonke Msimang’s "Caster Semenya is the one at a disadvantage"

24 August 2016   

The Guardian

Letters Editor

guardian.letters@theguardian.com

RE:  Sisonke Msimang’s Caster Semenya is the one at a disadvantage, 24 August 2016, 08.00 BST, http://tinyurl.com/hf5mh6p

Dear Letters Editor & Sisonke Msimang,

In Caster Semenya is the one at a disadvantage, Sisonke Msimang wrote: “The idea that testosterone levels could constitute an unfair advantage in this climate is laughable.” Msimang is entirely wrong. Nearly every Olympic sport divides competitors by sex, i.e., holding separate men’s and women’s competitions.

Why? The justification for that rigid separation of the sexes is not rooted in historical precedents handed down from the Olympics of the ancient Greeks. Nor is it rooted in some religious tradition’s mandating a particularistic and antiquated contestable conception of morality in public places. Rather, the justification for separate men’s and women’s sports competitions comes from the widespread recognition that men and women have highly significant biological differences, including systematically different levels of testosterone. If different testosterone levels did not obviously confer a great advantage on men, then there would be no good reason to hold separate women-only Olympic events. Indeed, if different testosterone levels did not confer great advantage on men, then modernity, secularity, and simple fairness would compel our ending sex-segregated sports events.

Bottom line: testosterone counts.

Sincerely,

Seth Barrett Tillman 

Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

Seth Barrett Tillman, Submitted as a Letter to the Editor at The Guardian, Response to Sisonke Msimang’s "Caster Semenya is the one at a disadvantage," New Reform Club (Aug. 26, 2016, 1:00 PM), <https://reformclub.blogspot.com/2016/08/letter-to-editor-guardian-response-to.html>, <http://ssrn.com/abstract=2829314>; 

My prior post: Seth Barrett Tillman, The Stuarts: Voluntary Compliance with Government Fiat, The New Reform Club (Aug. 23, 2016, 7:25 AM) 

Woman's Work

Elizabeth Wurtzel, a woman writing for The Atlantic, argues that raising children is not work since no one will pay you to do it.  Real feminism, according to her understanding, is to have employment that is equal in respect and pay to that of a man.



As I pointed out in previous posts, this conclusion makes sense.

Prior to the increases in hygiene and nutrition that occurred along with the industrial revolution, women had a very tough job. They had to conceive, carry, bear and raise children.  Roughly 20% to 30% of their children would not survive the first year. In certain subpopulations, upwards of 75% would not survive long enough to get married themselves. Women had to bear enough children to compensate for those losses. And they only had about 12 years to get it done. That's how long, on average, a marriage lasted before either the father or the mother or both, were dead. So, if any children were to survive to adulthood, women had to be pregnant on a fairly regular basis. 

If a crop of wheat failed, it meant everyone in the village would starve for a year.
If a crop of children failed, it meant the village disappeared.
Women's work mattered.

In 2012, a child is about 40 times more likely to survive to adulthood than it  was in 1812. 
That's an enormous increase in the efficiency of women's work. 

When production becomes more efficient, the price of the good drops.

It used to take enormous skill and luck to bring a crop of children to maturity, and able to enter their own marriages. 
It takes no skill to produce and raise them anymore.
Children are no longer valuable. 

So, the social value of women's work - raising children - is very much lower than it was in the past. Modern medicine, nutrition and production has made raising children among the lowest paying of occupations.  If women want to remain valuable in the eyes of society, they have to switch from child-bearing and child-raising  to a more difficult occupation.

Thus, the liberal fixation with "the war on women" has a real economic basis. Those who fixate on this sense that women's work is not valued as it used to be, that it can never again be valued as it was. The only way it will ever again be perceived as "hard work" is if we involuntarily return to a 75% loss rate before maturity.

