2019-09-16 20:20:15

The results of the 2018 National Crime Victimization Survey (NCVS) were released last week. The report begins with a troubling observation: “The longstanding general trend of declining violent crime in the United States, which began in the 1990s, has reversed direction in recent years.”

But with one very notable exception—a massive and inexplicable increase in sexual assaults—this year’s findings aren’t statistically significant enough to support the claim that the era of declining violence is over.

The NCVS is conducted by the Bureau of Justice Statistics, and it does not rely on reports made to the police. Instead it surveys participants about the violence they have experienced, whether or not these crimes were ever formally reported. The report categorizes violence in several ways—differentiating serious assault from simple assault, for instance.

The good news is that robbery declined from 2017 to 2018. The not so good news is that every other category showed an increase.

Most of these increases were not statistically significant. For instance, the aggravated assault rate increased from 3.6 in 2017 to 3.8 per 1,000 people. The rate stood at 4.1, 3.0, and 3.8 for the previous years (2014, 2015, and 2016). These results show yearly fluctuations, and perhaps some slight cause for concern that crime is no longer falling, but do not exactly give cause for panic.

But the sexual assault spike is quite concerning. According to the 2018 survey, the rape/sexual assault rate almost doubled, from 1.4 to 2.7. That’s a massive increase in a single year.

The reason for this increase is not clear. It seems unlikely that the sexual assault rate would have actually doubled in a single year—2018—when it remained virtually unchanged for the seven previous years.

Here’s how the NCVS defines rape:

Coerced or forced sexual intercourse. Forced sexual intercourse means vaginal, anal, or oral penetration by the offender(s). This category could include incidents where the penetration was from a foreign object such as a bottle. It includes attempted rape, threatened rape, male and female victims, and both heterosexual and same-sex incidents.

And here’s how it defines sexual assault:

A wide range of victimizations, separate from rape, attempted rape, or threatened rape. These crimes include attacks or threatened attacks involving unwanted sexual contact between the victim and offender. Sexual assaults may or may not involve force and include such things as grabbing or fondling.

The survey’s sexual assault definition—a “wide range of victimizations,” “unwanted sexual contact,” “may or may not involve force”—includes a wider spectrum of bad behavior than does its rape definition, and yet both kinds of violence end up lumped together. But the survey used the exact same language in 2018 as it did in 2017, so the spike cannot have been caused by a change in survey methodology.

Given the ongoing #MeToo movement, it’s possible that participants are more willing to report that they have been sexually assaulted, either because being victimized carries less stigma or because they are more likely to consider certain sorts of behavior to be assaults. But one would have expected that to show up as a more gradual increase, or at the very least to have seen some increase in 2017 as well.

So it’s hard to say how to interpret this. As John Pfaff, a professor of law at Fordham, wrote on Twitter:

The Uniform Crime Report, which consults actual police reports, is due out in October; hopefully it will provide more information. For now, we have a mystery.

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Sen. Bernie Sanders (I–Vt.) has released an ambitious housing plan that stays true to the candidate’s interventionist brand of democratic socialism.

In a speech to trade union members in Las Vegas, Nevada, on Saturday, Sanders laid out his vision for tackling high housing costs, homelessness, and gentrification through a mix of nationwide rent control, increased federal spending on housing vouchers and public housing construction, and higher taxes on the wealthy.

“I don’t have to tell anyone in America that we have an affordable housing crisis in Nevada, in Vermont, and all over this country that must be addressed,” Sanders said. “It is unacceptable to me that over 18 million families in America today are paying more than 50 percent of their limited incomes on housing.”

The most radical part of Sanders’ plan is his call for a nationwide cap on rental prices above one and a half times the rate of inflation, or 3 percent, whichever is higher.

That’s much lower than the rent increases allowed by either California or Oregon, which both passed statewide rent control policies this year, limiting rent increases to 5 percent plus inflation and 7 percent plus inflation, respectively.

Those laws also included exemptions for housing constructed in the last 15 years in order to mitigate the laws’ effect on new development. The full version of Sanders’ plan has yet to be released (it is apparently coming in the next few weeks), but he has so far made no mention of any exemptions to his proposed rent caps.

