Steve Harris
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  • Condemned to Repeat It

March Madness

3/31/2023

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There are many excesses of capitalism. Indeed, one of the central problems with the whole concept (i.e., a money-based epistemology) is that there are no inherent limits or balancing values. Unless some cultural/moral value can be quantified and incorporated into the market; it gets ignored. Education, especially at the college level, has already been well caught up in the whirlwind of career and earnings. Humanity (both the group and the value) and the Humanities (plural of the latter) seem to be fighting a rear-guard action.

Another aspect of the capitalist perversion of education can be found in college sports. The friendly and inherently meaningless competitions of youth are increasingly packaged and quasi-professionalized. The values that would justify the otherwise nonsensical pursuit of various sized and shaped balls—camaraderie, cooperation, perseverance, self-discipline, and “sportspersonship”—have taken a back-row seat (on a bus!). To be sure, colleges still mouth the mantras of noble aspiration, but they put their money/time/prestige into luxury-box-equipped arenas, coaching salaries and training palaces. Chatbot tells me that the average Division 1 college basketball head coach is paid $2.7M and the average college professor is paid $80,000 (a ratio of 34:1). Something is clearly out of whack.

I was recently discussing the surprising outcomes (so far) in the NCAA Men’s Basketball Tournament with a friend of mine, who is a fully registered fan of many sports (particularly baseball and basketball). He explained that since it is now legit for college athletes to be paid for endorsements (since 2021) they are incented to play for teams and in cities where they can best leverage their “brand” and bring home pretty substantial (6-figure) bucks. The NCAA even made it easier for them to transfer from school to school. Thus boosting the game of the U of Miami. The whole thing is a recipe for corruption. (I offer no explanation for Princeton’s Cinderella act or other upsets during the tournament).

Now, I do not begrudge young athletes “cashing in” on their abilities. The line between “professional” and “amateur” athletes is hopelessly blurred. Rather, my concern is with the remnants of integrity to be found in the halls of academe. Under the rubric of “competition,” such student-athletes are scouted, recruited, subsidized, tutored, and graduated on the backs of a wave of resources that dwarfs those available to the average student.

And for what? The prestige of being an also-ran in a tournament of the top 72 college teams in the country (i.e., one of the 71 teams that didn’t win; that’s over 98% of them). A tournament whose results, particularly for these “also-rans,” and after a year or two, fall into the nether reaches of Wikipedia.

In this critique, I understand and dismiss the arguments that “all the extra money comes from outside fans/donors,” and that colleges “profit” from college athletics financially (as well as in terms of prestige). These rationales are prime evidence of submission to capitalist mentalités from institutions who are increasingly struggling to deliver their prime objective: productive and responsible adults/citizens. These colleges all have well-honed machines that take all manner of government research grants and shave off 5-10-15% as “overhead,” which funds go into the general university budgets. Why not a 25% slice of all athletic donations to support actual education?

Why not a cap on college coach’s salaries at three times the average salary of full professors or the average of the top five academic administrators in the university?

Why not a limit on recruiting expenditures? There are plenty of paid and alumni talent scouts out there. Why should some coach from Texas be scouting in California (or vice-versa)? The talent will rise, it can just rise locally.

Why not limit the number of athletic scholarships and put the resources to academically capable but needy students? Or, at least, have the scholarships available only to students from the home state of the institution? What would be lost to society if players played for the schools in their home states?

Such steps might have a marginal effect on the big athletic programs around the country, but their enactment would be a useful signal of purpose and values. This is especially true for public universities (who generally have the biggest programs and the smaller academic endowments).

More radically, universities could just drop their programs in the sports that have the biggest professional leagues (basketball and football). Right now, these (very) profitable businesses are getting all their talent developed for them at virtually no cost. Let’s have them set up “minor leagues” as baseball does. They could even keep the same uniforms and pay the universities rent on their stadiums. In fact, just to keep it simple, each university could sell its “franchise” lock/stock/barrel to the NFL/NBA. The operations could remain as they are, but wouldn’t be formally part of the University. Coaches and athletes would be paid market rates, but the fiction of “scholar-athletes” could be dispensed with.

In the end, it’s not clear to me why intra-mural sports or friendly club competitions between schools in a region couldn’t achieve the same level of benefit to the students in terms of camaraderie, cooperation, perseverance, self-discipline, and “sportspersonship” without all the empty hoopla.
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Law as History

3/24/2023

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I was talking with a History Department colleague recently who was asking about the strange relationship between law and history. They were referring, in particular, to the peculiar notion of “precedent” in the Anglo-American legal tradition which is, after all, a form of historical analysis although one that most “regular” historians might wonder at.

There are, in fact many ways in which law and history intersect. There is, for example, an entire branch of history that looks at the development of law as a set of ideas and of practices (both statutory and judicial) with widespread social effects. My own research, on public international arbitration and on certain forms of imperial treaties, focuses on this field.

However, my colleague’s question got me thinking about how law (in the particular mode of litigation and judicial decisions) uses history and historical forms and practices. Lawyers will tell you that they deal with two things in each case: the “Law” and the “Facts.” In a sense, each judicial decision describes the intersection of two stories, i.e., two histories: one is a story/history of the law and the other is a story/history of the facts. Actually, given the complexities of life and of the legal process, there are always multiple stories in each category: different pieces of the law are brought into consideration in each case and there are usually multiple sets of facts (not least of which are the “substantive” facts (e.g., which car ran into the other, who said what in a business negotiation) and the “procedural” facts (e.g., who filed suit, against whom, in what court, using what theory, etc.)).

Lawyers, in arguing their case, and judges, in their opinion, each construct each type of story; that is, they’re writing history. Yet, while they’re all trained as lawyers, only a few are trained as historians. Having run the gauntlet in each discipline, I can tell you that they are not the same thing at all.

