Streetwise Professor

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.

Elizabeth Warren’s DNA test showing that she is infinitesimally Indian has supposedly put her in the pole position for the Democratic presidential nomination.  Well, that might be true, actually, for the whole episode shows that she’s a raving loon, which is a prerequisite for an aspiring Democrat these days.

The test results allegedly show “strong evidence” of Amerind heritage.  What they actually show is strong evidence of a trivial connection: that is, she provided strong evidence of how farcical and exaggerated her previous claims were.

The Cherokee Nation’s response brings to mind the punchline to the old joke about the Lone Ranger and Tonto: “what you mean ‘we’, paleface?”:

“Using a DNA test to lay claim to any connection to the Cherokee Nation or any tribal nation, even vaguely, is inappropriate and wrong,” said Chuck Hoskin Jr., the tribe’s secretary of state.

“It makes a mockery out of DNA tests and its legitimate uses while also dishonoring legitimate tribal governments and their citizens, whose ancestors are well documented and whose heritage is proven.”

. . . .

“A DNA test is useless to determine tribal citizenship,” Hoskin said in the statement Monday, which was released by the tribe. “Current DNA tests do not even distinguish whether a person’s ancestors were indigenous to North or South America.

“Sovereign tribal nations set their own legal requirements for citizenship, and while DNA tests can be used to determine lineage, such as paternity to an individual, it is not evidence for tribal affiliation.”

This is particularly important because Warren did not just claim some non-specific Native American heritage: she expressly identified herself as Cherokee.  On multiple occasions.  Actual Cherokees say “don’t bring that mess in here.”

Warren clearly believes this test provides vindication.  In fact, it makes her a laughingstock.  The test itself is dubious, on multiple grounds.  The connection is six to ten generations in the past: to put in context, my ancestor a mere seven generations back, incidentally the last white man killed by an Indian in Washington County, Ohio, was tomahawked in . . . 1794.  (Perhaps I should sue for a hate crime violation. Has the statute of limitations elapsed?) Further, as alluded to in the Cherokee Nation statement, the genetic test inferred Warren’s ancestry, such as it is, from South American genes (Peruvian, Columbian) because North American Indian DNA samples are lacking (precisely because they are adamantly opposed to people–like, say, Elizabeth Warren?–using DNA test results to claim Indian heritage).  Moreover, the average American of European ancestry has as much or more Indian DNA as Warren.  Meaning that Liz is pretty much your average white person.  Only whiter.

Beyond the levity, there are serious issues here.  Warren used her claimed Native American heritage to advance her academic career.  She did so repeatedly, and with specificity–for instance, the story (ludicrous in light of the “strong evidence” Liz trumpeted today) that her mother’s appearance was so Indian that she had to elope due to the racism of her husband’s parents.  (But hey, Liz’s mom was twice as much Indian as Liz!)  At whose expense did she advance?

Further her story about her mother, she specifically claimed that mom was part Cherokee and Delaware.  Which would require two Indian ancestors–which her DNA test has ruled out.  The DNA test gives a “fail” to this story on another ground.  A Delaware-Cherokee union would have been possible, say, post-1860s, when the Delawares were moved to the Indian Territory from points east, and settled within Cherokee territories.  But Liz’s own DNA evidence puts her Indian ancestor no less than six generations back–roughly the end of the 18th century or early-19th century–and perhaps as far as 10 generations back–sometime early in the 18th century.  But at the later date the Delawares were in Ohio (fighting my ancestors!) and the Cherokees were in the Carolinas–not much of a chance of a tryst there.  At the later date, the Delawares were along, well, the Delaware River in New Jersey and New York, with some on Long Island, and the Cherokees were in the Carolinas.  Even less of a chance of a coupling.

But bah to such pesky details! Two prestigious universities–Penn and Harvard–touted her as a “person of color” to establish their diversity bona fides.   It is clear that both she and they did so shamelessly and self-interestedly in the complete absence of evidence.  Then there was an absence of evidence: now there is evidence of absence.

