From the Department of Always use the Right Tools

Posted on May 31, 2014 by Countrylawyer

31 May 1916. The German High Seas Fleet is coming out, hoping to draw out some of the British Grand Fleet and pounce on it before the rest of it can come up. Unknown to the Germans, the British, using the Room 40 decrypts they enjoyed thanks to the Russians’ having had the pluck and sense to strip SMS Magdeburg of her code books in 1914 and then the generosity to turn them over to the Royal Navy, knew precisely where they intended to go and what they intended to do. So Jellicoe got the entire Grand Fleet underway to meet them.

The stage was thus set for the Armageddon-style naval battle that every commander since Nelson had sought. Here a brief historical overview might be of assistance. Prior to Nelson, battle fleets fought and had for 140-plus years fought in line-ahead formation. To some extent it made sense because wooden warships mount their guns in broadside only, and those guns have only limited ability to be trained out of the strictly perpendicular to the keel. The ends of a wooden ship — especially the stern — are much thinner than its sides, and much shorter. So even though you might mount a few bow-chasers or stern-chasers so you wouldn’t be complete impotent, those guns represented only a tiny fraction of the ship’s total weight of firepower. To put some numbers on it, of a first-rate’s 98 or more heavy guns, ranging from 18-pounders to 32-pounders, maybe a total of eight or ten would be mounted outside of the broadside batteries. In line ahead, where each ship follows the one ahead of it as closely as it safely can, you concentrate and mutually reinforce the fleet’s individual broadsides, and you also prevent the opposing fleet’s ships from piercing the line and firing its concentrated broadside against the largely unprotected bow or (even worse) the stern, almost completely unprotected by heavy timbers.

Gentle Reader will rapidly perceive the logical development of this tactic, though, along the principle of sauce for the gander. Both fleets adopt the line ahead. Now, a fleet in line ahead is not going to be able effectively to pierce the opponent’s line along its length. That would produce a geometry looking like a cross-member tire iron. While the fleet piercing the line will be able to concentrate its fire on the ends of the ships between which it sails, the other fleet will be able to concentrate its fire on the ends of the ships nearest its line where pierced. Stymie, in other words. The dynamic is entirely different if you can, not pierce, but cross the opponent’s line ahead of it. It’s called “crossing the T,” and it’s the holy grail of battle line tactics. Of course, now you’ve crossed the T, what do you do? You’re still line ahead, only on the other side of your enemy, and now he “has the weather gauge of you,” meaning he is upwind of you, a crucially important tactical advantage in the era of square-rigged battle fleets.

The upshot of all of the above considerations was that from its formal adoption in the 1660s all the way up to the late 1700s, naval battles, at least when on the high seas where there wasn’t a lee shore you could run your enemy onto (as at Quiberon Bay, in 1759), tended to be indecisive. Oh sure, occasionally a ship would have the misfortune to be so disabled as not to be able to stay in line. She’d drift out on her own and be surrounded and captured. Beyond individual misfortune such as that, however, naval battles just didn’t decide a whole lot. That’s not to say sea power as such was indecisive, because it very much was. It’s just that the effectiveness of main battle fleets against each other was limited.

Still the line ahead made sense, by and large, and it made enough sense that the Royal Navy formally incorporated it into Fighting Instructions, its mandatory combat manual. Woe betide the captain who broke line. Woe betide the admiral who failed to maintain his battle line.

Until Nelson.

Nelson realized two things, one strategic and the other tactical. His strategic insight was that the line ahead was never going to produce a strategic-level result precisely because it could not be expected to produce a battle where one fleet was largely destroyed by the other. His tactical insight was that the virtues of the line of battle were strongest when the two fleets were of equal quality in seamanship and gunnery. But if one fleet was significantly the other’s superior, then it might well be able to sail sufficiently exactly as to pierce the enemy’s line in multiple places simultaneously, and the difference in gunnery would significantly reduce the damage inflicted while doing so. This would then place the better fleet’s ships close alongside their counterparts, where their superior gunnery stood the best chance of achieving decisive results. Nelson further realized that, after a dozen or so years of purge, guillotine, and neglect, the Royal Navy had attained that level of mastery over the French.

The validity of Nelson’s insights was proved dramatically at Trafalgar in 1805. Nelson divided his fleet into two squadrons, abandoned the line ahead to hoist the signal “general chase,” and then drove his fleet like two mailed fists into the straggling, disordered, bumbling combined French and Spanish fleets. There developed a general melee in which Nelson’s parting instruction to his captains that, “No captain can do very wrong who places his ship alongside that of a Frenchman,” bore fruit. Two-thirds of the combined fleet was sunk or captured that afternoon, and British hegemony at sea assured for another century-plus. Nelson died that day, but not before receiving the news of his victory.

From Trafalgar onward, every naval officer in every country dreamed of another Trafalgar. Mahan dreamed of it, and wrote it into his book. Fisher dreamed of it, and built Dreadnought and her descendants to make it happen. Tirpitz dreamed of it but was realist enough to understand it wasn’t likely against the British. Jellicoe dreamed of it; Scheer dreamed of it; Beatty dreamed of it.

And in May, 1916 it seemed as though it was to happen. Britain and Germany together floated dozens and dozens of massive Castles of Steel (to borrow Robert K. Massie’s book title), each capable of hurling up to a dozen massive armor-piercing shells, weighing anywhere from 900 to 1,800 pounds each, miles and miles, to fall onto the enemy’s decks, bulkheads, and hulls. Their populaces had internalized the image of knights clad in armor, smiting each other hip and thigh in noble combat.

Except it wasn’t quite so. Winston Churchill, First Lord of the Admiralty from 1910 until 1915, attempted to correct his fellow Members’ understanding. Two modern dreadnoughts in battle, he said, were not correctly thought of as two plated and mailed knights hacking at each other with swords, but rather as two eggs striking at each other with hammers. And by 1916 the hammers weren’t even the most dangerous threat. Mines and torpedoes, the former more than the latter, could explode beneath the giants’ armor belts, below the waterline, and in a matter of minutes destroy the work of years. As in fact happened to the brand-new dreadnought HMS Audacious, sunk by a mine in October, 1914, fourteen months after she was commissioned. Admiral Jellicoe, the Grand Fleet’s commander, fully realized the peril. Shortly after the war started he declared his belief that chasing a retreating German fleet back towards Germany was a mistake, as it was every bit as likely to be a ruse, to draw the British over minefields. He announced an intention to avoid falling into that trap (and his stated intention received the Admiralty Lords’ blessing, it should not be overlooked).

And so the fleets sailed towards each other, through the haze and fog banks of a North Sea early summer. The Germans had no idea of what was headed their way until the fleets’ respective scouts went to investigate a fishing trawler each sighted. Each fleet’s closest squadron just happened to be its battlecruisers, and here is where we get to this post’s title.

Battlecruisers were, like Dreadnought herself, an invention of Admiral Jackie Fisher. They had a dreadnought’s heavy guns, but they were to be fast, like jungle cats (in fact they were referred to, both in the press and in the fleet, in those terms). Now folks, the laws of physics apply with even greater brutality on the ocean than they do on land. You’ve got three things and you can’t have them all at once: guns, armor, and speed. If you want more of one you’re going to have to skimp on the others. That’s just the way it works. So Fisher chose to skimp on the armor leg of that triangle.

Fisher’s original vision had been a ship fast enough to catch any major ship it could out-gun, and by like token to run away from anything that could match or out-gun it. Logical enough, and indeed that is precisely how things worked out in the fall of 1914. German Admiral Maximilian von Spee’s Pacific Squadron had jumped a couple of elderly British cruisers off the coast of Chile and sent them to the bottom with the loss of all hands. So the Royal Navy dispatched two of its original battlecruisers, Invincible and Inflexible, to deal with Spee. On December 8, 1914, they caught him making a run at the Falklands and in an afternoon’s shooting destroyed nearly his entire squadron (taking not only Spee but his two young sons down).

But o! what a difference a word can make! Fisher permitted them to be called “battlecruisers,” and further permitted them to be regarded in the fleet as components of the battle fleet. They were to be the fleets’ “scouts.” But the fleet had scouts, you see. It had shoals of destroyers and full squadrons of actual cruisers. Ships that could out-run even a battlecruiser. Since a scout’s whole mission is to get close enough to the enemy to figure out what’s going on (recall, Gentle Reader, that radar was still 20 years or more in the future), you don’t want a scout you can’t afford to lose. Hard cheese on the expendable scouts, but there it is. In short, the very worst place for a battlecruiser is in a fleet battle formation, where its speed is negated (it can’t maneuver faster than the slowest unit in the fleet), and where it will necessarily be exposed to heavy and concentrated shelling from the opposing fleet. And that’s precisely where the British put theirs.

Without going into too great detail, Jellicoe managed to cross Scheer’s T not once, but twice that day. With lousy visibility, poor communications (flag hoists were nearly useless and the day’s primitive radio sets tended to be knocked out the concussion of the ship’s own guns firing), and the press of fleets maneuvering at well over 20 knots each, Jellicoe managed one of the greatest sustained feats of seamanship in all naval history. At a cost, a ferocious cost. Full three of Britain’s deadly cats went down, each one the victim of a German shell finding its magazine.

In the below picture, somewhere at the bottom of that enormous cloud of smoke and flame, is what used to be HMS Queen Mary.

And here’s HMS Indefatigable going down:

And this is what is about to become the former HMS Invincible (the Royal Navy’s original battlecruiser):

And at the end of the day, after Scheer for the second time had ordered Gefechtskehrtwendung (“battle turn”) away from the Grand Fleet, to make a run for home, Jellicoe, true to his previously stated and endorsed intention, did not follow. The public and to some extent the brass never forgave him. He was booted upstairs and Admiral Beatty, who commanded the battlecruisers that day, was given command of the fleet.

The High Seas Fleet never came out again in force until it did so to surrender. For all of Tirpitz’s brilliance as a political operative and administrator, he never successfully addressed the strategic conundrum facing the Imperial German Navy: It was bottled up in the North Sea and unless it destroyed the British fleet — which no one thought it could do — there it was going to stay. Meanwhile the British fleet enjoyed the freedom of the world’s seas, as did its enormous merchant fleet. Until the advent of the submarine. Mahan’s fleet-in-being theory could not exist, in short, without reference to the hard facts of geography.

What did the British learn from Jutland? Not enough to avoid building HMS Hood as a battlecruiser, and not enough to pull her out of service once built to bulk up her armor. And not enough not once again to use the wrong tools for the job, sending her to her doom against Bismarck in 1941.

Get the Popcorn Ready

Posted on May 31, 2014 by Countrylawyer

. . . because it looks like we may have a show to watch.

