Happy Constitution Day! Please celebrate responsibly

September 17 marks #ConstitutionDay, a day to honor the signing of this historic document. On this day in 1787, delegates to the Constitutional Convention gathered in Philadelphia to sign the Constitution, shaping the future of the United States. pic.twitter.com/xIOhTUMMCV

— U.S. National Archives (@USNatArchives) September 17, 2024

(Here's a link to the above Tweet - I refuse to call it an 'X' - in case I have not properly embedded same here.)

I hope everyone remembers the story: Leaving the Constitutional Convention, Benjamin Franklin was stopped by Elizabeth Willing Powel. She had a question: "Well, Doctor, what have we got, a republic or a monarchy?"

Franklin's response? "A republic, if you can keep it."

Today is the 237th anniversary of the date on which the original Constitution was adopted. (The link will take you to a transcription of the Constitution.)

Franklin's remarks inside the hall that day are not as well remembered, but nonetheless vitally important in our current world.

Franklin was not wholly enamored of the document. He had doubts about several particulars. But he made the motion to have the Constitution adopted unanimously by the convention. And, before making that motion, he offered this observation (source):

In these sentiments, Sir, I agree to this Constitution, with all its faults, if they are such; because I think a General Government necessary for us, and there is no form of government, but what may be a blessing to the people if well administered; and believe further, that this is likely to be well administered for a course of years, and can only end in despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic government.

Our government, Franklin warned, can only end in despotism "as other forms have done before it" (see, the Roman Republic) when and if "the people shall be so corrupted as to need despotic government."

On this Constitution Day, let us vow to resist corruption, so that our precious Constitution may long remain a blessing to us and to our posterity.

Even if Tik Tok makes fun of it, we need to think much more about Rome

According to this article by Dani Di Placido on Forbes.com, "TikTok's 'Roman Empire' Meme, Explained," it is now fashionable, on Tik Tok, for women to "approach the men in their life and ask how often they think about the Roman Empire. Clips of boyfriends, husbands, dads, and brothers who have never stepped foot in Italy casually admitting that they think about the Roman Empire often, even multiple times per day, have gone viral on the video-sharing platform, with female creators often expressing complete bewilderment at the shared obsession."

Oh, how eccentric. The little dears!

I respectfully submit that TikTok is completely off base here. In fact, I believe that all Americans -- men, women, children, and TikTok influencers alike -- fail to think about the Roman Empire enough.

I do not mean that we should all be fantasizing about gladiatorial combat or about gorging at Roman banquets on parrot tongue stew or stuffed dormouse, although how you comport yourself in your spare time is generally none of my business.

No... I propose that we think more, and reflect deeply and urgently, about how the Roman Empire rose from the ruins of the Roman Republic in the last century before the Common Era.

Why is the fall of the Roman Republic important?

Well, until our own Republic was launched in the 18th Century, the Roman Republic was the largest, and longest-lived Republic the world had ever known. It lasted for several hundred years, if not exactly from 509 B.C. when, according to tradition, a group of Roman aristocrats, including Lucius Junius Brutus and Publius Valerius Poplicola, threw out the last Roman King, Lucius Tarquinius Superbus.

The names "Brutus" and "Publius" should be familiar to every American; indeed, the name of Brutus should be familiar to every educated person in the world: One of Lucius Junius Brutus' descendants, Marcus Junius Brutus, administered 'the most unkindest cut of all' to Gaius Julius Caesar. The assassination of Julius Caesar, on March 15, 44 B.C., was one of the final nails in the coffin of the Roman Republic (even though Brutus and his 'liberator' companions insisted -- and may have even believed -- that they were trying to save the Republic).

There is so much cinematic drama and operatic intrigue in these long ago events that we tend to focus on the personalities and forget the reasons why the Roman Republic failed. But these can be summarized fairly quickly: Increasing income inequality and intractable disputes about immigration, the assimilation of newcomers, the extension of citizenship, and voting rights.

Totally different from the problems faced by America in our time, right?

No... wait....

It is often said that the political factions of Late Republican Rome cannot be directly compared to our own, modern political parties. I'm not at all certain of this. Broadly speaking, the Roman factions in the last years of the Republic were the optimates and the populares.

This fellow, Marcus Portius Cato, or Cato the Younger, as he is better known, was an optimate.

The optimates were sometimes referred to (by themselves at least, and by later, sympathetic writers) as the boni.

Roughly translated, that means 'the Good Guys.'

Subtle, right?

This contrasted them with populares like Julius Caesar.

As a populare, Julius was heir to the mantle of the Gracchi, the doomed brothers, assassinated by their political opponents during the course of their respective tribunates in 133 and 121 B.C., respectively. My old Roman History professor, Dr. George Szemler, at Loyola, used to liken the Gracchi brothers, Tiberius and Gaius, to the Kennedy brothers, John and Robert. The Gracchi were serious land reformers, and they paid for it with their lives. The Social War, the various Civil Wars, the seven consulships of Marius, the constitutional reforms of Lucius Cornelius Sulla, the Cataline conspiracy, all came after the deaths of the Gracchi and before the rise of Julius Caesar (who claimed descent from the goddess Venus but, more practically, was Marius' nephew).

It became the custom, in those troubled years, to criminally prosecute one's political opponents. It was not enough to defeat someone; the defeated had to be convicted as well, and sent into exile. Bribery was a central component of the Roman electoral system. Politicians incurred enormous debts to get elected; the only way they could recover from electoral success was to receive a lucrative provincial governership at the end of one's term. What made a province lucrative was the revenue a proconsul might squeeze out of it for himself. Even then, this was understood as corruption. A fellow we lawyers know about, a novus homo by the name of Marcus Tullius Cicero, developed a very good practice defending these corruption cases. He built his political career on it, too.

