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.
It’s no secret to people who read my essays, posts and comments that I am unabashedly critical of far-right-wing thought in America. That is not to say that there are no rational and humane conservative ideas, and no rational and humane conservatives, but rather that the current dominant brand of conservatism in America is neither rational nor humane (and it is this more extreme, currently popular version that I am referring to when I refer to “right-wing” thought). This is not a unique perspective, nor is it unusual for an intellectual to hold it; indeed, intellectualism is explicitly disdained by the ideological camp in question. Precisely those professions that methodically gather, verify, analyze and contemplate information are dismissed as bastions of liberal bias, and the (undoubtedly fallible) conclusions arrived at by those professional disciplines and held by the majority in rational deference to the greater reliability of such information are considered by right-wingers to be inferior to their own arbitrary, dogmatic false certainties.
Though we will not win the battle of narratives through rational argumentation alone, we will win it by driving home the fact that we are promoting the narrative of reason and humanity, because whether people actually engage in rational thought or not, the overwhelming majority recognize in principle the greater credibility of rationally over irrationally derived conclusions. The more that rational and humane people drive home the fact that they ARE rational and humane people, opposing the ideologies of irrationality and inhumanity, the more successful we will be in the battle of narratives that is the political arena. Therefore, be prepared, in every debate with a right-wing ideologue (or even, as is sometimes the case, an irrational left-wing ideologue) to mobilize formal logic and to name formal logical fallacies, or to describe specific fallacies routinely employed by right-wing ideologues. Let’s distinguish ourselves from them by looking like, as well as being, the voice of reason and humanity, because it is by making that distinction constantly and abundantly clear that we will move this country and this world in positive directions.
I’ve examined the very abundant universe of right-wing fallacy from many angles, tackling specific dimensions, specific issues, and specific aspects of it. But I’m not sure if I’ve yet published (on this blog) my growing typology of specific fallacies most particular to right-wing argumentation. Some don’t fit neatly into the list of conventional logical fallacies, or are very particular variations of them, and those are the ones I shall address first, because I find them the most interesting.
For instance, I’m fascinated by what I call “the right-wing two-step,” which involves first insulating poorly informed and poorly argued opinions from critical analysis on the basis of a relativistic argument, and then promoting them to the status of unassailable absolute truth on the basis of the argument that to fail to do so would be to commit the error of relativism. This fallacy, most common among right-wing evangelicals, is so luxurious in its absurdity that one has to admire the poetry of dogged ignorance that it represents.
It operates as follows: In Conversation 1, a right-wing opinion is challenged on the basis of a factual and rational critical argument, to which the right-wing ideologue replies, “I’m sure that there are equally good arguments supporting my position” or “whose reason, yours or mine?” as if there is no such thing as “reason” which exists independently of each person’s arbitrary claim to it. The right-wing ideologue will dismiss the critical argument not with a counterargument of any kind, but with an assertion of the equality of all opinions, and the right of each to have their own. In this way, they insulate their own opinion from any intrusion of fact or reason.
In Conversation 2, the right-wing ideologue is challenged on the more general basis that there are many different people from many different ideological camps who are as certain of their absolute truths as the right-wing ideologue is of his, and that there is no a priori reason for assuming that one is correct and the others false (this would be a good introduction to the critical challenge posed in Conversation 1, if it could get that far). This is in fact similar to the reasoning that the right-wing ideologue used in Conversation 1 to insulate his ideology from fact and reason, but rather than using it to bring the certainty of his own dogma into question, he uses it to reduce any other contention to a condition of a priori equality to his own. Now, however, in Conversation 2, he rejects that same line of reasoning, insisting that to accept it is to commit the error of relativism by failing to recognize that there IS one absolute truth rather than a variety of competing truths!
So, first, his opinion can’t be challenged because all opinions are equal, and then no other opinion can be considered because there is only one absolute truth, and since his can’t be challenged it must be that one absolute truth! It’s hard to overstate the wonder of such perfect irrationality.
It’s worth emphasizing that the actual order of conversations is irrelevant. I’ve ordered them as I have because I believe that that is the order by which they are used to insulate one’s own fortress of ideological dogma from both specific and general critical examination, the specific insulated against by a general argument, and the general insulated against by an appeal to specificity. This is a very particular and elaborate version of the tautological fallacy, described below.
The right-wing two-step is a particular variation of the broad spectrum of prevalent right-wing fallacy that involves selective perception, cherry-picked evidence, and what I call “pettifogging,” or the obfuscation of the big picture and the overwhelming thrust of evidence and reason by means of relentless picking at peripheral and often barely relevant details. This generally involves the narrowing of the frame of reference so as to ignore all contextual information, and focusing on anomalous or isolated information that supports their conclusions (and can generally be easily explained in the context of opposing conclusions) while ignoring the overall weight of the evidence comprehensively considered.
The George Zimmerman trial and the public debates surrounding it provide an excellent recent example of the narrowing of the frame of reference to an isolated instant, conveniently filtering out any consideration of the context leading up to that instant. By focusing exclusively on the moment in which the fatal shot was fired, and by assuming the facts most favorable to the person they most identify with (the guy going out with his gun to find “bad guys”), the far-right manages to disregard the fact that Zimmerman made aggressive choices that led to the shooting death, at his hands, of a kid who at least up until Zimmerman’s choice to follow him with a gun, had been committing no crime. But for Zimmerman’s choices to arm himself, leave his home, identify a black teen walking home from the store as suspicious looking, and stalk him, the violent encounter that led to Zimmerman shooting that teen to death would never have occurred. But by narrowing the frame to the instant of the shooting itself, this fact can be completely disregarded and the challenge it poses to their overall ideology ignored.
Another variation of this fallacy involves responding to statistical evidence with anecdotal evidence, as if finding any case that does not support the statistical correlation is disproof of that correlation’s validity. This is a favorite technique in arguments over gun regulations, when the statistical evidence demonstrating a positive correlation both domestically and internationally among developed nations of gun ownership and homicide rates is dismissed on the basis of the trope that “Chicago (or Washington DC) has the strictest gun regulations in America and the highest homicide rates,” or “crime rates went up right after gun regulations were implemented in X locale.” Sometimes this is true (sometimes invented), but the real point is that it is anecdotal, and not a meaningful response to the statistical data which does not cherry-pick convenient cases but rather considers all cases at once. (It also ignores the obvious causal relationship that jurisdictions with high homicide rates and strict gun laws generally implemented the latter in response to the former.)
