Diatribes of Jay

This blog has essays on public policy. It shuns ideology and applies facts, logic and math to social problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear.

29 January 2019

Why the Huawei Indictment is a Big, Big Deal


[For how Speaker Pelosi has become a new sheriff in town, click here. For how Trump’s misrule could kill your kids, click here. For comment on MLK Day 2019 and the structural legacies of slavery, click here. For reasons why the partial government shutdown helps Dems the longer it lasts, click here. For a discussion of how our national openness hurts us and what we really need from China, click here. For a brief explanation of how badly both Trump and his opposition are failing at “the art of the deal,” click here. For a deep dive into how Apple tries to thwart Google’s capture of the web-browser market, click here. For a review of Speaker Pelosi’s superb qualifications to lead the Democratic Party, click here. For reasons why natural-gas and electric cars are essential to national security, click here. For additional reasons, click here. For the source of Facebook’s discontents and how to save democracy from it, click here. For Democrats’ core values, click here. The Last Adult is Leaving the White House. Who will Shut Off the Lights? For how our two parties lost their souls, click here. For the dire portent of Putin’s high-fiving the Saudi Crown Prince, click here. For updated advice on how to drive on the Sun’s power alone, or without fossil fuels, click here. For a 2018 Thanksgiving Message, click here. For a list of links to recent posts in reverse chronological order, click here.]

Imagine Elon Musk being detained in China on criminal charges while visiting his Tesla factory there. Industrialists and entrepreneurs are not celebrities in China, as most everybody important (including our current president) is here. But the cultural and shock impact of Musk’s hypothetical arrest in China would be roughly similar to the impact on China’s cognoscenti of the arrest in Canada, at the US’ request, of Meng Wanzhou.

Meng is the CFO of Huawei, the Chinese telecommunications giant that is challenging US firms like Cisco, Qualcomm and Broadcom (now owned by Avago) for dominance of the nascent, global 5G cellphone-telecomm market. She is also the daughter of Ren Fengshei, Huawei’s founder, who’s a former People’s Liberation Army officer and a suspected Chinese intelligence operative. Yesterday, our Justice Department unsealed indictments of Meng and Huawei for stealing trade secrets, obstructing a criminal investigation and evading economic sanctions on Iran. A redacted part of the indictment may also have named Ren.

Why is this all such a big deal? The answer is simple. For now and for the foreseeable future, China and the United States are and will be the top national dogs on this planet. China has four times as many people but still lags a bit in economic, political and military power. But the two are roughly equivalent powers seeking global influence, if not hegemony, in industry, commerce, politics and culture.

So for the foreseeable future, the two nations will be locked in a struggle for supremacy. The big question is whether that struggle will be governed by rules, or whether it will be a free-for-all with hostage taking, prisoner exchanges, rampant dirty tricks, and—in the worst case—assassinations or open war.

Every sentient being on this planet has a stake in whether there will be rules and what kind of rules they will be. Will it be a “game” with “civilized” rules forged by durable agreement? Or will it be a dog-eat-dog struggle in which every individual participant’s life, fortune and family are ever at risk?

Will we repeat the Middle Ages, with their hostages, dungeons, torture and betrayals, but with more modern, vastly more effective technology of destruction, albeit also with cleaner toilets and better medicine to keep victims alive during torture? Or will we somehow manage to make rules for this vital and maybe deadly competition, so that individuals involved can live in relative peace and tranquility and “enjoy” the struggle as a civilized “game”? That’s what’s at stake in the Huawei case.

To highlight the importance of the choice, consider two true stories from history. In his famous treatise The Prince, Niccolò Machiavelli describes two instances in which an entire delegation of peace negotiators was slaughtered, to the man, under a premeditated plan of the other side in the “peace” talks.

The second story tells how the Mongols stopped this sort of thing. When the denizens of a fortified city killed the Mongol’s emissaries in acts of defiance, the Mongols used their fast horses and special tactics to draw out and slaughter the city’s defenders. Then they captured the city, slaughtered every single human being in it, and let it be known that any other city that killed their emissaries would suffer the same fate.