You can make the argument, in fact, that Julius Caesar would never have crossed the Rubicon but for the implacable determination of Cato the Younger to prosecute Casear for official corruption the moment he laid aside his imperium.

The Senate (read: Cato) had planned to stick Caesar with a post-consular assignment to maintain "the woodlands and paths of Italy," but, during his first conulate in 59 B.C., Caesar got that assignment changed to the governorship of Cisalpine Gaul. The timely death of the governor of Transalpine Gaul gave Caesar the opportunity to grab a second province, and conduct the Gallic Wars (and even make a foray into Britain). Caesar managed to hold his partnership with his slightly older son-in-law, Gnaeus Pompeius Magnus, together long enough to get a second five-year term for his governorships (when Julia died, Pompey drifted toward Cato and the boni) but, after 10 years away, Caesar expected to return to Rome for a second consulship.

The 10-year interval between consulships was prescribed under the Sullan constitutional reforms. Caesar had followed the constitution.

But, unlike in 60 B.C., when he gave up the possibility of a triumph in order to declare for the consulship in 59 B.C. (much to Cato's consternation), Caesar did not want to lay down his command in order to declare his candidacy this time. Others had been allowed this privilege (Pompey, for one). It took time to arrange a triumph, and the army had to be camped just outside Rome, waiting for the appointed day. Given the precedent, it seemed reasonable to expect that Caesar would be accommodated.

But Cato thought differently.

Cato was not going to be frustrated this time... or so he thought. If Caesar wanted his triumph, he could not stand for counsel. If he gave up his triumph in order to enter the City (as the law required) and declare his candidacy in person, Cato could proceed with his long-planned prosecution. Either way, it would be the end of Caesar... except it wasn't.

While many historians today may see Cato as an unreasonably stubborn and obstinate obstructionist, and an actual cause of the Republic's downfall, Cato has, at many times, and in many places, been seen as the very personification of the old Roman Republican virtues. Less than a century after his suicide (he killed himself to avoid the indignity of receiving clemency from a victorious Julius Caesar), Virgil has Vulcan include an image of Cato "giving laws" amongst the "virtuous souls" on the shield he makes Aeneas (The Aeneid, 8:784, Fagles trans. 2006).

Cato was very popular in the 18th Century, too. Joseph Addison's Cato, A Tragedy, premiered in 1713, but it was still quite popular during the American Revolution. So popular, in fact, that George Washington had the play staged for his troops while they were in winter camp in Valley Forge. Imagine: though his command was facing frostbite and starvation, Washington wanted his men to think of Rome. Of Roman civil war and Republican virtue and the dangers of tyranny and ambition. This is what TikTok would trivialize.

You no doubt learned in school that America has a written Constitution because Britain did not. And this is certainly true.

And also incomplete.

Hopefully, you also learned in school that America has a written Constitution because the Roman Republic did not. And our Founders were obsessed with preventing their new Republic from going down the path of faction and mob violence that ultimately destroyed Republican Rome. Rome was the only real-life template the Founders had as they shaped our Constitution and our Republic.

And that is why (in case you thought I'd forgotten about it) that every American should know the name of Publius Valerius Poplicola. As New York State debated whether to adopt the Constitution that came out of the Convention in 1787, Alexander Hamilton, James Madison, and John Jay published a series of essays supporting and explaining the proposed Constitution. Their newspaper columns, which we now refer to as The Federalist Papers, were published under the collective pen name "Publius." No educated reader in the 1780s would have failed to catch the reference to Publius Valerius Poplicola, one of the founders of the Roman Republic.

Our schools don't teach much about Rome these days. Julius Caesar is a cartoon image on a pizza box. And yet we are descending into an age of hyper-factionalism, with problems eerily similar to those that brought down the Roman Republic. Political mob violence, even civil war, don't seem as impossible here as they once were.

I think it was Mark Twain who said that history may not repeat itself, but it often rhymes.

We'd all better think a lot more about Rome. And about how we can save our Republic, where Rome could not save its own.

Looking at the Bring Chicago Home "mansion tax" proposal

The first rule of taxes is, once they are invented, they never go away.

The proposed increase to transfer taxes by the pols behind the "Bring Chicago Home" movement illustrates this proposition perfectly. But to demonstrate this, we must first jump back in time some 259 years.

In 1765, representatives of nine of Britain's North American colonies met in New York City to discuss ways in which they could protest the British Parliament's imposition of several new taxes on the colonies. Perhaps the most unpopular of these, the Stamp Act, required colonists to buy stamps that had to be affixed to any document, including deeds, playing cards, and newspapers. This act was enshrined forever in the name historians gave to this first continental gathering, the Stamp Act Congress.

You may recall hearing about this during your school days. You may even recall that the British Parliament repealed most of their colonial taxes, including the Stamp Act, the following year.

But the Stamp Act never really went away. It no longer applies to playing cards or newspapers, and it is no longer paid to the British Crown, but every time a piece of property is sold in the City of Chicago, taxes are imposed, and stamps printed and affixed to the deed, showing that the transfer tax has been paid, in order for the transfer to be legal. (The County has its own stamps, too.)

It is this tax that Bring Chicago Home proposes to increase... but only on properties sold for more than a million dollars. The tax currently is $3.75 for every $500 of sales price -- or $7,500 on a million dollar sale.

The tax would go down to $3.00 for every $500 of sales price for sales up to a million -- so $6,000 on our hypothetical $1 million sale.

But the tax would go up to $10 for every $500 of sales price for betweeen $1 million and $1.5 million. Under existing law, the City gets $11,250 from a $1.5 million sale. Under the Bring Chicago Home proposal, the City would get $16,000 -- $6,000 on the first million, $10,000 on the next $500,000.