My favorite analogy for the fallacy of using anecdotal evidence for rejecting statistical evidence is that of arguing that wearing seat belts in a car increases the likelihood that you will die in a car accident. One can argue against that position, which we all know to be absurd, by citing the statistics which demonstrate it to be absurd. But if a right-winger had some ideological reason to want to arrive at the opposite conclusion, they could simply cite every example they can find of the anomalous event that someone wearing a seatbelt died as a result of wearing their seatbelt, thus in their mind disproving what the statistical evidence demonstrates. Or, ideologues engaging in pseudo-science can data-mine for anomalous correlations, such as (hypothetically) “people driving four-door sedans on city streets in the third largest urban area in Illinois between 10:00 pm and 11:00 pm on weekdays are more likely to die if they are wearing seatbelts than if not.”
I’ve made the “cherry-picking” of the statistical correlation obvious in this case, in order to illustrate how it can be done (anomalous correlations can be found if you search long and hard enough) and the similarity to finding simple anecdotal anomalies to “refute” statistical evidence, but when used by right-wing ideologues, it is often less obvious to an untrained eye. (A favorite tactic, for instance, is to replace “firearms” with “rifles,” and then to cite homicide statistics by rifles as if rifles represented all firearms, often actually switching to “guns” from rifles when presenting the statistic.) John Lott’s study in “More Guns, Less Crime” for instance, has been widely criticized for the selection of parameters to arrive at desired conclusions, and has been rejected as invalid by a panel of experts convened by the National Research Council (as well as by numerous individual scholars), and yet is the study on which the most knowledgeable gun advocates almost exclusively rely.
(As a side note, this focus on anomalous data as a way of rebuffing the weight of all data considered comprehensively not only disregards the weight of the data considered comprehensively, but also disregards the explanations for such anomalies within the context of the larger causal relationships suggested by the comprehensive data. For instance, even accepting, for the sake of argument, the validity of John Lott’s thoroughly rejected study finding a positive correlation between laxer gun regulations and lower violent crime rates, such a correlation would not necessarily imply that such a paradigm is the optimal solution to the comparatively very high rate of deadly violence in America, due to a combination of considerations. Uneven local gun regulations in a nation with no internal barriers to the movement of goods across state and municipal lines mean that local regulations are undermined by laxer regulations elsewhere. The statistical fact that the overwhelming majority of the guns used in the commission of crimes anywhere in America are initially bought in jurisdictions with the laxest regulations reinforces this conclusion. And understanding the difference between local and global optima, in which it may be the case that in a gun-saturated society with no internal barriers to the transportation of goods across state and municipal borders, laws which increase “the war of all against all” could slightly reduce local deadly violence rates but keep them far higher than in other nations that don’t rely on “the war of all against all” to keep the peace, helps to put such anomalous evidence into perspective in the context of a comprehensive examination of the global evidence.)
One elaboration of narrowing the frame of reference, that also segues nicely into the issue of “pettifogging” discussed next, is the right-wing shell-game of isolated attention. This usually takes the form of focusing on one peripheral fact or anomaly or doctored study, which, once debunked, is replaced with another, until, after having exhausted their available supply, they return to the first one as if it had never been debunked. This is the more general tactic of which “the right-wing two-step” discussed above is one variation.
By far the favorite technique in right-wing “debate” is the tactic of “pettifogging,” which is picking away at every marginal and barely relevant detail of an opposing argument in order to avoid having to confront the central argument itself. This involves questioning the credibility of the source, even when the sources used are generally considered among the most credible (Harvard and other university peer-reviewed studies and conventional journalistic reporting by major media outlets are all dismissed as products of a liberal propaganda machine, while the arbitrary products of what is in reality a propaganda machine are embraced without question); insisting that every inconvenient assertion be cited in every casual exchange (though no one else is doing so); and finding peripheral and often irrelevant details to obsess about (definitions of conventionally understood terms, etc.). In this way, they can endlessly monopolize the time and energy of anyone arguing against any position they hold without permitting the argument to be compiled and presented in any coherent form, always derailing it with a barrage of irrelevant and peripheral demands, eventually wearing down the critique and thus claiming victory for having done so.
There is a hybrid fallacy that merits mention, even weaker than the others that it resembles: Changing the subject entirely. It has some straw man aspects (arguing against a position on an unrelated issue no one has advanced at all rather than a caricature of one advanced relevant to the issue at hand), some pettifogging aspects (picking at something not only barely relevant and marginal, but rather completely irrelevant and not even marginal), and some shell game aspects (not merely switching among distinct issues within the same argument, but switching to another topic altogether). A very recent example is, after providing comprehensive evidence debunking the notion that our gun culture has no relation to our rates of deadly violence, my opponent said, “so you must love ”Fast & Furious, then.” The discussion, of course, had no relation to that bungled Obama administration program, but the idea was to get me on the defensive on something, anything, no matter how irrelevant it might be.
One last technique merits mention: Rejection by typology. This usually involves some label imbued with a strong negative judgment, and the shoving of all things to be critiqued into that label, the assumption being that by doing so the defectiveness of the thing so labeled has been proved. The most common label is “socialist” (though libertarians are increasingly fond of “statist” instead, imbuing the identical folly with a false veneer of intellectualism that the overuse of the word “socialism” lacks), and its use incorporates an element of the cherry-picking fallacy described above. By this technique, all governments with large administrative infrastructures are “socialist” or “statist,” and all socialist or statist countries are known to have been dismal failures. The problem is that using a definition that broad renders the second point simply false, since every single modern, prosperous, free nation on Earth has a large administrative infrastructure, and has had such an infrastructure in place since prior to participating in the historically unprecedented post-WWII expansion in the production of prosperity.
What really distinguishes the famously failed “socialist” or “statist” countries from the famously successful ones that share that completely non-distinguishing trait are a set of other variables: Freedom of speech and press, relatively legitimate democratic processes, and protection of individual civil rights and due process in criminal proceedings. The existence of a large administrative state not only is not exclusively associated with failed states, but, in fact, the most successful states all, without exception, have such large administrative infrastructures, and have had them for generations. This fallacy combines the “false dichotomy” fallacy described below (i.e., there are just two categories of states, socialist and non-socialist) with the selective perception tactic described above (only noticing those states with large administrative infrastructures that failed, and not those that comprise the entire set of the most successful political economies in human history).
