Sunday, August 30, 2020
Monday, August 24, 2020
Seth Barrett Tillman, A Response to McKinney, Sagan, and Weiner’s ‘Hiroshima and the Myths of Military Targets and Unconditional Surrender’ (submitted to Lawfare on Aug. 24, 2020).
In their August 21, 2020 article on Lawfare, Hiroshima and the Myths of Military Targets and Unconditional Surrender, Katie McKinney, Scott D. Sagan, and Allen S. Weiner wrote:
Evaluating the military advantage of an attack under jus in bello [rules for conduct during war] principles must be assessed in light of a state’s overall war aims, which are themselves subject to legal and moral constraints. Admittedly, the principles governing the terms that states may impose as conditions for ending war—whether under the framework of jus ad bellum [rules regarding the resort to force] proportionality or jus post bellum [rules regarding justice after war]—make up one of the least well-developed areas of the law of armed conflict. But there are limits on the ends states may seek in terminating wars. As the Defense Department Law of War Manual notes, “the overall goal of the State in resorting to war should not be outweighed by the harm that the war is expected to produce.” This principle applies at the end of a war as well. Because it would have entailed the awful human costs of an invasion, Truman’s demand for Japan’s unconditional surrender to end the war was indefensible. Seeking to avoid the larger losses that would flow from an unjust demand for unconditional surrender cannot justify the Hiroshima attack. (bold and underscore added.)
The passage marked in bold is used to support the prior proposition, which was “that there are limits on the ends states may seek in terminating wars.” But the specific quote extracted from the Law of War Manual, I suggest, means exactly the opposite of what the authors think it supports. As such, perhaps, some reconsideration may be in order?
For a view of the wider subject-matter different from the three authors, the careful reader might consider my 1-page 2015 article which appeared in the Claremont Review of Books.
Seth Barrett Tillman, ‘Lawfare’ does not post corrections: A Response to McKinney, Sagan, and Weiner, New Reform Club (Aug. 24, 2020, 8:53 PM), <https://reformclub.blogspot.com/2020/08/lawfare-does-not-post-corrections.html>;
Saturday, August 22, 2020
"Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience." C.S. Lewis
- "Police have been forced into the extraordinary measure of smashing car windows to get Victorians to comply with second wave COVID-19 restrictions in Victoria. “On at least three or four occasions in the past week we’ve had to smash the windows of people in cars and pull them out of there so they could provide us their details because they weren’t telling us where they were going, they weren’t adhering to the chief health officer guidelines, they weren’t providing their name and their address,” Victoria Police Chief Commissioner Shane Patton said."
- "Police have been forced to shoot through a 64YO driver's window after he drove at them at an Altona Meadows servo. It was 1.20am & officers asked him to stop so they could question why he was out after curfew. He's now in hospital (medical cond) under guard."
- Completing a trifecta out of Victoria: Police officer chokes a 21-year-old woman and wrestles her to the ground for not wearing a face covering out of doors.
- Two women in Orange County reportedly were locked in a Mother's Market by the manager until police could arrive to arrest them. Mother's Market is a grocery chain offering vegan, organic, and fair-trade options. The women's crime: not wearing a face covering.
- Los Angeles Mayor Eric Garcetti “deputized” thousands of “Karens” with his “snitches get rewards” program to encourage people to inform on companies not practicing social distancing or opening against local strictures.
- A woman with a medical condition preventing her from wearing a mask recently entered a Walmart in Summit County, Utah, where masks are mandatory. In that Utah county, residents are required to report on anyone seen without a mask so that the police can report to the scene.
- The French government is sending riot police to the Marseille region to help enforce mask requirements.
"Doctor and policeman, enhanced by the application of science to their endeavors, were to be the foundations of a wholly new political undertaking. If the pursuit of health and safety were to absorb men and they were led to recognize the connection between their preservation and science, the harmony between theory and practice would be established. The actual rulers, after a couple of centuries of astute propaganda directing popular passions against throne and altar, would in the long run be constrained by their subjects and would have to enact the scientists’ project. The scientists would, to use Harvey Mansfield’s formula, be the hidden rulers. The ends pursued by politicians and the means they use would be determined by philosophers. Scientists would be free and get support, and scientific progress would be identical to political progress so conceived."
Friday, August 14, 2020
I mean, what would you expect from a school named after a slave trader?
Re: Notice of Violation of Title VI of the Civil Rights Act of 1964
Dear Mr. Spivack: I write to notify you that the United States Department of Justice has determined that Yale University violated, and is continuing to violate, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., by discriminating on the basis of race and national origin (hereinafter “race”) in its undergraduate admissions with respect to domestic non-transfer applicants to Yale College. Yale’s discrimination is long-standing and ongoing.
For example, the likelihood of admission for Asian American and White applicants who have similar academic credentials is significantly lower than for African American and Hispanic applicants to Yale College. For the great majority of applicants, Asian American and White applicants have only one-tenth to one-fourth of the likelihood of admission as African American applicants with comparable academic credentials.
For example, data produced by Yale show that Asian American applicants have a much lower chance of admission than do members of Yale’s preferred racial groups, even when those Asian Americans have much higher academic qualifications and comparable ratings by Yale’s admissions officers. Every year from 2000 to 2017, Yale offered admission to Asian American applicants to Yale College at rates below their proportion of the applicant pool. [Emphasis mine. -tk]
We would like to secure Yale’s compliance with Title VI by voluntary means. 28 C.F.R. §§ 42.107 & 42.108; see also 42 U.S.C. § 2000d-1. To that end, Yale must agree not to use race or national origin in its upcoming 2020-2021 undergraduate admissions cycle, and, if Yale proposes to consider race or national origin in future admissions cycles, it must first submit to the Department of Justice a plan demonstrating that its proposal is narrowly tailored as required by law. Any such proposal should include an end date to Yale’s use of race.