A federal judge has rejected the IRS attempt to screen from public scrutiny how it has systematically targeted certain political groups for discriminatory treatment. The group in this lawsuit is not a Tea Party related group, but a group whose mission is to educate the public on the actual state of affairs in the Middle East, particularly with reference to Muslim efforts to annihilate the state of Israel and slaughter such Jews as they can lay hands on.

Z Street applied for 501(c)(4) status in December, 2009, eleven months into the Era of Hopenchange. In July, 2010, their counsel spoke with an IRS agent (whether he’s still employed there I’d like to know), who mentioned that the application was going slowly because it had been sent to Washington for “special scrutiny” as being connected to Israel and having views that “contradict those of the administration.” Get that? Express a view that Dear Leader doesn’t agree with and you get your very own set of legal rules you have to satisfy.

So Z Street sued. The IRS took the positions that (i) it had no right to sue, and (ii) the IRS enjoys sovereign immunity. Seriously. They filed stuff in court that said that.

The court has now finally ruled that the IRS is talking through its hat. The complaint squarely challenges the constitutionality of the process, the court ruled; this isn’t just some dispute about tax liability.

As The Blogfather has observed in other contexts, discovery in this one should be fascinating.

On Grace, Cheap and Otherwise

Posted on May 30, 2014 by Countrylawyer

This will be to some extent a riff on my last post, about the ludicrous situation in German schools where parents of a diagnosed “special needs” child have the absolute right to demand that their child be placed in regular classes in any of the tracks, irrespective of their child’s actual abilities, actual educational needs, and most importantly irrespective of the other children’s right to an effective, undisrupted education.

Later the same day I posted it I was chatting with someone who is both a retired classroom teacher and a retired priest. I should observe that my interlocutor’s politics are sufficiently far-left that there are entire swathes of human existence that it’s no longer worth it to discuss. The ultra-radical left position is Truth, Justice, and Light and no mere fact will be permitted to alter that conclusion. Anyone who has ever had a conversation with a genuine doctrinaire communist will know the sensation. This trait is sad for me to observe because I’ve known this particular person for many years now and it has only been comparatively recently that this intellectual and moral rot has set in.

And by the way, I do mean “moral” rot in every sense of the word. It was from my interlocutor that I heard the statement that there is “no difference” between “fundamentalist Christians, fundamentalist Jews, and fundamentalist Muslims.” Really? I asked. I must have overlooked all those news reports about foot-washin’ Baptists blowing up commuter buses, or the snake-handlers strapping remotely-detonated explosive vests to retarded children, then launching them into crowded shopping centers. By like token I seem to have overlooked the video of the Mennonites piloting airliners full of bystanders into office towers. And who could forget the dramatic stories we’ve heard of the security forces intercepting the Hasidim on their way to the airport with suitcases full of plastic explosives? I told my interlocutor that I had no interest in a God who could not, or a religion which does not, distinguish between on the one hand picketing an abortion clinic and blowing hundreds of people indiscriminately to kingdom come on the other. In fact, any moral system which cannot discriminate between those two categories of action is not a serious system of thought and cannot and ought not be treated as such.

In any event, I expressed myself with some degree of acerbity on the wisdom of a bunch of UN bureaucrats, safely in their offices, decreeing that schools must be run on a transparently idiotic basis. Well, my interlocutor puffed, after the horrors of the Holocaust it was “necessary to make a statement that there are certain kinds of behavior which are simply no longer tolerated.” I said I thought the International Military Tribunal did a pretty good job of communicating that notion when it hanged all those perps. I mean, snapping someone’s neck with a length of rope is a fairly unambiguous suggestion that you disapprove of something he’s done.

I then observed that the places where things like honor killings of teenage girls, female infanticide, slavery, debt peonage, and so forth are still practiced are precisely those societies who don’t give a shit what some UN scrap of paper says. [Update (31 May 14): And as if on cue, in today’s Frankfurter Allgemeine Zeitung we have a report on yet another gang rape of two girls in India. First they raped the girls. Then they hanged them, still living, in a mango tree, where their bodies were found. Five men have been arrested, including three perps and two police officers who covered for them. The girls, whom the police when notified refused to help because they were Untouchables, were cousins . . . 12 and 14 years old.] It’s the societies where those sorts of things are conspicuously not done which will take that UN tomfoolery seriously and attempt to live by it. With results as shown. It’s kind of like the (by now tired) saw that pushing gun control because criminals have too many guns is like castrating yourself because the neighbors have too many children.

This then brought forth a lecture on “cheap grace.” Everyone wants “cheap grace,” without effort or sacrifice. Everyone wants this-that-and-the-other, “but no one wants to pay taxes.” Quite apart from all the other logical flaws in that argument, I observed that destroying a child’s chance to get an education so that you can feel good about yourself for “making a statement” is about the cheapest grace I could think of. And of course the vast majority of the leftish project is precisely that: Using the coercive power of the state to force conduct which either does nothing to remedy an ill, or which can be shown to make the problem worse than it was, but which enables the people advocating its enactment to congratulate themselves on how virtuous they are. It is, in short, the dynamic of what William Graham Sumner called “the forgotten man”:

“As soon as A observes something which seems to him wrong, from which X is suffering, A talks it over with B, and A and B then propose to get a law passed to remedy the evil and help X. Their law always proposes to determine what C shall do for X, or, in better case, what A, B, and C shall do for X. . . . What I want to do is to look up C. I want to show you what manner of man he is. I call him the Forgotten Man. Perhaps the appellation is not strictly correct. He is the man who never is thought of. . . . I call him the forgotten man… He works, he votes, generally he prays—but he always pays . . . .”

The expression “cheap grace” comes from Dietrich Bonhoeffer, who ended his life on a Nazi gibbet. Here’s an excerpt from his explanation of it. He being a theologian, it is couched in theological terms, which means it suffers from a degree of fuzziness that makes it very difficult to begin from this text and arrive at a useful answer to the question, “What am I supposed to do about this?” where “this” is an actual problem facing an ordinary human in the course of an ordinary life, a life of conflicting moral obligations in irreconcilable directions.

To illustrate: I could, for example, donate significant portions of my income to the local help center, or the local humane society, or the local pregnancy crisis center, or the local food bank, or any number of other outfits I could pluck from a simple leafing through the telephone book. All of those organizations are immediately and actively engaged in the assistance of those of God’s creatures who either cannot help themselves or have got themselves into a pickle from which they cannot escape by their own efforts. And I know for a fact that every last one of them is operating on a shoe-string, never more than a payroll or two from shutting the doors. On the other hand I have three sons, two of whom have developmental issues which require specific actions by our family, sometimes by our entire family. Accomplishing these actions requires our family to arrange its existence to accommodate some unusual demands in terms of time, location, and not least money. It is everything we can do — and not infrequently more — to stretch things to make those accommodations. My giving a significant portion of our family’s income to those other organizations — irrespective of their worthiness — will produce an immediate and measurable detriment to the well-being of people for whom I have the highest moral responsibility. To the extent that Congress decides to incorporate the marriage penalty into the Internal Revenue Code that likewise would have an immediate and measurable detrimental effect on my ability to fulfill my own moral duties to my children. A rise of another dollar per gallon in the price of gasoline would, by increasing the cost of getting the wife to work and the boys to school, materially diminish the resources which we have available to make ends meet. By “materially diminish” I mean reduce to the point where something needed — not nice-to-have, or even pretty-significant, but actually make-or-break — goes un-obtained as a result.

My interlocutor’s argument rests on a fundamental misunderstanding. It necessarily assumes that my “not wanting to pay taxes” is my rejection of higher moral purpose in the allocation of that portion of my life (and my wife’s) that went into obtaining that money. It is nothing of the sort. It is, however, the rejection of the position that someone else may legitimately require that I consume my life in the furtherance of their moral vision, in the discharge of what they decide to be my duties.

But this “make-a-statement” public policy morality is deeply confused in an even more fundamental sense. It is recognized by every serious thinker that what we do by compulsion neither entitles us to praise nor exposes us to censure. We recognize physical duress as a legal defense to just about everything except murder. By like token who has not seen someone preening about his virtue in doing X, Y, or Z, and thought, “Don’t pat yourself on the back, hoss; you had to do that anyway.” Thus by compelling others or being compelled in our turn we cannot claim any moral points.

I’m no biblical scholar, but as I recall Jesus said, “Come and follow me”; he did not send draft notices or organize press gangs. I also have this recollection that Jesus commanded that we give our own property, not that we go out and, at sword-point, take from some to give to others — chosen by you — so you can pat yourself on the back for your magnanimity. I don’t recall Jesus demanding of the Roman governor that he introduce laws and policies which were known to exacerbate poverty and prevent or thwart the efforts of the poor to escape it. When Jesus preached to the fishermen mending their nets, it was not about their duty to starve their families in the name of “sustainability.”

Oh, but my interlocutor claims, repeatedly in the Bible judgment is cast on Israel as a nation for its iniquity. Guilt and virtue are thus evidently collective attributes, and so we can comfortably apply the moral principles which govern us as individuals to entire societies, so that I can pat myself on the back for making a statement which cements misery in place and even creates more. I suggest this approach is theologically and historically ignorant, and morally repugnant as well. As to the latter, collective guilt is precisely the same position taken by Stalin and Hitler. On the other side of the same coin, it would condemn as deserving of incineration every child burned to cinders in Hamburg, Dresden, Tokyo, Hiroshima, and Nagasaki. I am not interested in a theology that affirmatively blesses that outcome. And bless it is what it does, far beyond merely mourning it as a necessary evil, but an evil for God’s forgiveness of which we had better get on our knees and pray. According to that mode of thought those children partook, and were precisely as guilty, as the hands who turned the valves on the gas chambers at Sobibor. Again, I’m not interested in a God who can’t tell the difference.

As to the former point, the profound ahistorical character of this traipsing off to heaven or hell under one’s national banner, I observe that until the coming of Christ, the God whom we Christians worship was the tribal God of the Jews, and was recognized as such. The truly revolutionary nature of Christ’s coming among us is revealed in the very beginning of the story, by the angel of the Lord who appears to the sore-afraid shepherds: “Behold, I bring you glad tidings of great joy, which shall be unto all nations.” The Good News is not confined to the Jews, or to any other people. It is for all, each and all of us. Jesus did not preach to the power-brokers, to the soldiers or the administrators. Further, I am unaware of any passage in any of the Gospels or the balance of the New Testament in which the enactment of statutes is prescribed as the device by which Christianity’s precepts are to be realized. For that matter, if salvation or damnation is determined at the level of political units by collective political action, then no Christian until the time of Constantine could expect other than eternal damnation, because until then there was no Christianized political unit. If one is to dispute that conclusion then one must accept as true the proposition that governmental action is not indispensable to Christianity (and if it is, then America’s got trouble with its First Amendment, but that’s a rant for another day) or to salvation for a Christian. It then follows that one must ask, in terms of any particular government action, whether that action does or does not conform to the tenets of Christianity. And here I must refer Gentle Reader to an expression used by Jesus: “By their fruits shall ye know them.” Not by how they look, or how they make the orchard keeper feel about himself, but by their fruits shall ye know the tree. It is impossible to square that notion of judging-by-what-is-done with the make-a-statement approach to public policy.

