Category Archives: Media incompetence/bias

Anchor Babies, Dred Scott And The 14th Amendment

There are two ways a federal court has subject matter jurisdiction of a dispute.  One is if there is a “federal question” involved.  The other is if there is “diversity of citizenship” between the parties – that is, a citizen of one state suing a citizen of another.

Dred Scott was a slave who lived in bondage in Missouri, a slave state.  Then he was taken for a time to Illinois, a free state where slavery was not permitted under the Missouri compromise law.  When his “owner” tried to take him back to Missouri he sued the man, named Sanford, in federal court claiming that under Illinois law he was an Illinois citizen and Sanford was a Missouri citizen and that the court had diversity jurisdiction to hear the case.

When the case got to the SCOTUS the question was whether there was actually diversity of citizenship to confer federal court jurisdiction over the case.  SCOTUS could not rule that Scott was not a citizen of Illinois, because that was up to Illinois and presented no question for SCOTUS to review.  But they wanted to throw the case out, and so they held that while Scott might be a citizen of a state (Illinois) he was not a citizen of the United States because of his condition of bondage, which made him “property”, and therefore there was no diversity of citizenship and federal courts had no jurisdiction to hear the case.

When the civil war ended the Congress wanted to overrule the Dred Scott case by constitutional amendment.

And that’s what the first sentence of the 14th amendment means:

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

It was about the Dred Scott case.  But it says what it says.  We don’t know how, or whether, this sheds any light on current controversies, but we thought it would be appropriate to put it out there so that the debates and discussions could be more well informed.

You’re welcome.

 

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Wow. Just Wow. Updated.

Apparently, we’re in for another financial “crisis” and the Wall Street Journal wants to be sure in advance that the spin is spun.

President Bush and Tim Geithner and Hank Paulson were the great heroes of the last crisis, you see.  They resisted the detestable Trumpian “populism” of the day to reward their friends with a $12 trillion dollar bailout to “save the whole economy” which was “on the line” in 2008.

Here’s the truth.  The “economy” they were saving is not really an economy as that term is usually and properly understood.  They “saved” the corporatist-socialist political system over which they perched then, and continue to perch today.  We say “saved” because it was a very expensive kick the can down the road maneuver that we must admit has exceeded all rational expectations for effectiveness in delaying things, but of course fundamentally changed nothing.  Which of course to overlords is the point:  the “system” as it is has been good to them.  Why change it?

So as we careen towards the next “crisis” which of course is actually a continuation of the previous one that was never actually solved, we have another thought about things economic.  We made a suggestion some time ago about a jubilee 28th amendment that would cancel existing debt and establish a gold standard.  Talk about a fundamental change.  We still like the idea a lot, but it appears we are the only ones.

Here’s another suggestion for a 28th amendment that is almost as good in theory but way simpler.  And to be frank it would probably be about as popular, but that’s a separate problem:

Neither the United States nor any state shall henceforth impose any tax upon, or otherwise permit the encumbrance of, residential real estate.

See, populism does indeed get out of hand (think French Revolution) but that doesn’t mean it should always be ignored.  It can function as a bellwether.

Anyway, comments on this proposal for a constitutional amendment will be appreciated.

UpdateThey always report it, at least somewhere, so it can never be said that your weren’t informed.

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Fake News

If they’d just turn down the volume a little, we might actually attain some level of rationality about US-Russia relations.

Tit-for-tat reciprocity is inherently even-handed, so why does the Trumpster face the now familiar MSM hysteria and shrieking over being “interested” in a Russian proposal elsewhere denounced as “absurd”?

https://www.cnn.com/2018/07/18/politics/white-house-proposal-putin-mcfaul/index.html

The problem is not hard to explain:  we are harboring persons the government of Russia regards as criminals or suspected criminals; Russia is harboring persons that our government regards as criminals or suspected criminals.  This problem is ordinarily addressed as a matter of routine in accordance with the terms of extradition treaties.

So we come to the meta-problem:  while we have extradition treaties with all kinds of countries including, for example, Zimbabwe, we do not have one with Russia and apparently never had one with the Soviet Union.

In context, wouldn’t any remotely fair-minded person have to agree that this is relevant information that ought to be part of the story, even if we also dutifully reported the deep state party line that the Russian proposal is “absurd”?

Of course, it may be the case that Russian criminal proceedings are a farce and that ours are scrupulously fair by comparison, although on the face of it this is an extravagant claim.  That, too, is a question that deserves some thoughtful consideration in this context.

But the MSM isn’t up to it.  It may be sloth.  It may be stupidity.  Or it may be something worse, like an irrational zeal to demonize the Trumpster.*  But these are about the only alternatives.

The MSM have certainly earned their pejorative appellation on this one.


*A rational zeal to demonize the Trumpster might be perfectly understandable, but of course is rather seriously undercut by repeated displays of irrational zeal.  Ugh.