And this explains the interest in keeping abortion legal. The economists attempted to increase the value of women's work by legalizing abortion. Abortion was legalized at the end of the post-war baby boom - when infant mortality rates had dropped to about 20 per thousand and the country was awash in kids. Too many kids. The cost of children had to be raised. 

Abortion imposes an arbitrary 30% loss rate on children before birth. Put another way, legal abortion has returned our infant mortality rates to pre-industrial levels. Demographers do not point this out publicly. It belies the idea of our being "medically advanced." It's embarrassing.

It also hasn't worked. Women's work, the raising of children, is still too efficient. Survival rate of born children to maturity is still 40 times higher than it was two centuries ago. Attempts have been made to allow infanticide, but those haven't yet been successful. Given most people's squeamishness about murdering visible children, it is unlikely to have the necessary levels of success anytime soon.

On some level, Elizabeth Wurtzel and her friends recognize all of this. They insist there is another gambit, a better gambit, that women must employ: end participation in the "women's work" game entirely. They got out of the child-bearing business and they encourage other women to get out of the business as well. Women control the means of production, but too many women refuse to quit producing. From Wurtzel's point of view, women having children are traitors to their sex because their refusal to raise the clearing price of children by limiting supply is reducing the general value of "women's work" throughout society. 

You see, even if Wurtzel's work has nothing to do with children, the very fact that so many women do want to have children encourages her employer to treat her as someone who is statistically likely to abandon her job in exchange for pregnancy. Men are statistically unlikely to do that, so men don't get profiled this way.  Stay-at-home moms encourage employers to "profile" all women.

In order to get around this perception, there have been various attempts to divorce women from child-bearing and child-raising entirely.  Free or low-cost child care, cradle-to-18 "schooling",  "it takes a village" sloganeering, all kinds of methods have been used to break the mother-child bond, to get all the women into the public workforce, to get them out of the piece-work of bearing and raising children. If it were successful, this would allow the annual child crop to be undertaken entirely by a regulated industry or the government. This is the goal. This is ultimately why research into artificial wombs, artificial gametes, etc., is subsidized and encouraged.

But we don't have artificial wombs yet. Ultimately, employers are not wrong to profile. Some women really do need to leave the public workforce and produce children if the nation is to survive.  Like the pre-industrial village, a nation without children disappears. The wage gap cannot be avoided.

But there is also irony here. While there is, indeed, a wage-gap, it only amounts to about 5 cents on the dollar. As Wurtz herself points out, women have already taken advantage of the efficiencies. 70% of women with children work. Fully employed mothers spend 86% as much time with their children as unemployed moms. How is that possible? How can a woman who spends 40 hours a week working spend "86% as much time with their children as unemployed moms"? Well, nowadays the children work too. They're at school thirty-five hours a week. 

So, how much is raising children worth? Apparently, about five cents on the dollar. But there is another way to raise that price.

Wurtz, in her fixation on the corporate world, misses an option that many women have already figured out. Home-based businesses can be worth the time if the units produced are hand-crafted and high-demand. Artisan hand-crafted children, also known as home-schooled children, are becoming more popular precisely because they return value to "women's work." If Wurtz were a real feminist, she would promote homeschooling as a real alternative. If she were a real feminist.  

The Spaniard in the Works

Jon Rauch's ebook and Atlantic article defending political machines are eye-openers. Did it ever occur to you -- and I assume you are not a paid political consultant -- did it ever occur to you that there was other than a post hoc defense for political secrecy and cronyism and back-room deal-making? That "if you like your doctor you can keep your doctor" was not just Lie of the Year but also a mark of high statesmanship? I don't mean mumbling something about "what're ya gonna do, this is just the way it's done" and shaking your head before announcing an excuse to leave the conversation. I mean, would you ever consider -- could you even imagine -- for no cash remuneration, mind you -- offering an enthusiastic case that the low art of politics is not just a lesser evil when compared to razor blades and lemon juice, but a positively desirable state of affairs?