The transfer tax would go up still more for sales of more than $1.5 million. For each $500 of sales price north of $1.5 million, the City would get $15. So, assuming a sales price of $2 million, the City would get $15,000 in stamp tax under existing law, but $31,000 under Bring Chicago Home -- $6,000 on the first million, $10,000 on the next $500,000, and $15,000 on the $500,000 after that. (For more, see this WBEZ summary of the proposal).

Anyone can see how these new numbers could add up quickly. But, if the tax only impacts folks like Gov. Pritzker, should he decide to sell his Chicago mansion, who cares, right?

A lot of people on either side of the graduated transfer tax proposal are calling this a "mansion tax." But it will apply to a whole lot more than just mansions.

A quick search this morning of chicagorealestatesource.com, a Coldwell Banker site, shows that a 58-unit SRO hotel at 2847 W. Washington Blvd. has just gone on the market for $1.74 million. A 9-unit building at 3039 N. Harlem is on the market for $1.375 million. Another 9-unit building, at 3145 N. Nordica, is also available for $1.375 million.

This 6-unit building (one storefront and five apartments) at 904 N. California, pictured at left, is available for $1.319 million. An 8-unit building (two storefronts and six apartments) at 2232 W. Irving Park Road is new on the market at $1.599 million.

For $2.2 million, according to chicagorealestatesource.com, you can buy a 9-unit building at 1143 N. Rockwell St. A 7-unit building at 3226 W. Potomac is available for $1.599 million.

There's not a Pritzker or a Rauner or a Ken Griffin living in any of these.

Not all the multi-unit buildings on chicagorealestatesource.com are listed for more than a million. A separate page of 2-5 unit buildings seems to show most Chicago listings are priced under a million. A 9-unit building at 3064 E. 79th St. is listed for $950,000. Another 9-unit building, at 7363 S. Coles, is on the market for $975,000. A six-flat, at 1854 S. Fairfield, is on the market for $875,000.

But this is more a six-flat tax than a mansion tax. And it will be people who buy and sell apartment buildings, and, ultimately, the people who rent from people who buy and sell apartment buildings, who will shoulder any burden from this proposed new tax.

The linked WBEZ article, above, links to a paper issued by some experts at the University of Chicago. The paper claims, according to WBEZ, the "tax increase’s impact on rent would be minimal with 'a unit that currently rents for $1,000 per month... likely to see an average rent increase of less than $1.'"

These are some experts. Where can anyone get an apartment in Chicago for $1,000 a month? Apartment.com recently said, "As of February 2024, the average rent in Chicago, IL is $1,777 per month. When you rent an apartment in Chicago, you can expect to pay about $1,421 per month for a studio, $1,777 for a one-bedroom apartment, and around $2,249 for a two-bedroom apartment. If you opt for a three-bedroom rental, you could pay $2,742 or more."

Opponents of Bring Chicago Home, like Protect Chicago Homes, a group of Realtors, offer a parade of horribles, about who will be taxed next, and how much, and question whether we can trust the current City administration.

And maybe these are all valid questions.

But maybe the question for Chicago voters on March 19 is not 'who will pay the next tax' but, rather, who will really pay this one?

There are three types of elected officials in Illinois

And if you reflexively answered, Executive, Legislative, and Judicial, congratulations. You remember more of your junior high civics classes than some of our most prominent public figures.

But, actually, I would suggest a different division. Those are the three branches of government, true. But, in my view, our three types of elected officials are really Policy Making, Ministerial, and Judicial.

On the federal level, we are voting this year for a President, one of our Senators, and our Representive in Congress. These are all, in theory, Policy Making positions.

In Illinois, the Governor and the members of the Illinois House and Senate are the Policy Making officials. Again, in theory, the Governor and the legislature craft the laws under which we live and the budget pursuant to which those laws are implemented. In practice, perhaps, it may seem that legislators exist for the sole purpose of seeking reelection -- automatic in many cases, for incumbents of both parties, since they are unopposed. In some cases, though, incumbents are inconvenienced by challengers on the road to reelection. Sometimes there are open seats. Occasionally legislators die, or retire, or are indicted. Then others must replace them. In these rather rare circumstances, the Democrats and Republicans may both field candidates.

This year, in contested races, though they might be male or female, and though their parents or spouses or children might know them by different names, all Republican candidates are, judging from their opponents' TV commercials and direct mail pieces, named Trump. Similarly, in Illinois, all Democratic candidates, of whatever gender, however they might be known to their friends and in their communities, are, judging from their opponents' TV commercials and mail pieces, named Madigan.

In the 20th House District, where I live, Trump is the Mayor of Rosemont and Madigan is a Chicago firefighter. I thought Trump and Madigan had different jobs, but the mailers I get every day, sometimes three or four a day, suggest otherwise. Millions of dollars are being poured (through a firehose?) into a race for a job that doesn't pay $70,000 a year. So, even if those in most Policy Making offices have little say in actually making policy, control of Policy Making offices is considered very important.

Ministerial offices are offices in the executive branch that aren't Policy Making. In this election all the Ministerial elections are for county offices -- Clerk of the Circuit Court and State's Attorney being the two prominent ones.

Ministerial officials do not make laws; rather, their functions are defined, often minutely, by statute. A State's Attorney has some discretion, under the law, to decide which crimes to prosecute in a specific case, and that has given rise to confusion, and argument, over the extent of that discretion. Discretion exercised too broadly can effectively rewrite, or even repeal, whole sections of the Criminal Code without the actual input of the Policy Making elected officials. This may be acceptable to some Policy Making elected officials, who are thereby spared the embarassment of having to take a position on potentially controversial issues -- and who can thereby have Someone To Blame if voters become upset enough to threaten their own reelections.

The good-government types, the BGA and the like, look at Ministerial Offices as fertile fields for cost-cutting and consolidation. Thus, for example, the recent merger of the offices of Recorder of Deeds and Cook County Clerk was hailed by good-government types as a Good Thing.