Rent control has long been derided by economists as a well-intentioned policy that comes with a host of unintended consequences: Limiting the return developers can make on new housing construction disincentivizes them from building more units. Some landlords, unable to pass on the costs of repairs or renovations to tenants, let their buildings deteriorate. Others might convert their regulated rental units into more expensive condominiums that can be sold at any price, reducing the overall supply of rental housing.

That’s exactly what happened in San Francisco following an expansion of rent control in the 1990s, according to a recent study published in the journal American Economic Review. Building owners took their units off the rental market, resulting in citywide rent increases and increasing gentrification.

Housing investment has boomed in places like Toronto and Cambridge, Massachusetts, after those localities repealed their own rent control laws.

Sanders is also calling for $2.5 trillion in new housing spending over 10 years that will be paid for by a wealth tax on the top 0.1 percent of families.

Details on how exactly this money would be spent are a bit spotty. It would include $32 billion over the next five years to “end homelessness,” $70 billion to repair and expand the country’s stock of public housing, and $50 billion in aid to local and state governments to enable the creation of community land trusts.

Sanders is promising to build or rehabilitate 7.4 million units of housing for low-income people, seniors, and the disabled, all of which would be funded by a permanent expansion of the federal Housing Trust Fund. His plan also calls for funding the creation of an additional two million units of mixed-income housing.

Though hardly optimal, Sanders’ public housing construction spree would theoretically help mitigate a drop in private housing investment created by the rent control portion of his plan.

Nevertheless, building the number of new units the senator is calling for would require local and state governments to repeal their own restrictions on new housing development, a policy Sanders has yet to embrace.

Building affordable housing in expensive cities is not, well, affordable. That’s because the same land costs, impact fees, union hiring and wage requirements, and restrictive zoning laws that make private development difficult also hamstring government and non-profit developers.

The median cost for building a unit of affordable housing in California is over $300,000, and individual projects in the Golden State have seen per-unit costs surpass $700,000.

So long as these rules remain in place, the level of public housing construction Sanders is calling for just isn’t going to happen.

On the other hand, repealing rules that would prevent massive amounts of public housing being built would also probably make that public housing unnecessary, as a surge in privately funded housing development would start to bring prices down.

Places like Houston and Dallas have been able to stay relatively affordable by keeping their restrictions on new housing and suburban sprawl to a minimum. Seattle has seen modest rent decreases as a result of its upzoning land in and around its urban core.

Internationally, growing Tokyo has managed to keep rents mostly flat by having what’s been described as “a free trade zone” for new development.

Sanders is not wrong to point out that many areas of the country suffer from major housing affordability problems, but that’s not because we’ve failed to build enough public housing. It’s because we’ve failed to build enough housing period.

Deregulating housing construction would ease affordability problems where they exist, and could be done without all the taxes and inefficiencies that will inevitably come with the federal government-led initiative Sanders is proposing.

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2019-09-16 21:10:44

Last week, Saturday Night Live announced that comedian Shane Gillis would be joining the cast. On Monday, the show reversed its decision.

“After talking with Shane Gillis, we have decided that he will not be joining ‘S.N.L.,'” an NBC spokesperson said in a statement.

What happened? Twitter. Last Thursday, a journalist unearthed video footage of Gillis making offensive comments about Asian people during a comedy podcast. He also used homophobic language. In response, many on social media called for him to be fired.

Gillis offered a partial apology that was also a partial defense of his statements.

Needless to say, this did not satisfy the woke scolds, and thus NBC decided to end Gillis’s Saturday Night Live career before it had even begun.

“We want ‘S.N.L.’ to have a variety of voices and points of view within the show, and we hired Shane on the strength of his talent as a comedian and his impressive audition for ‘S.N.L,'” said the NBC spokesperson. “We were not aware of his prior remarks that have surfaced over the past few days. The language he used is offensive, hurtful and unacceptable. We are sorry that we did not see these clips earlier, and that our vetting process was not up to our standard.”

There’s no First Amendment right to appear on Saturday Night Live, and thus Gillis’s termination is not properly a free speech issue. I haven’t listened to a single second of Gillis’s comedy, and have zero opinion on the matter of whether he is funny. But I do happen to agree with Democratic presidential candidate Andrew Yang, who told CNN on Sunday that he opposed Gillis’s firing.

“I believe that our country has become excessively punitive and vindictive about remarks that people find offensive or racist and that we need to try and move beyond that, if we can,” said Yang. “Particularly in a case where the person is—in this case—a comedian whose words should be taken in a slightly different light.”

