Country without borders

I'm reading a fascinating book about how cyberspace has become a new form of warfare and its implications: Hacked by Adam Segal. One paragraph had me jumping right to Google -- actually DuckDuckGo but since "to Google" something has become a generic verb, you'll have to excuse the imprecision.

In 2007, the Russians initiated multiple DDoS (denial of service) attacks against Estonia, one of the most wired countries in the world. They were ostensibly upset over Estonian removal of a statue celebrating Soviet soldiers who liberated Estonia from the Nazis to a less prominent location in their capital Tallinn. Non-Russian Estonians saw the Soviets as little better than the Nazis, but when the move was announced Russian residents rioted and things got a bit nasty for a while. Online services of Estonian banks, media outlets and government bodies were taken down by unprecedented levels of internet traffic because of the DDoS attacks.

The result for Estonian citizens was that cash machines and online banking services were sporadically out of action; government employees were unable to communicate with each other on email; and newspapers and broadcasters suddenly found they couldn't deliver the news.

How the Estonians responded will be discussed when I get around to reviewing the book. In the meantime, the attack, which the Russian government cleverly maintained was simply caused by vandals who were expressing their opinion (free speech being, naturally, a value in Russia) about the move and denied responsibility.

There was no concrete evidence that the Russians had orchestrated the attacks, but they surely encouraged them and it's quite possible, even likely,that other gangs of hackers with a grudge against Estonia joined in. Tim Maurer's Cyber Mercenaries: The State, Hackers and Power describes just such cooperation.

The monument was eventually moved, but the Estonians, a very clever group of people, decided to create something called e-residency. Basically, it means that anyone in the world can become an e-resident of Estonia with the right to operate a business from there (which they will facilitate) etc.

The implications for Estonia and the U.S. are quite interesting. Estonia is a NATO member, so how a cyber attack is labeled can make the difference between wider war or not. If many U.S. citizens oo citizens of other NATO members become e-residents, one could argue that it's not just Estonia that might have been attacked cybernistically but these other nations as well. (I just made up that word - the origin of the word "cyberspace" is a William Gibson novel.)

The Estonians have a little video describing the process and benefits. I'm tempted. Becoming a citizen of the world without borders sounds cool.

https://e-resident.gov.ee

https://en.wikipedia.org/wiki/E-Residency_of_Estonia

BTW DDoS attacks are really simply to pull off. Just some easily available software and off you go. Illegal, of course.

Review: The Iron King (Accursed King Series #1) by Maurice Druon

The Accursed Kings series is probably Druon's most popular work and I was surprised how much I enjoyed it. Perhaps my expectations were low. I like historical fiction with a strong basis of accurate historical information and a grounding in detailed cultural and quotidian activities of people. The Iron King, first in the series, held my interest.

The series consists of seven novels that concern the French Kings of the 14th century. It begins with the burning at the stake of the remaining Templars by Philip the Fair. As if his reign wasn't already beset with enough scandal and intrigue, with his dying breath, the Grand Master of the Templars visits a curse on Philip and those associated with his reign including the Pope to the thirteenth generation. Nogaret, the King's counselor is the first to die suffocating from poisoned candles, followed by Clement and then Philip himself of a cerebral hemorrhage. In the meantime, the equerry lovers of Philip's sons' wives (Louis of Navarre will soon succeed Philip as King of France) are entrapped by Isabelle, Philipp's daughter and Queen of England. The two are horribly executed by the King who then dies while on a hunt. The wives are sent off in exile to play a prominent role in the next book. It's all good fun.

Now on to The Strangled Queen, second in the series.

Review: The Brass Go-Between by Ross Thomas

The Philip St. Ives series was written by Ross Thomas under the Oliver Bleeck pseudonym. I can't decide, after reading this first in the series, whether St. Ives more resembles Archie Goodwin or Dortmunder or even Stanley Hastings, probably a combination of each.

St. Ives has developed a reputation for being an honest go-between, that is, he delivers money to kidnappers, ransom demands; an intermediary who can be trusted not to rip off either party. So when a famous antique African shield is stolen from a museum and the thieves request $250,000 in small bills for its return, St, Ives is a logical choice to deliver the money.

