Glibertarians.com 2017 Archive

Category: History

  • It was better back then: communism and nostalgia

    The casual observer would, ehm… observe that late stage communism in Romania was not exactly Utopia. A good percent of the urban population lived in cramped concrete apartment blocks that were not quite heated in winter, water – especially of the hot variety – and electricity were not guaranteed, the lines were enormous for all basic goods, and shortage was the order of the day. Of course the leaders of the proletariat did not live in such conditions. They took over the villas of the pre-communism wealthy or middle class, and built a few more. It is quite understandable. After all, it is hard work, building equality; they deserved a better living standard then the hoi-polloi. Some animals more equal than others, you see.

    Excuse me, what do you have in stock?

    Shortage was the norm and queuing for hours was part of the social fabric. Good stuff, a friendly lefty will tell you. Got out of the house (the house was depressing anyway) socialized, met interesting people. And by interesting I mean hungry and bored. Obesity was less of a problem, the old commie diet works wonders. People had complex social rules for queuing. If you were lucky you found out in advance which store was about to get something. If you noticed a line, you sometimes joined it without actually knowing what it is for; there must be something to buy there. After standing in line you would ask the person in front what they had. In all lines you hoped that whatever was sold would not be finished before your turn. There was a standard shout of “Don’t give too much to one person so there is enough for all”. Anecdotally, in University we would shout that when going by the door of a room where a professor was grading exams.

    If you wanted gas for your car, you had to stay at least overnight in line. Someone had to sleep in the car, otherwise you would lose your spot. Well this meant that least you had a car, which was not easy, so you were in your own fashion a petty bourgeois. If you happen to be caught with more than a few liters of cooking oil or a few kilos of flour, you would be shamed on public TV for the goddamn hoarder and wrecker you were. There is plenty they would say, if not for the hoarders, the greedy ones who do not care for their fellow man.

    The stories are literally endless. Well not literally literally, but as close to it as possible. Also the jokes, though I feel a lot of them are repeated through European communist nations, so I won’t put any here. I was always fascinated as a kid by how the bread you could buy in stores was never fresh, always a day old. Maybe this way people ate less of it. This carried over after communism in a way. I was fairly young back then, but after bread shortage was no longer a thing, I noticed my parent always overbought bread and would usually throw away quite a bit, because there was some residual fear of running out of bread. Buy 3 just in case, we don’t want to run out of bread.

    There was secret police and the fear of nightmarish jail for any dissent. People rarely trusted neighbors, even family, due to fear of them actually being an informant. This fear was not unfounded, after communism it was found that many were in fact informers and many ratted on their brothers and cousins and parents. This created a general atmosphere of distrust among people that I think still persists.

    With all of that, you may wonder, how the hell there is still nostalgia about those times? How are there people who say it was better back then? Well it is not a simple thing. These things rarely are.

    One of the ones that usually accounts for some nostalgia was youth. Back then people were young and healthy and now they are old and sometimes sick. Discomfort was easier on a young body. Hell when I was a university student I would holiday in accommodations I quite turn my nose at now. We were a bunch of young people, had some food to eat and cheap booze to drink, it was all needed. Back in the communist days, there was not much food and crap vodka and wine, but a young couple lets say would need little more. The apartment was cold but they warmed each other, wink wink. Life seemed good enough.

    Another reason would be that radical change is hard on some. Communist life, as it was, was what people grew up with and were used to. The change was maybe too much for some. Further more, human memory is a fickle creature. People may selectively remember the better times, and selectively compare to the worst things the get now.

    Of course, among the stronger reasons it is quite simple. Envy. Basic human envy sprinkled with some resentment here and there. Many did not have it worse back than in absolute terms, but had it the same or better in relative terms to others. Everyone was poor, many poorer than you.

    This especially applies to the less than competent who do not do as well in a society were some level of competence matter. Why should they have less money just because they are less productive? They will say back than everyone had a job. Yes, they did. And most didn’t do much at it. Communism lasted as long as it did because of the few people who did their best out of principal.  My father was one of such. But it was disastrous because these people were a minority.

    A good number of the ones who did the jobs did reasonably well after communism. The others not so much and were nostalgic, it was better back then. They had the same pay for little work as the guy who did all the work. Sometimes more because he spent the time not working mingling, making connections, joining the Party, ratting out colleagues to the secret police, that sort of thing.  My father always refused to join the Communist Party which cost him quite a bit back then. I have to admit, as a kindergartner I was a Falcon of the Fatherland, but never got the chance to be a Pioneer and join the party on account of my age.

    My father is an electronic engineer and worked in a factory that designed and produced industrial automation devices. Back then the workers got better pay than the engineers, more access to holiday accommodations, better apartments and extra rations. So they felt good. After communism when engineer pay rose above worker pay, they had, led by the union, a strike before the factory, screaming we do all the work, we don’t need engineers, fire all the engineers. The competent engineers left the still government owned factory by themselves in time, and it closed down. Before my father left a group of assembly workers asked him respectfully about maybe staying to keep the factory going. He reminded them of their strikes, and they realized their mistake. But it was a bit late for that. Others did not, and took small anticipated pensions and are now fairly poor, bitter and talking about how it was better back then. Even with their current poverty they probably have the same amount of goods, but now there are so many things in stores they cannot afford. Empty stores of communism did not have this effect.

    Off course, a lot of people are much poorer then they would be if an actual free market reform took place instead of the government dominated crony capitalism system we have in this country. Started by Mister Iliescu, may he rot in Hell, who wanted to replace the old system with something called socialism with a human face. Which meant the right people get all the wealth and power, mostly the ones who had it before. Still, the new system did lead to development and allowed some actually get a better life. But it did take some effort.

    I feel sorry in a way for a lot of Romanians, because they were educated in communism and kept that kind of thinking. Many were kept poorer by the system and the government, it was not fully their fault. It never is. Humans do adapt to circumstances. But then again, they voted for the system in great numbers- no vote rigging needed – and expected things to happen by themselves. On the other hand there were plenty of people who did not believe all the communist indoctrination and did change their thinking after ’89. And a lot of them willfully did not and became hateful instead. While in communism they took only the “to each according to his need” part, skipped the work part, and spend time trying to climb the hierarchy while being snitches. So my sorry feelings are ambivalent to say the least. Heartless libertarian such as I am.

  • Deregulating the Maritime Domain – Part 3

    Legislative Hurdles To National Security In The Civil Maritime Domain

    Ie.  A *Starting Point* for Maritime Deregulation

    Part 3.

    5. Inefficient Cargo Preference Requirements

    Turning again to the regulations in question and their relevance in twenty first century operations, it is important to examine the specific national security concerns they addressed at the time of their introduction.

    • While the Military Cargo Preference Act of 1904 (10 USC 2631) specifies that all cargoes purchased by the armed forces must be carried on a US flagged vessel – excepting where unavailable due to resources and/or costs are unreasonable – it does not require a great deal of effort to justify the use of a foreign-flagged vessel in the case of an emergency.  In a situation not dissimilar to the previous contradiction noted with the crewing differences between military and civilian operators, 31 of the 46 Ready Reserve Force ships maintained by the military for emergency transport of materiel in case of war, were constructed outside the United States and are therefore ineligible for any use domestically were they to be sold to a US-flagged operator in the future.
    USNS Supply resupplies a Danish Navy frigate and USS George H.W. Bush

    In an amendment to the Merchant Marine Act of 1936, passed in 1954, at least 50% of all general US government cargo must also be carried by US-flagged vessels.  The type of cargo specified in this legislation has generally focused on high volume products like food aid to be delivered overseas – and this amendment was further modified to 75% specifically in relation to food aid deliveries in 1985.  While it is not hard to fault the original intent of the legislation at the time it was developed, it appears to have very little utility in everyday operation – and in fact is more harmful than beneficial.  In the case of a real emergency or wartime situation, the military already has large amounts of munitions and materiel pre-staged.  During routine operations, there are far fewer routine shipments needed for military support than earlier in the 20th century – which makes sense given the smaller numbers of vessels involved as well.  Naval resupply for instance is predominantly conducted underway between Naval vessels and Maritime Sealift Command (MSC) auxiliaries – commercial vessels never enter the equation.  An exception to this from recent years has been the drawdown of military materiel following the formal end of hostilities in Iraq and to a lesser extent, Afghanistan.

    In general, Cargo Preference to date is limited to emergency food aid and similar emergency aid programs.  The utility of this program has deteriorated greatly due to the increasing variability of international harvesting results.  Even Federal Aid Agencies are becoming less likely to utilize these programs – even when still required to by law – it can be far more efficient both in time and money to purchase the necessary aid or in the vicinity of the emergency and have it transported locally – rather than paying to have it acquired and shipped internationally on a ship that may not immediately be available when needed.