Following is a fairly complete list of major logical fallacies, excerpted verbatim from “The Skeptics Guide to the Universe” website, which also includes a very good introduction on the structure of logical arguments (http://www.theskepticsguide.org/resources/logicalfallacies.aspx).Ad hominem:An ad hominem argument is any that attempts to counter another’s claims or conclusions by attacking the person, rather than addressing the argument itself. True believers will often commit this fallacy by countering the arguments of skeptics by stating that skeptics are closed minded. Skeptics, on the other hand, may fall into the trap of dismissing the claims of UFO believers, for example, by stating that people who believe in UFO’s are crazy or stupid.A common form of this fallacy is also frequently present in the arguments of conspiracy theorists (who also rely heavily on ad-hoc reasoning). For example, they may argue that the government must be lying because they are corrupt.It should be noted that simply calling someone a name or otherwise making an ad hominem attack is not in itself a logical fallacy. It is only a fallacy to claim that an argument is wrong because of a negative attribute of someone making the argument. (i.e. “John is a jerk.” is not a fallacy. “John is wrong because he is a jerk.” is a logical fallacy.)The term “poisoning the well” also refers to a form of ad hominem fallacy. This is an attempt to discredit the argument of another by implying that they possess an unsavory trait, or that they are affiliated with other beliefs or people that are wrong or unpopular. A common form of this also has its own name – Godwin’s Law or the reductio ad Hitlerum. This refers to an attempt at poisoning the well by drawing an analogy between another’s position and Hitler or the Nazis. Ad ignorantiam:The argument from ignorance basically states that a specific belief is true because we don’t know that it isn’t true. Defenders of extrasensory perception, for example, will often overemphasize how much we do not know about the human brain. It is therefore possible, they argue, that the brain may be capable of transmitting signals at a distance.UFO proponents are probably the most frequent violators of this fallacy. Almost all UFO eyewitness evidence is ultimately an argument from ignorance – lights or objects sighted in the sky are unknown, and therefore they are alien spacecraft.Intelligent design is almost entirely based upon this fallacy. The core argument for intelligent design is that there are biological structures that have not been fully explained by evolution, therefore a powerful intelligent designer must have created them.In order to make a positive claim, however, positive evidence for the specific claim must be presented. The absence of another explanation only means that we do not know – it doesn’t mean we get to make up a specific explanation. Argument from authority:The basic structure of such arguments is as follows: Professor X believes A, Professor X speaks from authority, therefore A is true. Often this argument is implied by emphasizing the many years of experience, or the formal degrees held by the individual making a specific claim. The converse of this argument is sometimes used, that someone does not possess authority, and therefore their claims must be false. (This may also be considered an ad-hominen logical fallacy – see below.)In practice this can be a complex logical fallacy to deal with. It is legitimate to consider the training and experience of an individual when examining their assessment of a particular claim. Also, a consensus of scientific opinion does carry some legitimate authority. But it is still possible for highly educated individuals, and a broad consensus to be wrong – speaking from authority does not make a claim true.This logical fallacy crops up in more subtle ways also. For example, UFO proponents have argued that UFO sightings by airline pilots should be given special weight because pilots are trained observers, are reliable characters, and are trained not to panic in emergencies. In essence, they are arguing that we should trust the pilot’s authority as an eye witness.There are many subtypes of the argument from authority, essentially referring to the implied source of authority. A common example is the argument ad populum – a belief must be true because it is popular, essentially assuming the authority of the masses. Another example is the argument from antiquity – a belief has been around for a long time and therefore must be true. Argument from final Consequences:Such arguments (also called teleological) are based on a reversal of cause and effect, because they argue that something is caused by the ultimate effect that it has, or purpose that is serves. Christian creationists have argued, for example, that evolution must be wrong because if it were true it would lead to immorality.One type of teleological argument is the argument from design. For example, the universe has all the properties necessary to support live, therefore it was designed specifically to support life (and therefore had a designer. Argument from Personal Incredulity:I cannot explain or understand this, therefore it cannot be true. Creationists are fond of arguing that they cannot imagine the complexity of life resulting from blind evolution, but that does not mean life did not evolve. Begging the Question:The term “begging the question” is often misused to mean “raises the question,” (and common use will likely change, or at least add this new, definition). However, the intended meaning is to assume a conclusion in one’s question. This is similar to circular reasoning, and an argument is trying to slip in a conclusion in a premise or question – but it is not the same as circular reasoning because the question being begged can be a separate point. Whereas with circular reasoning the premise and conclusion are the same.The classic example of begging the question is to ask someone if they have stopped beating their wife yet. Of course, the question assumes that they every beat their wife.In my appearance on the Dr. Oz show I was asked – what are alternative medicine skeptics (termed “holdouts”) afraid of? This is a double feature of begging the question. By using the term “holdout” the question assumes that acceptance is already become the majority position and is inevitable. But also, Oz begged the question that skeptics are “afraid.” This also created a straw man (see below) of our position, which is rather based on a dedication to reasonable standards of science and evidence. Confusing association with causation:This is similar to the post-hoc fallacy in that it assumes cause and effect for two variables simply because they occur together. This fallacy is often used to give a statistical correlation a causal interpretation. For example, during the 1990’s both religious attendance and illegal drug use have been on the rise. It would be a fallacy to conclude that therefore, religious attendance causes illegal drug use. It is also possible that drug use leads to an increase in religious attendance, or that both drug use and religious attendance are increased by a third variable, such as an increase in societal unrest. It is also possible that both variables are independent of one another, and it is mere coincidence that they are both increasing at the same time.This fallacy, however, has a tendency to be abused, or applied inappropriately, to deny all statistical evidence. In fact this constitutes a logical fallacy in itself, the denial of causation. This abuse takes two basic forms. The first is to deny the significance of correlations that are demonstrated with prospective controlled data, such as would be acquired during a clinical experiment. The problem with assuming cause and effect from mere correlation is not that a causal relationship is impossible, it’s just that there are other variables that must be considered and not ruled out a-priori. A controlled trial, however, by its design attempts to control for as many variables as possible in order to maximize the probability that a positive correlation is in fact due to a causation.Further, even with purely epidemiological, or statistical, evidence it is still possible to build a strong scientific case for a specific cause. The way to do this is to look at multiple independent correlations to see if they all point to the same causal relationship. For example, it was observed that cigarette smoking correlates with getting lung cancer. The tobacco industry, invoking the “correlation is not causation” logical fallacy, argued that this did not prove causation. They offered as an alternate explanation “factor x”, a third variable that causes both smoking and lung cancer. But we can make predictions based upon the smoking causes cancer hypothesis. If this is the correct causal relationship, then duration of smoking should correlate with cancer risk, quitting smoking should decrease cancer risk, smoking unfiltered cigarettes should have a higher cancer risk than filtered cigarettes, etc. If all of these correlations turn out to be true, which they are, then we can triangulate to the smoking causes cancer hypothesis as the most likely possible causal relationship and it is not a logical fallacy to conclude from this evidence that smoking probably causes lung cancer. Confusing currently unexplained with unexplainable:Because we do not currently have an adequate explanation for a phenomenon does not mean that it is forever unexplainable, or that it therefore defies the laws of nature or requires a paranormal explanation. An example of this is the “God of the Gapsa” strategy of creationists that whatever we cannot currently explain is unexplainable and was therefore an act of god. False Analogy:Analogies are very useful as they allow us to draw lessons from the familiar and apply them to the unfamiliar. Life is like a box of chocolate – you never know what you’re going to get.A false