But the good-government types make these assessments without proper consideration of the unintended consequences of such mergers: They reduce the already fleeting opportunities for the not-independtly wealthy to begin the ascent of our own cursus honorum. The Pritzkers and Rauners and Trumps of the world can buy their way into public life -- but others less fortunate could use a good track record in these lower-level, Ministerial offices in order to come to the favorable attention of the public and thereby have real hopes to advance up the ladder into prominent Policy Making posts.

That was certainly the goal of outgoing Clerk of the Court Dorothy Brown---to grasp another rung up the ladder of political success---but it was a goal she never achieved. Why? I believe it was because she was always looking for that next job, and therefore never devoted herself sufficiently to the duties of the office she held. With her departure, we may finally behold a future without carbon paper -- if the courts ever fully reopen.

Policy Makers should have big, sweeping plans and ideas even if, in practice, too many aren't told what their big plans and ideas are until the last few days of the legislative session. Ministerial office holders may have big, sweeping plans, too, but they are, or are supposed to be, irrelevant to the discharge of their duties.

Big, sweeping plans and ideas are potentially harmful to Judicial officials: Judges too strongly tied into their well-devloped world views might feel tempted to view, and fit, the facts of the cases before them into their world-views.

Judges should not have empty minds -- they may well cultivate, as other citizens do, an overall world view -- but they must be able to maintain open minds as they hear cases. If Policy Makers have an expansive, macro view of the world, judges need to cultivate a focused, micro view.

I have often argued that it should usually make no difference to the result if the judge is a "progressive" or a "conservative" or even a Trotskyite, as long as are each faithful to their judicial oaths. And this is certainly true for simple questions -- was the car making the left turn at fault? -- and many others, less simple -- was the notice given in the required form? Was the suit filed within the statute? Depending on their philosophical outlook, not every judge will be equally pleased with the result -- that's human nature -- but, when a decision must be made, it should be made consistently.

But there's a reason why the unofficial motto of the legal profession is, "It depends."

Sometimes a judge must figure out which of several potential statutes apply. And there may be compelling reasons supporting the application of each of these. Choosing from among these competing strands of the law would be an illustration of judicial discretion -- significant autonomy, but case specific.

Even when the choices are narrowed, and the apparently proper statute identified, there may not always be only one right answer. This was more obvious when I was a young lawyer: We often used research aids called books, like the old annotated statutes. When reviewing the annotations under any given statute, we might find one list of a dozen or more cases where the statute indicated one result and, immediately following, an equally long list of cases, equally valid, suggesting just the opposite. For all their technological advances Lexis and Westlaw have never quite duplicated the contradictions that can be observed by the Mark One Eyeball looking at facing pages in a book. The equities of the case may suggest that this line of cases should apply, the circumstances of the case may suggest the proper application of that line of cases. A carefully crafted order pulls all the pieces together and resolves the controversy -- and then the Appellate Court comes along and bollixes the whole thing up.

Or any number of other possibilities. If results were always cut-and-dried, we could just get an app for that. Plug, chug, and enter the data for the next.

Sometimes the best result may be not to decide, but to guide the parties to a settlement that all can live with. Zero-based discovery might be one tool for judges to preside and guide a civil case to a reasonabe solution.

For the Judicial official (unless that Judicial official is on the Illinois Supreme Court, in which case he or she may have some Policy Making responsibilities, especially if he or she serves long enough to be Chief Justice), it is only the parties before the bench that should matter in any given case. It is the narrowest view. The Ministerial official should not be particularly concerned with individuals, but with processes and implementation of the controlling stutory plan. The Ministerial view should be practical and prosaic. Poetry and vision are reserved for the Policy Maker, who should take the broadest possible view. Individual cases may illustrate a need or a problem, but the individuals are props in service of a larger vision.

A great Judicial official might also be a great Policy Maker, and vice versa, but that person would have to bring very different approaches to these very different responsibilities.

Today's media can only make us despise one another if we let them

Matt Taibbi covered politics for Rolling Stone for a number of years; the Internet advises that he now is self-publishing his work on Substack.

I saw a chapter of Hate Inc. online (it was in my price range... free) and I thought it so good, and so important, that I actually ordered the book. (OK, so I had a gift card.)

The subtitle of the book is "Why Today's Media Makes Us Despise One Another." And so many of us do -- perhaps without wondering why we do. Didn't we always?

And the answer, of course, is "no." Throughout the course of American history there has never been a shortage of instances of vitriolic, ad hominem attacks and partisan extremism -- but there have also been many instances of persons with strongly held, opposite views who somehow remained friends. There are just a lot fewer examples of such persons in these turbulent times. (In mourning her passing, the apparently genuine friendship between the late Ruth Bader Ginsburg and Antonin Scalia has been frequently cited... often with seeming astonishment.) A politician from one party could occasionally speak with an officeholder in the other party without either, or both, being denounced as quislings or traitors. Sometimes they could even meet in public.

Taibbi's book addresses how things have changed, and how the media has changed them... and us... all in the craven pursuit of clicks and bucks.

In particular, I submit that Mr. Taibbi is onto something with his 10 Rules of Hate. These are the rules; I encourage all to read the book to see his explanations:

1. There are only two ideas.
2. The two ideas are in permanent conflict.
3. Hate people, not institutions.
4. Everything is someone else's fault.
5. Nothing is everyone's fault.
6. Root, don't think.
7. No switching teams.
8. The other side is literally Hitler.
9. In the fight against Hitler, everything is permitted.
10. Feel superior.

It is difficult to imagine having a civil conversation with someone who has just called you Hitler, or who accuses you of supporting someone who behaves or acts like Hitler. And living in civil society with people who say we are Hitler or with people who we say are Hitler is pretty much unimaginable.

