Mensch tracht, und Gott lacht
Wednesday, June 27, 2018
“If you get people asking the wrong questions, you don’t have to worry about the answers” --Hunter S. Thompson
If you're like to accept the Post's framing of the question then you don't even need to hear the answer.
Anyway, the Post wonk sets out to "demolish" Trump's supposed "notion" by positing immigrants commit far fewer crimes than native-born citizens.
Pardon me, that is not quite right. The precise conclusion of the Cato study covered in the piece is that fewer immigrants were "convicted" of crimes in 2015 in Texas. Apparently researchers looked at data submitted by Texas prosecutors about their criminal cases. But do we know how many total victims there were? Do we know how many charges were successfully prosecuted against each criminal? Do we know how many victims each crime created? The wonkperson's reporting does not indicate.
Obviously, innocent citizens have as much to fear from a single criminal who perpetrates multiple or repeated crimes than multiple offenders who perpetrate a single crime on a single occasion. Moreover, certain groups can be particularly victimized: Brussels Jews had their Purim festival canceled in 2016 because of security concerns. Such measures might help keep immigrant crime stats down, but where on the ledgers are these special costs entered? Without it, there is no way to "demolish" citizens' fears, or Trump's prescriptions for them. It seems "demolition" may need to wait.
And what do we know of the number of immigrant crimes that are reported -- or underreported? I see this question has been vexing research of the issue for many years, confounding attempts to understand the issue. The MS-13 gang began as an outgrowth of underreported immigrant crime: Los Angeles immigrants from El Salvador in the 1980s formed the gang to protect themselves from fellow-immigrant predators there. And how have law enforcement attitudes changed since then? Just a New Year's celebration ago the world saw that a mass sexual assault could be covered up by every organ of the state. If that's progress, say the half of America that elected Trump, include us out.
Despite the sympathy of the host country's leadership to immigrant communities, PolitiFact tells us our "overall understanding of immigrants and crime 'remains confused.'" We still don't know how often immigrants fail to report crime, or why. PolitiFact also tells us "incarceration rates are a poor way to measure links between immigrants and crime."
The sappers may need to resolve this internecine feud before they get to work "demolishing" the President's claims.
Back to the Post piece. Immigrants, whether documented or no, according to studies that apparently focus on the number of criminals rather than the number of crimes -- and which apparently do not account for underreporting -- are actually more law-abiding than native-born citizens. Is this meant to be any more surprising than the well-accepted assumption that airline passengers are more law-abiding than the general population? And yet to my knowledge the Wonkblog has never undertook to demolish policies for airline security or chastised "alarmist accounts" of terrorists' attempts -- successful and otherwise -- to hijack and blowup planes. To the contrary, it is firmly accepted that criminals who get on airplanes are punching above their weight. Why isn't it even considered remotely plausible, let alone accepted, that foreign criminals who cross our border are punching above their weight? On what purely scientific basis is immigrant crime deemed to be no more frightful or alarming than native-born crime?
How do we check the fact-checkers' values?
Perhaps it is plausible that, if we assume the immigrant is law-abiding, the immigrant will remain law-abiding: why make the arduous journey only to piss it away on a life of crime? But it is equally plausible that, if we assume the immigrant is, say, an MS-13 gang member at the time of entry, we might likewise presume the immigrant will remain a criminal menace once here. MS-13 produces many more victims, and with much greater brutality, than the average native-born criminal does. This would suggest the conclusion it may well be reasonable to conduct some sorting before allowing in an undifferentiated mass of people, even assuming they are on average a more law-abiding bunch than the current cohort. We have no less need to sort immigrants than we do airplane passengers. Assuming the average decency of a cohort of people does not excuse us from preventing the great risks that may be created by a small subset.
So the most we can conclude so far from the Post piece is that an effective open-borders policy does not create a greater number of criminals, even if it tells us nothing about the total effects these criminals are having on Americans.
And what about the immigrants' children? PolitiFact also tells us crime does spike among the children of immigrants. A state official concurs:
""We're talking about third- and fourth-generation [immigrants]; these youngsters are born in Belgium, even their fathers and mothers are born in Belgium, and still they are open for these kind of messages. This is not normal -- in the U.S., the second generation was the President; here, the fourth generation is an IS fighter -- so that is really something we have to work on.""
Do you object to my citing the Belgian Interior Minister? Why? Do you assume immigrants are unequal in their capacity to become good citizens? Do you assume that countries are unequal in their ability to assimilate immigrants? One of the greatest experimental scientists of Francis Bacon's time, William Harvey, said science was more than merely making observations -- "the vital factor of judgment [is] about what to observe and what to pay attention to." Are the Washington Post or other mainstream news sources providing reporting that meaningfully probes these basic assumptions underlying immigration? Or do you think they are leaving out something important? And do you think this omission is sending readers to other sources, including President Trump, to support these plausible and existentially relevant assumptions?
Wednesday, June 13, 2018
Re: Leader Uber Alles: Responding to Professor ABC & Professor XYZ
Professor ABC: “El Caudillo del Mar-a-Lago has systematically destroyed the western alliance that has prevailed since the end of WWII ….”