If you answered no, then Rauch may prove an interesting subject for study. Rauch argues that political machines are actually quite sensible and balanced, and that ideas and their advocates -- "purists" -- are the enemy, the spanner in the works. Power and secrecy, in this telling, are the essence of liberty and democracy. Liberty and democracy themselves, when cited in challenge to the machines, only endanger themselves. If you love your ideals, in other words, you'll let them go: the machine will deliver them back to you.

Rauch's argument is not exactly specious. In fact, I'll grant his premises as true: Tammany-esque political machines  yield more or less stable and tolerable political compromises and responsiveness, and conversely -- and more importantly -- weakening the political machines creates a more fractured, ungovernable politics. That is, if the GOP continues to drift apart along its Ryan/Trump/Freedom Caucus lines, and the Democrats fracture along their Clinton/Warren/Venezuela lines, we'll be less likely to pass a budget that will face the national debt, and more likely to disrupt services many Americans depend on. 

So our tools don't coexist well: ideas need transparency, but machines need back rooms; ideas need advocates, but ideologues make poor deals; we elect politicians, but get results from machines; and we seek the good, but machines offer only the expedient. 

The real trouble is that machines only work when you don't notice them. Once fellows like Rauch make them an object of praise, the jig is up. Political machines worked when they acted invisibly -- and you knew they were invisible because when you noticed them, when you flipped the light on in the kitchen at night, they scurried under the refrigerator. They worked because we assumed they just arose organically, unintentionally, accidentally, and if you noticed them they'd apologize and promise to let you forget about them. Political machines made sense kind of the way mainline churches did, as Joseph Bottum puts it in his devastating critique: "They mattered more when they wanted to matter less." 

But if we put political machines under the microscope and start agitating for the machines, that is the end: once the machine is aware that we are aware of it, there can no longer be any pretense of trusting it -- the machine will no longer bother protecting individual politicians; it will simply assert its unmediated will. Not for much longer can we say "people hate Congress but love their Congressman." In an age when we are aware that politics is a machine, and if we come to consciously approve of and support it as a machine, we must love Congress and hate Congressmen.

And that cannot go on -- once that becomes inverted, people will demand to vote for the machine they love rather than the cog they hate. And that will be the end of the republic. Literally. 

The Stuarts: Voluntary Compliance with Government Fiat

Those who do not act “voluntarily” in a particular way are made to understand that it will be the worse for them—the old evil system, which we thought we [had] said goodbye to with the Stuarts, of “voluntary” compliance with the wish of government for fear of indirect consequences. Thus the citizen is coerced without either the law being changed, or Parliament even consulted, or the possibility of recourse to the courts of law, or public knowledge of what is happening.

This is essentially an arbitrary and lawless use of power, and neither the small numbers of those directly affected nor the assumed desirability of the object in view, ought to blind or silence us.

            —EP, Speech to Brent Young Conservatives, Wembley, 9 May 1966

Seth

Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

My prior post: Seth Barrett Tillman, Jacob Rees-Mogg on the Brexit Referendum, The New Reform Club (Aug. 21, 2016, 3:20 PM)

Jacob Rees-Mogg on the Brexit Referendum

Jacob Rees-Mogg, MP (for N.E. Somerset)  (at 2:10ff)

It seems to me that the one area where referendums are absolutely right are on constitutional matters. Because the one thing Parliament can never do is give away its own power. That has to be returned entire to the electorate every five years. Within that five years there is discretion to act. But the power must be returned to the voters for each general election. And the problem with the European Union is that power has steadily eroded and been given away to unelected officials in Brussels.

....

If you take the view that sovereignty comes from the British people and is delegated to Parliament for five years, which is I think a pretty traditional view of parliamentary sovereignty, then you would agree, I think, that the one thing where the people must be consulted is when their absolute powers are given away or there is a fundamental change in the Constitution. And leaving the European Union is a fundamental constitutional change.