Keeping all of the above in mind and working the subject back around to it, it seems to me that to the extent that Bonhoeffer’s notion of “cheap grace” can be applied to public policy questions at all, that the logic of his thought would reject the idea that “costly grace” is to be achieved through governmental ukase. After all, does not the entire socialist experiment (an experiment on the lives of others, let us not overlook) practically encourage the view of, “I pay my taxes; I’m done”? [Sure enough, if you look at charitable giving in the U.S., you find it is by a wide margin greater than among societies who’ve out-sourced their virtue to the bureaucracy.] What moral grasping-of-the-nettle does it require to fade a check to Uncle Sugar every April 15? Is not the Christian’s perpetual prayer, “O Lord, show me Your Way”? Why is it important that the Way be revealed to us? It can only be important if we may — indeed must — choose between the Way of God and the way of sin, without necessarily being able to tell plainly which is which. Of what relevance is that prayer when our choice is reduced to (i) pay your taxes or (ii) have the IRS come and pick you clean, then send you to jail? When I am deprived by my government of the means to satisfy any of them, what moral significance is it to agonize over where my duty (about which word General Lee was spot-on right, by the way) lies as among my children, my wife, my aged parents, the people who are employed in the law firm I’m expected to keep afloat, my clients, the local charities whose board meetings are exercises in making two-plus-two come out to seven? When you deprive me of the means to give physical form and effect to my moral judgments, you reduce my moral agency to no more than an academic curiosity.

This attribute of collectivism is no accident, either. The aspect which makes Marxism (and other doctrines which reduce man to a component mechanism in someone else’s grand design) such a monstrous philosophical system is that it denies the moral agency of man. I mean, think about it: Adam and Eve were already made in the image of God. What needed they to “be like God,” as they are told? Knowledge of good and evil, morality in short. It is our moral capacity, our ability to decide between what is just and what is unjust and act accordingly, that is the essence of the divine spark within us. The entire rest of creation beyond mankind is incapable of “good” or “evil.” When you reduce me to being a cog in someone else’s machine, whether you believe the purpose of that machine is “social justice” or “national greatness” or “forging the new communist man,” what you do is deprive me of my birthright as a child of God.

I deny you may claim “grace” from having done so.

Harrison Bergeron, Call Home

Posted on May 27, 2014 by Countrylawyer

In this morning’s Frankfurter Allgemeine Zeitung there’s an article on the educational practice once (and perhaps still) referred to here as “mainstreaming.” The title pretty much says it all: “Inclusion: the Great Illusion”.

This is the basic outline of the story. Up until 2009, when Germany signed the UN Convention on Human Rights, “special needs” children (as if there has ever been a child that did not have special needs; show me a child who requires absolutely nothing out of the ordinary — in any respect or for any reason — and I’ll show you a freak of nature) were sent to schools with other children like them, where there were teachers trained to deal with their sundry problems and where the staffing levels were sufficient to handle them, both pedagogically and physically. And where there were not other students desperately trying to take advantage of their few years of schooling to escape the traps of a world in which cognitive ability and credentialing are becoming ever more make-or-break for all segments of society.

Under the UN convention, however, schools are obliged, upon unilateral decision by the “special needs” child’s parent(s), to place that child in a regular classroom. In a classroom with a teacher who’s been trained to teach, for example, medieval history, as opposed to how to handle a severely autistic child. Mind you, the parents don’t have to choose to put their child into a regular class, and in truth many of them don’t want to. They’ve seen their children, we have to presume, struggle with things that come naturally or much more easily to their peers, and how frustrating, humiliating, and self-perpetuating the cycle of always-coming-up-short can be. I will say that the closer a child gets to “normal,” (however you choose to think of that notion) the harder the choice can be. You are morally convinced — you will go to your grave convinced — your child is capable of better things than he’s achieved thus far. You know that if he’s not put with “normal” children then he will not have a chance to learn from them, and of course you realize that children learn a tremendous amount from each other, even in terms just of the academic material, to say nothing of the social skills your child will need to survive as an adult on his own. You have this feeling in your bones that if your child is put on the “special needs” track then it will be a permanent, irrevocable sentence of mediocrity. You’ll do anything not to see your child, whose talents and “special” needs you get to see in the smallest detail, daily, forever doomed to be something less than he has in him. If it sounds as though I speak from some experience here, there is a reason for that.

And the law’s response to the schools who point out that this child is not only not getting anything out of being in a “regular” class, but rather is doing little more than destroying the educational opportunity of the 90% of his fellow students who aren’t so handicapped, is: screw you, buddy; deal with it. Isn’t that special? A bunch of lawyers, politicians, and “human rights” activists have decided how schools must function.

Predictably, it’s playing merry hell with the German school system, one of that country’s prides and joys. For those who don’t keep up with these things, for generations the German schools have been divided, tracked, or whatever. After a period of basic education (“Grundschule”), the children are divided into three groups. Those whose abilities suggest they’re not going to need a bunch of schooling beyond the basics, for example manual laborers, low-level clerical, or industrial workers, are placed in the “Hauptschule,” which terminates after ninth grade or so, after which they will typically be placed into a commercial or industrial apprenticeship program and, with a bit of luck and a following wind, embark from there upon a career for which their academic and technical education has fully suited them. The next level up, for those who are going to become technical workers, mid-level bureaucrats or officials, and so forth, such as dental or physicians’ assistants, for example, is the “Realschule,” which goes (I’m working from memory here, so don’t tax me with inaccuracies) until 11th or 12th, after which they too will head for such additional vocational education or training as may be appropriate to their desires and abilities. The top level, the “Gymnasium,” runs through a 13th year. The last two years the student selects two subjects, “Hauptfächer,” for concentration. Back when I attended a Gymnasium in the early 1980s, my 11th grade class was taking English, French, German, mathematics (calculus), history, chemistry, physics, phys. ed., geography, biology, and religion (either Catholic or Protestant, according to the parents’ choice). By the time you get out of Gymnasium your level of academic attainment is going to put you very close to what the best American universities produce by the junior year.

For several decades there has been a fourth track, the “Gesamtschule,” in which the children are not segregated by academic ability but rather just lumped in together, much like an American high school. The Gesamtschulen have never really won the respect of German society.

But there’s a further wrinkle. You don’t finish up your Gymnasium career by passing your classes and tottering across a stage to get a piece of paper to go in the bottom of a drawer in your parents’ living room. At least not if you have ambitions of further schooling, either at one of Germany’s universities or their “Technische Hochschulen,” the latter of which produce the German engineers who have established “Made in Germany” as the quasi-gold standard of excellence enjoyed for generations now by that country’s products. No: After completing your 13th year, and successfully passing all your classes, you get to sit for a battery of written and oral examinations known as the “Abitur.” A perfect score is 1.0; it runs down to 5.0, which is failing. There are no do-overs, like with the SAT or ACT. You have precisely one chance to do as well as you can.

And this is where the rubber meets the road. The Abitur is given at the state level, meaning every graduate in Bavaria who chose, for example, math and physics as Hauptfächer is going to be taking the same examination. Additionally, there is a great deal of standardization across states, with the specific end in mind that if you pull a 1.7 on your Abitur in Mecklenburg-Vorpommern, that should be sufficient indication of pretty much precisely the same performance as a 1.7 coming out of Bremen or Hessen. And the purpose of that, Best Beloved, is because there is tremendous competition for slots in the most sought-after fields at the top universities. Some fields, such as law and medicine, are even the subject of a “numerus clausus,” a closed number. I don’t know what it is now, but back in the mid-1980s, when I was studying at the University of Freiburg, the number for medicine was something like 1.2. In other words, if you pulled a 1.3 you weren’t going to be a doctor. Period.

The competition doesn’t stop there, either. A few years ago Germany realized that it could have a passel of pretty good universities, with none really of world-class rank, or it could devote increased resources to those universities which were nearly world-class, in order to get them there and keep them there, and let the others make shift. School snobbery made me pleased to note that Freiburg made the cut. I don’t know whether the Technische Hochschulen underwent the same triage, but it wouldn’t surprise me.

The opening paragraphs in the FAZ piece are about a child (name changed, of course), whose “special” needs include not only cognitive but social-emotional development. His behavior in class is described. Such as climbing over desks and chairs, beating on his schoolmates to the point of bruises, spitting pieces of paper he’s chewed up, pouring out a bottle of apple juice on his desk, then running around the classroom, smearing his classmates with it. The teacher is at his wits’ end; he was trained to teach, not to cope with a semi-savage (I know that characterization is brutal, but there’s no other way to describe a child who behaves like that, for whatever the reason may be).

Now there is a family in Baden-Württemberg whose Down-syndrome child they wish to send to the Gymnasium. Understand that for non-“special” needs children it’s the teachers who make the go/no-go decision on which children are eligible for the Gymnasium. For “special” needs children, the parents have, apparently, an absolute right of determination. And this child’s parents are determined that he will attend the Gymnasium, even though they concede he has no expectation at all of completing his Abitur. He can’t even read properly. But, according to his parents, “all his friends” are going to the Gymnasium, so by God he’s going as well. [As an aside, it speaks well for his Gymnasium-bound friends that they are friends of this child.] Thus far the Gymnasium, which understandably does not wish to become a special-educational institution, has successfully resisted. If the law is as explained in the article, though, that won’t go on.

The article quotes the cost of maintaining parallel special-education schools for children who need them, and at the same time hiring on sufficient trained staff to accommodate the “special” needs children whose parents decide screw ’em all, Little Heinz is going to the Realschule notwithstanding he can barely sign his name and physically cannot sit still for more than seven minutes without climbing — literally — over the furniture. They’d need 9,300 extra teachers and handlers, at a cost of €660,000,000 per year, just in the “normal” schools. If you keep the special-education schools open as well (remember that three-quarters of all “special” needs children in Germany are not being mainstreamed by their parents), the annual cost balloons to €3.3 billion. With a graying population and looming social welfare outlays, the money simply is not there.

But more to the point, what if it were there? Those children in that Down-syndrome child’s classes are going to be held back in their own academic progress. The article quotes two teachers, one from Bavaria and one from Lower Saxony, and both agree that the “special” needs children in their classes absorb 90% of their energy. So what happens to their “normal” classmates when, after six or seven years’ of having teacher devote his efforts to the children who will never complete their Abitur? What happens when they compete, nationally, for the strictly-limited field of their choice? What do you tell them when, having cherished a dream all their life long of being a doctor, they bring home that 1.3? By what right have you sacrificed their life’s ambition to your — your, Gentle Reader — theoretical determination of abstract “justice”? That Down-syndrome child will go on to be what he will be. Maybe he’ll become a productive member of society (many do), and maybe he won’t. But he would have done that no matter what; he certainly will not have needed to spend years at a Gymnasium for it.

