Streetwise Professor

Trump’s blunt statement that he was a nationalist has set off paroxysms of rage from the usual quarters.  This culminated with French president Macron intoning (under a monument to French national pride and military conquest–but we’ll see that’s just a sliver of the hypocrisy) that “patriotism is the exact opposite of nationalism.”

Upon reading this, my initial reaction was: bugger off, froggie.  Here’s my more considered reaction, though I have to confess it pretty much arrives at the same conclusion, only with bigger words 😉

Macron, and most of the other people European and American who have seized on Trump’s remark, are playing a slippery rhetorical sleight-of-hand.  They are trying to equate Trump’s use of the word with European-style blood-and-soil nationalism, which in the 1930s fueled fascism, and contributed to conflict–but not to the degree that Macron and his ilk claim.

This is categorically false, and in fact a slander.  It is clear that by “nationalism” Trump means putting American national interest first. Moreover, Trump’s assertion relates primarily to means, not goals.  He views collective international organizations to be an impediment to, and at times inimical to, the advancement of American interests.  He believes that a more transactional, bilateral approach better achieves American goals, and that collective organizations (even Nato, not to mention the WTO or UN or whatever) are beneficial only to the extent that they lower the transactions costs of the US making deals that benefits it.

That is, the antonym to Trump’s nationalism is globalism.  It has little if anything to do with ethno-nationalism of the blood-and-soil variety, as Macron and others ceaselessly insinuate.

You can disagree with Trump’s belief that a more unilateral, transactional approach is more beneficial to US interest than alternatives, but at least it is bluntly honest, as opposed to the hypocrisy of the EUropeans, as epitomized by Macron.  For they too want to advance national interests, but do not have the heft to do so as individual nations.  So Germany and France in particular have found that the most effective way to leverage their national interest is through collective organizations, such as the EU, Nato, and the UN, which they then tart up as high-minded humanitarianism.

In other words, the US is Gulliver, and the European Lilliputians are incensed and frightened that under Trump Gulliver-America is no longer willing to remain tied down.  So spare me the condescending lectures.

The Macron et al criticisms are false and slanderous as well because they grotesquely mischaracterize American nationalism–perhaps because the Europeans are projecting their own failures on us.  As many have pointed out over the years, American nationalism derives from a creed and an ideology, rather than ethnicity.  To confuse American nationalism with European nationalism is a category error.

American nationalism has assumed an ethnic or religious tinge primarily during times of large-scale immigration from countries and regions with cultures (political, social, religious) that were feared to be incompatible with American ideals of liberty and democracy.  Those fears usually turned out to be overblown, precisely because the United States has proved uniquely able to assimilate people from about everywhere, many of whom rapidly and eagerly adopted American identity–something Europe has never done, and continues to fail to do.  (Small illustration.  As a kid I was in a Civil War reenacting unit.  I was struck that most of the men in this group had eastern European names, and had no possible family connection to the Civil War, let alone the Revolution or the Mayflower.  But they were enthusiastic about the Civil War and American history, and all were vocally patriotic.)

So the sneering criticisms of Trump’s avowed American nationalism emanating from Macron et al are a mixture of ignorance, slander, and advancement of national self-interest by multi-lateral means.  Which is why he–and they–can bugger off.

Another point.  Why should we trust the judgment of soi disant international(ist) elites? Especially when their prescriptions have varied wildly over time.

Note: national self-determination was a bedrock Liberal Internationalism 1.0.  Look at Wilson’s 14 Points, one of the foundational documents of liberal internationalism: points VI through XIII–that is, more than half–were dedicated to nationality questions.  Furthermore, the thrust of these points was that ethnic nations should have their own states, or at least a major voice in the states in which they perforce lived as minorities.  Further, the post-WWI settlement created ethnicity-based nation states in Europe, and embodied the principle in colonial areas given mandate status.

This component of liberal internationalism was in part based on a view of right: the oppression of ethnic groups by multi-national empires (Austro-Hungarian, Ottoman, Russian in particular) was considered a grave injustice.  It was in part based on pragmatic considerations. A major contributor to the outbreak of war in 1914 was the efforts of teetering multi-ethnic empires to maintain control over increasingly restive ethnic minorities.  Hell, the reason that Austria-Hungary felt compelled to strike at Serbia was that if it didn’t, it would encourage the Czechs, Slovaks, Slovenians, Ruthenians, Poles, and on and on to attempt to break away.

The belief that national self-determination would reduce the risk of world war was a very reasonable conclusion.  Wars between empires are dangerous and bloody.  Wars between empires are more likely when said empires are rent by ethnic turmoil–especially when Empire A deems itself the big brother and protector of an ethnic group in Empire B.  Yes, little national states may be prone to conflict, but such conflicts are localized and unthreatening to continental or world peace.

It’s also interesting to note that the idealization of nationalism on the left has deep roots, notably the Romantics of the 19th century (who had influence on the early-20th century internationalists): think of Byron and the Greeks.  The 1848 revolutions–often lionized by the left–had a decidedly nationalist thrust.

But what about the inter-war years, culminating in World War II?  Didn’t ethnic nationalism set the stage for it?

Europe did not have a nationalism problem, generally speaking.  It had a German problem, as it had had since 1870.  To generalize about nationalism and national self-determination from Germany is another category error.  Germany is its own category both intellectually/psychologically (Adenaur: “Germans are just Belgians with megalomania”), and due to its economic power.  Fascist Romania–no big deal.  Fascist Germany–very big deal.  (Which is one of the reasons why today’s Germans want to condemn nationalism generally, in order to obscure their uniquely malign historical legacy.  Another reason is that by keeping down the Poles, Hungarians, etc., Germany can achieve dominance by means other than panzers and the Shleiffen Plan.)

