After the cancelled talks between U.S. President Donald Trump and the Taliban, it is most likely that U.S. troops currently deployed in the country will remain there without a set time for return for now. Currently, it is estimated that around 14,000 U.S. troops, among them active duty personnel, members of the National Guard and Reserve as well as Civilians (contractors, DOD employees), remain in Afghanistan.
As Statista’s Katharina Buchholz notes, between 2013 and 2015, the bulk of the personnel stationed in the Central Asian country was pulled out, as our graphic shows. Since then numbers have been fluctuating reflecting the uncertainty around the U.S. military’s prolonged mission to the country. In 2018, the Trump administration stopped publishing detailed accounts of the troops in Afghanistan through Department of Defense records, but it is likely that the Army still makes up the majority of forces deployed to the country.
The U.S. military engagement in Afghanistan is America’s longest war. The current NATO-led operation in Afghanistan is called “Resolute Support” and aims to train and advise the Afghan security forces.
A large number of Americans still don’t believe the official version of the 9/11 attacks on New York and Washington. I am one of them.
The government and tame media version – that crazed Muslims directed by Osama bin Laden attacked New York’s twin towers and the Pentagon because they hated ‘our freedoms’ and our religions – is wearing very thin as contrary evidence piles up.
Ever since the attacks, I’ve held the belief that neither bin Laden nor Afghanistan’s Taliban were involved, though bin Laden did applaud the attacks after the fact and remains a key suspect. Unfortunately, he was murdered by a US hit squad instead of being brought to the US to stand trial. Mullah Omar, the Taliban leader, was adamant that bin Laden was not behind the attacks.
So who did it?
In my view, the attacks were financed by private citizens in Saudi Arabia and organized from Germany and possibly Spain. All the hijackers came from states nominally allied to the US or its protectorates.
Fifteen of the 19 were Saudis. Two came from the United Arab Emirates (UAE), and one each from Egypt and Lebanon. Amazingly, during the national uproar after the attacks, little attention was focused on Saudi Arabia, a key US ally (or protectorate) even though most of the hijackers were Saudi citizens, and a planeload of important Saudis were quietly ushered out of the US by the CIA soon after the attacks.
Saudi Arabia was too important to US domination of the Mideast to point any fingers at the Saudis. The Saudi royal regime in Riyadh did not appear to have been involved – why would it since their survival and gravy train depended on US protection?
But the royal regime does not represent all Saudis, as many people believe. Saudi Arabia is a collection of tribes played off against one another by Riyadh and kept in line by the US Air Force from its bases in Saudi and a tribal force, ‘the white army,’ led by American ‘advisors.’ Saudi Arabia has little in the way of a regular army because its rulers fear coups by the armed forces such as occurred in Egypt, Iraq and Syria.
In addition, over 40,000 Americans live and work in Saudi. Another 5,000 US military personnel are stationed there. Much of the kingdom’s technology – banking, telecommunications, airports and flights, trains, military affairs, TV and radio – are supervised by foreigners. This process began in the 1920’s when the British moved into Arabia and helped promote the Saudi tribe to prominence.
A sizeable Yemeni community lives in Saudi. The bin Laden family originally hailed from Yemen. Saudi also has an important Shia Muslim minority, about 20% of the population, with smaller numbers of other Muslim sects. Most important, the reactionary, ultra rigid Wahabi religious sect still dominates the nation and royal family. The Wahabis hate Shia, calling them apostates and heretics. A similar dim view is taken of the nine million foreign workers, principally Indians, Pakistanis and other South Asians, who do all of the Kingdom’s dirty work.
Within the complexities of Saudi Society lie bitterly anti-western groups who see the nation as being militarily occupied by the US and exploited – even pillaged – by foreigners. Arabia was originally the holy land of Islam. Today, it has been westernized, occupied by US military power, and given marching orders by Washington.
While covering the Afghan War in the 1980’s, I met Sheikh Abdullah Azzam, a fiery nationalist leader and anti-communist who was bin Laden’s teacher and spiritual mentor.
“When we succeed in kicking the Russians out of Afghanistan,” Azzam told me, “we will go on and kick the Americans out of Saudi Arabia.” I was shocked, never having heard of Americans called ‘occupiers’. Azzam was murdered by a bomb soon after, but his words kept ringing in my ears. He thought of the Americans as much colonialists as the Soviets.
Private nationalist groups in Saudi who bitterly opposed foreign domination of their country could very well have financed and organized 9/11. But, of course, Washington could not admit this. That would have brought into question the US occupation of Saudi.
What’s also pretty clear is that Israel – at minimum – knew the attack was coming yet failed to warn its American ‘allies.’ Israel was the chief beneficiary of the 9/11 attacks – yet its bumbling Arab foes and bin Laden were blamed for this crime.
YouTubers Who Planned Invasion Of Area 51 Arrested For Trespassing 10 Miles From Base
Police near Area 51 have arrested two vloggers for trespassing near the secret military base after planning an invasion of the site, according to the Daily Star.