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In the wake of an apparent drone attack targeting oilfields on the Arabian Peninsula, Congress should do everything it can to avoid getting America involved in a potential conflict between Iran and Saudi Arabia.

The attack on the Abqaiq oil facility appears to have been carried out with drones operated by Houthi rebels in Yemen. They targeted a refinery owned by Saudi Aramco, the state-owned oil monopoly. The attack is likely to cut Saudi Arabian oil production in half, reducing global supply of crude oil by about 5 percent, The Wall Street Journal reported, raising the possibility of higher gasoline prices. It did not take long for Saudi and U.S. officials—including President Donald Trump—to pin blame for the Saturday night attack on Iran, which has provided support and aid to the Houthi rebels.

On Monday night, NBC News reported that the attack was launched from within Iran, citing three anonymous sources familiar with American intelligence reports.

The question, then, becomes what America should do next.

In a tweet on Sunday, Trump gave the impression that he was willing to let the Saudis decide how America would react.

That response raises obvious constitutional concerns. Even if Saudi Arabia and Iran were heading for a military confrontation, it’s not immediately clear how that conflict would jeopardize American national security. If there is a reason for the U.S. to be involved in a regional war in the Middle East, the Trump administration should make that argument to Congress and proceed only after Congress has approved military action.

“The whole situation is more complicated than the war hawks in town would have you believe,” says Chris Preble, vice president for defense and foreign policy studies at the Cato Institute, a libertarian think tank. “It’s simply not true that the Iranians call the tune and the Houthis dance. It’s more complicated than that.”

Indeed, the Houthi rebels have been fighting a Saudi-backed regime in Yemen for several years—a conflict that has turned into a brutal civil war that has killed an estimated 50,000 people; while at least 50,000 more are estimated to have died in a famine triggered by the conflict, though exact numbers of deaths are difficult to ascertain. Earlier this year, Trump vetoed a bill that would have ended American military involvement in the Yemeni civil war.

But in a follow-up tweet on Monday, Trump compared Iran’s denial of involvement in the oil facility attacks to what the president called “a very big lie” regarding the downing of a U.S. drone earlier this year. At that time, Iran claimed the drone had entered its airspace, while the U.S. claimed it had not. Shortly afterward, Trump ordered a military strike against Iran before changing his mind at the very last second.

That moment aside, the Trump administration has seemed willing—and eager, at times—to start a war with Iran. Secretary of State Mike Pompeo has pitched lawmakers on the idea that the 2001 Authorization of Military Force (AUMF)—passed in the wake of 9/11 to permit the U.S. to attack Al Qaeda—allows the U.S. to attack Iran without further congressional approval. And just last week, senior State Department advisor Brian Hook wrote an op-ed in The Wall Street Journal arguing Iran “is effectively extending its borders, enlarging its sphere of influence, and launching lethal attacks against rivals” via the Houthis.

But if Trump is going to remind the American public about the lies that Iranian leaders have told, it seems only fair to also point out that Saudi Arabian crown prince Mohammed bin Salman has told a few lies himself. Salman, known by”MBS,” apparently ordered the killing of journalist Jamal Khashoggi last year—and then lied about the murder for weeks after it took place at the Saudi consulate in Turkey. Trump sided with bin Salman during the controversy.

It’s that sort of knee-jerk support for Saudi Arabia within American political ranks that makes a U.S. military response troublingly likely. To the extent that duplicitous Saudi behavior enters into the equation at all, it seems to be quickly pushed aside in favor of backing a long-time ally merely because it has been a long-time ally—in the way that Sen. Chris Coons (D–Conn.) did on Monday morning:

Even if members of Congress are cheering for a war with Iran, Trump should have to put the matter before them for a formal vote. And lawmakers should be measured in their approach. If you think a single attack that took 5 percent of the world’s oil supply offline temporarily is a problem, you should also consider what a full-fledged conflict among some of the world’s biggest oil-producing countries would mean.

“At a minimum, we should want to know more information before doing anything. Don’t jump to conclusions,” Preble says he would advise members of Congress. “And then, even once you’ve established the facts, you want to make sure that whatever action you’re being asked to take is likely to make the situation better.”

American involvement in a Saudi-Iran war would do little to protect the national security or economic interests of Americans. Congress should do everything in its power to avoid it.