Take, for example, the idea of “legislative history,” i.e. the idea of looking at the debates and information considered by the law maker (e.g. Congress) as it was adopting a particular statute as a means of figuring out how to interpret that statute. It’s a highly constrained mode of history. Legal parameters about written documentation and official records ensure that judges consider only a subset of the motivations and understandings of law-makers. Was a niece of a House committee chair diagnosed with an ailment a few months before legislation was enacted to add that ailment to Medicare coverage? Highly relevant, to be sure, certainly a factor that a regular historian would consider; but nowhere to be seen in the “legislative history.” Then there is the problem of parsing out who thought what in the course of a legislative process that involved hundreds of people. Whose perceptions and statements count for more than others? What did they really think?  These imponderables are part of why “constitutional originalism” (one variety of “legislative history”) is particularly fraught as a method of interpretation. So, this makes for good interpretive law-making (of the judicial variety), but it’s nothing a historian would sign on to. That’s part of the reason most historians think that constitutional originalism is bunk. Indeed, most “historical assessments of legislation are broad in their consideration of different factors and generally avoid relying on particular causative chains since getting into people’s heads is a dicey historical proposition.

On the other hand, if we accept that history is (in the words of E.H. Carr) “a dialogue between the past and the present,” then we can see that the legal principle of precedent (i.e., sticking with past decisions unless there is a clear and articulatable change of circumstances) seems to fit the historical bill. Negligence principles, for example, date back hundreds of years in the Anglo-American legal system. They hadn’t seen the need to create “no left turn” lanes for cows in 14C England; but by the turn of the 20C, when motorized vehicles appeared on the scene, there were no explicit rules about their proper operation and liability for accidents. Courts adapted traditional principles to the new set of circumstances. This required extracting the essence of the jurisprudential idea and distinguishing the old set of facts from the current circumstances; precisely what historians do…in a sense. But, it’s pretty rare to see court decisions thoroughly analyze the historical context of the decision they’re citing as precedent. The law (and judges and lawyers) can do this because their focus is on the principles, not on the historical facts. Instead, precedent exists as a stack of rules/principles which need interpretation in the present day. The articulation of difference in order to justify a new result (i.e. an updated principle) is what judges do. By comparison, historians—while we articulate difference over time as well—are interested in the historical facts and not (if we’re being good historians) in judging current events.

A trial, on the other hand, is about producing a coherent story of what happened; as is an historian’s analysis. Of course, neither the judicial trial nor historians’ processes should be confused with determining the “truth” of a situation. Both have limits; and both acknowledge their limits, but there are some shared and some different constraints. For example, the “hearsay” rule or the 4A exclusion of improperly seized contraband both ignore pieces of evidence (i.e., create gaps in the stories being constructed) that historians love to chew over. Both require footnotes (although sometimes for different purposes) and lawyers require chain of custody of incriminating evidence. Both work with sources of limited reliability: memory, bias, and gaps. Both try to get at this “truth” thing, both know they will fail, and both are surprisingly comfortable with that failure. For lawyers, the priority is the immediate case and the client. For historians, the priority is the process of increasingly approximating the truth over time and (or should be) the honing of minds and souls.
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Britannia Rules the Waves

3/17/2023

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The unofficial anthem of the (British) Royal Navy is based on an 18C poem, famously set to music by Thomas Arne. The refrain goes: “Rule, Britannia! Rule the waves; Britons never, never, never, never will be slaves.”

I haven’t beat up on the Brexiteers for a while, so the latest kerfuffle provides a good opportunity to do so. The “return to [Tory] normalcy” embodied by Rishi Sunak’s administration has manifested itself in this regard by finally striking a deal with the EU over the status of Northern Ireland. Such a deal was feasible when the negotiations began in 2018 and it took this long primarily because of table-pounding by those who are still living in the (early) 20C in terms of the British Empire. Even now, Boris is unsure he can support it (although specific critiques and alternatives are, as usual, lacking).

Attention has now turned to one of the principal proffered rationales for the entire Brexit process, i.e., the country’s inability to control its borders. Now that the UK is freed from the tyranny of the Eurocrats of Brussels, it has struggled to come up with a way of dealing with immigrants, most of whom (people of color) have gone through unbelievable dangers and deprivation to find opportunity in the country that claims to be the historical champion of liberty.

One might think that with a Prime Minister and Home Secretary both of whom are children of immigrants that British policy would be sympathetic and supportive. Instead, in the manner of pulling up the drawbridge after you have safely scuttled inside the castle, Sunak and Braverman have concocted a couple of “play-to-the-electoral-base” schemes for dealing with asylum seekers and other immigrants.

Last year, they developed a plan to ship these poor folks to Rwanda. Yes, in the middle of East Africa, about 2,000 miles away (even further than most of these immigrants have traveled). Now, I won’t even get into the legal complications (domestic and international) of this plan, but the whole thing smacks of imperialism redux. The Tories don’t care about the optics or the ethics, but the legalities have tied this up in the courts.

Which leads us to the latest bit of “Little England” cleverness. Under the newest proposal, immigrants seeking asylum who make it across the Channel will be deemed illegal and deported if they arrive in “small boats.” You don’t need to get into such underlying questions as morality, justice, and international law, the causes of international migration (poverty, war, oppression, etc.) to be gob-smacked by this approach.

Apparently, if you come over on a plane or take the train through the Chunnel, you’re OK. Presumably, if you paddle in on a surfboard (or swim across the Channel), you’re OK. If you arrive on a “large boat” (e.g., a Russian oligarch on his super-yacht), you’re OK.  Will they have a tape measure on hand in Dover Harbor to assess the length of the boat? Go figure.

Apparently the last time this many small boats were active in the Channel was during the evacuation of Dunkirk (1940). Times have changed.