According to the “disparate impact” theory, Yale is prima facie guilty of racism because the rate of Asian admissions is much lower than the proportion of Asian applicants.
Thursday, August 13, 2020
The knives have come out (again) for my old law professor John Eastman for his piece setting up the legal analysis concerning the Natural Born Citizen Clause and Democratic vice-presidential candidate Kamala Harris. There was much heavy breathing about it on my Facebook feed; I hope they were wearing masks.
The overwhelming response to the constitutional argument? Racist. Obviously. It has never been considered a valid argument. So what else could it be? When has the Natural Born Citizen Clause ever been used against a white candidate?
"The family's frequent moves later spawned accusations that Chester Arthur was not a native-born citizen of the United States. ... Had that been true, opponents might have argued that Arthur was constitutionally ineligible for the vice presidency under the United States Constitution's natural-born-citizen clause.".
We might find our history more interesting if we didn't find it merely racist.
Tuesday, August 11, 2020
The Origins of the "Grandfather Clause" Are Actually in Northern Anti-Immigrant Bias, Not Southern Racist Bias
(1850s Know-Nothing Cartoon Depicting Irish and German Immigrants Affecting the Election)
The court explains:
"We decline to use that term, however, because we acknowledge that it has racist origins. Specifically, the phrase "grandfather clause" originally referred to provisions adopted by some States after the Civil War in an effort to disenfranchise African-American voters by requiring voters to pass literacy tests or meet other significant qualifications, while exempting from such requirements those who were descendants of men who were eligible to vote prior to 1867."
Except, that is not actually correct, as NPR reported some years ago. The practice of "grandfathering" does not have its origins in anti-black sentiment in southern states. In fact, the term was used earlier, and in the north -- ironically, in Massachusetts -- against the surge of immigrants from Ireland, Germany, and Great Britain. Google's Ngram results also show pre-Civil War use:
Discrimination against Irish, German, and British immigrants would have been based in anti-immigrant sentiment, and possibly ethnic sentiment. But to say the practice "has racist origins," particularly against blacks in the post-Civil War south, is historically inaccurate.
But progress is progress, even if ahistorical, right? Sadly, no. U. Penn linguist Nicole R. Holliday (who, the NY Times deems relevant to note, is black), "said she would not correct her own mother if she used the term 'grandfathered' in casual conversation, because doing so would be 'actually rude, and it doesn’t accomplish the goal of creating a more equal society.'" Still, Prof. Holliday supports the decision. Replacing the term, she says, even if it won't accomplish anything, is "not too much to ask."
The good professor is on to something. Our fellow Americans need only ask, in earnest, and we should only be too happy to find an alternative to words that make them uncomfortable. It is the litigious approach that one finds grating -- the approach that begins by mining the record for evidence and arguments (even if faulty); the approach that pits victim groups against oppressor groups; the approach that assumes all the work of justice lies in establishing guilt.
Besides, were I to advocate for a client seeking the protection of a "grandfather" zoning clause, I would have misgivings about associating it with statutes long-held to be illegitimate. (Not to mention we all know how racist grandfathers tend to be.)
And yet: the Massachusetts court does not question the land use practice formerly known as "grandfathering." So governments may still allow nonconforming preexisting land uses. Just don't call it grandfathering.
Wednesday, August 05, 2020
|NYC Mayor Bill de Blasio, writing a message on a city street. What is he trying to say?|
The manager of a fruit-and-vegetable shop places in his window, among the onions and carrots, the slogan: “Workers of the world, unite!” Why does he do it? What is he trying to communicate to the world? Is he genuinely enthusiastic about the idea of unity among the workers of the world? Is his enthusiasm so great that he feels an irrepressible impulse to acquaint the public with his ideals? Has he really given more than a moment’s thought to how such a unification might occur and what it would mean?I think it can safely be assumed that the overwhelming majority of shopkeepers never think about the slogans they put in their windows, nor do they use them to express their real opinions. That poster was delivered to our greengrocer from the enterprise headquarters along with the onions and carrots. He put them all into the window simply because it has been done that way for years, because everyone does it, and because that is the way it has to be. If he were to refuse, there could be trouble. He could be reproached for not having the proper decoration in his window; someone might even accuse him of disloyalty. He does it because these things must be done if one is to get along in life. It is one of the thousands of details that guarantee him a relatively tranquil life “in harmony with society,” as they say.
|Photo by Michael Tracey|
He said there were two great opposing institutions involved: the Catholic Church with its traditional thousand-year-old rites and the civil institutions that must supplant the thousand-year-old rites with their own. He said that people would stop going to church to have their children christened or to get married only when our civil ceremonies had as much dignity and beauty as the church ceremonies.
I asked my old classmate what he did with people who didn't want to take part in his ceremonies, whether there were any such people. He said of course there were, since not everybody had come round to the new way of thinking yet, but if they didn't attend, they kept receiving invitations, and most of them came in sooner or later, after a week or two. I asked him whether attendance at such ceremonies was compulsory. He replied with a smile that it wasn't, but that the National Committee used attendance as a touchstone for evaluating people's sense of citizenship and their attitude towards the State, and in the end people realized that and came.
In that case, I said, the National Committee was stricter with its believers than the Church was with theirs. Kovalik smiled and said that could not be helped.