Liberal Internationalism 2.0 is the inversion of Version 1.0.  It is predicated on the abnegation of national identity, based on the claim that pursuit of national identity and interest will cause the next general conflagration.

In brief:

Liberal Internationalism circa 1918: Poles, Hungarians, Slavs, etc. should have their own nation states in order to prevent war.
Liberal Internationalism circa 2018: Poles, Hungarians, Slavs, etc. should subordinate their nation states to the EU in order to prevent war.

So what is the claim to authority based on, given this 180 degree turn?

Let us also remark on the ahistorical cluelessness of Version 2.0.  The reason that Macron and Merkel and all the other EUputians are particularly vexed by nationalism is that a majority of Poles, Hungarians, and English, and large and arguably growing minorities of Italians, Swedes, and yes, French, and yes!, even Germans, do not want to subordinate themselves to a supra-national, supra-ethnic government under primarily German domination.  (Hey–sounds kind of like the Austro-Hungarian Empire, no?) Their response to this is not to attempt to accommodate the desire for some national autonomy, but to crush it.  THAT is a subtext of Macron’s remarks.

But again redolent of Austro-Hungary (and the Russian Empire, and the Ottoman) these attempts to assert central (imperial) control over national groups only stoke more resistance.  This could not be more obvious.  Hell, even Merkel’s agonies are directly attributable to her mulish refusal to accommodate national sentiments within her own country, but she and her ilk insist on doubling down on Moar Europe, not realizing that the refusal to accommodate is a far greater threat to their dear project than Poles or Hungarians wanting to do things their way.

Merkel and Macron never tire of lecturing us about the Lessons of History, and in this just-past centennial of the end of WWI, about the Lessons of the Great War.  Before lecturing us any further, they should have a séance with Franz Josef and see how the suppressing national sentiments thing works out.  Sort of a Ghost of Christmas Past moment, if you will.  Or they should contemplate more honestly the sources of their current problems–like the Ghost of Christmas Present.  They really don’t want to see Ghost of Christmas Future.

In sum, the contretemps over Trump’s avowed American nationalism is just more bleating from a failed and failing elite who have learned nothing and forgotten nothing.  What’s more, for those bleating the loudest–Marcon, Merkel, and their lot–entities like the EU are just a way of advancing national interest through other means.  It is not an intelligent criticism.  Anything but–it is deeply ignorant.  Further, it is not a principled criticism.  Anything but–it is hypocritical to the core.

That job?  Voter fraud.

In three states where major elections are within the margin of fraud, ballot boxes are miraculously appearing in solid Democratic counties after Republicans appeared victorious.

This is a time-honored tactic.  It’s how “Landslide Lyndon” Johnson obtained his nickname.  After it appeared that LBJ had lost a Senate primary to Coke Stevenson, several ballot boxes containing 20,000 votes miraculously appeared, giving Johnson victory by an 87 vote margin.

So spare me chin pulling–and hysteria–about foreign interference in American elections.  American interference in American elections is a far greater threat to democracy.  And it’s a job Americans have been doing–and doing all too well–since the beginning of the Republic.

Reading about the shenanigans in Florida, Arizona, and Georgia spurred me to Google “Landslide Lyndon” to refresh my memory about his 1948 “victory.” The first several hits were from MSM (NYT, WaPo) reviews of Robert Caro’s biography of Johnson that documented the fraud.  Given how Johnson had been savaged by the left during Vietnam, it was astounding to see the lengths to which mainline liberal/leftist publications went to defend Johnson and criticize Caro.  It was like T-cells attacking a foreign body.  Yes, LBJ was a bastard–but he’s our (Democratic) bastard!

This is particularly revealing given the incredible research that Caro had done.  But he attacked one of the tribe, so he must be destroyed.

I remember vividly reading this Caro volume.  I finished about half of it, and had to put it down.  Johnson was such a loathsome human being–to put it charitably–it was nauseating to read the details.   I cannot think of one redeeming quality in the man.  Not a single one.

I was already pretty cynical about American politics by that time.  Caro’s Means of Ascent turned me into a die-hard cynic.   It was a perfect illustration of Hayek’s principle: the worst always get on top.

What is going on in the aftermath of the 2018 midterms is putting an exclamation point to that cynicism.  (Not that there were no reinforcing events in the intervening years–far from it.)   And we should not be surprised.   As government has grown in scope and power, the stakes of winning elections have grown commensurately.  If fraud paid in 1948 (or 1960), it pays far more now.

Indeed, I suspect that the obsession with idiotic Facebook posts or tweets allegedly posted by Russians is driven by the fact it is a very convenient distraction from far more real–and far more enduring–threats to the integrity of American elections.  Homegrown threats. But if you read the MSM, Russian meddling is a real and important threat, but even entertaining the possibility that American elections are rife with domestic fraud is to advance a conspiracy theory.  This is another illustration of their incomparable ability to invert reality.

Sunday marks the centennial of the end of World War I.  A word that is often used to describe that war–stalemate–also describes the results of Tuesday’s mid-term election.

After an intense rhetorical barrage lasting weeks, the Big Push ended with the contending lines virtually unchanged.  Yes, the Democrats captured the House, narrowly: but the Allies penetrated a few miles here and there at the Somme, without changing the strategic balance one whit.