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2019-09-16 22:01:30

Joel Trachtman thinks it’s a near certainty that the WTO agreements will complicate US efforts to head off an Internet of Things cybersecurity meltdown, and there’s a real possibility that a US cybersecurity regime could be held to violate our international trade obligations. Claire Schachter and I dig into the details of the looming disaster and how to avoid it.

In the news, Paul Rosenzweig analyzes the Ninth Circuit holding that scraping publicly available information doesn’t violate the CFAA.

The California legislature has adjourned, leaving behind a smoking ruin where Silicon Valley’s business models used to be. Mark MacCarthy elaborates: One new law would force companies like Uber and Lyft (and a boatload of others) to treat gig economy workers as employees, not contractors. Another set of votes in the legislature has left the demanding California Consumer Privacy Act more or less unscathed as its 2020 effective date looms. Really, it’s beginning to look as though even California hates Silicon Valley.

Klon Kitchen and I discuss the latest round of Treasury sanctions on North Korean hacking groups. The sanctions won’t affect anyone in North Korea, but they might affect a few of their enablers on the Internet. What I wonder, though, is this: Since sanctions violations are punishable even when they aren’t intentional, will US companies whose money is stolen by the Lazarus Group be penalized for having engaged in a prohibited transaction with a sanctioned party? Maybe the Lazarus Group should steal a Treasury license too, just to be sure.

Klon also lays out in chilling detail what the Russians were really trying to do to Ukraine’s grid – and the growing risk that someone is going to launch a destructive cyberattack that leads to a cycle of serious real-world violence. The drone attack on Saudi oil facilities shows how big that risk can be.

Paul examines reports that Israel planted spy devices near the White House. He thinks it says more about the White House than about Israel.

Paul also reports on one of the unlikelier escapades of students from his alma mater: Trading 15 minutes at the keyboard for months in jail and a lifetime of trouble on their permanent records.

I walk back the deepfake voice scam story we discussed recently, but Klon points out that it reflects a future that is coming for us soon, if not today.

Proving the old adage about a fool for a lawyer, the Mar-a-Lago trespasser has been found guilty after an ineffective pro se defense. We may never know what she was up to.

Klon digs into a long and thoughtful op-ed by NSA’s Glenn Gerstell about the effects of the “digital revolution” on national security. And I note the recent Carnegie report trying to move the encryption debate forward. I also plug my upcoming speech in Israel on the same topic.

Download the 278th Episode (mp3).

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As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

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During last night’s Democratic presidential debate, former Vice President Joe Biden admonished Sen. Kamala Harris (D–Calif.) for promising to impose new gun controls by executive fiat if Congress fails to pass the laws she thinks it should. That gave Harris a perfect opportunity to explain how her 100-day plan for gun control can be reconciled with constitutional restrictions on presidential power. The former prosecutor not only conspicuously failed to do so but literally laughed at the question.

The senator’s campaign website promises that “if Congress fails to send comprehensive gun safety legislation to Harris’ desk within her first 100 days as president—including universal background checks, an assault weapons ban, and the repeal of the NRA’s corporate gun manufacturer and dealer immunity bill—she will take executive action to keep our kids and communities safe.” Biden interprets that pledge as a promise to ban “assault weapons” without new legislation, something the president clearly does not have the authority to do.

Harris’ plan for unilateral action on “assault weapons” is actually more modest than Biden implies. She says she would “ban AR-15-style assault weapons from being imported into the United States,” noting that the Gun Control Act “empowers the executive branch to prohibit the importation of guns not ‘suitable for or readily adaptable to sporting purposes.'” As Harris points out, “both Democratic and Republican presidents,” including George H.W. Bush in 1989, have used that provision to block importation of “assault weapons.” But two other parts of Harris’ gun control plan do not seem to have any statutory basis.

Harris says she would “close the ‘boyfriend loophole’ to prevent dating partners convicted of domestic violence from purchasing guns.” Under current law, people convicted of misdemeanors involving “domestic violence” are barred from possessing firearms. But crimes against dating partners count as “domestic violence” only if the perpetrator has lived with the victim or produced a child with him or her. Harris seems to think she can eliminate those requirements without new congressional action, but it’s hard to see how. Congress has defined “misdemeanor crime of domestic violence,” and only Congress can change the definition.

