I see life as an adventure of the mind and imagination. Whatever we do, wherever we go, however we thrive, it is our minds that define us as uniquely human, some weird and wonderful thing in this vast and varied universe of ours. The desire to help others discover that is a big part of why I’m a teacher.
We should all be students, all of our lives, because our world grows the more we learn about it, our lives expand and grow richer, our own identities deepen and ripen, who and what we are becomes something more than what it was. It’s easier to believe that about great literature, great music, great art, but I’m going to make the case for something not everyone realizes is so incredibly beautiful.
Mathematics is one of the great products of human genius. It is not the only one, maybe not superior to others that occupy its heights, but neither inferior to them. It occupies a pantheon of human consciousness that includes great literature that can take you on journeys of the imagination into ever deeper and subtler spheres of reality; brilliant music that provides not merely a beat to move to but an intricate language of tightly woven sounds that speaks to our very soul; philosophies and sciences and fine arts of various kinds.
But math is not least among them, and perhaps is most remarkable of all, music that has not been played, science unyoked from the constraints of observable reality or at least stretching an ever-more elastic tether to them. It distills some essence of the universe, of the macrocosms and microcosms, of ubiquitous and eternal forms, speaking a language that crosses cultural and linguistic barriers and historical epochs with a completeness that not even music and the fine arts can attain.
Math is the purified mind, the celestial symphony, a strange and beautiful sphere of human thought, god’s own soliloquy echoing within us. And when applied to the practical questions that assail us, either directly or through its verbal twin of logical analysis, it enables us to do better, to discipline our passions and channel our thoughts, to arrive at wiser rather than more foolish conclusions. It is a vehicle of both beauty and purpose, a tool and an instrument, delicately plucked to play truths too subtle to otherwise hear.
Anarchists and libertarians fail to acknowledge the nature of collective action problems, and the ways in which various modalities (including hierarchical organization, of which government is one example) are used to address it. The trick is to most effectively blend these different modalities, not to reduce reality to a caricature that allows us to pretend that that challenge doesn’t really exist.
(There’s a famous example used in economic literature, of a barge-pullers guild in 19th century China, that hired overseers to whip slackers in order to eliminate the free-rider problem. In other words, the barge-pullers themselves chose to impose on themselves an overseer in their own collective interest. It’s a strange and complex world in which we live; we need first and foremost to face up to that fact before rendering judgment in broad brushstrokes that fails to acknowledge fundamental aspects of reality.)
The “problem” with government isn’t its existence or the fact that people rely on it for certain purposes, but what in economic, legal and managerial theory is called “the agency problem.” In a popular sovereignty, government is constituted as an agent of the people, its principal. This is in many ways a reversal of most ancient notions of sovereignty, which saw the people as “subjects” of the sovereign. The problem, or challenge, is the degree to which reality can be made to correspond to theory.
In one view, this reversal of theoretical roles occurred organically, because in the crucible of European internecine warfare the crown’s (particularly the English crown’s) need for revenue to finance such wars drove an ongoing liberalization of the political economy to generate such revenue, In other words, international competition drove sovereigns to empower ever-more ever-broadening swathes of their citizenry, since those that did so fared better in the wars among relatively small and easily swallowed states.
In the Glorious Revolution in England in 1688, this reversal was institutionally recognized, laying the groundwork for the American revolution’s clearer codification of that institutional shift in its break from Great Britain. The challenge then became aligning the agent’s action’s to the principal’s interests, a challenge compounded by the size and diffuseness of the principal in comparison to the agent. This is the ongoing challenge we face.
A centralized agent ostensibly working on behalf of a diffuse principal can always exploit the transaction costs facing the principal in its translation of some hypothetical “popular will” into a mandate to the agent in order to serve the agent’s interests at the expense of the principal’s. This is the challenge we must continually face. But to then leap from the reality of that challenge to the conclusion that the existence of the agent is a sign of our own self-enslavement neglects the real need we have for such an agent, the real function it performs, and the costs of choosing to “liberate” ourselves from any centralized agency through which to address the collective action problems that face us.
The bottom line is that we live in a complex and subtle world, and that our neat reductions of it, our caricatures of reality, do not serve us well. While it’s true that, historically, governments of large political states were established through military conquest and exploitation, it is also true that the benefits of civilization are a derivative of that brutality, and that there are indeed benefits (as well as costs) of civilization, of a large-scale division of labor which freed up some to do things other than produce food. Our challenge now is not to feed our emotionally gratifying sense of superiority to “the Sheeple” for “knowing” that government is our oppressor, but rather to face, intelligently and effectively, the real challenges and real enterprise of aligning the actions of our agent with the interests of its principal, of making government ever more something that serves the interests of the people in general and ever less something that serves the interests of the few who capture it for their own benefit.
And that is a complex challenge, a complex enterprise, best framed in precise, analytical ways. It is our task to work to maximize the robustness, fairness and sustainability of our political economy, by applying disciplined reason and imagination to methodically gathered and verified information in service to our shared humanity. Unfortunately, caricatures of reality like those popular among ideologues of all stripes do nothing to help us accomplish that, and do much to interfere with our ability to do so effectively.
One ancient and well-known social phenomenon greatly accelerated by the internet and social media is the spreading of false rumors, particularly politically motivated false rumors, and particularly relatively complex ones such as those that come in the form of conspiracy theories. Many cloak themselves in elaborate pseudo-arguments that can be very easily debunked, and many are passed along and eagerly consumed like a spreading contagion. The phrase “going viral” isn’t just a metaphor; these complex “memes” and narratives are cultural pathologies that sweep through the population in epidemic waves feeding off of one another and forming one, overarching pandemic of enormous destructive power.
The confluence of a set of evolutionarily produced psychological quirks and their strategic exploitation by opinion-makers (particularly right-wing opinion-makers) helps explain how easily pernicious falsehoods resonate and spread.
One such “cognitive glitch” is due to the natural, psychological attraction to anomalies, because we evolved to be attentive to anything out of place (since being adept at noticing things out of place was vital to survival on the African savanna). But that, coupled with a lack of awareness of what I call “the probability of the improbable,” creates a constant attribution of heightened significance to observations of things that have no real significance.
It’s highly improbable, for instance, that any given individual will win the lottery, but it’s highly probable (virtually certain) that SOME individual will. We mostly get that one, because we’ve institutionalized it on the basis of its probability structure. There are lots of similarly improbable events –like a bullet hitting a “lucky” coin in someone’s breast pocket, or someone being delayed by some chance occurrence and thus not getting on a flight that crashed– that occur in general on a regular basis, because in a world with millions of events constantly occurring, it’s highly probable that improbable events will occur at a certain frequency determined by the degree of their improbability.
In a world of instantaneous mass communications, any highly improbable event that occurs anywhere in the world is instantly brought to everyone’s attention, and draws people’s attention in proportion to both the degree of its improbability and its resonance with existing narratives.
If a religious icon appears to be crying, for instance, that is a miracle that confirms the religion. If a disproportionate number of planes and ships have disappeared in any concise geographic area (a probable improbability), that geographic area becomes imbued with a supernatural aura. If some of the vague and broadly interpretable predictions of an ancient mystic “come true,” that is proof of his power of prophesy.
More mundanely, this is part of the larger phenomenon of cherry-picking convenient evidence that supports a desired narrative, such as cobbling together a narrative that Barack Obama wasn’t born in the US from any snippets of evidence that can possibly be used to support such a narrative. Our shared cognitive landscape is littered with such products of probable improbabilities or cherry-picked “evidence” and our tendency to imbue them with a special significance (or an evidentiary value) that they don’t really merit.
Another quirk is that we are attracted to the plausible, especially if it fits into some narrative or archetype that resonates with us (again, because primate brains evolving in the wild thrive by being able to create plausible scenarios on which to rely) . So, for instance, when I heard the (erroneous) rumor a few decades ago that Jerry Mathers, the child star of “Leave it to Beaver” in the 1950s, had been killed in Vietnam, I was already aware enough of this quirk to say to myself “it’s too plausible, fits too neatly into a clear and relevant narrative, to be assumed true; it’s exactly the kind of rumor that would be almost certain to exist regardless of its truth or falsehood.” The narrative of the iconic little boy of the 1950s dying in the iconic unpopular war of the 1960s is just too neat and cognitively attractive not to emerge and spread.
Similarly, those who want to discredit Obama are attracted to any narrative that discredits him, and those who want to believe in the mystical supernatural quality of their own religion will be attracted to narratives supported by “evidence” which support that conclusion.
When you combine these, you get the frequent phenomenon of people with ideological agendas cherry-picking (or manufacturing) probable improbabilities and weaving them into plausible narratives that serve their ideological agendas. This can be found across the political ideological spectrum, but it is by far most pronounced on the far-right, which is where reason and critical thought are in shortest supply.
But it’s not just a decentralized, organic process. We’re seeing a lot of the increasingly sophisticated exploitation of known and understood human cognitive foibles by the most greedy and ruthless among us. Whether they would articulate it in the same way I did or not, all of the right-wing opinion-makers understand the cognitive glitches I described above, and know how to exploit them to maximum effect.
And the convoluted irony of it all is a thing of horrible beauty: Those on the far-right, thoroughly manipulated and easiest to manipulate, call all those who disagree with them “sheepies,” and announce that they alone are the ones who “think for themselves,” “thinking for oneself,” in this case, meaning ignoring fact and rational analysis in favor of the preferred dogmatic ideology. Those who are thinking for them know how to exploit their cognitive weaknesses and their lack of commitment to critical thinking, so much so that they turn it into a narrative of independence from such manipulation!
What drives me to confront this phenomenon when I encounter it is my own inability to believe that this fortress of self-delusions in which these cultist ideologues ensconce themselves can’t be breached; to my mind, the walls are paper-thin, the foundations cracked and crumbling. I always feel as though all it should take is one small tap of reason in just the right place, and the whole thing just has to come toppling down. But the one impenetrable reinforcement that this fortress has, that, despite the paper-thin walls and crumbling foundations can’t be penetrated, is the decision to disregard fact and reason under any and all circumstances, and to defend the cultish dogma in any way necessary.
And that is why I think our greatest responsibility is to consider how to cultivate the habits of mind and interaction, of disciplined reason honed in rational debate in which the best informed and best reasoned arguments prevail, following the rules similar to those of scientific methodology and legal procedure, all channeled in service to our shared humanity. That is who and what we should be; that is who and what we can be.
There is great demand for an ultra-simplified version of my proposal for a social movement to shift the cultural ground beneath our political struggles, in favor of reason in service to our shared humanity. If this abbreviated synopsis raises questions, they are almost certainly answered in the comprehensive treatments I have given elsewhere.
The organized social movement I propose would have three components: 1) a network of community organizations with a specific purpose (described below); 2) a data-base or internet portal allowing easy access to the best peer-review quality arguments on all sides of any social issue; and 3) a meta-messaging program, whose purpose is to create, gather, and disseminate messages (works of art, movies, documentaries, books, plays, advertisements, internet memes, etc.) which reinforce our shared commitment to one another, to reason, and to humanity.
