ON THIS DAY IN HISTORY, JUNE 21, 1788, NEW HAMPSHIRE RATIFIED THE CONSTITUTION, THUS CREATING OUR CONSTITUTIONAL ORDER: Article VII called for at least 9 states to agree before the Constitution would go into effect (whether or not the remaining 4 states joined in).  New Hampshire was the 9th, and thus its act was enough to declare the Constitution officially ratified.

But two of the largest states–Virginia and New York–were still not in, so few expected this as the end of the story.  Indeed, Virginia ratified only four days later (June 25), and New York signed on a month later on July 26, 1788.

The last two of the original 13 took much longer.  During the summer of 1788, North Carolina’s first ratifying convention declined to either ratify or reject the Constitution.  North Carolina ultimately had to start the process again with a new convention, which ratified on November 21, 1789.  By that point, George Washington was already President.  Rhode Island didn’t ratify until May 29, 1790.  Rhode Island had been told in no uncertain terms that if it didn’t ratify, it would be treated as a foreign nation for the purposes of trade, etc.  That was enough “persuasion.”

IT’S THE 93rd ANNIVERSARY OF AUDIE MURPHY‘S BIRTH:  Remember when every American boy and girl knew who he was?

FINEST HOUR:  On this day in 1940, Winston Churchill delivered his “Finest Hour” speech to the House of Commons.  His closing words:

What General Weygand called the Battle of France is over. I expect that the Battle of Britain is about to begin. Upon this battle depends the survival of Christian civilization. Upon it depends our own British life, and the long continuity of our institutions and our Empire. The whole fury and might of the enemy must very soon be turned on us. Hitler knows that he will have to break us in this Island or lose the war. If we can stand up to him, all Europe may be free and the life of the world may move forward into broad, sunlit uplands. But if we fail, then the whole world, including the United States, including all that we have known and cared for, will sink into the abyss of a new Dark Age made more sinister, and perhaps more protracted, by the lights of perverted science. Let us therefore brace ourselves to our duties, and so bear ourselves that, if the British Empire and its Commonwealth last for a thousand years, men will still say, “This was their finest hour.”

The thousand years part seems doubtful at this point, but the “finest hour” part seems solid so far.

MORE ON THE LAWSUIT AGAINST HARVARD: According to the analysis by Duke University economist Peter Arcidiacono, Harvard is not using race merely as a small “plus factor” in admissions. It’s a very large factor.  An Asian-American applicant with a 25% chance of admission would have a 35% chance if he or she were white, a 75% chance if Hispanic and a 95% if African American.  Arcidiacono studied only applicants who are non-athletes and non-legacies in order to take those factors out of the analysis.

HAPPY BIRTHDAY, ADAM SMITH: Born on June 16, 1723 (NS).  “Little else is requisite to carry a state to the highest degree of opulence from the lowest barbarism but peace, easy taxes, and a tolerable administration of justice: all the rest being brought about by the natural course of things.”

HARVARD DENIES DISCRIMINATING AGAINST ASIANS; FLUNKS LAUGH TEST: According to the analysis run by Duke University economist Peter Arcidiacono, if Harvard were to drop all racial preferences and penalties, the number of Asian Americans there would about double. Harvard’s explanation boils down to “Asians don’t have good personalities or character.” Problem for Harvard: The alumni who conduct the interviews rate Asian candidates just as high as whites on personality and character. It’s only the Harvard admissions staff members (who ordinarily don’t even interview the applicants) who mysteriously rate them much lower. Plaintiffs are asking for summary judgment. No reasonable fact finder could listen to Harvard’s defense without breaking out into laughter.

More on this issue later … Right now, I am in Chile, so I need to spend some time gazing at the magnificent Andes.

THE TRANSGENDER BATHROOM CASE WILL BE APPEALED TO FOURTH CIRCUIT:   As predicted, the Gloucester County School Board will indeed be appealing the U.S. District Court’s ruling in Grimm v. Gloucester County School Board.

Gavin Grimm is an anatomical female who identifies as a male and who therefore sued the school board for the right to use the boys’ bathrooms, locker rooms and showers.  In late May, the District Court agreed that the failure to accord Grimm that right was sex discrimination under Title IX.  It held that providing Grimm with private facilities wasn’t good enough.