Harris also thinks the president can “mandate near-universal background checks by requiring anyone who sells five or more guns per year to run a background check on all gun sales.” Since only federally licensed dealers are legally required to run background checks, such a rule would require dramatically expanding that category.

The problem is that federal law defines a gun dealer as someone who is “engaged in the business of selling firearms,” which in turn is defined as “devot[ing] time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.” The statutory definition explicitly excludes “a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.” Under Harris’ plan, a hobbyist or collector who sold more than four guns in a single year would be required to obtain a federal license and conduct background checks, which is plainly inconsistent with current law.

Instead of explaining the legal basis for the “executive action” she has in mind, Harris made a weak joke: “Hey, Joe, instead of saying, ‘No, we can’t,’ let’s say, ‘Yes, we can.'” Then she launched into a description of the casualties from mass shootings, adding, “The idea that we would wait for this Congress, which has just done nothing, to act, is just—it is overlooking the fact that every day in America, our babies are going to school to have drills, elementary, middle and high school students, where they are learning about how they have to hide in a closet or crouch in a corner if there is a mass shooter roaming the hallways of their school.”

That is not an argument in favor of any particular gun control policy, let alone an argument for the president’s authority to impose it unilaterally. “Let’s be constitutional,” Biden said. “We’ve got a Constitution.” To which Harris replied, in effect, “Constitution, schmonstitution. Why should that get in the way of my agenda?” Even voters who tend to agree with Harris about gun control should be troubled by her blithe dismissal of the legal limits on the powers she would exercise as president.

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2019-09-13 21:36:39

The U.S. Supreme Court has held—largely on originalist grounds—that the Sixth Amendment right to jury doesn’t apply to “petty” criminal offenses. (The leading case on this is D.C. v. Clawans (1937), but it has been reaffirmed since then.) Generally speaking, the test for a petty offense is whether the criminal statute authorizes a punishment of more than six months in jail for it (regardless of how much punishment is actually being imposed in the particular case). But other consequences, such as very high fines can also lead a crime to be treated as serious, and thus subject to the jury trial guarantee, and not just petty.

In yesterday’s Anderson v. Eighth Judicial Dist. Ct., the Nevada Supreme Court concluded that the loss of gun rights also makes the crime serious, even if it would otherwise lead to a maximum of six months or less in jail:

[T]he United States Supreme Court has established that an offense with a maximum authorized period of incarceration of six months or less is presumptively petty. To overcome this presumption, and to demonstrate that an offense rises to the level of seriousness to warrant a jury trial, a defendant must “demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a serious one.” …

First-offense domestic battery is a misdemeanor crime, with a maximum authorized period of incarceration of six months…. We previously considered the additional penalties imposed by the offense of first-offense domestic battery [a community-service requirement of not more than 120 hours and a fine of not more than $1,000] and concluded that those penalties did not “clearly indicate a determination by the Nevada Legislature that this is a serious offense to which the right to a jury trial attaches.” However, just over one year after our decision …, the Legislature amended the penalties associated with a [first-offense domestic battery] conviction … to criminalize possession or control of a firearm in this state by a person who “[h]as been convicted in this State or any other state of a misdemeanor crime of domestic violence as defined [by the federal statute banning gun possession by people convicted of such a crime].” It is this amendment that … commands the conclusion that misdemeanor domestic battery is a serious offense.

In [the earlier case], we held that a federal regulation restricting a convicted domestic batterer’s possession of a firearm was not a direct consequence of a Nevada conviction for misdemeanor domestic battery. In so holding, we relied partly on the United States Supreme Court’s reasoning “that the statutory penalties in other States are irrelevant to the question whether a particular legislature deemed a particular offense ‘serious.'” But now, although not included in the statute proscribing misdemeanor domestic battery, our Legislature has imposed a limitation on the possession of a firearm in Nevada that automatically and directly flows from a conviction for misdemeanor domestic battery.

In our opinion, this new penalty—a prohibition on the right to bear arms as guaranteed by both the United States and Nevada Constitutions—”clearly reflect[s] a legislative determination that the offense [of misdemeanor domestic battery] is a serious one.” Unlike other penalties that we have concluded are not serious[—such as] a fine in the range of $200 to $1,000, loss of one’s driver’s license for a period of 90 days, and mandatory attendance of an alcohol abuse education course at the defendant’s expense)[—]the right affected here convinces us that the additional penalty is so severe as to categorize the offense as serious.