In other words, Elizabeth Warren is an opportunistic fraud, and Ivy League universities were accessories.

Which perhaps means that indeed, she is well-suited to be the Democratic front runner.

Run, Liz! Run! In your desperate search for validation, you just provided Trump with even more ammunition to ridicule you until the cows come home–if they ever do.* Meaning that you could be ridiculed for-evah.

*If you read the link regarding my ancestor Abel Sherman, you’ll learn that he was waylaid and scalped while searching for a wayward cow who had wandered off while Abel and his family were hunkered down in a fort at Olive Green (near the junction of the Ohio and Muskingum Rivers) to defend themselves against Indian raids. So sometimes the cows don’t come home.

To extend the riff, TV’s Tonto was portrayed by Jay Silverheels.  Abel Sherman was killed by a Shawnee named . . . Silverheels.  Whom I’m sure would have been far more likely to scalp Warren, then embrace her as a compatriot.

The latest media Trump freakout derives from his statement during a campaign rally in Ohio last week that Robert E. Lee was “a great general.”  Since every Confederate is beyond the pale 153 years after the end of the Civil War, any praise of any Confederate is deemed evidence of racism.

As we’ll see, that spare characterization of Trump’s remarks was grotesquely misleading.  But hit pause on that for a moment, and just consider the objective truth of the part of the statement that was reported.  (Does truth even matter any more?)  There is little doubt that Lee displayed excellent generalship and leadership at the operational level.  Some of his campaigns–Second Manassas and Chancellorsville in particular–are justifiably renowned as examples of a smaller force defeating a larger one through maneuver.  His defense during the Overland Campaign was also laudable. Other campaigns–notably Gettysburg–were less creditable: but no modern general (not even Napoleon pre-Waterloo) was uniformly successful in campaign or battle.  The main objections to his generalship were that his operational success was not achieved pursuant to a broader strategic vision, and relatedly, that his tactical methods produced casualties that the Confederacy could not afford.  (Indeed, the casualties at his greatest victory–Chancellorsville–cast some shade on the achievement.)

Further note that acknowledging that someone was a great general does not imply an endorsement of the cause for which he fought.  Were Manstein and Rommel great generals?  Yes–much to the world’s cost.  Similarly, Zhukov.  The greatest generals in world history–Alexander, Caesar, Genghis Khan, Tamerlane, Napoleon–drowned their worlds in blood in their pursuit of grandeur.  Alas, one of the tragedies of history is that generalship exhibits some correlation with the depravity of the cause in which it is employed.  (This raises interesting questions regarding causation.)

So even if Trump said only what was widely reported, the facts were on his side.  But what was reported was not all he said.  Here are his remarks in full:

But maybe someday he will. It also gave you a general, who was incredible. He drank a little bit too much. You know who I’m talking about, right? So Robert E. Lee was a great general. And Abraham Lincoln developed a phobia. He couldn’t beat Robert E. Lee. He was going crazy. I don’t know if you know this story. But Robert E. Lee was winning battle after battle after battle. And Abraham Lincoln came home, he said, “I can’t beat Robert E. Lee.”  And he had all of his generals, they looked great, they were the top of their class at West Point. They were the greatest people. There’s only one problem — they didn’t know how the hell to win. They didn’t know how to fight. They didn’t know how. And one day, it was looking really bad. And Lincoln just said, you — hardly knew his name — and they said, don’t take him. He’s got a drinking problem. And Lincoln said, I don’t care what problem he has, you guys aren’t winning. And his name was Grant. General Grant. And he went in and he knocked the hell out of everyone. And you know the story. They said to Lincoln, you can’t use him anymore. He’s an alcoholic. And Lincoln said, I don’t care if he’s an alcoholic. Frankly, give me six or seven more just like him. He started to win. Grant really did. He had a serious problem. Serious drinking problem. But, man, was he a good general. And he’s finally being recognized as a great general. But Lincoln had almost developed a phobia, because he was having a hard time with a true great fighter and a great general, Robert E. Lee. But Grant figured it out, and Grant is a great general, and Grant came from right here.