    • These acts and the issues they embody are further reflected by MARAD’s Maritime Security Program.  Out of 110 US-flagged vessels participating in international commerce, a full 60 are enrolled in the Maritime Security Program.  By participating in this program, the operators acknowledge that the ships will be made available to the US government at the earliest possible convenience in the event of an emergency or wartime situation.  In exchange for this availability, these operators receive a cash allotment of about $3.1 million per vessel per year or about $8500 per day.  While initially appearing to be a significant amount, as the PwC MARAD report demonstrates, that amount only covers about 2/3 of the daily differential in operating costs between US and foreign-flagged vessels. [But it’s still your taxpayer dollars being shelled out]

    6. Security Issues Specific to the Jones Act

    • Returning to the Jones Act as a commercial speed bump, it is possible to force exceptions through, but the process is cumbersome and time intensive and requires action at the congressional level.  This includes a considerable number of cases where vessels have been repaired or refurbished overseas but have been certified by the Coast Guard that their refurbishments did not exceed reasonable limits as established by the Second Proviso of the Jones Act – currently listed in 46 CFR 67.177.  This issue is complicated enough on the surface – attempting to calculate the mass differentials from multiple pieces of equipment out of a very large vessel – but it often becomes far more politicized as commercial competitors will attempt to challenge each other on the legality of any foreign repairs.  Leaving aside that the repairs have already activated the Ad Valorem duty by default, if a corporation can prove that more than, say 7.5% of a competitor’s vessel’s steelweight has been repaired or worked on, that would potentially void the Jones Act eligibility that vessel for future operations.  Bearing in mind that the National Vessel Documentation Center is the only fully civilian staffed command under the Coast Guard – and possesses neither the resources nor qualified manpower to inspect the ships during refits to verify the claims made by the companies – which by and large have proven accurate under penalty of law.  This is also a sort of situation open to abuse in that in a number of cases, decisions by the Coast Guard have been retroactively reversed or thrown out by courts based on these corporate complaints, although the Coast Guard assessments have been conducted in good faith in accordance with their established legal precedents.  It is difficult in many cases to determine whether any US jobs are currently being lost by work conducted overseas due to the timing involved and the limited number of active shipyards – estimates and guesses are freely distributed by both sides of the argument, but there are no solid numbers available.
    • The legislative limitations of the Jones Act are also such that those situations in which the casual observer would expect common sense to address swiftly, become political footballs.  US Coast Guard icebreakers for instance are an extremely valuable asset, but as there are only three currently active (between six and ten would be required to adequately meet all current operational goals), a waiver was required from the Department of Homeland Security (DHS) in order to resupply Nome, Alaska, after a Russian ice-class tanker was forced to take on fuel from Dutch Harbor to deliver to Nome as weather prevented the intended pickup in a Japanese port.  This situation among others, verges on the legal absurdity of applying a near-century old law in a blanket format with no available consideration for logic.
    Just tuggin’ along…

    In another situation, an oil drilling company which had previously been granted a Jones Act Waiver by DHS (under National Security auspices) to transport an oil rig from Texas to Alaska using a foreign built, foreign owned vessel was told that the waiver had been revoked and would require a new application.  Although the company halted the transit in Vancouver and used a US towing company to take the rig the remainder of the way, they were still fined $15 million – the equivalent value of the rig itself – for breaking the coastwise trades portion of the Jones Act.  This was in spite of a lack of available Jones Act eligible vessels needed for a timely transit and the fact that DHS refused to review their appeal in regardless of Congressional support, although – for example – 56 Jones Act Waivers were granted in the period of July-August 2011 (utilizing the identical national security rationales to allow private companies to transport oil from the Strategic Petroleum Reserve).  As the largest fine of its type to date, it’s also something of a precedent in that the company was charged the full value of the vessel being transported even though as an actual vessel it was argued that it should not be treated like ordinary cargo or merchandise being transported from one port to another port.  [Because FYTW]

    This scenario does bring up a related question that has yet to be addressed, but which also further exposes the limitations of the Jones Act.  Recently, vast reserves of natural gas have been located offshore of Alaska.  These reserves are easily exploitable, and would benefit the state and country immensely – but for one issue.  Even if there are new Liquid Natural Gas terminals constructed on the west coast, it will be impossible for any LNG tanker to qualify for the Jones Act – in part due to the limitations discussed previously, the US simply does not possess the shipbuilding capability to construct one.  Given the legal precedents already established, it is unlikely that any corporation or vessel would receive a blanket waiver for the life of one or more foreign-built vessels to engage in Alaska to West Coast deliveries.  That basically means that under current legal rulings, Alaska will be required to transport and export all their natural gas internationally, with no net gain to national energy security.

    7. Potential Corrective Legislative Actions

    So, returning to legislative actions that would provide a net gain to national security utilizing Mahan’s rationale, each previously discussed act will be reviewed.

    • The Military Cargo Preference Act of 1904 and all the follow-on associated legislation should be scrapped in full.  The US military already maintains its own Ready Reserve Force in addition to the federally operated Maritime Sealift Command ships.  Any needs beyond that in time of emergency should be addressed as needed – utilizing appropriate contingency planning and the best vessel available at the time of the requirement – without excessive micromanagement or favoritism.  Security concerns would obviously be observed and dealt with accordingly as necessary.  In the case of non-military cargoes, the respective federal agencies and departments should again be free to negotiate for the best available carrier to transport their cargo.  In this time of skyrocketing deficits – it is important to provide the best possible deal for the taxpayer.
    • The Ad Valorem duty portion of the Tariff Act should be fully rescinded.  It functions simply as a punitive tax on companies that have very few options to begin with, while not providing any actual incentive to have repair work conducted in a US shipyard.  A better alternative might be to provide tax breaks for operators – US-flagged and otherwise – who do conduct their maintenance availabilities and repairs in US shipyards.  Additionally it is far too arbitrary in its enforcement – between the precedent-based measurements conducted by the Coast Guard, and the irregular legal reversals in the courts.
    • Regarding the Jones Act itself, depending on the legislative process it might be easier to address the various issues in individual amendments, as opposed to replacing the entire piece carte blanche.  For instance, the citizen crew requirement should be removed immediately – at least for the seamen – although it would be worth reviewing in further detail whether that citizenship requirement should be left fully in place for ship officers.  Similarly, it should be examined further whether there is any inherent harm in removing the right to sue from a seaman injured onboard a vessel.  If insurance provided by the operator is adequate, in accordance with the routine union protections, there ought not to be any loss suffered by the seaman.  Again, there are precedents set for this that can be reviewed – both as a matter of routine policy for all US service members, but also for the seamen employed by non-US-flagged operators.
    • Coast Guard to the rescue!

      Finally, regarding the Coastwise Trade requirements of the Jones Act – it is reasonable to maintain the existing regulations for trade on the inland waterways of the United States – to include the Great Lakes – the precedents and general operating procedures established there are not in dispute.  However, at this time, given the existing restrictions and limitations on US shipyards, it makes no sense to maintain the US-flagged requirements for all trade between mainland ports, with particular emphasis on trade between the mainland and Alaska, Hawaii, Guam and Puerto Rico.  Like the Ad Valorem Duty issues, it is a regulation that has outgrown its utility in the last century and causes more considerably more economic hardship than benefit for both the operators and customers.  [A number of estimates place the cost of shipping a container from San Diego to Hawaii at 10 times the cost of shipping the same container from San Diego to Shanghai.  Numbers have fluctuated a little over the years.]

    8. Conclusion

    Reducing or eliminating these regulations should not be carried out in a vacuum, but in conjunction with providing more incentives to operators and service providers.  As with other industries, it should be the goal of the government to make normal business operations easier, not more difficult – whether in developing or maintaining a shipyard, transporting cargo and passengers, or anything else.   These are all capital-intensive industries that provide a very large number of secondary and tertiary jobs and business opportunities across the country – which in turn provide far more tax revenue in net gains.  It is possible to restore and revitalize our nation’s maritime tradition, but the way forward involves far less government interference and legislation, not more.

     

    Part One; Part Two

  • The man who fought a blacklist and killed the First Amendment (it got better)

    Things were different in many ways a century ago, but in one respect it was like all places at all times: there were insurance agents.

     

    Monument to the insurance agent 009.jpg
    Monument to insurance agent, Donetsk, Ukraine

    Robert T. Cheek of St. Louis, Missouri, was one of those insurance agents, selling policies in his hometown for the Prudential Insurance Company. In the 1910s, after many years of what he obviously considered faithful service, he left his job and began looking for work with another insurer. He asked his former employer, Prudential, for a letter describing his work and the reasons he left.