analogy is an argument based upon an assumed similarity between two things, people, or situations when in fact the two things being compared are not similar in the manner invoked. Saying that the probability of a complex organism evolving by chance is the same as a tornado ripping through a junkyard and created a 747 by chance is a false analogy. Evolution, in fact, does not work by chance but is the non-random accumulation of favorable changes.Creationists also make the analogy between life and your home, invoking the notion of thermodynamics or entropy. Over time your home will become messy, and things will start to break down. The house does not spontaneously become more clean or in better repair.The false analogy here is that a home is an inanimate collection of objects. Whereas life uses energy to grow and reproduce – the addition of energy to the system of life allows for the local reduction in entropy – for evolution to happen.Another way in which false analogies are invoked is to make an analogy between two things that are in fact analogous in many ways – just not the specific way being invoked in the argument. Just because two things are analogous in some ways does not mean they are analogous in every way. False Continuum:The idea that because there is no definitive demarcation line between two extremes, that the distinction between the extremes is not real or meaningful: There is a fuzzy line between cults and religion, therefore they are really the same thing. False Dichotomy:Arbitrarily reducing a set of many possibilities to only two. For example, evolution is not possible, therefore we must have been created (assumes these are the only two possibilities). This fallacy can also be used to oversimplify a continuum of variation to two black and white choices. For example, science and pseudoscience are not two discrete entities, but rather the methods and claims of all those who attempt to explain reality fall along a continuum from one extreme to the other. Genetic Fallacy:The term “genetic” here does not refer to DNA and genes, but to history (and therefore a connection through the concept of inheritance). This fallacy assumes that something’s current utility is dictated by and constrained by its historical utility. This is easiest to demonstrate with words – a words current use may be entirely unrelated to its etymological origins. For example, if I use the term “sunset” or “sunrise” I am not implying belief in a geocentric cosmology in which the sun revolves about the Earth and literally “rises” and “sets.” Inconsistency:Applying criteria or rules to one belief, claim, argument, or position but not to others. For example, some consumer advocates argue that we need stronger regulation of prescription drugs to ensure their safety and effectiveness, but at the same time argue that medicinal herbs should be sold with no regulation for either safety or effectiveness. No True Scotsman:This fallacy is a form of circular reasoning, in that it attempts to include a conclusion about something in the very definition of the word itself. It is therefore also a semantic argument.The term comes from the example: If Ian claims that all Scotsman are brave, and you provide a counter example of a Scotsman who is clearly a coward, Ian might respond, “Well, then, he’s no true Scotsman.” In essence Ian claims that all Scotsman are brave by including bravery in the definition of what it is to be a Scotsman. This argument does not establish and facts or new information, and is limited to Ian’s definition of the word, “Scotsman.” Non-Sequitur:In Latin this term translates to “doesn’t follow”. This refers to an argument in which the conclusion does not necessarily follow from the premises. In other words, a logical connection is implied where none exists. Post-hoc ergo propter hoc:This fallacy follows the basic format of: A preceded B, therefore A caused B, and therefore assumes cause and effect for two events just because they are temporally related (the latin translates to “after this, therefore because of this”). Reductio ad absurdum:In formal logic, the reductio ad absurdum is a legitimate argument. It follows the form that if the premises are assumed to be true it necessarily leads to an absurd (false) conclusion and therefore one or more premises must be false. The term is now often used to refer to the abuse of this style of argument, by stretching the logic in order to force an absurd conclusion. For example a UFO enthusiast once argued that if I am skeptical about the existence of alien visitors, I must also be skeptical of the existence of the Great Wall of China, since I have not personally seen either. This is a false reductio ad absurdum because he is ignoring evidence other than personal eyewitness evidence, and also logical inference. In short, being skeptical of UFO’s does not require rejecting the existence of the Great Wall. Slippery Slope:This logical fallacy is the argument that a position is not consistent or tenable because accepting the position means that the extreme of the position must also be accepted. But moderate positions do not necessarily lead down the slippery slope to the extreme. Special pleading, or ad-hoc reasoning:This is a subtle fallacy which is often difficult to recognize. In essence, it is the arbitrary introduction of new elements into an argument in order to fix them so that they appear valid. A good example of this is the ad-hoc dismissal of negative test results. For example, one might point out that ESP has never been demonstrated under adequate test conditions, therefore ESP is not a genuine phenomenon. Defenders of ESP have attempted to counter this argument by introducing the arbitrary premise that ESP does not work in the presence of skeptics. This fallacy is often taken to ridiculous extremes, and more and more bizarre ad hoc elements are added to explain experimental failures or logical inconsistencies. Straw Man:A straw man argument attempts to counter a position by attacking a different position – usually one that is easier to counter. The arguer invents a caricature of his opponent’s position – a “straw man” – that is easily refuted, but not the position that his opponent actually holds.For example, defenders of alternative medicine often argue that skeptics refuse to accept their claims because they conflict with their world-view. If “Western” science cannot explain how a treatment works, then it is dismissed out-of-hand. If you read skeptical treatment of so-called “alternative” modalities, however, you will find the skeptical position much more nuanced than that.Claims are not a-prior dismissed because they are not currently explained by science. Rather, in some cases (like homeopathy) there is a vast body of scientific knowledge that says that homeopathy is not possible. Having an unknown mechanism is not the same thing as demonstrably impossible (at least as best as modern science can tell). Further, skeptical treatments of homeopathy often thoroughly review the clinical evidence. Even when the question of mechanism is put aside, the evidence shows that homeopathic remedies are indistinguishable from placebo – which means they do not work. Tautology:Tautology in formal logic refers to a statement that must be true in every interpretation by its very construction. In rhetorical logic, it is an argument that utilizes circular reasoning, which means that the conclusion is also its own premise. Typically the premise is simply restated in the conclusion, without adding additional information or clarification. The structure of such arguments is A=B therefore A=B, although the premise and conclusion might be formulated differently so it is not immediately apparent as such. For example, saying that therapeutic touch works because it manipulates the life force is a tautology because the definition of therapeutic touch is the alleged manipulation (without touching) of the life force. The Fallacy Fallacy:As I mentioned near the beginning of this article, just because someone invokes an unsound argument for a conclusion, that does not necessarily mean the conclusion is false. A conclusion may happen to be true even if an argument used to support is is not sound. I may argue, for example, Obama is a Democrat because the sky is blue – an obvious non-sequitur. But the conclusion, Obama is a Democrat, is still true.Related to this, and common in the comments sections of blogs, is the position that because some random person on the internet is unable to defend a position well, that the position is therefore false. All that has really been demonstrated is that the one person in question cannot adequately defend their position.This is especially relevant when the question is highly scientific, technical, or requires specialized knowledge. A non-expert likely does not have the knowledge at their fingertips to counter an elaborate, but unscientific, argument against an accepted science. “If you (a lay person) cannot explain to me,” the argument frequently goes, “exactly how this science works, then it is false.”Rather, such questions are better handled by actual experts. And, in fact, intellectual honesty requires that at least an attempt should be made to find the best evidence and arguments for a position, articulated by those with recognized expertise, and then account for those arguments before a claim is dismissed. The Moving Goalpost:A method of denial arbitrarily moving the criteria for “proof” or acceptance out of range of whatever evidence currently exists. If new evidence comes to light meeting the prior criteria, the goalpost is pushed back further – keeping it out of range of the new evidence. Sometimes impossible criteria are set up at the start – moving the goalpost impossibly out of range -for the purpose of denying an undesirable conclusion. Tu quoque:Literally, you too. This is an attempt to justify wrong action because someone else also does it. “My evidence may be invalid, but so is yours.”
