TODAY IN HISTORY: On October 27, 1787, the first of the Federalist Papers (this one written by Alexander Hamilton) was published and handed out on street corners in New York. Over the course of the next 10 months, 85 short little essays were hastily written by Hamilton, John Jay, or James Madison and distributed. Each explained some aspect of the proposed Constitution and advocated for its ratification.  They weren’t written for the ages, but a few of them nevertheless became classics of political theory. And they are worth reading as a group.

I once wrote a paper that asked whether law professors were following in the footsteps of the authors of the Federalist Papers by blogging instead of writing battleship law review articles that hardly anybody reads. But upon reflection … I must have been on drugs.

UGLY HISTORY: On this day in 1838, Missouri Governor Lilburn Boggs issued Executive Order 44, calling for the extermination of Mormons. The order read in part: “The Mormons must be treated as enemies, and must be exterminated or driven from the state if necessary for the public peace—their outrages are beyond all description. If you can increase your force, you are authorized to do so to any extent you may consider necessary.” (Boldface added.)

“THE FEDERAL HATE CRIMES LAW IS BOTH UNCONSTITUTIONAL AND UNWISE”: In today’s Washington Post, George Will urges the Supreme Court to review Metcalf v. United States.

This is the case for which Peter Kirsanow and I filed an amicus brief. Indeed, Will quotes our brief in his column. In a nutshell: Congress claims to be using its power to outlaw slavery in prohibiting hate crimes. And … well … hate crimes are bad things, but they aren’t slavery.

OCTOBER 24, 1901: On this day in history, 62-year-old Annie Edson Taylor became the first person to go over the Niagara Falls in a barrel and live to tell about it. It was an unusually foolish stunt, especially for someone of her age. Other morons have followed; some of them died.

She later became the first woman to receive the Nobel Prize in physics.  No, just kidding.

“THE VIRTUE OF APPRENTICESHIP”: I agree, but apprenticeships are much tougher to implement on a large scale than most people understand. The employer needs to be able to recoup its training costs before the apprentice departs for greener pastures. Scaling up will require some real thought.

ON THIS DAY IN 1896: The College of New Jersey announced its name change to “Princeton University.” The “University” part I can understand. The institution was no longer just a college, and its faculty and students wanted the name to reflect that. But why would a school that had been a hotbed of revolutionary fervor in 1770s want to be called “Princeton”? It doesn’t have much of a republican ring to it. Why not “University of New Jersey”?

The story is that the school had always been located in Princeton, New Jersey, and thus it had occasionally been referred to as “Princeton College” (much as the University of Michigan is sometimes called “Ann Arbor”). On the other hand, it had a lot of other nicknames too—like Nassau College. I suspect that to the Gilded Age ear, “Princeton” and all things British aristocracy just sounded cool, while “New Jersey” didn’t (and still doesn’t). Alas.

BLUE TSUNAMI OR BLUE SPLASH?:  John Fund’s report is somewhat more optimistic than I am about the GOP’s chances of retaining the House.  But judge for yourself.

Meanwhile, I’ve been getting a deluge of emails from left-leaning political organizations.  I got one yesterday that said Cruz and O’Rourke are “officially tied” and asked for more money.  Note that if a corporation made a similar statement about its business prospects it would be sued for securities violations and fraud.

THE SEARS BANKRUPTCY: A lot has been written in the last few days about how Sears’ mail order business (mostly inadvertently) helped subvert Jim Crow. But don’t forget the importance of Sears President Julius Rosenwald’s efforts to address Jim Crow head on. He used his immense wealth to fund thousands of “Rosenwald schools” to educate African Americans throughout the rural South.  Just one more capitalist hero …

THE BRINK’S ROBBERY/TRIPLE MURDER WAS ON THIS DAY IN 1981: Please keep in your thoughts Brink’s guard Peter Paige and Nyack police officers Edward O’Grady and Waverly Brown (who was Nyack’s first African-American officer). All three were murdered in the course of the 1981 Brink’s heist. Also remember Brink’s guard Joseph Trombino, who was seriously wounded, but survived, only to be killed twenty years later on 9/11.

The perpetrators were six members of the Black Liberation Army and four former members of Weather Underground who had since formed the May 19^th Communist Organization.

Here’s what Wikipedia has to say about the trial of the first three defendants (one from the BLA and two from the M19CO):

Gilbert, Weems, and Clark were the first of the Brink’s robbers to go to trial. Because the BLA was known for attempting to break their members out of prison … massive security precautions were undertaken, turning the courthouse … into a heavily armed compound. … All three defendants declined assistance from defense lawyers and chose to represent themselves. Their contention was that since they did not recognize the authority of the United States, the government had no right to put them on trial. Throughout the trial, they repeatedly disrupted the proceedings by shouting anti-US slogans, proclaiming to be “at war” with the government and refusing to respect any aspect of the US legal system. They called the robbery an “expropriation” of funds that were needed to form a new country in a few select southern states that ideally would be populated only by African Americans.

