August 2023 – davelevy.info

The 14th amendment and oath-breakers

In the linked video, Michael Pocock, a lawyer correspondent on the Meidas Network expresses his delight at Baude and Paulsen’s white paper, “The Sweep and Force of Section 3” which argues that the 14^th amendment to the Constitution prohibits Donald Trump from holding any federal office, including that of President as the clause forbids holding office by former office holders who then participate in insurrection or rebellion. Baude and Paulson are well known and respected judicial scholars and members of the Federalist Society and known supporters of the originalist doctrine of interpretation of the Constitution.

The abstract is a powerful summary,

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.

They argue that election officials should refuse to put his name on the ballot.

This story was also carried by MSNBC, in the Reidout, which I recommend viewing for the poetic way in which Joy Reid introduces the interview, starting from the Hollywood strike, and its tales of fantasy, to the dangerous application of these fantasies to modern US politics.

Baude, William and Paulsen, Michael Stokes, The Sweep and Force of Section Three (August 9, 2023). University of Pennsylvania Law Review, Vol. 172, 2024, Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751

I originally wrote this on the 12th August, and the story has run and run. I predict it will go to court, or many of them. …

Triangulation and abuse

It is clear that Labour’s leadership are executing the New Labour playbook with a touch of 20^th century triangulation by pandering exclusively to communities that don’t vote for them and adding the practice of trolling those that do. On issues from foreign policy, public sector pay, fiscal policy and the EU, we can see this to be so.

In James Surowiecki’s book the Wisdom of Crowds, he examines the behavioural economics game of “Ultimatum”, which shows that you can’t take people for granted, if people don’t like the rules they won’t play the game.

In Ultimatum, players are divided into groups of two, and one is the proposer, who proposes how to split $10,000, the second player can accept or reject. If rejected, neither gets anything. Economic rationalism suggests that the second player will always accept any offer; however, reality tells a different story. The second player on the whole rejected lowball offers that they think to be unfair. Interestingly, in a second round, both players were told that the proposers had got high scores in a test, and in those circumstances the average at which proposals were rejected fell; if people thought the proposer’s deserved the privilege of proposing, then offers the accepters might once have considered unacceptable became acceptable.

In politics, as in life, you can’t take people for granted! You’d have thought that Labour had learnt this truth. …

Science & Brexit

I wrote something more on immigration and Horizon, based on the report that the UK has had three applications for its super highly skilled visa scheme. I argue that the focus on prize winners is foolish, we need the next generation of prize winners, and that being out of Horizon Europe makes UK based innovators less attractive collaborators. I make a cheap crack about how this shows the emptiness of Sunak’s ambition to be a science super power. The article is on Linkedin and Medium, entitled, “Science, the UK and Horizon Europe, again”. It was followed up in the Independent. …

Whose jobs are AI coming for?

McKinsey have produced a report on the role of generative AI on productivity and the future economy. The white paper can be found on their website. They launched the paper with a series of webinars, one of which I attended. Here are my notes and thoughts …

The first point they wanted to make was that they don’t believe it will make programmers redundant. This is not the view of Forbes, who argue that these new machines will reduce the need for human programmers. My limited experience with ChatGPT suggests that its quite good at writing code, although it needed customising before use, but it was not so good at drafting laws, which is curious because as Lessig argues, “Code is Law”.

Historically IT has automated low wage information processing jobs. While information processing is considerably broader than paper pushing, the new generation of AI tools are capable of adding significant value to people working higher up the data, information, knowledge, wisdom pyramid. , such as teachers, lawyers and doctors.

The speakers at my webinar said that life’s getting better, a proposition I question. I add, economic activity still fundamentally requires inputs of labour and capital. It is my contention that software and information systems are difficult to categorise as uniquely belonging to one of these classes of resource. However, to reduce the workforce headcount, it is necessary to increase productivity. Under capitalism, we need to recognise not the benefits of increased productivity are unlikely to go to the workers.

In the light of these macro-economic trends, we also need to consider both those jobs but cannot yet be automated, the manipulation of the real world, and those for whom there is no work, the latter implying that we need to consider our Social Security systems and training/retraining opportunities.

Some creative workers have already raised issues about the use of their copyrighted work to train these AI systems. This is not the last time that our industrial age intellectual property laws come into conflict with the needs of 21st century IT systems. We have seen constant and persistent battles between the DatenKraken and industrial age music monopolies; a political fight that has generally been won by the content owners, claiming a moral case on behalf of the creators. It should be noted that even exceptionally creative programming staff are not paid by royalty and neither are firefighters. Admittedly this is a decision taken by the creators themselves, although the creative industry monopolies have an immense amount of say in the payment models used.

Forbes suggests that, financial services, media & marketing and legal services jobs are particularly vulnerable andn threse industries will be able to take advantage of these new technologies. What they say about legal services shows that the opportunity to use the productivity increases to enable more customers to obtain legal advice may well occur. I’ll be happy if the current generation of virtual assistants could do more than qualify if you need to speak to a human being. Forbes and McKinsey disagree about whether AI systems will impact Life Sciences with McKinsey saying it will and Forbes taking the opposite view. McKinsey also think that AI will impact the Retail sector. They both agree that one of the biggest impacts will be in software engineering, The McKinsey reports has a chart/scattergram plotting impact in dollars vs the proportion of cost i.e. how much and how important are these benefits, the highlight being that software engineering will be heavily impacted. ( I wonder if it will increase the quantity of user authored apps, today, a source of significant risk.)