    Prudential refused to provide such a letter. Without such a “service letter” from his prior employer, Cheek had trouble getting another job in the insurance field. Insurance, as he claimed, was pretty much what Cheek knew, and he didn’t want to go into another line of work where he didn’t have so much experience. He thought he was being blacklisted.

    So he sued Prudential in a state court in St. Louis. In that part of the case which is relevant for our purposes, Cheek said that Prudential had violated Missouri’s “service letter” statute. Missouri law required that an employee who had worked 90 days or longer for an employer could demand that his ex-boss provide a letter saying that he used to work for that boss, and explaining why he doesn’t work for that boss any longer.

    States like Missouri which passed these “service letter” laws were concerned about employer blacklists. If an employee had crossed his ex-boss, the boss might just decide not to help that employee get new work. But if the boss was forced to give a service letter, the employee could obtain information about his work history, without which new employers might not want to take a chance on him. And if the ex-boss gave the former employer a bad reference, the employee could sue for defamation.

    The trial court in Missouri threw out Cheek’s suit. Sure, Prudential hadn’t given Cheek a “service letter,” but it didn’t have to do so. Anyone, even an insurance company, has the right to free speech, which includes the “right of silence” – that is, the right not to talk.

    I tried to find a SFW image of someone with a gag in their mouth, but no such luck

    Precedents from other states, like Georgia, indicated that service-letter statues violated the freedom not to speak, and therefore violated the freedom of speech as constitutionally guaranteed by state constitutions. Of course, a company didn’t have the right to lie about former employees – that would be defamation. But if an employer didn’t want to talk about an ex-employee, it shouldn’t be forced to talk.

    Cheek took the case to the Supreme Court of Missouri, which in 1916 gave Cheek a victory and upheld the “service letter” law. Those other courts which had talked about a constitutional right to silence were simply out of harmony with the up-to-date enlightened principles of 1916. After all, all that the service letter law demanded was that a company give truthful information about former employees who had worked for them for three months or more. Disclosing accurate information – how could mandating that violate any company’s rights? The court spoke of the legislative struggle against blacklisting, and how the service letter law was a modest tool to help victims of that iniquitous practice.

    Now it was Prudential’s turn to appeal, all the way to the United States Supreme Court. To defend his position, and the Missouri service letter law, Cheek had Frederick H. Bacon as his attorney.

    In U. S. Supreme Court, Bacon saves you!
    At some point, I’m bound to get tired of telling food puns, right? Right?

    Bacon, a Michigan native who practiced law in Missouri, had written a textbook on insurance law. Perhaps Cheek hired Bacon because of the attorney’s knowledge of the insurance industry, although this was not a specifically insurance-oriented case, but a broader labor-law case. And, as it turned out, a First Amendment case.

    In those days, pretty much anyone with enough money could take their case to the United States Supreme Court. So many people exercised this right that there was a bit of a backlog, which may be why it took until 1922 for the U. S. Supremes to give their opinion in Prudential Insurance Company v. Cheek.

    Most of the opinion dealt with the issue of economic freedom – in those days the Supremes still recognized the right of businesses to operate free from arbitrary government restrictions. But Missouri’s service-letter law was not arbitrary, said the majority opinion. Companies just had to provide accurate information about former employees. It wasn’t like Missouri was trying to cartelize the ice business or anything oppressive like that.

    But the Supremes still had to deal with Prudential’s argument based on free speech, and the corollary right not to speak. Remarkably, the Supremes had not yet decided, one way or another, whether the First Amendment’s rights of free expression even applied to the states.

    In 1907, the Supreme Court assumed, for the purpose of argument, that the 14th Amendment required the states to respect freedom of the press. But Thomas Patterson, said the Court, had abused his freedom of the press by criticizing the decisions of the Colorado Supreme Court in his newspaper, for which the state supreme court could legitimately convict him of contempt. Patterson, owner of the Rocky Mountain News and an influential Democrat, had run editorials and cartoons accusing the Colorado Supremes of acting in subservience to corporate interests when it awarded elections to Republicans and abolished home rule for the state’s cities.

    Nowadays, people in Colorado are much more mellow

    In a case arising out of the First World War, the Supreme Court assumed, for the purpose of argument, that the 14th Amendment required the states to respect freedom of speech. But Joseph Gilbert, said the court, had abused his freedom of speech, and could legitimately be punished by the state of Minnesota for making the following wartime remarks:

    We are going over to Europe to make the world safe for democracy, but I tell you we had better make America safe for democracy first. You say, what is the matter with our democracy? I tell you what is the matter with it: Have you had anything to say as to who should be President? Have you had anything to say as to who should be Governor of this state? Have you had anything to say as to whether we would go into this war? You know you have not. If this is such a good democracy, for Heaven’s sake why should we not vote on conscription of men? We were stampeded into this war by newspaper rot to pull England’s chestnuts out of the fire for her. I tell you if they conscripted wealth like they have conscripted men, this war would not last over forty‑eight hours…

    Minnesota don’t want none of your free speech unless you bash Huns, hon

    (If you’re interested, here is a highly sympathetic biography of Mr. Gilbert.)

    In both of those cases the Court had assumed, without deciding, that the states had to respect freedom of expression. The issue hadn’t affected the outcomes of those cases because the Justices didn’t think freedom of expression applied to the insidious activities of Patterson and Gilbert.

    Now, suddenly, the Justices decided it was time to make an official ruling: Do the states have to obey the First Amendment? In other words, do the basic rights protected by the Fourteenth Amendment against the states include free expression (subject to common-sense regulations such as suppression of wartime dissent)?

    Here’s how the Supremes answered that question in Cheek’s case:

    the Constitution of the United States imposes upon the states no obligation to confer upon those within their jurisdiction either the right of free speech or the right of silence….

    Cheek won, and Prudential and the First Amendment lost.

    Apparently, Cheek was able to get back into the insurance business. When he died in 1926, his death certificate said that at the time of his decease he had been an insurance agent for the “Missouri State Life Co.”

    The year before Cheek’s death, the Supremes were back to their old tricks, refusing to say whether states have to respect the First Amendment’s rights of free expression. This was  in a case involving a Communist firebrand, Benjamin Gitlow, who had written a manifesto advocating revolution. In a key paragraph, the Court said:

    For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek…that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question.

    Then the Supremes went on to do what they had done in the cases of Patterson and Gilbert – they declared that Gitlow had abused his First Amendment freedoms and could rightly be punished for it, even if the First Amendment applied to the states.

    File:Gitlow-benjamin-1928.jpg
    Benjamin Gitlow running for Vice President as a Communist in 1928

    (Gitlow later left the Communist Party and published a memoir entitled I Confess: The Truth About American Communism.)

    So it was back to the old drawing board – the applicability of the First Amendment to the states was still officially unresolved.

    In two key cases in 1931 (here and here), the Supremes finally decided that the states did have to obey the free-expression guarantees of the First Amendment.

    The first of these decisions said that both the federal and state governments have to respect your right to wave a communist flag. The second decision said that the government (whether state or federal) can’t shut down a newspaper as a “public nuisance.”

    (Here is a book about the freedom-of-the-press case, Near v. Minnesota).

    Neither in their published opinions nor in their private papers through 1931 did the Justices engage in any detailed examination of the question of “incorporation” – whether the states had to obey the First Amendment and if so, why. The Supremes just veered from one side to another, almost as if they were flying by the seat of their pants and not acting on any coherent principle. It was only later, in subsequent cases, that the Justices began working out various rationales for applying the First Amendment to the states (TL;DR version – because free expression is a Good Thing and is Good for Democracy).

    A good guess would be that, when the Supremes were unenthusiastic about free expression, they weren’t that interested in imposing it on the states, but when (as in the 1931 cases) they got interested in free expression, they decided it was time to make the states as well as the feds respect that right.

    Many states still have service-letter laws to this day. Check your local listings.

     

    Works Consulted

    Floyd Abrams, The Soul of the First Amendment. New Haven: Yale University Press, 2017, pp. 60-62.

    “Anti-Blacklist Law Upheld,” Iron County Register (Ironton, Missouri), December 7, 1916, http://bit.ly/2rjmnTh

    Ruth A. Binger and Tracy R. Ring, “BEWARE – PROCEED CAUTIOUSLY – WHAT THE MISSOURI EMPLOYER SHOULD KNOW ABOUT THE SERVICE LETTER STATUTE AND DEFAMATION.” St. Louis: Danna McKitrick, P.C., Attorneys at Law, WWW.DANNAMCKITRICK.COM, 2003.