Peter Kirsanow and I filed an amicus curiae brief on behalf of Gloucester County School Board when this case was before the Supreme Court last year.  Back then the case was known by the initials “G.G.” as Grimm was not yet 18 years old.  The precise legal issue was a little different then–whether the courts should defer to the Obama Administration’s Dear Colleague Letter in interpreting Title IX. When the Trump Administration withdrew that Dear Colleague Letter, the Supreme Court remanded the case back to the lower courts for reconsideration in light of the Dear Colleague Letter’s withdrawal.  But so far at least, that hasn’t changed the outcome.

We will be re-tooling that brief for the Fourth Circuit.

NO “OBAMA KENNELS” FOUND BY MSNBC REPORTER (AND EVEN DURING THE OBAMA ADMINISTRATION, CONDITIONS WEREN’T SO BAD): As Glenn noted earlier today, MSNBC reporter Jacob Soboroff didn’t find any “Obama kennels” on his visit to the children’s shelter in Brownsville. That’s consistent with what the US Comm’n on Civil Rights saw (but failed to write about) when it toured actual detention facilities during the Obama Administration. In my personal statement to the report, I pointed out that the Commission’s majority had anticipated finding “egregious human rights and constitutional violations.” But as far as I could see, it hadn’t found them. I wrote:

[A] funny thing happened on the way to exposing “egregious human rights and constitutional violations.” The detention centers weren’t nearly as bad as we had been led to believe. Indeed, the Karnes facility was surprisingly attractive for a detention center.

Some of our Commission members and staff appeared to be quite surprised at the quality of treatment they saw. When we were led to a room at the Karnes facility that contained rows and rows of brand new brand-name clothing and told that new arrivals were permitted to select six outfits for themselves and each of their children, the looks on the faces of my colleagues were of astonishment. Questions were asked: “These clothes aren’t new, are they?” Yes, they are new, the tour guide explained. “I guess they are donated, right?” No, the tour guide replied, they are purchased by GEO (the private company that owns and manages the Karnes facility in cooperation with ICE).

The detention facility I’m referring to was for “families” (which means mothers and their minor children). But there are only so many beds in those facilities. When they fill up, other arrangements have to be made.

What I hope my fellow Commissioners got from this (although I’m not sure they did) was not to believe everything they hear about “egregious human rights violations” at immigration facilities. For example, the Commission heard testimony that the food at one of the facilities was full of maggots. But the evidence (as discussed in my Statement) made this highly unlikely.

CYBER-ATTACKS ON BANKS:  When everything’s connected, that means everything’s connected. That’s not always a wonderful thing.

WHICH IS REAL AND WHICH IS PARODY?  It’s not easy to tell.

ABC News:  Transgender teens outrun track and field competitors, but critics close behind.

Babylon Bee:  Man Identifying as 6-Year-Old Crushes Game-Winning Homer in Tee-Ball Championship.

TOO MUCH POLICING IN BLACK NEIGHBORHOODS OR TOO LITTLE?:  The Left argues that blacks are over-policed and over-incarcerated.  But now the Washington Post shows that in some black neighborhoods, murders are common, but arrests are comparatively rare.  Which is it, guys, too much policing or too little?

DON’T GET COCKY:  In the midterms, even those who dislike Trump may not like the Democrats’ focus on impeachment and “resistance,” says John Fund.

THE COLLEGE FIX  REPORTS ON LAST WEEK’S 50-47 CONFIRMATION OF KEN MARCUS AS ASSISTANT SECRETARY OF EDUCATION FOR CIVIL RIGHTS:  In a saner world the Marcus nomination would have been uncontroversial, but … well … we may not be in the best of all possible worlds.

A conservative asked me recently why Trump bothered to nominate someone for this job at all.  Why not just leave it vacant?  I was a bit surprised at the question.  But let me explain:

The Assistant Secretary for Civil Rights heads the Office for Civil Rights (OCR) at the Department of Education.  OCR’s Fiscal Year 2017 budget was $108.5 million; it has 12 regional offices around the country and employs armies of lawyers and investigators.  This is the office that gave us the transgender locker room guidance, the sexual assault on campus guidance that denies due process to accuseds, the disparate impact in school discipline guidance, and much more.  Even many liberals understand that OCR’s actions during the Obama Administration were counterproductive.