For a different result, see the federal magistrate judge’s decision in U.S. v. Jardee (D.N.D. 2010).

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2019-09-13 19:45:39

Andrew Yang got the least amount of speaking time of any candidate on the Democratic primary debate stage last night—less than half of Joe Biden’s. But this son of Taiwanese immigrants still managed to distinguish himself as a New New Democrat who broadly shares his party’s progressive goals but doesn’t always endorse its big-government solutions. A lawyer turned entrepreneur, Yang seems to understand intuitively that good public policy involves not Elizabeth Warren–style 10-point programs that empower bureaucrats and technocrats—or Bernie Sanders–style hostility to private industry—but devolving power to individuals.

He kicked off in a decidedly un-Kennedyesque spirit by extolling the primacy of the individual over the collective. “We have to get our country working for us again, not the other way around,” he declared. “We have to see ourselves as the owners and shareholders of this democracy rather than inputs into a giant machine.”

That doesn’t make him a libertarian. But as my colleague Christian Britschgi points out, he made probably the most libertarian pitch possible for his universal basic income scheme last night when he announced that his campaign would hand a “freedom dividend” of $1,000 a month to 10 American families for the whole year. To qualify, they’d have to go to his website and explain how “you can solve your own problems better than any politician.”

It is not surprising, then, that Yang is no fan of the public school monopoly (whose backers he has accused in the past of being in “bed with teachers unions”) and is a supporter of charter schools. This is increasingly becoming hate speech in Democratic circles, which is why he pulled his punches last night, declaring that he was “pro–good school.” Still, he seemed to suggest that the solution to the poor education in the country was not necessarily “putting money into schools” but “more directly into the families and neighborhoods.”

Where Yang is most disappointing is on health care. Given his preference for putting more money in Americans’ own pockets to let them solve their problems, you might think he’d be friendly to expanding medical coverage through more health savings accounts (IRA-style accounts that allow individuals to set aside a certain amount of money tax-free to buy coverage and pay deductibles)—or, better still, giving individuals the same tax breaks to purchase coverage that employers currently get. Instead, he backs Medicare for All, the biggest of big-government health care solutions. If there is a silver lining, it is that he does still want to improve incentives for physicians and providers to lower costs by avoiding redundant testing and procedures.

Yang has by far the best framing on immigration. Julian Castro’s bold-ish proposal to decriminalize immigration changed the terms of the debate in the Democratic field: He went beyond vague generalities and suggested a very specific reform—scrapping the Immigration and Nationality Act’s Section 1325, which makes illegal entry into the U.S. a federal crime and set the stage for Donald Trump’s border crackdown and draconian child separation policies. But that change still doesn’t make immigrants sound like the assets they are. Yang, on the other hand, pointed out last night that America’s ability to attract “human capital” has been “integral to its continued success.” Immigrants or their children, he noted, founded almost half of America’s Fortune 500 companies. In vocabulary that should warm the hearts of market enthusiasts, he noted that “we have to compete for this talent.” This is a fundamentally positive, Reaganeseque vision of both America and immigrants that no other candidate is espousing.

Yang isn’t any kind of limited-government constitutionalist. But he isn’t a big government liberal either. He comes across as the anti-Warren. She likes top-down solutions where powerful bureaucrats ride on their white horse to smash big business and protect the little guy. (Think of the all-powerful Consumer Financial Protection Agency that she pushed President Barack Obama to create.) He likes bottom-up approaches that empower the little guy. She is a bureaucrat with “a plan.” He is a scrappy entrepreneur who speaks the language of ordinary people who’ve never been within shouting distance of a wonk.

He is a different kind of progressive.








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Tim Sandefur has an excellent column, The Anti-Slavery Constitution, in National Review magazine that is available online. After a lengthy and accurate summary of abolitionist constitutionalism, here is the payoff last passage:

A year before his death [Frederick Douglass] bemoaned the resurgence of the old canards that the United States was meant only for whites and that blacks should be transported to Africa or somewhere else. “The bad thing,” he said, was that this idea had even “begun to be advocated by colored men.” The “colonization nonsense tends to throw over the negro a mantle of despair,” he said. “It leads him to doubt the possibility of his progress as an American citizen . . . [and] forces upon him the idea that he is forever doomed to be a stranger and a sojourner in the land of his birth, and that he has no permanent abiding place here.”