    Vickie Caison, “Bacon, Frederick H.” Friends of Silverbrook Cemetery, last updated November 22, 2010, http://www.friendsofsilverbrook.org/site4/obituaries/95-bacon-frederick-h

    Russell Cawyer, “Texas Has No Enforceable Service Letter Statute,” Texas Employment Law Update, December 2, 2011, http://www.texasemploymentlawupdate.com/2011/12/articles/human-resources/texas-has-no-enforceable-service-letter-statute/

    “Robert T. Cheek,” St. Louis, Missouri City Directories for 1910, 1913 and 1916, Ancestry.com. U.S. City Directories, 1822-1995 [database on-line]. Provo, UT, USA: Ancestry.com Operations, Inc., 2011.

    Richard C. Cortner, The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties. Madison, WI: University of Wisconsin Press, 1981.

    “Frederick H. Bacon,” Find a Grave, https://www.findagrave.com/cgi-bin/fg.cgi?page=gr&GSln=bacon&GSfn=frederick&GSmn=h&GSbyrel=all&GSdyrel=all&GSob=n&GRid=60501380&df=all&

    Klaus H. Heberle, “From Gitlow to Near: Judicial ‘Amendment’ by Absent-Minded Incrementalism,” The Journal of Politics, Vol. 34, No. 2 (May, 1972), pp. 458-483

    “Labor and Employment Laws in the State of Missouri,” Fisher and Phillips LLP, Attorneys at Law, www.laborlawyers.com.

    “Master and Servant: Blacklisting Statute: Failure to Give Service Letter,” Michigan Law Review, Vol. 8, No. 8 (Jun., 1910), pp. 684-685

    Ruth Mayhew, “States that Require an Employment Termination Letter,” http://work.chron.com/states-require-employment-termination-letter-24010.html

    Missouri State Board of Health, Bureau of Vital Statistics, Death Certificate for Robert T. Cheek, St. Louis, Missouri, c. March 1926 [courtesy of Ancestry.com]

    “Online Books by Frederick H. Bacon,” Online Books Page, University of Pennsylvania, http://bit.ly/2r9YTDm

    Robert Gildersleeve Patterson, Wage-Payment Legislation in the United States. Washington: Government Printing Office, 1918, p. 75

    James Z. Schwartz, “Thomas M. Patterson: Criticism of the Courts,” in Melvin I. Urofsky (ed.), 100 Americans Making Constitutional History: A Biographical History. Washington, DC: CQ Press, 2004, pp. 154-56.

    Ralph K. Soebbing,”The Missouri Service Letter Statute,” Missouri Law Review, Volume 31, Issue 4 Fall 1966 Article 2 Fall 1966, pp. 505-515.

  • But without government, who would build the People’s House?

     

    Derp, unlike oil, is a resource no country truly lacks. Now I would not dream of going for the crown of the Derpetologist, but I am not above sharing some fine vintage local derp. Now, as in all places, we are spoiled for choice around here, derp wise. But I gave a good long 30 seconds worth of thought about it and decided to go with something representative.

    You may not have heard, but Romania had a bit o’ ye olde communism going on a while ago. It may have been in the news over there, not that we got news back then. Anyway the fellar leading us through the multilaterally developed socialist utopia was a quasi-illiterate former cobbler called Nicky Ceausescu. Ol Nick presided over a country where food was a luxury, heating your apartment on a bitterly cold winter day a dream, and leaving the Utopia for the evil western countries a risky endeavor. Because what says Utopia like risking your life trying to get out?

    Whenever communism is criticized – and believe you me there is plenty to go around- the death, the torture, the oppression, lack of basic goods and lack of liberty – the great counterargument rears its ugly head. Well, someone will say, at least Ceausescu built something. Apartment buildings and industry!! Apartments in hideous brutalist concrete shells. Tiny, difficult to heat, crowded. Narrow alleys, no parking – the proles didn’t need cars, a capitalist affectation – no parks or green spaces. But build them he did, a great act of urban renewal that lead to entire neighborhoods being flattened after the inhabitants were unceremoniously kicked out of their homes. There might be a mayor or two outside Romania who would give this a try given the chance.

    Great Industry was built– randomly, badly placed, horribly inefficient and creating almost nothing of quality.  But it was built. And then it rusted. But everyone had a job! Well, yes, people did pretend work for pretend pay. Everyone had a job; food was scarcer, but jobs were to be had by all, for all the good that did.

    In Bucharest there is one of the largest buildings in the world. It is officially called Palace of the Parliament now, but most Romanians still call it by the communist moniker of The People’s house, or Casa Poporului in the local language.

    Now where the derp got truly amusing was when I heard the argument: without a big government could Romania have built Casa Poporului when it did? The argument was followed, amusingly, by a bit of almost self-awareness. The guy actually told me “I don’t want to hear about the need or efficiency of the building, but the principle stands that you need big government for large project such as that.”

    For what was before there, if anyone is interested, you can see more here (not my blog/pictures).

    So I ask you, libertarians, without big government could you evict hundreds of families, tear down their homes, and waste a tremendous amount of very scarce resources a poor country could ill afford in order to build a megalomaniac’s wet dream of a pointless slab of concrete full of marble and gilded chandeliers, without bothering to ask questions of its need or efficiency. Well, my humble answer would be no. How the bloody hell is that a bad thing?

    Funny enough, as a country gets rich enough, you will have some big pointless stuff being build, by rich people using their own money. But probably not to the scale of the Peoples House and probably not in the stage of development Romania was in.

    Also, the Danube to Black Sea canal would definitely not have been built. That is the place where the enemies of the revolution were sent to dig hard soil by using spades and shovels, with evening beatings as the recreation and leisure part of the day, and starvation level diets to avoid obesity and diabetes and such. No one knows how many died at the Canal, and how many lived in fear of being sent to the Canal for no apparent reason. So I ask you this, without Big government, who would send the wreckers to dig the canal, huh? Checkmate, libertarians.

  • Deregulating the Maritime Domain – Part 2

    Legislative Hurdles To National Security In The Civil Maritime Domain

    Ie.  A *Starting Point* for Maritime Deregulation

    Part 2.

    3. Commercial Shipbuilding Obstacles Hamstringing Maritime Development

    The second area in which existing legislation could be amended in order to affect a significant increase in national economic well-being is related to shipbuilding and maintenance policies.  Over the years, it is clear that the nation has allowed our shipbuilding capability to deteriorate to levels that severely impact our overall national security.  Simply in order to meet the requirements of the Jones Act, a vessel must be flagged in the US and have an all-citizen crew.  Additionally, the ship must have been built in the United States.

    Of the 126 active, registered shipyards operating in the United States, only 20 are recognized as capable of building large ships – and as demonstrated by the numbers, 10 out of 12 deep-draft vessels delivered in 2014 were ordered by the federal government.  In fact, taking into account the ongoing long-term Naval and Coast Guard construction and modernization projects, over 70% of total shipbuilding and repair revenues come strictly from military orders.  For further comparison, out of 1067 total shipyard deliveries in 2014, only 11 were made to the federal government.

    In short, while there is clearly a robust system for constructing and delivering smaller craft tailor-made to operate in the littoral region and inland waterways of the United States, the national capability to construct large vessels has vastly deteriorated since the second World War.

    • As a point of contrast, consider the shipbuilding industry in South Korea. Reviewing a report from 2015, in 2006 the industry employed approximately 150,000 people directly – but that number should be extrapolated higher over the intervening decade considering the increasing number of deliveries.  By comparison, MARAD recorded a little over 110,000 people directly involved in the domestic shipbuilding industry in 2013 (rising to 400,000 when including secondary jobs associated with the industry).  At the same time, for the year 2013, US shipbuilders delivered 227 ships and commercial vessels of which only 28 were above 2000 gross tonnage (GT) (including government orders) – and of those 21 were offshore support vessels or ocean-going barges.  By comparison, South Korean shipyards delivered at least 301 vessels measuring 5000 GT or more each in 2013, including offshore support vessels.  That there are several magnitudes of difference in production in spite of the numbers of employees involved in both cases reflects several issues.

    An improvement in the economy of scale is a goal to aspire to for any nation – and while the United States was previously capable of great strides in shipbuilding during specific periods such as World War II with the Liberty and Victory class freighters, at this date, delays and cost overruns are common – both in military and civilian shipbuilding.  A new cargo vessel can cost up to three times as much from a US commercial shipyard as one built overseas, while taking significantly longer.  Additionally, a common belief held by commercial carriers and operators is that US shipbuilders contribute to these factors by refusing to commit to fixed price contracts or delivery by a fixed date.

