My Legal Spot

Tomorrow I am hoping to attend a recreation of Frederick Douglass’s Independence Day oration at his home in Anacostia, DC.

FREDERICK DOUGLASS SPEECH Sunday at 1. Reenactor Kevin McIlvaine delivers the speech, originally given by the abolitionist on July 5, 1852, that focused on the failure of the Declaration of Independence to fulfill its promise to provide freedom for African Americans. Frederick Douglass Home, 1411 W St. SE. 202-426-5961. Free.

Today, historian Jonathan Bean has a nice essay on National Review Online entitled, The Party of Lincoln, and of Douglass: Rediscovering Frederick Douglass in the Age of Obama. Here is how it opens:

Some 157 years ago, in 1852, the great abolitionist Frederick Douglass delivered his “Fourth of July Oration” condemning America for practicing slavery and thereby failing to live up to the humane ideals expressed by the Declaration of Independence.

“What, to the American slave, is your Fourth of July?” Douglass thundered. “I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim.”

Douglass’s words might seem passé on Independence Day 2009, with Barack Obama occupying the White House, several black Americans serving as governors, and others running everything from the Republican National Committee to Fortune 500 companies. But the words of the Sage of Anacostia remain not only relevant, but essential. Why? Douglass unfailingly opposed any man’s exercising control over another, and he would be appalled, his writings suggest, by the new spirit of dependency and control ushered in with the Age of Obama. Douglass championed limited constitutional government, colorblind law, capitalism, hard work, and self-help. His principles are not the stuff of “New New Deals” but rather a brief for a “New Independence Day” based on small-government principles.

This reminded me of a blog post of mine from July 4th, 2006, which I reprint here:

Elevate your Independence Day by reading this moving 1852 oration by Frederick Douglass in its entirety. There is so much to appreciate in this speech, it is difficult to select excerpts. But here is one passage I particularly like:

But, your fathers, who had not adopted the fashionable idea of this day, of the infallibility of government, and the absolute character of its acts, presumed to differ from the home government in respect to the wisdom and the justice of some of those burdens and restraints. They went so far in their excitement as to pronounce the measures of government unjust, unreasonable, and oppressive, and altogether such as ought not to be quietly submitted to. I scarcely need say, fellow-citizens, that my opinion of those measures fully accords with that of your fathers.

Or this:

Must I undertake to prove that the slave is a man? That point is conceded already. . . . It is admitted in the fact that Southern statute books are covered with enactments forbidding, under severe fines and penalties, the teaching of the slave to read or to write. When you can point to any such laws, in reference to the beasts of the field, then I may consent to argue the manhood of the slave. When the dogs in your streets, when the fowls of the air, when the cattle on your hills, when the fish of the sea, and the reptiles that crawl, shall be unable to distinguish the slave from a brute, there will I argue with you that the slave is a man!

Or this:

What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour. Go where you may, search where you will, roam through all the monarchies and despotisms of the old world, travel through South America, search out every abuse, and when you have found the last, lay your facts by the side of the everyday practices of this nation, and you will say with me, that, for revolting barbarity and shameless hypocrisy, America reigns without a rival.

But later he turns to the Constitution:

But it is answered in reply to all this, that precisely what I have now denounced is, in fact, guaranteed and sanctioned by the Constitution of the United States; that the right to hold and to hunt slaves is a part of that Constitution framed by the illustrious Fathers of this Republic.

Then, I dare to affirm, notwithstanding all I have said before, your fathers stooped, basely stooped

“To palter with us in a double sense:
And keep the word of promise to the ear,
But break it to the heart.”

And instead of being the honest men I have before declared them to be, they were the veriest imposters that ever practised on mankind. This is the inevitable conclusion, and from it there is no escape. But I differ from those who charge this baseness on the framers of the Constitution of the United States. It is a slander upon their memory, at least, so I believe. There is not time now to argue the constitutional question at length — nor have I the ability to discuss it as it ought to be discussed. The subject has been handled with masterly power by Lysander Spooner, Esq., by William Goodell, by Samuel E. Sewall, Esq., and last, though not least, by Gerritt Smith, Esq. These gentlemen have, as I think, fully and clearly vindicated the Constitution from any design to support slavery for an hour.