Being an exceedingly cautious man, he decides to check out a few things, especially after the body of the security guard is found. Then the man's wife commits suicide, then we learn the museum director's husband was killed in a car accident four weeks earlier, a crooked cop who tried to horn in on the deal with St. Ives is murdered, and things get a bit complicated. Of course since they were written in the sixties, everyone needed to use a pay phone and hotel rooms were $16 a night and $250,000 was a heck of a lot of money.

It' s a good story with the conversation so reminiscent of some of my favorite characters that I will most certainly read the rest of the books in the series.

Kansas, Abortion, Property in Man, and Slavery (in which Eric probably goes on too long.)

The discussion over whether the Constitution expanded or hindered the expansion of slavery continues unabated. Several years ago I read Slavery’s Constitution by David Waldstreicher Whose thesis was that slavery thrived under the Constitution and that was the intent of the southern delegates to the Convention who blocked every compromise until they got more or less what they wanted. The New York Review of Books (June 6, 2019) examines the claims further in a review of Sean Wilentz’s new book, No Property in Man: Slavery and Antislavery at the Nation’s Founding. William Lloyd Garrison certainly agreed with the proposition, denouncing the hypocrisy of a nation which revered “all men are created equal” and then proceeded to keep innumerable numbers in chains. Free states became complicit in the tragedy of the south by belonging to the same union. The conflict finally came to blows following the Dred Scott decision which essentially required free-states to act like slave states by forcing enforcement of the Fugitive Slave Acts. The competition became increasingly bloody in Kansas where you had two competing Constitutions, the Wyandotte Constitution finally winning out. That Constitution borrowed from the Declaration of Independence, an action that would have consequences for abortion more than a century later -- at least in Kansas.

Protections for slavery were numerous. “Beyond the three-fifths rule, the international slave trade was exempted from regulation by the federal government, which otherwise oversaw foreign commerce. Congress was banned from abolishing the trade until 1808 at the earliest. The federal government was prevented from introducing a head tax on slaves, and free states were forbidden from harboring runaways from slave states. The Founders obliged Congress to “suppress insurrections,” committing the national government to put down slave rebellions. The abolitionist Wendell Phillips, an associate of Garrison’s, summarized the work of the Founders in 1845: “Willingly, with deliberate purpose, our fathers bartered honesty for gain, and became partners with tyrants, that they might share in the profits of their tyranny.” That these protections worked is apparent by looking at the numbers. The number of slaves had been decreasing before 1789. The first decades of the nineteenth century saw an explosion of slaves, from 700,000 to four million. “By 1860, enslaved people counted for nearly 20 percent of national wealth and produced nearly 60 percent of the nation’s exports” The elimination of the slave trade in 1808 simply increased the value of slaves and created a demand and push to expand slaves to newly acquired territory in Texas and Kansas.

Wilentz, so the article maintains, places less emphasis on the racist and slave-holding components of the Constitution, and more on its refusal “to validate the principle of ‘property in man. ‘“ (I will tie this to Kansas, shortly.) Wilentz argues that the southern delegates wanted even broader protections and it was the insistence on “freedom” rather than slavery that was the bedrock principle behind the Constitution and that was to become the “Achilles Heel of pro-slavery politics.” That paradox and contrast to the Declaration of Independence eventually resulted in armed conflict, a huge mistake on the part of the south which wound up losing precisely what it claimed it was protecting and fighting to maintain. In fact Wilentz argues that “By declining to make an explicit declaration in 1787 that slavery was a foundational principle of the United States, the Founders had brilliantly facilitated the later Republican cry of “Freedom National, Slavery Sectional.” “Wilentz writes that the exclusion of an explicit guarantee of property in man was not just an accident or “technicality” at the Constitutional Convention. The delegates “insisted” on it, he claims, and he offers a line from James Madison to prove his point: it would be wrong “to admit in the Constitution the idea that there could be property in men.” This quotation is so perfect for Wilentz’s argument that he could not have invented better evidence in support of it.” There is some evidence that Madison tinkered with his notes (he was the sole source of what records we have of the discussions at the convention,) to make himself look better. No matter, that phrase provided ammunition for the anti-slavery movement.

I will leave it to the reader of the entire article to give credence or not to Wilentz’s motivations for so de-emphasizing the pro-slavery aspects of the Constitution. It makes for interesting reading.

