Category Archives: Arsenal Essay

Amending the Constitution: The National Convention Option?

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This new essay by Lawrence Lessig partially answers a question I had recently been pondering. That question was about whether it would be feasible (on paper) to do a constitutional convention through Article V (the one about how to amend the U.S. Constitution). It’s permissible but hasn’t ever been tried. Here’s the relevant part of that provision:

Article V: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress…

 
Lessig points out that this alternative route, which has never been used, isn’t actually all that special or worrisome. It’s not like a free-for-all that can just junk the whole document. A Constitutional Convention could only be convened by the formal request of 2/3rds of the U.S. states (34 now) and it could only propose amendments to the existing Constitution, which would then be sent back — just like Congressional amendments! — for approval by 3/4ths of the U.S. states (38 now). That last part is always the hardest, and this doesn’t change that.

That’s consistent with the interpretation posted on the U.S. Senate website’s page explaining different parts of the U.S. Constitution:

The Constitution also authorizes a national convention, when two-thirds of the states petition Congress for such a convention, to propose amendments, which would also have to be ratified by three-quarters of the states.

 
So, the national convention route is actually probably even more complicated to get it rolling, in that it requires all the cat-herding of more than 30 states be done twice over (once going in and once coming out), and then once it’s rolling it’s no easier or more dangerous than the usual amendment process.

The advantage it (potentially) has is that it circumvents the need to have members of Congress vote on specific amendments that might affect them or the special interests they favor. It would also be within the much stronger state-level tradition of public interest reform by direct democracy.

Interestingly, Lessig doesn’t address Article V’s provision for allowing states to create special conventions for ratification. He specifically — intentionally I assume — uses the more generic term “states” when discussing the ratification side, although he mentions legislative party control in passing. The likeliest format would be for the legislatures to vote up or down on the convention’s proposed amendments, just as they would for amendments from Congress, but it’s not required.

Let’s take a second look at Article V: Read more

Wealthy populism and the real history of the Boston Tea Party

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In light of our recent articles on European populism and comparing anti-democratic mass demonstrations in Thailand to the U.S. tea party movement, I was thinking about the latter group once again. I was also double-checking the history of the East India Company for research and stumbled into the realization that the “tea party” part of the name might be more accurate than previously believed.

The common version of the story is that it was a protest against high taxes from Britain — on tea among other things — without representation in parliament. Obviously, this would not be an accurate analogue to anything in the modern United States because the people protesting are represented in the elected legislative body of the national government.

There’s also usually a claim that the colonists were being “forced” by the government to purchase tea from a monopoly. And maybe you could make a case that government policies today are creating de facto monopolies for certain companies (like internet service providers) — mostly through lax regulation. But they generally haven’t been protesting that angle. It’s always been about the original “Taxed Enough Already” (TEA) claim.

So back to the history: in fact, the inciting factor provoking the riot was not some act of increased “taxation without representation” but actually that the British government lowered the tax burden, by allowing the EIC to import tea directly into cities like Boston, without going through British home customs first. Yes the government was still making the EIC the monopoly licensed tea importer, but middle-class colonists had been blatantly ignoring that restriction anyway, in light of the previously high prices on taxed tea imports. Instead, they had been illegally buying tax-exempt tea from Dutch wholesalers brought in by American smugglers.

Those smugglers had become very wealthy, especially in Boston. The problem was that their business only survived by virtue of multiply-taxed East India Company tea being way more expensive than the competing non-British tea. People weren’t buying Dutch tea as a political statement (before the Boston Tea Party), but to get a deal. As soon as EIC became the cheapest tea in the game (not through unfair subsidies, just tax cuts!), everyone was more than willing to purchase legal British tea (including customs duties). And the wealthy business interests running the illegal tea were not happy with being priced out of the market.

Thus, the original Boston Tea Party is less a cry of freedom and more a story of a bunch of rich guys rallying a populist mob to halt the enforcement of government regulation on their illegal business activities and to protest the cutting of taxes that affected average people because tax-avoiding smuggling was how they had become rich. All they had to do was drop some vague buzzwords like “liberty” and rights” to make the case that the money consumers were spending on tea should be going into their own pockets instead of into the royal treasury (which was paying for all the colonial defenses, the debt from the French & Indian War, etc).

So to recap, this current conservative populist “movement” named itself after a protest against policies that benefited common people but negatively impacted wealthy business interests led by flagrant tax evaders. That seems pretty apt actually.