Leaving the political positions there unfilled doesn’t mean that nothing will happen at OCR.  It means that the policy preferences of civil service employees will reign supreme.  When a left-of-center President is elected, this may not be a disaster for his supporters, since civil service employees tend to be left-of-center (and civil service employees in civil rights offices are often very left-of-center).  When a right-of-center President is elected, leaving positions unfilled means the election has been effectively nullified in a hugely important area of the law.

OCR has very few political appointees in charge of a huge number of civil service employees.  It’s hard enough to ensure that elections will have the consequences when all those positions are filled.  It is impossible when the Senate sits on nominations for extended periods of time.

BTW:  If you want to know why OCR has such a large budget, despite its tendency toward overreach the answer is this:  During the Obama Administration, Congressional Republicans were alerted many times to OCR’s overreach.  But, despite being in the majority and despite the urgings of many (including mine), they were too timid object to large increases in its budget.

OLD ENOUGH TO HAVE SEX, BUT NOT TO MARRY:  My grandmother would not have understood this one at all.

HAPPY 89th BIRTHDAY TO EDWARD O. WILSON:  He knows more about ants than the rest of us can ever hope to know.

HUH?:  Dog parks are manifestations of rape culture and oppression.

IF YOU’RE LOOKING FOR A STORY ABOUT A MAN WHO CAME OUT OF NOWHERE TO CONQUER THE WORLD, HERE’S ONE: On this day in 1781, civil and mechanical engineer George Stephenson was born to illiterate parents in the north of England. Later known as the “Father of Railways,” Stephenson did not learn to read until he was 18 years old. And yet he went on to become a titan of the Industrial Revolution.

By 1810, Stephenson’s remarkable talent for designing engines had already been recognized by the wealthy coal-owning families of the Northeast (known as the Grand Allies). They put him in charge of all their machinery. But it took longer for recognition to come from the rest of Britain. This little story should illustrate:

On May 25, 1812, a ghastly mining explosion cost the lives of 92 men and boys. The problem was the oil lamp that the miners were using; its open flame could ignite the inflammable gases that collected in the mine. A reward was therefore offered for the first workable safety lamp.

The first attempt (offered by a Dr. Clany) was too heavy to be of use. So with great fanfare, mine owners called upon Britain’s leading scientist—Humphry Davy—to help. Davy enthusiastically agreed. “Do not despair, I think we can do something for you in a very short time,” he wrote to a mining company officer.

But unbeknownst to Davy, Stephenson (then employed by Grand Allies) was already working on the problem. Interestingly, the two men came up with very similar ideas, which led to some nasty accusations of copying.

In The Birth of the Modern (BTW a wonderful book), Paul Johnson told the story this way:

The likelihood is that both men discovered the principle independently. The lamps were the same, except that Stephenson used a perforated plate instead of Davy’s wire gauze. Stephenson quickly adopted the Davy gauze as superior, but kept to his glass chimney, which Davy’s lamp had scrapped. As a result, the Stephenson, or “Geordie Lamp,” was safer. There is no record of one going wrong. On 18 January 1825, on the other hand, a Davy lamp caused an explosion which cost the lives of 24 men and boys. By then, however, Davy had been universally credited with ending the problem. The state awarded him 2,000 pounds. The Tyne & Wear colliery owners presented him with a massive set of plate at the Queen’s Head, Newcastle, on 13 September 1817, “Jack” Lambton in the chair. The Royal Society awarded him the Rumford Medal. The Regent made him a baronet. Alexander I, anxious to get in on any “progressive” act, sent him a huge silver vase, with the gold of fire weeping over his extinguished torch. All Stephenson got was a purse of 100 guineas. … Stephenson’s backer, the Grand Alliance, was run by many grandees, and they were so annoyed by the honors paid to Davy that, two weeks after the Queen’s Head dinner, they gave Stephenson an even bigger one, at the Newcastle Assembly Rooms, presenting him with a silver tankard and £1,000 raised by public subscription. … But it was no use. Davy remained the inventor of the safety lamp in the public’s mind. He had won the publicity battle, and that, increasingly, was what mattered in the world.