So in a campaign rally in Ohio, Trump was praising Ohioans–a staple of stump rhetoric.  One Ohioan he praised was Ulysses S. Grant.  In the process of praising Grant, he touted the generalship of Grant’s most famous foe–Robert E. Lee.  This wasn’t about Lee, except indirectly.

Trump employed a standard rhetorical technique: he enhanced the achievements of the person he was praising by emphasizing the personal obstacles he had overcome (in Grant’s case, alcohol) and the brilliance and strength of the enemies that he vanquished (here, Lee).  Would David have become a legendary figure had he felled Irving, the Philistine Dwarf, instead of Goliath, the Philistine Giant?  Er, obviously not.  Nor would Grant have been as famous if he had vanquished Benjamin Huger or Leonidas Polk or any of the many non-entities that achieved general rank in the Confederacy.  (Indeed, one reason to question Lee’s brilliance is that his victories were won against a parade of incompetents.)  But beating Lee is a true accomplishment.

But the media ignored this in its haste to find another charge to add to the Trump indictment, and to further the narrative that he makes racist appeals to the Confederacy.   Indeed, some media couldn’t satisfy its frenzy by stopping merely at ripping a sentence fragment out of context: NBC falsely enhanced the narrative by claiming that Trump had said that Lee was “incredible.”   Actually, that is a classic case of projection: It is NBC, and the rest of the media that ran with the “Lee is great” meme that lacks credibility.

Yet they whine when he blasts them for spreading “fake news.”  Here’s a thought: if you don’t want Trump to accuse you of spreading false news, don’t spread false news!

If there’s anything objectionable in Trump’s remark, it is the first part of that rhetorical technique: Trump arguably exaggerated seriously Grant’s alcohol problem, at least as of the time of the Civil War.  There is still much debate over whether and when and how much Grant consumed alcohol.  Many of the reports of his abuse of liquor were insinuations by nasty backbiters (e.g., Henry Hallack) that exploited the reputation Grant developed in the 1850s while marooned at Fort Humboldt in California.  There is no credible report that he was impaired at any time in the conduct of his duties 1861-1865.

And as Lincoln said when those backbiters criticized Grant: “I wish some of you would tell me the brand of whiskey that Grant drinks. I would like to send a barrel of it to my other generals.”  For Grant carried out one, and arguably two, of the greatest campaigns of maneuver in the Civil War.  The Vicksburg campaign, in fact, is one of the most brilliant campaigns in modern military history anywhere.  The crossing of the James in June, 1864 was also operationally brilliant, though barren of results due to the blundering of the generals in charge of carrying the attacks at Petersburg home–and arguably due as well to the exhaustion and casualties and loss of aggressiveness brought on by the relentless grinding of the Overland Campaign of the prior 5 weeks.

Further, Grant excelled Lee in that his operational successes all advanced broader strategic goals.  By March, 1864 Grant had responsibility for Northern grand strategy, and seized the opportunity with a relish, whereas Lee invariably avoided this responsibility.  Although the frictions of war–notably the incompetence of Franz Sigel, Benjamin Butler, and Nathaniel Banks–prevented the immediate consummation of Grant’s strategic vision, its breadth and flexibility eventually led to its success.  (There is some similarity between the fate of Grant’s strategic plan and his grand tactical scheme at Chattanooga in November, 1863.  Neither scheme worked according to plan, but since neither was dependent on the success of any single element, the failure of one or two aspects of the plans did not preclude their ultimate success.)

This sorry episode illustrates yet again what should by now be obvious.  If the media reports anything about Trump, modify Reagan’s famous remark about the USSR: don’t trust, but verify.