The community organizations would leverage existing community organizations (HMOs, park districts, PTOs, Kiwanis, Rotary Club, local churches and synagogues and mosques and temples of any and all kinds, etc.) , to provide a vehicle for community solidarity, for tutoring and mentoring programs for local youth, and a forum for frequently held and formally moderated public discourse and debate among neighbors, with strictly cultivated and enforced norms of listening to what others have to say, and trying to see the world through the eyes of those you most disagree with. One “ritual” that would be implemented to do this would be debating the opposite position from the one you actually hold, to the best of your ability; researching it and composing the best argument you possibly can.
The data base or portal is to inform these debates, to provide easy access to the best arguments on all sides of any issue. A larger, longer-term project is something akin to “the human genome project” in the social theoretical sphere, creating a coherent, comprehensive mapping of the human social institutional landscape through a rigorous social scientific lens, synthesized through the complex dynamical systems social analytical paradigm I outline in the essays hyperlinked to in the first box at “Catalogue of Selected Posts” on Colorado Confluence (see URL below). This will provide a subtler, deeper and broader basis for informed public discourse, for those inclined to engage in such discourse at a more sophisticated level of analysis, ideally eventually transforming an ever larger swath of the public into an extended national academy of social analysis.
While membership in those organizations would not be any greater than membership in any other community organizations, the point here is not that everyone participates, but that participation is seen as a normal part of our social institutional environment, that we are not just a bunch of individuals left to shout obscenities at one another, but that we can be, if we choose, deliberative citizens of a civil society, using our reason and our discourse to forge a more rational and humane society.
The value of this is not just the direct fruits of one institution promoting rational discourse in service to our shared humanity, but also promotion of the narrative of rational discourse in service to our shared humanity. Ideologies dedicated to any other purpose often claim to be both rational and humane. This movement would provide a challenge to that claim, and a more credible claim to being the community locus of rational, civil discourse in service to our shared humanity.
The third pillar of “meta- messaging” is one dedicated to reminding one another of our shared humanity. In politics, strategists recognize the importance of “messaging” to promote a particular stance on an issue. This is the cultural equivalent, but, instead of promoting a particular stance on particular issues, it only promotes a commitment to reason in service to humanity. Christmas “feel-good” movies are a good example of what meta-messaging looks like: A reminder of our shared humanity, of the goodness of caring about one another, of the ugliness of failing to. This pillar of the movement is a constant, intentional, strategic campaign of bombarding the public with such reminders by all means and mediums possible, as often as possible, in the most effective ways possible.
Combined, these three pillars constitute a cultural movement advancing the cause of reason in service to our shared humanity. It is more methodological than substantive (it cannot take, as an organization or a movement, any positions on policy issues other than this generic commitment to reason in service to our shared humanity, and this process for better realizing it), an attempt to extend somewhat the methodological virtues of scientific methodology and legal procedure for determining contested truths.
Modern history has been defined by an undercurrent, an evolutionary impetus, favoring both increased reliance on methodical rationality (scientific method, legal procedure, formal organizational structures, etc.) and an increased commitment, at least in principle, to our shared humanity (political revolutions based on the values of “liberty and justice for all,” the abolition of slavery, anti-imperialism/national independence movements, civil rights movements of various kinds, etc.). This movement is designed to reduce the chasm between the loci of these undercurrents of modern history and the public at large, and to promote the already well-established narrative that favors reason over irrationality and a commitment to our shared humanity over conscious inhumanities, making it more difficult to claim their mantle arbitarily and falsely.
In the gardens of Athens in the fourth century BC (planting the seeds of Western Civilization), in the plazas of Florence in the 16th century AD (ushering in the modern era), in the salons of Paris in the 18th century AD (informing and inspiring others in a small meeting room in Philadelphia), to a lesser extent in mid-19th century Concord, MA (informing and inspiring Gandhi and King and Mandela), the genius of a few unleashed new currents of the genius of the many, currents thick with reason and a stronger commitment to our shared humanity, changing the course of human history. It has been done before and it will be done again, whenever and wherever people choose to do it.
They did not gather in those times and places to discuss only how to win this or that election or to shift power from one party to another or to address the human endeavor one issue at a time. Rather, they gathered, with wonder and hope and passion, to explore and discover, to create and innovate, to raise reason and our shared humanity onto a pedestal and dedicate themselves to the enterprise of perfecting our consciousness and improving our existence.
In every time and place, including these ones of particular florescence, most of the people went about their business, engaged in the mundane challenges of life, fought the battles we all fight, both personal and collective. But the great paradigm shifts of history have happened when a coalescence of inspired minds reached deeper and broader than others around them, beyond the individual issues of the day, beyond the immediate urgencies and power struggles, and sought out the essence of our existence, to understand it, to celebrate it, and to change it for the better.
Imagine a gathering of great minds today that were not lost to the minutia of academe or the mud-pit of politics or the selfish pursuit of wealth and fame and power, but were free to devote themselves to the challenge of orchestrating a social transformation, a peaceful revolution occurring beneath the surface of events, a new threshold reached in the advance of creative reason in service to humanity.
Imagine gatherings of engaged citizens that, guided only by the broadly attractive narrative of reason in service to our shared humanity, of emulating our Founding Fathers and fulfilling the vision that they had for this nation, dedicated themselves to learning how to listen to one another and weigh competing arguments rather than regress ever deeper into blind ideological trench warfare. Imagine forming the nucleus of a movement that would extend the logic of methodical reason in service to our shared humanity ever more broadly, not just through direct participation, but through the promotion of the narrative that we are capable of doing so and that it is incumbent on us to do so.
What is stopping us from establishing such gatherings, and such a movement? What is stopping us from bringing together a small cadre of brilliant minds to implement ideas designed to cascade through the social fabric in transformative ways, and large populations of engaged citizens to stir and be stirred by the sea giving rise to those cresting waves of brilliance, together advancing the tide of imaginative reason in service to our shared humanity? Only the precise combination of vision, drive, sophistication and resources that would make it happen, not just in some stumbling and unsustainable or unproductive way, but as a living, breathing, current reality.
I’ve designed the nucleus of an idea, a social movement that is realistic as well as idealistic, a secular religion to promote the narrative and practice of disciplined reason in service to our shared humanity. As a person who learned how to dream as a child; who drifted and worked and lived around the world for several years as a young adult; who became a social scientist, author, teacher, lawyer, public policy consultant, candidate for office, and member of several nonprofit boards and advisory councils; who has done urban outreach work and community organizing; who has synthesized ideas from many disciplines, many great minds, and much experience, this is not a Quixotic quest that boasts much but can deliver little; it is a carefully considered strategic plan for moving the center of gravity of our zeitgeist in the direction of an ever-increasing reliance on imaginative reason in ever-increasing service to our shared humanity.
For a comprehensive (though somewhat dense) presentation of my proposal, please see A Proposal: The Politics of Reason and Goodwill.
For a briefer and simpler presentation of the underlying philosophy of this proposed social movement, please see: The Ideology of Reason in Service to Humanity.
For an extremely bare-bones summary of the social movement idea itself, please see: A VERY Simplified Synopsis of “The Politics of Reason and Goodwill”.
For more elaboration of various aspects of this proposal and various musings about it, please see the essays hyperlinked to in the second box at: Catalogue of Selected Posts
The biggest challenge that faces human beings is to make sense rather than to make noise. Effectively addressing all other challenges depends on it. Whether we want to change the world or want to protect ourselves from the impositions of others trying to change the world, our beliefs, our goals, our actions, are all a function of how we understand reality, and it is clear, at least in the abstract, that some understandings are more precise, more accurate, and more useful than others.
The first thing we have to understand is that we are not just a collection of individuals, but rather are members of a society and organisms in a biosphere. We exist interdependently with one another and with our environment, unable to survive at all without the latter and unable to survive as human beings without the former. Our continued existence as organisms depends on ingesting food and breathing air, two vital needs that are produced and maintained by the living planet which we inhabit interdependently with other living things. Our consciousness as human beings and our existence beyond bare survival (and in almost all cases our survival itself) depends on our coexistence with other human beings in organized groups, through which our use of language allows us to thrive through a shared but differentiated mind and a shared but differentiated enterprise.
That leads to the first question we must face: Do we, as individuals and as a society, take responsibility for our impact on those systems of which we are a part, or do we leave them to their own organic trajectories, pursuing our own immediate goals without attempting to act with conscious intent beyond them? Do we attempt to be conscious and conscientious participants in these larger wholes of which we are a part, or do we simply live as individual organisms pursuing our own individual desires? Do we take responsibility for one another, for the distribution of suffering and well-being, of opportunity and of relative lack of opportunity, for how well our systems are functioning in terms of their sustainability, their robustness, and their fairness, or do we insist that doing so is either impossible or undesirable?
The second thing we have to understand is our own fallibility. Anything any one of us is certain about may be wrong. Our various beliefs and certainties are conceptualizations of reality in our minds, and must always be considered fallible. This leads to two considerations: 1) the best (and perhaps only rational) argument supporting those who insist that we must not try to govern ourselves as rational people confronting the challenges and opportunities we face is the argument that perhaps we are simply not up to the task, and that we should therefore rely on simple principles that best liberate our collective and individual genius rather than try to “micromanage” our shared existence, and 2) our focus should be on how we arrive at our conclusions, rather than on insisting that our current conclusions are the one absolute truth.
The first consideration is easily dealt with: Recognizing our fallibility and the power of organic processes is a part of being rational people working together to do the best we can, not a displacement of it. The Constitution (created by intentional human thought, arguably a very ambitious act of “social engineering”) and the modern marketplace (also a product of much intentional thought and oversight) are not magical panaceas which free us from the responsibility of striving to be responsible and humane sovereigns, but are merely part of the accumulated material of past efforts by past generations to do what we ourselves are called upon to continue to do: To govern ourselves intelligently, responsibly, and intentionally, in service to our shared humanity.
We should strive to emulate rather than idolize our “founding fathers,” to be the same kind of proactive rational citizens, working together, mobilizing our intelligence, believing in our ability to rationally and humanely govern ourselves. We should utilize rather than surrender to market forces, recognizing that there is nothing about them that automatically resolves all human problems and challenges, but rather that they are one useful institutional modality upon which we can rely in concert with others, in our ongoing efforts to work together to do the best we can in service to our shared humanity.
The second consideration flowing from our recognition of our own fallibility is the one that leads to a broader and deeper commitment to the methodologies that have proved most useful in the modern era at diminishing the aggregate effects of bias and increasing aggregate accuracy in our conclusions. Both scientific methodology and legal procedure are sets of techniques for informing and framing rigorous debates over what is and is not true, following sets of rules regarding what evidence to consider reliable and how to organize and channel the determinations that follow from that evidence. In science, the purpose to which this process is put is to refine our shared consciousness; in law, it is to increase the justness of our coexistence. These, indeed, are the two things we should always be striving to do, as responsible sovereigns, and to do so most effectively we should build on the methodologies that already exist for doing so.