Apparently, the Royal Navy can’t stop the onslaught. The island’s defenses, sturdy enough to deter both Napoleon and Hitler (“fight them on the beaches” and all that), are no longer up to the task. Apparently, Britannia no longer “rules the waves.”

This plan, too, seems to violate international law on the treatment of asylum seekers and will be undoubtedly challenged in court should it make it through Parliament. But, it is the attitudes of the British Government which are more striking that the questions of formal compliance. Britain’s loss of control of its borders has little to do with its participation in the EU. The Government thinks they’re back in the era of Admiral Lord Nelson or First Lord of the Admiralty Winston Churchill. However, the Royal Navy can’t cut it anymore; its impotence a sobering symbol of the decline of British global/imperial/military power.

It's this longing for the grandeur of the past that lays behind the entire Brexit project. For the past eighty years, the UK has been trying to deal with its imperial decline: Humiliated by an abortive invasion of Egypt during the 1956 Suez Crisis; watching most of the Empire peel off by the 1960s; finding some solace in the EU from the 1970s (until 2021). If it weren’t for the perennial reluctance of Italy to become modern, the UK would be the 4th largest economy in Western Europe. It’s already being outpaced by the former “jewel in its imperial crown” (India). It’s a long way to fall and it will take another generation for this all to sink in.

Brexit may have ensured that Britons will “never, never, never, never be slaves” to Brussels. Freeing themselves from the past is another matter entirely.

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Sunset Boulevard

3/10/2023

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Sunset Boulevard

The most politically effective moment of Biden’s recent State-of-the-Union Address was the off-script interchange occasioned by his poke at Republicans about undermining Social Security and Medicare. He pointed out—accurately—that some in the GOP (particularly Sen. Rick Scott) favor sunsetting all federal laws and requiring them to be debated and renewed/revised/eliminated every five years. Paul Krugman, with whose NYT column I usually agree, chimed in a little later with a general attack on sunsetting legislation. I think they’re both wrong.

First, and just to ensure that I never will get elected to national political office, let me break with the Dems and stand firmly atop the “third rail” of US politics by saying that Social Security needs major reforms. Indeed, it’s a great example of why Krugman’s aversion to sunsetting is so wrong (but more of that later).

Set up in the ‘30s as part of a broad restructuring of US social policy, Social Security has been a great success overall and should continue in a modified form. Besides cleaning up any number of administrative problems, there are three major changes I would: 1) getting rid of the “trust fund” illusion, 2) deferring eligibility dates, and 3) stop subsidizing rich folks too.

You can argue with the above list, both conceptually and as to specific remedies, but the underlying point is that times change and the law needs to change with it.

This leads to sunsetting. The problem is inertia: political inertia. Krugman is right to point out that our current politics are dysfunctional, but even when things were running more smoothly, there was a lot of “kick-the-can-down-the-road” going on. Politics is like that. Changing circumstance in the real world don’t get attention in the legislative process very well. We need to turn up the heat on our legislators to pay attention and update our laws and policies.  Being an old telecommunications policy guy, I always had to shake my head when I saw the interminable debates on what turned out to be the Telecom Act of 1996—which had been first introduced in 1976! By the time it was finally enacted, it brought US telecom policy firmly into the 1970s. Despite the bewildering change in technology and industries since then, there’s been no real updating of the law in that area since, too! Sen. Tim Kaine has been championing a repeal of the Iraq War authorization legislation (from 2001) for similar reasons.  The list of overdue updating and expirations is way too long.

But even if I think we need an automatic relook at legislation, I don’t agree with Sen. Scott’s proposal to sunset every federal statute after five years. That’s way too short. If you look at the US Code (the compilation of federal statutes) it’s 6550 pages long. Requiring a rewrite of each provision under Scott’s timeline would be 1300 pages/year on top of new legislative ideas, plus the appropriations process. It’s too much. It would turn into a superficial, pro forma charade and further undermine the seriousness with which we should take our laws. In addition, there is not much change in most areas of law within a five-year time-frame. So, other than the mechanical indexing of various dollar-level provisions (e.g., moving the trigger levels for a 10% or a 20% tax rate to keep up with inflation), there’s not much point. (Of course, you could argue that Scott’s entire proposal was political theater; performative legislative posturing to the right-wing “government is too big and over-regulatory” mentality.)

Instead, I’d like a 20-year sunset. That’s enough time to see the social/economic changes in the world and adapt the legislative model to them. It’s not too much of an annual burden on the legislative process. It would prevent the egregious examples of obsolete legislation and might spur some affected folks or congressional staffers to take a fresh look at what’s on the books.

Yes, there’s a risk—even on a 20-year cycle—of the process falling into routine and ritual renewal; but it would be a better use of Congressional time than any number of silly and performative actions that they spend their energy on now.

Krugman argues that a five-year sunset would undermine stability: the important ability of citizens to rely on what the law is and be able to plan one’s life accordingly. He’s right of course, but a longer-term cycle would obviate much of that and there is something important (if intangible) to be gained from the respect due to keeping laws current.

Even with regard to the particular political hot-button du jour—Social Security and Medicare—it’s the politics (i.e., the fear of political backlash) that keeps them on the books, not the formal lack of a sunset. Indeed, as I argued above, there’s too much stability.

At the end of the day, there is no legal limit on what Congress can do (other than the Constitution); so, regardless of whether they call Social Security a “trust fund,” they could still flush the whole thing in a week. Instead, if you added a constitutional sunset requirement, you could insert an exception that long-term commitments be honored (sort of like the current clause protecting the integrity of contracts), even if it’s likely to be a set-up for litigation on the details.

Krugman also bemoans the partisan and other legislative bickering that characterizes too much of our legislative process these days. He’s right that sunsetting would increase the opportunities for grandstanding (a la the debt-ceiling), but the underlying problematic attitudes will remain, regardless, and will find some situation they can hype up to generate press attention and re-election funds.