Stalemate works to the advantage of the defender, which is what the Trump administration and the Republicans were on Tuesday.   So in a sense they won, by depriving their foes of a clear victory.

The Democratic control of the House will have little effect.  The new majority will not be able to achieve any legislative victories.  Hell, the Republicans couldn’t do squat, even when they controlled both houses and the White House, with a few exceptions (e.g., tax legislation).

Trump will continue to focus on foreign policy, the use of executive authority on domestic matters, and domination of the terms of political debate.  The Democrats will respond exactly like the Republicans did when Obama was president: much fussing and fretting, ranting and raving, to little effect.  The dogs will bark, but the Trump caravan will move on.

The major potential problem relates to defense, where the Democrats may impede the necessary recapitalization of the military.

The Democrats have vowed to mount a major offensive of investigations.  But tell me: since Watergate, when have Congressional investigations have any real impact?  When in the majority, the Republicans mounted investigation after investigation against Clinton and Obama, to virtually no effect.  Indeed, the Republicans frequently beclowned themselves with their investigations: expect the Democrats to do the same.   And expect Trump to fight hard and fight dirty in response, and to troll them mercilessly, thereby increasing the odds they will beclown themselves.

Some Democrats vow to impeach Trump.  Ask Newt Gingrich et al how that worked out for the Republicans in 1998.

Indeed, a Democratic House will provide Trump with a foil, a whipping boy, and a scapegoat.  The Democrats are so beside themselves with outrage over Trump that they will surely overstep themselves.  Further, in their frenzy they will rise to any bait, and you can believe Trump will chum the waters incessantly.  Trump will spend the next two years baiting and running against Nancy Pelosi, Maxine Waters, and the rest.  This will work to his advantage.

Tuesday actually brought more substantive victories to the Republicans than the Democrats.  They flipped a net two Senate seats.  Indeed, I would argue that they flipped a net of four.  The two ostensibly Republican seats in Tennessee and Arizona that were kept in the party had been held by anti-Trump prima donnas, Corker and Flake, who would didn’t even qualify as RINOs.  They have been replaced by more solid conservatives (at least they are now–there is always the risk they will go native).  So I see Tuesday as giving Trump/the Republicans (who are now part of the Trump empire, for better or worse) a four seat gain in the Senate.  Add to that the conservative replacement for McCain, and the Senate has an actual Republican majority, rather than a simulacrum thereof.

Of course, since the Democrats didn’t make headway in the Senate–the Senate must be abolished! Seriously: there is a steady stream of commentary to that effect.  Adding levity to the idiocy–or is it idiocy to the levity?–some lefties are actually claiming that the Republican Senate victories are illegitimate because–wait for it!–the Republicans gerrymandered the Senate elections.

Talk about people unclear on the concept!  But never underestimate the Dunning-Kruger effect, when it comes to politics, especially on the left.

What’s more, the Kavanaugh hearings (another example of Democrat overreach and their inability to help themselves) all but radicalized other Republican senators: have you heard Lindsey Graham lately? The Senate is a far more reliable Republican/administration bulwark as of today than it was on Monday.  This bodes well for confirmations.

The next confirmation battle is likely to be over whomever Trump nominates to be Attorney General, for literally hours after the election he unceremoniously ordered Jeff Sessions to resign.

The shrieks emanating from the Democrats and the bedraggled rump of anti-Trump Republicans indicates that this is a good thing.  You can guarantee that Trump will appoint someone who will be reliable, and likely combative, unlike the all-but-emasculated Sessions.

Robert Mueller is apparently also frightened, if this is to be believed.  Assuming that it is, I am compelled to ask: who the hell [I cleaned that up] does he think he is?  Here is a guy with no formal Constitutional standing, subordinated by law to the Attorney General, claiming to question of the authority of the president to name his own cabinet.  Perhaps he should re-acquaint himself (or acquaint himself) with Article II of the Constitution:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

That is: the president can fire the likes of Sessions for reasons good, bad, or ugly.  And Bob Mueller’s permission is not required.

The hue and cry is oh my God, Mueller will be subject to a Trump-appointed AG.  Yes.  Exactly as the law is intended and exactly as it is written.  Trump was rightly furious at Sessions’ recusal, which left the “oversight” to arch insider Ron Rosenstein, who was infinitely more conflicted that Sessions, yet felt no compunction against overseeing an investigation of matters in which he was at least a witness, and arguably a principle player.

The swamp echoes with grave warnings of another Saturday Night Massacre.  Trump is not that stupid.  I think a more likely outcome is revelation of Mueller’s current hunting license (which Rosenstein has fought fiercely to keep under wraps), followed by a substantial limitation of Mueller’s investigation to the matters it was originally supposed to cover: collusion between the Trump campaign and the Russians.

Thus, the election’s end frees Trump to defend himself more vigorously against Mueller.  That’s also a victory.

In sum, the battle lines have changed little, but despite local successes by the Democrats, this battle has been a victory for the defender–Trump.

One last comment on the election, or more specifically, what it reveals about the media.  From early Wednesday morning, my Twitter feed was choked with breathless tweets from all the usual suspects (Bloomberg, the FT, Reuters, etc.), about the glorious victories of women, especially minority women.  As @shootersix (a real bad-ass, by the way) commented, the three hyped most prominently were “a 29 year-old moron, a woman who married her brother, and another waving a Palestinian flag.” Leftists winning in lefty Congressional districts.  BFD.