    Liberty Class Freighter

    While these commercial failings are frustrating, they can in turn be attributed in part to  the continuously growing burden of governmental regulations and standards placed on domestic companies, which will be discussed further below.  Traditionally, critics have pointed to lower environmental standards, salaries and costs of living in shipbuilding countries like China and South Korea – but as has been proven repeatedly before, a rising tide lifts all ships and we are rapidly seeing all of those factors approaching the western world – particularly in South Korea.  Simultaneously, examining the governmental policies of South Korea also provides an interesting contrast to the US.  While initially operating on several policies not dissimilar from the US regulations discussed here, by the mid 1980s, the government realized that corporate competition on an international scale was sufficient to allow domestic shipbuilding corporations to operate on their own under free market principles without excessive governmental support – and rescinded several key acts.  Additionally during a recession in the early 90s and periodically since then, the government has recognized the need to make additional capital available for expansions or upgrades of facility but these have been acts of limited duration with the intents of the measures highly specified.  These policies stand in contrast to the domestic regulations discussed here – some of which have been established for over a century and have consequently become that much more ingrained in the political consciousness – and accordingly difficult to address in a reasonable manner.

    • The issue of shipbuilding capabilities touches on several specific factors.  To begin with, it is a very capital-intensive industry.  Unlike building construction, which takes place from the ground up at the desired location – often utilizing a wide variety of mobile, easily transportable equipment and tools, shipbuilding requires very large, very expensive pieces of equipment that must be fixed in place (or potentially very costly to move in a limited fashion) in a set location.  In order to incentivize stakeholders to maintain or upgrade – or even develop and build – these facilities, there must be clearly achievable economic benefits to doing so.  Specifically, they must have an expectation of future orders on which to predicate continue operation – and in turn employee manning, secondary and tertiary orders and subcontracting requirements.
    Vancouver Wharves

    More to the point of this paper – once a company becomes insolvent or determines that the shipbuilding portion of their portfolio is no longer economical, mothballing or shuttering operations is a decidedly final step for equipment and facilities.  Without constant use or maintenance much related equipment – particularly dry-docking facilities or cranes – rapidly deteriorates, and the prime waterfront real estate these facilities occupy can be disposed of equally efficiently.  At this juncture, given the political realities – taking into account environmental regulations, particularly with finding an appropriate location, it would likely be very difficult to build, establish and open a new shipyard domestically without expending an extremely large amount of capital.

    As previously stated, there are well over 100 shipyards currently operating in the United States and many of them operate on a much smaller scale.  The geography of the United States with its myriad rivers and lakes, supports a broader, shallower base of smaller vessels that must still be built to detailed specifications in order to meet Jones Act requirements – which in turn do employ large numbers of employees.  Korea in contrast, builds virtually exclusively for blue-water operations, taking into account that over 90% of deliveries were for international buyers.

    Which consequently introduces the second issue regarding shipbuilding in the United States – to put it bluntly, there is no competitive advantage whatsoever for a corporation to construct a ship domestically.  Even if a company wanted to order large cargo vessels domestically in order to participate in Jones Act commerce, the turnaround time for almost any order would be significant, measured in years at a minimum.  This assumption is predicated strictly on the limited numbers of available domestic shipyards capable of actually constructing a large, ocean-going vessel.  One report commissioned by the US Navy in 1991 estimated that from conception to delivery, a new 42,000 DWT single shaft commercial cargo vessel would take approximately 57 months.  Of those numbers, the 12 month concept development window is the portion that would most likely be reduced – significantly – by the various technological advances that have taken place since the report was generated.  The 15 month contracting period and the 30 month construction period still appear largely accurate under the current industrial environment – although if the vessel was constructed in a shipyard owned by a parent corporation, that would probably result in a reduction in time as well.  While that situation is not rare to see in South Korea, at this date, none of the current US flagged shipping operators maintain their own shipyard facilities – although given the numbers involved, it is clearly not a surprise.

    While MARAD does run a number of incentive programs offering competitive loans and even grants for shipyard and port modernization and fleet upgrades to private corporations, it is telling that only a limited number of carriers reported direct experience with these loans, and that the surface consensus appeared to be that approval was overly complex.  Similarly, the official website for the Small Shipyard Grant program hasn’t been updated since 2013 and as of its last update, reported nearly $10 million in outstanding grant funding.

    (*NOTE*: site has been updated since this article was drafted in 2015 and reports there is no funding currently available – yay – and frankly – who really wants to be on the hook to Uncle Sugar?)

    4. Onerous Tax Burdens

    • One other legislative antique is the Ad Valorem duty on overseas ship repairs for US flagged ships – associated with the Tariff Act of 1930.  In short, for any repair work conducted on a US flagged vessel beyond emergent work necessary for safe operation – that is to say, routine overhaul maintenance or upgrades involving rebuilding more than a certain percentage of the superstructure or replacement of equipment measured in tonnage, must be conducted in a US shipyard or else face a 50% tax on the dollar value of the work.  While this measure was established to direct more work to US shipyards and US jobs, it is difficult to see at this juncture what its value is to the overall economy.  Indeed shipping companies report that even after paying the Ad Valorem duty, they are still saving a significant amount of money over the amount they would pay for the work to be conducted domestically.  This is to say nothing of the time involved waiting for an available shipyard to open up.  With so few large shipyards capable of handling larger cargo vessels, it becomes increasingly difficult to schedule availabilities in a timely manner.  [NOTE:  From my Navy experience the past 7 years, including multiple maintenance periods two of which were in dry-dock (both of which ran multiple months longer than originally scheduled) – this is an understatement if anything.] Different companies have different maintenance standards and while some may schedule repairs and refurbishments in advance of actual faults, in accordance with the tight budgets and timeframes of the shipping industry, others will gladly continue operation until forced otherwise.  In these cases in particular, the lack of an immediately available, affordable shipyard is a key factor in deciding to conduct necessary work overseas.

     

    Part one here

     

  • Separation of college and sex

    I’ve just finished The Campus Rape Frenzy, by K. C. Johnson and Stuart Taylor, Jr. The subtitle – The Attack on Due Process at America’s Universities – should dash any false hopes that this book is a STEVE SMITH adventure. It’s about how the federal government forced – or probably the right word is egged on – colleges to provide inadequate hearings for male students accused of sexual misconduct.

    The usual scenario is that Bob

    Can you think of a dirty joke I should have put here?

    and Betty

    According to Google Translate, "coed" is Welsh for "trees"
    Drive safely, indeed

    two hypothetical students at Hypothetical U, both drink a lot of booze, then get together and have sex.

    She's a moonshiner's daughter but I love her still
    Here’s a picture of the booze

    Later, sometimes much later, Betty decides that she was raped and, after failing to persuade the real-world judicial system of the reality of the crime (or neglecting to report the alleged crime to the real-world judicial system at all), takes the case to the campus “justice” system.

    In the name of being Tough on Rapists, the federal government – invoking the anti-sex-discrimination statute, Title IX – has encouraged the campus SJWs who were already pressing for making campus “courts” accuser-friendly. The campus “judges” are students, administrators and faculty who have been trained to view accusers sympathetically and to be on the lookout for those predatory rapists responsible for 1 in 5 or 1 in 4 coeds getting sexually assaulted. These “judges” are warned that the idea of large numbers of false accusations is a myth, and “only” 2%-8% of accused men are actually innocent. These statistics are phony, as the authors show.

    Never mind, though – combined with the “judges’” training is their ability to ignore many traditional due-process restraints on their power, restraints which might allow the accused man to throw a wrench or two in the accusation. The “courts” can put the defendant on trial on really short notice, they can limit his right to cross-examine the accuser, invoke the assistance of a lawyer, or present evidence in his own favor (there’s a lot of cases where the texts the “victim” sent at the time of the “rape” are not consistent with the behavior of the victim of such a crime, but the “judges” aren’t always interested in seeing these texts).

    Sometimes the trial is conducted by one person hired by the college to conduct and investigation and reach a verdict, without holding a full-dress hearing in front of both parties as in traditional Anglo-American trials. The judge/investigator just interviews the witnesses, gives the accused a (perhaps incomplete) summary of what the witnesses said, and then reaches a verdict.

    It almost gets to be like the old joke of the judge who didn’t want to hear the other side because hearing both sides tended to confuse him.

    The judge tends to jump to conclusions
    All rise for His Honor

    The bottom line is Bob is branded a rapist and suspended or expelled. It’s kind of hard for him to get another college to accept him, and many employers, seeing that the guy was branded a rapist, will be like “don’t call us, we’ll call you.”

    So if Bob or his family has enough money he can sue, and maybe win or maybe lose. But any victory, while it benefits Bob, doesn’t necessarily benefit the next guy who comes along accused of rape in the Kampus Kangaroo Kourt.

    And if there actually was a rape? In that case only the real-world justice system can impose the prison sentence needed to keep the rapist away from the public for term of years. Throwing an actual rapist out of college and out onto the streets seems a tad lenient, and not entirely safe.

    It looks like the inmates in this cell block only got a C in not-raping.
    You want to teach rapists not to rape? Send them to one of these educational institutions.

    Johnson and Taylor have all sorts of perfectly sensible ideas for reform, but I want to focus on one idea they reject.