If you look at the public debates over the George Zimmerman/Trayvon Martin case, one thing leaps out, something that is more broadly relevant, something that distinguishes the mental modality of the right from the left in one very precise way. This is an issue of cognitive framing, with the narrower frame permitting a conclusion of justifiable self-defense (assuming the facts most favorable to the defense), and the broader frame precluding it.
For instance, if you ask, “does one have the right to defend himself, with a firearm, against someone about to clobber him over the head with a heavy object,” most people would answer, “of course.” But what if the “defender” were a mugger who had attacked the guy with the heavy object, the heavy object were his cane that he needed due to an infirmity, and the moment being referred to were the mugging victim’s response to being mugged by an armed assailant? Does the mugger then have the right to claim self-defense, for shooting his victim as his victim tried to defend himself? Of course not.
Let’s come up with an analogy that more closely parallels the Zimmerman case, emphasizing and playing on the stereotypes involved (and other stereotypes as well). Consider this scenario: A young, white middle class woman is walking through a residential neighborhood at night to return home from the nearby convenience store. She notices a big, black guy following her. She continues to walk, and confirms that he is definitely following her. Terrified, she slips off the path and finds an object to arm herself with, a plywood board. As her stalker approaches, she comes out behind him, swings the board, screaming. Her stalker, who, as it turns out, was an armed stalker, pulls out his gun and shoots her to death. (I am using the word “stalker” to refer to any stranger following around another person with some kind of unfriendly intent, including thinking that the other person is a “punk” who you don’t want to let “get away with” some imaginary infraction that their race induced you to believe they must be committing.)
Tell me, right-wing apologists, is your big black stalker innocent, because he was just defending himself? Are you as indifferent to this innocent white woman’s violent death at the hands of an armed stalker as you are of an unarmed black teen’s violent death at the hands of an armed stalker?
Here is the complete list of differences between this scenario and the Zimmerman-Martin scenario: 1) the races of the stalker and the person stalked; 2) the gender of the person stalked; 3) right-wing ASSUMPTION of the intentions of the stalker in each scenario and the different degrees to which they (right-wingers) identify with the stalker and the person stalked in each scenario; 4) the woman having armed herself (to make her at least as threatening as unarmed Martin was); and 4) the generous assumption for my alternative scenario that all of the facts best favoring the Zimmerman defense are true.
So, why, exactly, is that white-woman-stalking-victim an innocent victim of the criminal-black-stalker, while the unarmed black victim of our real stalker (Hispanic, white, I don’t care) is just the unlucky person who was killed by an innocent person’s discharged bullet? The answer is very simple: The combination of the right-wing need to defend the absurd belief that we are a safer society if people go out with guns looking for trouble and their (right-wingers’) racism. a combination that is as horrifying and offensive to rational and humane people today as all similar past chapters of our national history have been.
Right-wing arguments (and particularly gun culture arguments) frequently rely on this narrowing of the frame, filtering out the contextual information which completely changes the analysis. Those who see in this case no guilt on Zimmerman’s part have chosen a very narrow frame, which excludes much relevant information; those who see guilt on Zimmerman’s part choose a broader and more inclusive one.
There are many other issues in which this difference in framing is central to the ideological differences found in regard to them. The right relies on a reduced frame, hyper-individualistic rather than social systemic, static and instantaneous rather than dynamical and over time. And that is not just a difference in personal taste, but a reduction in cogency.
The Zimmerman trial is over, the verdict is in, but the public issue over what kind of a people we want to choose to be continues. The right insists that it is good for society for people to have the right to arm themselves and stalk people they are suspicious of, for whatever reason they are suspicious of them, incite a violent encounter by doing so, and shoot to death the person they chose to stalk in the process of that violent encounter. I want to believe that the overwhelming majority of Americans don’t agree.
We’ve had Columbine. We’ve had Virginia Tech. We’ve had the Gabby Giffords shooting. We’ve had the Aurora Theater shooting. We’ve had Sandy Hook Elementary School. We have, on average, ten times the homicide rate of any other developed nation on Earth. We have half the privately owned firearms on Earth. And we have people who are so blithely indifferent to the death and suffering that their idolatry of instruments of deadly violence cause that they won’t let us, as a people, even implement universal background checks or limit the magazine capacity of their military grade weapons. The degree of insanity –vicious, destructive insanity– involved in this right-wing ideology is simply mindboggling.
At the same time, they want voter suppression laws (and have been assisted in being able to pass and implement them in a recent Court decision that disabled the Voting Rights Act), they want to dismantle Affirmative Action, they want to disregard the injustices and inequities of our society, they want to blame the poor for being poor, they want to disregard our responsibilities to one another as members of a society, they want to erase our humanity and promote only selfish disregard for the rights and welfare of anyone who doesn’t look just like them. And they are uncompromising in their commitment to these “ideals.”
(The examples mentioned here, of course, only scratch the surface. See Why The Far-Right Is On The Wrong Side Of Reason, Morality, Humanity and History for a more in-depth treatment.)
This is not a country divided by two opposing reasonable views, that we need to find some reasonable ground between. This is a country divided by, on the one hand, reason in service to humanity and, on the other, irrationality in service to inhumanity. It is time, America, to reduce the latter to a sad footnote of our history, and promote the former to the status of the shared foundation on which we all build. It’s time to allow our disagreements to be defined by the limits of our wisdom and decency rather than by the extent of our bigotries.