Meanwhile, as @shootersix noted, the first Korean-American woman elected to Congress received ZERO attention, let alone accolades for being elected while having a uterus–because she is a Republican.  As egregious as this slight, if not more so, is the fact that two Republican women who won much more consequential senatorial victories in competitive states–McSally in Arizona and Blackburn in Tennessee–were also invisible as far as the media was concerned.

In other words: to the MSM it’s not about women making political strides–it’s about leftist/socialist/terrorist-friendly women making political strides.  I’d say the mask has slipped, but it was never on in the first place, was it?

A week ago Russia lost its largest drydock, while it was towing the country’s sole aircraft carrier, the Admiral Kuznetsov.   This is amusing, though not surprising: “The cause of the accident was reportedly an electrical malfunction that left the pumps in the dry dock’s ballast tanks stuck on, causing it to sink rapidly.”

The Kuznetsov was itself damaged, when a crane from the drydock toppled onto the carrier’s deck.

All things considered, the Russians would have been much better off had the Kusnetsov plunged to the bottom, rather than the drydock.  The drydock is actually potentially useful.  The carrier is a near hulk that is more trouble than justified by its military value, which to a first order approximation is zero.

I will take credit for being one of the first to point out the comical fact that the Kusnetsov always sailed with a salvage craft–a towboat–bobbing along in its wake.  Prudent precaution, you say? Never leave home without one?  Well, no other aircraft carrier in the world needs to take this precaution.

The Russians will reportedly attempt to raise the drydock, although as the linked article points out it may have been damaged by the sinking.   And if the electronics were dodgy before, think what months/years under frigid seawater will do to them.  The Russians will also apparently continue with refurbishing the Kuznetsov, although this is already running over time and over budget.

Hey, if they want to burn money, who am I to stop them?  Better for the US that they waste resources on this rather pathetic vessel than put it into something actually useful.

It’s not August, but Russia has been suffering an August-like autumn.  And no, I don’t mean the weather: I mean the fact that for years August was regularly marked by major accidents in Russia.  In addition to the Kuznetsov/drydock fiasco, recent weeks have seen the failure of the manned Soyuz launch.  The failure has been blamed on a sensor damaged during installation:

“The reason for the abnormal separation … was due to a deformation of the stem of the contact separation sensor…,” Skorobogatov told reporters.

“It has been proven, fully confirmed that this happened specifically because of this sensor, and that could only have happened during the package’s assembly at the Baikonur cosmodrome,” he said.

I can imagine the conversation: “What do you mean it doesn’t fit, Boris?  Get a bigger hammer!”

Further, four bridges have collapsed in Russia since September.

In brief, Russia remains a shambolic place.   The gap between Putin’s chest-thumping and reality is as wide as ever.  The hamster wheel keeps spinning.

The most recent controversy that is roiling the republic is Trump’s declaration that he will end birthright citizenship by executive order.

This is an issue that I am somewhat ambivalent about as a matter of policy, and as a legal matter, am unconvinced by the legal arguments raised pro and con.  This is in part a reflection of the inherently incompleteness of law, stemming from ambiguities of language and draftsmanship.  It is also a reflection of the often opportunistic and unprincipled use of legal arguments to advance policy preferences.

Those who oppose Trump on this issue claim that it is settled law, under the 14th Amendment and Supreme Court decisions rendered thereunder.

The 14th Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The key phrase here is “subject to the jurisdiction thereof”: I’ll return to it in a minute.

In US vs. Wong Kim Ark, the Supreme Court ruled 6-2 that the 14th Amendment was informed by English Common Law, which enshrined the principle of jus soli, which states that you are a citizen of the place (soil) where you are born.  The Court dispatched the “subject to the jurisdiction thereof” limitation rather peremptorily:

A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution,

That is, contrary to the government which argued that since Ark’s parents were subject of China, and hence subject to the legal jurisdiction thereof, the Court ruled that as long as they are not diplomats or government employees, jus soli applies.  They resided in the US, and hence were subject to its jurisdiction, and hence their children were citizens.  End of story.

In contrast, the dissenters pointed out that the 14th Amendment was passed 2 months after the Civil Rights Act of 1866, which granted citizenship to “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.”  Parents who are foreign citizens are subject to a foreign power.  Therefore, argued the dissenters in Ark, children of foreign citizens are not automatically US citizens.

Here the distinction depends on whether jurisdiction means sole jurisdiction.  If so, children of non-citizens are not necessarily automatically citizens by birth because they are subject to a foreign power. Note that the naturalization oath implies that foreign citizens are subject to the jurisdiction of the land of their citizenship: “I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen.”  The language of the Civil Rights Act of 1866 would support the sole jurisdiction argument.

The Slaughter House cases, and Elk vs. Wilkins would also support this view.

I do not consider either the majority or minority opinions to be irrefutable.  The argument could go either way.