But no matter. Stephenson’s immense talent went on to bigger and better things. He (and eventually his engineer son/partner, Robert Stephenson) built locomotives and railways across Britain. That includes the first public railway with steam locomotives–the Stockton and Darlington.  He died a great man in the eyes of his countrymen. Hail the future!

“I LEAVE WITH THE KNOWLEDGE THAT I LIVED THE LIFE THAT I INTENDED”–CHARLES KRAUTHAMMER:  That’s really a remarkable sentiment–both because it’s true and because he knows it’s true.  May we all be so fortunate.

KEN MARCUS CONFIRMED AS ASSISTANT SECRETARY OF EDUCATION FOR CIVIL RIGHTS:  He didn’t get a single vote from a Democrat.

ON THIS DAY IN HISTORY:  The curious death of George Wythe, founding father and the nation’s first law professor.

A SPECTRE IS HAUNTING EUROPE:  And his name is Karl Marx.

LIFE ON MARS!!:  Or rather traces of complex organic molecules, which is reasonably interesting.

THE CDC REPORTS THAT SUICIDES ARE UP EVERYWHERE EXCEPT NEVADA (1999-2016):  How much of that, if any, is because of the decreased stigma associated with RECORDING a death as suicide is unclear.  There was a time that a suicide might have been reported as an “accident” even if the most probable cause was thought to be suicide.  That stigma might have decreased somewhat between 1999 and 2016, which could affect the numbers.  Of course, any decrease in stigma can have a double effect, increasing both the number of deaths reported as suicides and the number of actual suicides.

And, yes, there are lots of others things going on here too.  Humans are complex creatures.

TIME MAGAZINE: ALLIED TROOPS STORM THE BEACHES AT NORMANDY, GET SHOT TO HELL, WOMEN SUFFER MOST: On the 74^th anniversary of D-Day, a Time Magazine article entitled This Picture Tells a Tragic Story of What Happened to Women After D-Day reminds us that it’s all about women.

The headline is referring to the women who had their heads shaved (and sometimes much worse) during the épuration sauvage (or the wild purge). Over the course of the second half of 1944 and early 1945, women and men who were alleged to be collaborators were punished by gangs of vigilantes. For the women, this typically meant they were being accused, rightly or wrongly, of sleeping with the enemy.

The Time article (by Ann Mah) described it this way:

The victims were among the most vulnerable members of the community: Women. Accused of “horizontal collaboration” — sleeping with the enemy — they were targeted by vigilantes and publicly humiliated. Their heads were shaved, they were stripped half-naked, smeared with tar, paraded through towns and taunted, stoned, kicked, beaten, spat upon and sometimes even killed.

The épuration sauvage was as savage as it sounds. It has been estimated that 6000 individuals accused of collaboration were killed. Many of the perpetrators were resistance members or ex-collaborators who wished to hold themselves out as resistance members.

The Time article doesn’t mention it, but underlying the purge was a political struggle between communists and non-communists; the vigilantes were very disproportionately communists. It also fails to mention that the source it cited for the 6000 death toll also states that, of those, only about a third were women. Instead, the Time article claims (evidently incorrectly) that “the punished were almost always women.” It further states:

The suspicion and punishment of women after World War II is part of a cycle of repression and sexism that began long before D-Day and continues to be seen today, in the conversation around the #MeToo movement. It begins with a terrible event, then women get blamed, then aggressively attacked and finally the assault is forgotten.

What bothers me most is that Time ran the piece on June 6. Can’t we have a day to mourn the D-Day dead, who were overwhelmingly men, before we have to go back to the “World Ends Tonight, Women and Minorities to Suffer Most” routine? Isn’t the anniversary of D-Day the wrong time to argue that women are always “the most vulnerable members of the community”?

HAPPY BIRTHDAY TO VICE PRESIDENT MIKE PENCE:  Born June 7, 1959.