This is the gruesome origin of our current universal human custom of diplomatic immunity. It just took some time for the custom to travel from South Asia to Europe and thence to the US.

One hopes that it will not take this sort of slaughter—let alone with nuclear weapons—to reach some sort of useful consensus on rules among competing centers of power in the twenty-first century. Presumably our species has learned to predict better the likely consequences of different rules (or the lack thereof) on human behavior and to adhere to rules that shed less blood, for the mutual benefit of all concerned.

It’s worthwhile noting that China and the US each has its own internal rules. They agree roughly in trying to avoid mass slaughter. The problem is they don’t coincide in important detail.

Like the US, China doesn’t execute many people, including internal political dissidents. Bo Xilai, a brilliant demagogue who could have become China’s Donald Trump, sits safely in jail, but alive. The vast majority of “unruly” ethic dissidents, including Xingjiang’s Muslim Uighurs and the few remaining recalcitrant ethnic Tibetans, languish in prison; Beijing has reserved the death penalty for actual perpetrators of terrorism or murder. Just so, the United States is close to outlawing the death penalty (as already has Europe) for all but murder and terrorism. The West, at least, no longer hangs people for theft or robbery, as it did in Dickensian England.

So each power has its own rules, which have become somewhat more “civilized” since Machiavelli’s time. Problems arise when there are few or no enforceable rules for a situation that encompasses rival powers or their interests. In the South China Sea, for example, China cites its own “historical” claims, which the United Nations and major treaty bodies do not recognize. So China’s claims reduce to “might makes right,” a notion that precipitated our species’ most terrible war.

The Huawei case lies between these two extremes. The Chinese interests—China’s own scientific and technological development and its global economic expansion—are legitimate interests of any national power. Yet the means alleged in the indictment are legitimate subjects of US law: (1) theft of trade secrets from US companies inside the US; (2) interference with criminal investigations inside the US; and (3) working with US financial institutions inside the US to violate US and international sanctions on Iran.

The italicized phrases give the US unquestionable legal jurisdiction, in accordance with the universal principle of territoriality. But eliminate the phrases and the substance behind them and US jurisdiction becomes questionable, begging the question of what rules apply internationally and globally.

The intellectual property (IP) question is particularly fraught. Apart from software, to which copyright also applies, most industrial technology relies on one of two forms of IP protection: patents or trade secrets. The two forms of protection are mutually exclusive: patented technology cannot be protected as a trade secret, because a patent must disclose the technology it protects so that anyone of ordinary skill in the field can practice the technology merely by reading the patent after it expires. In contrast, trade secrets can last as long as secrecy does; they have no fixed expiration date.

Many US industrialists do not trust China’s patent system and so rely primarily on trade-secret protection of their technology, preferably inside the US. There is some real basis for this distrust. But at the end of the day, the effectiveness of China’s patent system is an open book. US firms can evaluate it by keeping statistics on how effective suits by US patent owners have been compared to those by Chinese and other foreign patent owners. One of the most important functions of our own government is keeping accurate tabs on this sort of thing.

Since China joined the WTO and international patent conventions, the effectiveness of China’s patent system has seen steady improvement. That sort of improvement has been a feature of technologically developing nations in general: domestic innovators begin to demand effective patent protection as real innovation becomes a more important feature of domestic technology. We have observed this phenomenon in practice in places like Japan, South Korea and Taiwan as their industries developed. In any event, failures of a domestic patent system are subject to diplomatic complaint and legal processes under various international agreements respecting patents.

Trade secrets are another story. Once a trade secret is out in public, it ceases to exist. If Company A steals a trade secret from Company B but keeps it secret, too, it becomes, de facto, the trade secret of both, insofar as concerns liability of third parties for its theft. Yet it’s very hard for Company B to recover its loss in terms of damages, for damages are hard to calculate or speculative, let alone for the loss of exclusive use. That’s one reason why the US is resorting to criminal prosecution in the Huawei case: to fire a shot across the bow of a gem of Chinese industry that is believed to use trade-secret theft as a standard tool of competition, and that is believed to be under the control of, or in cahoots with, the Chinese government.