Dutch YouTubers Ties Granzier and his friend Govert Charles Wilhelmus Jacob Sweep are being held by police after being found inside of the base’s “score zone”. The men were found filming three miles inside of the Nevada National Security Site, which is 10 miles outside of Area 51.
According to the Nye County Sheriff’s office, the men saw “No Trespassing” signs, but chose to ignore them. The men then told police they wanted to “look at the facility”.
Police confiscated cameras, a phone, a laptop and a drone inside of their car that had video footage from inside of area. Granzier has more than 730,000 subscribers on YouTube.
Before being arrested, he brilliantly posted on Instagram that he was heading toward Area 51. He said: “We didn’t have any intention to storm it because we leave one day before the actual storming dates. We just wanted to go there.”
The arrests could be a microcosm of what’s to come: Area 51 is expecting an “onslaught” of trespassers in coming weeks
Recall, we reported that more than 700,000 Facebook users (now as many as 2 million) had “jokingly” signed up to a group that was planning to storm Area 51 this month. The U.S. Air Force site is often the center of many alien conspiracy theories and the “joke” idea was an attempt to “see them aliens”.
We followed up on that report days later, noting that it looked as though the government wanted to make sure that those behind the “joke” knew it is being taken very seriously. According to CNN, a spokesperson for the U.S. Air Force said: “[Area 51] is an open training range for the U.S. Air Force, and we would discourage anyone from trying to come into the area where we train American armed forces.”
The statement then includes the ominous sounding sentence:
“The U.S. Air Force always stands ready to protect America and its assets.”
According to TMZ, authorities had also said that “anyone who commits a crime in or around Area 51 — including trespassing — will be arrested and prosecuted to the fullest extent of local and military law.”
In addition, “local cops will work together to curb any attempts to even wander near Area 51 property,” the statement says.
This is the latest in a series of posts about The Mischief Rule. The following extract focuses on some of the implications of reconsidering the mischief rule. Since some readers have wondered about the Constitution and the mischief rule, and about the connection with pragmatics, I’m including two footnotes here (renumbered as “*” and “**”). Enjoy!
Consider three implications of taking the mischief as part of context.
First, there is less pressure on the statutory language. Language never fully expresses intention, and the inadequacy of legal language has been remarked upon since the days of Aristotle. But that inadequacy is partially ameliorated by the mischief rule’s stopping-point and clever-evasion functions. Both offer a certain kind of solace to the legislator. One offers some assurance that her decision today on x will not be read as a decision tomorrow on y. (Sufficient for the statute is the evil thereof.) The other offers some assurance to the legislator that her statute will not be circumvented by clever tricks.
Second, there is less surprise and more notice. Of course the functions of the mischief rule allow, indeed require, judgment, characterization, and subjectivity on the part of the interpreter. Like other elements of context, the mischief rule does not reduce discretion; it does not exclude interpretive options, and it may even expand them. But if the interpreter considers the mischief as part of the context for the statute, the enacting legislature is less likely to be surprised by the effect given to its work. In CSX, Yates, and Zarda, for example, the application of the mischief rule would arguably make the reach of the statute less surprising—not just to the enacting Congress, but also to the reasonable reader at the time of enactment. Although the optimal amount of surprise for the enacting legislature and the reasonable contemporaneous reader is probably not zero, it is also not massive: the mischief rule keeps the subsequent surprises smaller than they otherwise would be.
Finally, thinking about the mischief as part of context highlights a pivotal step in legal interpretation: the construction of ambiguity or non-ambiguity. Once the interpreter has determined that a text is ambiguous, a host of canons and interpretive considerations come into play. Should the mischief rule be considered one of them? Or should it be part of the conscientious interpreter’s “initial reading,” which might determine whether the text is ambiguous?
An example of why this choice matters is Bond v. United States, in which the majority opinion of Chief Justice Roberts is pervaded by an argument that the statute, read in the context from which it arose, was “about” something. That knowledge of what the statute was about—its mischief—led the Court to treat it as ambiguous. In a separate opinion, Justice Scalia refused to read the text in light of the concerns that led to its enactment. To put his critique in a pointed form, we could say he thought the text was being put on a Procrustean bed, with the interpreter tightening or stretching the text to align with the mischief. But that is to treat the text as logically prior to its context, as if it should be (or even could be) read without a context. To the contrary, reading the text in its legal and temporal context is not an act of violence; it is a step toward understanding. Context helps the interpreter see that there is a choice about the scope of the statute, and it guides the choice.*
The mischief rule is a legal instantiation of a common-sense point about all interpretation. To understand statement x, the interpreter wants to know what preceded it. That is not just other statements, but also the situation in which the statement was made. To understand a line of dialogue, it is helpful to know the preceding line of dialogue. It is also helpful to know the situation in which the characters find themselves, to know whether this line of dialogue was spoken in response to seeing a live shark or a rubber duck. Although the mischief rule has distinctive qualities that are relevant for law, as discussed below in Parts II and III, the underlying intuition will recur as long as human beings are interpreting texts.** It is therefore no surprise that even as the concept of the mischief has receded from U.S. legal scholarship, the basic intuition remains pervasive in judicial interpretation, even though it is insufficiently developed and inadequately understood.