This Douglass could not accept. Black Americans, he insisted, were citizens, entitled to constitutional protections no less than whites were.

The same words apply with equal force to historians and scholars today who, however laudable their motivation to educate Americans about the history and the legacy of slavery, blithely assert that the Constitution was designed as an instrument of racial oppression by statesmen who regarded black people as categorically excluded from the principles of natural rights. That casual endorsement of the thesis of Dred Scott slights the hard work of anti-slavery leaders who, almost from the nation’s birth, strove to protect the Constitution from the vicious stain of white supremacy and who later rescued it at the price of blood and fire. It teaches black Americans to doubt the possibility of their progress as American citizens and to imagine themselves forever doomed to be strangers in their homeland. And it shamefully betrays the countless ordinary men and women — their names lost to history — who strove to vindicate the right of Americans of all races to their stake in that “glorious liberty document.”

I highly recommend you read the whole thing. Sandefur is the vice president for litigation at the Goldwater Institute in Arizona and the author of Frederick Douglass: Self-Made Man (2018) and The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty (2015).  I have not yet read his new book on Douglass, but his book on the Declaration is great and shows you do not have to be a law professor to do good and important legal scholarship.  (The other book on the Declaration I recommend is American Scripture: Making the Declaration of Independence by the late Pauline Meier.)

I have been writing about abolitionist constitutionalism for over 20 years.  My first introduction to abolitionist constitutionalism was Lysander Spooner’s The Unconstitutionality of Slavery, which was what first led me to be an originalist. I described his theory in Was Slavery Unconstitutional Before the Thirteenth Amendment? Lysander Spooner’s Theory of Interpretation.

I later learned much more about antebellum abolitionist constitutionalist theories as well as their narrative of the Founding. Two years of reading in the field culminated in my article Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, from which Tim quotes. While I am very proud of this piece, I did mistakenly give Salmon Chase short shrift for the initial role he played in developing these arguments.

I corrected the record in my article, From Antislavery Lawyer to Chief Justice: The Remarkable but Forgotten Career of Salmon P. Chase. And to honor Chase properly, I created the annual Salmon P. Chase Distinguished Lecture, which is given each year in the courtroom of the Supreme Court and cosponsored by the Supreme Court Historical Society. This is followed by a faculty colloquium at Georgetown Law.

The development of abolitionist constitutionalism is a fascinating story, and largely unknown outside a small group of specialists in history and law. What was once just a personal interest of mine has now become a matter of vital importance for those who wish to defend the legitimacy of the Constitution, and even of the United States itself. As an introduction to the topic, you would do well to start with Tim Sandefur’s super new article.

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2019-09-13 19:00:54

Unbelievable. Available now on Netflix.

The teenager has just been raped—for hours—but now it seems her ordeal is only beginning, at the hands of the policemen she called to report the crime.

Tell your story to a cop. Tell it to another cop. Stand naked on the floor for a set of photos, then again for a second set from behind. Pee in a cup. (Are you bonkers on meth?) Have your mouth swabbed several times to collect DNA, then your arms jabbed with needles to give up multiple vials of blood. And repeat the story you already told twice to the cops, this time to the ER nurse, who is compiling her own bulky case file.

More: Twelve swabs from your crotch. Something unseen but unpleasant with a speculum. Genital dye. A handful of pills for STDs, another in case you were in impregnated. Now, tell it all again to a third cop, and then put it down on paper in your own handwriting.

Netflix’s true-crime drama Unbelievable is many things: a noir crime drama; a character study of battered, and battering, women; a thoughtful examination of rape laws and how they’re enforced, or not; a turn-the-tables twitting of fair-weather civil libertarians. (So this guy maybe raped half a dozen women: Do we really need to mess around with subpoenas for the confidential HR files from his workplace? Couldn’t we just steal them instead? It’s so much quicker.)

But at its heart it’s a police procedural, like a CSI or Law & Order on steroids or perhaps the secret version of Dick Tracy’s Crimestoppers Textbook, a glimpse into the way sexual-battery investigations really work.