The convictions of individuals like Meng and possibly Ren are matters of proof. What did they know and when did they know it? But China may view these indictments as unfair attempts to use important individuals as pawns or bargaining chips, just as we might if China captured Elon Musk. And if Huawei actually did steal a US secret in the US, but has sent it to China already, any US territorial remedy would be ineffective to secure a practical remedy because Huawei’s business is global.

So at least as concerns trade secrets—a form of protection that many advanced global businesses rely on when they lack trust in the global patent system—a viable system of protection still awaits good international rules with good enforcement mechanisms.

Similar considerations apply to the other two prongs of the released Huawei indictment. An attempt to protect US criminal process from inference by foreigners won’t work if the foreigners’ governments treat the criminal defendants as hostages taken by the US and so take hostages of their own in retaliation. Nor will enforcement of US or international economic sanctions work (on Iran or any other country) if the country (in this case China) alleged to be breaking them by violating another country’s domestic criminal law can simply circumvent the sanctions elsewhere, outside the country of prosecution (in this case the US). (We leave aside, in this essay, the additional issue of national security and possible “back doors” to the entire US telecommunications infrastructure, which yesterday’s indictment didn’t directly address.)

What US business needs to level the playing field is a better, more effective global regime of rules. That’s a matter of diplomacy, not criminal prosecution.

Even under Tillerson as Secretary of State, that sort of diplomacy was woefully inadequate, in part because he was glacially slow in filling the hundreds of State-Department positions from which non-political experts do this sort of work. Beset with crisis after crisis, including gratuitous trade wars and presidential gaffes, Secretary Pompeo also has not filled those positions or given priority to this work.

The American business community, which depends for global influence on his doing so, ought be clamoring for Pompeo to get this work done, and for our Narcissist in Chief to be impeached and removed so that this work can receive the priority that its importance deserves. This is just one of many ways in which a president who negotiates by chaos, doesn’t read his briefing papers, and seeks only ego-feeding, big showpieces is slowly, inexorably destroying the commercial international order and opening us all to unfathomable future risk.

Footnote 1: For the basic facts of the indictment, Huawei, Meng and Ren, see New York Times (Tue., Jan. 19. 2019) at A1.

Footnote 2: Patent applicants sometimes play games by hiding so-called “auxiliary” technology, i.e., not disclosing it in the patent. That technology might involve secret means for making a part or assembling a whole machine, or for optimizing a process. The natural response of sophisticated tribunals to these ploys is to restrict the patent’s coverage to the technology actually disclosed, or sometimes to invalidate a patent as violating the requirement that it disclose the best mode of practicing the invention.

Footnote 3: A comment to the Uniform [among US states] Trade Secrets Act gives only the co-owner suffering theft or misappropriation, and not the other co-owner, the right to sue for it. This rules keeps litigation involving third-party thieves separate from that involving the theft that created the co-ownership.

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24 January 2019

How Trump could Kill Your Kids


[For comment on MLK Day 2019 and the structural legacies of slavery, click here. For reasons why the partial government shutdown helps Dems the longer it lasts, click here. For a discussion of how our national openness hurts us and what we really need from China, click here. For a brief explanation of how badly both Trump and his opposition are failing at “the art of the deal,” click here. For a deep dive into how Apple tries to thwart Google’s capture of the web-browser market, click here. For a review of Speaker Pelosi’s superb qualifications to lead the Democratic Party, click here. For reasons why natural-gas and electric cars are essential to national security, click here. For additional reasons, click here. For the source of Facebook’s discontents and how to save democracy from it, click here. For Democrats’ core values, click here. The Last Adult is Leaving the White House. Who will Shut Off the Lights? For how our two parties lost their souls, click here. For the dire portent of Putin’s high-fiving the Saudi Crown Prince, click here. For updated advice on how to drive on the Sun’s power alone, or without fossil fuels, click here. For a 2018 Thanksgiving Message, click here. For a list of links to recent posts in reverse chronological order, click here.]