Ultimately, sunsetting would reflect a recognition that we shouldn’t be trapped by the past. We (whoever is around currently) should be making the decisions as to how we want to live; not the legislators of 30-50-80 years ago. Reliance on old laws is part of a broader disengagement with our political culture. We’ve gotten lazy and we need to step up.

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Time Warp

3/3/2023

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I was watching the returns from the Georgia Senate runoff election last year, simultaneously on NBC, 538, and the NYT sites. I felt a bit like I was on the Starship Enterprise, travelling at “warp speed” speeding by any number of separate dimensions with their own time planes and clocks. The political commentariat on these shows were throwing numbers were fast and furious, and the data were never the same as between the three tabulations. I don’t know if one organization was using different sources, or reporting data faster, or what, but it made for exciting TV. Warnock won in the end, by a decent margin, so—in the meantime—it was as Shakespeare said, a lot of “sound and fury, signifying nothing.” It’s an indication of our modern media frenzy, the desire for drama and adrenaline (which presumably sells ads).

But it’s also a marker of our strange relationship with time. The facts are settled, i.e., the votes had been cast. But, until they’re counted and announced, they’re rather like Schrodinger’s cat: neither dead, nor alive until we open the box, resolving the superposition. This was the basis of the (convenient) Trumpian analysis that initial vote counts in his favor were—somehow—the right answer to be preserved against being overturned by the later-counted (and therefore presumably fraudulent) votes.

We live in the world that we know. Unknown information doesn’t, in a sense, exist (yet!).

You can see the same time dilation if you watch a sports website spewing statistics about a live game. The data stream sometimes gets ahead of the nominally “live” broadcast of the actual event (e.g. Game Channel shows the Lions scoring a third touchdown (remarkable in itself!) while on the NBC broadcast, the score is tied at 14).

It is a hallmark of our 21C age that we live in that we expect instantaneous information, no matter the source or location. In earlier times, information would flow, in due course, with little to be done about it since horses/ships could only go so fast. The Rothschild banking house in London apparently made a pretty penny on getting the news of Napoleon’s defeat at Waterloo a bit faster than anyone else. Japanese soldiers isolated on obscure islands in the Pacific for years and decades still believed that WWII was ongoing. They didn’t know any better. Satellites (and later trans-oceanic fiber optic cables) brought it all home apparently “as it happened.” It was the wonder of simultaneity that made watching the Olympics “real-time” from Tokyo in 1964 the epitome of modernity. Stuff was happening in Japan tomorrow, but we could sit in our living rooms in the evening and watch Joe Frazier win the Gold Medal in Boxing. Time zones became tangible in a new and different way. CNN started its 24-hour news channel in 1980, so there was no more downtime; we could be plugged in continuously. About the same time, satellite-based telephony allowed for cheaper global calling, but it came with a price: quite apparent latency as the signal bounced off the satellite, making conversations stilted.

It's a sign of our times that this all seems ordinary now. Calls run on perceptively instant fiber cables. Cotton traders in Chicago and cotton farmers in Egypt learn almost instantly of a bad monsoon affecting Indian growers and they can both react in terms of the prices at which they buy and sell. We are used to conference calls (zoom/skype/teams/facetime) with participants in multiple times zones (and continents). What time is it, anyway?

We can say that “the world is getting smaller,” interpreting this phenomenon in geographical terms; pundits have been talking about the “death of distance” for decades. Or, we can say that the nature of time is changing. It’s not just the acceleration of events and the constant pummeling of “breaking news,” it’s not just the ever-faster modes of transportation (sorry, Concorde!) or the pace of tech (iPhone 23, anyone?).

The end of the differential of time/space is disorienting. It makes location less important (take that, real estate magnates!) and, since we literally orient ourselves by where we are, this can be upsetting. It makes clear that we are small pieces of a larger puzzle with little to do but plug into our corner of the WWW and forget that we have little control over our world.

And yet, as demonstrated by the voting tallies and the sports statistics, there are glitches in the system. We’re not actually in the stadium, nor in the office of the Georgia Secretary of State releasing precinct results. Our de facto distance varies by what means and channel we learn of what is happening there.

Does it really matter? The latter-day version of the Rothschilds getting the news from the Continent is the placement of stock-trading computers. When you’re pushing billions of dollars around, then a couple of micro-seconds can mean a real difference in the price you pay. Those micro-seconds can be minimized if you put your computer in Lower Manhattan as compared with Jersey City. Even at the speed of light, there’s a difference. But, just as Newtonian physics is more than adequate for most of us (leaving Einstein and quantum as curiosities); for most of us those micro-seconds don’t matter.

We may well get used to the fully-interconnected universal time in which the “infosphere” operates. The current rough edges will likely be smoothed away. Still, for those who might recall a certain cult film (1975), often marked by the tossing of toast, all I can say is: “Let’s do the ‘time-warp’ again!”

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Red Lines

2/24/2023

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One of the notable failures of the Obama foreign policy was his famous declaration  (April 2012) that the use of chemical weapons by the Assad regime in Syria against various domestic groups would be a “red line,” triggering US military intervention. The regime’s use of such weapons was documented within a year but no US intervention followed.

I was thinking of this (relatively) recent incident lately as I have been boning up on the history of genocide for my course this term. Indeed, there is a problematic pattern of Western/Christian/European powers decrying behaviors on the part of Arabs/Muslims/other “Orientals” as being uncivilized/morally outrageous and demanding that such activities cease forthwith. The condemning powers then proceed to wrestle with what to do about such evils but rarely actually step up to their (our?) Modern/Western/Christian morals.