[end]

Seth

Twitter: https://twitter.com/SethBTillman ( @SethBTillman )

My prior post: Seth Barrett Tillman, An Opportunity to Comment and Post at New Reform Club, The New Reform Club (Aug. 21, 2016, 5:32 AM)

An Opportunity to Comment and Post at New Reform Club

To Whom It May Concern:

If I have commented on one of your publications (including blog posts) and you'd like an opportunity to respond to what I have written ... comments are allowed (indeed, encouraged) at New Reform Club.

Moreover, if I have used your name, while commenting on one of your publications, and you'd like your own free-standing post at NRC, I am happy to post (wholly unedited) your response of any length (assuming it will fit into a blogger post). You are welcomed to respond here at NRC even if you also respond at your own venue or venues (including your own blog and your own twitter feed).

We all strive towards our common goal of fairness, but perhaps in different ways. I hope that does not sound arrogant.

Seth

Twitter: https://twitter.com/SethBTillman ( @SethBTillman )

My prior post: Seth Barrett Tillman, Trump, Academia, and Hyperbole, The New Reform Club (Aug. 19, 2016, 2:30 PM)

Trump, Academia, and Hyperbole

I have written about 30 academic publications, and I guess there are 100s, if not 1000s, of citations to the Constitution in them. It is possible that somewhere amongst them, I miscited the Constitution. Mistakes happen. If someone took the time to point out one such error to me, I guess I would regret it, and I would be a teensy bit embarrassed. I would not blame others, such as my co-authors or editors.* Certainly, I would not think of myself as “ignorant” for such a mistake, as mistakes do happen.

If I saw that someone else made such a mistake, would I be just as considerate of them, as I would be of myself? If I saw that some academic miscited the Constitution, would I think him “ignorant”? I hope not. Although some people are ignorant, it is all too easy to call others names for no more reason than because we disagree with them and to confuse our mere disagreement with their being ignorant. Second, calling other people “ignorant,” as opposed to “wrong,” can be overkill. It looks strikingly ungenerous, if not unfair. So even if the characterization were true, it is unwise to make and likely to backfire with any audience, except those already thinking exactly as we do. Finally, such conduct is peculiarly inappropriate for a legal academic. The whole tenor of legal education is to shift students and future lawyers away from a name-calling discourse into a reasoned** discourse. When law students hear legal academics speak or write about others as “ignorant,” the legal academics undermine the core of what we are supposed to teach.

That is all by way of introduction. Now brass tacks.

Professor Orin Kerr, at The Volokh Conspiracy, wrote:

But here’s the most remarkable passage [from a prior article in The Washington Post]:

Rep. Mark Sanford (R-S.C.) left the meeting worried about Trump’s grasp on the basics of the Constitution. At a lunch with reporters afterward, he recalled that the candidate did not seem to know what he was promising to defend.

“I wasn’t particularly impressed,” Sanford said. “It was the normal stream of consciousness that’s long on hyperbole and short on facts. At one point, somebody asked about Article I powers: What will you do to protect them? I think his response was, ‘I want to protect Article I, Article II, Article XII,’ going down the list. There is no Article XII.”

The most charitable reading would be that Trump heard the question about “Article I powers” as really asking about “rights protected by the First Amendment.” On that account, we now have insight into Trump’s constitutional views. Trump apparently is a strong defender of the procedures for the selection of the President and Vice-President by the Electoral College, which is what the Twelfth Amendment provides.

On the other hand, the more natural reading is what a lot of us suspected already: Donald Trump doesn’t know what is in the Constitution, and he doesn’t care that he doesn’t know.

Orin Kerr, Trump wants to protect Article XII of the Constitution, The Volokh Conspiracy—The Washington Post (July 7, 2016) (quoting a prior Washington Post article) (emphasis added), <http://tinyurl.com/jl9x27h>.  