A New Sheriff in Town

Good news on a Friday evening! The partial government shutdown is over. Government workers will get paid, including their back pay. Congress is thinking about ways to make whole all the people who were “privatized” into government contractors, in accordance with GOP dogma, and so lost big in the shutdown.

Trump caved. He’ll turn on his most powerful reality distortion field, of course. But it won’t work this time. The progressive hippie from San Francisco beat him fair and square. As Mark Shields said on PBS, “[h]e took on a San Francisco Democrat, and found out that Nancy Pelosi had steel in her spine.”

How did that come about? Maybe it had something to do with Speaker Pelosi’s 41 years of experience in politics, versus Trump’s chaotic two. Maybe we really are a nation of rules, institutions and orderly procedures, not a bunch of mavericks and lone wolves trying to turn the script from The Godfather into government. Maybe Trump would have better luck if he started reading his briefing papers more and watching Fox less.

Trump’s temper tantrum over his widdle wall provoked widespread peaceful rebellion. The Dems held firm. The economists and business community complained about a totally gratuitous big hit to our economy. So a few Republicans revolted, making Mitch nervous. The rebellion reached a crescendo when the pilots complained and the air traffic controllers, the TSA, and the IRS started not showing up for unpaid work. Once Trump read the polls, it was all over but the lying.

There’s also a pop-psychology angle. Through Trump’s colleagues, the Speaker convinced him that it would be unseemly to deliver his State of the Union speech while hundreds of thousands of federal employees were doing unpaid work. So Trump couldn’t have his shiny “presidential” thing—his big show starring himself—until the shutdown ended. A grandmother knows how to control a child by withholding his favorite toys.

Has Trump learned a lesson? It’s hard to tell. This deal is temporary; it ends February 15. It’s hard to see another government shutdown, just as it’s hard to see a new one having any other result. Trump may try to declare an emergency, but he’s lost so often in the courts already that he may consider doing that too much a gamble. Maybe he’ll try to make a real deal, by actually compromising. He’s already started talking about enhanced security, not a “wall” like the one China built. Maybe he’ll consider using modern technology rather than “technology” from the third century before Christ.

But the shutdown’s most important lesson is that there’s a new sheriff in town. She’s a woman. She knows her stuff and she reads her briefing papers. If Donald Trump wants not to become her patsy or her foil, he’s going to have to start reading his own, and maybe some rules, too.

    “The falcon cannot hear the falconer;
    Things fall apart; the centre cannot hold;
    Mere anarchy is loosed upon the world . . . .
    The best lack all conviction, while the worst
    Are full of passionate intensity.”
    — William Butler Yeats, The Second Coming (1919)
Less than ten months from today, the eleventh hour of the eleventh day of the eleventh month will mark a century since the end of most senseless big war in human history. We call it the “Great War,” the “First World War” and “World War I.” These very names suggest that we look forward to an endless series of similar reigns of human carnage, running right up to our species’ self-extinction.

World War I didn’t sink to the level of World War II in total military and civilian casualties. According to modern estimates “only” twenty million died, as compared to some fifty million in World War II. But what distinguishes the “Great War” as our most awful was its senselessness. It was also the war that started the whole half-century of carnage off.

The Second World War began because two powerful military tyrannies, Hitler’s and Tojo’s, set out to conquer the globe from opposite sides of their “Axis.” After Neville Chamberlain’s failed attempt to negotiate “peace in our time,” the rest of the world didn’t have much choice but resist. And if the truth be told, valid economic grievances underlay both German and Japanese aggression. The victorious Allies had overreached in collectively punishing all Germans for prosecuting and losing World War I, and the US had imposed unfair and rather racist Smoot-Hawley tariffs upon Japan’s exports, just as Japan was starting to succeed in industrializing.

But what caused the “Great War” that started the half-century of horrors? Our schoolbooks say it had something to do with the assassination of Archduke Franz Ferdinand of Austria-Este. But why should the killing of one man set a whole continent aflame?

