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A major social, moral, and political issue dividing us is the issue of how inclusive and how exclusive we should be as a national society. But beyond and beneath the question of membership in our national society is the question of whose rights (and which rights) we aknowledge and respect under what circumstances.
There is clearly a balance to be struck: Few would recommend such inclusivity that we extend the same respect to the bacterial infection threatening a person’s health as we extend to the person. Most (not all) are comfortable with the notion of extending our inclusivity no further than the bounds of our own species (respecting human life above other forms of life), even if modified to prohibit outright cruelty to those of other species that we recognize as cognitively capable of suffering from such cruelty (i.e., other large mammals). Though I’ll come back to the broader issue of universal empathy and systemic sensitivity at the end of this little essay, the main thrust will be on humanity’s divisions and their historical and contemporary role in justifying self-serving exclusivities.
Another word describing “exclusivity” is “discrimination,” referring to members of some in-group discriminating against members of some out-group regarding the privileges of membership. I use the word “discriminate” more or less interchangeably with the word “exclude” in this essay.
The most obvious dimension to this issue is the moral and social one: Those who are excluded are defined to be of lesser value or lesser concern. Sometimes they are defined as such (i.e., are excluded) in reference to intrinsic characteristics, such as race, ethnicity, gender, and sexual orientation; sometimes due to choices or cultural inheritences, such as religion of political ideology; sometimes due to some social status such as geographic location, socioeconomic class, or subcultural identification; and sometimes due to talents or abilities.
The last is perhaps the most morally justifiable form of exclusion: If a hospital is hiring surgeons, those with no training or skill in surgery can be legitimately excluded. Issues sometimes arise over whether the criteria for discriminating between those with the necessary skills and those without are not proxies for other less justifiable grounds for discrimination, but, as a general rule, this is not a difficult problem to solve.
Another justifiable form of exclusion involves freedom of association and the logistics of allowing people to gather to accomplish a specific task or for a specific purpose. Obviously, people holding a dinner party in their home can invite who they like and refuse entry to all others. This freedom extends outward, but ends when the private property is open to the public (generally, a business) and the discrimination is of a now forbidden nature (e.g., race, ethnicity, gender). Similarly, if an organization meets to discuss or address a specific topic, they certainly are justified in excluding those who want to come to discuss or address a completely different topic. If not for this form of exclusion, no one would ever be able to get anything done.
At the other end of the spectrum, exclusion due to irrelevant inherent characteristics, such as race, ethnicity, gender, and sexual orientation, is not yet a folly completely relegated to a shameful past, but the moral argument is clearly over, and the result is a general awareness that such discrimination is unjustifiable and indefensible. Clearly, those who still suffer from this form of discrimination justifiably feel no patience regarding any delay in ending it completely, and I stand shoulder-to-shoulder with them in their efforts to end it now and forever. But, in the developed world at least, the writing is on the wall.
Another related but slightly different area of discrimination involves those with physical and mental disabilities. Unlike issues of race, ethnicity, gender, and sexual orientation, inclusion of those with disabilities often requires an affirmative effort and investment by us as a society to create accessibility and accommodate special needs. Most people recognize that that is the decent and just thing to do, and many realize that it allows us to best utilize our pool of human capital rather than to create greater swathes of nonproductivity and dependence.
In between these extremes of the obviously justifiable and the obviously unjustifiable lies a broad swathe of contested terrain. I argue that we should only discriminate in the public sphere on the bases of merit or competence (or organizational relevance), and on no other basis whatsoever. Beyond that, we should be all-inclusive. Though that may seem at a glance to be a mainstream position, it is actually a radical fringe position, though recognizing it as such is the first step toward increasing its acceptance.
As the various debates revolving around immigration policy demonstrate, many Americans believe in excluding people on the basis of their legal residency status. That has nothing to do with merit: It is a status determined only by the way in which people migrated to their current location, what legal formalities they did or did not observe.
It also has nothing to do with orgnizational relevance, since studies generally demonstrate economic and fiscal gains to the organization (i.e., the nation), and, in any case, we do not only consider “organizational relevance” in national membership to depend on productivity (though illegal immigrants would generally benefit from such a criterion). In fact, those who are more inclined to exclude on the basis of “productivity” (i.e., who blame the poor for their poverty, and consider society as a whole to have no responsibility to them) are most similar to the historical archetypes we hold in least esteem (e.g., the Nazis).
The tautology that because it is illegal, exclusion is indisputably appropriate, ignores the historical frequency in which legal exclusion has been both morally and pragmatically wrong, and the reality of human migration and de facto (if not always de jure) membership in our society as a result of it.