So this trend to extremism is flat-out dangerous. Dangerous to the future of the country, maybe even dangerous to any of us physically in the near term. Such as, for example, on November 4.

But it doesn't have to be this way. We can see how we are being manipulated. And we can refuse to play.

Naturally, I am inclined to believe that anyone reading me is not likely to live in a "silo" or "echo chamber" and has the wit to recognize how we are being played or manipulated by those who serve us "news," even if you had never before heard of the 10 Rules of Hate. You, Dear Reader, rightly disdain the open sewer that is so much of today's Facebook and Twitter -- but I'll bet you know plenty of people who are hopelessly mired in the quicksand of online hatred, fueled by manipulative media. These acquaintances of yours (perhaps persons whom you once called 'friend' in real life, or to whom you are regrettably related by blood or marriage) are probably denouncing paragons of virtue on your side, too, aren't they?

Oh... wait... maybe you might want to read this book first... before you give it to those poor, benighted idiots with whom you sometimes stoop to engage online....

You know... there might just be something wrong with national elections besides the Electoral College

In 2015-2016 about 25 Republicans -- or maybe, more accurately, about 24 Republicans and Donald J. Trump -- staged a reality TV show to see who would be the Republican presidential nominee.

Look what that got us.

Well, he had experience in the one area that was apparently important to the process: He was a reality TV host.

The Democratic Party's first response to this national tragedy was to say -- hey, let's get our own reality TV host!

But Oprah said she wasn't interested.

So now, for 2020, the Democrats have given us something like 50 wannabes -- some of whom have already been voted off the island -- in an even more glitzy and frivolous game show format.

In my email this morning, and also on Facebook, are breathless inquiries: Who won last night?

Who will move on? Who will get the rose? Why don't we just add a phone number to call during the show to cast our votes for best snappy comeback? Or biggest burn?

Can we make this process any more trivial? Any more farcical?

And yet, somehow, the problem with our presidential election system is the Electoral College?

Really?

If you want a serious President, you need a serious process. A truly national leader can not be a hyper-partisan. He or she will have to try to appeal to everyone -- try to build a national consensus -- try to bring us together as a nation.

It can't happen, of course.

I mean, Lincoln couldn't get everyone behind him... even in the North.

Even George Washington was slandered, viciously, at least in his second term.

But they tried. They understood that their job was to lead a nation, not just a party, and certainly not just a wing or faction of that party.

Today, in 2019, We the People have apparently stopped looking for persons willing to undertake the thankless task of building a national consensus. Trying to build a national consensus is just too hard. Or maybe its boring. Instead, we're looking to pick our national leader in game shows.

The fault, dear readers, lies not in our stars, and not in our Constitution, but in ourselves.

We are better than this. We can do better than this. We must insist that our politicians do better than this.

The burdens outweigh any benefit of MLB’s new ‘security’ procedure

At first, I thought it was an early April Fool’s joke.

I got off the Red Line a good 25 minutes before the scheduled first pitch yesterday, passing the usual Opening Day phalanx of police officers on my way to Gate 5 where I planned to get to my seat in plenty of time for the National Anthem.

The operative word in the preceding sentence is “planned.”

It soon became evident that the lines to get into U.S. Cellular Field were outrageously long – and not moving in any appreciable way.

My host suggested we try the Stadium Club (he’s a member), and we crossed 35th Street, passing many other peace officers en route. But the line for the Stadium Club was also extremely long, and it funnels into a small elevator (or maybe two – I don’t get out much), so we got in the adjacent line for Gate 2. Eventually, after the game was well underway, because we had 100-level tickets, we were allowed to go to Gate 1, where we were wanded and finally allowed to climb the stairs into the park – where, as usual, we still had to show our tickets to at least two other ushers before we could finally get to our seats. I didn’t see as many uniformed police officers after we got in line – we saw some – but mostly, at that point, we saw Sox Security personnel (many of whom are moonlighting police officers).

The long lines weren’t an early April Fool’s joke: According to the Sun-Times this morning, the debacle at the Cell yesterday is a manifestation of MLB’s new security program, which we are all encouraged to accept with stoic passivity.

I dissent.

Seriously, who came up with this brilliant plan for MLB – Jeffrey Loria?

It’s one thing to turn a trip to the airport into an excursion into one of the outer circles of Dante’s Inferno; it doesn’t matter, much, because at the end of the TSA ordeal is the soul-crushing tedium of modern airline travel. But now misguided security guidelines are messing with America’s Pastime. This is serious.

I suspect that the MLB plan is probably a reaction to the tragedy last April at the Boston Marathon. That was an unspeakably awful crime. According to Wikipedia, three people were killed, and 264 more were injured, many of them horribly. People in Boston and around the nation felt deeply for the victims and their families; Americans took the losses personally. The whole nation paused a few days later as we watched the unfolding news of the manhunt for the surviving bomber.

But there were roughly 500,000 people at the Boston Marathon last year. Necessarily, almost all of them got home safely that day. You may recall news reports about many runners or spectators who didn’t even learn of the tragedy until after they’d returned to their homes or hotels.

Maybe it’s because I’ve spent most of my professional career dealing with insurance companies, but, for me, everything comes down to analyzing risks and burdens.

I am not a statistician or an actuary. Like almost everyone else (except, possibly, for professional statisticians and actuaries), my sense of risk is at least partially informed by my ‘gut feelings.’ Because of my background, though, my gut feelings are not unduly fueled by hysterical news outlets. And I have perhaps a greater appreciation for risk statistics than most, even if I lack the ability to calculate the odds myself.

I therefore find it significant when the odds of dying in a terrorist attack are calculated at 1 in 20,000,000, as Ronald Bailey calculated in this 2011 piece on Reason.com. (I tracked down that link after seeing it cited in an April 2013 Wonkblog post on the Washington Post website).