 

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GREXIT*

It’s easier said than done. Here’s the nub of the problem:

Greek banks, which have been closed all week and rationing withdrawals from cash machines, are expected to run out of money within days unless the European Central Bank provides an emergency lifeline. Finance Minister Yanis Varoufakis is due to meet top Greek bankers later on Sunday and State Minister Nikos Pappas, one of Prime Minister Alexis Tsipras’s closest aides, said it was “absolutely necessary” to restore liquidity to the banking system now that the vote is over.

However the European Central Bank, which holds a conference call on Monday morning, may be reluctant to increase emergency lending to Greek banks after voters rejected the spending cuts and economic reforms which creditors consider essential to make Greek public finances viable, central bankers said.

If Tsipras wants to win this game of chicken he’d better be prepared to fully exit the Euro, for the simple reason that as long as Greeks need Euros to conduct business and transactions of all kinds, the European Central Bank can run his little rebellion into the ground.

This article sheds a little light on the difficulty:

Countries switching currencies must grapple with two major questions: how to introduce new notes and coins, and what to do with bank accounts, debts, and financial instruments denominated in the old currency.

Of course, Bloomberg is an arm of the cognoscenti and is hardly rooting for a successful Grexit, but that doesn’t mean they’re wrong about everything.

One possible solution is to realize just how much the sovereign power can do in this situation as long as it follows natural law.  Assuming the Greek government has some quantity of gold or silver**, it could certainly re-institute a gold or silver based drachma at whatever exchange rate made sense given their ability to redeem their notes.

To give you an idea of how this might go, remember that on these pages we suggested that if the US returned to a gold standard the dollar price of an ounce of gold would have to be pegged somewhere north of $30,000 – at least at first.  And there’s no real reason to be afraid of that: people need to conduct business, buy and sell food clothing and shelter a lot more than they need to get their hands on gold or silver.

The problem – well, one problem anyway – is I suspect that neither Tsipras nor anyone else in a position of authority in the Greek government has a clue about any of this.  Which means if the German dominated ECB wants to turn the screws they can and the Greek people will suffer.

In any case, it’s a fascinating development.

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*   For those of you who are inexplicably puzzled by this title:

https://en.wikipedia.org/wiki/Greek_withdrawal_from_the_eurozone

 

**   Of course, when Cyprus went down this road a little ways about 2 years ago, the “troika” confiscated all their precious metals, probably for the very reason that it could provide a viable way out.

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Nino Scalia And His Elites

Oh, the irony.  Turns out the defendant in Justice Scalia’s poster child case for the death penalty:

The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional — for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. See McCollum v. North Carolina, No. 93-7200, cert. now pending before the Court. How enviable a quiet death by lethal injection compared with that!

is – well – innocent.  Gamso’s all over it, of course.  As he should be.

Nino’s not our Bete Noire over here at Lawyers on Strike.  We often agree with Nino.  But then we have some serious disagreements, too.

A couple of large topics beyond that are in play here, though.

First is the death penalty.  We don’t care for it, but Nino happens to be correct – absolutely, unarguably correct – that there’s nothing unconstitutional about it.  At least not now.  The constitution could be amended to make the death penalty unconstitutional, of course, but the population at large has to do that, not justices of the Supreme Court.

So to that extent, we agree with Nino.

But there’s something else going on here that we find more troubling.  A few news outlets here and there have noted how Nino’s rhetorical flourishes went embarrassingly wide the mark here, but the reaction has been muted.

We’ll hazard a guess as to why that might be the case: Nino’s “credentials” are beyond reproach.  He went to the right law school, did well there academically, and pretty much followed the standard, approved, and privileged “career path” all the way to his current high perch.  He and other members of the elite may disagree about some things, but in the most important matter of all – who’s in the club – there is no disagreement whatsoever.

A lot rides on such credentials being revered, and nothing undermines the starry-eyed reverence for them more than an episode where the man who possesses them is shown to be flagrantly wrong.  Harvard sits on a $32 billion “endowment” that is grounded in its supposed ability to identify and produce the “best and the brightest”.  But a few examples of these best and brightest being flagrantly wrong could eat into the (over) confidence that is embodied in that over-sized nest egg.

Thus, trumpeting Nino’s flagrant error doesn’t harm just Nino’s reputation; it also harms Harvard’s reputation. So it’s not just about Nino.  He has his enemies among the elite, but they’re not in the habit of cutting off their noses to spite their faces.  If they could find some personal peccadillo to tar Nino with, I’m sure they would.  Pointing out a flagrant professional error, however, undermines the mythology that credentials assure brilliance, and every Harvard graduate’s livelihood – not to mention often overblown self image – depends on that mythology.

Of course Nino doesn’t make just flagrant factual errors; he makes flagrant legal errors, too.  We have been constrained to point this out before.