Further, the Ark majority included as a criteria for determining whether someone is subject to the jurisdiction of the US as having “a permanent domicil and residence in the United States.”  Subsequent immigration laws have created a legal category of permanent resident that did not exist at the time the 14th Amendment was passed, or Ark was decided.  People in the US illegally, clearly are not permanent residents and are subject to deportation: here the US can exercise its jurisdiction over them by kicking them out of the country.  Even some legally in the country are not permanent residents.  Under this interpretation, Green Card holders’ children would be citizens.  Children of illegal immigrants, and those in the country legally but without permanent status, would not be

So more conundrums: what did the 1898 Court mean by “permanent resident”? Is the 1898 concept of permanent residence (whatever that is) determinative, or is the current legal concept, as embodied in statute?  Further–and this is an issue that comes up time and again when attempting to evaluate legal decisions–is permanent residence a necessary condition, or a sufficient one?  It would seem from a reading of the decision that it is a necessary one, but as in many cases, this isn’t absolutely clear.  If it is necessary, and the current legal definition of permanent resident is employed, the reach of birthright citizenship would be substantially circumscribed.

These various ambiguities and conflicts are one reason to go outside the text in order to interpret and assign meaning.  Originalism looks to the intentions of the framers of the Amendment.  Here, there are clearly some indications that some of the senators who approved the 14th viewed the language to mean “sole jurisdiction.”  Senator Lyman Trumbull, for example, believed that “subject to the jurisdiction” means not owing allegiance to any other government.

In this context, the Civil Rights Act, passed by the same Senate, would also support the more narrow ambit of birthright citizenship.

So would historical context.  The 14th Amendment was specifically framed to reverse the Supreme Court decision in Dred Scott, and was intended to ensure that blacks, including the formerly enslaved, were citizens.  Since they were born in the US, and had always been subject to its jurisdiction and laws (sometimes to their great cost), the language of the 14th was clearly sufficient to achieve this objective.  What is the justification for extending the concept beyond those it was intended to reach?

An alternative outside-the-text theory of interpretation is the “living Constitution” doctrine, which holds that the document itself, and previous decisions thereunder, must be reinterpreted according to evolving norms, standards, beliefs, social conditions, and technologies.

There is an irony here, of course: those who are most adamant about the broadest interpretation of birthright citizenship cite to a case that was decided when social conditions were decidedly different.  Changes in views regarding immigration, which are intimately related to views regarding citizenship, are embodied in statute, which has restricted immigration and created new legal categories of resident since 1898.  A consistent application of the living Constitution view would require deference to those fundamental changes.  But that of course would produce a result that conflicts with the policy preference of most of those who usually appeal to this view.  So when it becomes inconvenient, the hallowed principle of a living Constitution, evolving to fit changing times, goes out the window.

This illustrates a broader point.  Many–and arguably most–legal arguments relating to policy disputes are opportunistic, and people adhere to a particular theory of interpretation as often in the breach as in the promise.  Like the old joke says: when the law is on your side argue the law; when the facts are on your side, argue the facts; when neither the law nor the facts are on your side, pound the table and scream.  So the same people who venerate adherence to established doctrines when it suits them will discard that in favor of a solemn belief in the need for doctrines to evolve to keep up with changing times when it doesn’t.  And vice versa.

The issue of birthright citizenship is inherently a political one, and courts become politicized when they become the forum for political disputes–an endemic problem in the US at present, which is in large part why Supreme Court appointments have become the subject of no-holds-barred battles.  Political institutions, notably legislatures and the executive, are better suited to handle these issues.  And that’s where this issue should be decided, if at all possible, rather than the courts.  If changing times make existing laws obsolete, there is a legislative process to change them.

But, alas, politicians have become more than comfortable with escaping their responsibilities and throwing weighty decisions to courts and bureaucrats, and fighting to control the courts and the bureaucracies, as a way of escaping accountability and responsibility.  Meaning that the controversy over birthright citizenship is emblematic of the dysfunction of current American government.

Brief comments on some current events.

First, Angela Merkel is stepping down as head of the Christian Democrats, and she has announced that she will not run again for chancellor.  Although this means she will step down no later than 2021, the unravelling nature of end games makes it highly likely that she will depart sooner than that.

I remember distinctly being in Europe in March, 2017 when Merkel met Trump.   Everybody was flapping their gums about how now Merkel was now leader of the free world, due to Trump’s abdication of the post, and his general unfitness for it had he not abdicated it.

And now Angela can’t even lead Germany.

Further proof that conventional wisdom is the province of idiots, the intellectually lazy, and conformists.  Not that anyone is embarrassed by their fawning over her in 2017, but that is par for the course for idiots, etc. etc.

Merkel’s demise was the result of her arrogance, as relating to the issue of immigration in particular.  It’s usually the arrogance of the long-in-power that is their downfall: only the specific issue that brings them down differs between cases.  No, Angela’s fate is just another illustration of Enoch Powell’s observation: “All political lives, unless they are cut off in midstream at a happy juncture, end in failure, because that is the nature of politics and of human affairs.”  And I should add, human nature.  Or, as the movie Patton noted: in their triumphs, in the chariot behind the emperor stood a slave who whispered in his ear: “All fame is fleeting.”

Second, the left and the media (but I repeat myself) are stooping to a particularly scurrilous tactic to defend the execrable George Soros against any criticism.  According to them, any criticism of the sainted speculator is not based on substance.  Oh no.  It is driven by anti-semitism.

As someone whom revealed preference has proven beyond cavil to be non-antisemitic (either that, or the most masochistic anti-semite in history), I say: bollocks.  Indeed, it is worse than that: it is a cynical slander intended to intimidate people into silence.

People on the right despise Soros because he is a hard core leftist, who is the most beneficent funder of leftist causes–including the most malign of these causes.  Just as one of the conservative or libertarian persuasion can dislike Obama (or Kamala or Spartacus or Eric Holder–and I can tell them apart!) because of their politics and not because of their race, one can dislike Soros without being an anti-semite, and to suggest otherwise is disgusting and dishonest.