(See also Debunking The Arguments of the American Gun Culture for a cogent discussion of the competing narratives informing the right and the left, and how they fit into this struggle between reason in service to humanity and irrationality in service to inhumanity, a perennial struggle of human history, and one from which we are not, as it turns out, at all exempt.)
In the continuing debate against Libertarians (and all other ideologues of all stripes, for that matter), here’s the bottom line: There’s only one rational ideology to adhere to, and that is to strive to be rational; there’s only one humane ideology to adhere to, and that is to strive to be humane.
Striving to be rational is not a vague, relative term: We have centuries of experience in the development of disciplined, methodical reasoning. We’ve developed scientific methodology and a wide spectrum of variations of it adapted to situations in which variables can’t be isolated, statistical data analysis, research techniques designed to rigorously minimize the influence of bias and to maximize accuracy. We’ve developed legal procedure based on a debate between competing views framed by a set of rules designed to ensure maximum reliability of the evidence being considered and to identify the goals being pursued (adherence to formally defined laws). We’ve developed formal logic and mathematics, rules of deduction and induction, which maximize the soundness of conclusions drawn from premises, the premises themselves able to be submitted to the same rules for verifying raw data and drawing conclusions from that data.
Not everyone is trained in these techniques, but everyone can acknowledge their value and seek to participate in privileging them over other, more arbitrary and less rational approaches to arriving at conclusions. A commitment to democracy and pluralism does not require a commitment to stupidity and ignorance. The mechanisms by which we balance the need for all to have their say and all interests to be represented with the need for the best analyses to prevail in the formation of our public policies is an ongoing challenge, but we can all agree that we should meet that challenge head-on, rather than pretend that the drowning out of the cogent arguments of informed reason by the relentless and highly motivated noise of irrational ignorance is the height of self-governance.
Striving to be humane is not a vague, relative term either: We have centuries of development of thought concerning what that means, including John Rawls’s “A Theory of Justice”, which provides a pretty good heuristic guideline of what humane policies should look lie (they should be the kinds of policies that highly informed and rational people would choose if they didn’t know what situation they were going to be born into or what chances of life they were going to encounter). This is basically a derivation and elaboration of the Golden Rule, which exists in some form or another in virtually every major religion on Earth. We all understand that justice requires that everyone be assured the same opportunity to thrive, and while we can agree that that is a formidable challenge that is more of an ideal toward which we can continue to strive than a finished achievement we can expect to accomplish in the near future, and that important counterbalancing imperatives must be considered and pursued simultaneously (in other words, that we need to balance the challenges of creating an ever-more more robust, fair, and sustainable social institutional framework), we can also agree that it is one of the guiding principles by which we should navigate as we forge our way into the future.
So, guided by our humanity, we have a clear objective that all of our public policies should strive to serve: Maximizing the robustness, fairness, and sustainability of our social institutional landscape to the greatest extent possible, such that no individual, if fully informed and rational, would want to change any aspect of it if they did not know where or when or into what situation they would be born or what chance occurrences they would encounter in life. And we have a clear means of most effectively pursuing that objective: Robust public discourse in which we allow the most cogent, information-intensive, methodologically and analytically sound arguments regarding how best to maximize the robustness, fairness and sustainability of our social institutional landscape, on a case-by-case, issue-by-issue basis, to prevail.
And THAT, what I just described above in the preceding five paragraphs, is really the only ideology we need, the only ideology we should adhere to as we move forward as a polity, wise enough to know that none of us knows all that much, humane enough not to blithely dismiss –whether implicitly or explicitly– the suffering and gross injustices endured by numerous others, intelligent enough to know that the appropriate role of a democratically and constitutionally circumscribed government in the modern world cannot be intelligently reduced to a handful of platitudes, informed enough to recognize that the rule of law is predominantly a procedural rather than substantive ideal, and smart enough to recognize that it is our commitment to these procedural and methodological disciplines of informing and devising public policies that will define how intelligently, humanely, and effectively we govern ourselves.
What continues to stand against this simple and clear ideology of a commitment to reason and humanity realized through disciplined procedures and methodologies are the plethora of blind dogmas, substantive false certainties, and precipitous conclusions that litter our shared cognitive landscape. Whether it is Marxism, politically active evangelical Christianity, politically active fundamentalist Islam, Libertarianism, or any other substantive dogma which presumes to know what we are in reality continuing to study, debate, and discover, this perennial need by so many to organize in an effort to impose a set of presumptive substantive conclusions on us all, one ideological sledgehammer or another with which to “repair” the machinery of government, is an obstacle rather than productive contribution to truly intelligent and humane self-governance.
It doesn’t matter if any given adherents to such an ideology are right about some things and those arguing from a non-ideological perspective are wrong about some things; it would be extraordinary if that were not the case, because disciplined analysis seeks to track a subtle and elusive object (reality), while blind dogma, like a broken clock, stands in one place, and thus is right on those rare occasions when reality happens to pass through that spot. What matters is that we all say, “I am less committed to my tentative conclusions than to the process for arriving at them, and would gladly suspend any of my own tentative conclusions in exchange for a broad commitment by all engaged in political discourse and political activism to emphasize a shared commitment to reason in service to humanity.”
The claim made by some that libertarians aren’t against using government in limited ways to address our shared challenges and seize our shared opportunities, while insisting that the problem now is that we have “too much government,” ignores the incredible breadth and depth of challenges and opportunities we face, challenges and opportunities that careful economic analysis clearly demonstrate often require extensive use of our governmental apparatus to meet and to seize. That is why every modern, prosperous, free nation on Earth has a large administrative infrastructure, and why every single modern, prosperous, free nation on Earth has had such a large administrative infrastructure in place since prior to participating in the historically unprecedented post-WWII expansion in prosperity and liberty: Because, as an empirical fact, that is what has thus far worked most effectively. But that does not preclude the possibility that the approach I’ve identified would lead to an overall reduction in the size and role of government; it only requires that in each instance the case be made, with methodological rigor, that any particular reduction in government actually does increase the robustness, fairness, and sustainability of our social institutional framework.
The challenge isn’t to doggedly shrink government in service to a blind ideological conviction, but rather to wisely, with open eyes and informed analyses, refine our government by shrinking that which should be shrunk and expanding that which should be expanded, an ongoing endeavor which requires less ideological presumption and more analytical intelligence. We neither need nor benefit from neatly packaged blind dogmas; we need and benefit from an ever-greater commitment to disciplined reason in service to unflagging humanity.
