Monday, June 8, 2015

"Chief Ab Beth Din WyRosh Yeshivo"

Today I ran across the 1792 pamphlet "Minutes of debates in council on the banks of the Ottawa River, November 1791."  The pamphlet (you can download it here) purports to be an account of speeches given by Indians after the defeat of a US force under Arthur St. Clair on 4 November 1791.  This was the worst defeat ever suffered by the United States at the hands of the Indians.
Its authenticity has been questioned (see here), but no one has noticed that the author left signs of his mockery (as well as his knowledge of Hebrew) on page 20:

Yes, either this pamphlet is a joke, or there really was an great Indian peace chief in the early 1790's named Ab Beth Din WyRosh Yeshivo אב בית דין וראש ישיבה -- "Chief of the Court and Head of the Yeshiva."

The speech of Ab Beth Din WyRosh Yeshivo is preceded by one by Gush-Gush-a-gwa, (this joke I don't quite get).  Appended is a letter on gardening (!) dated April 3d 1762, and signed by General H. Bouquet (who was a historical personage, though not for peaceful reasons. ).  
May the flowers of peace bloom for all nations of the earth --MSK

Tuesday, April 14, 2015

Marriage, Dementia, and Consent (more Jurisprudence 101)

1.  Read these

In an Iowa courtroom, an astonishing case of sex and Alzheimer’s

Sex, Dementia and a Husband on Trial at Age 78

Iowa Code 709.4:  709.4  SEXUAL ABUSE IN THE THIRD DEGREE.
         A person commits sexual abuse in the third degree when the person
      performs a sex act under any of the following circumstances:
         1.  The act is done by force or against the will of the other
      person, whether or not the other person is the person's spouse or is
      cohabiting with the person.
         2.  The act is between persons who are not at the time cohabiting
      as husband and wife and if any of the following are true:
         a.  The other person is suffering from a mental defect or
      incapacity which precludes giving consent.
….
         4.  The act is performed while the other person is mentally
      incapacitated, physically incapacitated, or physically helpless.
         Sexual abuse in the third degree is a class "C" felony. 

Ohio Code   2907.02 Rape.
(A)
 (1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:
….
 (c) The other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.

2.  Some purely legal questions:

Between cohabiting spouses, sex is permitted even if one spouse suffers from “a mental defect or incapacity which precludes giving consent” but not  if  that spouse  is “mentally incapacitated.”  What is the difference?  Or is this just poor drafting?

Ohio law distinguishes between spouses “living separately and apart” and those who are not.  Is there a difference between Iowa’s distinction between cohabiting and noncohabiting spouses and Ohio’s distinction?  To may lay mind, spouses living separately and apart implies that they are neither living in the same place nor have an ongoing sexual relationship.  Is that correct?
Are certain forms of consensual bondage prohibited because they render one partner “physically helpless”?  What if, a la the Iliad, both partners are consensually rendered physically helpless by a third party?  Can this Iowa prohibition be upheld after Lawrence v. Texas

3.  Some jurisprudential questions:

Why should it matter whether the spouses are cohabiting or not? 
Is there a difference between “too demented to consent” and “too drunk to consent”?    Should there be?  Note that in Ohio, but not apparently in Iowa, there is no such thing as “too drunk to consent” between spouses who are not “living separately and apart.”
Should marriage serve as affirmative consent to sexual relations in the absence of any signs of refusal?


For a related post, see here.

Friday, March 20, 2015

The Green Mountain Menace

The disturbances in Massachusetts bay [Shay's Rebellion -- MSK] have been considerable, and absolutely threaten the most serious consequences.  It is supposed the insurgents are encouraged by emissaries of a certain Nation & that Vermont is in the association.  How it will end God only knows, the present prospects are no doubt extremely alarming.
  --William Grayson to James Monroe, 22 November 1786.