The phrase “no property in man” stuck with me and so after reading an article in Justia regarding a decision of the Kansas Supreme Court that said the Kansas Constitution guaranteed the right of women to asn abortion, I decided to do some additional digging and watched the oral arguments before the court (they are available in video as well as audio) and then read the decision. (Links to both below.)

https://www.youtube.com/watch?reload=9&time_continue=2262&v=3sPlvgEoCo8

http://www.kscourts.org/cases-and-opinions/Opinions/SupCt/2019/20190426/114153.pdf

I recommend both highly. The case was resolved 6-1 (and be sure to read Justice Stegall’s dissent for his accusation of and yet support for originalism.) Note that the majority specifically noted their textualist, if not totally originalist, approach to interpretation.
“Kansas courts look to the words of the Kansas Constitution to interpret its meaning. When the words do not make the drafters' and people's intent clear, courts look to the historical record, remembering the polestar is the intention of the makers and adopters of the relevant provisions.”
They also note that “Section 1 of the Kansas Constitution Bill of Rights sets forth rights that are broader than [emphasis added] and distinct from the rights in the Fourteenth Amendment to the United States Constitution.

From those rights, they concluded that
“Section 1 of the Kansas Constitution Bill of Rights affords protection of the right of personal autonomy, which includes the ability to control one's own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life— decisions that can include whether to continue a pregnancy.”

As a result, while acknowledging that the state has an interest in the life of the fetus, it must have a compelling interest, i.e. strict scrutiny, to interfere with the right of a woman to end a pregnancy. Justice Biles, in fact began his question of the Kansas AG with this hypothetical: “If a woman is told by her doctor that she will die unless she has an abortion, can the state tell her she must die to save the fetus? The AG stumbled all over trying to get out from under the implications of that query. Locke’s observation that “every Man has a property in his own Person.” formed an important part of the judgement in my view and linked directly back to the my earlier discussion of Wilentz’s book.

The section of the dissent I found quite interesting was when Justice Stegall, aside from coming down on the side (at least as he observes it) of the majoritarian view against abortion discussed the problems inherent in the originalist view even while adopting it to some extent himself. (I have to admit to enjoying Stegall’s Scalia-like zingers. For example, “Reading today's majority opinion is a follow-the-white-rabbit experience. One is left feeling like Alice, invited by the Queen to believe "'as many as six impossible things before breakfast.'” He even cites Orwell in his condemnation of the majority’s euphemisms. Then he goes on to highlight the problems with the originalist approach, the “dead hand” problem. “Polsby, Introduction to Panel I: Originalism and the Dead Hand, 19 Harv. J.L. & Pub. Pol'y 243, 243 (1996) ("Why should the thoughts and philosophies of those who have gone before us be considered authoritative in present day life?"). Often, it is claimed, originalist outcomes will—either wittingly or unwittingly—import the repugnant racist or sexist views some of our forebearers held into modern constitutional law. Modern judges, these critics suggest, should not be required to repeat the sins of the past.”

That’s actually a pretty good argument against originalism.

New Holmes biography

My brother ‘75 J.D. sent me an essay+ by Lincoln Caplan ‘72 J.D. ‘76 from the Harvard Alumnus magazine. (You know those slick magazines whose sole purpose is to celebrate the tribal connections of alumni in hopes they’ll give scads of money after having paid scads of money to get the right to add those pretentious dates after their names, tidbits that really tell us nothing about the individual. I get one, too, from Penn ‘69. It is a bit disturbing when the only people cited are those with Harvard dates after their names. Cozy club, indeed. For $1,000 I’ll be happy to give you the right to put any initials and a date after your name. Make checks payable to…)

More often than not, however, these magazine have provocative articles related to subjects that fascinate me. Caplan’s essay ruminates on the background of Justice Oliver Wendell Holmes as portrayed in a new biography by Stephen Budiansky, one of my favorite authors. As Caplan notes, the biographies of the current justices are worlds apart from those of everyone else, whereas Holmes, wounded several times and once almost fatally, had a distinctly different life experience. (I might argue that Justices Thomas and Sotomayor come from similarly difficult circumstances, although none had his profound war experience.) It was the war experience that shaped his judicial philosophy. “He had gone off to fight because of his moral beliefs, which he held with singular fervor. The war did more than make him lose those beliefs. It made him lose his belief in beliefs.” Caplan argues “In applying law to facts, he made clear, they were law-makers, unconstrained by law itself—a role society would accept only if these law-makers were not tainted by partisanship.” Whether that’s a good thing or not remains contested. Felix Frankfurter must have been rolling over in his grave. Not being a complete advocate of judicial restraint, myself, the idea of an unelected group of nine remaking themselves as a super-legislature does not enthrall me. The idea the nine could ever be totally removed from partisanship strikes me as wishful thinking. Yet, Caplan upholds Holmes as an icon of judicial restraint. There seems to be a contradiction there. As he notes judicial restraint is in the eye of the politician.