Now there are three good reasons to reject the full scope of Kerr’s conclusion. First, Representative Sanford does not say the event actually happened. Sanford says only “I think [Trump’s] response was ....” (emphasis added). Second, we are talking about former Governor Mark Sanford here. Do you really want to rely on Mark Sanford and his memory? See Wiki entry—Impeachment Proceedings. But the third reason is the most important. Anyone can make the sort of error Trump is alleged to have made here. It is no big deal: at least I do not think it is.

For example, see Orin S. Kerr et al., 1 Criminal Procedure State authority–§ 1.2(b) note 29 (4th ed. updated Dec. 2015). Note 29 cites “U.S. Const. Art. 1, § I, cl. 3.” The problem is: there is no Article 1, Section 1, Clause 3. Still anyone can make an error—or two? 

See Orin S. Kerr et al., 1 Criminal Procedure Federal legislative authority–§ 1.2(c) note 48 & accompanying text (4th ed. updated Dec. 2015). It cites “U.S. Const. art. 1, § 3” as speaking to “treason.” The problem is: Article 1, Section 3 exists, but it does not speak to treason. 

You can even find other people making the exact same error Trump is alleged to have made: i.e., referring to (purported) Article XII of the Constitution. See, e.g., 2 Children & the Law § 8:9 n.31 (authored by a judge); 37 S.U. L. Rev. 127, 170 n.191, 180 n.233 (authored by a legal academic); 17 Touro L. Rev. 397, 412 n.63 (authored by a legal practitioner). [Addenda Aug. 13, 2023: E.g., Government of the Rebel States, 39 Cong. ch. 153; § 5 , 14 Stat. 428, 429 (1867) (incorporating by reference the “amendment to the Constitution of the United States, proposed by the Thirty-ninth Congress, and known as article fourteen . . . .”); Henry Stanbery, The Reconstruction Acts, 12 Op. Att’y Gen. 141 (1867) (referring to an “amendment to the Constitution of the United States proposed by the 39th Congress, and known as Article XIV,” not Amendment XIV.] Like I said, anyone can make this sort of error, including Kerr and others. Id. The difference is Kerr is an expert; Trump isn’t. The difference is that Kerr and his co-authors made their mistake in a full-length edited treatise; Trump was speaking extemporaneously. The list price of Kerr’s treatise: $1,110; Trump did not bill his audience—as far as I know.

Contra Kerr, the most charitable explanation for Trump’s error—assuming he made it at all—is that Trump was saying: I respect the whole of our Constitution from Article 1 (where its primary text begins) to Amendment XXVII (where its text ends). As President, I won’t pick and choose what to adhere to because the whole of the written Constitution is our law. Perhaps I am being overly charitable. Where the real truth of the matter lies, between Kerr’s view and the one I put forward here, is for you to decide. But the larger point is that there are two ways to see the Trump narrative. Two ways.*** That’s what lawyers and legal academics are trained to see, trained to do, and trained to teach (both in our classes, in our writing, and by our example). How is it that so distinguished and senior an academic as Professor Kerr—a leading expert in criminal procedure—could get this simple task so wrong? (For Kerr’s—somewhat disappointing—response see Twitter.)

I wish I could say Kerr was alone here. He’s not. Professor Ilya Somin, also writing at The Volokh Conspiracy, wrote: “Trump is indeed profoundly ignorant about the Constitution. This is a man who thinks judges sign bills (they don’t), and that the Constitution has an Article XII (it doesn’t).” Ilya Somin, Can Trump be trusted on judicial appointments?, The Volokh Conspiracy—The Washington Post (Aug. 17, 2016), <http://tinyurl.com/hpe3x6a>. I have to say: I wonder why Professor Somin thinks it necessary to tell his readers that judges don’t sign bills and that there is no Article XII. I suppose there are two possibilities: (1) Somin recognizes that this sort of informational lacunae among non-experts is acceptable, it is to be expected, even among otherwise educated people, or (2) Somin believes his audience is ignorant, and they must be informed of the truth. It seems to me Somin’s argument does not work. If Somin takes position (1), then he and his audience cannot fault Trump precisely because this sort of informational lacunae is acceptable and expected. If Somin takes position (2), then he cannot seriously ask his audience to reject Trump for being about as ignorant as they themselves are. Somin isn’t trying to convince his audience that Trump is d-u-m-b, he is trying to convince his audience that he (Somin) is smarter than Trump and his (Somin’s) audience. I expect that if I had made such an argument before an audience, I would feel very unsafe.