FOOTNOTES
* This is a well-trod path in constitutional interpretation. In Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), for example, Chief Justice Marshall did not find the text unambiguous and stop, saying, “What part of ‘nor shall private property be taken’ do you not understand?” Instead he relied on legal context (the “no state shall” pattern from Article I) and temporal context (“the history of the day” showing the concern with federal abuse of power), which together had the effect of both showing and resolving the textual ambiguity.
Nevertheless, there are reasons to distinguish the Constitution from statutory provisions. On the one hand, knowing the mischief may be even more necessary for a constitutional provision, given its more spare text (hence routine use of the mischief for constitutional provisions even by those who reject it for statutes). On the other hand, one might think that the mischief should have less weight in determining the meaning of a constitutional provision, because the Constitution is meant to last longer than a statute. See Zarda v. Altitude Express, Inc., 883 F.3d 100, 165 (2d Cir. 2018) (Lynch, J., dissenting). For discussion of constitutional provisions and their “paradigm cases,” see Jed Rubenfeld, The Paradigm-Case Method, 115 Yale L. J. 1977 (2006). For a response to an earlier form of Rubenfeld’s argument, see Michael W. McConnell, Textualism and the Dead Hand of the Past, 66 Geo. Wash. L. Rev.1127 (1998).
** The general point is that the meaning of some expressions is dependent on context. See generally Bach, supra note 6 (distinguishing semantics and pragmatics). More specifically, the meaning of an expression on a particular occasion may depend on tacit domain quantifiers. Whether such quantifiers should be classified as pragmatic is debated, e.g., Stanley, Jason & Zoltan G. Szabo, On quantifier domain restriction, 15 Mind & Language 219 (2000). Regardless, the intuition is easily grasped:
If I were to open the fridge in search of beer and say “there is no beer,” what you would probably understand me to be saying is that there is no beer in the fridge. In other words, you would take me to be tacitly restricting the domain of my quantifier to things in the fridge.
Green, supra note 43, at 171 (quoting Daniel Z. Korman, Objects: Nothing out of the Ordinary42 (2015)). For discussion of these points in relation to “contextual meaning” and “reasonable meaning,” see Richard H. Fallon, Jr., The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, 82 U. Chi. L. Rev.1235, 1246-1247, 1260-1262, 1303 (2015).
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It’s an inconvenient truth: the president of the United States has no coherent foreign policy. Period. At times Donald Trump talks sensibly about pulling out of quagmires in Syria and Afghanistan, while simultaneously ratcheting up threats against America’s favorite (at least since 1979) punching bag — Iran. He’s also loaded up his administration with the most hawkish of Iranophobes: National Security Adviser John Bolton (ZH: fired since this was written) and Secretary of State Mike Pompeo. Those two have never seen a problem they couldn’t blame on Iran or a solution that didn’t include regime change.
Furthermore, there’s nothing that Israel’s about-to-be-indicted, corrupt Prime Minister Benjamin Netanyahu would like more than to drum up a U.S. war with Iran. American blood (and money) for Israeli interests — now that’s “King Bibi’s” style. Still, before jumping into this next absurd policy adventure, perhaps it’s appropriate to review the troubled history between the United States and Iran, deflate some myths about the supposedly monstrous Islamic Republic, and consider just how bloody and destabilizing such a war would be.
The Islamic Republic of Iran’s theocratic government is, obviously, not the preferred system of the United States, but it is their sovereign system. More important, Iran does not pose a strategic or existential threat to the Homeland. Furthermore, the United States would do well not to overestimate the military threat of Iran; alienate the growing, youthful, pro-Western populace within the country; or rush into an ill-advised, hasty, and potentially costly, attempt at forced regime change.
Nuance is the key to understanding Iran. In truth it is neither as autocratic nor Islamist Universalist as its detractors claim, nor as benevolent as its protectors insist. Iran’s military is neither the aggressive behemoth that Washington alarmists fear, nor is it a weak pushover ripe for regime change. Iran’s geography, population, and inherent popular nationalism present an immediate challenge to regime-change fantasies. Moreover, the clerical establishment atop the Islamic Republic is far from stable or certain to last indefinitely. Protests during the “Green Revolution,” and, more recently, in 2017, illustrate that quite clearly.
In his more lucid moments, Trump has shown real foreign-policy leadership as well as skepticism regarding increased military invention in both his recent outreach to nuclear North Korea and comments indicating a desire to militarily de-escalate in Syria. There is, therefore, still (just a little) reason for optimism that this administration will eschew ill-advised military action and instead focus on a twin policy of de-escalation, and, where possible, engagement with Iran.