“A mind is a terrible thing to waste,” as a famous advertisement once (correctly) proclaimed. This cock-eyed UN-functionaries’ policy may as well have been designed to accomplish exactly that: the wasting of human potential so that a tiny subset of parents can feel good about themselves and their children.

Harrison Bergeron has gone to school.

Well, This Explains a Lot

Posted on May 26, 2014 by Countrylawyer

Via Instapundit, here’s a NYT write-up of a tony party among the 0.0001% that recently went down in New York City.

It was hosted by Tina Brown in honor of some “artist” who carves sculptures from wood using a chain saw. Lest Gentle Reader imagine this is really some edgy, transgressive expression of profound truths, you can go to pretty much any redneck arts-n-crafts expo across the South and find guys who do exactly that. They don’t even rate a breakfast at Waffle House.

Quite apart from the tone of self-congratulation that oozes from the article and seems to have caught Instapundit’s eye was the reference to the artist’s husband, “Zbigniew Brzezinski, 86, the former national security adviser to Jimmy Carter.” That is mentioned as if to awaken our respect. The NYT reports him as “regal[ing] guests with off-color stories about the current state of counterterrorism. ‘I am so annoyed by the fear-mongering,’ he said. ‘Sign this, sign that. So now I sign things “Osama Bin Laden.” And I haven’t been stopped once. Doesn’t that tell you something about the idiocy of the whole system?'”

He says this as if it’s either clever or funny, or even illuminating about his central point (assuming he has one, which from the conduct of foreign relations in the Carter administration (either its original iteration or its current one), is not readily apparent). Would, perhaps, he have signed himself “Walter Model” while the 101st was surrounded at Bastogne? Because I have news for you, you washed-up relic of four of the most disastrous years (except for those beginning January 20, 2009) of the last fifty in this country: Notwithstanding your understudy went squawking about the place in 2012 bragging that Al Qaeda was on the run (right before they slaughtered an American ambassador), they’re very much still in the field against us. And they’re very much still intent on killing Americans and Jews wherever they can find them.

I’m big on P. G. Wodehouse (who had his own problems with making light of an enemy during wartime, by the way). One of my favorite lines comes from his chapter “14 Days Without the Option,” in which Bertie and a friend have been arrested for trying to steal a policeman’s helmet on Boat Race Night. The problem was the policeman was still in it, and Bertie and his buddy are now in front of the magistrate. Bertie’s friend, who actually smote the bobby, is given fourteen days without the option, after which the beak turns to Bertie (I’m working from memory here, so forgive any inaccuracy in quotation): “As for the prisoner Leon Trotsky, which I am constrained to say I believe is a false or fictitious name . . . .”

Taking that cue, when I am asked to give a dollar or whatever it is for this-that-or-the-other charitable purpose, and in consequence to get my name on a cut-out shamrock, or bootie, or whatever symbol, for the store to paste up in its window, I generally give the name “Leon Trotsky,” or “Vyacheslav Molotov,” or some such. I know that both Trotsky and Molotov were about as blood-soaked as two humans could be, and that uncounted millions died at their hands. On the other hand, I am not doing it to be clever in the context of something like the physical security of my fellow Americans. I am not doing it to express either support for our country’s enemies, contempt for those persons’ victims, or to undermine legitimate efforts to further the interests of our country. I am doing it (i) in homage to Wodehouse, and (ii) to avoid my name appearing in a self-congratulatory light. And I’m just some redneck from out in fly-over country, so no one is going to pay the least attention to what I do. The NYT isn’t going to splash what I do across its society (or whichever) pages, presenting me as someone to emulate.

Following in the Master’s Footsteps

Posted on May 24, 2014 by Countrylawyer

Years ago, while studying in Germany, I ran across a reference to some interesting research that had been done by East German scholars. What they’d done was go to London and try to replicate the research that Marx had done to produce Das Kapital, among his other words. What they found was that Marx had pretty much gun-decked (as we say in the navy) the whole thing. Falsified data, misrepresented the contents of sources, and so forth. It’s stuck in my mind all these years because I couldn’t believe that the East Germans would have let these guys go to London for that purpose in the first place, and secondly that they’d have let the results leak out.

But it was even so. I can no longer recall where I came across the reference to that research, and being 20 and stupid (and with way too much beer to drink) I was too indolent to go and run it down on my own and see what these scholars had actually reported. Marx’s little honesty issues aren’t confined to German language reports any more. Paul Johnson (whose magnificent The Birth of the Modern I’ve re-read probably north of a dozen times since I bought my copy in the summer of 1993) wrote a book, Intellectuals, in which he excoriates a good crop of the leftists’ sacred cows. It’s been a while since I bought and read my copy (maybe I’ll re-read it, starting this afternoon), but as I recall he outlines not only Marx’s overall fraud, but mentions specific instances of it as well (e.g., Johnson quotes the actual words of sources which Marx intentionally and repeatedly mis-quoted). And of course the actual behavior of dear ol’ thoroughly-bourgeois Marx to those around him, including the only proletarian that he actually had any meaningful contact with, comes in for some pretty stern treatment.

Suffice it to say that the entire marxist edifice rests on fraud and some pretty basic misunderstanding of the physicalities of producing goods and providing services in any group of people much larger than a stone-age band of hunter-gatherers.

All of which is by way of background to the uproar unfolding around this French marxist and his book. His name, in case you’ve been in solitary confinement for several months, is Thomas Piketty. He has written a book, Capital in the 21st Century, in which he concludes that (i) “unequal” concentration of wealth is inherently objectionable, and (ii) it is inherent in the nature of capitalism, as practiced nowadays, to exacerbate the unequal concentration of wealth in the hands of the wealthiest. In support of that second conclusion he offers a mass of data, graphs, charts, and so forth. As the left’s favorite mountebank, Paul Krugman, claims, “It’s true that Mr. Piketty and his colleagues have added a great deal of historical depth to our knowledge[.]” Krugman admonishes us sloped-brow-bitter-gun-clingers, “[I]f you think you’ve found an obvious hole, empirical or logical, in Piketty, you’re very probably wrong. He’s done his homework!”

From Piketty’s conclusions he offers a number of suggestions for how to go about counteracting capitalism’s inherent tendencies towards objectionably disproportionate concentrations of wealth. I say “disproportionate” because I do not understand that he argues for the complete abolition of capitalism, or (at least not in so many words) the introduction of socialism, which means that he must necessarily be willing to accept some disproportionate concentrations. So must Krugman, by the way; I’ve yet to hear of his coming out in favor of expropriating George Soros, Mark Zuckerberg, Laurie David, Algore, or any of the other left-extremist billionaires who back him and his notions.

I’ll leave it to Gentle Reader to plow his way through Piketty’s book. [Note: In linking to the Amazon.com page for his book I violate one of my informal little rules on this blog. Except in the rarest instances I don’t link to books I haven’t read myself. Something as long as a book is generally too complex and too nuanced to comment about if you’ve not made the effort to read it, so unless I specifically observe otherwise, if you see a link to a book, you can assume I’ve read the thing, and generally more than once (if you would talk to a friend more than once, why wouldn’t you read a book more than once?).]

Piketty’s got only a little problem. He’s not the only one who has done his homework. Others have also done his homework, and what they’ve found about his presentation of his research is very much in keeping with the marxist antecedents of his thinking. It turns out that Piketty’s had his hand in the data jar, and to more than a little extent.

What is it about left-extremists? Why do they experience this compulsion to make things up? To borrow a line from Krugman, “Why, it’s almost as if the facts are fundamentally not on their side.” Projection, anyone? I’m not foolish enough to come out and say that no author, scholar, or other person on the opposite side from the extreme left has ever fudged the numbers or even made them up wholesale. But I’m not aware that any of The Giants on the side of human freedom — Adam Smith, Alexander Hamilton, James Madison, Ludwig von Mises, Friedrich Hayek, Milton Friedman come to mind — has ever been caught out just cobbling together bullshit out of thin air. I’m not aware that anyone has revealed fraud from the skeptical side on the scale of the University of East Anglia, which claims to have “lost” its original data, and the e-mails from which include one from the fellow they hired to come in and fix their data. After something like two-plus years he gave up, and made the statement (to them, by the way, and not publicly) that they had so thoroughly and so irrationally manipulated the data — just adding things and stripping them out, with no reason or pattern — that it was no longer mathematically possible to reproduce what the numbers had originally been. For a good compendium of articles going all the way back to the original e-mail leak, I strongly recommend a search on Instapundit under “climategate.” Or how about Marc Bellesiles, whose “research” on gun ownership in early America was so fraudulent that he not only got stripped of his Bancroft Prize, but actually was fired from his tenured faculty gig? Or how about Steven Leavitt’s slander of John Lott? Lott, Gentle Reader might recall, was the scholar who published a paper in which he correlated wider private ownership guns and looser personal-carry laws with a drop in violent crime. Leavitt (most widely known for his Freakonomics) apparently made two claims about Lott: (i) that a specific paper of Lott’s was not peer-reviewed, and (ii) that Lott had hosted a symposium to discuss the issue but had not solicited contrary opinion to participate. As reported at Chronicle of Higher Education:

“Mr. Lott’s lawsuit alleges that Mr. Levitt defamed him in a 2005 e-mail message to Mr. McCall (who, contrary to what was reported in an earlier version of this blog item, is not the same John McCall who once taught Mr. Lott at the University of California at Los Angeles). In that message, Mr. Levitt criticized Mr. Lott’s work as guest editor of a special 2001 issue of The Journal of Law and Economics that stemmed from a conference on gun issues held in 1999.

The letter of clarification, which was included in today’s filing, offers a doozy of a concession. In his 2005 message, Mr. Levitt told Mr. McCall that ‘it was not a peer-refereed edition of the Journal.’ But in his letter of clarification, Mr. Levitt writes: ‘I acknowledge that the articles that were published in the conference issue were reviewed by referees engaged by the editors of the JLE. In fact, I was one of the peer referees.’ Mr. Levitt’s letter also concedes that he had been invited to present a paper at the 1999 conference. (He did not do so.) That admission undermines his e-mail message’s statement that Mr. Lott had ‘put in only work that supported him.'”

You can quibble about the niceties of the second assertion; if only people whose work supported Lott submitted their work, then it would naturally follow that only “work that supported him” got “put in.” You could make the same statement about a conference on the boiling temperature of water at sea level. But the first concession? Why didn’t Leavitt just come out and say, “I am a liar”? Because that’s what he did; he made a material statement which he knew to be false when he made it; in fact, he had peculiar knowledge of its falseness.

What is it about these people?