In other words, the most pressing imperative facing our shared human enterprise right now is the expansion of the logic of science and law into the realm of public discourse and public opinion and policy formation. We need to transcend, to leave on the dust heap of history, the myth that all opinions are equal (while protecting the expression of all opinions in order to determine their relative merits), and engage in rigorous, increasingly formal debates in a constant quest for the best understandings, in best service to our shared humanity.
Tragically, we, as a people, are not only faced with the challenge of cultivating these disciplines more broadly among ourselves, but also of convincing those least committed to them that they have any value at all. We are also faced with the challenge of overcoming the reality that human beings in general do not arrive at their conclusions primarily through rational processes, but rather through social and emotional processes that often circumvent or disregard reason and evidence, and often serve narrower interests than our shared humanity.
The challenge facing rational and humane people, therefore, is not just to make the most compelling arguments in best service to our shared humanity, but also to create a context in which the most compelling arguments in best service to our shared humanity are more likely to prevail. That requires us to be rational about human irrationality, and to engage not primarily in a competition of rational arguments but rather in a competition of emotional narratives. The challenge, in other words, is to create a compelling emotional narrative out of the notion of being rational and humane people, and, even more, the notion of being rational and humane people in certain specific, disciplined ways, and then to create a set of mechanisms by which the most compelling rational arguments in best service to our shared humanity are also, simultaneously, compelling emotional narratives that persuade people who do not engage in or necessarily understand the disciplines we are promoting.
The most immediate challenge in the ongoing human endeavor, in other words, is to create, promote, and disseminate a compelling emotional narrative that systematically favors reason in service to humanity, not on a case-by-case basis (as we have been doing), but in a more general and comprehensive way.
There are, therefore, two major branches to the human endeavor: 1) to continue to develop, deepen, and broaden a commitment to disciplined reason in service to our shared humanity, using the methodologies we have developed for doing so, and extending the breadth of contexts in which they are utilized and the number of people striving to utilize them; and 2) to create an emotionally compelling narrative that attracts those who lack the desire or ability to utilize or defer to those disciplines (rigorously applied and debated rational argumentation) or that objective (our shared humanity) to support them not just in name, but also in some effective and authentic way.
To some, this will all seem too abstract, too far removed from the political and cultural realities we grapple with, or too far removed from their own emotional and cognitive inclinations. But those of us who are truly committed to striving to become an ever-more rational and humane people need to recognize that the ongoing mud-fight isn’t the height of what we can do, that we need to reach higher, think deeper, act more ambitiously in service to the highest of ideals and the noblest of purposes. The great cultural and political heroes of modern history, who we revere for their inspired and effective leadership, are who they are precisely because they have had the courage and determination to bite off rather large chunks of this challenge that I have just laid out, opposing imperialism or racism or other injustices. But we can invoke them all now, we can rally them to the greater cause of which they all were a part, and we can promote that cause with the same degree of passion and commitment that they did…, because that truly is the essence of the human endeavor.
(My essays on Colorado Confluence elaborate many of these themes. In the first box at Catalogue of Selected Posts are hyperlinks to essays laying out a comprehensive social systemic paradigm through which to understand and analyze our shared cognitive/social institutional/historical/technological landscape. In the second box are hyperlinks to essays laying out a social movement idea for promoting the narrative of and actual commitment to reason in service to humanity. Scattered among the remaining boxes are hyperlinks to essays exploring various aspects of both of these branches of the human endeavor. Together, they form a comprehensive and detailed map of the human endeavor as I have described it in this essay.)
Mischievous imps blowing invisible darts that stoke human passions and spin them out of control, moving twigs a few inches across the forest floor providing links in conflagrations that would not otherwise occur, plucking the strings of nature to produce crescendos of catastrophe. Zen-mathematician wizards dancing in their ice spheres high in the Vaznal Mountains, solving ever-deepening riddles of sound and sight and sensation, weaving order from the chaos the Loci imps foment. Winged muses carving sensuous stories from the clouds and celebrating the lives of those from whose dreams and tribulations they were born.
A fiery giantess is held captive in a hollow mountain. A sea serpent’s breath inspires the priestess of an island oracle poised above a chasm beneath which it sleeps. City-states are at war; slaves, led by a charismatic general, are in uprising; dictators and warlords are vying for power; neighboring kingdoms and empires are strategically courting local clients in pursuit of regional hegemony or outright conquest. Human avarice has strained the natural context on which it thrives. And ordinary people in extraordinary times, caught within the vortex of the powers that both surround and comprise them, navigate those turbulent currents.
Follow the adventures of Algonion Goodbow, the magical archer; Sarena of Ashra, the young girl at the center of this epic tale; their friends and mentors, guides and adversaries, as they thread the needle of great events, and discover truths even more profound than the myths of legend and lore. Discover the truth of fiction and the fiction of truth; celebrate the fantastic and sublime, in this magical tale laden with rich echoes of world history and world mythology, informed by blossoms of human consciousness from Chaos Theory to Thomas Kuhn’s theory of paradigm shifts, from Richard Dawkin’s Meme Theory to Eastern Mysticism, enriched by the author’s own travels and adventures.
A prophesied Disruption is upon the land of Calambria, causing the Earth to quake and societies to crumble. The Loci imps are its agents, but, according to Sadache mythology, it is Chaos, one of the two Parents of the Universe, who is its ultimate author. As Chaos eternally strives to make the One Many, Cosmos, the other Parent of the Universe, strives to make the Many One. The Sadache people view themselves as the children of Cosmos, whom they worship, and the lowest rung of a hierarchy of conscious beings opposing Chaos and the Loci imps. Above them, both of them and apart from them, are the drahmidi priests of the Cult of Cosmos, founded by the hero and conqueror Ogaro centuries before. Above the drahmidi are the Vaznallam wizards, Cosmos’s agents, just as the Loci are Chaos’s.
As the Great Disruption begins to manifest itself, Sarena of Ashra, a peasant girl from a village on the outskirts of the city-state of Boalus, flees an unwanted marriage to an arrogant lord and in search of freedom and destiny. She meets a young vagabond on the road, coming from the seat of the ceremonial High Kingdom, Ogaropol, fleeing his own pursuers. Together they form an alliance that leads through adventures together and apart, and binds them into two halves of a single whole.
Swirling around them are the wars of would be dictators and cult-leaders, of neighboring empires and kingdoms; the adventures of young Champions engaged in the prophesied Contest by which the Redeemer would be chosen and the Realignment realized. But, in both different and similar ways, the culmination of centuries of history flows through these two people, Algonion and Sarena, on haphazard quests of their own. And both the past and the future are forever changed by their discoveries and deeds.
As we look back on recent events and recent developments, on the shooting death of an unarmed black teen walking home from the store by an armed vigilante out looking for “bad guys;” of the response by so many dismissing it as the price we pay for the “liberty” to ”protect ourselves,” often informed by our bigotries, in violent and deadly ways; of the combination of a right-wing drive to reinstate voter suppression laws and a Supreme Court holding making it easier to do so; of the rise of an angry, violent, divisive, and frequently racist political movement in America that loves guns and, by its ideological choices, hates humanity; it’s time for us to once again ask ourselves what kind of a people we want to be.
It’s time to dream again, America, and to shout that dream from the mountain tops. It’s time to dream of a nation in which we are more committed to lifting one another up than to knocking one another down. It’s time to dream of a future, of a present, in which we care that so many are so impoverished, that so many have so little access to basic health care, that so many suffer so much unnecessary violence. It’s time to dream again of being a people whose disputes are defined more by the limits of our reason and decency than by the extent of our bigotries. It’s time to dream again of striving to become a nation, and, eventually, a world, committed more to our shared humanity than to our explicit and implicit hatreds or, just as destructively, our mutual indifference.
It’s time to dream again, to care, to think, to strive, to work diligently on behalf of that which is most rational and humane, that which is most decent and good, that which is most caring and conscious. It’s time to dream again, and, in never-flagging opposition to those base and horrifying human tendencies that ever-seek to turn our dream into a nightmare, tendencies that are so in ascendance once again in this too-often troubled and misguided nation of ours, work diligently, work with all other rational people of goodwill, work in service to our shared humanity, to make that dream come ever-more true.
(Dr. King’s prepared remarks end at about the 11 minute mark of this video, and his “I have a dream” speech, extemporaneously building on a theme he had used a few times in smaller venues, begins just after the 12 minute mark.)
The Child Welfare through Family and Community Facilitation Act (the Act):
(1): The Family and Community Facilitation and Child Welfare Administration (the Administration) shall be established to execute this Act and all of its provisions.
(a): The Administration shall be staffed by Community Facilitators (CFs) and Family Support Case Workers (FSCWs), trained and licensed in the skills necessary to implement the provisions of this Act.
(2): Current Parents, Expectant Parents, Foster Parents, Prospective Adoptive Parents, Legal Guardians, or primary care-givers (collectively, “parent,” whether referring to one parent acting alone or more than one parent making decisions together), along with their children, shall either formally belong to a Community, as defined in subsection (a), and participate in Community Parenting Support Meetings (CPSMs), or shall attend a Parental State-Disengagement Determination (PSDD) conducted by an agent of the Administration according to section 2(c) below. (Non-parents are encouraged, but not required, except as specified below, to belong to a Community and attend CPSMs). If a parent declines to attend either CPSMs or a PSDD, then an FSCW will automatically be assigned to that parent.
(a): The Administration shall create regulations to ensure that parents, both expectant and actual, follow procedures incumbent on parents in accord with this Act as soon after being informed of impending or actual parenthood, or beginning adoption proceedings, as is reasonably practicable.
(b): A Community, for the purposes of this statute, is either geographically or culturally defined.
(i): A parent shall by default belong to his/her geographical community, unless that parent selects a cultural community to belong to.
(ii): The upper and lower numerical limits of such Communities, the boundaries of Geographical Communities, the degree of geographic dispersion permissible for Cultural Communities, and the criteria of what constitutes a Cultural Community, shall be determined by the Administration according to guidelines designed to ensure that each Community is so constituted as to be capable of satisfying the functions described in the provisions of this Act, and of advancing the goals defined as the purpose of this Act (following the provisions described in subsection (iii) to protect parents utilizing culturally variant practices from ethnocentric presumptions of abuse or neglect).
(iii): Culturally variant practices that might be technical violations of the law, or presumptively harmful from a prevalent American cultural perspective, shall constitute grounds neither for refusing definition to a Cultural Community, nor for invoking the provisions in sections 4 and 5 of this statute, if they do not unambiguously create objective harm or deprivation to the child, if all or nearly all members of the Cultural Community would find the practice harmless and inoffensive, and if the Cultural Community has an independent existence and is not an artifact of convenience designed primarily to insulate its members from legal constraints to which they would otherwise be subject.