You can compare the relative risks of death by terrorism with death by other causes by following either of those links.

I also looked at the publication Injury Facts (2013 edition), published by the National Safety Council, for comparison purposes. The NSC did not provide a calculation for the risk of death at the hands of a terrorist. The NSC’s figures were based on 2009 mortality figures and there were no deaths in America caused by terrorism to use as a basis for calculation of the odds in that year. (According to the NSC methodology, unless at least 20 people die annually from a given risk, any calculation of odds would likely be “unstable from year to year” and the calculations were not included for that reason. The article on Reason.com used cumulative figures from five years, from 2005-2010, and included Americans killed in terrorist attacks overseas, before taking an average.)

According to the NSC, over 36,000 Americans died in motor vehicle accidents in 2009, making the annual odds of dying in a motor vehicle accident 1 in 8,477. So the risk of death from traveling by motor vehicle is orders of magnitude greater than the risk of dying in a terrorist attack (1 in 20,000,000).

If safety is the real goal, we should perhaps prohibit people from driving to ballgames. But people can die using public transportation as well – again, using the 2013 edition of Injury Facts – Americans had a 1 in 13,954,843 chance of dying in a bus accident and (here’s a coincidence) the exact same chance of dying in a railroad accident. Not a lot of risk, admittedly – but the odds are still better that you might die in an accident on the way to the ballpark as opposed to dying in a terrorist attack at the ballpark.

You are at least twice as likely to die from a lightning strike (1 in 9,903,437) as be killed by terrorists.

But here’s where the ‘gut feelings’ come in: We know we can virtually eliminate the risk of getting struck by lightning if we stay inside during a storm. On the other hand, if we venture from our homes to go to the ballpark, we can’t avoid the risk of terrorism. Also, we can intuit that ‘soft targets’ like ballparks may be attractive to terrorists; therefore, however low the risk of terrorism generally, we find it easy to believe that the risk would be far greater when people are concentrated together at a ballgame or a concert or a shopping mall or a school or a movie theater or a railroad station or a church or.... Hey, wait a minute: There are so many ‘soft targets’ that maybe we shouldn’t consider the risk of being in this place any greater than the risk of being in any other place. There have been terrible tragedies in several of these types of places, of course – not caused by terrorists, actually, but by deranged lunatics with guns and opportunity who, sadly, were lucid enough to pick out targets where there weren’t a lot of armed police officers on the lookout for trouble. So the police presence yesterday at the Cell provided some real security.

On the other hand – back to those nervous gut feelings again – wouldn’t special occasions like the Super Bowl or Opening Day be more attractive targets for terrorists? Well, maybe so – except that these kinds of events present the least soft of any soft target you can imagine even without subjecting patrons to wanding at the entrance gates. Because once again there’s that problem (for the wannabe terrorist) of lugging his bombs or other weapons past all those police officers. What do you think those police officers were doing all along 35th Street and around the stadium? Do you think they were just soaking up atmosphere?

If a person is hellbent on committing some heinous act in the name of some cause, and if that odious person is truly prepared to die in the effort, he will find a place and time to commit his crime whether people are wanded at the entrance to sports arenas or not. But the terrorist or armed lunatic is not going to go anyplace where he must run a gauntlet of uniformed police in order to reach his ‘soft target.’ In my experience, there are always lots of police in attendance in the vicinity of U.S. Cellular Field when the White Sox have a home game. The extreme slowdowns caused by yesterday’s enhanced security wanding exercise, therefore, were a waste of time and effort and failed to make anyone safer.

The burden imposed (keeping thousands outside the stadium until the second or third inning) did not outweigh the benefit of reducing the already minuscule risk of terrorism. Besides, it must have cost the White Sox tens, if not hundreds of thousands of dollars in lost concession sales.

I’m all in favor of staying safe. But I want real safety, not an illusion, and particularly not an illusion that takes 45 minutes to navigate.

Laughing about the NSA?

Screen capture from getprsm.com

I saw the reference to to the very funny getprsm.com site on someone's Facebook page. Given the subject matter thereof, I worried a little about mentioning my source... and finally didn't. They already know, I suppose, but why push it?

When Mr. Snowden made undeniably public what had so long been assumed (and feared) there were the inevitable editorial cartoons. Messrs. Luckovich and Oliphant, for example, weighed in before the end of July.

But editorial cartoonists are expected to have pungent opinions on any given day. They have new opinions, on different matters, just about every day.

But the revelations about the NSA weren't just any old story. It bothers a lot of us on a fundamental level. This can be illustrated in the way in which the story came up in far less political comics, like Dilbert and Dustin.

For those of us old enough to remember when the taking of an oath to preserve and defend the Constitution of the United States was a solemn promise to adhere to the letter and spirit of the document, this is one of those we-have-to-laugh-to-keep-from-crying stories. I thought this last cartoon, from a web comic called Doghouse Diaries, was particularly amusing.

But -- just in case someone in authority is thinking about it -- this sort of thing wouldn't make anything better as far as I'm concerned.

Text of 50 U.S.C. §1861

Related to this post on Page One.

§ 1861. Access to certain business records for foreign intelligence and international terrorism investigations

(a) Application for order; conduct of investigation generally.

(1) Subject to paragraph (3), the Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

(2) An investigation conducted under this section shall--

(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 [50 USCS § 401 note] (or a successor order); and

(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

(3) In the case of an application for an order requiring the production of library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records containing information that would identify a person, the Director of the Federal Bureau of Investigation may delegate the authority to make such application to either the Deputy Director of the Federal Bureau of Investigation or the Executive Assistant Director for National Security (or any successor position). The Deputy Director or the Executive Assistant Director may not further delegate such authority.