“[L]et me ask, if it be not somewhat singular that, if the Constitution were intended to be, by its framers and adopters, a slave-holding instrument, why neither slavery, slaveholding, nor slave can anywhere be found in it.”

Fellow-citizens! there is no matter in respect to which, the people of the North have allowed themselves to be so ruinously imposed upon, as that of the pro-slavery character of the Constitution. In that instrument I hold there is neither warrant, license, nor sanction of the hateful thing; but, interpreted as it ought to be interpreted, the Constitution is a GLORIOUS LIBERTY DOCUMENT. Read its preamble, consider its purposes. Is slavery among them? Is it at the gateway? or is it in the temple? It is neither. While I do not intend to argue this question on the present occasion, let me ask, if it be not somewhat singular that, if the Constitution were intended to be, by its framers and adopters, a slave-holding instrument, why neither slavery, slaveholding, nor slave can anywhere be found in it. What would be thought of an instrument, drawn up, legally drawn up, for the purpose of entitling the city of Rochester to a tract of land, in which no mention of land was made? Now, there are certain rules of interpretation, for the proper understanding of all legal instruments. These rules are well established. They are plain, common-sense rules, such as you and I, and all of us, can understand and apply, without having passed years in the study of law. I scout the idea that the question of the constitutionality or unconstitutionality of slavery is not a question for the people. I hold that every American citizen has a right to form an opinion of the constitution, and to propagate that opinion, and to use all honorable means to make his opinion the prevailing one. Without this right, the liberty of an American citizen would be as insecure as that of a Frenchman. . . .

Now, take the constitution according to its plain reading, and I defy the presentation of a single pro-slavery clause in it. On the other hand it will be found to contain principles and purposes, entirely hostile to the existence of slavery.

He then concludes with what could have been a paean to the Internet and other liberating technologies:

Allow me to say, in conclusion, notwithstanding the dark picture I have this day presented of the state of the nation, I do not despair of this country. There are forces in operation, which must inevitably work The downfall of slavery. “The arm of the Lord is not shortened,” and the doom of slavery is certain. I, therefore, leave off where I began, with hope. While drawing encouragement from the Declaration of Independence, the great principles it contains, and the genius of American Institutions, my spirit is also cheered by the obvious tendencies of the age. Nations do not now stand in the same relation to each other that they did ages ago. No nation can now shut itself up from the surrounding world, and trot round in the same old path of its fathers without interference. The time was when such could be done. Long established customs of hurtful character could formerly fence themselves in, and do their evil work with social impunity. Knowledge was then confined and enjoyed by the privileged few, and the multitude walked on in mental darkness. But a change has now come over the affairs of mankind. Walled cities and empires have become unfashionable. The arm of commerce has borne away the gates of the strong city. Intelligence is penetrating the darkest corners of the globe. It makes its pathway over and under the sea, as well as on the earth. Wind, steam, and lightning are its chartered agents. Oceans no longer divide, but link nations together. From Boston to London is now a holiday excursion. Space is comparatively annihilated. Thoughts expressed on one side of the Atlantic are, distinctly heard on the other. The far off and almost fabulous Pacific rolls in grandeur at our feet. The Celestial Empire, the mystery of ages, is being solved. The fiat of the Almighty, “Let there be Light,” has not yet spent its force. No abuse, no outrage whether in taste, sport or avarice, can now hide itself from the all-pervading light. The iron shoe, and crippled foot of China must be seen, in contrast with nature. Africa must rise and put on her yet unwoven garment. “Ethiopia shall stretch out her hand unto God.” In the fervent aspirations of William Lloyd Garrison, I say, and let every heart join in saying it:

God speed the year of jubilee
The wide world o’er!
When from their galling chains set free,
Th’ oppress’d shall vilely bend the knee,
And wear the yoke of tyranny
Like brutes no more.
That year will come, and freedom’s reign,
To man his plundered rights again
Restore. . . .