This pattern began in the 19C with the British wringing their hands over the “Bulgarian horrors” in the 1870s in which the Ottoman Empire brutally suppressed an effort by Bulgarian Christians to break away. One result was a set of treaty provisions under which certain Christian communities within the Ottoman Empire were placed under the “protection” of various (Christian) European powers (i.e., Britain, France, and Russia). This included the Armenians, one of the largest such groups whose members were scattered across Anatolia (present-day Turkey).

For a variety of reasons, these Armenian communities continued to be oppressed by Ottoman authorities, despite nominal protests from the Christian powers, culminating in a set of massacres in the mid-1890s and again in 1915 (what is generally seen as the “Armenian Genocide”).

We can see a parallel situation in Europe as Nazi Germany dramatically enhanced endemic antisemitism in the 1930s, pressuring Jews (in particular) to leave the Reich.  With limited exceptions, these same modern/Western/Christian powers (e.g., Britain, France, Switzerland, the US) refused to accept Jewish refugees and found all sorts of excuses for not fully engaging with Germany on this issue.

One could say much the same about subsequent 20C genocides (e.g., Bosnia, Rwanda).

In considering this string of events, I have been pondering the role of guilt. That of the perpetrators seems clear enough, as does the hypocrisy of the West. Still, I wonder whether the guilt of the Western powers plays a role in subsequent incidents. After all, as we all know from personal experience, it is much easier to blame the “other” (even with good substantive reason) than to pay close attention to our own role/responsibility/culpability and spend time figuring out how to clean up our own ‘act.’

In particular, could the intransigence of Western powers towards the Turkish denial of its genocide against the Armenians (going on over a century later) stem in part from its (our?) continued preference to focus on a clearly guilty perpetrator and not acknowledge that Western intervention in the Ottoman Empire in the late 19C could have stimulated Turkish resentment and contributed to the genocidal atmosphere which demonstrated the hollowness of the Western powers’ “protection” of Christian minority communities within the Ottoman Empire?

Similarly, the obvious and horrific actions of Nazi Germany often seem like a “black hole” in terms of historical analysis, distorting and diminishing the roles and responsibilities of others in the process. The awfulness of the Holocaust makes it especially easy to downplay the lack of moral action on the part of the Western powers (and easier to forget the various brutalities on the part of European  and American colonial/imperial powers over the centuries).

A raft of questions arises from these concerns, e.g.:
* How much of the founding of Israel was due to Western guilt over the Holocaust?
* Did the history of British (in particular) inaction over Christian communities in the Ottoman Empire affect how the subsequent Turkish actions have been portrayed? (i.e., are the Turks “worse” so that our failures seem less dire?)
* How did the European stumbling over the “ethnic cleansing” in the former Yugoslavia in the early 1990s affect how the Western powers approached the incipient massacres in Rwanda just a year later?
* How much did the Bush43 debacle in Iraq in the early 2000s deter Obama from a similar intervention in Syria a few years later?

There’s also an interesting question as to whether this whole set of questions in unique to liberal democracies. Our Modern priority on liberty and the rights/lives of individuals makes us especially sensitive to apparent oppression and brutality (Turkish/German/Serbian/Rwandan Hutus). At the same time, such countries have some degree of democratic control over whether and how to act internationally, usually colored by their relative wealth and history of international/imperial power. Stated differently, no one is concerned with Danish intervention and popular sentiment (either moral or isolationist) doesn’t have much impact on the foreign policy of authoritarian countries.

Even if there is moral clarity and a determination to intervene, there are real and significant limitations on the ability of even the most powerful countries to effect change in distant lands. Taking a moral stance without the power and will to follow up may (as perhaps was the case in the Armenian situation) aggravate the situation. Anguish and hand-wringing may be all that is practically possible. Then, there’s a whole set of economic and social trade-offs to consider. And, perhaps, there is some basis for caution in (self-righteous?) moral prescription on the part of Western powers whose own record is more than a little problematic. Overall, this is indeed, as Samantha Power said in her book (2002): “A Problem From Hell.”

So, even if I think Obama’s unfulfilled “red line” was a mistake with real consequences (e.g., Afghanistan, Ukraine), I can sympathize with the desire to do something…anything. But, at least when global politics is concerned, it may be better to decry, but not threaten; and any active intervention needs to be really well-planned and executed, because saber-rattling or failed intervention can easily have awful and long-lasting consequences.

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What is a Constitution?

2/17/2023

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As I have noted previously, the ailments of the American body politic have some deep cultural roots, stemming from a strain of isolationism/exceptionalism/entitlement which can’t stand the strains of globalization, accelerated change, and from the excesses of capitalist/individualistic mythology evidenced in inequality and environmental catastrophe. (Other than that, Mrs. Lincoln,….)

I’ve made a set of suggestions as to changing the US Constitution as one means of dealing with some of the structural problems with our system of government, but they don’t deal with these more fundamental concerns.

In an important sense, they can’t.

Amid all the talk about the end of Roe, court-packing, filibusters, and impeachments which have dominated our Constitutional discourse over the past several years, precious little attention has been paid to amending our constitution (i.e., intentionally lower-case).

The documentary version of a Constitution (capitalized) (which virtually every country has in the 21C) is a reflection of the power structure of its society. Of course, there’s always some distance between what a society says it is all about (e.g., democracy, equality, rule of law, true religion, etc.) and the actual way things work. Sometimes, that’s a good thing; sometimes, it presents problems: aspirations are striven towards or, in falling short, cause disappointment. In theory, the two should work into alignment over time.

A (lower-case) constitution, on the other hand, while it, too, follows from that underlying power structure, is a logical predicate to the formal document. It may be simpler to refer to the former as a societal constitution and the latter as a governmental Constitution.

In the case of many “failed states,” the societal constitution never coalesced or it has since unraveled. In the case of heretofore solidly democratic states which seem under siege, such as the US, the societal constitution seems to be fraying. And, naturally, there is only a limited amount of cohesive power in the written document if the ground underneath it is starting to shift and crack. Still, as the current debates in Israel demonstrate, without the (relative) clarity and stability of a written document, there is a chink in the armor of democracy which can be exploited by temporary majorities.