If you want evidence of the malignancy that has invaded the body politic, look no further than this appalling NYT oped, in which one Alexis Grennell accuses any woman who supported the Kavanaugh nomination, or who doubted his accusers–no matter how absurd–as traitors to their sex:

After a confirmation process where women all but slit their wrists, letting their stories of sexual trauma run like rivers of blood through the Capitol, the Senate still voted to confirm Judge Brett M. Kavanaugh to the Supreme Court. With the exception of Senator Lisa Murkowski of Alaska, all the women in the Republican conference caved, including Senator Susan Collins of Maine, who held out until the bitter end.

These women are gender traitors, to borrow a term from the dystopian TV series “The Handmaid’s Tale.” They’ve made standing by the patriarchy a full-time job. The women who support them show up at the Capitol wearing “Women for Kavanaugh” T-shirts, but also probably tell their daughters to put on less revealing clothes when they go out.

To start with: “stories of sexual trauma.”  They were, at most, stories, a word that is frequently used to describe works of fiction, with nothing in the way of corroboration, let alone anything approaching what could be called evidence.  Indeed, some of the stories were palpable falsehoods.

But let us continue:

But the people who scare me the most are the mothers, sisters and wives of those young men, because my stupid uterus still holds out some insane hope of solidarity.

We’re talking about white women. The same 53 percent who put their racial privilege ahead of their second-class gender status in 2016 by voting to uphold a system that values only their whiteness, just as they have for decades. Since 1952, white women have broken for Democratic presidential candidates only twice: in the 1964 and 1996 elections, according to an analysis by Jane Junn, a political scientist at the University of Southern California.

Note to Alexis: Uteruses have no neurons, so yes, they are pretty stupid.  And for you to suggest that is the body part that should exclusively drive your decisions (and those of others so endowed) is as ridiculous as suggesting any man should follow the lead of his johnson, and will probably work out just about as well. (Aside: where do transgenders sans uterus fit into this? Transgenders with a uterus? I’m genuinely curious.)  (Further note to Ms. Grennell: if you advocate thinking with your uterus, men will naturally and inevitably respond by thinking with their johnsons.  How do you think that will work out, for women in particular?)

Insofar as being handmaids to the patriarchy simply because of their race is concerned, just who is the stereotyping bigot here?  Just who is damning and demeaning vast swathes of women, merely because they have the temerity to vote differently or have different political opinions that the oh-so-superior Ms. Grennell.  (Is “Ms.” still OK?  Or have it transgressed again?!? It’s so hard to keep up–which is kind of the point, because a la 1984 acceptable terminology changes arbitrarily as a test to see who is hewing slavishly to the party line.)  This is not about respecting women, or honoring women: it is about enforcing a smelly orthodoxy and demonizing anyone who dares dissent.

Ms. [or whatever] Grennell is so over such trivialities as due process:

Meanwhile, Senator Collins subjected us to a slow funeral dirge about due process and some other nonsense I couldn’t even hear through my rage headache as she announced on Friday she would vote to confirm Judge Kavanaugh. Her mostly male colleagues applauded her.

Due process?  We don’t need to show you no stinkin’ due process.  Cultural revolutions don’t need no due process.  Or freedom of speech, or presumptions of innocence, or any other procedural obstacles that slow the path to the gulag for those who have committed thought crimes.

I don’t want to belabor the Kavanaugh hearings, because most of what needs to be said has been said.  I will close with one thing that strikes me whenever these sorts of melodramas are played out–which is all too frequently, of late.

That thing is cognitive dissonance brought on by clashing narratives.  The one narrative is that women are physically capable of handling any task that men can.  They can be firefighters, or Army Rangers, or Marine squad leaders, or SEALs for that matter.  They are physically tough and emotionally strong.  The alternative narrative is that women are constantly brutalized by men, which implies (that since someone has poor odds of brutalizing an equal) that women are not the physical equals of men.  Well, both of these things cannot be true simultaneously: yet the same people routinely argue both with intense vehemence, and in particular claim that those who deny the first narrative are hopeless sexists, and those who deny the latter are rape enablers.