As to the Article XII argument... In a peer reviewed journal article, Professor Somin wrote: “[T]he Privileges and Immunities Clause requires states to treat migrants from other states on par with their own citizens, thereby facilitating interstate mobility.” Somin cites U.S. Const. Art. IV, § 4. See Ilya Somin, Book Review, 28 Const. Comment. 303, 305 & n.5 (2012) (reviewing Michael Greve, The Upside-Down Constitution (2012)). 

But that’s not right: Article IV, Section 4 is the Guarantee Clause, not the Privileges and Immunities Clause. Now just to be clear: my point isn’t that both Trump and Somin are equally dopes. Rather my point is that anyone can miscite the Constitution, and we should be loathe to call someone “profoundly ignorant” just because they cite to the wrong article or the wrong clause. Anyone can make a mistake.

As to Trump’s stating that judges sign bills, he was clearly wrong about that. But in context, the context in which he made that statement, he made a good point and probably helped his campaign overall. The circumstances were these:

Senator Ted Cruz had just attacked Trump’s sister, Judge Maryanne Trump Barry (United States Court of Appeals for the Third Circuit), for being a pro-abortion zealot. Trump’s response, in effect, was: (1) to defend his sister, rather than to throw her under the bus; (2) to say she was not pro-abortion per se, but upheld established law; and (3) to point out that Judge Alito**** voted the same way, illustrating that candidate Trump understood the zeitgeist of his Republican audience and voters better than Cruz did. What Trump should have said was: My sister, Judge Barry, signed the same judicial order that Alito signed. Instead, he said My sister signed that bill. Trump’s words were not artful, but—on substance—he was entirely correct. And of course, all this was said in extemporaneous public debate. If I were grading Trump’s debate performance, I could not give him an A, but an F for “profound ignorance” would be equally inappropriate. I would give him a C+, and then tell him that he has a lot of potential, and if he works harder, he will go far.

Trump is not my ideal candidate. I did not back him in the primaries—indeed, there were others who I would have preferred. I am not telling you to vote for him or not to do so. You don’t need to hear what I think on this question because in a democracy the operating theory is that validly-registered non-felon not-institutionally-committed adult citizens can make up their own minds and vote (or not) how they like. That said: I do not see much good flowing from calling candidates or their voters (politically) ignorant, and it seems to me that promoting the contrary view can do a lot more long-term damage to our polity and to Western democracy than anything Trump has said to date.

Seth

Over 12,000 impressions; over 120 engagements
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Over 3,000 pageviews here at NRC.

PS: Several days after publication of this post on NRC, I came across this tweet by Professor Kerr. See Orin Kerr (@OrinKerr) on Twitter, S.B. Tillman: It does great damage to democracy for bloggers to say Trump does not know what is in the Constitution (Aug. 19, 2016, 12:23 PM), <https://twitter.com/OrinKerr/status/766717255421952000>. Readers can decided for themselves what to make of it, or if it is responsive to my NRC-post.

2022 addendum: I now see 8 scholarly sources on Westlaw using “US Const art XII” or “US Const art 12”: E.g., Sanford Levinson, ‘Article V After 230 Years: Time for a Tune-Up,’ 67 Drake L. Rev. 913, 930 n.103 (2019) (“U.S. Const. art. XII (proposed by Congress in 1803 and ratified by three-fourths of the states in 1804); U.S. Const. art. XI (proposed by Congress in 1794 and ratified by three-fourths of the states in 1798).”), <https://lawreviewdrake.files.wordpress.com/2020/01/levinson-final.pdf>;

_______________________

* There is one exception. If an editor willfully injected a change in my article after we had agreed the article was finalized and published the modified article without consulting me, then I would blame the editor for any error relating to the unauthorized change. Unfortunately, such things have been known to happen. That is one good reason why journals—particularly print journals—should have an errata section.