(iv): Communities shall be assigned the task of ensuring, with the organizational resources allocated and with the oversight of the CF, that the basic needs of parents and children in the Community are attended to by
(I): assisting parents in accessing the relevant family support programs established by complementary legislation, which provide children and families with adequate material support and vital services,
(II): facilitating mutual cooperation among Community members to provide one another with the moral, emotional, and informational support conducive to the long-term welfare of all of the children and parents in the Community, and
(III): providing children with age-appropriate means for expressing their views and preferences regarding their own upbringing and disposition, and having those views and preferences known and taken into consideration in any proceedings that involve them.
(c): CPSMs shall be held at a frequency to be determined by the Administration for each Community in consultation with the members of that Community, not to exceed one time per week nor be less than one time per month. By similar means, the Administration shall establish a mandatory attendance rate for parents in each Community, not to be less than 30% nor exceed 70% of all meetings, applicable to each parent individually, except in particular cases in accordance with subsection (ii) below.
(i): Each Community shall arrange on-premises child-care during the meetings by having three or more parents, on a rotating basis, undertake child care responsibilities during each meeting.
(ii): The Administration shall assist individual parents and Communities to make special arrangements in cases of particular scheduling problems, exercising a substantial commitment to accommodating parents with such verified scheduling problems, so long as the conflict involves an obligation that substantially contributes to the family’s material welfare.
(d): The Administration shall conduct PSDDs at the time and location most convenient for the parent whenever possible, and with substantial deference to the parent’s presumed right to direct the upbringing of the parent’s child(ren) as the parent sees fit. The Administration shall determine at the PSDD whether there is any compelling reason not to permit the parent to voluntarily disengage from the Family and Community Support apparatus established by this Act.
(i): The Administration shall establish a fully delineated set of criteria by which to make such determinations, and will do so under guidelines designed to prevent the influence of prejudices on the part of its agents, such as those regarding race, ethnicity, culture, class, gender, or sexual orientation.
(ii): If such a compelling reason is not found to exist, the parent will be allowed to disengage from the state involvement delineated in this Act, except for the provisions of sections 2(d), 3(a)(5), 5, and 6.
(iii): If such a compelling reason is found to exist, the parent will be assigned an FSCW.
(3): Family Support Case Workers (FSCWs) are entrusted with the responsibilities of monitoring families for evidence of Child Abuse or Neglect (as defined in 20-8-140 of the SHF Revised Statutes); working with parents (always deferential to parents’ preferences short of child abuse or neglect) and children to improve coping skills and devise more effective strategies to deal with the challenges of child-rearing; identifying particular family problems, challenges, and needs that are having or can reasonably be expected to have a significant impact on the child’s welfare; and recommending to the Administration interventions and assistance that are conducive to the continued provision of a safe and healthy home environment for the child.
(a): An FSCW shall be assigned to a parent when
(i): a parent requests it,
(ii): a Community Facilitator (CF) recommends it,
(iii): the Administration deems it necessary through a Parental State-Disengagement Determination,
(iv): a parent declines to participate in CPSMs or, alternatively, to attend a PSDD,
(v): the Administration deems it necessary as the result of an investigation into an allegation of Child Abuse or Neglect, or
(vi): to prospective adoptive parents upon initiation of adoption proceedings.
(b): An FSCW shall be authorized to recommend targeted financial and material assistance to parents, according to criteria to be developed by the Administration.
(i): An FSCW shall be authorized to predicate the receipt of such assistance on the parent’s participation in CPSMs, if the parent is not already participating in them.
(ii): The FSCW shall assist the parent, with substantial deference to parental autonomy, in self-monitoring parental choices, considering how well or poorly those choices serve the child’s welfare, and contemplating alternatives that might serve the child’s welfare better. The FSCW will be trained to be a parental resource rather than an imposing authority in this process.
(4): If either the FSCW or CF determine that a child is not in imminent physical danger but that the
child’s long-term welfare is being substantially compromised (according to the definition of Abuse or Neglect defined in 20-8-140 of the SHF Revised Statutes) by the child’s current home environment, (a): the parent can voluntarily submit to a process of Intensive Community Intervention (ICI), or
(b): the Administration shall investigate and determine if, by a preponderance of the evidence, the Administration’s determination accords with that of the FSCW or CF.
(i): If the Administration finds by a preponderance of the evidence that the child’s long-term welfare is being substantially compromised, the Administration shall initiate ICI.
(ii): If the Administration does not find that the child’s long-term welfare is being substantially compromised, then all adult parties will be brought together for a determination of how to proceed, which might include reassigning the parent to a different community, reassigning a new FSCW to the parent, or, if the parent prefers, maintaining the current FSCW and Community (and thus CF).
(c): Intensive Community Intervention (ICI) requires the voluntary involvement of Community and extended family members, as well as of teachers and others involved in the child’s life, working with the parent to rectify and remedy the problems that have been identified as substantially compromising the child’s long-term welfare. ICI strategies always include the determination of a designated period after which the case will be reviewed, and can include any combination of the following:
(i): parental behavior modification efforts, closely monitored by Community and extended family members, utilizing whatever institutional assistance is required (such as drug rehabilitation programs),
(ii): temporary in-home residence of Community or extended family member to assist the parent,
(iii): temporary placement of the child with a Community or extended family member,
(iv): limited or monitored parental contact with the child, and/or
(v): professional assistance in concert with the Community and extended family assistance.
(5): If as the result of an investigation into allegations of child abuse or neglect, or if an FSCW or CF determines that a child is in imminent physical danger; or if, after the designated period for an ICI, both the FSCW and CF determine that the ICI has been unsuccessful; or if an ICI was impossible due to a lack of willing extended family or Community members, the Administration will initiate a child custody hearing, adhering to the following guidelines:
(a): The Administration must find, by clear and convincing evidence, that the child’s long-term welfare is being substantially compromised, or that the child is in imminent physical danger, before parental rights can be wholly or partially terminated.
(b): The value of affective bonds and remaining in the child’s familiar home shall be given full weight as important, but not entirely decisive, factors in consideration of the child’s custody arrangements.
(c): Parental rights shall be terminated or limited only to the extent necessary to preserve the child’s safety and to secure the child’s long-term welfare.
(i): This Act imposes no presumption concerning the number of people that may be granted parental rights regarding a particular child, nor the precise scope of such rights in any given instance.
(ii): Preference will always be given to preserving and encouraging established healthy affective bonds between adults and the child, rather than severing such bonds in pursuit of parental exclusivity.
(iii): Partial, delineated parental rights may be granted to various adults, who must devise decision making guidelines commensurate with their various parental rights, with the assistance of an FSCW.
(iv): The Administration shall generate guidelines for relinquishing the rights and responsibilities associated with partial parental rights commensurate with the extent of those rights and responsibilities, and in accord with the child’s best interest, ensuring continuity of comprehensive parental services.
(v): “Parent,” for the purposes of this statute, does not refer to anyone with limited parental rights, but only to those with primary custodial rights, to be fully defined by the Administration.
(d): Consideration of custodial alternatives shall be given concurrently with consideration of the parent’s, and others’, custodial rights.
(i): The termination or diminution of parental rights do not necessarily result in an immediate or eventual loss of physical custody: The child will always be placed in the best available home, all factors considered, even if parental rights have been revoked from, or not yet granted to, the adult in whose custody the child is placed.
(ii): Preference will be given, in order, to (1) extended family members who are also members of the same Community as the parent, (2) other Community members, and (3) other extended family members, in any change of custody of the child, whether it is a temporary arrangement, the placement of the child in a foster home, or an adoption proceeding. The Administration has the authority to supersede or alter the ranking of these preferences in accord with particular circumstances.
(iii): No racial preferences beyond those implicit in the preferences above shall be implemented.
(iv): If the child can not be placed in a home according to the above preferences, and the Administration determines, by clear and convincing evidence, that the child’s safety or welfare is too drastically compromised in his/her current home to leave him/her there, the child will be placed in foster care and adoptive parents will be sought, with the parent retaining those rights of visitation, if any, that the Administration finds contribute to rather than detract from the child’s long-term welfare.
(e): Prospective adoptive parents must be members of a Community for one year prior to adoption, and must be recommended by their FSCW and the CF of the Community, and by a majority vote of both the community to which they belong and the Community from which the child is being adopted.
(f): A mother may not put her child up for adoption until 36 hours after the birth of the child if the decision was made in writing at least two months prior to birth, or three weeks after the birth of the child if the decision was not made in writing at least two months prior to the birth of the child.
(6): Extended family members, as defined in subsection (a), have the right to maintain a relationship with the child, subject only to the limitations delineated in subsection (b).
(a): An extended family member is, for the purposes of this statute,
(i): any blood relative of any parent (as defined in section 2 of this Act) that the child has ever had, who has formed a healthy affective bond with the child, as determined by clear and convincing evidence, according to criteria to be delineated by the Administration,
(ii): any other individual who, in a relationship sanctioned by any parent (as defined in section 2 of this Act), has formed a healthy affective bond with the child, as determined by clear and convincing evidence, according to criteria to be delineated by the Administration.
(b): The legal rights of extended family members (as defined in subsection (a)) to access to the child are limited in the following ways:
(i): No parent shall ever be obligated to relinquish temporary physical custody of a child to any current non-parent, unless by a formal hearing of the Administration the non-parent’s ability to have occasional temporary physical custody of the child, as opposed to mere visitation rights with parental supervision, is held, by clear and convincing evidence, to be vital and indispensable to the child’s long-term welfare, though the parent can rebut this finding by demonstrating by a preponderance of the evidence that any occasional relinquishment of temporary custody to the petitioning non-parent would be contrary to the child’s long-term welfare. If a finding in favor of the petitioning non-parent is made, the amount of occasional temporary physical custody shall be limited to the least possible to satisfy the needs of the child’s long-term welfare. The parent has the right of appeal; the non-parent has no right of appeal.
(ii): Non-parents with rights of access to a child are required to exercise reasonable self-restraint regarding the amount of access they demand, the degree of inconvenience they impose on the parent and other family members, and any disruptions or tensions that their relationship with the child may cause to or among the parent, family, or child. The Administration shall draft explicit guidelines regarding these issues.
(iii): Non-parents with rights of access to a child, who do not belong to the parent’s Community, shall be required to attend the Community Parent Support Meetings (CPSMs) at a frequency to be determined by the Administration, taking into consideration all relevant factors, though the frequency required may not be more than once per month nor less than once per year.
(iv): The parent can file complaints regarding non-parents with rights of access to the child, which the Administration is obligated to investigate, preliminarily through the agency of the child’s FSCW and CF. If the problem cannot be resolved to the satisfaction of all parties through the agency of the FSCW, CF, and CPSMs, a hearing must be held to determine if, by a preponderance of the evidence, the non-parent has abused his/her right of access to the child according to the criteria established by the Administration. If such a finding is made, then the non-parent shall have his/her right of access to the child revoked. Neither the parent nor the non-parent has the right of appeal regarding the determination of the Administration.
(20-8-140, a fictional statute to which I have cross-referenced in this hypothetical statute, would include conventional definitions of Abuse and Neglect, plus extreme emotional abuse).