Wednesday, February 18, 2015

Federalist vs. Antifederalist Standards of Reasoned Debate

The week previous to the election, I was riding in company with Major Murfree, who has already been introduced to the reader, and with Dr. Garvey, a warm-hearted and energetic Irishman, several miles in the interior from Winton, where we noticed a paper pasted against a tree, which read as follows : " Notice !— On Wednesday next, at three o'clock, all persons desirous of hearing the new Constitution explained, by Elder B— t, are requested to attend his church in the Woodlands, 17th March 1788."  The time appointed was only two days previous to the election. We felt indignant, at what we deemed an insidious attempt to deceive the community; and we determined to be present, in order to counteract his movement. On our arrival, we found a horse hitched to every tree about the church, and the interior of the building crowded. We pressed our way to seats, a little distance from the pulpit.  B— t had been some time at his nefarious work, explaining the Constitution to suit his unhallowed purposes. He frequently cast a suspicious and disconcerted eye at our pew. He then began to explain the object of the ten miles square, as the contemplated seat of the Government. "This, my friends," said the preacher, "will be walled in or fortified. Here an army of fifty thousand, or, perhaps, a hundred thousand men, will be finally embodied, and will sally forth, and enslave the people, who will be gradually disarmed."  His absurd assumption set our blood in fermentation, strongly excited already by party feeling. We consulted a moment, and agreed to possess ourselves of the seat directly under the pulpit, and make an effort to discuss the subject, or break up the meeting. We arose together, Garvey with the Constitution in his hand, supported by Murfree on his right and myself on his left. Garvey turned towards B— t, and said, in a loud voice: — "Sir, as to the ten miles square, you are" — here he was interrupted by a general movement and buzz, which instantly swelled into a perfect uproar. At this crisis, we were in a most critical situation, and only saved from violence, by the personal popularity of Murfree, who was universally beloved. We were glad to pass out with the torrent, get to our horses, and be off. We attained our object, however, — the meeting was dissolved.
     The next day, Garvey and myself planned and executed a caricature ; and, as it was a new exhibition among the people, we hoped it would have a good effect at the polls. A clergyman was represented in a pulpit, dressed in his bands, with a label proceeding from his mouth, having this inscription: — " And lo, he brayeth!" This we committed to some resolute fellows, with instructions to post it Caricatured, up at the door of the court-house, at the opening of the polls ; they engaging to defend and protect it. Some of B— t 's friends, stung to the quick by the sarcasm, attempted to pull it down. Our gallant band defended it. A general battle ensued. This obstructed, as we desired, the voting. Candles were lighted in the court-house ; these were extinguished in the melee, and both parties, in great confusion, were left in the dark, literally as well as politically. I embraced the opportunity of taking French leave. B— t gained the election, to our great annoyance ; and the Constitution was rejected for that year, by North Carolina.

Men and Times of the Revolution  or Memoirs of Elkanah Watson (New York, 1856) 301-303.

Tuesday, February 10, 2015

Speechgate: Boehner, Obama, Netanyahu, and the Constitution

This past summer at the Annual Meeting of the American Political Science Association in Washington DC, I participated in a panel on early American foreign policy.  Among my fellow panelists was David Carrithers of the University of Tennessee at Chattanooga, who read a paper entitled “Once More Unto the Breach: Madison versus Hamilton on Presidential Power in Foreign Affairs” (the paper doesn’t seem to be up on the web, but if you write to Professor Carrithers via the email on his webpage above presumably he will send it to you).


Professor Carrithers took us back to the Pacificus-Helvidius debate over the respective roles of the President and Congress in setting the basic lines of foreign policy on war and peace.  The occasion was George Washington’s May 1793 decision to proclaim American neutrality in the War of the First Coalition between Britain and France.  Helvidius (James Madison) argued that since the Constitution gave the power to declare war to Congress and not the President, only Congress could declare neutrality, that is to say non-war.  Pacificus argued that all Washington did was proclaim that as a matter of law the United States was neutral , and that his administration would take appropriate steps to enforce America’s obligations as a neutral.


You might think that the real issue between Madison and Hamilton was whether America should be neutral between Britain, America’s enemy in the Revolutionary War, and France, America’s ally in that war, and to whom the US was still formally allied by the treaty of 1778.  But they did in fact disagree that America should stay out.  The real issue was who should take leadership in foreign affairs, the President, charged by the Constitution with executing most aspects of foreign policy, or Congress, charged by the Constitution with declaring war or peace.  Doves, whether Democrats or Rand Paul Republicans look at the record of US interventionism where the President has generally been the one leading, and argue for Congressional leadership.  They do not attend to those cases where it is Congress rather than the President who is pushing for action (think Jackson-Vanik or, US attitudes toward the civil war in Cuba that brought about the Spanish-American War).