Now, the legitimate contention arises that that is fine in theory, but in the real world of real people, ideological convictions and irrational decision-making prevail, and to refuse to fight the irrational and inhumane policies doggedly favored by some by any and all means possible, including strategies that do not hamstring themselves by seeking an ideal that does not prevail in this world today, is to surrender the world to the least enlightened and most ruthless. To that I respond that I do not oppose the strategic attempts by those who are informed by reason and humanity to implement the products of their discipline and conviction through strategic and realistic political means, but only implore of them two things: 1) That they take pains to ensure that their conclusions actually are the product of reason in service to humanity, and not simply their own blind ideological dogma, and 2) that they invest or encourage the investment of some small portion of our dedicated resources, some fraction of our time and money and energy directed toward productive social change, toward cultivating subtler cultural changes that increase the salience of reason and humanity in future political decision-making processes. I have outlined just such a social movement in A Proposal: The Politics of Reason and Goodwill.
Another legitimate contention is the recognition of our fallibility, and the need to rely on bedrock principles rather than arrogate to ourselves a case-by-case, issue-by-issue analysis, much as we limit our democratic processes with bedrock Constitutional principles that we can’t elect to violate. There is much truth in this, but it either becomes one more rational consideration that we incorporate into our ongoing effort to do the best we can in a complex and subtle world, or it displaces our reason and humanity entirely and reduces us to automatons enslaved by a historically successful reduction of reality. We see these alternatives in regards to how the Bible and Constitution are utilized, by some as guides which inform their own reason and humanity and require conscious interpretation and application, and by others as rigid confirmation of their own dogmatic ideology, the latter often through selective or distorted interpretations of their own.
We’ve seen the value of improved methodology and increased commitment to methodological discipline in the realm of science, which has bestowed on us a greatly invigorated ability to make sense of a complex and subtle universe. We’ve seen the value of improved procedures and procedural discipline in law, which has increased the justness of our criminal justice system (certainly an improvement over “trial by ordeal,” or the Inquisitor’s securing of a confession by means of torture, for instance). We’ve seen the value of improved methodologies in selecting and holding accountable political leaders, through carefully monitored “free and fair” elections and the supremacy of the rule of law over individual power. To be sure, all of these are mere steps forward, not completed journeys; the human foibles they partially mitigated are not entirely erased from the new paradigms they preside over. But they are steps forward.
And, though it’s more debatable, with more and greater atrocities seeming without end challenging the assertion, I think our humanity has grown in recent centuries as well. Historians almost universally agree that a larger proportion of the human population suffered violent death the further back in time you go. Even while exploitation and inhumanities persist, they are increasingly viewed as morally reprehensible by increasing numbers of people in increasing regions of the Earth. We have, indeed, as a national and international society, improved our formal commitment to human rights, even if our realization of that commitment has woefully lagged behind. It remains incumbent on us to close that gap between the ideal and the reality.
What, then, are the logical next steps for civilization? How do we advance the cause of reason in service to humanity? The answer, I believe, is to extend and expand the domains of these methodologies and attitudes, to increase the degree to which they are truly understood to be the defining vehicle of human progress. If it’s good to have a small cadre of professionals engaging in science, it’s even better to have many more incorporating more of that logic into their own opinion formation process. If it’s good for the election of office holders to be conducted through rational procedures, it’s even better for the knowledge and reasoning of those who vote in those elections to be fostered through more rational procedures as well. And if it’s good for some of us to include larger swathes of humanity in the pronoun “we,” then it’s even better for more of us to do so to an ever greater degree.
Even if the effort to cultivate a movement in this direction only succeeds, over the course of generations, in making the tiniest marginal increase in the use of disciplined reason, and the tiniest increases in the degree of commitment to our shared humanity, by the tiniest marginal fraction of the population, that would be a positive achievement. And if, alongside such marginal increases in the reliance on disciplined reason and commitment to humanity, there is also a marginal increase in the acknowledgement that the products of disciplined reason are more useful to us as a society and a people than the products of arbitrary bigotries and predispositions, and that the recognition of the humanity of others unlike us is more morally laudable than our ancient tribalistic and sectarian reflexes, that, too, would be a positive achievement.
The influence of reason in our lives has been growing steadily for centuries and has had a dramatic impact on our social institutional and technological landscape, though it has only really ever been employed in a disciplined way by a small minority of the human population. The increase in our humanity as well, in such forms as the now nearly universal condemnation of slavery, the increasing recognition of the value of equal rights for all, the generational changes in our own society with some bigotries withering with time, can also be discerned. Even marginal increases in the employment of reason and its perceived legitimacy, and of our shared humanity being the ends to which it is employed, can have very dramatic effects on the robustness, fairness, and sustainability of the social institutional and technological landscape of the future, and on the welfare of human beings everywhere for all time. This is the path that all of our most laudable achievements of the past have followed and contributed to, and it is the path we should pursue going forward ever more consciously and intentionally, because that is what the ever fuller realization of our humanity both requires of us and offers us the opportunity to do.
What follows is an exchange on Facebook regarding George Zimmerman’s guilt or innocence in the Trayvon Martin shooting. It is a perfect illustration of one dimension of the two competing visions for America.
SH: I worry about the popular focus on the details of the Zimmerman case, because it plays into a right-wing narrative: That the facts not in dispute aren’t already dispositive for public policy purposes. (Disclaimer: the details are important for the trial and the jury, but what the public needs to get out of this is that we have created a context that increases rather than decreases violence, does so in ways which implicate racial prejudices and stereotypes, and that we need to pull back from that approach). Zimmerman set out with a gun looking for “bad guys” to defend himself against, identified an unarmed black teen in a hoodie walking home from the store as just such a “bad guy,” pursued the teen despite being told by the police dispatcher not to, and ended up shooting that teen to death. Nothing else really matters in terms of what this incident tells us about our continuing moral failure as a society in regards to both violence and race, and we shouldn’t let anyone sell the false narrative that it does.
MS: The main factor that needs to be decided is if Zimmerman really defended himself or got too heated. This case was screwed from the beginning based on the race issue being presented.
SH: M, I disagree, on both counts. If our laws currently sanction someone going out with a gun looking for people to defend himself against, identifying one such on the basis of his own perceptions (which certainly do seem have been influenced by race in this case, because there’s absolutely no evidence or even suggestion that Martin was doing anything other than “being black” to arouse Zimmerman’s suspicions), pursuing that innocent person, and as a result ending up shooting that person to death, then our laws are in error.
CL: I mean, seriously, what am I missing? Why was this case brought in the first place? Zimmerman is a creepy-ass cracker, but there isn’t enough evidence for a murder rap. I might not be some fancy, big city attorney, but it seems like the local prosecutors had a good reason for not pressing charges.