My Own Modest Proposal

Posted on May 23, 2014 by Countrylawyer

Over at The Atlantic, via Instapundit, we have a call for judicial fixed terms and, more importantly, a single such term. Specifically the author advocates a single 18-year term for appointees to the U.S. Supreme Court. Occasion for the cogitations is the 60th anniversary of the Brown v. Board of Education (sometimes referred to as Brown I) decision which ruled that as at least to public schools, separate was inherently unequal and thus could never satisfy the Fourteenth Amendment’s requirements. Our author praises the unanimous decision, specifically for the unified front it gave the judiciary in the face of the inevitable ructions which were sure to follow it. I’d not heard this part, that the court took two entire years to craft a decision that all nine justices could agree on. The author describes a forum he attended at Yale at which a group of lawyers who had been clerks to those justices talked about the deliberative process and so forth. All very cozy, and I’m sure it was full of mutual congratulation, as such things drearily are.

What’s not mentioned is the extent to which the process that produced the Brown decision departed from all recognized standards of judicial ethics. Years ago in law school I first ran across mention of this; not anticipating the internet (perhaps because I didn’t work for Algore at the time?) I didn’t note the citation to it. But what happened was this: Brown I was argued twice. Thurgood Marshall argued for the plaintiffs and John Davis (of Davis & Polk) for the defendant school board. What I read way back in law school was that at that first argument Davis kicked Marshall’s ass all over the courtroom. Davis was the pre-eminent Supreme Court litigator of his day; my understanding is that to this day he holds the record for most cases won in that court. Marshall was just no match for him. It was Frankfurter who wanted to have the case re-argued, a decision usually presented as being a stalling tactic for the court while it tried to cobble together a unanimous opinion. But it actually seems that there was another, more sinister purpose: The order for re-argument “invited” the federal government to submit an amicus brief. Frankfurter did not disclose to his colleagues that he had been and proposed to remain in close contact with a former clerk at the solicitor’s office, discussing and in fact feeding him in painstaking detail what arguments to use.

Here is one mention of the incident (first page only, the balance apparently being behind paywall). And here is another. And here is another, over at SSRN. Since the source of all these is the same — the former clerk himself, in an article published in 1987 in the Harvard Law Review — there doesn’t seem to be much doubt that it happened. To put it mildly, “[t]his sort of ex parte communication is considered a violation of legal ethics.” This apparently did not distress either justice or clerk:

“‘I have no easy, snappy response to that view. In Brown I didn’t consider myself a lawyer for a litigant. I considered it a cause that transcended ordinary notions about propriety in a litigation. This was not a litigation in the usual sense. The constitutional issue went to the heart of what kind of country we are, what kind of Constitution and Supreme Court we have: whether, almost a century after the fourteenth amendment was adopted, the Court could find the wisdom and courage to hold that the amendment meant what it said, that black people could no longer be singled out and treated differently because of their color, that in everything it did, government had to be color-blind.’ He said that he would not defend his discussions with Frankfurter in technical terms. ‘I just did what I thought was right,’ he said.”

Well. How about that? He just followed his “revolutionary consciousness,” to use the expression favored by his philosophical forerunners, the Cheka revolutionary tribunals who scourged the land in 1918-21.

Why are the above reminiscences by a lawyer who should have been disbarred, about a justice who ought to have been impeached, important now? Because our author over at The Atlantic specifically praises the court that rendered Brown for being politicians. “The Warren Court that decided Brown had five members who had been elected to office—three former U.S. senators, one of whom had also been mayor of Cleveland; one state legislator; and one governor. They were mature, they understood the law, but also understood politics and the impact of their decisions on society. As a consequence, they did not always vote in predictable fashion.” He contrasts that with today’s court: “Now, zero members of the Supreme Court have served in elective office, and only Stephen Breyer has significant experience serving on a staff in Congress. Eight of the nine justices previously were on U.S. courts of appeal. Few have had real-world experience outside of the legal and judicial realm.”

Our author does not stop at just praising specifically politicized jurisprudence when he agrees with the outcome. He excoriates what he calls politicized jurisprudence when he disagrees with it. The lengths to which he goes are truly remarkable. Let’s let him speak for himself:

“Roberts is political in the most Machiavellian sense; he understood the zeitgeist enough to repeatedly assure the Senate during his confirmation hearings that he would strive to issue narrow opinions that respected stare decisis and achieved 9-0 or 8-1 consensus, even as he lay the groundwork during his tenure for the opposite. His surprising ruling on the Affordable Care Act was clearly done with an eye toward softening the criticism that was sure to come with the series of 5-4 decisions on campaign finance and voting rights that lay ahead.”

Get that? Way back in 2012 Roberts was just a-scheming away, smoothly allaying fears that his politicized judgments would be obnoxious for the lefties, all the while plotting to give free rein to his politicized jurisprudence to run the opposite (wrong) way, because he just knew that all them decisions was going down on 5-4 splits. To borrow a line from Peanuts, good grief. Notice, by the way, that he’s also implicitly accusing his dear lefties on the court of the same sin; how else could Roberts have just known that there would be four dissenters in each of those cases?

The solution is to limit tenure on the high court bench to a single 18-year term. Stagger the terms, so that you won’t get ~~George W. Bush~~ some future president able to stack the entire court during his term(s).

Being the good lefty, our author overlooks the most powerful argument in favor of limiting the time anyone gets to park himself on that bench, even though he states it himself. To see what I’m talking about, let’s do just a teensy-weensy little editing: “Few have had real-world experience ~~outside of the legal and judicial realm~~.” And there you have the central indictment of the judiciary, certainly at least the federal bench at its senior levels. Huge numbers of these people are life-time government hacks (no other way to describe them). They’ve not had to make payroll from their own pocket. They’ve not had to choose whether to let someone go, cut everyone’s pay a bit, or not make their own house payment. They’ve not lain awake nights praying that they can get a case settled before their child needs braces, or that the leaking head gasket on that old car will hold out just a few weeks more, so they can replace the office computer server. In short, they have only the most theoretical notion that any mommocked-up decision of theirs will have any material consequences. They’re philosopher-kings.

So here’s my own modest proposal. Every judicial officer (that would include the non-Article III magistrate judges, bankruptcy judges, and administrative law judges) would have an allocation of 25 total years’ government or “non-profit” employment of any kind at any level. Each day he spends at the public or taxpayer-subsidized teat reduces by one day the length of time he is eligible to be a judicial officer. If he’s appointed at age 30, then at age 55 he’s off the bench, for good. If he’s appointed to the bench at age 30, hangs around seven years, and then goes and gets a real job, at age 57 he’s got 18 years of eligibility left. And in the intervening twenty years he’s got to see how badly things get screwed up for genuine people when philosopher-kings make a pig’s breakfast of their ruminations. If he goes to work for some cushy “non-profit” “advocating” for “justice” or whatever the hell those outfits do for 15 years, then he gets 10 years. It ensures turnover and it ensures, to the extent possible at all, that we will have seasoned, mature jurists and not palace eunuchs confusing their whims with constitutional mandate as is presently the case.

[Update (24 May 14): I suppose I ought to add that segregation needed to go. I’m not sure I agree with the proposal that separate is inherently unequal (too many counter-factuals can be heaved onto the counter for inspection for that proposition to stand, starting with the Dunbar High School that Thurgood Marshall attended). No less-respected scholar than Herbert Wechsler famously invited the odium of all the Right Thinkers by declaring that he had racked his mind and could not come up with any logically defensible basis for the Brown ruling. On the other hand there sure as hell is no honest argument that “separate,” as practiced by those who did so, had for its sole purpose and pretty uniform outcome “unequal.”

I think there were a very great many ways to explode the system of segregation across all of state and local law that didn’t involve doing what the Supreme Court did in Brown (which, as Ilya Somin points out, didn’t actually come out and say it overruled Plessy).

I ought to confess that I’ve never read a book-length treatment of the history of the litigation campaign that produced Brown. My understanding, however, is that the civil rights litigants had spent years pecking piecemeal at the component systems of segregation and came to the realization that they’d spend eons doing so if they carried on that way. So they changed strategy and went for the root-and-branch approach. The way they went about that required the court to adopt the argument — factually incorrect and legally unsupported — that separate was inherently unequal.

Rather than do what it did, how much less violence to law and logic would it have been for the court simply to change how it read the word “person” in the Fourteenth Amendment and its implementing legislation? I don’t do civil rights litigation (too much illogic to it), but my understanding is that as to “official” government action, the courts have gone to great lengths to avoid characterizing states, their political subdivisions, agencies, and instrumentalities as such to be “persons acting under color of state law.” That’s always puzzled me because I cannot for the life of me figure out how that can possibly be correct. If you say that “person” cannot include a juridical person then how the hell do you extend the operation of the Civil Rights Act of 1964 to prohibit action by corporations? So we agree that juridical persons can be “persons” for purposes of these laws. Why should some juridical persons be “persons” but not others? Where is the defensible point of distinction? The court could simply have said something along the lines of, “OK, we rule that states, their political subdivisions, agencies, and instrumentalities are ‘persons’ for all purposes of the Fourteenth Amendment. We further rule that a person’s failure to ensure that all officials, agencies, political subdivisions, and others answerable to that person extend the protections of the Fourteenth Amendment to all individuals is a ‘denial’ of equal protection or due process, as applicable, to the same extent as if that person had acted in his, her, or its own right.”

Now observe what strategic avenues that simple change in reading opens up. For starts, you’re down to 50 lawsuits, tops, against 50 states. In those suits you can further use all the wrinkles and fillips of states’ laws and practices to demonstrate not so much that any particular component of a state’s actions violates the constitution, but to show the comprehensive pattern of in-fact behavior that the states were pursuing for the purpose and with the effect of denying equal protection and due process rights. You don’t have to show that each last penny-ante elementary school doesn’t have X textbooks per pupil instead of Y. All you have to show is that this is a prevailing pattern and the effects of the pattern where it exists. You show the conditions in segregated jails and prisons. You show the funding patterns and student outcomes of segregated colleges. And so forth. This then allows the court to find that, irrespective of what may or may not be the theoretical possibilities of segregation, the actual behaviors demonstrated, taken separately and in the aggregate, constitute a clear, intentional, and effective attempt to violate the constitution.

Going that route doesn’t require you to rule contrary to observable fact. It doesn’t require you to grind your way piecemeal, in separate litigation, through the entire apparatus of state and local government. It recognizes the fact that a law nominally neutral on its face can easily be so administered as to violate the constitution’s mandates and prohibitions (and by the way, that does not mean that it blesses bullshit arguments like “disparate impact” analysis). And it recognizes the conspiratorial element in the entire Jim Crow project.]

So Just What did You Expect, Again?