Only historians have a clue. And even they neither agree nor make a concrete or convincing case.

The fact is the “Great War” was as near to a military free-for-all—a senseless, multinational barroom brawl—as our species ever has perpetrated. Nations at the apex of human civilization, including Britain, France and Germany, were spoiling for a fight. Nations on the periphery, such as Russia and the Ottoman Empire (now mostly Turkey) were ready to join in. There was no rhyme or reason, no overarching purpose, no theme but nationalism, imperialism, tribal advantage and the primitive “glory” of conquest.

The so-called “Great War” was a species-wide demonstration of how the “glory” of military manhood depicted in the Odyssey and the Aeneid could degenerate into the bathos and pathos of innocent teenagers bleeding out in muddy trenches or gasping their last breaths of poison gas. It was a lesson how we humans can apply our still-primitive science and technology to make our small planet resemble Hieronymus Bosch’s most diabolical vision of Hell.

The crux of the matter is that we humans need rules to live by. We need order. We need rules we can believe in and that most of us follow, day by day, if only because we have no better guide on how to live. If we rely on our emotions, our “gut,” our inherent selfishness, easy rage and craving for advantage take over. When coupled with our technology, they move us to convert our world straightaway into Hell.

Lawyers know this full well. The see the evil glints in the eyes of their clients and opponents every day. They understand the need for the “rule of law.”

But we don’t pay much attention to lawyers or their law nowadays. Didn’t they let the Crash of 2008 happen with nary a peep? Anyway, aren’t they members of the feckless and self-serving “elite”? Don’t they belong to the vile 1% and therefore, like journalists, the “enemies of the people”?

Yet there’s another term for the “rule of law,” much less used today. It’s “civilization.” Today we seldom recall using that word as an antonym to the twin evils of anarchy and barbarism. As a result, where we’re headed is right toward those twin evils.

Everybody knows it. Everybody feels it. The spirit of Yeats’ Second Coming is in the air. Anarchy is being loosed upon the world. You can feel it even as you read the sober output of mainstream newspapers, such as this article or this one, which recounts the professional assessments of our American intelligence community.

The men of “passionate intensity” who will destroy us include Donald Trump and Steve Bannon. They speak openly of crushing the existing order, without conceiving anything tangible to replace it. They have no plans for, and don’t even seem to care, what comes next. Trump in particular seems only to worry about feeding his own boundless ego. He doesn’t even read his briefing papers.

Then there’s Mark Zuckerberg, whose business motto in the early years was “Move fast and break things.” Hasn’t he done that well? Hasn’t he already broken democracy?

Yes, at the moment—in his first term—Trump seems to be shunning war. He’s kow-towing to our most dictatorial adversaries, even when the greybeards think he shouldn’t. But isn’t he also setting the stage for future wars? By moving our embassy in Israel to Jerusalem, didn’t he taunt the tens of millions of Arabs who live in and near Israel? By abrogating the nuclear deal with Iran, wasn’t he making a nuclear push by, and a conventional war with, Iran more likely? And doesn’t weakness before Russia, whether or not collusive, make conflict more likely, not less? Didn’t we learn that from Neville Chamberlain? Does abrogating our nuclear disarmament treaty with Russia show strength or weakness?

And what about China? Doesn’t anyone notice the close analogy to prewar Japan? An Asian nation not long risen from poverty and disorder has become wealthy and powerful mostly through its own effort and in spite of antagonistic Western racism. So what do we do? We try to dominate China with economic isolation and trade wars, just as Smoot and Hawley did with Japan in the run-up to World War II. Can’t we learn from history?

Doesn’t anyone see the resemblance? Doesn’t anyone remember that the Smoot-Hawley tariffs were a significant cause of World War II? Japan’s diplomats were complaining of them at the moment its planes started bombing Pearl Harbor.

Doesn’t anyone also see the vital distinctions? China’s not just a rising Asian power but the center of Asian civilization, the largest single nation on Earth, and one of the World’s oldest and most respected civilizations. No one doubts that it will soon become the world’s largest economy. Do we really want to get into a senseless dogfight with it, with no clear end in sight and no plan to reach an end?