Lest anyone exaggerate the “criminality” of not observing the formalities of legal immigration, I would recommend a review of both world and U.S. history, in both of which those formalities have rarely been observed or enforced to any great extent, anywhere, at any time. People migrate away from oppression or destitution and toward freedom or opportunity; they always have, they always will, and they don’t always do so by observing the bureaucratic niceties that would prevent them from doing so. That is the reality of the world we live in.
In America today, many right-wing ideologues who prefer more rather than less exlusion (excluding gays and lesbians from marriage, excluding Muslims from freedom of religion and property, excluding undocumented immigrants from most any rights whatsoever, and often, explicitly or explicitly, excluding those historically disadvantaged by race or ethnicity from redressment of those historically imposed inequities in order to create true equality of opportunity today), use rhetoric eerily similar to that employed by others who engaged in now discredited and reviled forms of exclusion in the past, including the rhetoric of German Nazis in the prelude to the Holocaust. We live in a country which continually flirts with the ugly inhumanities that history has reproduced so frequently in so many times and places, and does so with complete disregard for what it is doing.
(I use the somewhat “forbidden” historical reference point of Nazi Germany because it is important to heed the lesson it yields, embodied in the cry “Never again!” The error we must avoid is not limited to the sin of genocide, but also the sin of dehumanization that precedes and justifies all such crimes against humanity, on scales and in degrees large and small.)
If we, as a country, feel a pragmatic necessity to exclude some from entry to our country, let us do so reluctantly rather than overzealously, and let us recognize the de facto as well as de jure members of our society who have become integrated into it, into our economy and our communities and our families. Two recent studies, by The Colorado Center on Law and Policy, and The Bell, have demonstrated that illegal immigrants in Colorado yield a net benefit to both our state economy and our state coffers. The Economist magazine has frequently noted that our massive immigration of working age people serves to redress our increasingly critical demographic imbalance between a collapsing number of workers supporting an exploding number of retirees.
Research shows that several economic sectors suffer enormously from crack-downs on illegal immigration, that competition tends to be at the bottom of the economic ladder (mostly isolated to those who have just immigrated, and those who have recently done so) and that the new waves of immigration provide the foundations upon which established citizens and residents can climb the economic ladder. By most accounts, not only is it more humane to allow people to come here seeking opportunity, but it also benefits those of us who were already born into it.
Many Americans continue to see nationalism as an unassailably legitimate basis for exclusion, the nation as private property, and those who come into it uninvited as trespassers. First, as already noted above, since the Civil Rights Act of 1964, we do not accord even private businesses such unfettered right to exclude, and the nation is more not less “open to the public.” Granted, the nation-state is a concept premised on some degree of exclusivity, of being a bounded entity defined as separated in some ways from the rest of the world. But nations have always been highly permeable entities, with people and goods flowing in and out in significant volume. There is little to indicate that stifling that flow has ever been particularly good for any nation (though much to show that encouraging it has been extremely good for those nations that have done so), and even less to indicate that it has ever been particularly good for humanity.
Even so, there certainly are some similarities between private property and national boundaries: Both are the institutionalization of historically violently acquired inequities, which, while eroded by subsequent enterprise, remain very evident in the distribution of wealth and opportunity. The main difference is that, while private property, despite its unsavory aspects in the establishment and perpetuation of inequity, is a highly functional system, facilitating the robust production of wealth through market mechanisms, nations, conversely, are for the most part mere barriers to such wealth production. Nations, in other words, enjoy the social defects of private property, while laying claim to none of the social benefits.
(That’s not to say that there are no social benefits whatsoever to the existence of nation-states. As with all forms of sub-global social organizational consolidation, there is, generally speaking, an immediate short-and-medium term benefit in terms of the utility produced within and for the bounded population, and a cost in terms of the barriers to larger scale social organizational consolidation which, in the long run, is a cost for the bounded population as well. Any level of social consolidation has variable value in terms of how well it articulates with both larger and smaller levels of organization. But focusing narrowly on wealth production, nation-states form barriers to the movement of the factors of production, and as such generally serve to impede global wealth production. There are some qualifications and exceptions to this general rule, but to go into them would be too great a digression.)
More easily grasped than the dissimilarities from private property is the historical infamy of ultranationalism, being the ideology which informed and justified the Holocaust, the attitude underlying which is uncomfortably similar to the attitude underlying our own current anti-immigrant hysteria.