Sociologists and political scientists talk about two views of what a Constitution is (a “contractual” model and a “consensual” model), but I think they are actually talking about two different things. Some have gotten taken in by the relative stability of democratic societies in the later 20C and gotten overattached to a legalistic/formalistic vision in which the society is its Constitution. Putting the cart before the horse, they think concepts like law apply prior to the consensus/cohesion of society; but you can’t have a sense of social norms to be enforced by the institutional expression of society (i.e. a “government” or the “state”) without having a more-or-less understanding that there is a “We the People” whose agreement/consensus/inertia is the basis of the norms which eventually become laws.

In contrast to places where guns are still prevalent (e.g., Iraq, Afghanistan, Congo, Syria, Myanmar) or places whose authoritarian superstructure prevents the flow of ideas and the possibility of uncertain outcomes (e.g., China, Russia, Egypt, Cuba, Iran), most places (including the US) merely have to contend with sclerosis, inertia, and garden-variety corruption. Those societies (us!)  have the possibility of expressing themselves through a set of norms (and eventually laws); both a societal consensus and a written Constitution.

So what should this document comprise?

1) A statement of purpose/goals/aspirations (e.g. Preamble)
2) The delineation of the roles and status of individuals and groups (e.g. rights/responsibilities)
3) The structure of institutions empowered to act on behalf of the people  (or other basis of the societal power structure) in order to achieve the first-noted principles and purposes
4) A means of updating/revising the document.

Some while back, Jack Balkin, a law professor at Yale, wrote a piece which argued that the “real” constitution of the US was the Declaration of Independence of 1776, since that was the first and fullest expression of what we were doing together as a coherent society. From this perspective, he argued, the Constitution of 1787 was merely an engineering implementation guide for a government to get us to the aims Jefferson had espoused 11 years earlier. There’s a lot to this framing, but from a historical perspective, the practice of constitutionalism has moved on and we can load both aspects now into a single document.

All this is fine as a snapshot in time, but a Constitution (and certainly a constitution) is more than this: it’s a process as well as a product.  In an age of democratic constitution-making the participation of the people in the process of designing and debating their expression of aspirations and mechanisms not only validates and legitimizes the result, but, in an important sense,  itself also constitutes the society (and its political expression: the state).

In the US, we haven’t had such a process since the Reconstruction amendments (XIII, XIV & XV) in the aftermath of the Civil War (if even then), it is no wonder that we have become estranged from the document and, even more importantly, from the societal cohesion that comes with it. The last time there was a serious, widespread debate on a constitutional issue in this country was the ERA in the 1970s.

It's no wonder, therefore, that we have become estranged from our constitution and our Constitution. Instead, it has turned into scripture, to be pored over and parsed like a Talmudic study group or the medieval Scholastics of the Catholic Church. We devote the brilliance and energy of some of our sharpest thinkers to the (relatively) sterile process of determining the precise number of angels who can dance on the head of James Madison’s pin. We contort the language written almost 250 years ago to apply to modern society, technology, and international relations. We’re not thinking about what would work for us…now.

Moreover, we’re not engaging our society in trying to figure this out. We’re so wrapped up in the threat of the Trumpian “Proud Boys” and the foes of women’s right to choose that we seem afraid to take control of our constitutional future.

In the end, a constitution is the expression of a society as to what it wants to become and how it wants to get there. But, it’s not a passive process. We can’t wait for Moses to come down from the mountain top with two tablets. We have to wrest our future from the hands of our increasingly ancient past and, in the process, reconstruct who “We the People” is in the 21C
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Generations

2/10/2023

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Generations

In January, I saw in the news that Lucile Randon, then the oldest known person in the world (and the fourth oldest known person ever), had passed away. She was a few days short of her 119th birthday. Yes, that’s right: 119!

She was born in February, 1904 which made her the last person alive who had been born before my grandmother, Edythe (Rosen) Barnett. So, for me, besides a general interest in demographics and longevity (may you all live long and prosper!), Mlle. Randon’s passing marked a generational change: the era of my grandparents was finally over. Now, my parents have been gone for five and thirteen years, respectively, but there are some of their friends still around and, I expect, others of that generation will continue for another twenty years or so. And, of course, people of my generation have been dying for a long time. The first person of my cohort that I knew died when we were in high school. On current numbers, however, someone from my era is likely to make it to the 2070s; so we’ll be around for a while.

On the other end, I did meet one set of my great-grandparents, Moses and Pearl Rosen (Edythe’s parents), who were married for almost 70 years and died in their early 90s in the early 1960s. Not having any kids directly, I can’t “pass the torch” genetically, but my Great-Niece Emily Berg (who just had her first birthday) has, actuarily-speaking, a pretty good shot at living into the 22d century.

Together, then, I can directly connect within my family to 230 (+/-) years of history. It’s something to think about! 230 years takes us from Newton to Einstein, from Bach to Glass, from Leonardo to Manet, and from Washington to Trump.

Of course, at a personal level, my connection to Moses and Pearl on the one hand and Emily on the other doesn’t likely amount to a strand of great historical significance. Nobody in my family (even laterally) has risen to recognition in Wikipedia or whatever other measure of noteworthiness you might choose. Perhaps Emily will do something that merits widespread attention and I (and Moses and Pearl) will be appropriate footnotes in the first chapter of her biography; but, more likely, not. We’re more likely to be nothing more than links in the great genealogy tree compiled by the Mormons.