Patri Friedman of seasteading fame, has an interesting post reopening an old debate: whether the Declaration of Independence launched a revolution or a secession movement. This was a hotly contested issue in the 19th century, when southern secessionists claimed they were following in the footsteps of the Founding Fathers who seceded from the British Empire, while many northerners responded by drawing a sharp distinction between secession and revolution.

The truth is that the Declaration of Independence was both a revolution and a secession. There is little question that American Patriots sought to secede from the British Empire in the sense that they wanted to break off their part of it and form a separate nation. Certainly, they weren’t trying to replace the existing British government with a new one, while keeping the empire intact. On the other hand, the American independence movement was also revolutionary in the sense that it sought to institute a radically new political system. The revolutionaries certainly were not trying to gain independence simply for the purpose of establishing a smaller country with a political system that largely copied Britain’s. For example, the rebels sought to create a polity with far stronger protections for individual freedom, no hereditary aristocracy, and a much more democratic political system than existed in 18th century Britain (or any other European state). Historian Gordon Wood discusses these and other radical changes sought by the revolutionaries in his excellent book The Radicalism of the American Revolution. Of course, the new United States did not consistently pursue liberal principles across the board, as witness the continuation of slavery in the South. But it did pursue them to a far greater extent than the British government of the day.

In sum, therefore, the revolution-secession dichotomy fails to capture the true nature of the American independence movement, which was an attempt to use secessionist means for revolutionary ends.

Like Cathy Young, I worry that President Obama might be overly solicitous of the interests of Russia’s authoritarian regime. In this respect, he could potentially repeat the mistakes of President Bush, who - until relatively late in his presidency - tried very hard to develop a close relationship Russia’s ex-KGB ruler Vladimir Putin (including ending US criticism of Russian atrocities in Chechnya, signing a nuclear arms limitation pact on terms favoring Russia, and waxing eloquent about how he had looked into Putin’s eyes and saw an “trustworthy” partner with a wonderful “soul”), while getting few concessions from the Russians in return.

President Obama’s decision to meet with Russian opposition leaders during his trip to Moscow is, however, a small hopeful sign:

President Barack Obama has invited several prominent members of the Russian opposition, including United Civil Front leader Garry Kasparov, for a meeting in Moscow. Boris Nemtsov, a chair of the Solidarity opposition movement, has also been invited to the meeting, set to take place on July 7th at the Ritz Carlton hotel. The format of the event was still unclear.

“Of course, this will be interesting,” Kasparov said on the Ekho Moskvy radio station. “The previous American administration didn’t dare to do this….”

Obama will travel to Moscow on July 6th for meetings with the Kremlin as well as business and civil society leaders. A meeting with Russia’s leading human rights advocates has been scheduled at the Metropol hotel, the location of a consultation between representatives from NGOs in the US and Russia.

Earlier, Boris Nemtsov argued that it was essential for Obama to meet with opposition forces in Russia. “If the White House agrees to Putin’s suggestion to speak only with pro-Putin organizations… this will mean that Putin has won, but not only that: Putin will become be assured that Obama is weak,” he said.

Falling oil prices and the financial crisis have reduced Putin’s popularity and weakened his regime’s grip on power. Now more than ever, it is important for the US to avoid putting all of our eggs in the Putin basket and encourage pro-Western liberal opposition forces in Russia.

That doesn’t mean we should never cooperate with Putin on issues of common interest. For example, if Putin suddenly shows a willingness to work with the US on Iran, North Korea, and other issues, Obama should pursue any such opportunities that might arise. Effective foreign policy sometimes requires cooperation with unsavory regimes. While the current Russian government is odious, it isn’t nearly as bad as its communist predecessors, or as repressive as the governments of Saudi Arabia, Egypt, and several other US allies.