The decision to withdraw from the Iran nuclear deal (JCPOA) was absolute folly and probably undertaken by Trump only because of his insecure obsession with undoing everything associated with his predecessor, Barack Obama. Still, this withdrawal does not necessarily presage war. Other diplomatic options remain on the table to ensure that Iran — unlike North Korea —does not go nuclear.
Thus, I will argue that the realistic bottom line on Iran policy is as follows:
Iran has not posed and does not pose any sort of existential challenge to the United States. The Islamic State is far from the convenient bogeyman of neoconservative/neoliberal imaginations.
War or U.S.-imposed regime change in Iran is ill-advised, impractical, and risky — to be avoided at all costs.
Trump’s decision to withdraw from the JCPOA (the Obama nuclear deal) does not have to augur imminent war. Attempts should be made to negotiate a new, more comprehensive deal, and — short of that — to implement other levers of diplomacy to de-escalate tensions.
Russia and Iran are cooperating in Syria and have certain overlapping interests. However, they are not natural allies and have a long history of discord. The United States should avoid any overtly hostile activity that further binds those two adversaries in a long-term alliance.
Iran’s military has significant weaknesses and should not be overestimated. America’s partners in the region (Israel and the GCC countries) possess more than enough military capacity to deal with local threats. The U.S. military is unnecessary in the region and only raises tensions.
Nevertheless, Iran’s large population, difficult terrain, and significant asymmetric military capabilities, when combined with America’s many commitments around the world, make military action in Iran a risky endeavor best avoided. More bluntly: a regime-change ground invasion would be as foolish and militarily disastrous as Vietnam and Iraq.
Iran is neither fully democratic nor fully autocratic. Its youthful, disgruntled population is surprisingly amenable to the West. The United States should take no action to alienate this segment of the population — which has the potential to alter the political calculus of a future Iran.
A troubled history: A true look at U.S.-Iran relations
Iran, unlike many of its neighbors in the Gulf region, enjoys very secure geography. Mountain ranges hem its strategic core, and its borders have been stable for centuries. Its geographic security has meant that Iran has been conquered only a handful of times in its thousands of years of history. Those who have conquered it have been absorbed by another of its strengths: its distinct Persian culture, which once exerted a strong influence on elites from Turkey to India.
In the twentieth century, Iran experienced waves of nationalism and resistance to outside influence that were independent of any particular regime. Charges of subservience to foreign powers have provoked crisis after crisis in Iranian politics, going back to a movement against concessions to Britain on tobacco sales in 1890. That movement highlighted another important trend in modern Iranian politics: the power of the clergy as an independent political force. Its later aftershocks would also see the emergence of movements to constrain Iran’s monarchs with a constitution.
The discovery of oil in Iran at the beginning of the twentieth century increased Iran’s geopolitical importance, but also increased resentment of foreign power within Iran. Nationalists were appalled by the great wealth flowing from Iran to Britain by means of the Anglo-Iranian Oil Company — the ancestor of today’s British Petroleum. That resentment led to Prime Minister Mohammad Mossadegh’s nationalization of the oil industry, which, coupled with growing political instability under Mossadegh and fears of Soviet influence, led to a U.S.-backed coup against him in 1953.The coup restored the faded power of Iran’s monarch, Shah Mohammad Reza Pahlavi. Older Iranians have never forgiven the United States for this overthrow of a democratically elected leader.
The shah’s rule saw massive changes in Iranian society, driven in part by rising oil prices and in part by his efforts to impose social and economic reforms. A number of those reforms targeted the clergy’s power and attempted to secularize the public sphere; protests against the reforms elevated a young cleric, Ruhollah Khomeini, to prominence — and forced him into exile. More than a decade later, in the mid 1970s, Iran’s rapid growth slowed, creating a period of chaos and political violence. The shah’s diverse opposition coalesced around Khomeini, who ultimately succeeded in toppling him. In the chaos after the shah’s fall, Khomeini’s followers marginalized secular and leftist forces. In addition, his supporters occupied the U.S. embassy and took its staff hostage, an action that led to the collapse of a more moderate Iranian government, helped cement Khomeini’s power, and set the foundation for decades of hostile relations with the United States.
Shortly after the revolution, Saddam Hussein’s Iraq invaded Iran, kicking off a devastating war that would last into 1988. The United States, fearful that Khomeini-style revolutionary Islamism would spread across the region, provided some support to Iraq, as did many Arab and European states. However, in a moment of strategic backsliding the Reagan administration also sold arms to Iran in exchange for hostages held in Lebanon in the infamous Iran-Contra affair.
Shortly before the war’s end, an American cruiser mistakenly shot down an Iranian airliner, killing 290.
The postwar period saw Iran struggling to recover economically, even as its foreign policy kept it from normalizing relations with the West. Between 1989 and 1992, the regime carried out a string of overseas assassinations of Iranian dissidents and terrorist actions. Those actions contributed to the U.S. decision to pursue a policy of “dual containment” — pressuring both Iraq and Iran at the same time — to block an Iranian oil deal with the American firm Conoco, and to impose new sanctions.