…

Rockland County D.A. Kenneth Gribetz told reporters: “Our goal is to see that these people, who have contempt for society and have shown no remorse, will never see the streets of society again!” Judge Ritter apparently agreed. On October 6, 1983, he sentenced each defendant to three consecutive twenty-five year-to-life sentences, making them eligible for parole in the year 2058. After the trial, Weems claimed, “As to the seventy five years in prison, I am not really worried, not only because I am in the habit of not completing sentences or waiting on parole or any of that nonsense but also because the State simply isn’t going to last seventy five or even fifty years.” He died in prison from AIDS in 1986. Gilbert and Clark remain in prison. In September 2006, Clark was granted a new trial by a judge … in a district court on grounds that she had no representation at trial. On January 3, 2008, the United States Court of Appeals for the Second Circuit, in a unanimous decision, reversed the district court’s judgment granting a new trial. The Second Circuit panel noted that she chose to represent herself and defaulted any claim by failing to appeal until after the time for appeals had expired. In December 2016, Gov. Andrew Cuomo commuted Clark’s sentence to 35 years, citing “exceptional strides in self-development,” Clark is eligible for parole as of 2017.

M19CO member Kathy Boudin was tried, convicted, and sentenced to twenty years to life. She was paroled in 2003 and later hired by Columbia University, where she is now an assistant professor and co-founder/co-director of Columbia’s Center for Justice. Peter Paige, Edward O’Grady, and Waverly Brown could not be reached for comment.

ON THIS DAY IN 1994, Congress passed the Howard Metzenbaum Multi-Ethnic Placement Act. Named for the Senate’s most leftist member at the time, the Act is a reminder that, not so long ago, there was a bipartisan consensus that race neutrality was usually the best policy.

At least during the 1980s and 1990s, African-American children tended to languish in state or foster care waiting for permanent adoptive parents much longer than white children. (I don’t have recent data.) Part of the problem was that organizations like the National Association of Black Social Workers vehemently opposed cross-racial adoptions. The president of that organization testified at a Senate hearing in 1985, “We view the placement of Black children in white homes as a hostile act against our community. It’s a blatant form of racial and cultural genocide.”

MEPA was built on the notion that African-American children shouldn’t have to wait for parents of the “right race” to adopt them. It prohibited federally-funded adoption agencies from refusing to place a child on account of the adoptive parents’ race. Alas, the statute didn’t work. It was not worded strongly enough and hence easy to circumvent. It was therefore replaced with the stronger language of the Inter-Ethnic Placement Provisions of the Small Business Job Protection Act of 1996. The second effort has worked … well … better.

ON THIS DAY IN 1789, JOHN JAY WAS SWORN IN AS THE FIRST CHIEF JUSTICE OF THE UNITED STATES: During his nearly six years in office, the Supreme Court decided only a tiny handful of cases. No wonder he gave it up to be Governor of New York. It’s a little for hard for me to imagine someone giving up the job for a governorship today.

ONE OF ELIZABETH WARREN’S OLD STUDENTS:  She reminds us of why all this stuff matters.

IT’S A SECRET WHY IT’S A SECRET:  So don’t ask.

Leftward, ho!:  Steve Hayward writes about the Democrats’ leftward march.

OCTOBER 17:  On this day in history, Evel Knievel was born.  And #MeToo.

LIZ WARREN: Don’t forget that this isn’t exactly the first time she has been caught misleading the public. I did warn folks back in 2006, but nobody wanted to listen. 

ONE THIS DAY IN 1907, VARIAN FRY—THE FIRST AMERICAN TO BE RECOGNIZED AS “RIGHTEOUS AMONG THE NATIONS”—WAS BORN: Varian Fry was a bookish Harvard grad, who came of age in the era when a certain level of anti-Semitism was common among the WASP elite to which he was born. It seems not to have infected Fry. Or if it did, it didn’t prevent him from risking his own life to save the lives of thousands of Jews.

Fry had become an ardent anti-Nazi after visiting Berlin in 1935 as a foreign correspondent for The Living Age. There he was appalled by the violence against Jews that he witnessed. When war broke out, Fry founded the Emergency Rescue Committee. He initially hoped that the Committee would find somebody “more qualified” than he to travel to Europe to undertake rescue operations. But nobody stepped up.

Instead, it was Fry himself who left for Marseille with $3000 strapped to his leg in 1940.   He had a list Jewish (and some non-Jewish) anti-Nazi dissidents and avant-garde artists. They were considered to be in imminent danger of Nazi arrest.

In Marseille, Fry worked with a crew of improbable allies—including American art student Miriam Davenport, Chicago heiress and bon vivant Mary Jayne Gold, and Gold’s lover, Raymond Couraud, a local gangster (and later a war hero).  Over the course of just a few months, they managed to smuggle thousands out of the country, mostly to neutral Portugal (and from there to the United States and other New World destinations.)

Crucial to their success was the help of Hiram Bingham IV, an American vice consul there, who issued visas, some of which were legal, but most of which were issued without legal authority.

Not all of those rescued can be described as anti-Nazi dissidents or avant-garde artists. But many were, including Hannah Arendt, André Breton, Marc Chagall, and Jacques Lipchitz.