You see, the left can hate the Koch brothers because they are evil, but if you despise Soros—well, you’re a bigot.

See how that works?

Third, and relatedly–the appalling campaign to exploit and politicize the horrific Pittsburgh synagogue shooting by blaming it on Trump.  Yes, Trump is a bumptious bully, and an epic trash-talker.  Like classic needlers in sports, he has the knack for identifying someone’s vulnerability and sensitivity and drilling into it relentlessly, and causing the target to lose their concentration, and often their minds.  (You know what I mean, right, Liz?)

But in fact, this behavior is very personalized–which is what makes it effective–and not bigotry–which by definition is not individualized.  And the claim of anti-semitism is particularly outrageous.  Trump is the first president with Jewish grandchildren.  Indeed, when they are not shrieking about Trump’s anti-semitism, the left is having conniptions about the outsized influence of the Jewish father of those children, Jared Kushner.  Hell, Bloomberg even has a “journalist” assigned full time to investigate the Kushners.  (Said “journalist” is the uber-twat/smear specialist David Kocieniewski.  I guess I should feel honored that the twat went after me before turning his malign attentions to the Kushners.)  Trump’s support for Israel is unprecedented in American history.  Strange manifestation of anti-semitism, that.

Further, the causal connection between political rhetoric and the acts of the deranged is asserted, but never proved: indeed, the hypothesis is never actually tested.  It is yet more intellectual dishonesty and intellectual laziness: a particularly sloppy application of post hoc ergo propter hoc “reasoning” to political speech and criminal acts.  What’s more, the “reasoning” is never applied symmetrically: the far more blatant and direct calls to direct action, including violence, by leftist politicians is never blamed.

This reflects systematic attacks on free speech generally.  And mark my words: the more you suppress speech, the more likely dissent will be expressed through violence.

Ralph Waldo Emerson penned those lines in a letter to Oliver Wendell Holmes more than 150 years ago: in the last 27 months, a latter day sultan, Recep Tayyip Erdogan, has put them into practice.  In the aftermath of the July, 2016 coup that failed to topple him, Erdogan has ruthlessly cracked down on anyone he or his minions even suspected were involved in, or even supported, the coup.  The military and civil service have been purged, and Turkey lives in fear.  Anyone with the even remote ties to the Gulenists whom Erdogan believes were behind the coup is at risk of losing his/her job, and even his/her liberty.  People struck at Erdogan, failed to kill him, and he is taking his revenge.

Today, Erdogan is taking advantage of the Khashoggi killing to strike at a monarch–in this case, an actual monarch, Crown Prince Mohammed bin Salman (and by extension, his father, King Salman).  One wonders if Erdogan is paying proper heed to Emerson’s warning, or whether he is merely an arrogant chancer who is failing to recognize that MBS will respond as ruthlessly to an existential threat as Erdogan did to his own.

Erdogan imagines himself the leader of world Islam, and views this as his chance to strike at his main rival for that distinction.  Indeed, MBS (or his creatures) committed a blunder by killing Khashoggi, and on Turkish soil no less.  But despite this blunder, Erdogan’s success is far from certain.

Turkey is only months past a near collapse of its currency, and its economy: only a climb down in the Brunson conflict with the US bought Erdogan some breathing room. (At the cost of considerable ridicule within Turkey, I might add, given Erdogan’s boasts that he would NEVER let the American pastor go.)  But the fundamentals that led to the crisis over the summer–not merely huge debts, unfavorable foreign balances, and most notably, Erdogan’s impetuosity, arrogance, and economic idiocy–remain.  Turkey is still divided.  Although Erdogan won an election that effectively granted him an imperial presidency, it was by a narrow margin.  Turkey’s position in Syria is problematic.  And crucially, its relationship with the US is still fraught.

If Erdogan truly tries to go so far as to threaten MBS’s and King Salman’s preeminent position in Saudi Arabia, MBS will have no compunction about responding in kind.  And they have weapons at their disposal.  No not military–there is no common frontier, and regardless, the Saudis have proven themselves to be militarily inept (something KSA shares with most Arab militaries).  But economic?–Definitely.  It is well within Saudi capability to launch a speculative attack on the lira.  And the KSA has other financial weapons it can wield.

Indeed, the Khashoggi affair shows how ruthless the Saudis can be when confronted by even a rather trivial challenge.  Think of how they will respond if they really feel threatened.   Turkey’s currency and economy are an Achilles Heel that they could readily strike.

Further, the United States could squash Turkey financially like an overripe grape.  Even modest US measures, like tariffs on Turkish metal imports into the US, greatly exacerbated the swoon in the TRY–think of what would happen if Trump really put his mind to it.  This is not something that the US would want to do, given that Turkey is a Nato member, and has some strategic value to the US.  But KSA has strategic value too, arguably greater than Turkey’s, and if Erdogan overplays his hand with Saudi Arabia, and/or continues to be a pain on issues like the US support for Syrian Kurdish forces, Trump could bring a world of hurt onto Turkey and Erdogan.

So Erdogan must tread very carefully indeed, and keep Emerson’s injunction in mind.  And what are his odds of knocking off MBS, or even damaging him all that severely?  Not great, given the nature of the Saudi regime, MBS’s obvious willingness to use all measures necessary against internal opponents (who can disappear with far less attention than Khashoggi did in Istanbul), and its economic and geopolitical leverage.