One of the curious things about this article, is that I was tidying up my office space and came across, my notes of the McKinsey webinar and also a copy of “Don’t Automate, Obliterate”, which I read for the first time in 25 years. It seems less fearful today, I was first introduced to this paper in the 90s, where it was seen as part of a trend to “half the workforce, double the fear, and quadruple the profits”. On rereading, I see it as a call to look at process is in a holistic way and focus on outcomes. Several of Hammer’s examples of effective process redesign come from the early days of the Ford Motor Company, so they weren’t exactly revolutionary processes at the time the paper was published. The big idea that came out of the 90s and automation was supply chain management and EDI. The IT tools being produced required new skills, but not less hours. There seems to be, always more to do. Perhaps it’ll be the same this time.

It’s important that the politicians and regulators get there first. I have already mentioned copyrights, but product liability is another area of concern, and AI will require expert human supervision in the field of the professions for many years to come. Other areas of concern are surveillance, and working hours, both of which should be limited by law. It’s time to #JoinaUnion.

Featured Image Credit: Merrill College of Journalism CC 2012 BY-NC virtual human …

Insurrectionists and the Presidency

In this video, Michael Pocock a lawyer correspondent on the Meidas Network expresses his delight at Baude and Paulsen’s white paper, “The Sweep and Force of Section 3” which argues that the 14^th amendment to the Constitution prohibits Donald Trump from holding any federal office, including that of President as the clause forbids holding office by former office holders who then participate in insurrection or rebellion. Baude and Paulson are well known and respected judicial scholars and members of the Federalist Society and known supporters of the originalist doctrine of interpretation of the Constitution.They would seem not to be progressives and not natural opponents of the Republican Party.

The abstract is a powerful summary,

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.

They argue that election officials may if not should, refuse to put his name on the ballot.

There is not great originality in this post and I have learnt that foreigners comment on the US politics are often unwelcome, but I think this should be read. It’s hard to find politicians with principles these days and when we find them, they need to be congratulated.

Image Credit: From wikimedia commons, authored by shutterbugsage, English: 14th Amendment sign at the entrance of the Brown v Board of Education Historical Site in Topeka, KS. …

A bad week for Brexit

It’s been a bad week for Brexit and its supporters; the shit in the sea has become a world wide disgrace after disrupting a world triathlon competition. The government have also delayed the introduction of the agreed border controls to implement the customs checks and they have abandoned the plan to have a UK quality standard. For more, use the "Read More" button. ...

Ralph Miliband on Labour’s last year in opposition

But that was in 1963, sixty years ago. Due to some personal reappraisals of my politics, I have been looking at the writing of Ralph Miliband and was pointed at an article he wrote in the run up to the 1964 election, called “If Labour wins”, republished in the New Left Review. I found it worth reading to observe the parallels between then and now. Wilson’s Labour were leading in the polls, the Tories had suffered the setbacks of Suez, and the Profumo affair and replaced a popular and powerful leader with a patrician land owner who was not even an MP arguable a stalemate choice between the then two leading Tory candidates.

This article contains a number of quotes from the article, as they speak for themselves, although of course I can’t help but comment. I have collected the quotes and comments into pieces on culture and comedy, economics, foreign affairs, corruption, campaigning and hope and the Labour left. … …

Tony Blair on today’s politics

Tony Blair hosted an interview at a “Tony Blair institute” event with Keir Starmer. Some have announced this as his anointment of Sir Keir. Of much interest, has been the companion interview, published (£) in the New Statesman, in which Tony Blair talks of the UK rejoining EU. The Independent reflect on this article and are joined by several youtubers, and John Crace, again in the Guardian.

In the New Statesman article, which is signed by Andrew Marr, it says, ‘Does he see any realistic prospect of going back into the EU, or even the customs union or single market? “Well, I believe at some point a future generation will take Britain back into Europe, and, you know, you just have to look at what’s happened.”’

To me, a future generation is 20 years away, optimistically, from 2016, and I wonder if the UK’s democracy and economy can wait that long. The conference and interview coincided with the first time polls report that a majority of the UK want to rejoin the EU and not just its single market. This point is made in the Independent article. The reason is two fold, some communities that believed the lies of the Leave campaigns, such as fishing and farming, have now experienced the impact of those lies in less jobs and higher prices and weaker export markets. The second reason is that as young people grow older and get the vote and older mainly leave voters die, again the majority opinion changes.

Of course, the usual Brexit cheerleaders interpret Blair’s comments as in contradiction to Starmer’s but the clue is in the phrase, a future generation.

Labour’s leadership claim that it’s settled, I say, it’s not. Starmer’s terms for “Fixing Brexit” are a variation of cakeism, he only proposes what he thinks benefits the UK: student exchange, creative workers tours and professional services. To them it remains solely about money, a continuation of our reputation as a nation of shop keepers. It’s not good enough!

In later articles, Blair suggests that the UK can trade non-competent issue co-operation for part membership of the single market. I doubt this will fly, no co-operation on the criminal justice system without the Charter of Fundamental Rights and the Court. …