Caplan abjures the court’s striking down of many New Deal laws because they disagreed with the New Deal policies. He argues Holmes would have voted in dissent to uphold those laws even those he disagreed strenuously with them. “The approach he employed to justify his decisions and preserve their legitimacy was judicial restraint: except in rare instances, he believed, courts should uphold laws as long as they had a reasonable basis, because they reflected the will of the community enacted by elected legislators.” To Budiansky, the Civil War made Holmes a skeptic—doubting and fatalistic—but not a cynic: it made him question “the morally superior certainty that often went hand in hand with belief: he grew to distrust, and to detest, zealotry and causes of all kinds.”

The personal experience justices all have shapes decisions in many ways and one of Holmes’s most notorious of decisions, Buck v Bell is a good example. Basically, Holmes with an 8 member majority (Justice Butler was the lone dissenter) wrote that the intellectually disabled could be forcibly sterilized by the state. It legalized the practice of eugenic sterilization. “Three generations of imbeciles are enough,” he infamously wrote. (Buck was not intellectually disabled as it turns out but was being hidden following a rape. She died in 1983. See Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell: Eugenics, the Supreme Court, and Buck V. Bell by Paul Lobardo.) Adam Cohen ’84, J.D. ’87, wrote of Holmes’s experience, ““life was naturally competitive and cruel, and he had little inclination to rein in its harsh injustices.” Holmes had no sympathy for the downtrodden. One could argue Holmes was merely expressing restraint as it simply validated an existing Virginia law. Except, perhaps for that ill-chosen phrase.

The dissent that had justifiably garnered Holmes the most acclaim was Abrams v. United States. By 7-2 in 1919, the Supreme Court upheld the conviction of five Russian Jewish anarchists under the 1918 Sedition Act. Shades of the Alien and Seditions Acts of John Adams. (Caplan’s discussion of the role of the Judiciary Act of 1925 in leading to more dissents is quite interesting. Previously, “The law was “fixed and certain” because 9-0 opinions were routine: 84 percent of that Court’s opinions were unanimous. . . .last term, the justices were in total agreement in only 26 percent of the cases they decided.” That doesn’t mean they were less often unanimous. Note that in the 2017 term 54% were unanimous and only 14% were 5-4. The balance were all over the place policy-wise. *) His dissent laid the groundwork for tolerance of thought becoming a national virtue (well except perhaps during the McCarthy era.) It established the “clear and present danger” standard, i.e. no yelling “fire” in a crowded theater.

Caplan writes, “Free-speech campaigns invariably extol individuals whose freedom to express hated speech is in jeopardy. But to Holmes, that freedom is tied to the interests of society, not to an individual right: free speech is a listener’s right as much as a speaker’s. Democracy depends on deliberation and even, as Holmes demonstrated in the Abrams case, on doubting “one’s own first principles.” With that dissent, he helped launch a nation-defining movement. He tackled a decisive challenge for the twentieth century that is again decisive for the twenty-first: how to safeguard speech, for the sake of American democracy.”

Holmes, Black, Frankfurter, Roberts, Scalia, et al all had competing philosophies. Whichever is correct depends less on the intrinsic value of the argument than competing views of what society wants. In a time of legislative dysfunction, it is natural to look to the court as a kind of super-legislature. That’s certainly not what the men at Philadelphia wanted or even conceived of. Not even John Marshall in establishing judicial review could have dreamed of the Court evolving into that role. I, for one, remain skeptical of that role.


+ https://harvardmagazine.com/2019/05/supreme-court-holmes
* https://www.washingtonpost.com/news/posteverything/wp/2018/06/28/those-5-4-decisions-on-the-supreme-court-9-0-is-far-more-common/?utm_term=.552cada990a2