    Johnson and Taylor indicate that it might be desirable to discourage students from getting drunk and screwing. This might annoy Jimmy Buffett (NSFW), as well as the “don’t blame the victim – teach rapists not to rape” crowd. But such discouragement is a good idea as far as it goes. Rape accusations flourish, as a practical matter, in vaguely-remembered encounters which may be regretted once sober, adding to which is how easy it is (according to university regulations) for alcohol to make consent to sex irrelevant. And current dogma means that if both Bob and Betty are drunk when they have sex, Bob is raping Betty but not vice versa. How colleges reconcile this doctrine with Title IX’s ban on sex discrimination is unclear, but that’s how the system operates.

    But Johnson and Taylor don’t go all the way (so to speak). They frown on drunken sex, but they scoff at the idea of discouraging student sex in general. They acknowledge that, given the kind of cases which lead to these “he said/she said” controversies, a good survival strategy might be “celibacy,” but the authors dismiss this as a “nonstarter[]” which “few will find appealing.” College students in the past – often from necessity – often managed not to rut like bunnies while pursuing their studies, but I suppose the idea is that we’re a more sophisticated, liberated, non-taboo-having, healthier people today.

    "Or-gy! Or-gy! Or-gy!"
    “I hate going to these orgies – so many thank-you notes to write afterwards.” /old joke

    What if colleges simply stopped encouraging student sex? That could make moot the question of how to handle drunken hookups by their students.

    Don’t mistake my meaning – I am speaking of the separation of college and sex, not the abolition of sex itself, although of course as you know abolishing sex is the ultimate objective of the Catholic conspiracy.

    Colleges can only do so much, and training the horniness out of its students is something which is beyond their capacity. But that doesn’t mean a college should provide boinking facilities for its students. No using dorms as sleepover facilities, fraternity would-be orgies, etc.

    When I worked as a student dormitory assistant, checking students into and out of their rooms, I felt like the clerk at a sleazy hotel. My job wasn’t to keep the guys out of the girls’ rooms or vice versa, but to make sure they left their student IDs at my office before going upstairs for their…whatever it was they did (probably not canasta).

    Just doing my job
    I was also the piano player

    Did colleges put up with this sort of thing in the past? No – although students weren’t any less horny than today. College education wasn’t as near-universal as now, you needed some money or enough talent to get a scholarship, but if you had one of these qualifications there were plenty of institutions to choose from. But generally, the colleges at least made an effort to keep the students on the straight and narrow.

    Mandatory chapel. Curfews. If the college admitted women (not a given), then there was separation between the sexes, and social events needed chaperones.

    Actually, I don't know if nuns actually chaperoned college dances, this is poetic license, people.
    “Don’t mind me, you kids just have fun.”

    Most students wouldn’t put up with that today. But that’s all right, most students don’t need to be at a modern residential college.

    We’re in a situation where colleges and universities ought to downsize anyway. A four-year sojourn at a residential college (often involving indebtedness and fairly sketchy post-college plans for promptly paying off that indebtedness) is not an essential part of every young person’s life, if it ever was.

    There are some career paths which may require studying at a residential college, some career paths which may call for online education (dropping by the local public library for proctored exams), and some career paths which may call for a good high school education (where it can be found) and/or an apprenticeship.

    And there are some people who may still go in for a liberal arts education as defined by Cardinal Newman – learning for its own sake, including the things associated with being a learned person, including theology, the “queen of the sciences.”

    Upholding the Cardinal virtues
    Blessed John Henry Newman

    In each of these situations, the college can separate itself from enabling its students’ sex lives.

    If a student is working on his or her online degree while holding down a job, then their college life and social life will run on separate tracks, for the most part, or if they get together with other students it will be off campus and they’ll have signed all sorts of forms that the college won’t be liable for broken hearts, broken bones, disease, death, etc., resulting from independently developing relationships with other students.

    Or if students are taking one of those intensive courses of study which requires a residential program, they should be warned to do their foolishness (if any) while they’re off campus.

    And at least in theory, nontraditional-age students supplementing their education, often online or through occasional visits to campus for class purposes, will have homes of their own and any kinkiness they do will be in those homes (and they should ask their spouses first, if any).

    And for those few liberal-arts residential colleges which survive the coming shakeup of higher education – those colleges should be unashamedly elitist, recruiting students who are actually committed to a course of study, with socializing with the other sex limited to chaperoned activities like in earlier times.

    (If a young man and woman meet at a residential college (or before going) and decide to get married, then of course after their marriage the college should put them in married-student housing.)

    I guess the one downside to my scheme would be that it would force the SJW “student life” bureaucrats to get other work.

    "As long as you're looking, can you find [insert name of unpopular sports player]'s talent?"
    Look carefully, and you might be able to see the violin on which I am playing “My Heart Bleeds for You”

  • What Somalia Proves

    “Well, if you hate the government so much, why don’t you just move to Somalia?!”

    This is one of the most common retorts to libertarian ideas along with “libertarians are just Republicans who want to smoke pot.” I’ll save that one for another time.

    Progs like talking about Somalia because they think it proves that libertarian ideas about limited government lead to chaos and misery.

    As I have said before, there are 3 kinds of derp:

    wrong: 2 + 2 = 5

    very wrong: 2 + 2 = -17

    not even wrong: hammer + tomato = January

    The idea that Somalia is a libertarian paradise is solidly in the not even wrong category.

    Mogadishu beach

    Let’s examine the claim in detail:

    1. Somalia is an awful place.

    2. Somalia has no government.

    3. A lack of government causes misery.

    4. Libertarians want to abolish the government.

    5. Since a lack of government causes misery, libertarians are wrong.

    All of these statements are wrong or irrelevant.

    Yes, compared to most countries, Somalia is a bad place to live. However, in terms of life expectancy, infant mortality, per capita income, and other measures, it’s not that much worse off than the countries around it. The main problem with Somalia is not its weak government; it is poverty. This is the same problem that Somalia’s neighbors Kenya, Ethiopia, Eritrea, and others have.

    Somalia does have a government. True, it is a weak, provisional government with limited control, but it still has a budget, a parliament, a president, a military, international recognition, etc. Most articles about Somalia are careful to note that it has not had a central government since 1991. They don’t say it has no government. In fact, Somalia has at least 2 major governments (the one based in the capital and the other based in the northern region) and many minor governments headed by warlords.

    A lack of government does not cause misery. Many countries with parliamentary systems have gone through long periods with no government because no coalition could win a majority and thus elect a prime minister. Countries on this list include Belgium. Did Belgium fall apart during the 589 days between 2010 and 2011 when it had no government? No.

    Libertarians do not want to abolish the government. In the last election, the libertarian presidential candidate got about 3% of the vote and he ran on a platform that included saving Social Security. Most libertarians do want much less government, but there is an important difference between less and none even if some people are too dumb or dishonest to notice.

    Lasa Geel rock paintings

    The evils of too much government far exceed too little government. Who would choose to live under the totalitarian government of North Korea over the semi-anarchy of Somalia? At least in Somalia I wouldn’t have to worry about me and my entire family for 3 generations being sent to a prison camp because I forgot to put on my mandatory Dear Leader pin. Unlike North Korea, you can leave Somalia without being shot at by border guards.

    If Somalia proves anything, it is that socialism always leads to death and suffering. Somalia was a socialist country from 1969 to 1991. It was a one-party socialist state officially allied with the USSR and modeled on it. The USSR switched sides after socialist Somalia attacked socialist Ethiopia (not the first time one socialist country attacked another) in 1979. The dictator of Somalia became increasingly authoritarian after a failed coup which resulted from the failed war in Ethiopia. The dictator was finally overthrown in 1991 by an alliance of rebel groups which then turned on each other.

    In short, saying that Somalia proves libertarians are wrong is like saying that a bank robbery proves that money is worthless. No, the reason Somalia is screwed up is because they did the *opposite* of what libertarians want just like the reason the bank got robbed is *because* the money is worth something.

    And that is all that needs to be said to the “why dontcha move to Somalia” morons.

  • Deregulating the Maritime Domain – Part 1

    The following article is adapted and abridged from a term paper I submitted for a Port Logistics and Management Course back in 2015.  If anyone is interested in seeing the full article or a complete list of references, just ask. For obvious structural reasons, rather than stick with my original footnote format, I will be linking directly to the references where appropriate (but not linking to the same article multiple times).

     

    Legislative Hurdles To National Security In The Civil Maritime Domain

    Ie.  A *Starting Point* for Maritime Deregulation

    Part 1.