It’s too bad that wealthy interests are so often and so easily able to rabble-rouse disaffected and struggling middle class people to rally against their own interests on behalf of the rich.

Flag of the British East India Company, 1707-1801.

Flag of the British East India Company, 1707-1801.

“Urbanization”

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Like many U.S. communities large or small, there’s a debate afoot in Newton, MA about the merits of “development” and “growth,” as has occurred every decade without fail, probably since the earliest second ship landed in an American community after a first ship already had.

Below is an excerpt from one of a number of rather frustrating recent local commentaries against urbanization and densification of Newton, Massachusetts. I wanted to link to the long one published this week, but it wasn’t online yet — and this one will do for my purposes, as the specific people involved are less relevant to my analysis than the sentiments expressed:

Newton is the home we cherish. We value its character, history and scale. Newton residents are deeply invested in their community, both economically and emotionally. Whether they have been living here for decades or recently moved here, most residents chose Newton precisely for its suburban qualities, not because they hope to see it grow ever more urban.
[…]
All discussion of “smart growth,” “transit-oriented development,” and “right-sizing” is misdirected because Newton is already “right-sized.” Newton is not yet overcrowded, but risks becoming so.

[…]
In truth, Newton is a suburb, not a city, so imbued with the character of its 13 villages that it has little in common with a typical urban environment. Newton has benefited from transit-oriented development for more than a century, as businessmen who worked in Boston found that the railroad and later the trolley could bring them to work in Boston each morning in half an hour, then home again in the evening, allowing them to live with their families in an environment of clean air, tree-shaded streets and yards, and wide lawns. Remarkably, all these years later, we still enjoy the same advantages. And most residents would probably agree that neither biking, jogging, or walking is improved by denser development.

 
It takes a certain amount of self-absorption and myopia to genuinely believe that these suburban locales (which, I can verify after knocking on doors for campaigns in several states, all basically look identical) are somehow unique snowflakes, with incomparable community values, visual aesthetic, and appeal to home buyers. It takes an additional dash of naivete to genuinely believe that a community one is about to move into will remain unchanged forever.

A certain attitude

The attitude captured above — generally coming from any place’s “longtime residents,” who in Newton’s case lord that status over everyone despite almost universally having moved into the area half a century or more after my own family — is fairly typical of most communities like this. It boils down to “develop this far, and no further.”

It’s a view that says it was ok that everything changed hugely right up until my arrival, after which it must freeze in place and never, ever change again, even as the population grows and societies become more complex. It’s pulling the ladder up behind one’s self and slamming the door shut. I don’t think it’s as much NIMBYism as a reactionary fear of the unknown and fear of change. It’s gatekeeping via arbitrary construction limits to prevent new residences, thus obviating the need to become an actual gated community.

Sometimes I want to tell suburbanites complaining about “urbanization” and “pro-density” policies that the existence of their houses in the once-undivided miles of fields behind the house I grew up in is affecting my hay production for the local horse-drawn carriage industry. And the ice man is having trouble keeping up with the growing population’s ice box needs.
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“Loner” attackers aren’t crazy & don’t really act alone

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Yesterday I published a brief piece arguing that the Santa Barbara shooting had less to do with solo mental illness and more to do with a bigger ideology or worldview that makes it acceptable to kill someone without seeing that as wrong. I noted that past mass killing events like the Rwandan genocide have been prime examples of a lot of people suddenly coming to the belief that the morally “right” course of action is actually the immediate extermination of a class of fellow humans. Maybe there’s a “mob mentality” / Salem witch trial hysteria element to it, but at its core, it’s not so much that everyone suddenly went crazy but that everyone was primed by received messaging to believe that mass murder was now acceptable because of reasons.

In the grand scope of history, I’d hypothesize that the number of ideologically motivated murders astronomically outnumber those committed in a lunatic haze by someone who is just totally out of it and has no sense of up or down, let alone right or wrong. In fact, I’d even go as far as guessing that in the United States today, more mentally ill people who are confused are accidentally killed by police than other people are killed by a mentally ill person on a rampage. It happens, but not much. Plus, those people basically don’t have any idea what they’re doing. Which is vastly different from premeditating an elaborate killing spree for specific, defined reasons based on ideas (not, say, amorphous perceived threats or imagined voices).

It’s disrespectful, at best, to suggest automatically that a mass shooting is the result of mental illness (and, at worst, contributes to further stigmatization which can only make it less likely people who need help will seek it). But it also conveniently and decisively removes any opportunity to discuss the ideological motivations or worldview that actually led a person (who may or may not have a mental health issue) to commit a violent crime. It requires an ideological component well beyond any mental atypicality to take a socially awkward person and make him angry, hate-filled, murderous person. Not everybody who is awkward or struggles with mental health challenges has that reaction.