But one should never underestimate Erdogan’s arrogance.  Given this arrogance, it is quite possible that he will ignore Emerson, overplay his hand, and be the ultimate loser in this Game of Thrones.

An email from a legal academic in response to yesterday’s post spurred a few additional thoughts re spoofing.

One of my theories of spoofing is that is a way to improve one’s position in the queue at the best bid or offer.  Why does one stand in a queue?  Why does one want to be closer to the front?

Simple: because there is a rent there to capture.  Where does the rent come from?  When what you are queuing for is underpriced, likely due to some price control.  Think of gas lines, or queues for sausage in the USSR.

In market making, the rent exists because the benefit from executing at the bid or offer exceeds the cost.  The cost arises from (a) adverse selection costs, and (b) inventory cost/risk and other costs of participation.  What is the source of the price control?: the tick size.

Exchanges set a minimum price increment–the “tick.”  When the tick size exceeds the costs of making a market, there is a rent.  This makes it beneficial to increase the probability of execution of an at-the-market limit order, i.e., if the tick size exceeds the cost of executing a passive order, it pays to game to move up in the queue.  Spoofing is one way of gaming.

This has a variety of implications.

One implication is in the cross section: spoofing should be more prevalent, when the non-adverse selection component of the spread (which is measured by temporary price movements in response to trades) is large.  Relatedly, this implies that spoofing should be more likely, the more negatively autocorrelated are transaction prices, i.e., the bigger the bid-ask bounce.

Another implication is in the time series.  Adverse selection costs can vary over time.  Spoofing should be more prevalent during periods when adverse selection costs are low.  These should also be periods of unusually large negative autocorrelations in transaction prices.

Another implication is that if you want to reduce spoofing  . . .  reduce the tick size.  Given what I just discussed, tick size reductions should be focused on instruments with a bigger bid/ask bounce/larger non-adverse selection driven spread component.

That is, why police the markets and throw people in jail?  Mitigate the problem by reducing the incentive to commit the offense.

This story also has implications for the political economy of spoofing prosecution (which was the main thrust of the email I received).  HFT/algo traders who desire to capture the rent created by a tick>adverse selection cost should complain the loudest about spoofing–and are most likely to drop the dime on spoofers.  Casual empiricism supports at least the first of these predictions.

That is, as my correspondent suggested to me, not only are spoofing prosecutions driven by ambitious prosecutors looking for easy and unsympathetic targets, they generate political support from potentially politically influential firms.

One way to test this theory would be to cut tick sizes–and see who squeals the loudest.  Three guesses as to whom this might be, and the first two don’t count.

The Khashoggi affair reminds me of what was said about Napoleon’s murder of the Duc d’Enghien: “It was worse than a crime.  It was a blunder.”  As with the d’Enghien murder, the (likely) murder of Khashoggi has made the perpetrator a monster in the eyes of the world.

That said, some things should be kept in mind.

First, the sole source of reports on what happened is Turkey–and mostly via leaks, rather than official announcements.  There are lurid tales, allegedly based on recordings–but no recordings have been produced.

And Turkey is hardly a disinterested party here.  Instead, it is a major player in the Game of Thrones that is Middle Eastern politics.  In this game, Turkey is allied with Qatar.  Further, Turkey owes Qatar major favors: in August, at the height of the panic in the Turkish Lira, Qatar announced it would invest $15 billion in Turkey.  Qatar, of course, is involved in a death match with Saudi Arabia, and has been for some years: KSA and other Arab states are currently blockading Qatar.  Turkey’s president Erdogan is a supporter of the Muslim Brotherhood (having at times flashed the Brotherhood’s hand signal, like some gangbanger), and Qatar is the Brotherhood’s biggest supporter: the current regime in KSA is a sworn enemy of the Brotherhood, and the Brotherhood is bent on the regime’s overthrow.

Also remember that Turkey is at odds with the US; is a notorious persecutor of journalists (a fact that has gone strangely unremarked); and exceedingly duplicitous.

Second, ignore all of the portrayals of Khashoggi as some sort of crusading reformer, and brave journalist.  To say his past is sordid and discreditable is an understatement.  He is a longtime Islamist who cavorted with Bin Laden.  He was press secretary for Turki al Faisal, former head of intelligence in the KSA (before resigning 10 days prior to 9/11), and one of the most sinister figures in a very sinister regime.

Third, it is wrong to think of Saudi Arabia as being ruled by a monolithic regime.  The sprawling royal family is split into at least four major factions (each with its own sub-factions) that are fighting beneath the carpets.  The crown prince has been waging a war against those factions that are opposed to him.  Khashoggi was almost certainly a participant in that war, and given his background, he was likely associated with the factions that were connected to (and maybe more than just connected to) the elements in the Kingdom that have supported jihadis in their war against the US, including those who carried out 9/11.  I have no doubt that his private actions are starkly at odds with his recent public persona.

Fourth, everyone in power in the Middle East sucks.  Every. Single. One.  There are no angels.  Only demons.  The Khashoggi affair is the result of the wars between these demons.  Some of the conflicts are international: Iran v. KSA; Qatar vs. KSA. Some are internal to KSA.  And these external and internal conflicts feed on one another.

Alas, the US has to pick its way through this snake pit, and determine which vipers best advance American interests.  For years, the viper of choice has been the KSA, and it’s hard to see how that can change now.  Put differently, there is no regime in the ME that does NOT torture and murder opponents.  None.  The purported details of the Khashoggi murder are lurid indeed, but they are likely the exception only in that we’ve heard about them.  Given that there are no non-murderous, non-torturing regimes on offer, the US has to make strategic decisions based on ruthless calculations of interest.