I. Social Policy Concerns Addressed by the Act
This Act addresses the care and custody of children, including the rights and responsibilities of extended family and community members involved in a child’s life, the procedures for identifying and responding to child abuse and neglect, and the procedures for reassigning legal custody of a child. The purpose of this Act and the responsibility of the Administration is to facilitate communities and families in providing healthy and stable homes for children by means of mutual support, encouragement, involvement, oversight, and, in the last resort, reassignment of a child’s custodial arrangements, among family and community care givers. It is based on the principle that the state should be a proactive agent and vehicle of the people, to be utilized in conjunction with other social institutions in the facilitation of the welfare of its residents, rather than a reactive intervener of last resort, standing aside to permit preventable failure and subsequent suffering, and only then stepping in to pick up the pieces at greater public expense and with less efficacy.
This Act accordingly reconceptualizes the state’s role, relinquishing its theoretical commitment to initial minimal intrusion on family autonomy until a threshold is reached triggering a sudden extreme and generally inefficacious intervention (see Clare Huntington, “Mutual Dependence in Child Welfare,” 82 Notre Dame L. Rev. 2007, 1485: 1497-1505), and, in its place, constructing a state-family-community system which institutionalizes support to families prior to, and in prevention of, the failure of a family to provide for a child’s welfare.
The Act is characterized by two essential innovations: 1) a legal construct called “Community,” which mediates, buffers, and articulates the primarily coincidental and only marginally or superficially conflicting real interests of parent, child, and state; and 2) a proactive rather than reactive approach to child welfare policy. The Act meets the challenge of reconstructing and refining, through legal artifice, a traditional and organically produced social institutional form (i.e., community) that has grown increasingly attenuated with the growth of modern individualism, while not violating the Constitutional 14th Amendment liberty interests of parents (and others) which give that cultural individualism legal teeth. It does so in order to meet the corresponding political and legal challenge of increasing the constant and constructive involvement of the state in family and community life in order to decrease the extreme and often destructive involvement made more frequently necessary by its absence (or less comprehensive and humanized presence).
The central innovation of this Act is the introduction of the legal reincarnation of the Community, which serves, with focused intentionality in its new form as a legal construct, to mediate the tensions and alliances among the interests of parent, child, and state, and as a buffer coordinating the functions of family and state in more cooperative and mutually accommodating ways. It provides an arena of support, communication, negotiation, and resolution. It is a medium of both state coercion and parental resistance, the conflict between the two channeled, filtered, or dissipated according to the moderating, focusing, or amplifying influence of a middle-range of social organization through which both the individual wills of parents and the corporate will of society, via the agency of the state, must pass. It provides a familiar and intimate zone in which children have an increased opportunity to formulate and express their will, in which subcultural diversity can hold out against an often overreaching and categorically biased state demand for conformity, but in which authentic child abuse and neglect has reduced opportunity to hide. While no law or institution can either eliminate child abuse and neglect or erase all errors of overcontrol or undercontrol, of false positives and false negatives, the Community is designed to lower the rate of both child abuse and neglect itself and of errors in detecting it at both extremes, and to coordinate the freedom of parents to raise their children as they see fit with the desire of the state to ensure that those children are raised in a safe, healthy, and nurturing home.
The Community, as defined in this Act, 1) humanizes the state, 2) provides parents with improved due process protections, 3) channels information to the state to assist in accurate administrative decision making, 4) accommodates and protects diverse practices, 5) reduces institutionalized bias on the basis of race, ethnicity, English language proficiency, or social class, 6) mobilizes and moderates local normative control in service to child and family welfare, 7) channels relevant information and guidance to parents to improve parental decision-making, 8) facilitates continuity without sacrificing flexibility, 9) preserves and fosters rather than severs healthy affective bonds, 10) provides a buffer for strained relationships among adults involved in a child’s life, 11) provides a vehicle for including the child in the process, and, most fundamentally, 12) provides a vehicle of proactive state support of parents and families instead of state reaction to structurally-facilitated family failure.
The Community, as the humanized incarnation of the state, helps reduce the error of overly mechanistic or politicized responses by bureaucracies often processing children rather than attending to their needs, by relying instead on an intervening layer of intimate social bonds through which the state’s decision-making must operate. The current dysfunctions are poignantly illustrated in The Lost Children of Wilder (Nina Bernstein, 2001), from the institutionalized brutality of the Hudson Training School for Girls (pp. 8-26), to the institutionalized racism resulting from farming out child welfare services to private religious organizations (pp. 44-45), and on through the stories of bureaucratic in-fighting, severed ties, and inadequate mechanisms for adapting available human resources to children’s emotional needs. The need to humanize the process, to mobilize the many people of good will who would take an interest in the welfare of the children in their community were there a functioning community through which to exercise that good will, and to facilitate their ability to do so in concert and through mutual support rather than in mutual isolation, is eloquently argued both by the anecdotal evidence of current bureaucratic dysfunction (see Wilder; Elizabeth Bartholet, Nobody’s Children: Abuse and Neglect, Foster Drift, and the Adoption Alternative, pp. 8-15), and historical analyses of how our child welfare system became a vehicle of often punitive race, class, and gender bias through paternalistic and ethnocentric assumptions about the duty of the state and the incompetence of the people perceived to be (and often in reality) most in need of its services (see, e.g., Jill Elaine Hasday, “Parenthood Divided: A Legal History of the Bifurcated Law of Parental Relations,” Geo. L.J. 90: 299; Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence, Viking: 1988; Annette R. Appell, “Protecting Children of Punishing Mothers: Gender, Race, and Class in the Child Protection System,” 48 S.C.L. Rev. 577 (1997)). The viability of alternative, community-mediated, and family empowering approaches, on the other hand, is illustrated by the anecdotal evidence of successful historical and contemporary examples (see e.g., Dorothy E. Roberts, “Black Club Women and Child Welfare Lessons for Modern Reform,” 32 Fla. St. U. L. Rev. 957, 2005; Huntington, 1531-36 (discussing state-sponsored family-service programs that, while not specifically community-mediated, reflect the kinds of services that community mediation can most effectively deliver)).
Parental due process protections are improved as a result of this humanizing process by providing parents with a social resource through which their story can be effectively told. The Supreme Court, in Santosky v. Kramer, identified some of the structural challenges to the adequate provision of due process to parents in TPR proceedings, such as the state’s far superior ability to mount a case than the parents’ ability to mount a defense, and the conceptual separation of concern for the child’s welfare from concern for the parents’ due process rights (455 U.S. 745 (1982): 1310-11). In Lassiter v. Dept. of Soc. Servs., the Court accorded the loss of parental rights less due process than the loss of liberty, holding the former not to merit the requirement of appointed counsel (452 U.S. 18 (1981)). The Community, professionally organized and represented by the Community Facilitator, serves to mitigate these deficits by acting as a mediator, counselor, and conduit of information (sec. 2(b)(iv)). The resource thus provided helps to avoid what the dissent in Lassiter accurately identified as the average parent’s dilemma when opposed by the state in a legal proceeding: An inability to negotiate the rules and procedures of the court, resulting in an inability to mount an effective defense, coupled by, as in Ms. Lassiter’s case, what may well be a tendency for such lay people in such situations to exacerbate the judge due to their inability to follow the procedures expected of a litigant in court (pp. 62-60).
This by-product of an institution (the Community) serving multiple other purposes, incidentally increasing due process protection to parents in TPR proceedings, fares well under the scrutiny of the Mathews v. Eldridge test (424 U.S. 319, 335 (1976)): The Supreme Court has made clear that the parental interest in their parental rights is of the highest order of magnitude (see, e.g., Lassiter (1981), Santosky (1982), and Troxel v. Granville 120 S.Ct. 2054 (2000)); the state’s interest in keeping children with fit parents coincides rather than conflicts with this interest, while the state’s interest in efficiency is served by the multi-functional quality of the Community (including the more family-supportive roles of the professionals involved) by which parental due process is increased; and, finally, the benefits of this additional procedural resource in avoiding error is substantial. A corollary of this increased due process protection to parents is an increased flow of relevant information to the state, both to the Administration and the courts, thus resulting in the reduction of error discussed above. The benefits emanating from this one institutional innovation are widespread: Error is reduced not just in a single court proceeding, but in all administrative and legal action involving child welfare and parental rights.
The additional due process protections accorded to parents through the medium of the Community are substantive as well as procedural: The Community protects sub-cultural diversity and forms a bulwark against class, race, and cultural prejudices operating through the apparatus of the state. By providing people the opportunity to belong to a cultural (rather than geographical) Community if the choose (secs. 2(b)(i), (iii)), they are given an opportunity to preserve and insulate culturally divergent customs and practices. While the state still has a presence, and (what the state deems to be) unambiguously harmful practices will be prohibited, people with divergent customs are given a greater opportunity to preserve them in this Act than they would have in its absence (see sec. 2(b)(iii)). Furthermore, just as the Community protects divergent sub-cultures from the excesses of the conformity-imposing tendencies of the state, it protects historical victims of discrimination from the prejudicial presumptions of poorly informed state actors by embedding state actors in the Community with which they will be interacting.
The Community is an arena where compromise can be achieved: If Somali refugees wish to retain a symbolic remnant of female genital mutilation that does not inflict the physical harm of the actual practice (see “Refugees’ Beliefs Don’t Travel Well,” Chicago Tribune, Oct. 28, 1996), then, despite our cultural outrage at the symbolism itself, that can and should be accommodated. If it is Afghani custom for loving parents otherwise providing appropriate care to kiss, as a sign of affection rather than an expression of sexual intent, the penis of one’s child (see State of Maine v. Kargar (Maine S.Ct. 1996)), then a well-informed state might wisely choose to prioritize substance over form.
Of course, prioritizing substance over form does not always favor the divergent cultural practice. The Administration, if not the courts, might choose not to privilege spanking children with a ping-pong paddle for two hours in accord with the practices of a fundamentalist religious sect (see In Re Marriage of Hadeen, 619 P.2d 374: 620 (Wash. App. 1980)). Nor would it be incumbent on the state to permit parents to allow their children to die in lieu of providing medical care due to membership in the Christian Science church (see Hermanson v. State of Florida (Fl. S.Ct. 1992)). To the extent that federal law and the Constitution would allow, the Community replaces all other forms of deference to the particular, neither allowing it to justify what would otherwise be considered a clear and unambiguous infliction of substantial and palpable harm, nor forcing it to accede to vague and suppositional mainstream sensibilities. The issue remains the child’s welfare: Religion and culture can not excuse outright violence to the child, nor should the ethnocentrisms that seep through the state deny a family the discretion to provide a loving and safe household in accord with its customs and beliefs.
The Community reduces the salience of racial and class biases in three primary ways. First, it empowers the members of the sub-group, providing a bulwark against marginalization. The “othering” of poor families of color that Appell identifies (1997, p. 579) can not so easily occur when the “other” is not, in a sense, “divided and conquered.” When represented and expressed by a Community that is the overlap of “state” and “family,” the “other” becomes internalized, recognized, acknowledged, and, to some extent, accommodated. The norms are negotiated in that arena, not defined and imposed from without. Similarly, the frequently encountered language and cultural barriers Appell describes (Annette Appell, “Spanish-Speaking Caregiver,” 7 Nev. L.J. (2007)) are mitigated by the medium of a Community that acts as a linguistic as well as cultural translator. Furthermore, the thus-far prevalent cultural assumption is reversed: Instead of depriving a loving caregiver of her granddaughter on the basis of the erroneous assumption that she would be carrying the burden alone (see id., pp. 116-17), a Community both reinforces and raises the profile of extended family and community care-giving.