A reader posed several questions to me, in response to the original post:

Don’t you think you’re going down a slippery slope here? With that mentality you could attribute every awful thing anyone does to their having a different ideology. Also, he didn’t live in a society where killing girls who aren’t interested in you is OK. If he wasn’t mentally ill, how did he develop an ideology that almost no one else around him shares? I don’t doubt that a lot of guys think women owe them sex, but don’t you think you have to have some issues to take it to the extreme that he did?

 
I think that’s a fair question to ask me, to the extent that I didn’t fully explain why I was making the argument. So in the interest of clarifying, I’ll answer that in full, for everyone’s benefit:
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The Americanos’ Day (Or: In Defense of ‘Cinco De Mayo’)

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Battle-of-Puebla-1862Ah, Cinco de Mayo. The annual day where snooty Americans get to tell other Americans (who are really just trying to drink in peace while wearing face paint in the Mexican national colors) that “actually” Cinco de Mayo “isn’t a real Mexican holiday” and “has no importance or significance” — and then even snootier Americans (like me!) get to tell the first group that the Second French Empire’s defeat in the Battle of Puebla was strategically important to the preservation of the Union during the U.S. Civil War, by preventing Napoleon III from invading to help the Confederacy.

To this day, even though the holiday is not widely celebrated in Mexico (because it was not very important within Mexico as a whole in the long run, since the French won the war anyway at least briefly), it’s important to acknowledge what makes it so unusual in the United States:

1) It’s a rare day where Mexican culture and heritage is openly celebrated in a country that includes the territory that used to be of about half of Mexico. These areas make up parts or all of ten U.S. states now. And the country at large is home to millions of people of Mexican descent. They deserve more than a day. Don’t take this one away!

2) The holiday’s U.S. roots began in the State of California when news of the 1862 victory in Puebla, Mexico reached the Mexican miners in California. Both the United States and Mexico were being torn apart by war at the time. The anniversary of the battle has been celebrated every year since 1863 in California. (1863!) When people say “it’s not a real Mexican holiday,” that minimizes the fact that it’s essentially always been a celebration of Californian Mexican-Americans.

Thus, it’s a great way to celebrate Mexico’s culture and close historical ties to the United States — something that has tragically been forgotten amid the push for bigger border fences and a rising tide of anti-Mexican xenophobia.

And even though Puebla is a southern Mexican state, it is a convenient reason to celebrate the cross-border regional culture of northern Mexico and Alta California/Nuevo Mexico, or the U.S. Southwest.

Mexico has long had many of the same sectional differences that plague(d) the United States. The gross Anglo-American Slaveholders Revolt in Tejas that led to the creation of an independent Texas is a dark mark. But beyond them, a lot of actual (non-U.S.) northern Mexicans wanted out from the rest of the country. Most got it, via the Mexican Cession (though that probably wasn’t what most residents had in mind), but a few states were left behind. They remained close with the United States — often more so than with central Mexico. Until big migration restrictions were put into place, there was a lot of economic activity back and forth in both directions between the American Southwest and northern Mexico, even well into the twentieth century.

U.S. history has long been closely intertwined with Mexican history, both for good and ill. It’s pretty great that a century and a half later, a lot of Americans (including non-Mexicans) take at least one day to acknowledge (however casually, in some cases) that almost a third of the U.S. mainland by area used to be half of another country and that Mexican-Americans still part of both our history and present.

523px-File-Mexico_1835-1846_administrative_map-en-2.svg

And if nothing else, I just want to reiterate that the “insignificant” battle kept the French intervention force distracted in Mexico long enough for the U.S. Army to regain the momentum and win the Civil War before the Confederates could persuade any European governments to help them.

Oped | Pfizer: Tax Havens or Bust!

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Why cutting U.S. corporate taxes won’t stop a wave of offshore reincorporations.

My new oped, expanding on a post on this site, is now available from The Globalist:

Grand_Cayman_IslandPfizer, founded in the United States in 1849, is trying to buy AstraZeneca, one of its biggest global rivals. Reportedly, and quite bizarrely, the main purpose of this transaction is so it can reincorporate in the United Kingdom — and thus reduce its tax “burden” as well as access “trapped” overseas cash.