Posted on May 22, 2014 by Countrylawyer

Via a “share” from a Facebook friend’s page, we have this gem over at AlterNet.org. I will observe that this is not the first article at that site that my friend has shared, on FB or otherwise. I find the self-consciously cute name they’ve chosen for their site to be more than a bit ironic. You see, it’s a play on the world “alternate” from which we are to deduce “alternative,” from which we are to conclude that this site is purveying news and opinion that’s somehow edgy, “alternative,” out there, or otherwise not just one more dead-fish organization going with the flow of the stream. Except it is; what you’ll find there is pretty standard left-extremist claptrap. Like, for example, the linked article. We are all racists now, it seems. As evidence for “subconscious racial bias” arising from “the most enduring, corrosive racial stereotype in America: the black-as-criminal mindset,” we have the observation:

“The archetype is so prevalent that the majority of whites and African Americans agreed with the statement “blacks are aggressive or violent” in a national survey. In support of these findings, other research indicates that the public generally associates violent street crime with African Americans. Other nationwide research has shown that the public perceives that blacks are involved in a greater percentage of violent crime than official statistics indicate they actually are.”

There are two links in the just-quoted text at AlterNet.org, both to an article from 2007 over at the Journal of Contemporary Criminal Justice. For the first link, no specific numbers are given in the linked JCCJ article, only the characterization “clear majority” of both groups. As to the lattermost assertion, I could not find in the linked article on the public perception of percentage or prevalence of black crime relative to actual proportion of all crimes committed by blacks. What I did find are some specific numbers of all crime committed by blacks relative to their statistical share of the gross population (remember that this article is now seven years old, and the research it’s based on presumably older still, so these numbers may well be out to lunch in one or more respects by now). From the JCCJ:

Blacks are indeed involved in a disproportional amount of crime in general and violent crime in particular. In fact, for violent crimes such as robbery and homicide, there have been times when Blacks were arrested in absolute numbers that surpassed those of Whites. In more recent years, however, although Blacks did not surpass the actual number of Whites in nationwide arrests, their presence in these statistics has been greater than their representation in the general public. For example, although Blacks compose approximately 13% of the U.S. population, in 2002 they accounted for 38% of arrests for violent crimes and nearly 30% of arrests for property crimes. Juvenile arrest statistics indicate that during the same year, Black youth accounted for approximately 43% of arrests for violent crimes and 27% of arrests for property crimes. Researchers have suggested that crime committed by African Americans may be especially salient not only because it exceeds what would be expected based on the racial composition of the country but also perhaps because the violent crimes that tend to be most fearsome are the ones that are most disproportionately perpetrated by Black males.

Let’s see. Black males constitute roughly 6.5% of the total population (half of 13% is female, right?). Given that the overwhelming proportion of crime in general, and physically violent crime in particular, is committed by males, period, we can assume that somewhere north of 33% of violent crimes were accounted for by that 6.5%. Which is also to say that black males (and the JCCJ article is predominantly about black males) account for violent crimes at over five times what you would expect if crime statistics were evenly distributed across all demographic groups (male/female, age, ethnicity, origin, etc.), and almost five times the rate for property crimes. Remember that crime in general and violent crime in particular is not age-neutral; it skews strongly towards youth. The numbers for black youth are even more alarming. I haven’t seen an age-pyramid for black youth, but since birth rates trend negatively with increasing wealth, I’m going to assume that black youth accounts for something north of 13% of all youth. Let’s assume 18% of all youth is black, making 9% of all youth both male and black. That 9% of youth accounts for violent youthful offense at a rate 4.78 times their “statistical expectation,” and exactly triple the rate for property crimes.

Thus in point of fact just as a perception of statistical reality, the popular perception that blacks are more prone to commit violent crimes (or even property crimes) would coincide exactly with observable data. I wish the JCCJ article had broken some of the numbers out in greater detail (alas! there are no hyperlinks in it). I’d be interested to know what that “percentage of crimes committed by” figure looks like when you add to the question the qualifier “as experienced by members of specific groups.” Thus, what percentage of violent crimes committed against blacks are committed by other blacks? And the same question for whites (and East Asians, and South Asians, and Aboriginal Americans, for that matter). From everything I’ve ever heard, the answer to that question, percentage of black victims of black crime, the number approaches depressingly close to 100%. Small wonder that blacks might perceive each other to be prone to violence, when almost all the violence they experience is in fact at the hands of their own ethnic group. And in fact the overwhelming percentage, from everything I’ve heard, of black violent crime in general is directed at other blacks. Meaning that you’d expect white victims of black crime to be a smaller percentage than that 38%. This would, again, match everything I’ve ever read, namely that all ethnic groups experience violence principally from members of their own group. It wouldn’t surprise me at all if the proportion of white victims of black crime were something less than 13%. So why might whites in general entertain that non-statistically-valid perception (as to themselves only)? Unfortunately I don’t have hard numbers, but my understanding is that to the extent that whites experience violence from outside their own group, that violence comes nearly exclusively from blacks. As a matter of logic that doesn’t make a whole lot of sense to extrapolate from that data point. If I’m getting robbed at gun-point, or if a friend of mine has been robbed, what difference does it make what color skin the perp had? But humans aren’t always the most logical creatures. As a human child growing up on the playground I’ve probably been bitten by more humans than dogs, if you were to go back and count. But the one bite of my life I still remember is when the German shepherd sank her teeth into my butt, way back in the early 1970s.

You won’t find much cogitation in that AlterNet.org article along the lines of the preceding paragraph. What you will find are outright misrepresentations along the lines of, “Remember Zimmerman’s false syllogism? A few blacks committed burglary, Trayvon was black, therefore Trayvon was a criminal.” No. What came out at the trial is that the housing development where Zimmerman lived had specifically been the subject of multiple break-ins, at least some of which George Zimmerman had observed, and at a minimum those which he’d observed had been committed by black males (my understanding is that to the extent the race and sex of the other perps were known at all, it was black and male). Martin (you remember him; he was the one who was trying to splatter George Zimmerman’s brains onto the sidewalk) was observed by Zimmerman, wandering in the rain, pausing and looking into windows of housing units. Martin may have been lost or disoriented, or just curious as to what sort of people lived in the place he was visiting. But from Zimmerman’s perspective it looked like someone casing the joint. And that’s how he reported it. Unlike the 911 transcript fraudulently edited by the news networks, it wasn’t Zimmerman who brought up Martin’s skin color. He didn’t mention skin color until he was specifically asked about it. The “syllogism” claimed is simply bullshit.

In what she no doubts prides herself on as her demonstration, our author starts with the usual recital of America’s foundations in slavery, and the post-slavery history of violence against blacks committed by whites, in the form of lynching. [A couple of observations are here in order. For starts, given the explicitly racist practice of most law enforcement until the 1960s, you have to assume that for most of American history the vast majority of violent crime against blacks, committed by anyone, never made it into the official numbers. They were sub-humans, so who cared if they were robbed, beaten, murdered, stabbed, raped, etc? A lynching gets attention; knifing someone in a bar fight over a woman, not so much. Secondly, given how geographically concentrated the black population was until post-1910, you have to assume that black-on-white crime was vanishingly rare.]

As Gentle Reader might suppose, there are pretty detailed data on lynchings by year, and in fact by race as well. Here’s a tabulation maintained by the Tuskeegee Institute, for 1882 through 1968. Not that it matters a hill of beans for this discussion, but you could have won some money off me betting that the number of white victims would have exceeded the number of black victims for any year at all . . . and yet for the first four years that’s exactly what happened. Look at the total for both races for the 83 years from 1882 until the last recorded, in 1964: 4,742, of whom 3,445 or 72.649% were black. To put some perspective on it: That’s only 500 more total victims that the number of race-unknown homicide offenders in 2010 alone (links to FBI and Census Bureau data below), and it’s less than the white offenders for 2010 and less than the black offenders for 2010. It’s not quite 36.5% of the victims for 2010 alone. To put some even more distressing perspective on that: Across the entire Reconstruction and Jim Crow eras, not quite 73% of all lynching victims were black; in 2010 alone, 49.78% of all murder victims were black. Even after a good 15 or more years of dropping violent crime statistics, we’ve got a problem that’s two-thirds as exclusively black as lynching. Someone remind me again why this isn’t getting more play in the lamestream media.

I think it’s pretty safe to assume that the number of black lynchers was zero, so you’ve got attribute all of those victims, white and black, to white perps exclusively. But how many “offenders” were there? I don’t think it’s appropriate to ask just how many people were actually involved in making the noose, tying the victim, looping the rope over the tree or lamp post, or whatever. I think you have to attribute some moral guilt to to at least some of those who showed up, even if only out of curiosity. I have no idea whether anyone has ever even attempted to figure out how many people attended these things. How many of them drew a large crowd for a small town? How many of them were just a couple or ten people in the dark of a night? How many drew a crowd of thousands, as several well-known lynchings did? So let’s just assume an “average crowd” of 750. Gentle Reader is reminded how few places in the South during the years when most of the lynchings occurred (out of the 4,742 shown, 2,359 or 49.7469% had occurred by 1896, and 3,179 or 67.03922% had occurred by 1903 — whatever else it was, lynching as a widespread problem was overwhelmingly concentrated in the pre-World War I South, even though other states also knew it; for example, the lynching that prompted the poem “Strange Fruit” went down in Marion, Indiana, and even Minnesota can show at least one, of some circus hands) had other than minuscule populations. So I don’t think 750 people is an unreasonably small number. Applying that across 4,742 lynchings produces 3,556,500 “offenders,” and that’s if you consider all attendees equally guilty. Now let’s ask ourselves how many tens of millions of people were living in the South during those 83 years. I suppose a statistician could cipher that out, but I’d be amazed if the number was any less than two hundred-plus million. The 1900 census data show 18,975,665 people living in the eleven states that had seceded, out of total population of 76,212,168; that’s 24.89847% of the gross. In 1900 there were 115 lynchings. Even if you assume an average crowd of 1,000 per, (and I think that’s a grotesque over-estimate) and even if you attribute all lynchings to those states, that gets you to 115,000 people or slightly over six-tenths of one percent of the gross population. And yet we have tripe (on AlterNet.org, no less), such as the bilge I defenestrated here, in which the entire South is lumped into a single, seething, bloodthirsty mass. Remind me again why this ahistorical bullshit is considered insightful analysis, and yet it’s conclusive evidence of racism! when popular perceptions of the prevalence of violence match observable statistics.