(b) Recipient and contents of application. Each application under this section--

(1) shall be made to--

(A) a judge of the court established by section 103(a) [50 USCS § 1803(a)]; or

(B) a United States Magistrate Judge under chapter 43 of title 28, United States Code [28 USCS §§ 631 et seq.], who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and

(2) shall include--

(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to--

(i) a foreign power or an agent of a foreign power;
(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or
(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; and

(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.

(c) Ex parte judicial order of approval.

(1) Upon an application made pursuant to this section, if the judge finds that the application meets the requirements of subsections (a) and (b), the judge shall enter an ex parte order as requested, or as modified, approving the release of tangible things. Such order shall direct that minimization procedures adopted pursuant to subsection (g) be followed.

(2) An order under this subsection--

(A) shall describe the tangible things that are ordered to be produced with sufficient particularity to permit them to be fairly identified;
(B) shall include the date on which the tangible things must be provided, which shall allow a reasonable period of time within which the tangible things can be assembled and made available;
(C) shall provide clear and conspicuous notice of the principles and procedures described in subsection (d);
(D) may only require the production of a tangible thing if such thing can be obtained with a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation or with any other order issued by a court of the United States directing the production of records or tangible things; and
(E) shall not disclose that such order is issued for purposes of an investigation described in subsection (a).

(d) Nondisclosure.

(1) No person shall disclose to any other person that the Federal Bureau of Investigation has sought or obtained tangible things pursuant to an order under this section, other than to--

(A) those persons to whom disclosure is necessary to comply with such order;
(B) an attorney to obtain legal advice or assistance with respect to the production of things in response to the order; or
(C) other persons as permitted by the Director of the Federal Bureau of Investigation or the designee of the Director.

(2)

(A) A person to whom disclosure is made pursuant to paragraph (1) shall be subject to the nondisclosure requirements applicable to a person to whom an order is directed under this section in the same manner as such person.

(B) Any person who discloses to a person described in subparagraph (A), (B), or (C) of paragraph (1) that the Federal Bureau of Investigation has sought or obtained tangible things pursuant to an order under this section shall notify such person of the nondisclosure requirements of this subsection.

(C) At the request of the Director of the Federal Bureau of Investigation or the designee of the Director, any person making or intending to make a disclosure under subparagraph (A) or (C) of paragraph (1) shall identify to the Director or such designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request.

(e) Liability for good faith disclosure; waiver. A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.

(f) Judicial review of FISA orders.

(1) In this subsection--

(A) the term "production order" means an order to produce any tangible thing under this section; and
(B) the term "nondisclosure order" means an order imposed under subsection (d).

(2)

(A)

(i) A person receiving a production order may challenge the legality of that order by filing a petition with the pool established by section 103(e)(1) [50 USCS § 1803(e)(1)]. Not less than 1 year after the date of the issuance of the production order, the recipient of a production order may challenge the nondisclosure order imposed in connection with such production order by filing a petition to modify or set aside such nondisclosure order, consistent with the requirements of subparagraph (C), with the pool established by section 103(e)(1) [50 USCS § 1803(e)(1)].

(ii) The presiding judge shall immediately assign a petition under clause (i) to 1 of the judges serving in the pool established by section 103(e)(1) [50 USCS § 1803(e)(1)]. Not later than 72 hours after the assignment of such petition, the assigned judge shall conduct an initial review of the petition. If the assigned judge determines that the petition is frivolous, the assigned judge shall immediately deny the petition and affirm the production order or nondisclosure order. If the assigned judge determines the petition is not frivolous, the assigned judge shall promptly consider the petition in accordance with the procedures established under section 103(e)(2) [50 USCS § 1803(e)(2)].

(iii) The assigned judge shall promptly provide a written statement for the record of the reasons for any determination under this subsection. Upon the request of the Government, any order setting aside a nondisclosure order shall be stayed pending review pursuant to paragraph (3).

(B) A judge considering a petition to modify or set aside a production order may grant such petition only if the judge finds that such order does not meet the requirements of this section or is otherwise unlawful. If the judge does not modify or set aside the production order, the judge shall immediately affirm such order, and order the recipient to comply therewith.

(C)

(i) A judge considering a petition to modify or set aside a nondisclosure order may grant such petition only if the judge finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.

(ii) If, upon filing of such a petition, the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, such certification shall be treated as conclusive, unless the judge finds that the certification was made in bad faith.

(iii) If the judge denies a petition to modify or set aside a nondisclosure order, the recipient of such order shall be precluded for a period of 1 year from filing another such petition with respect to such nondisclosure order.

(D) Any production or nondisclosure order not explicitly modified or set aside consistent with this subsection shall remain in full effect.

(3) A petition for review of a decision under paragraph (2) to affirm, modify, or set aside an order by the Government or any person receiving such order shall be made to the court of review established under section 103(b) [50 USCS § 1803(b)], which shall have jurisdiction to consider such petitions. The court of review shall provide for the record a written statement of the reasons for its decision and, on petition by the Government or any person receiving such order for writ of certiorari, the record shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.

(4) Judicial proceedings under this subsection shall be concluded as expeditiously as possible. The record of proceedings, including petitions filed, orders granted, and statements of reasons for decision, shall be maintained under security measures established by the Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence.

(5) All petitions under this subsection shall be filed under seal. In any proceedings under this subsection, the court shall, upon request of the Government, review ex parte and in camera any Government submission, or portions thereof, which may include classified information.

(g) Minimization procedures.

(1) In general. Not later than 180 days after the date of the enactment of the USA PATRIOT Improvement and Reauthorization Act of 2005 [enacted March 9, 2006], the Attorney General shall adopt specific minimization procedures governing the retention and dissemination by the Federal Bureau of Investigation of any tangible things, or information therein, received by the Federal Bureau of Investigation in response to an order under this title [50 USCS §§ 1861 et seq.].