** I am not excluding the possibility of an impassioned discourse that is within the family of reasoned discourse. I do maintain that unreasoned discourse is not saved merely by being impassioned.

*** Unless, of course, we are aiming for the Jackie Chiles standard: “It is a clear violation of your rights as a consumer. It is an infringement on your constitutional rights. It is outrageous, egregious, preposterous.” Seinfeld.

**** Judge Alito was a Third Circuit judge prior to his elevation to the U.S. Supreme Court. 

PS: Welcome Hugh Hewitt, Chicago Boyz, Instapundit, and most especially Volokh Conspiracy readers.

Twitter: <https://twitter.com/SethBTillman> ( @SethBTillman ) 

Seth Barrett Tillman, An Intellectual Property Story: New Grange Horror and Newgrange Horror, The New Reform Club (Aug. 16, 2016, 2:44 PM)

Nature, virtue and why we never learn

The following headline in the UK’s Guardian newspaper tells a many layered story.

Syphilis cases increase by 163% in London in five years[1]

As we know from history, sexual relationships are the cornerstone of any society. Without children, a society disappears. If children are not raised appropriately, then the society suffers. At the heart of this process is the family. The family is usually defined by the sexual relationship that produces children. However, all of this changed dramatically with the advent of modern natural science.

In the past, nature was the guide for our behaviour. Nature modified by reason usually sufficed, within certain constraints, to ensure the survival of a family, community, and state. The community reinforced what nature and reason had identified. What modern natural science did was to sever those links so that reason could conquer nature and remove the apparent constraints that appeared to inhibit freedom. Man could determine his destiny and move beyond what nature and nature’s God suggested. Man was free because God was dead and man’s reason, as expressed in modern natural science controlled nature. For a time, the utopia, especially the sexual utopia, seemed within grasp. Men and women could be free to indulge whatever sexual fantasy or behaviour that they chose.

The sexual revolution gained full speed with the advent of the web. The web, applications, and algorithms allowed men, women, and even children to find sexual partners. Moreover, they allowed them to pursue them in ways that they appeared to avoid any natural constraints. When the HIV/AIDS crisis hit many people changed their sexual behaviour. Nature had a way of reminding man of what they owed it even if man thought he could ignore nature.

The Guardian story has the following comment almost as an aside without considering the deeper story it contains.

The recent rise in cases of syphilis comes after a historical decline in the late 1980s and early 90s, when the spectre of the HIV pandemic encouraged many people to change their sexual habits.

For a time, man listened to nature. He realized that nature had not been conquered, tamed, or even fought to a draw. Nature told him that he needed to change and he listened for a time. What is curious is that no amount of rhetoric moral, ethical, or medical could change the pattern of behaviour. Yet, the spectre of nature’s intransigence suddenly spoke in words, or in a language, that could not be ignored nor could it be negotiated or even tricked.

There is a saying in Latin that gives us a glimpse of nature’s language. The phrase is:

Naturam expellas furca, tamen usque recurret

This can be translated as:  “You can drive out nature with a pitchfork, but she always comes back.”[2] Nature will not be denied. What is curious is that the lesson was learned and yet man in his pride thought that the lesson could be forgotten. With technology, computer applications, and algorithms nature could be outsmarted. Yet, it is nature that returns. As we apply more and more anti-biotics, we fail to learn the basic lesson or listen to what nature has to tell us. There is logic, a rhythm, to nature that we ignore at our peril.