The late 1990s and early 2000s saw a brief window of opportunity for an opening. In Iran, reformist president Mohammad Khatami, who promised a “dialogue of civilizations” and began opening the political space, was elected. The September 11 terror attacks in the United States gave the two countries a common enemy (the Taliban, with whom Iran had nearly gone to war a few years before) and saw them work together at the Bonn Conference to build Afghanistan’s new government. Iran allowed the U.S. military to enter the country to deliver aid in the wake of a massive earthquake in 2003. Iran may have even offered a “grand bargain” aimed at reconciliation in the same year, although that incident remains disputed. Either way, the U.S. blew an opportunity for détente and engagement.
As a result, Khatami would ultimately be succeeded in 2005 by the hardline Mahmoud Ahmadinejad. Meanwhile, the controversy over Iran’s nuclear program was building, driven by the public exposure of an undeclared enrichment facility at Natanz in 2002 and the failure of an EU-led negotiation effort to freeze the Iranian nuclear program. Those two trend lines converged in 2006 and 2007, with the adoption of Security Council sanctions against Iran.
The Bush administration had a strong current of skepticism toward Iran. Iran’s inclusion in Bush’s 2002 “Axis of Evil” speech shocked many in Iran and undermined those who had pursued a reduction in tensions. The presence of U.S. forces on Iran’s eastern and western borders increased Iranian fear. U.S.-Iranian tensions grew rapidly in Iraq in 2006 and 2007, as Iran supplied Shia militias with advanced bombs designed to target the U.S.-led coalition’s armored vehicles, and U.S. forces raided the Iranian consulate in Erbil.
During the first term of the Obama administration, the United States and international community began applying growing pressure on Iran over its nuclear program. Intensified sanctions combined with the Ahmadinejad government’s severe economic malpractice to produce deep disruptions, culminating in 40 percent inflation. Mass unrest following the 2009 presidential election — labeled the “Green Revolution” — saw brutal repression and the house arrest (which continues to today) of major political figures. Talk of an American or Israeli airstrike on the Iranian nuclear program became common, and each side participated in a wave of bombings and cyber-attacks, including Iranian attacks on Israeli diplomats and apparently Israeli-backed assassinations of Iranian nuclear scientists.
The beginning of direct U.S.-Iranian talks in Oman in early 2013 paved the way for a new round of negotiations. Together with the subsequent election of Hassan Rouhani, a relative moderate, the war talk and violence died down. Following two years of negotiations with the United States, Europeans, Russia, and China, Iran inked the Joint Comprehensive Plan of Action (JCPOA). Under this arrangement, all Iranian pathways to sufficient fissile material for a nuclear weapon were blocked for approximately fifteen years, in addition to a major increase in inspections, some permanent restrictions, and some temporary measures to slow Iran’s nuclear research and acquisition of military hardware, including missile technology. However, in 2018, Donald Trump — as he’d earlier threatened — announced U.S. withdrawal from the JCPOA. However, all other parties to the deal remain in the agreement as written. The United States was now acting like an international pariah.
To better understand Iranian foreign policy, it is important to recognize that the history Iranians remember of their relations with America is very different from the history Americans remember. Americans’ memory centers on the hostage crisis; terrorist actions such as the bombings of the U.S. embassy in Beirut (April 1983, 63 dead), U.S. and French peacekeepers’ barracks in Beirut (October 1983, 305 dead), and Iranian overseas terror attacks in the 1980s and 1990s; and Iran’s supply of advanced weapons to Shia militias as they targeted American servicemen in Iraq during the war there.
Younger Iranians’ memory, on the other hand, centers less on the coup against Mossadegh and more on the Iran-Iraq War — on the international community’s failure to condemn Saddam Hussein’s invasion of Iran, its support for Saddam even as he used chemical weapons against Iranian troops, Iraqi actions (including the gassing of Halabja and the missile attack on the frigate USS Stark) for which the U.S. blamed both sides, and the U.S. downing of the Iranian airliner. Nearly all of Iran’s neighbors and most of the great powers supported Saddam in one way or another. That led to a strong Iranian sense of isolation, including distrust of the international community, of international institutions, and especially of the United States
The Iran-Iraq War was a formative experience for most of Iran’s current leaders, whether they participated in it directly, were engaged in overseeing it, or conducted Iran’s foreign relations during it. The different readings of history, in which each side sees itself as the victim, contribute to deep mistrust between the two sides, making major improvements in relations difficult and unlikely. Contemporary disagreements over Iran’s support for the Assad regime in Syria and America’s withdrawal from the JCPOA also divide in a binary manner between U.S. and Iranian perceptions of each event.
This is the latest in a series of posts about The Mischief Rule. The following extract focuses on some of the implications of reconsidering the mischief rule. Since some readers have wondered about the Constitution and the mischief rule, and about the connection with pragmatics, I’m including two footnotes here (renumbered as “*” and “**”). Enjoy!