Fifth, and relatedly, it is annoying beyond belief to see the repeated reenactments of Claude Rains’/Captain Renault’s “Shocked! Shocked!” routine played out in response to these events.  Where have these people been since, oh, I don’t know, forever?  It should also be noted that many of the latter day Captain Renaults are just as disingenuous as he was in Casablanca: many are ex-Obama officials, or supporters of the Iran deal, who view this as an opportunity to undermine Trump administration policy.  Indeed, one of the blunders that KSA has committed is to make this possible.

To sum up, although what allegedly transpired in Istanbul could change everything, it in fact represents a grim continuity and the perverse “normality” of the Middle East.  It would be nice if that wasn’t the case, but it is.  Which is why the region is a perpetual running sore on the global body politic.

One last note.  Napoleon survived the international reaction to the judicial murder of d’Enghien.  Of course, militarily he was stronger than Mohammed bin Salman, but the historical analogy shows that international outrage does not necessarily translate into political or geopolitical defeat.  Indeed, the murder of d’Enghien arguably tamped down domestic opposition to Napoleon, and he used the assassination plots that allegedly involved d’Enghien to justify his becoming emperor.  Don’t be surprised if something similar happens within Saudi Arabia.

My eyes popped out when I read this statement regarding the DOJ’s recent criminal indictment (which resulted in some guilty pleas) for spoofing in the S&P 500 futures market:

Market participants that traded futures contracts in these three markets while the spoof orders distorted market prices incurred market losses of over $60 million.

$60 million in market losses–big number! For spoofing! How did they come up with that?

The answer is embarrassing, and actually rather disgusting.

The DOJ simply calculated the notional value of the contracts that were traded pursuant to the alleged spoofing scheme.  They took the S&P 500 futures price (e.g., 1804.50), multiplied that by the dollar value of a price point ($50), and multiplied that by the “approximate number of fraudulent orders placed” (e.g., 400).

So the defendants traded futures contracts with a notional value of approximately $60+ million.  For the DOJ to say that anyone “incurred market losses of over $60 million” based on this calculation is complete and utter bollocks.  Indeed, if someone touted that their trading system earned market profits of $60 million based on such a calculation in order to get business from the gullible, I daresay the DOJ and SEC would prosecute them for fraud.

This exaggeration is of a piece with the Sarao indictment, which claimed that his spoofing caused the Flash Crash.

And of course the financial press credulously regurgitated the number the DOJ put out.

I know why DOJ does this–it makes the crime look big and important, and likely matters in sentencing.  But quite frankly, it is a lie to claim that this number accurately represents in any way, shape, or form the economic harm caused by spoofing.

This gets to the entire issue of who is damaged by spoofing, and how.  Does spoofing induce someone to cross the spread and incur the bid/ask, who would otherwise not have entered an aggressive order?  Does it cause someone to cancel a limit order, and therefore lose the opportunity to trade against an aggressive order and thereby earn the spread (the realized spread, not the quoted spread, in order to account for losses to better-informed traders)?

Those are realistic theories of harm, and they imply that the economic harm per contract is on the order of a tick in a liquid market like the ES.  That is, per contract executed as a result of the spoof, the damage is .25 (the tick size) times $50 (the value of an S&P point).  That is, a whopping $12.50.  So, pace the DOJ, the ~800 “fraudulent orders placed caused economic harm of about 10,000 bucks, not 60 mil.  Maybe $20,000, under the theory that in a particular spoof, someone lost from crossing the spread, and someone else lost out on the opportunity to earn the spread.  (Though interestingly, from a social perspective, that is a transfer not a true loss.)

But $10,000 or $20,000 looks rather pathetic, compared to say $60 million, doesn’t it?  What’s three orders of magnitude between friends, eh?

Yes, maybe the DOJ just included a few episodes in the indictment, because that is sufficient for a criminal prosecution and conviction.  But even a lot more of such episodes does not add up to a lot of money.

This is precisely why I find the expenditure of substantial resources to prosecute spoofing to be so dubious.  There is other financial market wrongdoing that is far more harmful, which often escapes prosecution.  Furthermore, efficient punishment should be sized to the harm.  People pay huge fines, and go to jail–for years–for spoofing.  That punishment is hugely disproportionate to the loss, under the theory of harm that I advance here.  So spoofing is over-deterred.

Perhaps there are other theories of harm that justify the severe punishments for spoofing.  If so, I’d like to hear them–I haven’t yet.

These spoofing prosecutions appear to be a case of the drunk looking for his wallet (or a scalp) under the lamppost, because the light is better there.  In the electronic trading era, spoofing is possible–and relatively cheap to detect ex post.  So just trawl through the trading data for evidence of spoofing, and voila!–a criminal prosecution is likely to appear.  A lot easier than prosecuting market power manipulations that can cause nine and ten figure market losses.  (For an example of the DOJ’s haplessness in a prosecution of that kind of case, see US v. Radley.)

Spoofing is the kind of activity that is well within the competence of exchanges to detect and punish using their ordinary disciplinary procedures.  There’s no need to make a federal case out of it–literally.

The time should fit the crime.  The Department of Justice wildly exaggerates the crime of spoofing in order to rationalize the time.  This is inefficient, and well, just plain unjust.