This includes: that dismal checklist for rape victims (For rape suspects, add in plucking—roots and all—of pubic hair); cops slogging through hours of surveillance tape of traffic passing a crime scene, then days more trying to match a particular vehicle with a broken mirror to thousands of repair-shop reports; and shuffling through thousands of witness statements and military records and crime-scene forensics in hopes of finding a matched circumstance; the endless fruitless interviews with scum who nonetheless aren’t guilty—”an asshole, just not our asshole” as one disgruntled cop puts it.

If that sounds tedious, it isn’t. Unbelievable, the rare crime drama with no bang-bang and scarcely any on-screen violence of any kind (even the rapes, seen only from the eyes of blindfolded, trussed-up victims, are confused and fragmentary), is still a relentlessly compelling binge-watch event.

Part of the show’s overpowering fascination is the freaky circumstances of the case: a mildly flaky young girl reports a rape, recants, recants her recantation and winds up charged with making a false statement to police. And all the while the rapist—who is very real indeed—is continuing his grim work.

But Unbelievable also features an exceptional array of talent, starting with writer-creator Susannah Grant, whose previous credits include Erin Brockovich and The 5th Wave.  Her main story, skillfully interwoven with red herrings and dead ends, skips nimbly through two timelines without ever losing track of itself.

Her scripts are executed by three remarkable actresses. The most surprising is Kaitlyn Dever, known mostly for her role as the spunky (the word’s gruesome connotations are fully intended and embraced) youngest daughter on the hacky Fox sitcom Last Man Standing.

That role couldn’t be more different than the one she plays masterfully in Unbelievable, that of a wan 18-year-old rape victim named Marie, who has spent a lifetime fighting her way through rocky foster homes and has the physical and emotional scars to prove it. “I don’t need help,” she implores. “I just need bad things to stop happening.”

Raped alone in her apartment by an assailant who tied her up to prevent any struggle, then left a crime scene remarkably free of physical evidence, Marie’s reaction is oddly detached and even at times spacey.

Some details of her account are contradictory—in one version, she dialed her cell phone with her toes to call for help, but in another, she used her hands. The police aren’t the only ones skeptical. One ex-foster mother calls the lead detective on the case to warn him Marie is an attention-seeker, and a former foster dad with whom she was on good terms refuses to be alone with her for fear of a phony cry of rape.

Marie’s response is one she has perfected in a lifetime of giving way to adult aggressors—to give them what she thinks they want. “Do you know how many situations I have been in where grownups want something messed up from me that I don’t want to give them?” she asks a friend. “And they want me to say something that I don’t want to say or do something I don’t want to do? A lot.”

Marie tries to placate the cops with a (false) admission that she made it all up, even though she knows it will end any hope that her rapist is punished and will probably endanger other women. What she doesn’t anticipate is that it will result in criminal charges—against her, for filing a false crime report.

As Marie’s story unfolds, so does that of two women cops 1,300 miles away and two years in the future. Working on separate rape cases for different police departments in different suburbs of Denver, detectives Grace Rasmussen (Toni Collette, The Sixth Sense) and Karen DuValle (Merritt Wever, The Walking Dead) bump into each other and realize they’re chasing the same guy.

Meticulously neat, he binds and blindfolds his victims, snaps their pictures with a pink camera and makes them bathe when he finishes to eliminate any left-behind DNA. Each of his assaults takes place in a different suburb so the various small police departments will never realize they’ve got a serial rapist on their hands. Rasmussen and DuValle forge together a suburban law enforcement task force to pursue their man, but even so, they don’t dare whisper their darkest mutual suspicion: that he’s a cop, whose knowledge of police procedure makes him almost invulnerable.

Collette’s ability to inhabit a role has been visible for years, most strikingly in Showtime’s United States of Tara, in which her multiple-personality suburban housewife character could instantly flash from a sex kitten to a redneck truck driver. But audiences are just beginning to catch on to Wever, whose role as a dedicated but loopy young apprentice nurse in another little-seen Showtime drama, Nurse Jackie, brought light interludes to what was otherwise a bleak study of psychological decay

They’re both excellent here as empathetic but obsessive detectives whose mental strings are tugged to the snapping point by an investigation that piles up evidence but yields no suspects. They pull guns on men guilty of nothing but driving the wrong make and model car, and they conduct lurid phone conversations with other cops from their family dinner tables. Is it any wonder that they can even spot psychosexual clues in old Star Wars movies? If only The Force were with them.

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