Just as an exercise, I spent some time looking for data on homicides, age, race, and total population. I also looked for data on mass killings (most things I’ve run across define a “mass killing” as one where there are more than three victims in the same (e.g. Oklahoma City) or a closely-related sequence of killings (e.g. Virginia Tech)). I also tried to tie the data I found to the same year, since things can change radically and very quickly. Remember that 2007 data above? Well, the one thing that’s been happening in the past six years is that violent crime of all kinds, and so far as I know, across all groups, has plummeted. So even if a particular group X is “more disposed to violent crime than statistically predicted,” over the last six years they’ve got significantly less disposed to it. In order not to spend more time than I have, I confined what I was looking at to homicide, since it’s the hardest to conceal and the most likely to be pretty fully reported. I settled on the year 2010 so I could use the 2010 census data, available here. The FBI has homicide data, both as to victims and perps, by age and race, here. Finally, I couldn’t seem to find “official” numbers on mass killings, but Mother Jones has a tabulation on “US Mass Shootings, 1982-2012.”

A couple of cautionary notes about the data. The census bureau reports, for racial self-identification, not only single-race responses but multiple-race responses. The distinction can be significant when you’re talking about a gross population, as of Census Day 2010, of 308,745,538. A total of 38,929,319 self-identified as black only. That’s 12.60887% of the gross population. But 42,020,743 self-identified as black-alone-or-in-combination. That’s 13.610% of the population. Unfortunately I could not find age distribution data for the 3,091,424 who self-identified as black-and-something-else, so I had to apply the percentage distributions of the age brackets reported to the larger number. That requires some assumptions about birth patterns for which I have no support in the data I could find. Secondly, there is a large difference in the FBI’s data between homicide victims (12,996) and homicide offenders (15,094). On the other hand that’s logical because killing someone is a sufficiently egregious act that for a not insignificant number of perps it’s not something they’ve got the guts to do alone. Additionally, while data is pretty comprehensive on the sex, race, and age of the victims (e.g., out of the 12,996, only 152 or just over 1% are shown as age-unknown), you’ve got to bear in mind that out of the 15,094 perps, 4,224 are shown as race-unknown; that’s 27.98% of the total. There is enormous room for conclusions to move. Just by way of extreme example, if you attribute all those unknowns to whites, you get 60.11% of homicides done by whites; if you attribute 13.61% of them (575) to blacks, you get 6,345 done by blacks, or 42.04% of the total. In addition to Mother Jones’s data being non-verified (although they’ve got zero reason to understate any of it, with their known political/policy affinities), it’s only mass shootings, which is of course a subset of mass killings. So it’s not complete (see Oklahoma City and its 168 dead); on the other hand, it’s jolly hard to kill more than one person with a knife, baseball bat, or claw hammer (by the way, although not relevant to our current discussion, Gentle Reader ought also bear in mind that blunt instruments are used to kill more people each year in the U.S. than firearms of all kinds), so any discrepancies are unlikely to be very large.

With all that in front of us, let’s look at the data. First raw numbers. Of the 15,094 homicide perps, 5,770 were black (more ominously, of the 12,996 victims, 6,470 were black, a catastrophic 49.78%, and for the age brackets between 17 and 39, blacks made up over 50% of the victims in every stinkin’ one of them), which is 38.23% of the total. Whites, by the way, accounted for 32.13% (please to remember the race-unknowns, Best Beloved). The overwhelming majority of all perps for whom sex is known were male (ex: of the 20-24 perps, 2,546 total, 2,315 of them were male, 90.93%; the divide hovers around 90% male for every single age bracket). So our first conclusion stares us in the face: If you want to be afraid of someone killing you, be afraid of a generic male. If you want to assume that someone is violent, assume it’s a male.

But everyone (except perhaps the people who write for, and read, AlterNet.org) realizes that homicide is not evenly distributed across age, either. For both white and black, it’s massively concentrated in the ages 15-40. Let’s look: For whites, 66.23% of their total (4,849) is accounted for in the 17 to 39 age brackets; for blacks the number is very similar: 72.65%. Second conclusion: If you’re going to be frightened of a putative murderer, don’t imagine him with a whole lot of gray hair. By the way, it appears that whites remain more violent longer than their black age cohort. The last black age bracket showing more than 100 perps is 50-54 (129); whites keep killing a full decade longer, until the 60-64 bracket (112).

Knowing that we’re discussing a perception issue here, and further knowing that whatever we perceive to be the level of violence associated with either race (high, medium, low), our perception is going to have to be grounded in reality, to the extent it is at all, in the data for males ages 15-40 of both groups. So let’s see how that shakes out. Applying the age bracket proportions for black-only to the black-alone-or-in-combination figure produces a total of 7,670,023 males in the 15-39 age range, which works out to be 2.48425% of the 308,745,538 gross population. Now let’s compare that to the percentage of homicide offenders in the 17-39 age range (the FBI’s next lower age bracket is 13-16, and among blacks they account for only 265 of the 15,094, so I feel comfortable ignoring them here). The black 17-39 age range accounts for 4,192 of the 15,094 homicide offenders, or 27.77% of the total. Let’s juxtapose that even closer: 2.48% of the population is accounting for 27.77% of the killers, more than ten times their “statistical expectancy.”

In the interest of comparison, using the same extrapolation of age brackets for white-only to white-in-combination produces 37,210,162 white males age 15-39, or 12.052% of the gross population. White homicide offenders in the 17-39 age range account for 3,212 of the 15,094 offenders, or 21.280% of the total. Again the side-by-side: 12.05% of the population is accounting for 21.28% of the killers, not quite twice their “statistical expectancy.”

So as to both racial groups, their young males are statistically over-represented among killers, with the degree of over-representation being about five times higher among blacks. A further point of commonality is that among that 17-39 range, the bulk of the killers are concentrated in the 17-29 range and the deadliest single bracket is 20-24. For both races you’ve still got guys committing murder into their 30s, but they’ve started to taper off (most likely because they’ve been caught and are in the criminal justice system somewhere). A point of distinction, however, is how much of each group’s race-in-combination population total is represented by that age range. Among blacks, 1.852% is represented by males ages 18-19; for whites the figure is 1.381%, a full 25.4% less. For 20-year-olds the numbers are 0.8943% and 0.6887% respectively, 22.99% less for white males. In that deadliest, 20-24 bracket, the percentages are 3.95632% for blacks and 3.31933% for whites, a drop of 16.1%. In other words, in 2010 a greater proportion of blacks were concentrated in the age and sex group most likely to become homicide offenders. The black population is both younger and in the highest-risk group more heavily male. That’s going to skew the numbers somewhat.

And at this point we run out of the purely numeric and shade into the concept of the “reasonable.” Is it unreasonable, when two groups are both prone to excessive behavior on any scale, but one group is five times further out on that scale, that popular perception — unscientific as it always will be — will still reflect that? Would it be unreasonable for someone to conclude that, all else being equal, blacks make better athletes, when the four data points are proportions of black males versus white males in the NBA and the NFL? You can debate all damned day long about the why it should be so, but to argue that it’s not so is just damned foolish.

But Miss AlterNet.org isn’t arguing that. She’s not arguing that blacks overall or black males in particular are not statistically more prone to acts of violence than whites. She’s not impugning the numbers; she impugning the perceptions. She’s arguing that because the “most horrific” crimes are committed by whites, and we (as a country) don’t perceive whites in general to be disproportionately violent, that’s evidence that we’re all racists. Let’s tee up Mother Jones, bearing in mind my caveats above. Looking broadly at their spreadsheet, it rapidly becomes apparent that mass shootings are (i) predominantly a white phenomenon, (ii) overwhelmingly a white male phenomenon, and (iii) by and large a crazy white male phenomenon. But let’s look at just the numbers, ma’am. In 2010, out of 12,996 homicide victims, we’ve got . . . 9 killed in a mass shooting. That’s not quite seven-one-hundredths of one percent of the total. I went back and added up all the mass shooting fatalities (Mother Jones gives numbers of wounded as well, by the way) since 1993, added in the 168 of Oklahoma City (but excluded the 3,000+ of September 11) and came up with . . . 588. Thus, if you go back a full 21 years, you get 4.5245% of one year’s total homicides in the form of crazy white males shooting the place up or blowing up entire buildings.

Let’s go back to our observations about reasonableness. Sandy Koufax was one of the all-time greats. Hall of Famer. Is it reasonable to conclude from his success that Jews make great athletes? Or how about Croatians? There are some very good Croatian basketball players, including some as play successfully in the NBA, and they routinely field outstanding teams in international competition. So we know they make some damned fine basketball players there. But how reasonable is the conclusion that “Croatians make great athletes” relative to the conclusion “blacks make great athletes,” based solely upon the data point of how many of each are playing in the NBA? Let’s see . . . the NBA is . .. gosh . . . I don’t know (Wikipedia.org to the rescue: according to them in 2011 the NBA was 78% black and 17% white), really heavily black. In fact, five times 17% works out to 85%, not much more than 78%. Huh.

Gentle Reader will tax me with a false equivalence. The make-up of the NBA and the perception of crime statistics are not the same thing. Well, yes and no. Where they both are similar is that both (i) are highly unrepresentative snap-shots of very large population groups, and yet (ii) are highly visible markers which are flung in our faces remorselessly, and further (iii) represent the extreme point on their respective behavioral spectrum. To illustrate the first point: There were 7,670,023 black males in 2010 in the 15-39 age range. Out of most of that number (17-39) they produced all of 4,192 known homicide offenders, and even if you attribute all the race-unknowns to black males ages 17-39, you get every bit of 9,962 offenders, or 0.12988% of the total in that age range. Just over one-eighth of a percent of all black males turned out to be killers that year. Meaning almost ninety-nine and seven-eighths didn’t. Bearing in mind that even in the 24-hour news cycle there’s exactly X amount of information that can be put out, how reasonable is it to expect that news of a homicide is not going to get pretty good billing? Although I’ve not crunched the numbers on other crimes of violence or property crimes, is it reasonable or unreasonable to expect that an armed robbery is going to be covered rather than an apartment that got broken into and a computer and some stereo equipment got stolen? Finally, if killing is the ultimate crime, you must recognize that playing in the NBA is the ultimate in basketball athleticism.

So while it is entirely statistically defensible to state the conclusion “blacks are more likely to be killers than whites,” it’s not only statistically not supportable but morally reprehensible to conclude “blacks are likely to be killers” because neither group is very likely at all to be killers. Neither. But remember Mlle AlterNet.org isn’t about facts; she’s about perceptions. If most Americans get their information, to the extent they get any, from television, and if television portrays only the most egregious events as “news,” and if any particular group X is in fact, undeniable, count-it-up-and-do-the-math fact, vastly disproportionately over-represented in any particular egregious behavior, precisely how is it that you expect such perceptions not to be awakened? If all I’m shown is X with a smattering of Y thrown in, upon what basis do you conclude that I’m wicked for concluding, “X”?

Yet Mlle AlterNet.org wants me to be a bigot for thinking, “You know, maybe X.” This passes for thinking nowadays, it seems. I notice that she is identified as a “legal analyst.” Good for her, because she’s a lousy statistical analyst.