Consider three implications of taking the mischief as part of context.
First, there is less pressure on the statutory language. Language never fully expresses intention, and the inadequacy of legal language has been remarked upon since the days of Aristotle. But that inadequacy is partially ameliorated by the mischief rule’s stopping-point and clever-evasion functions. Both offer a certain kind of solace to the legislator. One offers some assurance that her decision today on x will not be read as a decision tomorrow on y. (Sufficient for the statute is the evil thereof.) The other offers some assurance to the legislator that her statute will not be circumvented by clever tricks.
Second, there is less surprise and more notice. Of course the functions of the mischief rule allow, indeed require, judgment, characterization, and subjectivity on the part of the interpreter. Like other elements of context, the mischief rule does not reduce discretion; it does not exclude interpretive options, and it may even expand them. But if the interpreter considers the mischief as part of the context for the statute, the enacting legislature is less likely to be surprised by the effect given to its work. In CSX, Yates, and Zarda, for example, the application of the mischief rule would arguably make the reach of the statute less surprising—not just to the enacting Congress, but also to the reasonable reader at the time of enactment. Although the optimal amount of surprise for the enacting legislature and the reasonable contemporaneous reader is probably not zero, it is also not massive: the mischief rule keeps the subsequent surprises smaller than they otherwise would be.
Finally, thinking about the mischief as part of context highlights a pivotal step in legal interpretation: the construction of ambiguity or non-ambiguity. Once the interpreter has determined that a text is ambiguous, a host of canons and interpretive considerations come into play. Should the mischief rule be considered one of them? Or should it be part of the conscientious interpreter’s “initial reading,” which might determine whether the text is ambiguous?
An example of why this choice matters is Bond v. United States, in which the majority opinion of Chief Justice Roberts is pervaded by an argument that the statute, read in the context from which it arose, was “about” something. That knowledge of what the statute was about—its mischief—led the Court to treat it as ambiguous. In a separate opinion, Justice Scalia refused to read the text in light of the concerns that led to its enactment. To put his critique in a pointed form, we could say he thought the text was being put on a Procrustean bed, with the interpreter tightening or stretching the text to align with the mischief. But that is to treat the text as logically prior to its context, as if it should be (or even could be) read without a context. To the contrary, reading the text in its legal and temporal context is not an act of violence; it is a step toward understanding. Context helps the interpreter see that there is a choice about the scope of the statute, and it guides the choice.*
The mischief rule is a legal instantiation of a common-sense point about all interpretation. To understand statement x, the interpreter wants to know what preceded it. That is not just other statements, but also the situation in which the statement was made. To understand a line of dialogue, it is helpful to know the preceding line of dialogue. It is also helpful to know the situation in which the characters find themselves, to know whether this line of dialogue was spoken in response to seeing a live shark or a rubber duck. Although the mischief rule has distinctive qualities that are relevant for law, as discussed below in Parts II and III, the underlying intuition will recur as long as human beings are interpreting texts.** It is therefore no surprise that even as the concept of the mischief has receded from U.S. legal scholarship, the basic intuition remains pervasive in judicial interpretation, even though it is insufficiently developed and inadequately understood.
FOOTNOTES
* This is a well-trod path in constitutional interpretation. In Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), for example, Chief Justice Marshall did not find the text unambiguous and stop, saying, “What part of ‘nor shall private property be taken’ do you not understand?” Instead he relied on legal context (the “no state shall” pattern from Article I) and temporal context (“the history of the day” showing the concern with federal abuse of power), which together had the effect of both showing and resolving the textual ambiguity.
Nevertheless, there are reasons to distinguish the Constitution from statutory provisions. On the one hand, knowing the mischief may be even more necessary for a constitutional provision, given its more spare text (hence routine use of the mischief for constitutional provisions even by those who reject it for statutes). On the other hand, one might think that the mischief should have less weight in determining the meaning of a constitutional provision, because the Constitution is meant to last longer than a statute. See Zarda v. Altitude Express, Inc., 883 F.3d 100, 165 (2d Cir. 2018) (Lynch, J., dissenting). For discussion of constitutional provisions and their “paradigm cases,” see Jed Rubenfeld, The Paradigm-Case Method, 115 Yale L. J. 1977 (2006). For a response to an earlier form of Rubenfeld’s argument, see Michael W. McConnell, Textualism and the Dead Hand of the Past, 66 Geo. Wash. L. Rev.1127 (1998).
** The general point is that the meaning of some expressions is dependent on context. See generally Bach, supra note 6 (distinguishing semantics and pragmatics). More specifically, the meaning of an expression on a particular occasion may depend on tacit domain quantifiers. Whether such quantifiers should be classified as pragmatic is debated, e.g., Stanley, Jason & Zoltan G. Szabo, On quantifier domain restriction, 15 Mind & Language 219 (2000). Regardless, the intuition is easily grasped:
If I were to open the fridge in search of beer and say “there is no beer,” what you would probably understand me to be saying is that there is no beer in the fridge. In other words, you would take me to be tacitly restricting the domain of my quantifier to things in the fridge.