Second, the Community reduces the differential visibility of families of different socioeconomic classes (see Appell 1997, p. 584) by creating a continuous, recurring public interface for far more families regardless of socioeconomic class, an interface whose primary purpose is to ensure the welfare of the children in the Community. To a large extent, it merges together what Appell (1997, p. 581) identified as the bifurcated branches of public and private family law, one based on more intrusive treatment of the poor associated with child welfare intervention and the other based on more deferential treatment of the rich associated with property rights adjudication (see secs. 5(c), (d) of the Act). While it may be the case that more affluent than poor families opt for a Parental State-Disengagement Determination rather than belong to a Community, it is likely that many affluent families will be attracted to the material and social benefits of Community membership, and that the normative control (discussed below) exerted by Communities on its members will have an ameliorative effect across classes. Even those families that opt for a PSDD will have at least one encounter with the state in which their parenting skills and inclinations come under close scrutiny (sec. 2(d)), which may be one more encounter than they otherwise would have had.
Third, the Community, and complementary legislation (see sec. 2(b)(iv)(I)), reduce the rate of neglect-due-to-poverty by providing material, informational, emotional, and social support according to need, thus mitigating what Appell (1997, p. 585) identifies as the breach of white middle-class norms of proper child care that accompanies poverty. This channeling of resources and services in proactive support of families produces many benefits, just one of which is the reduction of class bias in our child welfare system. (Other benefits are discussed below.)
Like traditional communities before it, the Community will undoubtedly function as a vehicle of local normative control through the mutual enforcement of informal rules. This is accomplished by means of the diffuse social approval and disapproval of its members (see class, Jan. 27). The combination of the state’s involvement in the Community (see sec. 2(b)(iv)), and the historical tendency of communities in general to reinforce behaviors that are conducive to children’s welfare, are sufficient to ensure that the Community’s norms do indeed invoke positive and negative reinforcement of parental behaviors that, respectively, positively and negatively affect children’s welfare. In fact, due to the institutionalized interdependence Community members (see secs. 2(a)-(c), 4(b)), the externalities of individual parental choices is increased, and the incentive for other Community members to encourage good parenting and discourage bad parenting (as defined by some articulation of state and Community values) is correspondingly increased.
Indeed, the most likely, and perhaps most legitimate, criticism that may be leveled against this Act is that the Community itself can be a very onerous intrusion on family autonomy and privacy. But, aside from the opt-out provided by the PSDD, the tyranny of the Community is, if not necessarily reduced, then at least made more coextensive with individual freedom, by allowing parents the option of selecting a cultural Community that best expresses their individuality (see 2(b)(i), (iii)). Leaving aside for now the discussion of how the Act moves from, as Huntington put it, the somewhat mythological “freedom from” notion of family autonomy to a self-determination-increasing positive mutual engagement model (2007, pp. 1510-20), and considering instead the residual need of the state to intervene in remaining child abuse and neglect cases, the Community provides an appropriate balance between a family’s right to privacy on the one hand, and the state’s need to be vigilant in the protection of children’s welfare on the other. Deficiencies fostered by our current social institutional framework, such as the very inadequate job we currently do of identifying and intervening in cases of sexual abuse (class, Jan. 15), and the decreased ability to intervene in cases of child abuse and neglect in affluent households due to their decreased interaction with public services (see Appell 1997, p. 584), can be addressed more effectively, with a moderate and reasonable compromise of privacy, by means of a Community to which each family belongs, and under whose intimate vigilance each family thrives.
Along with the encouragement of practices conducive to child welfare and discouragement of practices antithetical to child welfare, the Community provides a conduit of information and guidance to parents to help them become familiar and comfortable with positive child care practices, as well as with coping skills to help avoid spontaneous responses to events that would be considered abusive or counterproductive to the child’s welfare. The Community Parenting Support Meetings (sec. 2) are, essentially, self-help group meetings held at regular intervals for just this purpose, as well as to resolve problems and address needs of individual families as they arise. As Huntington points out, this type of proactive assistance increases rather than decreases family self-determination, by “reducing the chance that a crisis will occur and the state will remove the child from the parent’s home” (2007, pp. 1511-12).
The reliance on the Community as the arena in which both proactive and reactive needs are addressed first, and are addressed most, balances permanence in the provision of a home for a child with flexibility in meeting the demands of ensuring that the home is a safe and nurturing one, and that all adults who have healthy affective bonds with the child are allowed to remain in that child’s life. As Bernstein explained in The Lost Children of Wilder, citing Bolby’s Attachment and Loss to explain Lamont’s traumatization by the shuffling around he experienced in the New York child welfare system, young children experiencing repeated cycles of attachment to adult care givers and subsequent loss develop reactions of anger and anxiety in association with the prospect of future attachments (2001, pp. 257-58). The Community provides an increased layer of the familiar around the family, facilitating the satisfaction of the sometimes conflicting demands of continuity on the one hand, and placement in a safe and healthy home on the other. It accomplishes this by 1) looking for foster care, adoption or temporary placement options within the Community first (secs. 5(c), (d)), 2) not severing the healthy affective bonds that the child has already formed in order to create parental exclusivity with each new placement (secs. 5, 6), and 3) investing in the proactive assistance to parents that will increase their ability to provide a healthy and safe home to their children in the first place (sec. 2(b)(iv)).
Our current child welfare system dramatically fails to meet these demands. Elizabeth Bartholet, in Nobody’s Children: Abuse and Neglect, Foster Drift, and the Adoption Alternative, identifies how the dysfunctional combination of excessive individualism and lack of community (p. 2), the notion of family autonomy as freedom from the state (p. 3), and “a powerful blood bias” (p. 7), creates a model which sets up often loving but poverty-impaired biological parents to fail and children subsequently to receive suboptimal care. According to Bartholet, child welfare services either leave abused or neglected children in the care of damaged parents deemed “good enough,” or place the child first in a sort of limbo awaiting the improbable event of the parent’s mostly unaided resolution of her problems, and then set the more-damaged-than necessary children adrift in a foster care system that is unlikely to provide either a stable or nurturing home (id., pp. 8-15).
Bartholet’s proposed solution involves the combination of a more proactive state assisting parents from pregnancy onward (id., pp. 15-16) and “concurrent planning,” “proceed[ing] on two tracks simultaneously, working with parents toward family reunification, while at the same time developing an appropriate adoption plan” (id., p. 18). The Community serves as a vehicle for a more comprehensive solution that incorporates Bartholet’s proposal, but also improves upon it. Not only does it provide a conduit for the state’s proactivity, but it does so with an inclusiveness and constancy that a mere patchwork of state assistance programs can not match. It facilitates blending concurrent planning with a focus on continuity for the child, by involving prospective adoptive parents in the child’s community from the earliest possible date (see secs. 2, 2(a), 5(e)), and by not forcing, as a matter of policy rather than as the result of an individualized determination, either prospective adoptive parents or biological parents (or any other care giver) to severe their ties with the child if the child ends up in the care of another (see secs. 5(b)-(d)).
This latter characteristic of the Act, of preserving rather than severing the healthy affective bonds that children have formed with adults (secs. 5(c), (d), 6), contributes not only to continuity for the child, avoiding the attachment-interruption problems described above, but also provides the child with increased adult human resources on which to draw. Who could doubt that, had Alicia’s loving bond to Lamont not been arbitrarily severed (see Bernstein, pp 300-302), had care instead been taken to preserve it, that Lamont would not have fared better? Or, for that matter, had Shirley been able to maintain some kind of relationship with Lamont throughout his childhood, even if not a custodial one, that they both would not have benefited (id.)? The Act explicitly allows for any number of adults to be involved in a child’s life, to have plenary or circumscribed roles, responsibilities, and rights, and for those roles, responsibilities, and rights to be coordinated in mutually accommodating ways by the Community and the agents of the Administration (secs. 5, 6). Through these mechanisms, the Act addresses and mitigates many of the problems associated with allowing more than two parents, while retaining all of the benefits (see class, March 5).
The literature is rife with examples of severed or attenuated bonds between children in the system and adults who love them, often followed by disastrous outcomes for the child (or simply the loss of a loving parental figure) (see, e.g., Apell 1997, pp. 592-93; Appell 2007, pp. 116-21; Bernstein 2001; Suzanne Goldberg, “Family Law Cases as Law Reform Litigation,” 17:3 Colum. J. Gender & L. 307, 2008). The case law also provides numerous examples of the exclusion of adults who wished to form a relationship with the child, frequently on the basis of parental exclusivity (that is, only two parents per child) (see, e.g., Quillon v. Walcott, 434 U.S. 246, 1978; Michael H. v. Gerald D., 91 U.S. 110, 1989; Sider v. Sider, 334 Md. 512, 1994; In Re Baby M., 109 N.J. 396, 1988; Ohr v. Ohr, 97 P.3d 354, 2004; In the Interest of CTG, 179 P.3d 213, 2007). While in some individual cases a determination might be reached that a particular relationship is not in the child’s best interest, the presumption that a child can have no more than two adults with parental or quasi-parental rights severs valuable bonds and reduces the affective human resources available to the child.
The focus on fostering and preserving healthy affective relationships with adults, and contextualizing the child’s welfare by membership in a Community, provides resources that can also serve as a buffer when necessary between two adults with shared parental rights. In In Re the Paternity of Baby Doe (207 Wis. 2d. 390, 1996), the court held that, absent a statutory distinction, the rapist father of a child had the same rights as any biological father. If, even under a more refined legislative regime, a rapist-father’s relationship with the child were found under certain circumstances to be in the child’s interest, the presence of multiple adults in the child’s life, and of a Community enveloping those relationships, could more easily accommodate a mother who might well be highly averse to any kind of interaction with the father. Even under less dramatic circumstances of divorced parents highly antagonistic to one another, the best solution at times, if all else fails, might be to preserve the child’s relationship with each while sparing all from forcing a relationship on the two antagonistic adults. Moving away from the current insular family microcosm and toward a Community model of socially contextualized families would facilitate such flexibility.
The Community, as a facilitated organic medium for, among other things, interpreting, coordinating and accommodating the wills of various actors vis-a-vis the children whose welfare is the purpose of this Act, is able to give voice to those actors whose voice is most marginalized, though whose interests are most pertinent: the children themselves (see sec. 2(b)(iv)(III)). Just as the Community can interpret for care givers who are not fluent in English, it can interpret to some extent for children whose cognitive development renders their conceptual language to some degree out of sinc with the conceptual language of the adults around them. This is a function of the combined genius of numbers and of intimacy: The more intimate one is with a child, the more that adult can intuit the child’s thoughts, wishes, and perceptions; and the more adults so positioned, interacting both with each other and with the child over extended periods of time, the more able they are collectively to extract and render comprehensible the perceptions and wishes of that child.