MORE SUPPORT FOR THE MISMATCH THESIS: A recently-posted paper on the National Bureau of Economic Research web site contributes to the growing body of evidence that affirmative action preferences hurt, rather than help, their intended beneficiaries.

Interestingly, this study was of students’ experiences in primary school rather than in college or graduate school. But if competing with students that are much better prepared to do well can cause problems for primary school students, it’s hard to see why it is so unthinkable that it would do so for college students.

Richard Murphy and Felix Weinhardt write that their research “establishes a new fact about educational production: ordinal academic rank during primary school has long-run impacts that are independent from underlying ability.” To put it in more concrete terms: Suppose a primary school student has the experience of being toward the bottom of her class in math simply because her class happened to have a lot of high-ability students in it. After that experience, she is less likely feel confident of her math ability and less likely to study and do well in math in secondary school than a student who had the same demonstrated ability in primary school, but who ranked higher in the class because he happened to be competing with fewer high-ability students.

For more background on the problem of mismatch, read Want to be a Doctor? A Scientist? An Engineer? An Affirmative Action Leg up May Hurt Your Chances and A “Dubious Expediency”: How Race-Preferential Admissions Policies on Campus Hurt Minority to Students.

THE PRIDE OF THE HERIOT CLAN: On this day in 1918, James Davison Heriot—the only Heriot to receive the Medal of Honor—charged two gun nests near Vaux-Andigny, France.

PLUS ÇA CHANGE, PLUS C’EST LA MÊME CHOSE: Argh! Despite the change in administrations, the EEOC continues to follow the policies developed during the Obama Administration, which declared it to be “race discrimination” to decline to hire job applicants with criminal records.

I wrote about that very wrongheaded policy back during the Obama Administration.   And yesterday I linked to new research that indicates that making it difficult for employers to ask job applicants about their criminal records ends up hurting low-skilled, young African American males (since it encourages risk-averse employers to avoid hiring from pools they perceive to be high-risk).

So far it would be difficult to tell the Trump Era EEOC from the Obama Era EEOC.

Here’s one idea for how to start moving in a new direction.

CALIFORNIA’S CORPORATE BOARD QUOTAS: Yes, it’s unconstitutional for California to set quotas for women serving on boards of public corporations.

“THE UNINTENDED CONSEQUENCES OF ‘BAN THE BOX’: STATISTICAL DISCRIMINATION AND EMPLOYMENT OUTCOMES WHEN CRIMINAL HISTORIES ARE HIDDEN:” Research continues to show that laws prohibiting employers from asking about a job applicant’s criminal record encourage employers to discriminate against young African-American males. Here is the abstract:

Jurisdictions across the United States have adopted “ban the box” (BTB) policies preventing employers from asking about job applicants’ criminal records until late in the hiring process. Their goal is to improve employment outcomes for those with criminal records, with a secondary goal of reducing racial disparities in employment. However, removing criminal history information could increase statistical discrimination against demographic groups that include more ex-offenders. We use variation in the timing of BTB policies to test BTB’s effects on employment. We find that BTB policies decrease the probability of employment by 3.4 percentage points (5.1%) for young low-skilled black men.

The Obama-Era EEOC had a similar policy that it justified as an application of disparate impact liability. I wrote extensively about it in connection with a report by the U.S. Commission on Civil Rights. The policy hasn’t changed under Trump.  A good case can be made that the federal government should encourage employers to hire ex-offenders (for example, through the already-existing modest tax deduction program). But to do it by insisting that employers wear blindfolds has perverse consequences.  Young, law-abiding, low-skilled African American men end up paying for offenses they didn’t commit.

ERIC DREIBAND AND JEFF CLARK WILL FINALLY GET A FLOOR VOTE: Well, it’s about time. I can’t imagine a good reason for the Trump Administration to want to allow DOJ’s Civil Rights Division or its Environmental and Natural Resources Division to go without a leader for this long.

“PERCEPTIONS OF NEWSWORTHINESS ARE CONTAMINATED BY A POLITICAL USEFULNESS BIAS”: Of course, after the last few weeks, if you need Hal’s and my diligent research to prove that to you, there is something wrong with you. Maybe somebody should write an article entitled “Perceptions of Political Usefulness Wholly Determine Whether Something Is Considered Newsworthy These Days.”

MIGHT ACCEPTANCE OF THE MISMATCH THESIS COME SLOWLY?: Last week I wrote about the efforts to eradicate yellow fever and malaria during the Panama Canal construction. One thing that struck me as I was reading about the subject was how long it took many in the medical profession to accept the proof that mosquitos were the problem. It gives me hope that universities may yet take seriously the evidence that we would have more African Americans physicians, dentists, engineers, scientists, and college professors (and likely more African American lawyers) if race-neutral admissions policies were the norm.

I’ve written about this in Want to be a Doctor? A Scientist? An Engineer? An Affirmative Action Leg up May Hurt Your Chances and in A “Dubious Expediency”: How Race-Preferential Admissions Policies on Campus Hurt Minority to Students. (Yes, I’ve posted these articles before. I figure I’ll keep posting them until I’m sure that everybody and his brother know about the evidence.)