Green, supra note 43, at 171 (quoting Daniel Z. Korman, Objects: Nothing out of the Ordinary42 (2015)). For discussion of these points in relation to “contextual meaning” and “reasonable meaning,” see Richard H. Fallon, Jr., The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, 82 U. Chi. L. Rev.1235, 1246-1247, 1260-1262, 1303 (2015).
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Michigan Could Be In A Recession In Next Couple Months
According to a new LendingTree study, Michigan has the highest probability of entering an economic downturn later this year.
The study warned that Michigan, Hawaii, and Montana have the highest risks of a recession. The highest, however, is Michigan, with a 58.86% probability of a recession by 4Q19.
The state’s coincident index’s growth rate plunged into negative territory in July, confirming the local economy has already started to decline.
If the coincident index, created by the Federal Reserve Bank of Philadelphia to gauge economic development in a state’s economy, has YoY growth rates for two or more consecutive quarters, then LendingTree said a recession would be imminent.
Michigan is expected to be a big 2020 election battleground for President Trump. He unexpectedly won Michigan in the 2016 presidential election by telling voters he was going to make manufacture boom again.
However, President Trump faces tremendous headwinds with a rapidly slowing economy in Michigan ahead of the election year. Nevertheless, the country’s overall economy is faltering, now suffering from growth rate cycle downturns in industrials, inflation, and employment.
It’s not just Michigan, but the rest of the country has been battered by a manufacturing and transportation slowdown this summer. The slowdown started before the trade war but has been certainly amplified by the escalation of tariffs on Chinese imports, and even retaliatory tariffs on US exports to China, such as automobiles from Detroit.
LendingTree said Hawaii and Montana have the next highest probabilities of recession risk for 4Q19. Nebraska, Oregon, and Idaho had the lowest chance of recession.
The study said most states aren’t facing significant recession risks in the next several months, but with consumer sentiment starting to turn and an economy that continues to slow, recession risks for individual states will likely continue to increase into 1H20.
With manufacturing and transportation recessions festering across the country, the last domino to fall has been the consumer, which continues to prop up the overall economy. The belief is that a strong labor force will power the economy through 2020. But it’s the slowing job growth factor that could soon wane on animal spirits and shift consumer sentiment lower.
That said, the dominos of a more widespread economic downturn are starting to materialize. Nearly 60% of Americans now say a recession is “very likely” or “somewhat likely” in the next year, according to a new Washington Post-ABC News.
A much broader slowdown, if not recession, is likely coming to the US. It should now make sense why President Trump is on Twitter begging every day for 100bps rate cuts, quantitative easing, and emergency tax cuts – that is because the cycle has already turned down.
As some have said, the weakest fall first. Michigan could be the first state to drop the ball on the “greatest economy ever,” likely damaging President Trump’s chances of winning the state during the 2020 election. As for the rest of the country, a recession could be here as soon as late next year.
The socialist idea has many forms and flavors; however, one can observe three main paths toward socialism. They are the socialization of the means of production, wealth redistribution, and collectivization of consciousness. Different socialist movements use these three approaches to varying degrees.
Orthodox Marxists and Marxist-Leninists consider outright expropriation of private property as the primary way toward a socialist society. Italian Fascists and German National Socialists allowed de jure private property, but established de facto total control over all spheres of economic activities. The subjugation of the individual to the collective, which is collectivization of consciousness, and wealth redistribution were their preferred paths toward socialism. In all of these cases, though, we find totalitarianism is a common denominator, and the most odious regimes of the 20th century utilized collectivization of consciousness to the fullest degree.
“Evolutionary” Socialists
Social democracy, or democratic socialism, as it has become known in the US, chose a middle path. Evolutionary socialists have not explicitly called for the expropriation of private property, nor they have advocated for the establishment of a totalitarian state. On the contrary, they have been supporting democratic institutions and private enterprises, especially while being in opposition. Their modus operandi is to gradually undermine capitalism from within and portray this process as a natural development of human society.
The world wars played a crucial role in establishing social democracy as the main force of the left in post-industrialized countries. Thus, fascism, national socialism, and communism had discredited themselves in the eyes of the majority of people. The former two were burned in the flames of WWII; the latter was suffocated during the Cold War. Thus, left had a clear winner: social democracy. Anarchists, syndicalists, and the residue of Marxists and fascists had not played a significant role in the political life of Europe and North America. Instead, they acted the part of a scarecrow which reminded everyone: “better me (mild socialism) than them.”
Morality and Equality
The philosophical basis of social democracy is the Kantian concept of the self-integrity of the human person from which — they claim — follows ethical justification for socialism. Democratic socialists call for economic equality as a moral principle and seek to gain it through the mechanism of wealth redistribution. Numerous social programs are fueled by wealth redistribution that society ought to support according to the highest moral standards. As soon as a new social-oriented idea finds its way into the law of the land, the next generation of people will consider it as a given and will not even suspect that it was possible to live without those rules. Moreover, it will become almost impossible to roll back some socialist-style laws. For example, the idea of the abolishing of the Social Security Act would be considered absurd by many.