Which brings us to Speechgate.  Whatever policy Obama wants on Iran it is almost certainly to require some kind of legislative action, and so Congress has a role.  In order to exercise its constitutional role Congress cannot depend on the Administration for information, and it conducts hearings and even  operates its own intelligence agency -- the Library of Congress with its Congressional Research Service.

Speaker Boehner, in coordination with the Senate leadership and informing the White House, chose to invite Benjamin Netanyahu to speak before a joint session of Congress.  The White House seeing an opportunity to simultaneously display its contempt for its most hated enemies, the Republicans who control Congress and Netanyahu, made clear that Netanyahu’s unwelcome to the President and even went far as to lie and claim that Netanyahu had disrespected the President by accepting the invitation before the White House was informed of it.


Under the law, the President clearly has the right to keep Netanyahu out of Washington.  He even has the right, though it is rarely if ever exercised, to keep Congressmen and Senators from travelling abroad to meet with foreign leaders.  Congress, though, has its own duties regarding foreign policy and has the right to deliberate freely in order to carry out those duties.  Speechgate isn’t yet a constitutional crisis, but if Obama’s Iran policy craters before he leaves office, it will be seen as the beginning of one.


As regards Netanyahu, polling shows that he is strengthening aginst his rivals notwithstanding White House hostility.  But that might not last.  For Netanyahu’s enemies, though, I have another history lesson:  in 1999 Bill Clinton did a lot to help shove Bibi out and bring in Ehud Barak, whom Clinton correctly perceived would restart the stalled Israeli-Palesitinian negotiations.  But negotiating did not lead to peace:  rather, faced with an Israeli offer at Camp David to which he had no constructive response, Arafat chose to launch the Second Intifada.  More than three thousand Palestinian deaths, more than a thousand Israeli deaths, and a renewed Israeli occupation of the West Bank.

Obama wants a new Israeli prime minister, and thinks that with new Israeli leadership he can force concessions to Abbas.  He also thinks that engaging with Iran is the way to deal with the new Sunni Caliphate he likes to call ISIL, the Islamic State in the Levant.   Can, or will, Abbas, keep jihadis out of any territory he takes from Israel?  Will Iran obey the norm of no first use to which all nuclear powers since 1945 have adhered?  Some of us, including Republican Speaker John Boehner and Democratic Senator Robert Menendez, would prefer not to find out.

Tuesday, February 3, 2015

Why I am a West Coast Straussian

It is ordered, and by this Court declared; that every person within this Jurisdiction, whether Inhabitant or other shall enjoy the same justice and law that is general for this Jurisdiction which we constitute and execute one towards another, in all cases proper to our cognizance without partialities or delay.
Massachusetts, The Book of General Laws and Libertyes, "Body of Liberties" (1641)
quoted in William B. Allen, Let the Advice Be Good, 4.

This passage brings tears to my eyes because of its noble and simple beauty. These men aspired to render equal justice under law, a rare aspiration in this world, and one realized in few places today. "Have Faith in Massachusetts" said Calvin Coolidge, "In the general results, there is no place on earth where the people secure, in a larger measure, the blessings of organized government, and nowhere can those functions more properly be termed self-government."

Tuesday, January 6, 2015

White Flight and the Future of the Mississippi Delta

Thoughts on How White Flight Ravaged the Mississippi Delta, new in The Atlantic.

1. Very few white people are going to choose to devote their lives to expiating the guilt of their ancestors, when they can move to Tampa or Phoenix. The implicit demand here is for racial noblesse oblige without racial privilege. Ain't going to happen.
2. You can build a business with very little financial capital, if you have strong social capital -- just look at the Koreans in LA, or the Jew peddlers become retailers of an earlier era in the Delta. But Black social trust networks were done in by integration, especially by the quick way into the middle class offered by expanding public employment for educated Black women.
3. To make Black life better in the Delta, you need to find a way to make money in the Delta that improves the human and social capital of Black men. That is to say, you need to reverse "the end of work." This is a hard problem, and the Delta is I think, a hard place to try to fix it. A free enterprise zone with no minimum wage for manufacturing workers and strong "right to work" laws might help, but is a hard sell politically given its resemblance to peonage.