Children’s participation in Community Parenting Support Meetings, and their interaction with the Community Facilitator and with their family’s Family Support Case Worker (if they have one), will help to empower the children, and teach them through experience not only civic participation, but also how to live in a community, how to advocate for themselves, and how to engage with the world in a more aware and proactive way. The skills they thus actively develop, as well as the institutional apparatus through which they develop it, will help mitigate some of the inherent and, to varying degrees, intractable challenges facing the extension of rights of self-determination to children.
As Justice Douglas put it in his dissent in Wisconsin v. Yoder, “the children should be entitled to be heard” (406 U.S. 205, 241: 244 (1972)). In Yoder, the rights of the parents, the state, and even of the reified Amish religion and community, were all considered, but the children were the ball rather than the players moving it down the field (see class, Jan. 29, though the metaphor is mine). The difficulty of obtaining a fully informed and well articulated statement from children involved in matters of concern to them, and the question of how to weigh such statements if obtained given the children’s cognitive limits (id.), contribute to the marginalization of a child’s will in determinations of that child’s fate.
Perhaps most saliently, how could the state enforce a child’s right vis-a-vis a fit parent, when that child remains dependent on that parent (class, Feb. 3)? One step toward resolving these challenges is to provide the child with a social resource that is neither the parent nor the state, that is familiar with and supportive of the child, that is not an individual either guessing at the child’s best interest (e.g, a guardian ad litum) or a lawyer representing the child’s uninterpreted express views and preferences (see Elizabeth Brodsky’s class presentation on April 21), but is rather a Community that knows the child and can help the child to discover, formulate, and articulate his or her own views and preferences most effectively. And, perhaps most uniquely and importantly, the Community reduces the child’s absolute dependence on the parents with whom he or she is identifying imperfectly aligned interests.
The parental advantage is far from eliminated in this context: The Community is always of the parent’s choosing (unless accepted by default). In Yoder, the relevant Community (the Amish community) would have sided unambiguously with the parents. The children would have had to leave their Community as well as their families to escape the adult will to which they were being subjected. But the Community will provide many children in many situations with an adult social resource that is more attuned to them then a GAL is likely to be, and is capable of being the child’s most powerful advocate in certain circumstances. And the presence of state actors in the Community (the Community Facilitator assigned to the Community itself, and the Family Support Case Workers assigned to families within the Community) helps to provide at least some counterweight to the Community’s own potentially totalitarian inclinations.
Those totalitarian inclinations pose a serious challenge. The Community can as easily be the oppressor as the liberator, an increased weight dictating to the child (or parents) rather than an asset supporting them. Care must be taken in the design and management of Communities to prevent them from becoming suffocating forces, and to maximize their potential as an empowering resource.
In many ways, the Community’s ability to perform effectively its functions is due to it being a permanent and familiar presence rather than a foreign agent suddenly introduced in response to events. And this, of course, is the crux of its utility: It is the vehicle of a proactive rather than reactive approach to the provision of child and family welfare services. The Community is the comprehensive operationalization (and marginal refinement) of Huntington’s “‘engagement with’ model of family-state relations,” which replaces “the ‘freedom from’ conception of family autonomy” (2007, p. 1485). Like the African-American child and family welfare advocates at the turn of the 19th to 20th centuries (Roberts 2005), this model is focused on supporting rather than penalizing parents and families facing the challenges of providing for their children, and particularly those families that are further burdened by the deprivations of poverty (Huntington 2007, p. 1494).
Following Barbara Bennett Whitehouse’s (Ecogenerism: An Environmental Approach to Protecting Endangered Children, 12 Va, J, Soc. Pol’y & L. 409, 423 (2005), cited in Huntington 2007, p. 1496) identification of the salience of a child’s environment, “including a child’s peer group, neighborhood, and school” as “the systems surrounding a family” that should be supported in conjunction with the support of the family itself (Huntington, p. 1496), the Community is the vehicle for directing that support and coordinating the various components of a child’s environment. And rather than providing the “one-way ratchet” effect of regulation-imposing state aid (Huntington, p. 1506), the Community provides a two-way forum of state and family articulation.
As Huntington points out (citing Frances Olsen, “The Myth of State Intervention in the Family, 19 U. Mich J.L. Reform 835 (1995)), the state is already heavily implicated in family decisions, first by “determin[ing] the contours of the world in which a family lives,” and second by “establish[ing] a system authorizing parents to make some decisions concerning children” (Huntington, p. 1514). In essence, the illusion of family autonomy is a function of the degree to which we accept the state’s involvement as a fixture of the social institutional environment, and so do not identify it as state involvement at all. Public education, for instance, is an enormous state investment in our children’s development (Huntington, p. 1522), one that affects children’s development in an often cooperative and occasionally conflicting dialectic with individual families (or, indeed, individual communities), but one that is not generally perceived as an unacceptable intrusion on family autonomy. Indeed, most parents have come to see it as an indispensable state service.
There is no inherent, qualitative difference between the institution of public education, which parents generally accept and appreciate, and the institution of the Community established by this Act, which families could well come to accept and appreciate in much the same way. Just as the state has created an elaborate apparatus, both local and ubiquitous, to provide public education services, so too can it provide a similar apparatus, the corollary of the local school, providing comprehensive support to families in the enterprise of raising their children. And just as public education is an enormous investment that has paid off enormously, the fully endowed Community (see sec. 2(b)(iv)) holds the same promise multiplied many fold.
The Community as a legal construct satisfies not only the need to provide a conduit through which to channel state services to families that need them, but also the need to replace, in some form, a valuable traditional social institution that has eroded with increased mobility and increased familial and individual insularity. The Yoder Court, by one not terribly strained interpretation, appears to have been implicitly informed by an appreciation of and deference to the stability and nurturing environment that a well-functioning community provides (406 U.S. 205 (1972)). The Community is the family writ large and the state in humanized form; it is the middle ground. As such, it provides many benefits beyond those that are the focus of this discussion, such as, by permitting and coordinating multiple adults participating in a child’s life, the facilitation of non-traditional family arrangements (see In Re Baby M 1988; John Bowe, “Gay Donor or Gay Day?” New York Times, Nov. 19, 2006).
The Community is also an improved social thermostat, responding in real time to evolving situations, rather than, as in our current child welfare regimes, relying on a remote state which must choose between removing a child from his or her home (and thus ensuring that he or she is at a statistical disadvantage of faring well (class, Jan. 22), as well as risking the outright abuse found within the foster care system (see Taylor v. Ledbetter, 11th Cir. 1987)), or, conversely, risking a catastrophe such as that illustrated by DeShaney v. Winnebago (7th Cir. 1989), in which a boy was not removed from an abusive home and, subsequently, was beaten into a coma by his father and suffered permanent brain damage as a result. The Community satisfies the risk-aversion of the state (class, Jan. 22) by being its more vigilant immediate presence, but simultaneously permits less precipitous removal of the child than is often the result of that very same risk aversion (see, e.g., Appell 2007, pp. 116-121; Bernstein 2001, pp. 189-97).
The Act contextualizes all decisions made regarding child welfare, and places all adults currently or prospectively involved in such decision-making (see, e.g., secs 2, 5(e), 6(b)(iii)) in the relevant Communities, aided by the trained professionals within those Communities. The professionals are attached to both levels (a CF for the Community as a whole, and FSCWs for individual families within the Community) in order to increase communication and cooperation across levels. Some flexibility for individual Communities and care givers is incorporated into the Act, such as, in sec. 2(c), allowing for some variance in the frequency of Community Parental Support Meetings, in sec. 2(c)(ii) allowing for accommodation of individual parents with scheduling problems, and in 6(b)(iii) allowing for variation in how frequently adults with more peripheral roles in a child’s life must attend meetings (depending on factors such as geographic distance). This flexibility combines assurance of actual integration into the Community with avoidance of making Community membership an onerous burden.
The use of the Community, with the oversight of the CF, to target resources to families in need (sec. 2(b)(iv)), increases the efficiency of the channeling of resources to where they are needed, and deferential assistance in most effectively utilizing those resources.
The Act strikes a balance between protecting privacy concerns and creating an intimate social context for proactively providing and targeting family services in provisions such as sec. 2(c), which provides parents with an opportunity to opt out of the entire proactive apparatus of the Act, after a deferential meeting to determine that there is no reason why the parent shouldn’t be allowed to do so. This meeting is designed to ensure that no parent remains completely insulated from the child welfare system created by the Act, and to give the Administration at least one chance to detect any obvious signs of concern before a parent is allowed to retreat into the current default of family insularity that is so conducive to undetected child abuse and neglect. Parents who do not opt-out can participate with varying degrees of engagement, receiving varying amounts of professional support, depending on a combination of their choices and the Community Facilitator’s recommendation (sec. 3).
Section 4 provides an escalating process of intervention when necessary for the child’s safety or welfare, beginning with Community support and guidance if at all possible. Due to liberty concerns, the Act cannot mandate that Community members provide that support and guidance, though the hope is that by institutionalizing the opportunity and providing a framework through which to operationalize Community support and guidance (absorbing the transaction costs, so to speak), such support will become the norm rather than the exception. Section 5 continues the provision of steps to be taken to remove a child from a dangerous or unhealthy home, always focused on creating the least disruption possible to the affective bonds that the child has formed with adults, and contemplating available alternatives simultaneously rather than sequentially (secs. 5(d), 5(d)(i)), thus avoiding terminating a bad situation in favor of a worse situation. The concerns for maintaining continuity of racial and sub- cultural identity for the child are incorporated into the preferences outlined in sec. 5(d)(ii), and neither merit nor require any additional privilege. Sec. 5(e) further facilitates continuity for the child in adoption proceedings, and increased assurance of a good fit, by involving the prospective adoptive parent in a Community as soon as adoption proceedings begin, and encouraging involvement in the child’s Community as soon as possible by requiring the Community’s approval of the adoption.
Section 5(f) is a slight modification and refinement of current (Colorado) rules of adoption requiring a four day waiting period after birth before a mother can put her child up for adoption (CRS sec. 19-5-103.5(1)(b)(IV)). Section 5(f) distinguishes between a considered decision made well before birth, and a precipitous decision made after birth. While sec. 5(f) recognizes the wisdom of giving every new mother a brief opportunity to reconsider her choice, it also recognizes that it is in the interest of mothers who made that choice rationally well prior to birth to abbreviate that period as much as possible (36 hours in this case), while for mothers who may be making the decision more precipitously it is important to extend that period enough (3 weeks in this case) to ensure that it is, in fact, a well-considered and rationally made decision.
While section 6 describes the provisions for fostering and maintaining healthy affective bonds with all adults actually involved in the child’s life, it also recognizes the parent’s ultimate responsibility and right to be vigilant regarding such relationships (sec. 6(b)(i)). Sections 6(b)(ii) and (iv) similarly protect the parent’s privacy vis-a-vis other adults with rights of access to the child, and address the logistics of ensuring that such rights are exercised in a minimally intrusive and disruptive way.