    In 1890, RADM Alfred Thayer Mahan wrote, “The necessity of a navy, in the restricted sense of the word, springs from peaceful shipping, and disappears with it, except in the case of a nation which has aggressive tendencies, and keeps up a navy merely as a branch of the military establishment.”  This belief was shared by many legislators in the early twentieth century as the United States expanded its sphere of influence in the world and took a greater role in world affairs.  During that period, such pieces of legislation as are discussed below, played an important part in the development of our national maritime heritage – and set the stage for greater involvement on the world stage in the following years.  However, at this point in the 21st century, many of these regulations have outlived their original, stated (if not intended) purpose and serve now as barriers to greater economic expansion and security, while benefiting only a few vocal supporters at the expense of the greater population.

    The goal of this paper is to examine the potential costs and benefits of repealing the Jones Act and similar associated regulations.  Not in a strictly economic sense looking at the potential trade [im]balances, but more focused on the security aspects originally envisioned by the act and how relevant they remain nearly a century later and how they could potentially be improved for a net gain for the operators, government, and taxpayers.  A strictly economic consideration of the impact of rescinding the Jones Act previously published estimates a minimum net gain of approximately $700 million annually.  [NOTE:  This is an excellent, well-researched paper on the whole – although if anything it’s a little conservative on the economic benefits re: Alaska and Hawaii.  It also makes some good points re: previous deregulation of the trucking and rail industries and economic growth that followed as examples.  Recommended reading!]

    Although the Jones Act is the most well-known regulation limiting players in domestic water-borne trade, it is just one of a number of over-reaching regulations, which operate in concert to limit economic opportunities and growth – while similarly acting as potential barriers to improving national security options.  Upon closer consideration, legislation affecting the Jones Act alone will not in and of itself resolve some of the most pressing long-term national security considerations.

    To begin with, it is necessary to define the specific characteristics of the Jones Act and the associated pieces of legislation to be discussed below.

    • Merchant Marine Memorial

      The Merchant Marine Act of 1920 (46 USC), also known as the Jones Act.  This piece of legislation is centered on domestic commercial shipping utilizing the common term of cabotage.  Specifically, the Jones Act placed formal restrictions on the nature of all vessels engaged in trade on US waterways and between domestic ports.  This trade can only be conducted by vessels constructed, owned, and flagged in the United States registry and all crew must be US citizens.  The definition of domestic ports includes not only facilities in Hawaii and Alaska, but also the territories of Guam and Puerto Rico – although additional territories such as the Virgin Islands and Greater Marianas islands have been granted waivers.  Additionally, the Jones Act grants specific rights and privileges to seamen employed by US carriers.

    • The Merchant Marine Act of 1936 (46 USC 27) – contrary to popular belief regarding the Jones Act – in part due to its official title, this piece of legislation formally created a National Merchant Marine service for the United States – a formal federal service auxiliary that could be called upon to support national defense for transportation/logistics purposes in time of war or critical need – while the vessels themselves were owned and operated by private interests.
    • The Tariff Act of 1930 (19 CFR 1466) – a subordinate portion of the overarching Smoot-Hawley Tariff Act of 1930 specifically addresses limitations regarding the repair and refurbishment of Jones Act-qualified vessels. Excepting emergencies, only minor repairs are permitted in non-US shipyard facilities and operators violating this provision are required to pay a 50% tax on all work-related expenses.
    • The Maritime Security Program (MSP) of 1996 (46 CFR 296) – A program administered by the United States Maritime Administration (MARAD) providing funding to US flagged vessels in exchange for ensuring their availability for necessary military requirements in time of war or emergency.
    • The Military Cargo Preference Act of 1904 (10 USC 2631) requires all military materiel owned or procured by the military services of the United States to be transported by US flagged vessels where possible.

    In the cases of most pieces of legislation, including the sample posted above, it is possible to amend portions of the regulations without discarding the full law, but in many of these cases, we have reached a position in which it is significantly more beneficial to scrap the entirety of the regulation.

    2. Specific Limitations Associated with Crewing Practices on US-Flagged Vessels

    • A study by Price Waterhouse Coopers (PwC) on behalf of MARAD conducted a survey of US-flagged operators and non-US-flagged operators in order to determine the primary disparities in operating costs.  The primary determination was that the largest delta in expenses came from crewing costs.  Under the Jones Act, all vessels involved in cabotage and coast-wise trade must employ all US citizens.  That in and of itself is not particularly surprising given that the vast majority of the cabotage trade takes place on the inland waters of the United States, including the Great Lakes.  Somewhat more eye-opening is that, under the current regulations, every ship registered and flagged by the United States must demonstrate a 100% Citizen Crew Requirement, even those involved solely in international trade.

    Unsurprisingly, this policy is considered by a majority of commercial carriers to be a significant barrier to flagging a ship under the United States registry.  Not only is the pool of available employees significantly smaller – or shallower in this case – but the costs are vastly higher.  Between cost of living expenses, standard wages, insurance rates – inflated by Jones Act protections and benefits, and union fees, the average crewing cost of a US flagged vessel is well over five times as much as a comparable non-US-flagged vessel.

    There is one major counter to this policy, and it does provide an interesting contrast to the current civil regulations.  Both the US Navy and US Coast Guard allow (and have allowed since their inception) non-citizens to serve in enlisted roles throughout their surface forces.  This practice has multiple benefits not limited to providing an accelerated path to citizenship for qualified legal permanent residents (aka the kind of legal immigration we should continue to encourage), in addition to providing a steady source of ready, willing and able seamen to fill critical billets on all surface vessels.

    Although this has been a longstanding practice in the sea services (and likewise all the other military services), there has never been an outcry against volunteer non-citizen permanent resident service members taking away jobs and pay from citizens.  Traditionally permanent residents have strong ties to their communities locally wherever they are stationed – and the salary they receive would traditionally not leave the country aside from the case of remittances sent overseas in support of family.  Accordingly, it is difficult to envision any real loss of capital were all other Merchant Marine jobs opened to qualified, eligible, non-citizens and the Citizen Crew requirement for US flagged vessels rescinded.

    2. Continued Specific Limitations Associated with Crewing Practices on US-Flagged Vessels

    • An additional consideration in terms of lowering overall crew expenses is to re-examine the insurance requirements and labor union policies enforced by the Jones Act and similar pieces of legislation.  As in many other industries over the past few years, the evolving nature of operations has reduced the need for the union coverage and assistance.  Since the advent of the law – and increasingly rapidly in part due to containerization (beginning in the early ’50s) and more recent safety features introduced, the environment aboard vessels at sea has grown considerably safer and less hazardous on the whole – while specific vessel-types and operations obviously remain inherently risky by the nature of their locations and missions.  On a ship as anywhere else in our progressively more wired world, the optics of hazardous operations or personnel accidents are nearly instantaneously visible to newsrooms and shareholders alike – increasing the incentive to prioritize crew safety over equipment and profits.  Under the Jones Act however, a crewman retains the right to sue the carrier employing them – a practice which has raised insurance rates for US-flagged carriers far above the international average.
    Northeast Marine Pilot boat docked in Newport, RI

    One response to this may be found in a report made by the Cedar River Group on behalf of the Washington State Legislature.  This report was commissioned to examine the cost differentials to the state between state employees covered by the Jones Act working on Washington State Ferries and those other state employees covered by state Industrial Insurance.  The case of Washington state is unique compared to the other states operating state ferry systems (including Texas, North Carolina, Oregon, Alaska, and New York) because Washington alone has chosen not to invoke sovereign immunity and can therefore be sued by Jones Act eligible employees.  In a detailed summary, the numbers presented demonstrate that covering Jones Act eligible seamen by state Industrial Insurance would save the state money over the court costs and lawsuits brought under the Jones Act, but would also benefit the employees by providing insurance benefits in a far timelier manner than following the long wait associated with a lawsuit.  While the total dollar amount a seaman will receive may be less, the utility of receiving regular payments in a timely manner is far higher.

    While this solution would not currently be relevant to a private firm engaged in similar operations, the numbers do provide a valuable, practical, realistic sampling to use for comparison.  This is the sort of precedent that could be used to demonstrate adequate coverage and model updated insurance costs should the Jones Act be revised to better meet current national requirements.  It must be noted however, that all the forecast estimates were based on pre-existing cases and developed prior to full passage and implementation of the Affordable Care Act – a key variable which will require additional review.

  • Mormons and the Bill of Rights, Part Three, Shoot-em-up edition

    (Check out Part One and Part Two)

    SCENE:

    The West. Two cowboys, Bart and Biff, are sitting around a campfire…

    BIFF: Well, we’ve amused ourselves quite a bit lighting our own farts, now let’s find some other way to entertain ourselves.

    BART: Let’s tell the story of “Gunplay” Maxwell.

    BIFF: OK, let’s see…”Gunplay” Maxwell is known as a Western outlaw, but he was actually born James Otis Bliss, the son of a respectable businessman in Massachusetts. I heard tell that when things got too hot for him in the West, Maxwell/Bliss would send his wife and daughter to live with his Bliss relatives in Massachusetts until things cooled down.