The United Kingdom, of course, makes for a much more “competitive” tax environment. After all, it provides corporations and rich individuals with access to half a dozen or so offshore tax evasion center crown dependencies and British Overseas Territories.

(And let’s not forget about that always-subservient financial center, a medieval holdover city-within-a-city in the heart of the modern British capital.)

Of course, we should refer here to the scheme as tax “avoidance,” because a tax maneuver is not “evasion” if it is entirely legal (thanks to a most circumspect exploitation of all the loopholes).

In Pfizer’s case, it is indeed so entirely legal — and potentially lucrative — for the company that Pfizer has already tried to buy a disinterested AstraZeneca once already this year alone. Undeterred, they have made a second massive offer this month.

United Kingdom or United States to blame?

All of these British tax avoidance centers exist in a legal gray area that has its true charms when it comes to sovereignty and expediency. They are outside UK control on paper when convenient — and therefore, with one exception, outside effective EU regulations, too. But they are very much under the UK’s thumb whenever so desired and needed.

Continue reading…

Donald Sterling is Literally Hitler

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Apparently I haven’t delved to the deep dark depths of the National Basketball Association, because it came as a bit of surprise to me that Los Angles Clippers owner Donald Sterling is a massive, old-fashioned racist. Sterling’s former girlfriend(?) V. Stiviano leaked a bizarre audio tape, in which he gets angry she had taken an Instagram picture with basketball legend Magic Johnson (!) and Dodgers outfielder Matt Kemp. By the end of the tape, he’s expressing a plantation-owner mentality towards his black players:

V: Do you know that you have a whole team that’s black, that plays for you?

DS: You just, do I know? I support them and give them food, and clothes, and cars, and houses. Who gives it to them? Does someone else give it to them? Do I know that I have—Who makes the game? Do I make the game, or do they make the game? Is there 30 owners, that created the league?

Uhhh….. I’m pretty sure Chris Paul and Blake Griffin could easily find another owner to pay their salaries. And I’m pretty sure Clippers fans are flocking to LA’s long-forgotten basketball team to watch Paul, Griffin and Doc Rivers, not to thank Sterling for decades of terrible ownership. Speaking of Doc, I’m wondering how much he knew about this situation, given that he once played for the Clippers. He has refused a phone call with Sterling, and seems focused on getting past a pesky Warriors team before he really takes on this firestorm.

But forget basketball for a second — Sterling’s racism has real-world impacts. He’s a slumlord who has targeted blacks, Hispanics, and families with children for eviction, getting himself convicted in the largest ever housing discrimination settlement.

But to get the whole bizarre picture, you really need to listen to the full audio. It’s sounds like a parody of a nurse attempting to understand the antebellum views of a senile geezer. His entire premise on why people of different ethnicities can’t be friends comes down to culture — that’s the way it is — a nice little circular argument that I have actually heard from someone who styled themselves as intelligent. I’m sorry but “the culture” has changed a lot since Sterling bought the team in the 80s. I love this particular section, where they go full Godwin:

V: It’s like saying, “Let’s just persecute and kill all of the Jews.”

DS: Oh, it’s the same thing, right?

V: Isn’t it wrong? Wasn’t it wrong then? With the Holocaust? And you’re Jewish, you understand discrimination.

DS: You’re a mental case, you’re really a mental case. The Holocaust, we’re comparing with—

V: Racism! Discrimination.

DS: There’s no racism here. If you don’t want to be… walking… into a basketball game with a certain… person, is that racism?

Yes.

In another interesting bit, Sterling, nee Tonkowitz, talks about how “black Jews” are treated like “dogs.” Black Jews? Maybe he’s thinking of Palestinians?

Oh and also there’s a section where Sterling says Stiviano (who is black and Mexican) is a nice “white or Latina girl.” He needs to step up his slave-master game, because they certainly were under no impressions they were sleeping with white women.

The other NBA owners and new commissioner Adam Silver need to force this guy out as fast as possible. We don’t need another Marge Schott situation, where it took the better part of a decade to oust the Nazi-loving owner of the Cincinnati Reds. At least Eric Miller, Sterling’s son-in-law and Director of Operations for the Clippers, called Sterling’s comments “deplorable and disgusting” in a statement that could cost him a job.

If Donald Sterling still wants to own a team, he picked the wrong league. Not only is the NBA largely black, basketball is a global sport with a growing following in Asia, Africa, South America, in addition to Europe. The NBA already has had stars from China, Argentina, and Germany. The new faces of basketball are fundamentally incompatible with Donald Sterling’s plantation mindset and the NBA needs to force him out immediately.