Whether these analyses and this perspective prevail, the rhetoric that vilifies these humble people who migrate here to provide their children with better futures is absolutely and incontravertably indefensible. Several posters on The Denver Post message boards discussing the issue expressed the blatantly racist (and historically familiar) belief that our current wave of illegal immigrants is to be reviled for their supposed criminality (not immigration related), a belief based on the relative poverty of many in each new wave of immigration (and ironically emphasized the crime most commonly committed as a direct result of their illegal status: stealing social security numbers in order to obtain work, and argument in favor of precisely what they most vehemently argue against: “amnesty”). One sincerely opined that we should exterminate all undocumented immigrants in this country, all 12 million of them, thus doubling the record set by Nazi Germany in their own extermiantion of their own reviled “foreign” population living among them. That post received one parenthetical rebuke from one poster only, in contrast to the swarm of rebukes I received for my highly qualified comparison of their attitude to that of Nazi Germany, and for calling for a more humane and compassionate attitude.
One of the defining disctinction between the American Right and Left today revolves around our respective attitudes toward inclusivity and exclusivity. The left believes in social justice, in investing as a people in the increase of opportunity for those who currently enjoy the least opportunities, for more inclusion and less exclusion. The right remains the ideology that is the hier of racism, as well as to too great an extent its most fortified remaining haven, for not only do too many from that ideology defend the remnants of explicit and implicit racism, but, more universally and less ambiguously, they defend forms of exclusion that are logically and functionally similar.
It’s time to leave that kind of elitism on the dust heap of history, and recognize the humanity of all people, everywhere. It’s time to live up to our values and not just our greed, to be what we claim to be and not what others perceive us as. It’s time to give our children cause for pride, and the world cause for hope.
Beyond the specific moral, economic, and political dimensions of how inclusive we are, and how exclusive we are, is the systemic understanding. Human beings are woven of and into complex systems, ranging from the postulated basic building blocks of the universie (the “strings” of string theory, from which all other subatomic particles emanate), to the infinite and eternal. No systems are truly closed; all are open in various ways and to various degrees. The boundaries we perceive between them are more for our conceptual convenience than relfections of fundamental reality. From this perspective, “exclusion” is inherently unnatural, an arrogant insensitivity to the reality of our existence.
We are not first and foremost individuals, but rather first and foremost moments of a larger consciousness. Our happiness, our welfare, our liberty, and our humanity depend on recognizing our interdependence, not just with one another but with all of nature as well, more than on denying it. It is the smallest of demands upon this awareness to recognize that two people of the same sex who want to marry should be embraced without prejudice, and that all people who endure the difficulties of relocating in a foreign land in search of hope for themselves and their children should not be condemned nor robbed of dignity for doing what humans have done throughout history.
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(Opening scene: Angels, represented by twinkling stars, are talking about a troubled soul on Earth. They review this soul’s life, and the circumstances that led to its present attempt to kill itself….)
It was conceived with great hopes in a simpler time, by a variety of generous parents, and a few original sins. England (via the British Empire), in which modern democracy developed; The Enlightenment, characterized by a fluorescence of rationalistic philosophy; a wide-open new land, with an easily displaced indigenous population; abundant imported and domestically bred slave labor. It developed a grandiose vision for itself, one comprised of the somewhat incompatible memes of ‘manifest destiny’ and champion of liberty, and an exaggerated faith in its own exceptionalism.
But, as often happens, life presented unforeseen challenges which diverted this soul, the sovereign American People, from its youthful dreams. It gradually was forced to confront its original sins, brutally divided by one of them. Innovations complicated the landscape in which its dreams had been formed. It had to cope with a world comprised of other people with interests of their own, people less convinced of the benevolence of this powerful and self-interested nation than its own populace persistently was (rather too conveniently).
But despite this diversion from its original dreams, it was the same soul, peforming many good deeds, more often born of pragmatism than idealism, that were not always part of the original plan. It grew to address a changing world, doing what needed to be done to increase the welfare of those who depended on it. It intervened in its parent-continent when brutality racked the latter’s fields and towns, and then watched that continent, unencumbered by youthful dreams, combine the best fruits of their child’s aspirations with the reduced purism that comes from maturity.
But something in the people clung to the purity of youthful dreams, sulking with resistance to adulthood’s demands, an error that sometimes characterizes idealistic youth. Just at the point when both the people and their government were on the verge of following the mature wisdom of moderation and adaptation, the oversimplistic idolater within, childish and narcissistic rather than noble and generous, rebelled, and rent this national soul in an internal conflict over whether mature moderation would prevail, or childish purism.