We don’t fault Nino terribly for this particular legal error even though a good argument can be made that it has personally cost us dearly.  Yet it is a fairly stupid – and fairly revealing – error, because it means that not only Nino but several generations of his law clerks, all of whom have credentials rivaling his own, have never read Pyle v. Kansas.  Or if they did, they did not understand it, which in itself is something because there’s nothing terribly difficult about understanding that case.

How vigilant and defensive the elites have to be to protect and preserve a credential mythology they must themselves believe to be quite fragile.  Otherwise, why be so defensive about it?

And our press persons are slaves to the same mythology.

Credentials don’t make truth, though.  Motto notwithstanding, Harvard gets no monopoly.  But so many have a vested interest in pretending otherwise that a great “gotcha” story about Nino gets little play in the Washington and New York media centers.

Ugh.

 

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Absolutely A Risk Of War? Meh.

Apparently, China is building a man-made island in the South China Sea, which is an engineering feat of some significance.

Who “owns” a man made (as opposed to God made, I presume) island?  If it’s within 200 miles of the constructing country’s coastline, it’s a territory of the constructing country.

But apparently this island is 600 miles from China’s coastline.  They can build it if they want, but it doesn’t become Chinese territory that far out.

Hmmm.

So the US is in the right as far as international law is concerned, and China can’t warn people away from the island they are building because it’s all international water and air space.  But then there’s a hitch: if the surrounding waters and air space are claimed and the claim is respected for a time, then the island would become legit Chinese territory.

Adverse possession, doncha know.

So, to prevent this from happening the US periodically engages in “freedom of navigation” operations, just to show that we don’t recognize any territorial, air space or restricted waters claims and in fact object.  There’s an acronym, because the US Navy loves acronyms:  “FON OPS”.

On the other hand, we don’t have to be obnoxious and overbearing about it:

China’s alarming creation of entirely new territory in the South China Sea is one part of a broader military push that some fear is intended to challenge U.S. dominance in the region.

We don’t know why the US should be entitled to be “dominant”, such that any “challenge” to our “dominance” is an affront entitling us to a round of sabre rattling.  Ugh.  But see here:

“China is a rising power. We’re a status quo power. We’re the big dog on the block … They want more influence,” he said. “Are we going to move a little bit? Are they going to push? How is that dance going to work out? This is a significant issue for the next President of the United States.”

War is “not in their interests, (and) it’s not in our interests,” Morell acknowledged.

“But absolutely, it’s a risk,” he said.

We don’t care for all the “power” talk, as if what matters who is the “Alpha Male“.  We think war talk is silly, but irresponsible at the same time.  We think we have little right to complain about China having a base outside China when we have bases all over the world, many of which appear to have no purpose other than as symbols of our “dominance”.  And while we’re on that subject, we would prefer to be regarded as just and decent rather than “dominant” and “the big dog on the block”.

And we wonder about CNN’s ethics, or even their awareness of ethics, when they publish an uncritical puff piece that actually openly touts their too close relationship with their subject:

A CNN team was given exclusive access to join in the surveillance flights over the contested waters, which the Pentagon allowed for the first time in order to raise awareness about the challenge posed by the islands and the growing U.S. response.

We know how cool it is to get rides in P-8’s, or F-18’s, but the prospect of such a thrill shouldn’t turn a reporter into a mouthpiece.  There’s a good argument to be made that this is really not a terribly important development, that if China wants to build islands hundreds of miles from their mainland:  a) there are precious few opportunities to do that, which makes this island more or less a one-off; and b) even if they could cobb together more than one or two, what’s the big deal?

But those arguments and others weren’t made because CNN explicitly agreed to toady.  It should be embarrassing for them, but apparently they’re shameless.

Ugh again.

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Death Threats. Harassment. Obsession. (Amanda Knox)(Updated)

So a British tabloid that has been fanning the flames of the frenzied mob for eight years now reports that the FBI is investigating some of its readers.  Pretending to be neutral at this late date, after years of smearing and base casuistry masquerading as ‘journalism’.

The FBI can investigate away, and contrary to the impression given by the article, not all the lunatics are in the UK; there are plenty of people in the US who are driven mad by high profile acquittals, especially when the beneficiary is a pretty young woman.

We suspect this will go on for quite some time.  Our standing recommendation to the exonerated is to live as obscurely and remotely as possible in a country other than the one that convicted you in the first place.  Of course this reasonably requires the exoneree to be independently wealthy.  And that is exactly what those responsible for the wrongful conviction are obligated to ensure:  that their victim be made independently wealthy.

Wealthy or not, the exoneree will live out a substantially diminished life.  There’s no fixing it.  But leaving an exoneree to fend for herself, defenseless, in a world in which so many want to see her suffering or dead is literally excruciating and utterly unconscionable.

If you let loose the dogs of war in error, there’s no going back.  Prosecutors should think hard about what they set in motion when they file charges.

Update:  Radley Balko points out that we’re very, very lousy at compensating those we have injured through major malfunctions of the criminal justice process.  That has to improve.

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