So far, however, the Putin regime has done virtually nothing to reciprocate either Bush’s many overtures or Obama’s more recent efforts to press the “reset button” on US-Russian relations. As opposition leader Boris Nemtsov suggested in the passage quoted above, perhaps Putin will be in a more cooperative mood if we avoid looking weak and demonstrate that we have other options. Even if he doesn’t, we have little to lose by working to foster liberal forces in Russia. And if the current regime’s popularity continues to decline, we have a lot to gain from working to promote liberal alternatives to the strongly anti-Western communists and ultra-nationalists who are the other main alternative to the status quo in Russia. Obama’s meeting with the Russian opposition leaders is a small, but symbolically valuable step in the right direction.

according to Stan Liebowitz, reporting in the WSJ today (Friday, July 3, 2009 not sure if publicly available) on a regression analysis he conducted of home mortgage foreclosures. I wonder what co-blogger Todd makes of this; I’m not expert enough in the numbers surrounding home mortgages to say. However, as the article says, there certainly are policy implications, one way or the other. Here’s a little bit:

What is really behind the mushrooming rate of mortgage foreclosures since 2007? The evidence from a huge national database containing millions of individual loans strongly suggests that the single most important factor is whether the homeowner has negative equity in a house — that is, the balance of the mortgage is greater than the value of the house. This means that most government policies being discussed to remedy woes in the housing market are misdirected.

Many policy makers and ordinary people blame the rise of foreclosures squarely on subprime mortgage lenders who presumably misled borrowers into taking out complex loans at low initial interest rates. Those hapless individuals were then supposedly unable to make the higher monthly payments when their mortgage rates reset upwards.

But the focus on subprimes ignores the widely available industry facts (reported by the Mortgage Bankers Association) that 51% of all foreclosed homes had prime loans, not subprime, and that the foreclosure rate for prime loans grew by 488% compared to a growth rate of 200% for subprime foreclosures. (These percentages are based on the period since the steep ascent in foreclosures began — the third quarter of 2006 — during which more than 4.3 million homes went into foreclosure.)

Sharing the blame in the popular imagination are other loans where lenders were largely at fault — such as “liar loans,” where lenders never attempted to validate a borrower’s income or assets.

This common narrative also appears to be wrong, a conclusion that is based on my analysis of loan-level data from McDash Analytics, a component of Lender Processing Services Inc. It is the largest loan-level data source available, covering more than 30 million mortgages.

There’s a very interesting graphic that goes with the story, titled “No Skin in the Game” summarizing the data.

The analysis indicates that, by far, the most important factor related to foreclosures is the extent to which the homeowner now has or ever had positive equity in a home. The accompanying figure shows how important negative equity or a low Loan-To-Value ratio is in explaining foreclosures (homes in foreclosure during December of 2008 generally entered foreclosure in the second half of 2008). A simple statistic can help make the point: although only 12% of homes had negative equity, they comprised 47% of all foreclosures.

Further, because it is difficult to account for second mortgages in this data, my measurement of negative equity and its impact on foreclosures is probably too low, making my estimates conservative.

What about upward resets in mortgage interest rates? I found that interest rate resets did not measurably increase foreclosures until the reset was greater than four percentage points. Only 8% of foreclosures had an interest rate increase of that much. Thus the overall impact of upward interest rate resets is much smaller than the impact from equity.

To be sure, many other variables — such as FICO scores (a measure of creditworthiness), income levels, unemployment rates and whether the house was purchased for speculation — are related to foreclosures. But liar loans and loans with initial teaser rates had virtually no impact on foreclosures, in spite of the dubious nature of these financial instruments.

Instead, the important factor is whether or not the homeowner currently has or ever had an important financial stake in the house. Yet merely because an individual has a home with negative equity does not imply that he or she cannot make mortgage payments so much as it implies that the borrower is more willing to walk away from the loan.