    BART: But when she wasn’t in Massachusetts, his wife would be with him to help him out in his criminal pursuits.

    BIFF: Now, some say that Maxwell was turned down for membership in Butch Cassidy’s gang…

     

    "I mean, even we have standards"
    “We have considered your application, Mr. Maxwell, and we’re sorry to say we have no positions available at present. We’ll keep your resume on file.”

    BART: That ain’t the way I heard it. Way I heard it, Maxwell was in on some of Butch Cassidy’s gang’s jobs.

    BIFF: When we’re looking at the career of “Gunplay” Maxwell, it looks a lot like that Japanese movie Rashomon.

    BART: Never seen it.

    BIFF: ‘Course you never seen it, it ain’t been made yet, but you’re supposed to pretend you’ve seen it, so you can look sophisticated.

    BART: …says Mr. “Look at me lighting my own farts.”

    BIFF: Anyways, the historiographical conflicts have yet to be resolved, but Maxwell was either an outlaw with Cassidy’s gang, or else he was acting just with his own gang, rustling cattle and stuff like that.

    BART: And supposedly, one time the cops were out to arrest him, and he was going to turn himself in, but his wife said he was being a wimp so he got away and stayed on the run.

    BIFF: And a lot of his jobs were supposedly planned with the help of a local postmaster.

    BART: Ha ha, going postal.

    BIFF: But the important part of the story takes place in Springville, Utah on May 28, 1898, when an alarm from the bank was linked to a store across the street. Now, the storekeeper hear the alarm go off, but at first he didn’t think anything of it, because there had been a lot of false alarms lately…

    File:StudioFlat-Alarm.JPG

    BART: But the fact that we’re sitting here talking about it now is kind of a tip-off that it wasn’t no false alarm this time…

    BIFF: Yeah, it was the Maxwell gang trying to rob the bank, but the teller had the presence of mind to trigger the alarm.

    BART: Yeah, so the townspeople formed a posse.

    BIFF: And they killed Maxwell’s companion, but they took Maxwell alive, and he was convicted.

    BART: So Maxwell got himself a lawyer and took his case to the highest court in the land.

    BIFF: Judge Judy?

    BART: No, dummy, the U. S. Supreme Court. Now, the Supremes had previously given a decision that said a trial by jury meant a trial by exactly 12 jurors. Yet Maxwell’s jury, in accordance with the Utah Constitution, had only eight members.

    Close enough for government work
    Eight is enough?

    BIFF: Those Mormons, amirite?

    BART: Sure, the Mormons agreed to put this idea of 8-person juries (with certain exceptions) in the Utah constitution, but it wasn’t strictly the Mormons’ idea. It was the idea of some non-Mormon lawyers who were members of the state constitutional convention, like C. C. Goodwin. In fact, Goodwin was very disparaging of the idea of trial by jury and openly fantasized about abolishing juries altogether.

    BIFF: Is that the same C. C. Goodwin who ran the anti-Mormon Salt Lake Tribune? The guy who supported the federal prosecution of Mormon polygamists? Why would the delegates care about what he said? Wouldn’t they do the opposite of what Goodwin wanted?

    BART: Danged if I know. When the state constitution was being written in 1895 there seems to have been kind of a truce between the Mormons and their erstwhile oppressors, and this Goodwin fella used to be a judge, so I guess they were willing to listen to his legal expertise…

    BIFF: Earth to Mormons: Don’t take advice from your sworn enemies about whether to dilute your constitutional rights! But the U. S. Supremes said that a jury means 12 people, so I guess Maxwell won his case?

    BART: No, actually, because even though the Supreme Court said a jury means 12 people, in Maxwell’s case the Supreme Court also said that the states don’t have to have trial by jury. So since Maxwell didn’t have the right to a trial by jury, it didn’t matter how many jurors he had, or even if he had any jurors at all.

    BIFF: Well if that don’t beat all! So what did happen to Maxwell?

    BART: He got together a bunch of local citizens, including the judge at his trial, who persuaded the parole board to release him. It helped that Maxwell assisted in stopping a jailbreak by other inmates.

    BIFF: Do you have a link?

    BART: Here.

    BIFF: So, was Maxwell rehabilitated?

    BART: I dunno, maybe you could say he was rehabilitated…right up until he picked a fight and got fatally shot. Some say he was planning another job at the time.

    BIFF: That Rashomon thing again.

    BART: But in the 1960s, the Supreme Court admitted that states have to provide jury trials, at least to those accused of serious crimes.

    BIFF: So now we all have a right to a 12-person jury?

    BART: No, because the Supremes also said around that time that a jury doesn’t need twelve people anymore. Maybe it can be as few as six.

    BIFF: So they changed their mind about that, too? But the fewer jurors you have, the less of a cross-section of the community you’ve got.

    BART: I think that’s the point.

     

    Book Learnin’ that I Consulted

    Erma Armstrong, “Aunt Ada & the Outlaws: The Story of C. L. Maxwell.” The Outlaw Trail Journal, Winter 1997.

    Raoul Berger, “Trial by Jury:” Six or Twelve Jurors,” in Government by Judiciary: The Transformation of the Fourteenth Amendment. Cambridge, MA: Harvard University Press, 1977, pp. 397-406.

    “C.L. aka John Carter “Gunplay” Maxwell,” https://www.findagrave.com/cgi-bin/fg.cgi?page=gr&GRid=5459997.

    Richard C. Courtner, The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties. Madison: The University of Wisconsin Press, 1981.

    “Gunplay Maxwell – Utah Gunfighter and Outlaw.” http://www.legendsofamerica.com/we-gunplaymaxwell.html

    Official Report of the Proceedings and Debates of the Convention Assembled at Salt Lake City on the Fourth Day of March, 1895, to Adopt a Constitution for the State of Utah, Volume 1. Salt Lake City: Star Printing Company, 1898.

    Charles S. Peterson and Brian Q. Cannon, The Awkward State of Utah: Coming of Age in the Nation, 1896-1945. Salt Lake City: University of Utah Press, 2015.

    Michael Rutter, “Gunplay Maxwell, the Wannabe Gunman,” in Outlaw Tales of Utah: True Stories of the Beehive State’s Most Infamous Crooks, Culprits and Cutthtroats. Guilford, Conn: Twodot Press, 2011, pp. 156-165.

    Jean Bickmore White, Charter for Statehood: The Story of Utah’s State Constitution. Salt Lake City: University of Utah Press, 1996.

     

  • Musings from the Trash Can #2: The Muppet Mumbles

    Like the first installment, I talk about a bunch of different things in one or two sentence snippets. First off, some music to set the mood.

    • I’m continuing to listen to my biography of William Tecumseh Sherman. I feel like I have a new revelation every day about how fucked up our cultural memory of the Civil War is. For example, the guy had absolutely no love for slaves. He seemed to think it embarrassing that the abolitionists pushed “the negro issue” to the point of war. For him, slavery wasn’t the slap in the face, secession was. There seemed to be a general consensus in the mid-1850s that slavery would eventually go away if they didn’t politicize the issue.
    • Yuengling is better than I remember it. It’s a good “cheap beer.”
    • Baby Trshmnstr is hours or days away, and she’s already expensive. A questionable result on a sonogram resulted in 2 specialist appointments before the specialist came to the conclusion that this was all kicked off by a shoddy original sonogram. Sometimes things just work out, and you don’t need tech to monitor every little thing. We were teetering on the edge of inducing at 36 weeks because a sono tech was having a bad day.
    • Just like in most other parts of life, negotiating is all about preparation. Without preparation, you’re pretty much guaranteed to be taken advantage of.
    • Paying college athletes is the dumbest idea ever. I’d be cool with a small stipend increase or something, but paying them a salary will torpedo non-revenue sports, put the final nail in the coffin of the “student-athlete,” and intractably separate the blue-bloods from everybody else.
      • You know what’s dumber than paying college athletes? The solution some moron on a sports board had to the issue: socializing all aspects of college so that the athletes didn’t have to pay for a night out at the movies.
    • Something has changed recently in the way that California is viewed by the rest of the country. It’s one thing for people in Texas and Nebraska to see California as a completely different country. It’s another thing when the Mid-Atlantic and New England have a complete disconnect from California.  I don’t think it’s quite there yet, but I’m a little surprised how much the DCers I’ve met since moving here are just as down on California as Texans are.
    • I’ve tried concealed carrying my S&W M&P9 Shield, but my holster is uncomfortable. Some of it is that I need to lose some of the muffintop so it stops rubbing on the butt of the gun. Some of it is that it’s a single clip holster, so it’s constantly rotating on my belt into uncomfortable positions. Here’s the holster I got. Any suggestions?