Sexual licentiousness is only one small way in which we ignore nature. The way that we treat the environment is the best example. Even though we may debate the science or even the consequences of climate change, one thing that is not debatable is that we no longer live in balance with nature. We live within the age of pride. We believe that if we can think it we can achieve it. If we can achieve it, then we must achieve it. For to deny what we can achieve, we deny our freedom. For modern man and even post-modern man, there is no greater sin than that which denies freedom or knowledge. It is as if we have forgotten Mary Wollstonecraft Shelley’s Frankenstein: the Modern Prometheus was a horror story and we take it as an instruction manual to satisfy our deepest appetite for freedom. Yet, our hubris has reached a reckoning. Nature will not allow us the digital domain that will provide us a utopia where all our dreams, fantasies,  ambitions can be set free. Even as we agree to live according to an algorithmic master that is harsher than nature or nature’s God for it promises us “freedom”, we cannot escape nature.

We might reverse all of this and see the error of our ways. We might try to live with nature or even live in balance with nature as guided by our digital masters. However, the damage is done. Man’s appetites cannot be satisfied for if HIV/AIDS was not enough to restrain us, then neither will the coming plague that we will have created in our prideful belief that we are masters of our destiny and command nature.

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[1] https://www.theguardian.com/society/2016/aug/17/syphilis-cases-london-more-than-double-in-five-years

[2] http://www.proz.com/kudoz/latin_to_english/art_literary/107899-naturam_expellas_furca_tamen_usque_recurret.html

An Intellectual Property Story: New Grange Horror and Newgrange Horror

My 13 year-old son visited Newgrange with our family. Newgrange is Ireland’s Stonehenge. See http://www.newgrange.com/. Afterwards, he co-developed 3 (under 2 minute) videos and 2 simple online games, and each was titled “New Grange Horror.” The videos are on Youtube and on Gamejolt. So far, my son has been “paid” $0.23, which can only be used to purchase games from Gamejolt. The cheapest such game is $.50.

My son’s 15 year-old co-developer received a two-page letter from counsel for the U.S. owner of the “Grange” mark. In response to counsel’s letter, my son changed the title of the videos and games from “New Grange Horror” to “Newgrange Horror,” thus more closely following the Irish naming convention. Even if the owner of the “Grange” mark could exclude others from using titles with the word “Grange” in it, I suppose there is little chance that the mark owner could lawfully exclude others from using “Newgrange,” which is the name of a historic site in Ireland.

I sort of think this was the wrong approach. I think the two co-developers should have estimated the present value of the future income stream from “New Grange Horror.” Probably about $1.12 (assuming present value calculations at 4%). Then the two co-developers should have offered $1.12 to buy out the “Grange” mark from its current owners. A win-win.

Seth 

Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

My prior post: Seth Barrett Tillman, Global Elites, The New Reform Club (Aug. 12, 2016, 6:14 AM)

See also Walter Olson, Teens develop videogames, receive nastygram over their name, Overlawyered (Aug. 18, 2015) 

Global Elites

Peggy Noonan: “Nothing in [the elite's] lives will get worse. The challenge of integrating different cultures, negotiating daily tensions, dealing with crime and extremism and fearfulness on the street—that was put on those with comparatively little, whom I’ve called the unprotected. They were left to struggle, not gradually and over the years but suddenly and in an air of ongoing crisis that shows no signs of ending—because nobody cares about them enough to stop it.” (2016)

Enoch Powell: “They found their wives unable to obtain hospital beds in childbirth, their children unable to obtain school places, their homes and neighbourhoods changed beyond recognition, their plans and prospects for the future defeated; at work they found that employers hesitated to apply to the immigrant worker the standards of discipline and competence required of the native-born worker; they began to hear, as time went by, more and more voices which told them that they were now the unwanted.” (1968)

Seth


Welcome Instapundit and Chicago Boyz readers.

Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

My prior post: Seth Barrett Tillman, Habeas—A New Riddle, The New Reform Club (Aug. 12, 2016, 5:49 AM)