The socialist doctrine based on superior morality has steadily penetrated governments, academia, media, and international institutions over the years. Socialism was being injected in small doses by invoking ethical arguments of the highest degree for the benefit of some groups or individuals or human society as a whole. The key to the success of evolutionary socialism has been its gradualism and steadiness. It has helped to mask socialist transformations as continuous improvements to human society due to the acceptance of ever-higher moral qualities and the defense of noble causes. For example, the contemporary left utilizes a desire to “save the planet” as a pretext to inject even more socialism into the body of free societies.
It’s Not a Natural Evolution
The 20th century was the century of spending. All developed countries exhibited a steady growth of social spending from virtually zero at the end of the 19th century up to a maximum of almost 32% GDP, as was the case in France, illustrated in Pic. 1.
Pic. 1. Public social spending in OECD countries (% GDP)
The international bureaucracy, in reviewing the picture, sees a trend of “progress,” the positive changes in society, and the only rational way of human development. However, proponents of economic libertarianism see, as the poet said, “the other side of the rainbow”: the gradual assault on capitalism and the injection of socialism which are camouflaged as actual evolutionary progress. So far, socialists have managed to falsely persuade people that a socialist transformation is a natural form of human evolution.
But it is not. On the contrary, democratic socialism requires constantly intervening in the free choices of human beings in the marketplace.
Nonetheless, the notion of wealth redistribution is the central tenet of democratic socialism, so these socialists becomemore concerned about the centrally-planned redistribution of wealth rather than the production of wealth. And this illustrates the main difference between free economies and socialist-planned economies. Socialists want to redistribute wealth in a manner fitting to government planners. But advocates of free choices seek to allow free individuals to distribute resources through the marketplace — where wealth is built in proportion to how much one serves others. The democratic socialists are committed to breaking that naturally-occurring and proportional system through wealth redistribution which is in essence a latent and continuous expropriation of private property.
Consequently, democratic socialism is dangerous like other flavors of socialism and does not constitute a natural development of human society. On the contrary, it is an artificial construct that leads nations into an evolutionary dead end. All countries that practiced socialism of various flavors have never achieved economic equality but rather a sameness in their misery. The history of ex-Soviet republics shows that the only way out of poverty and moral decadence is embracing capitalism again.
Pakistan Warns Of “Accidental War” With India On Line Of Control
Pakistan’s foreign minister Shah Mehmood Qureshi warned last week that the situation on the Line of Control (LoC) in the Jammu and Kashmir region continues to deteriorate and risks sparking an “accidental war,” reported the Hindustan Times.
Qureshi was speaking on the sidelines of the UN Human Rights Council in Geneva on Wednesday. He told journalists that Pakistan and India “understand the consequences of a conflict”. But he added that “an accidental war” cannot be ruled out. “… If the situation persists … then anything is possible,” he said
Requesting the Human Rights Council to immediately investigate the dire situation in the Jammu and Kashmir region, Qureshi told journalists UN High Commissioner for Human Rights Michelle Bachelet would “visit both places and report as objectively as she can so that the world knows what the true… situation is.”
Qureshi said Bachelet “was keen to visit.”
He told the press that bilateral talks to resolve the tensions along the LoC were off the table for now.
“In this environment and with the mindset that we see in New Delhi today, I do not see any room for bilateral engagement,” he said.
Qureshi said a multilateral forum would likely be needed. “If the US plays a role that can be important because they have a considerable influence in the region.”
New Delhi insists the situation on the LoC in Kashmir is a domestic issue, rejecting all international intervention in the region.
India then delivered a rebuttal to Qureshi’s claim at the UN human rights body in Geneva, indicating his statement was a “fabricated narrative from the epicenter of global terrorism.”
By late week, Pakistan published a “joint statement” on the human rights situation in Jammu and Kashmir which it said has the support of 60 countries. It reportedly said the 57-member Organisation of Islamic Cooperation (OIC) and China are backing Pakistan in the crisis.
Kashmir has been a highly volatile region since Britain split the region between India and Pakistan in 1947. Both countries have fought three wars over the territory.
Indian Prime Minister Narendra Modi revoked Article 370 in the Indian constitution that allowed Kashmir special autonomy last month. India deployed troops and military equipment in the region to keep the peace and was preparing for a possible attack by Pakistan. Indian officials cut all telephone and internet services in the Kashmir region.
The move by India infuriated Pakistan, which also controls parts of Kashmir, calling it the decision “illegal” and recently expelled the Indian ambassador from Islamabad.
The world is on edge, and geopolitical tensions are heating up worldwide as economic growth crashes and central bank effectiveness via loose monetary policy has become ineffective. It seems that global elites are overwhelmingly deciding that war could be the best fiscal stimulus to save the world economy.