It rebelled in a moment of crisis, a large faction of the people chanting the mindless refrain, “Government is not the solution, it’s the problem! The world would be better off without this government we’ve allowed to grow and grow, displacing the purity we had believed in and tried to implement in our youth! We would be better off if we had not allowed the lessons of life to adapt those youthful dreams to the demands of reality!”
And so this soul’s guardian angel decided to show it what the world would have been like without that modern government it now wished dead….
“First,” the angel said, “let’s look at what your country and world would have been like had you not further amended the Constitution after the Bill of Rights.
“Slavery would not have been legally abolished by the 13th Amendment, nor Congress empowered to enforce its prohibition.
“The 14th Amendment’s transformation of the legal framework of the country would never have occurred. The Dred Scott Decision, which held that no African American, whether free or slave, was an American citizen, would have remained the law of the land. The states’ exemption from the Bill of Rights, a document originally interpreted to limit only the federal government’s intrusion on state and individual rights, would have persisted, and the protections of the Constitution would have continued not to apply to or restrain state and local governments in any way. African American slaves would have continued to be counted, legally, as 3/5 of a human being.
“The 15th Amendment’s legal guarantee, not to be effectively enforced for a century more, that all citizens, regardless of race, have the right to vote, would not have come into existence.
“The 17th Amendment’s increase in direct democracy, by shifting elections for U.S. Senators from the state legislatures to the people of the state, would not have happened.
“Women might still be denied the vote in some states.
“The increased tardiness and unevenness with which the United States would have dealt with these morally enervating issues would have reduced the human capital of the nation, delaying its fuller liberation and development longer, if not, in some places, indefinitely. It would have been a less innovative country, and a less inspiring one to other nations. Resentments would have grown even stronger, divisions even deeper, the problems bred by these defects even more inextricably embedded in the fabric of your society. Those who later depended on the United States as a beacon of liberty would see only a quagmire of exploitation and oppression, either lagging even farther behind the finally pacified continent across the Atlantic it continually claimed superiority to, or, by not being a strong enough nation to lead, leaving the world into a downward spiral from which it couldn’t escape.
“The world would have been a very different place indeed had the United States not become what it became. And while there are those in the world who think that would have been a good thing, sometimes with considerable justification, it most certainly wouldn’t have been a good thing for America, nor, all things considered, for global peace and prosperity.”
“Oh, Angel,” the suicidal faction groaned condescendingly. “First of all, most of us don’t object to Constitutional Amendments, but rather to other increased exercises of federal power without recourse to such amendments. And second of all, many of these things would have come to pass by the choice of individual states, without the federal government imposing them on the states.”
“Slavery wasn’t going anywhere, anytime in the foreseeable future, without the legal and military coercion of the federal government,” replied the angel. “The gradual incorporation of the Bill of Rights into the Fourteenth Amendment by successive Supreme Court decisions, which continued into very recent times (because state and local governments were not universally committed to protecting those rights), would not have occurred, and those states would remain free to disregard those protections. We see even today how fragile those protections are, at the hands of those who claim most respect for them, in the repetition of the refrain that granting due process to those suspected of certain crimes (e.g., terrorism) reduces the rule of law, a chant that is phenomenally ignorant of what the term ‘rule of law’ means in a Constitutional republic (hint: ignoring it out of convenience, in order to increase conviction rates, no matter how heinous the crime, is the exact opposite of what it means).
“As for your other concerns, about increased exercises of federal power not granted by Constitutional amendments, follow me….”
The angel then said, “let’s look at what your country and world would have been like had you not had a strong federal government to hold the country together, pursue its collective interests, and impose its core values on its constituent parts (leaving aside for the moment the issues of so-called ‘activist courts’ and of the rise of the ‘administrative state’).
“It took a strong federal government to end slavery and hold the union together during and after the Civil War. A century later, it took a strong federal government, complete with National Guard, to enforce court-ordered desegregation. And it took a strong federal government to pass The Civil Rights Act of 1964, which utilized attenuated Commerce Clause power to prohibit racial discrimination by private owners of commercial institutions.
“It took a strong federal government, captured by the will of the people in a series of populist and progressive movements in the later 19th and early 20th centuries, to rein in ‘the robber barons,’ and redress the biggest disparity of wealth in this country ever…, until today, when we have finally exceeded it. It took a strong federal government to give the country hope during The Great Depression, and, despite the revisionism popular with the far-right today, launch record-setting economic growth in its midst (from 1933-1937), until budget hawks managed to convince to FDR to compromise his policies to their concerns.