Remind me how it Worked out Last Time

Posted on May 21, 2014 by Countrylawyer

That a highly controversial, polarizing Middle Eastern head of state came to Germany and all the protesters turned out. Prime Minister Erdogan is coming to speak in Cologne — Köln to the natives. According to the FAZ, the protesters are already assembling from all over Europe.

It was Berlin, June, 1967, and the Shah of Iran was coming to town. Granted, he was only going to the opera — Mozart’s Die Zauberflöte — but hey! he was an American ally and puppet. Berlin, which has somewhat prided itself on civil disobedience ever since the latter days of the Kaiser’s reign, turned out in force. Actually, when one says “Berlin,” one must bear in mind that back in those days the population of Berlin contained an enormous element of disaffected youth from all over the rest of Germany. Because of its four-power occupied status (I’m going from memory of what I heard from my German friends 25+ years ago), if you were a male resident in Berlin you weren’t subject to the draft. And apparently even student residence was sufficient to get you out. Which means that Berlin university students skewed even more strongly left than university students typically do.

The demonstrations turned ugly, and fast. I’ve never found a book-length treatment of that night, although I’m sure such exist. Knowing what I do about how that place worked and to some extent still works, I’m quite confident there was a great deal of provocation among the demonstrators, in that they would have been liberally sprinkled with plants, mostly from the communist East, whose sole mission was to see to it that the demonstrators got well out of control.

On the other side you had the police. Something to understand about Germany at this time is that large numbers of their senior leadership in all public agencies had . . . ummmm . . . not exactly pristine consciences, when it came to what they were doing for . . . oh, say . . . the years 1933 to 1945. Oh sure, they’d got their “de-nazificationj” certification, but to an alarming extent those were simply fraudulent. How that process worked, at least in the Foreign Office, is laid out pretty thoroughly in Das Amt und die Vergangenheit, the government-commissioned study of the office before, during, and after the Nazi era. Let’s just say that there was a lively industry among former willing participants, fellow-travelers, and opportunists, where each would vouch for the other’s anti-Nazi bona fides. And a lot — a lot — of people whose fingerprints were all over files, files detailing close cooperation with the SS, the SD, and the Gestapo in occupied and allied countries, in identifying Jews and Jewish assets, as well as leaning on host country officialdom, to get in the boat and row on implementing the Endlösung got their “Persilschein” (referring to a popular European laundry detergent, Persil, famed for its whitening powers). I have no reason, no reason at all, to suppose that the police would have been any different, especially since the police had been even more tightly integrated into the apparatus of horror. Let’s just say that it’s a safe working assumption that the police on the street that night were anything but disappointed that the commies wanted to mix it up and maybe crack some skulls. For some of their senior officials it might well have awakened fond memories of the Kapp Putsch or the glory days when the Sturmabteilung went about breaking up communist rallies and smashing Jewish shop windows.

As Lincoln observed in his Second Inaugural, “And the war came.”

On the streets the night of June 2 was a student named Benno Ohnesorg (ironically his last name translates to “without worry”). He was married, expecting his first child, and this was his very first political demonstration (or so we’re told; it doesn’t really matter). Also on the streets that night was a plain-clothes police officer, Karl-Heinz Kurras. In the courtyard of a building he shot Ohnesorg, who died before they could get him treated at a hospital. At the time Kurras was cleared (of course he was, all his fellow officers swore up and down on it, didn’t they?)

Except that Kurras wasn’t just any old beat cop. He was also an agent of the Stasi, the principal East German surveillance and terror ministry. He was also a long-time member of the SED, the official East German political party. That didn’t come out until years later. Also not coming out until years later was that the June 2, 1967, demonstrations weren’t Kurras’s first rodeo. Turns out he’d been spying for the Soviets during the 1961 Checkpoint Charlie stand-off (English language link, this time).

The BBC calls it “the shot that changed Germany.” And boy did it ever. Among other young Germans radicalized by the events was a certain Gudrun Ensslin, who became one of the leaders of the Rote Armee Fraktion, the RAF, or as perhaps more widely-known in the Anglosphere, the Baader-Meinhof Gang (somewhat inaccurately; Ulrike Meinhof had long been marginalized, by among others Ensslin, well before the German Autumn of 1978). October, 1978 saw the suicides of the senior leadership in prison, but by then the organization had morphed into a second-generation, even more violent, operation. And they kept it up for years afterward, with bombings, assassinations, kidnappings, and so forth, only formally dissolving in April, 1988.

By way of postscript: By 2012 new investigations (Kurras is still alive) cast serious doubt on the story told by Kurras and his colleagues (English-language link). That story was that the officer was attacked by knife-wielding demonstrators and to defend himself he shot back. Apparently that story can’t be squared with what is now known of the remaining physical, photographic, and documentary evidence.

Post-communist review of Stasi files does not reveal, it seems, that Kurras was acting on positive orders. And after the shooting the Stasi broke off contact with him (well of course they would; their asset had to be considered a watched man, by the left if not by the authorities). On the other hand, the Stasi recruited its agents very carefully, watched them like a hawk (counterintelligence), and generally spent a great deal of effort to ensure that they did things, and only those things, consistent with command from above. And Kurras had joined the Stasi in 1955, so by June, 1967 he’s been on the payroll for some twelve years. Even apart from his 1961 services to the Soviets he’s no rookie.

The promised demonstrations against Erdogan are supposed to be peaceful. I suppose we’ll just have to wait and see.

Time / Out of Time

Posted on May 20, 2014 by Countrylawyer

Among the harder tasks a father has is figuring out what in the world to buy his young children for their birthdays. I mean, huh? Mommy it is who tends to know what Small Child is hankering after; it’s Mommy whom Small Child will nag and whine about That One Special Thing. Daddy, who’s doing well enough to remember birthdays in the first place, notices predilections only to the extent that they generate small pieces of things for him to step on as he walks across the living room floor at night and without the light on.

I was thus tickled to enjoy an afflatus the other night while cooking supper for my boys. The youngest is mustard keen on military history in general, and the Civil War in particular. Last summer in lieu of flying out to visit his cousins (normally this trip is by a wide margin the high point of my boys’ entire year) he decided he wanted to go to the 150th anniversary of Gettysburg. So we did: Nine days, eight nights in a tent, 2,512.8 miles in a non-air-conditioned minivan, six states, five battlefields (in order: Antietam, Harper’s Ferry, Gettysburg, New Market, and Appomattox Court House), two museums, a national parkway (Blue Ridge), and a mountain (Mt. Mitchell). And two store-bought meals the whole time. The whole time he never once complained about being hot, tired, thirsty, hungry, or bored. He’d turned seven less than three weeks before we left.

So there I am cooking, and I popped the CD soundtrack from Ken Burns’s The Civil War into the player. My youngest loves that music as well, and has been known to put it on very quietly to fall asleep to on more than one occasion. And then I had my afflatus: While we have, somewhere, a 20-plus year-old copy of the series on VHS, it’s been about six years since we’ve had a player capable of playing them without eating the tapes. Five minutes on Amazon.com’s mobile phone app and the commemorative DVD set is on its way to my front door, expected delivery Thursday. Annual anxiety over picking birthday present: solved.

But that prompted some thoughts. For starts, that Amazon.com mobile phone app makes impulse buying childishly simple. I seldom use it but when I do it’s for something I already know I want, and every time I’m struck by how easy it is. But secondly and more to the point, if I had to get in my van and go dragging all over hell and half of Georgia looking in bricks-and-mortar stores for those DVDs, new or used, I’d never get it done. Between work, grocery shopping, after-hours client meetings, cooking, laundry, dishes, homework, and chasing the boys to bed at 8:20 p.m., by the time I’ve got time to think about looking for Stuff, all the boots-on-the-ground retailers have gone home to chase their own children to bed. The wife’s not in much better shape: she takes the boys to school on her way to work, and she’s the one who drags them to such after-school things as they have going on.

I know we’re not alone. Our children aren’t in travel sports leagues, they don’t have musical lessons or recitals, or (God forbid) dance, or those other things which will pull the entire oxygen out of parents’ existences. But I know full many parents who have all that on their plates and more. Make our hypothetical parent a single parent and now you’ve really got problems making it all come together.

I’d be fascinated to look at Amazon.com’s sales data. I’d like to see when they sell their products, by what time of day. I’d wager a small sum that the bulk of their weekday sales of specifically children’s items occurs after 7:30 p.m., measured by the customer’s location. In fact, it wouldn’t surprise me either to find out that even non-identifiably children’s items are skewed towards the evening hours. So much of the debate we hear about Amazon’s business model focuses on how it “deprives” state and local government of sales tax revenue, and how unfair that is to bricks-and-mortar stores. But what if what’s driving Amazon’s success is not just any perceived price differentials but the time factor. Where I live if I wanted to buy in person something like that DVD set that I spent all of 3.5 minutes ordering last night, inclusive of trying to remember my account password, I’d get to drive somewhere between 45 minutes to a full hour just to get to the stores which might potentially have it in stock. And then I’d get to hoof all over at least several of those stores, because I am perfectly comfortable that no bricks-and-mortar operator can afford to keep commemorative editions of 20-year-old documentaries on the shelf on the off-chance that someone’s going to toddle by and take it off their hands. And at the end of the expedition, pissed off from the traffic and looking for place to park, with four or more hours blown away, a half-tank of gas into the bargain (and at $60-plus to top off an 18-gallon tank that’s a cost I have to add to the product), and with a further hour-plus drive home staring at me (remember I’m going to start with the stores closest to where I live), I’m most likely still to have to order the damned things after all.

Given what I perceive to be a trend (dare I use the expression “remorseless”?) towards ever-increasing demands on parents’ time, what does my hypothetical shopping trip above have to say about Amazon’s business model’s long-term viability relative to their competition, or at least that competition that does not deal in bulk, gotta-have-it-tonight supplies. I know Amazon now sells groceries and whatnot, but unless you’re someone who’s a doomsday prepper or Super Organized Beyond all Reason, are you really going to buy your laundry detergent, pasta, toilet paper, and canned soup from Amazon.com? On the other hand, if I’m running a store that deals in things that aren’t immediate-need items, that are non-run-of-the-mill items (other than hand-fabricated things like fashion accessories and whatnot), I think I have to see every travel soccer league as a threat to my livelihood. Because every one of the out-of-town tournaments is just that much less time my customer has to do business with me. Every two-hour Thursday evening practice is three or more hours less that my customer has to swing by my store. An hour’s tutoring three afternoons and that’s so many shopping expeditions scuppered.

O! the Quandary!

Because talking to oneself is no longer fashionable

Monthly Archives: May 2014

From the Department of Always use the Right Tools

Get the Popcorn Ready

On Grace, Cheap and Otherwise

Harrison Bergeron, Call Home

Well, This Explains a Lot

Following in the Master’s Footsteps

My Own Modest Proposal

So Just What did You Expect, Again?

Remind me how it Worked out Last Time

Time / Out of Time

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