And what about global warming, that very real and menacing phenomenon that Trump derides as a “hoax”? Already it’s built into our atmosphere, in the form of increased masses of carbon dioxide that trap the Sun’s heat inside like a car’s closed windows in summer. Already various forms of real feedback are increasing the acceleration, a mathematical phenomenon that physicists call “jerk.” (How appropriate for something that Trump derides without comprehension!) Whatever we do now, warming will accelerate for a long time, likely long enough to bring our whole world rising seas and horrendous heat waves, cold snaps, floods, hurricanes and tornadoes.

And what about tropical diseases? How will your sons and daughters, granddaughters and grandsons fare as zika, chikungunya, dengue and perhaps even malaria and yellow fever march relentlessly northward, through Miami, Houston, Charleston, Arlington, Washington, D.C., and even toward New York?

And if you think migration is a global problem now, wait until sea level rise and storm surges drive tens of millions from Bangalore, Dacca, Los Angeles, Miami, Mumbai, New York, Rome, Singapore, and Tokyo, to name just a few? Won’t we need some rules and order then? Or will we just drive back or murder refugees with tanks, planes, machine guns and drones, exchanging our humanity for barbarism?

There are so many ways that Trump could kill your kids and grandkids by making a world without rules or order. Your progeny will not be safe in the world he is making. He seeks to rule by chaos—rescinding DACA by executive order so he can negotiate its phase-out, destroying the postwar trading order, which took a half-century to build, just to force China to the bargaining table. If you believe in religious manichaean duality, it’s not hard to imagine Trump as the Dark Lord.

Of course there are others. There are Bolsonaro in Brazil, El-Sisi in Egypt, Orban in Hungary, Duterte in the Philippines, Morawiecki in Poland, Putin in Russia, Erdogan in Turkey, and Maduro in Venezuela. But Trump is the symbol, the leader and the inspiration for the worst of them. [Search for “new world order”] As leader of the nation that served as architect of the postwar order, he’s a powerful advertiser of anarchy and chaos.

His anarchy and chaos threaten your kids and grandkids. So does a world in which science is ignored, journalists are “enemies of the people,” honest public prosecutors are bent on “witch hunts,” global warming is a “hoax,” and real problems among people grow rancid through vengeance and recrimination, without a trace of the human empathy with which Nelson Mandela negotiated his people’s freedom from within a prison cell.

Yes. There are others. But Trump is the paradigm and chief goad of them all. If he remains in office, there may soon be no rules or order to protect your kids from rampant trade wars, real wars that are sure to follow, the tragic consequences of runaway global warming, the mass migrations that are sure to follow, and the decay of human civilization globally under the stress of all this plus the dark temptations of disinformation and weapons of mass destruction. Trump could be the one to pull the pin that releases both the Furies and the Dogs of War.

So if you care about your kids and grandkids, if you seek their safety and comfort, you must work to impeach and remove Trump. You must do so not because he’s a Republican, not because he’s a so-called “conservative,” not because he’s just an incompetent buffoon, and least of all because of his insults, foul mouth and self-evident bigotry. You must work to oust him simply because his continued misrule gravely threatens the very existence of global rules and order—civilization!—that might keep your kids and grandkids from the abyss.

Only by stopping the trend toward anarchy that Trump is both leading and promoting can we avoid repeating the last century’s blaunders. Suppose we can’t avoid repeating them. Suppose we have another international free-for-all, even one that starts out focused “only” on economics and migration. With the menace of global warming bearing down faster and faster, and with the temptations of cyberwar, disinformation, and weapons of mass destruction, there’s a good chance your progeny might not survive long enough to pass on your genes. Only empathy, Reason, rules and order can save them—none of which Trump has or respects.