Damned if you do, damned if you don’t.

The latter narrative relates to another n-th (I can’t keep up) wave feminist tactic (which is also employed by all identity politics grievance mongers): women are powerless victims of some vast social force (usually described using Grennell’s term “patriarchy”).  This is actually a rather canny judo move that uses an assertion of powerlessness to achieve power.  It exploits empathy, and effectively manipulates those who do not dare (either out of cowardice, or the fear of loss of job or social standing) risk obloquy for being so heartless as to trammel the weak.

Ironically, and perversely, this tactic is employed more frequently, more ruthlessly, and more effectively, as the objective evidence in support gets weaker and weaker.  In the United States, female educational attainment is outstripping men’s.  Moreover, controlling for relevant variables, including crucially endogenous educational, career, and life choices that just may reflect distinctly distaff preferences and attributes (including, notably, the possession of a uterus, which should be determinative, according to Ms. Grennell) female incomes are comparable to men.

Yes, women are less likely to be in right-tail jobs with right-tail incomes.  But they are also far less likely to be in the left-tail, without a job and socially marginalized, if not socially detached altogether.  But to suggest a possible explanation for this–that men are higher variance/more leptokurtotic than women–is to bring the furies down on your head, as discovered recently by a CERN researcher who lost his job for expressing this heresy.

An illustration of the clash between the victim narrative and reality came to mind the other day when I saw some UN agitprop that put great importance on the claim that women represent a majority of the poor in the world.

Well of course they do.  Because male mortality is greater, especially among the poor.  Indeed, one major contributor to the poverty of women, especially in developing nations, is that their poor husbands and fathers have snuffed it.

In other words, a factoid meant to emphasize the plight of women is in reality a testament to the rather dismal life prospects of poor men.

Social outcomes are complex. The reductionist explanations du jour–class, once upon a time, “patriarchy” today–are therefore always ridiculous when evaluated using facts and reason: which is precisely why facts and (especially) reason are under relentless assault from the left.   This would be a matter of little consequence were it restricted to the more idiotic corners of academia.  Alas, as Ms. Grennell’s jeremiad on the august pages of the NYT demonstrates, the views of the academic fever swamps infuse politics and drive the Democratic Party.  Meaning that the Battle of Brett (oh, for the innocent days of pine tar!) is merely just one struggle in a long, long war.

A white woman named Amy Barrett is supposedly the front-runner for Trump’s next Supreme Court pick (narrowly losing out this time).  Can you imagine the paroxysms of fury from Ms. Grennell and her like if that does come to pass, and the next candidate for associate justice is not just supported by female Quislings in thrall to the patriarchy, but is one?

The next few days are the centennial of some of the bloodiest fighting in the history of the American army.  The Lost Battalion underwent its horrific ordeal 2-8 October, 1918.  On 8 October, one of the 82nd Division soldiers who attacked in the desperate effort to rescue Major Whittlesey and his men–Corporal Alvin York–killed an estimated 25 Germans and captured 132 more.  On 7 October, John Barkley clambered into an abandoned tank and used its machine gun to beat back several German counterattacks.  On 12 October, Samuel Woodfill took out several German machine gun nests with expert marksmanship, and out of ammunition, dispatched two Germans with a pickaxe.

All of these men (two from the Lost Battalion) won the Medal of Honor.  I could go on.  Forty-three American soldiers won the MoH in action in the first two weeks of October, 1918.

If you read the medal citations, you will find that most of them were for single-handed attacks on German machine gun positions.  Yes, machine guns were major killers on the Western Front, but the Meuse-Argonne was different than say, the Somme, or the Chemin de Dames, where Allied armies attacked established trench lines in fairly open terrain.  Instead of extensive linear trench lines, the German positions in the Argonne Forest and the more open terrain to the east consisted of a dense thicket of machine gun nests.  The terrain was appalling.  Much of it was heavily wooded, cut by dense ravines.   The Americans had to crawl their way through it, yard-by-yard, taking out nest after nest, all the while subject not just to the fire from chattering Maxim guns, but to horrific shelling of high explosive, shrapnel, and gas from German guns posted on the high ground to the north and east.