II. Constitutional Issues Raised by The Act
The Constitutional issues raised by this Act center on the 14th Amendment liberty interest of parents in their parental rights regarding the custody and care of their children, and the penumbra privacy right found through a distillation of the 1st, 3rd, 4th, 5th, and 9th Amendment rights. The case law at hand focuses on the 14th Amendment liberty interest, and, following that case law, I believe that the Act can withstand a 14th Amendment challenge. In Troxel v. Granville (120 S.Ct. 2054 (2000)), the Court, in a plurality decision, struck down a Washington statute permitting any person at any time to petition for child visitation rights against a parent’s express wishes, on the bases that the statute was overbroad, and that parents have a fundamental right protected by the due process clause of the 14th Amendment regarding the care and custody of their children. But the holding is ambiguous, in that the Court does not apply strict scrutiny despite the identification of a fundamental right (see J. Thomas’s concurrence, 2067-68). And the Court’s holding, “as applied” (p. 2060), strongly implies, if not explicitly states, that not any statute permitting people with specified relationships to the child to petition for visitation against parental will would not necessarily be unconstitutional according to this holding, but only a statute that permits “any third party seeking visitation to subject [a contrary parental decision] to state-court review” would be (p. 2061, emphasis mine). Since the Act (sec. 6) specifies that only adults that have formed healthy affective bonds with the child have such right of petition (and, had space allowed, would have made detailed provisions for biological parents who had not formed such bonds), it does not suffer the defect that caused the Washington statute in Troxel to be struck down.
Troxel only requires special deference to parents not found unfit, on the rebuttable presumption that parents have their child’s best interests at heart (pp. 2061-62). The Act above provides such deference. In sections 6(b)(i), (ii), and (iv) of the Act, the special deference accorded parents is codified in precise detail. Section 6(b)(i) ensures that the parent can always be present, if she chooses, in any visitation with her child by any other adult, unless a very high threshold is met to demonstrate that the child’s best interest is served, and no harm is threatened, by the non-parent’s ability to visit the child without the parent’s supervision. Sections 6(b)(ii) and (iv) specify the deference to parents required by non-parents exercising these rights, and the procedures available to parents who feel that appropriate deference (specified in the regulations) was not exercised.
The Supreme Court of Colorado, in In Re R.A. (137 P.3d 318, 2006), interpreting Troxel, construed the Colorado grandparent-visitation statute to contain a rebuttable presumption that parental determination is in a child’s best interest, the burden being on the grandparents to prove by clear and convincing evidence that it is not in the child’s best interest. The Act, by placing the state, as parens patriae (see class, April 16), in the position of the petitioner, in essence legislates precisely this proposition: In sections 6(a)(i) and (ii), petitioners for such third-party visitation rights must demonstrate to the Administration, by the same standard of proof as that identified by the Colorado Supreme Court (“clear and convincing evidence”), that they have already formed a healthy affective bond with the child, thus, if opposed by the parent, rebutting the presumption that favors the parent’s judgment.
The traditional two-parent limit, which this Act modifies, appears from the available sources to be an artifact of state statutory law rather than any form of federal law (whether Constitutional, statutory, or regulatory). The authority cited in Elisa B. (117 P.3d, 664) and Ohr (97 P.3d, 356) for the two-parent limit is the Uniform Parenting Act, as enacted by the states of California and Colorado, respectively. The Supreme Court of California weakly implied, in Elisa B. (117 P.3d, 665), that there is nothing to prohibit, a priori, a state from legislatively recognizing multiple parents, stating “we see no compelling reason to recognize [a multiple parent arrangement] here,” citing California law, and neither Constitutional nor federal law, as their authority. The Colorado Court of Appeals stated it more strongly in Ohr: “We think it best to leave to the General Assembly the decision whether to extend eligibility to seek parenting time…” (p. 358). The sharp distinction the courts consistently make, however, between “parents” and “third parties” (see, e.g., Troxel, p. 2061; Johnson v. Calvert 5 Cal.4th 84, cited in Elisa B, p. 665), raises some concerns that a diffusion of parental rights vis-a-vis a single child could confront a Constitutional challenge. However, since no provision in the Constitution speaks either directly or indirectly to this issue, one would hope that judicial restraint would prevail.
The remaining 14th Amendment question is whether the requirement of attending a Parental State-Disengagement Determination in order to opt-out of the family-state engagement (Community) provisions of the Act violates a parent’s liberty interest in the care and custody of her children. Using Huntington’s analogy of public education (p. 1522), and noting that there is no Constitutional prohibition to imposing procedural requirements on parents wishing to disengage from the state in regards to compulsory public education as onerous as, or more onerous than, those incorporated into this Act in order to disengage from the Community (see, e.g., Pierce v. Society of Sisters, S.Ct. 1925, holding that parents can remove their children from public schools only if they send them at their own expense to state-regulated private schools instead), there is no reason to believe that a Constitutional challenge to the requirement of meeting with the Administration one time in order to disengage from the arguably more invasive elements of this Act would be successful.
In response to a Facebook post wondering at the uncritical commitment to Israel insisted upon by the American far-right, and their insistence that any wavering from that commitment is “anti-Semitic,” I wrote the following essay:
Being critical of Israel is not necessarily “anti-Semitic,” just as being critical of America is not necessarily “anti-American” (and, for that matter, being critical of any given religious order, movement, or individual, isn’t necessarily an affront to “God”). Israel and America are both nations, more like than unlike others despite the mythologies surrounding them.
Israel and America have had an important strategic relationship, confused and exaggerated by two religious communities that have become overzealously committed to America’s unflagging and unquestioning support of Israel, even to the point of to some extent ceding our own sovereignty to Israel. Those two groups are, of course, the American Jewish community, which has always been overwhelmingly blindly and fanatically pro-Israel (though not without many exceptions, Jews who are first and foremost humanists and are first and foremost concerned with our shared humanity), and, now, conservative evangelicals, who have their own religious reasons for feeling a zealous commitment to Israel (having something to do with their interpretation of the requirements for the Rapture, as I understand it, rather than any sincere love of Israelis) combined with their own ultra-conservative, ultra-nationalist leanings.
Israel’s history and pre-history are also both critical threads in a complete understanding of the geopolitical landscape into which it has woven itself, and the moral implications of that choice. The one thing that isn’t relevant to anyone but Israelis themselves is their ancient, religious-based claim to the land: Every parcel of land on the face of the Earth has changed hands –far more often by violently imposed than by peacefully mutual means– many, many times over the ages, and the current legitimate claims of one racial/ethnic/religious group that had been in continuous possession of that parcel for about a thousand years prior to the Israeli colonization and usurpation of that parcel had, up until that point, the far superior claim to legitimate rights over that parcel.
So, one thread in the tapestry to understand is the very legitimate grievance of the Palestinians, whose currently and extant ancestral land was colonized by a group of Europeans who decided to call it their own and create a state explicitly dedicated to their own culture and religion on it, instantly reducing the pre-existing inhabitants to the status of second-class citizens. Another thread of the tapestry is the recognition of the strong and compelling push factors that induced that European population to do so, though the legitimacy of those push factors (i.e., a history of violent oppression, culminating in the Holocaust), as horrific and empathy-inducing as they may be, can’t justify colonizing and oppressing another, unrelated, foreign people. (That injustice experienced by the Palestinians, however, does not justify and excuse their own atrocities committed since the establishment of the state of Israel, a lesson to those who forget their humanity in the midst of their commitment to other abstractions.)
But another fact of our geopolitical history is that it is a story of borders drawn and redrawn, populations placed and displaced, by endless series of combinations of militant initiative and gross injustices, so that once some new formation becomes a fait accompli, the injustice of its formation becomes less relevant than the reality of its existence. No modern nation on Earth can claim not to trace its roots to the military conquest of other peoples and the drawing of lines in the sand based on that conquest (if there are a few tribes scattered about the world, who still have some identity of themselves as a nation, who never occupied land they took from others, they are an exception to the rule defined more by the circumstances they encountered than by some idealized superior moral quality of their own). For that reason, Israel’s right to exist should not be brought into question; the Israelis aren’t going anywhere, and any agenda that insists they do at this point can only become a source of gross inhumanity.
Finally, there is the issue of the Israeli-American relationship and their combined and separate relationships with the rest of the Middle East and the rest of the world. America quickly recognized Israel’s right to exist, in part to avoid having to absorb millions of European Jewish refugees in the wake of World War II, in part due to the presence of large numbers of Jews in America who strongly favored supporting Israel, in part due to a sense of the inhumanity that had been inflicted on the Jews in the chapter of world history just preceding the establishment of the state of Israel and some generalized debt of humanity to them that that chapter incurred, and, undoubtedly, in part due to recognition of the strategic value of such an alliance. And America quickly formed a strategic partnership with Israel, becoming Israel’s staunchest and invaluable military and economic supporter in return for having a country-sized base of operations and proxy agent in a region of the Earth very much at the vortex of historical geopolitical struggle and conveniently located near the Eastern Communist Block.
This meant that the hatred of the Arab world toward Israel for colonizing and usurping what had been an Arab country became generalized to the United States as well, and, in some ways, raised to a higher pitch against the United States, whose superior wealth and power and secularity all piqued the jealousies and religious animosities of many in that region of the world. America, the rich, secular, militant supporter of the small power that had ensconced itself on previously Arab land, easily became “The Great Satan” in the popular Arab mind (and, yes, the animosity toward America in the Arab world, while far from universal, is very wide-spread).
Our unfailing support of Israel’s own sometimes overly aggressive reactions to their own perceived insecurity has not helped this modern historical animosity between America and the Arab world. All of this combined with our support of the Mujahideen in Afghanistan, in order to use them as proxies to repel the Soviets from Afghanistan in the 1980s, and our choice to leave abruptly once that was accomplished, leaving a tribally-contested power vacuum and a whole lot of very deadly state-of-the-art military hardware and weaponry. As a result of that latter choice, a very bloody civil war ensued in Afghanistan, for whose intensity we were in part correctly blamed, resulting in the establishment of the Taliban, who hated us for all of these reasons involving our relationship with Israel; our secularism, wealth and power; and the deadly and bloody ruin we had set their country up for.
So our support of Israel has come at a high price, a high price that we should have been glad to pay if that relationship really were as morally perfect as some pretend it is. In reality, we incurred the enmity of the Arab world in part by taking a very strong side in a complex regional relationship that required more of an honest broker from what is in fact the global hegemon (The U.S.). (The extent that we failed to be an honest broker can also be exaggerated; our shuttle diplomacy in the Middle East has often played a very valuable role in resolving conflicts there, and forging new alliance where enmity had existed, such as between Israel and Egypt and Israel and Jordan.) This is a difficult error to correct at this point, but one which we should strive to correct by taking a harder line with Israel, not rescinding our alliance, but insisting on more restraint, accountability, and accommodation from those often wayward allies of ours.