The original rationale and the traditional rationales for U.S. participation in NATO included:  Europe was broke after WWII (including the European nations among the allies which won the war);  Europe was fractious and disorganized; and,  a disunited Europe faced a unified (atheist and communist) Soviet Union (and later Warsaw Pact bloc) with designs on dominating (at least) Western Europe. That world is gone, and with it, the original and traditional rationales for continued U.S. participation in NATO.
Today, Europe is not broke. Today, Europe is not disorganized (e.g., Council of Europe, EU, etc.) And today, the Soviet Union, Warsaw Pact, and expansionistic atheistic world communism are no more. It is true that Russia is a great regional power, and it is a real threat to its neighbors. But Russia is a threat which Germany and France, in cooperation with one another and with other European countries, can defend themselves from. Russia is only an American problem is you adopt the near messianic mission that the U.S. defense perimeter must include each and every nation of Western, Central, and Eastern Europe—including nations spun out of the former Soviet Union. If, in Professor ABC’s words, “El Caudillo” shifts the burden of defending Europe from the U.S. onto Europe—i.e., onto Europe’s soldiers and taxpayers—that might be a yuuge win for the United States—and the U.S.’s soldiers and taxpayers. It strikes me as the sort of policy difference that is part-and-parcel of “normal” democratic politics (as opposed to “El Caudillo” politics). Nor should Trump’s position come to us as a total surprise. This issue was contested during the presidential election. See https://www.factcheck.org/2016/05/whats-trumps-position-on-nato/. Again: all normal politics. Given the all too recent destruction of the Libyan state, under NATO auspices, by a joint adventure of the U.K. and France (with a green light from the U.S.’s State Department under Secretary Clinton), a serious unwinding of America’s defense commitments to NATO (and, perhaps, elsewhere) might put a needed damper on other such misadventures.
Professor XYZ: “Our Allies are being alienated while Putin gloats about the destruction of the European Union.” The United States has no tools to control Putin’s gloating, or the future of the EU. The dissolution of the EU, its continuation in its current form, or in some different future form—is not anything the U.S. can meaningfully control. (Unless, of course, one has a near messianic vision of America’s role in the world ... but I repeat myself.)
The future of the EU is in the hands of EU institutions, its member states, and the people(s) of Europe. When President Obama visited the U.K. and urged its people to vote against BREXIT, he did so at the request of the elected Prime Minister, but a majority of U.K. voters voted otherwise, and Cameron resigned. Surely some U.K. voters and some U.K. government officials were alienated by the President’s intervention. Was our ally, the U.K., alienated by President Obama’s intervention? It is a tricky question. The same is true with regard to Trump’s policies which impact our allies. Maybe some officials in the governments of our allies are alienated by Trump’s policies: that is quite possible. But neither Trump nor those foreign officials will be in office forever. Asserting that our allies are alienated seems a bit premature.
Perhaps, one reason that some of our allies’ governments are “alienated” is that Trump appeared quite serious in telling our allies to meet their 2%-of-GDP defense commitment—a NATO policy. It is a policy which is only being met by about 5 of NATO’s 28 members. See http://time.com/4680885/nato-defense-spending-budget-trump/. It might surprise some on this listserv that some Americans are alienated by our forever footing the defense bill (including the all too real human costs) on behalf of the free riders of Europe.
Seth Barrett Tillman, My Contribution to the Conlawprof Listserv, New Reform Club (June 13, 2018, 10:04 AM), https://reformclub.blogspot.com/2018/06/my-contribution-to-conlawprof-listserv.html
Monday, June 11, 2018
After hardcopy publication of Professor Victoria Nourse’s article in California Law Review (“CLR”), and in response to my critique, the student editors at CLR removed these quotation marks from extant electronic reproductions of Nourse’s article. Nonetheless, the student editors refused to publish any response by me in CLR or in CLR Online. Furthermore, I have received no assurances that an errata sheet will be published in any subsequent issue of CLR. Finally, I have no idea if these post-publication changes to Professor Nourse’s article were made with her approval, and I have received not one word of explanation from Professor Nourse in regard to all these strange goings-on.
Seth Barrett Tillman, What Is Going On At Student Law Reviews, New Reform Club (June 11, 2018, 5:57 AM), https://reformclub.blogspot.com/2018/06/what-is-going-on-at-student-law-reviews.html.
The passage above will appear in my next publication: Seth Barrett Tillman, The Foreign Emoluments Clause—Where the Bodies are Buried: “Idiosyncratic” Legal Positions, 59 S. Tex. L. Rev. 237 (forth. circa July 2018) (invited symposium contribution), https://ssrn.com/abstract=3096986.
The passage is speaking to a recent publication by Professor Victoria Nourse. See Victoria Nourse, Reclaiming the Constitutional Text from Originalism: The Case of Executive Power, 106 Calif. L. Rev. 1 (2018), http://www.californialawreview.org/wp-content/uploads/2018/04/1Nourse-33.pdf.