We’re ordinary in this way. The delight of a new birth, the celebration of birthdays, the marking of passing—all of which loom large in our day-to-day lives are, from this wider perspective, not much to get too excited about. They happen to everybody and this set of experiences (which I call my life) is not remarkable to anybody else. I think it’s helpful to see that this is true of everybody. We all face the same set (in our own versions) of life events/developments. Every family comes to a point where all grandparents are lost, then parents are lost, then we are lost, etc. etc. I (and at most three cousins) have the only conscious memories of Moses and Pearl; and, to be sure, they are already pretty faint. That’s all the living memory that is left of them. In due course, there won’t be any living connection to them and they will slip into the maw of the massive compendium of records of those who lived in the 19/20C; known only by a few scattered references in bureaucratic compilations.

They will take their place among those who were slightly visible in the past. And, visible at all only because of the trappings of modernity. Those born  a century or millennium earlier are almost all entirely vanished among the 100 billion humans of the totality of life on earth.

There is a part of me that struggles against this tsunami of anonymity. What can I do, I think sometimes, to leave a mark on history?  I think of those who gave some great sum to some institution to secure a building in their name or some other “permanent” memorial and I have to laugh (see Shelley’s Ozymandias.) I’m not likely to discover and name a comet that will cause my name to reappear every hundred years or so (Edmund Halley was, otherwise still quite an interesting character). I take some comfort (rationalization?) in my work as a teacher: a few published articles and some impact (of which they may be conscious or not) on the minds of students and their lives; but I don’t have any illusions of my prominence in the historical record. Even if I had kids, and progeny for multiple generations, then, as with Moses and Pearl, there would come a time150-180 years after my birth, when I, too, would fade from living memory and rely on my place in the census and other records.

As it is, I expect that will happen by the end of the century. While technology will preserve an increasing pool of traces of my existence, it’s not clear (even assuming that there is no digital degradation) that anyone will find them in the yottabyte (i.e., a quadrillion quadrillion bytes) ocean of data likely by then.

At this scale (of time and data), it’s not so clear how different humans are from ants or other creatures. But, we don’t live at such scales and only spend an inkling even contemplating them. As much as I am a big fan of long-term thinking, we can’t have any good idea what the world will be like five generations from now (any more than folks born in the early 19C had of how we live now). How could Moses and Pearl have any conception of the life that Emily will have? All we can do is nudge the ball forward as best we can and in whatever direction we can best guess makes the most sense.

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Laissez-Faire

2/3/2023

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Laissez faire

One of the many signs of a rudderless “conservative” political wing is the abandonment of  long-held tenets regarding the nature and role of government. Indeed, there is a robust line of thought back to the 18C (17C?) which includes Paine, Jefferson, Burke, and of course, Locke, who argued that government should be limited in scope and purpose lest it unnecessarily intrude on the lives and liberties of the people. Indeed, the very rejection of absolutist monarchies and the erection of states subject to controls/rule of law/separation of powers was to ensure that those states could not unduly trample on individual liberties. While this is pretty well established across our political culture, there has been some divergence since the middle of the 19C, with some (now associated with the “left”) advocating a larger role for government in actively promoting/enabling those individual liberties.; thus, the common (if awkward) label “liberals”. On the other hand, in modern American political parlance, at least since the early 20C, the Republican Party has stood in this tradition and associated itself with the free conduct of business and personal living. The recent trend among GOP’ers to attack private businesses for espousing certain political positions thus raises a raft of interesting questions.

Over the past few decades, those on the “left,” have pressured businesses (especially large corporations) to become more Environmentally-aware, Socially-responsible, and more transparent and open in their Governance, i.e., “ESG.” I’m not to get into the question of whether this is a wise or morally-beneficial approach (nor whether it has been unaccompanied by some degree of hypocrisy), but the ESG movement has gained some traction, especially among companies with a high public profile. This has manifested in companies being far more aggressive than what was expected of them 50 years ago in terms of espousing diversity/inclusion and prevention/condemnation of discrimination. We can see this in individual corporate policies, duly posted on web sites, statements of CEOs, and even boycotts of offending companies and states with antipathetic policies.

That such public positions have garnered vocal opposition is not surprising. There is a significant minority (at least) in this country who actively reject such “progressive” stances. Nonetheless,
it seems strange for public officials who proclaim their devotion to private sector freedom to seek to regulate and punish companies for exercising their own freedom to choose who to do business with. There is, to put it mildly, some tension between a pro-liberty position and one in which governmental power is harnessed to limit liberty in the name of certain moral views. It calls into question whether these self-proclaimed inheritors of Burke et al. are really part of the conservative (i.e. classical “liberal”) tradition? After all, what exactly is the governmental problem with a private citizen/corporation announcing that it will, e.g., accommodate transgender persons as employees? Why should elected officials (especially of the De Santis/Hawley/Cruz tendency) decry such expressions of liberty?

It’s the flip side of those on the left who have sought to use legal tools to impose their morality on the private sector generally. To read the progressive critiques of recent supreme court cases concerning religious freedom not to do business with or to “speak” on behalf of those with whom the business might have moral’/religious objection (e.g. developing a web site for a gay couple’s wedding) some liberty is OK, but other flavors are not. Ditto for complaints about Madison Square Garden using facial recognition software to screen its patrons. (Let me reiterate that I am not talking about the pros and cons of such policies per se, but rather whether they should be the subject of governmental pressure/constraint.)

Another curious angle is raised by Elon Musk’s efforts to determine who publishes on Twitter. We will leave to the side his business acumen in this regard. However, Musk/Twitter is a publisher, not too different from Murdoch and Fox, Col. McCormick and the Chicago Tribune (in an earlier age), or Jeff Bezos and the Washington Post. It’s pretty amusing (and a bit bewildering) to see folks accusing Musk of trampling their “First Amendment” rights. Last time I looked, the 1A regulates what government does; it doesn’t regulate the private sector. Its purpose was to ensure publishers have the freedom to publish what they wanted; not to force them (Musk, Bezos et al.) to publish (or not) something they didn’t want to. Stated differently, I (and other private individuals) have rights vis-à-vis the government, but not vis-à-vis publishers. So, if Musk wants to bar me from Twitter (crocodile tears here), he can and I’ll have to use Mastodon or some other social media platform (or start my own (like Trump’s “Truth Social” channel).  It’s hard to hear progressives endorse Musk’s 1A rights only insofar as he keeps Trump out of the twittersphere; just as those on the right want to investigate Bezos or other tech moguls who allegedly skew their platforms to the left.