The African Union has decided not to cooperate with the International Criminal Court, which has indicted Sudan’s president, Omar al-Bashir, for crimes against humanity. The African Union has 53 members, 30 of which are parties of the ICC. These 30 states have therefore effectively announced that they will not comply with their treaty obligation to arrest al-Bashir and extradite him to The Hague.

It is increasingly clear that the ICC, like every utopian international institution that preceded it, will not accomplish its mission—to bring international justice to places like Sudan where a genocide is taking place. It is rapidly being downgraded to a development institution, one that can provide legal and judicial capacity to states that request its help in battles with insurgencies, such as Uganda and the Central African Republic.

Yet at the same time, international criminal law is coming down like a juggernaut on Israel. Israeli officials increasingly fear that they will be hauled off to court if they enter a European country. European governments and judiciaries are taking note of claims that Israeli soldiers and leaders committed war crimes in Gaza and elsewhere. (Yet Spain is junking its universal jurisdiction statute, partly because of Israeli pressure.)

Israelis should consider the Sudan example and think about their problem in simpler terms. Their actions have offended people in Europe and so these European countries are issuing what might be called contingent sanctions against Israelis who have used too much violence, in European eyes, against Palestinians. Sudan is in a similar position, but it has plenty of friends in Africa. Israeli officials need to work on their diplomatic relationships with European countries, reduce their use of violence in conflicts against Palestinians, or accustom themselves to taking their vacations elsewhere.

That’s the title of this week’s Independence Day cover story in the Boulder Weekly. Among the articles which you can read on-line are a pair of pro/con essays on Second Amendment rights, including my article, “The liberal argument for gun ownership.”

I have an op-ed on the subject in the Wall Street Journal this morning, based on my Georgetown Law Journal article.

That’s the question underlying my new essay, The Rise of International Criminal Law: Intended and Unintended Consequences, in the European Journal of International Law (Vol. 20, No. 2, June 2009). And I’m curious as to whether anyone else shares my general feeling that the very success (on some metrics, anyway) of international criminal law is tending to swallow, as it were, the rest of public international law.

among high income taxpayers in California.

The comment said something close to (I’m deliberately obscuring the identifiable bits) willing to pay higher taxes to address the California budget crisis. This is admirable and I’m entirely certain true of said individual. Being willing to pay higher taxes is not necessarily a bad thing, just as it is not necessarily a good thing; it depends on why, what for, what society gets for it, and lots of other things.

However, I will note that - for reasons related to FOIA - this particular person’s California state public sector salary several years ago was publicly known to be in excess of 0,000 a year. Which I don’t in the least begrudge; I wish I were paid that as an academic. But it does seem to me a little easier at over 0k to announce oneself willing to pay more in taxes.

I never used to believe declining marginal utility theory - having a somewhat atavistic view that it wouldn’t surprise me if rich people were actually made happier by each additional dollar of income, rather than becoming marginally more indifferent. Money can quite possibly buy happiness; more money can, I perversely suspect on no evidence whatever, buy more happiness. Why should it ever stop? Money just converts to power and power to converts to glory, as Hobbes or someone said (I paraphrase). If it’s not one kind of end, it’s another. Why should its utility decline? I have always found the proposition that its utility declines a weird sort of moralism among the theorists of economic rationality.

But I do think there’s something not quite right about the wealthy announcing themselves willing to pay more in taxes - reason being that, in the circumstances in California, what one is really announcing, under cover of talking about oneself, is that everyone else, including people making, say, a respectable, but not extraordinary 100k a year, should also be paying more taxes, and if they’re not willing to, there is impliedly something slightly antisocial about them. Or at least less sociable than the rich(er) person willing to pay more.

Maybe that’s being unfair, and this is purely an invitation to altruism among the rich - but it seems to me more likely, given the nature of where the money would have to come from to make a difference, absent serious spending cuts, that it is actual a kind of sacrifice-bunt to call for extracting money from people less well-off than oneself.

My kid, who is very, very attuned to such things, would probably say that this kind of announcement is best understood not as declining marginal utility, but … passive aggression.