SH: What you’re missing is that when an armed assailant pursues an innocent individual walking home from the store and shoots him to death, that is certainly prima facie evidence of a crime.
CL: That’s really dumb. It’s conceded that Zimmerman was following Martin around for no good reason. But just because someone is following you around for no good reason doesn’t give you the right to attack him. If we don’t know who attacked who, then we can’t convict. This isn’t complicated.
SH: C, Zimmerman wasn’t just “following Martin around for no good reason,” but was doing so while armed and with the stated intention of finding bad guys. It’s a bit bizarre that you think someone who goes out with a gun and stalks an innocent stranger walking home from the store should get to claim that the altercation he thus incited (if there was one) means that he then acted in self-defense when he ended up shooting his stalking victim to death and thus is innocent of any crime, but that the kid who reacted to being stalked had no right to defend himself against his stalker!!! This is the problem with your underlying ideology: It is an aggressive one, which incites violence, which helps to explain why America has a homicide rate from 2 to 11 times higher than any other developed nation on Earth.
Let me ask you a question, C: If the person stalked had been a white woman, who, spooked by the stalker, grabbed something to defend herself, stepped off the path out of sight, came out and confronted her stalker, ended up swinging at him and making contact, and then was shot to death, would you be as adamant that the stalker was completely devoid of responsibility for her death?
When you go out with a gun looking for bad guys, follow innocent people because you arbitrarily decide that they might be a bad guy, and end up shooting one such person to death, you are damn well responsible for the death of that person whose only crime (if any at all) was to react to being stalked by an armed assailant! That there are people in this country who can’t grasp that is horrifying.
CL: The evidence is that Zimmerman followed Martin — but there is no good evidence of who started the fight. This whole “kind who reacted to being stalked had no right to defend himself!!” line of argument is unsubstantiated. Maybe Zimmerman hunted down Martin and shot him. Maybe Zimmerman followed Martin, Martin didn’t like it and decided to attack Zimmerman, and then Zimmerman defended himself. Zimmerman is guilty of murder in the first scenario and guilty of being an idiot in the second. So far in the trial, the evidence isn’t really helping us figure out which scenario is the real one.
SH: You didn’t answer my question: If it were a white woman who had been stalked by a black guy she didn’t know, grabbed something to defend herself, stepped off the path, confronted her stalker, ended up in that confrontation taking a swing at him and making contact, and then was shot to death by the stalker (who, as it happens, wasn’t just a stalker, but an armed stalker), would you be so adamant that the stalker was or should be completely devoid of any legally enforceable responsibility for that woman’s death? I doubt it.
And what is the only difference between that scenario and the one we are discussing? The races and genders of the stalker and his victim. I even added in arming the woman being stalked with an object, to make her as threatening to her stalker as Martin was to his.
CA: Steve, would you rather police and security personnel not be armed, or not investigate further into something they can articulate to be suspicious? I don’t know what exactly happened in this instance, but it sounds like Zimmerman was a hired security professional whose job it was to provide security in the area he was in. He saw something and/or someone he thought was worth checking out, which was his job. If Martin was innocent and not doing anything wrong I imagine this would have been a quick encounter and brief conversation about how he is in the area for good reason, ie he lives there or is staying with family, and that would have been the end of it. The fact it turned into a brawl for some reason would seem to indicate Martin got caught doing something he shouldn’t have been doing by security. Zimmerman did have a gun, and he was out looking for bad guys. Thing is, bad guys don’t usually wear signs indicating to the world that they are bad guys. So police and security contact many, many perfectly innocent people all the time after seeing something that might be suspicious. An innocent person will generally provide a legitimate explanation of whatever behavior was observed that seemed suspicious and the contact is over very quickly. If in the course of determining whether or not someone is innocent or appears guilty of something, Martin attacked Zimmerman, then Martin just committed a crime and Zimmerman has a right to defend himself.
SH: No, he wasn’t “a hired security professional.” He was a neighborhood watch volunteer, which is not a credential, and is not a license to kill. And the whole point is that Zimmerman WASN’T a hired security professional, that he was told by the police dispatcher NOT TO follow Martin, that his actions were those of a private citizen reacting to his private prejudices against the instructions of the actual police, that there is no legal or moral difference between a private citizen that you identify with stalking an unarmed person you don’t identify with and a private citizen you don’t identify with stalking an unarmed person you do identify with, and that when an armed stalker ends up shooting to death the person he was stalking, that stalker is responsible for that death, even if the stalker was a self-appointed vigilante rather than a career criminal, and even if your victim was a black kid in a hoodie rather than, for instance, a middle class white woman. And, again, it is horrifying that there are still so many people in this country who can’t grasp that.
CL: What we have now is something like this:
1. A follows B
2. [[[SOMETHING HAPPENS]]]
3. A shoots B
You seem to know exactly what happened at point 2. I applaud your insight.
SH: One beloved right-wing rhetorical ploy is to filter information being considered in such a way as to arrive at a preferred conclusion (sometimes done by those on the left as well, but with far less of a “cornerstone of the ideology” aspect to it). So, let’s be more complete, shall we?
1) A goes out with a gun looking for “bad guys.”
2) B is a black kid in a hoodie walking home from a store.
3) A sees B walking through the neighborhood and decides, apparently on the basis of 2 above, that B looks suspicious.
4) A calls the police, who advise A not to follow the kid.
5) A tells the police that those “damn assholes always get away with it” (or something to that effect; I don’t have the exact quote in front of me), apparently referring to the black kid in a hoodie walking home from the store, and pursues the kid, with a gun, despite having been told by the police not to.
6) (Something happens)
7) A shoots B.
I have no idea what happened at your point 2 (my point 6). My point is that, while it may have legal relevance because of fucked-up right-wing yahoo laws, it isn’t really relevant to the moral conclusion that A is responsible for B’s death., as a result of the aggressive (and apparently racially motivated) decisions that A made which incited the incident that resulted in A killing B.
Personally, I don’t want racist whack-jobs running around with guns inciting violence, and then claiming that their having shot to death unarmed black kids walking home from the store that they decided to pursue while armed and out looking for trouble was “self-defense,” and I would probably feel even more strongly about it if my skin were darker. But, hey, that’s just me…, and every rational, decent human being on Earth.
What this exchange illustrates is the nature of the two competing ideologies in regards to violence, race, and whether to be a society driven by our fears and bigotries or a society striving to do better than that. The two overarching orientations illustrated here are discussed in greater depth and detail in Debunking The Arguments of the American Gun Culture, and a thorough analysis of the fundamental flaws of modern American right-wing thought is provided in Why The Far-Right Is On The Wrong Side Of Reason, Morality, Humanity and History.