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21 January 2019

MLK Day 2019


[For reasons why the partial government shutdowns helps Dems the longer it lasts, click here. For a discussion of how our national openness hurts us and what we really need from China, click here. For a brief explanation of how badly both Trump and his opposition are failing at “the art of the deal,” click here. For a deep dive into how Apple tries to thwart Google’s capture of the web-browser market, click here. For a review of Speaker Pelosi’s superb qualifications to lead the Democratic Party, click here. For reasons why natural-gas and electric cars are essential to national security, click here. For additional reasons, click here. For the source of Facebook’s discontents and how to save democracy from it, click here. For Democrats’ core values, click here. The Last Adult is Leaving the White House. Who will Shut Off the Lights? For how our two parties lost their souls, click here. For the dire portent of Putin’s high-fiving the Saudi Crown Prince, click here. For updated advice on how to drive on the Sun’s power alone, or without fossil fuels, click here. For a 2018 Thanksgiving Message, click here. For a list of links to recent posts in reverse chronological order, click here.]

It’s easy for Americans to despair today. We have a president who’s mean, nasty and stupid, with all the empathy of a pit bull. He works hard to inflame our tribal divisions, not only along racial, national and ethnic lines, but by ideology, too. We are approaching levels of hatred based on pure abstractions not seen since our Civil War or our ghastly national blunder in Vietnam.

Besides his huge tax giveaway to the rich, Trump’s greatest success has been dividing us. He’s been so successful that our two parties can’t even make a deal on immigration although the outlines of a good one have been self-evident for years. Protect the “Dreamers” and temporarily-protected refugees, in exchange for tighter border security and better vetting of legal immigrants, especially as to whether they take jobs away from citizens. Then regularize undocumented workers, temporarily, after deporting the criminals among them.

Instead, Trump offers only to kick the can down the road for three years, when the Dreamers and refugees will be three years older, three years more committed to living here, and three years more embedded in their communities. Isn’t presuming that we’ll then deport some or all of them a cruel charade for zealots on both sides of the debate?

But MLK was not a man to despair. Bullwhips couldn’t shake him. Nor could jail, water cannon, batons, or two progressive presidents who treated his cause (at first) like a minor nuisance that had to wait for more important matters. MLK maintained his optimism, his faith and his integrity against every setback, provocation and defeat. In his mind—and therefore in his cause—he was invincible.

Every American desperately needs his perseverance today. Why? Because what we are fighting is not just some random evil or a few sinners among us. We are fighting evils and injustices that have been part of us—part of our national character—since our very Foundation.

These evils may derive indirectly from slavery. But because they were not part of slavery per se, they survived the Civil War. They survived the liberation movements and civil rights laws of the 1960s. They are still with us today, right under our noses, part of the fabric of our government and our way of life.

What is our Electoral College? It’s an aberration, a perversion of democracy, a clear and patent subversion of majority rule. Not only did it just give the presidency to Donald Trump despite a 2.8 million vote deficit in national popular vote. It also let our Supreme Court install George W. Bush in the White House despite a 544,000 deficit in popular vote, and it gave the presidency to three other majority-vote losers in our history (John Quincy Adams in 1824, Rutherford B. Hayes in 1876, and Benjamin Harrison in 1888).

Why do we have an Electoral College? Because landed, slave-owning Southern gentry like Thomas Jefferson and George Washington could see around corners. They could see that, in time, the Northern industrial states would accumulate more people, more money and consequently more economic and practical power than their South. So they jiggered the Constitution to depart from majority rule. Their doing so has given the South more-than-proportional power for two centuries and counting.

The same thing is true of the Senate. Every state’s entitlement to two votes in the Senate is the only thing that our Constitution explicitly forbids changing by amendment. Article 5 states in part that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” Could it be that the South’s desire to preserve its unique, agrarian, aristocratic and slave-holding economy might have had something to do with that unique prohibition?

Our Southern Founders could see around corners far enough to protect their slavery-based way of life for 74 years—from 1791, when our Constitution was ratified, to 1865, when the Civil War ended after emancipation of the slaves. But they were not nearly smart enough to see how the structure they created would hog-tie us as a nation in the twenty-first century. The result is Mitch McConnell.