All of this leads me to conclude that traditional liberal stream of thought is pretty much finis. (Of course there is a pretty good argument that (given the rather skewed religious, gender, and racial configurations of power in Western cultures in the 17-20Cs) this line of argument was always more about power than liberty anyway.) In the classic framing of the history of political philosophy, the argument was nominally about the power of the state versus the rights of the individual, but perhaps was really about the preservation/promotion of power and recruiting the state as the enforcer of certain moral positions and mentalities. These days, this argument shows up in more convoluted ways, but neither left nor right has a monopoly on intellectual contortion.

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CongressBot

1/27/2023

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Washington, January 26, 2023 – The early demise of Kevin McCarthy’s Speakership of the US House of Representatives has been the frequent topic of pundits since the results of last year’s election became clear. Few at the time, however, foresaw the upset election of a young gay Republican from Nassau County, New York would be the trip wire for McCarthy’s downfall. Fewer still, had any inkling of his replacement; indeed, even among the technoscenti, few had even conceived of, much less heard of the new Speaker three months ago.

So, it is an exceedingly rare (not to say bizarre) confluence of events that led today to the election of SpeakerGPT to preside over the House.

McCarthy’s downfall was triggered, as expected, by the rule he ruefully agreed to in early January which allowed any single Representative to make a motion to declare that the Speakership vacant, thus requiring another vote (or perhaps parade of votes) to select a replacement. The motion was made by freshman Representative George Santos (R-Denial) when Santos learned that McCarthy was going to allow a vote on whether Santos would be expelled from the House for any number of false statements, likely election law violations, and a variety of expected fraud charges.

Santos made his motion while Representative Lauren Boebert (R-Heterotopia) was presiding over the House as Speaker Pro Tem, a duty which is regularly rotated among members of the majority. Boebert, upon hearing Santos’ motion, said: “Sure, what the H---, let’s do it.” Unfortunately for McCarthy, he and the rest of the House Republican leadership team were at NRA Headquarters in suburban Virginia for a briefing and couldn’t make it back to the Capitol in time for the roll-call vote. A sufficient number of Democrats were, however, present, and the Speakership was declared vacant by a vote of 212-192.

Former Speaker Nancy Pelosi (D- Semi-retirement), who had been minding the floor for House Democratic Leader, Hakeem Jeffries (D-NY) then immediately moved that SpeakerGPT be elected to the post and the motion was carried by the same tally.

Under the Constitution and the House Rules, the Speaker need not be a member of the House, indeed, there is no requirement that the Speaker be human, or even an American.

Pelosi, later asked about why she chose to nominate SpeakerGPT said: “I wanted to find someone who would sound intelligent and fair. I wanted to find a Speaker who would bring the same authenticity and human connectedness to the job as the average Republican so that they wouldn’t be too upset about the situation. Besides, it’s made in San Francisco; so how could it be bad!”

Sources in Pelosi’s office said that they had just heard that the artificial intelligence program called SpeakerGPT was being launched as a one-off variant of the publicly available AI called ChatGPT.  Open AI, the company behind both AI models confirmed the report. ChatGPT, which had been publicly announced only in December, had set off a heated controversies about the impact of artificial intelligence in schools and public forums across the country.

According to Open AI, its new model, SpeakerGPT, is specially adapted to replicate the intelligence of the average member of Congress. An Open AI engineer, who was only willing to speak without attribution since they weren’t authorized to represent the company, said that “It wasn’t too hard to make the adjustments. We dialed down the logic processor, randomized the intelligence processor, and eliminated the learning functionality. After that, it was simply a matter of spinning up the bloviating vocabulary ratio and we were set to go.”

Shortly after being sworn in, SpeakerGPT said: “As Speaker of the House, my ultimate responsibility is not to my party, my conference, or even our Congress. My responsibility — our responsibility — is to our country. Our nation is worth fighting for. Our rights are worth fighting for. Our dreams are worth fighting for. Our future is worth fighting for.”


SpeakerGPT then adjourned the House sine die (i.e. for the remainder of the term).

When asked whether it was referring to humans, Republicans, or Americans when it used the word “our,” with regard to “country,” “nation, “ “rights,” “dreams,” and “future,” SpeakerGPT smiled, but had no comment.

When asked for comment, Representative Santos, who started this entire chain of events, said: “I’m delighted. McCarthy was about to throw me under the bus. It’s another reason to be against busing.  

“I mean, really, Jake [Representative Jacob Auchincloss (D-Mass)] just read an AI-generated speech on the House floor yesterday. What’s the difference? Think of all the money and time we could save if we just had a bunch of AIs up here doing the legislating. They could be programmed by the voters of their district. It seems like it would be a lot more efficient than how we do it now. Besides, my own election shows that voters don’t really care if candidates make stuff up. In fact, I am planning to launch a whole series of SantosBots to run in districts all over the country. They will each run on my platform, but they will create their own resumès. After all, it worked for me.

“If we’re going to fabricate, we might as well be state-of-the-art. When I taught constitutional law to President Obama (back when he was at Harvard Law School). I told him it would come to this, and I’m not lying.”

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    Condemned to Repeat It --
    Musings on history, society, and the world.

    I don't actually agree with Santayana's famous quote, but this is my contribution to my version of it: "Anyone who hears Santayana's quote is condemned to repeat it."

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