Wednesday, June 06, 2018
Some years ago ... then Prime Minister Harper was strongly criticized in Parliament and in the press for giving advice to the Governor General to prorogue the national parliament. He did this to delay a vote of confidence. Most academics took strong exception to Harper’s conduct. I did not. This is why.
January 4, 2010
January 4, 2010
.... That said, let me tell you my key criticism of your article. I am doing this from memory; so don’t hold me to anything or show this e-mail to third parties. It is quite possible that in writing on the fly I might misstate the position you took in your article.
It seems to me that you need some normative model or guidance or test from which you could determine when a Prime Minister [here Prime Minister Harper] is acting in his own self-interest or that of his party as opposed to his best determination of the public good. There has to be some give here. A Prime Minister is not supposed to be a neutral bystander and he should be able to see the continuance of his Government in office as part (not the whole) of the public good. The next test ought to be—as you indicate—was Parliament granted a full, [fair,] timely, meaningful, and free vote to determine whether a Prime Minister and his cabinet should continue in office, but a full, fair, timely, meaningful, and free vote requires a normative basis to make that judgment. It is not the Westminster tradition that a timely vote means whenever the opposition can muster sufficient votes to bring down the Government. Just as the Government can set the election date, it can, consistent with practice, set the time for confidence votes. Such votes should not be delayed indefinitely, i.e., until the next election. But they need not be tomorrow or on one day’s notice either. As I understand it, what Harper did was delay that vote. There was no allegation of offering opposition members personal benefits to get their votes. If the delay was used to go out to the people to explain the Government’s position (i.e., meaning that the Government put forward its view of what an all-opposition cabinet would mean for the country), then that seems consistent with democratic norms. Indeed, that is consistent with what I believe to be the highest aspirational norms of the Anglo-American tradition. In doing so, a Prime Minister isn’t bringing Parliament to “heel”—I think that was your expression. Rather, such a Prime Minister is making Parliament, including the opposition, accountable. It is true that a delay gives a Prime Minister [and his Government] some benefits—a lack of accountability during the time Parliament is prorogued. But it comes with substantial costs too. During that time, the Government loses the opportunity to move its legislation forward and the delay is seen as weakness on the floor of the House [and across the country at large].
For Harper to have violated a convention of the Constitution or to have given illegal advice to the Governor General [in regard to prorogation], you need to show (or so I believe) some sort of overreach beyond the norms of the [Canadian] Constitution. Such overreach might involve intentional actions by Harper out of self-interest, beyond merely seeking to extend the life of his Government. Such overreach would also include indefinite delay of a confidence vote. Finally, overreach would include seeking to check parliament through grants of lucrative office** to opposition members (or bribes paid by third-parties). [On the other hand], where the time of the delay is used to actively engage in politics, i.e. talking to constituents and the press, that isn’t abuse, that is virtue. You arrive at the opposite conclusion (as I understand your position) because your vision of Parliament is one of its having unchecked supremacy between elections—in that situation, the floor members are entitled to a free vote without notice [to the Government] and they should not be made to explain their positions to constituents outside of an [active] election contest. But if that is your position (and I could be wrong on that), then what is wrong (or so I believe) is your normative vision, not Harper’s conduct.
Finally, don’t the two recent Canadian by-elections, particularly BQ losing a seat to the Tories, indicate that Harper had sound prudential reasons for believing that the voters did not want an all opposition government?
Seth Barrett Tillman, Tillman on the Conventions of the Constitution, New Reform Club (June 6, 2018, 9:28 AM), https://reformclub.blogspot.com/2018/06/tillman-on-conventions-of-constitution.html
**I overstated the normative force of the convention in this particular sentence.
Welcome Instapundit readers!
**I overstated the normative force of the convention in this particular sentence.
Welcome Instapundit readers!
Monday, June 04, 2018
It is with great sorrow that we note the passing of our blogbrother, Mark DeForrest, who passed away at age 48 on June 2 after a brief illness. Since webpages come and go at institutions, it seems right to inter his CV, bio, and links to his most important legal scholarship here permanently at the New Reform Club, his home on the internet.
You are already missed, my friend. Already missed.
You are already missed, my friend. Already missed.
- TAMING A DRAGON: LEGISLATIVE HISTORY IN LEGAL ANALYSIS, Dayton Law Review, Vol 39:1
Law School and University Workshops
Sunday, June 03, 2018
CREW v. Trump (2d Cir. May 31, 2018): Plaintiffs second request for an extension--this time for a reply brief
Seth Barrett Tillman, CREW v. Trump (2d Cir. May 31, 2018): Plaintiffs second request for an extension--this time for a reply brief, New Reform Club (June 3, 2018, 12:00 PM), https://reformclub.blogspot.com/2018/06/crew-v-trump-2d-cir-may-31-2018.html.
Plaintiffs' document is here: Appellant's [sic] Unopposed Motion for an Extension of Time to File Reply Brief, CREW v. Donald J. Trump, in his official capacity as President of the United States of America, No. 18-474 (2d Cir. May 31, 2018), ECF No. 129-2.