(2) Defined. In this section, the term "minimization procedures" means--

(A) specific procedures that are reasonably designed in light of the purpose and technique of an order for the production of tangible things, to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(B) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in section 101(e)(1) [50 USCS § 1801(e)(1)], shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance; and
(C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.

(h) Use of information. Information acquired from tangible things received by the Federal Bureau of Investigation in response to an order under this title [50 USCS §§ 1861 et seq.] concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures adopted pursuant to subsection (g). No otherwise privileged information acquired from tangible things received by the Federal Bureau of Investigation in accordance with the provisions of this title [50 USCS §§ 1861 et seq.] shall lose its privileged character. No information acquired from tangible things received by the Federal Bureau of Investigation in response to an order under this title [50 USCS §§ 1861 et seq.] may be used or disclosed by Federal officers or employees except for lawful purposes.

Thinking about a musical and a well-traveled email on this Fourth of July

We just finished watching 1776 in our house -- a 4th of July tradition for us.

It's a musical, not a monograph, and there are some liberties taken in the story of how the Continental Congress adopted the Declaration of Independence -- no, John Adams did not really arrange for Thomas Jefferson's wife to visit Philadelphia so that Jefferson would stop mooning and get busy writing the Declaration -- but there's a lot that's accurately portrayed as well.

And there's stuff that should be accurate (even if it's not): In the movie, after Congress adopts the Declaration of Independence, further requiring that no man be permitted to sit in Congress without affixing his name to the document, John Dickinson withdraws, saying he could not in good conscience sign the Declaration because he would never give up hope for the eventual reconciliation between America and Britain. However, he said, because, in his own way, he loves America no less than John Adams (with whom he's been sparring throughout the picture), he would enlist in the Army and fight to defend his country, even though he believed the cause to be hopeless. As he walks from the room, John Adams leaps to his feet calls out, "Gentlemen of the Congress, I say ye, John Dickinson." He bowed to his recent antagonist as the other members rose, pounding their tables in applause and assent.

The scene is a magnificent illustration of how political opponents can (and should be) respectful of each other.

Of course, as the linked Wikipedia biography shows, the musical invents most of the scene. Dickinson either stayed away from the meetings at which the decisive votes were taken or abstained. But he did withdraw from Congress after the Declaration was adopted and enlisted in the Pennsylvania militia. And when Dickinson died, in 1808, Thomas Jefferson, by then President of the United States, wrote, "A more estimable man, or truer patriot, could not have left us. Among the first of the advocates for the rights of his country when assailed by Great Britain, he continued to the last the orthodox advocate of the true principles of our new government and his name will be consecrated in history as one of the great worthies of the revolution."

Every year, when I watch 1776, I am reminded of the email that just about everyone gets around this time of year, about the 'price paid' by the 56 Signers. I've liked to an Internet version of that well-traveled email; it's a sobering read.

I've often wondered just how accurate the email was; this year, I resolved to find out.

It turns out that, despite the name of the site I linked to (whatreallyhappened.com), the Signers' fates email is a mixture of true and false information. So says Internet debunker Snopes.com. Life was not all beer and skittles for the Signers of the Declaration of Independence, but the price they paid was not quite so high as the email claims.

Unfortunately, although understandably, the Snopes.com article focuses more on the inaccuracies in the circular and not on the accurate parts. But USHistory.org, a website maintained by the Independence Hall Association in Philadelphia, provides short biographies of all 56 Signers, indexed on a single page of the website. The truth may not be quite as dramatic as the 'price paid' email, but the truth is more than sufficiently inspirational.

Have a Glorious Fourth.

It's a lot more than seven words you can't say on the Internet, at least not if you don't want Big Brother watching you

I saw a link to this Daily Mail article on Facebook, Revealed: Hundreds of words to avoid using online if you don't want the government spying on you (and they include 'pork', 'cloud' and 'Mexico')."

It would all be so silly if this were something from the movies. Indeed, there were all sorts of movies about overbearing, ridiculously suspicious governments during the Cold War Era -- it's just that the government in question was always on the other side of the Iron Curtain. When we pretended not to be scared of the Soviet Union, we made fun of the Reds (Silk Stockings, for example. And, as much as we fretted about them we worried about how the long-term conflict was changing us. Sometimes we tried to laugh about it (Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb); sometimes, we tried to face our fear head-on (Fail-Safe).

But this is real life, not reel life. And no one is trying for laughs. Yet, look at this list of words.

(You can find these lists here, starting at p. 20 of the 2011 Analyst's Desktop Binder, apparently published by the Department of Homeland Security, National Operations Center.)

Your tax dollars at work: With this list, all lawyers are necessarily under suspicion: "mitigation" is a suspicious word, and so is "breach." Don't write about contract disputes on line! Doctors, too, are under suspicion (as are sick people): "Influenza" is suspicious, and so too "virus" and "symptoms." With this list, how can Tom Skilling still be at large? -- look at all the suspicious words about weather.

In My Fair Lady, when Rex Harrison took Audrey Hepburn to Ascot, he tried to limit her to talking only of the weather and her health -- but things didn't work out so well. Still, at the time, Eliza won attention from only Freddy Eynsford-Hill. Today, with these keywords, she might also have attracted attention from DHS.

It's all well and good to make fun of lists like this. It's just... it's just someone in the government thought this list was a good idea. And it wasn't just one someone in government. And it wasn't just one rogue bureaucrat who thought it would be a good idea to compile dossiers on mostly legal 'Occupy' protests, as this Partnership for Civil Justice Fund website documents.

And c|net reports just this week, "U.S. gives big, secret push to Internet surveillance."

History records that Ben Franklin was leaving the closing session of the Constitutional Convention when he was stopped by a lady in the street. "Well, Doctor," said the lady, "what have we got? A Republic or a Monarchy?" Franklin responded, "A Republic, if you can keep it."

This isn't how we do that.