Most of the American units in the initial waves had not been blooded before.  For instance, the 77th Division (in which the Lost Battalion served) and the 82nd Division (York’s) were rookies.  They had to learn the hard way, through bitter experience against an experienced foe fighting from prepared positions.

The inexperience showed initial phases of the  American assault.  Although the pivot that the 1st Army made from its attack on the St. Mihiel salient to the east to the Meuse-Argonne sector to the north and west was truly marvelous–and under-appreciated–the attack itself was beset by all of the problems of World War I offensive action, compounded by American greenness and a stubborn refusal to learn from bitter British and French experience.  American artillery support was inadequate.  The logistics–admittedly made difficult enough to start with by the wretched state of the roads–were botched.  American tactics, inspired by General Pershing’s belief in “open warfare” and the primacy of the offensive (heedless of the horrific fate of the French operating on the same beliefs in 1915 and 1917) were suicidal.

Yet the Americans learned quickly–by necessity.  It was adapt, or die.  Adaptation, combined with an almost preternatural self-confidence and aggressive spirit, ultimately prevailed.

Even as early at the battles of late-May/early-July 1918 (Chateau Thierry, Belleau Wood, Soissons) the Germans were taken aback by the aggressiveness of the Americans in the offense and their stubbornness in the defense.  “The Americans kill everything” wrote a shocked German grenadier.  “They showed a bestial brutality.”

Yes, tens-of-thousands of Americans leaked to the rear during Meuse-Argonne, but hundreds of thousands stuck it out–often sticking their bayonets in German bellies, as if to confirm the grenadier’s assessment.

World War I was a ghastly combination of inept leadership (often overwhelmed by the mismatch between the defense and offense) and individual courage.  Though the US army came late to the war, its experience from 26 September-11 November 2018 re-enacted this same combination.   And in the end, the incredible bravery and tenacity of the American soldier–farm boys and cowboys and immigrant slum dwellers alike–prevailed, and dealt the Germans body blows from which they reeled, and in the end, from which they could not recover.

But today, the centennial is passing almost completely unnoticed.  Where else but here are you reading about it?

In the aftermath of the war, the federal government, and many state governments, erected large monuments commemorating American service in the war.  Although the remains of most of the tens-of-thousands slain in the Meuse-Argonne were brought home, many thousands more were interred in large cemeteries,  most notably the Aisne-Marne Cemetery to the west of Rheims, and the Romagne Cemetery to the east.  The monuments are truly epic in scale–the US erected nothing comparable in the aftermath of WWII.  The cemeteries are immense–Romagne is larger than the cemetery at Omaha Beach.

Yet these places are almost forgotten and unvisited today.*  Located in an isolated pocket of France, commemorating a war that is largely outside of the consciousness of modern Americans (for whom even WWII is a vague memory), few Americans see them, either on purpose or by accident.

The isolation and loneliness makes them truly haunting places.  I visited the Argonne battlefields with my dad in June, 2010.  We were alone everywhere.  We seldom saw even a car on the road as we wound our way across the Argonne, from the ravine to where the Lost Battalion bled to Chatel-Chéhéry where Alvin York started his advance to Montfaucon and Romagne where the Americans clawed for yards day after day, to the Heights of the Meuse from where German guns ruthlessly pounded the Americans.  The monuments and cemeteries were inhabited only by the ghosts.

In many ways, America came of age in the Meuse-Argonne, but today those who fought in that epic battle are not just forgotten–they have never even been known by most Americans.  So please, take a moment in these October days to remember, and pay tribute to, men who do not deserve the oblivion to which an easily distracted nation has consigned them.

*But fortunately, not abandoned.  The American Battle Monuments Commission has done a marvelous job  of maintaining and preserving these testaments to the bravery of American soldiers.