Racism, too, is a product of slavery, not vice versa as many suppose. Slavemasters didn’t invent the notion of white supremacy to justify their predations in Africa. They didn’t need justification: it was all a matter of “might makes right,” and Europeans and Americans had better weapons.

The crunch time for justification came in Virginia, in the years leading up to the Civil War. There, many so-called “free blacks” had most or all the rights of free whites. Some had been freed by kind masters. Some had immigrated on their own as free people. Some had bought their freedom by their own skill and industry, working as laborers “on the side.” Although they mostly lived separately from whites, in their own communities, for all practical purposes the free blacks were as free as non-indentured whites.

Their communities could have become nuclei of a truly just, multi-racial society, far ahead of where we are today. But that was not to be.

In the run-up to the civil war, slave owners wanted to be able to identify their “property.” In cases of runaway slaves, it would not do to rely on complex trials of identity and legal rights. It would be much easier to rely simply on appearance—the visible evidence of having descended from black Africans.

So the South invented the “one-drop” rule: the notion that anyone with a drop of “black” blood is “black.” Just as today, Virginia was then in the vanguard of Southern progressivism, in part because it was where Jefferson had founded his great university. But other Southern states put pressure on Virginia, as did its own slaveholders from within.

So Virginia, too, knuckled under the “one-drop” rule and the use of racial appearance as an emblem of legal subjection. As the civil war approached, Virginia began to repeal its laws protecting its own free blacks, so that by 1861 it could secede from our nation, built on the Enlightenment, and become a member of the Confederacy in “good standing.”

So far from God, and so far from anything resembling modern genetic science! Racism began as a practical way of identifying and claiming runaway slaves, nothing more. It was a purely economic expedient that gave rise to white supremacy only later, when whites who exploited slaves and profited from the system of slavery sought to justify the morally and scientifically indefensible.

The rancid justification has long outlived the institutions and practices that it sought to justify. It has outlived slavery. It has outlived the epidemic of lynchings in the South, now catalogued in a new museum in Montgomery, Alabama. It has outlived Jim Crow. It has outlived the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, and it has outlived the Supreme Court’s recent evisceration of the latter.

Our Chief Justice John Roberts may be a good man. At least I’ve twice expressed hope that he is (first in this post and then in this one, on his opinion upholding “Obamacare”). But in ruling that federal supervision of Southern voting practices is no longer necessary, he committed the grievous error of mistaking wish and aspiration for fact.

The vestiges of slavery are still with us. White supremacy still metastacizes like a cancer in the brains of so many Americans, at times including our president. We still have white officials who will play any cheap trick to deprive our African-Americans of the right to vote. One of them is now governor of Georgia. We still have our Electoral College and our malapportioned Senate, in which voters in Wyoming have 68 times the practical voting power of voters in California, and most Southern states follow suit.

In light of these realities, I propose a simple test for the ultimate disappearance of vestiges of slavery. When we abolish the Electoral College, and when every single state voluntarily relinquishes its two votes in the Senate, and that body becomes roughly apportioned on the basis of population, we will have seen the back of slavery’s legacy. We will then, over two millennia later, have emulated the basic principle of democracy first applied in ancient Athens: majority rule. We will also have emulated virtually every other modern, parliamentary democracy among developed nations.

Of course that will happen only when every American trusts every other enough to accept his or her vote as equal. It will happen only when we Americans abandon tribalism for good, or at least consider ourselves all members of one big, happy tribe.

We are, of course, far from that utopia today. And that is why we celebrate MLK’s birthday.

He was not just an extraordinary empathetic and understanding man. He was a consummately skilled leader and a brilliant, if unelected, politician. He was and is our foremost secular saint and martyr, far surpassing Nathan Hale.

But Dr. King would hardly want us to spend his birthday thinking about him. He would want us to spend it thinking how far we have come on our crucial national journey, in part under his leadership. Most of all, he would want us to spend it thinking how far we have to go, and how best to get there.

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posted by Jay Dratler, Jr., Ph.D., J.D. @ 1/21/2019 04:23:00 PM   0 comments