“It took a strong federal government to mobilize the country and lead the allies during World War II, and to lead NATO during the Cold War.
“Without these efforts, slavery might still be extant, and, certainly, Jim Crow (American ‘Apartheid’) would still be extant in some regions. The country would have fractured not just into two as a result of the southern cessation, but into multiple tiny republics, neither viable on their own nor of any import on the world stage.
“Mexico and Canada, our more politically, economically and militarily successful neighbors to the north and south (in this alternate reality), probably would have annexed large chunks of what would otherwise have been The United States. European and World History would have been different, possibly with fascism prevailing in Europe and, eventually, threatening the tiny, weak republics across the Atlantic, in what would otherwise have been The United States of America.
“There would have been nothing other than fascist Europe to check Soviet and Chinese expansion, and, it is more probable, given the lack of moral compass of both fascism and Sino-Soviet Communism, that they simply would have arrived at a mutually agreeable division of the world into competing but mutually accommodating and reinforcing tyrannies.
“Without a federal government as strong as this one has been, there would be no ‘United States’ today, certainly no liberties in some regions for those who were deprived them historically, and quite probably a more tyrannical world in general.”
“Next,” the angel said, “let’s look at what your country and world would look like if you had not had an ‘activist’ judiciary interpreting the Constitution in ways relevant to, and adapting to, changing circumstances.” (See http://www.law.emory.edu/fileadmin/journals/elj/58/58.5/Green.pdf for a comprehensive exploration of the concept, including a discussion of why it, appropriately applied, has nothing to do with boosting individual liberty or governmental power, but rather refers to whether the judiciary adheres to the norms of judicial conduct which are its only real restraint.)
“In the conventional, ideologically charged use of the term, all Supreme Court decisions involve ‘judicial activism,’ because those cases that the Supreme Court chooses to hear are precisely those cases that involve unresolved ambiguities, and require judicial interpretation. Therefore, a complete history of the evolution of Constitutional Law, as defined by Supreme Court decisions, is, in a sense, one important slice of the history of ‘judicial activism,’ as the term is commonly used. And without that fully institutionalized form of ‘judicial activism,’ which is coextensive with the doctrine of ‘judicial review’ established by Justice Marshall described below, there would be no enforceable Constitution, no established and coherent rule of law to the extent that there is today in the United States. But rather than write a Constitutional Law synopsis, I’ll just mention a few of the most important cases, that involved perhaps the greatest liberty of Constitutional interpretation on the Court’s part, but without which we would be a nation with far weaker protections of individual liberties and rights than we have today.
“Chief Justice John Marshall established the principle of ‘judicial review’ in Marbury v. Madison in 1803, the first and greatest act of judicial activism in U.S. History, without which there would have been no final authority on what was and was not Constitutional. the lack of such judicial authority would have inevitably undermined the rule of law that, more than anything else, has distinguished the United States. Without the judicially determined Constitutional last word that Marshall successfully instituted, questions of Constitutionality, and thus ultimate legality, would be political footballs to a far greater extent than they already are, overwhelmed by the bickering whims of conflicting ideologies and interests that characterize the rest of political discourse and decision-making. In other words, without this bold initial act of judicial activism, the Constitution would have been an empty promise, and would be referenced today for strictly rhetorical rather than legal support, a non-binding tool for political argumentation. Uninformed lay opinions about what does and does not constitute Constitutionality would be raised to a par with legal analyses and Supreme Court holdings, reducing the Constitution to a meaningless blank slate on which each interest group and ideological camp could impress its own preferred interpretation.
“In Yick Wo v. Hopkins (1886), the Supreme Court held that a facially neutral law that has the effect of discriminating (a selectively enforced San Francisco code restricting licensing for laundries to brick or stone buildings in order to target Chinese laundries which were built of wood) violates the equal protection clause of the 14th Amendment. This decision was not a foregone conclusion: The letter of the law itself didn’t violate the Equal Protection clause, and so the decision can be said to be one of ‘an activist judiciary.’ But had it been more literal in its Constitutional interpretation, the Court would have set the precedent that discrimination is Constitutionally permissible as long as it is done implicitly rather than explicitly.
“In Pennsylvania Coal Co. v. Mahon (1922), the Supreme Court held that a government regulation that essentially deprives a property owner of the value of its property is an unconstitutional ‘taking’ (violating the Fifth Amendment protection of property), and the government must compensate the owner for that loss of value. Again, this is not an automatic ‘strict constructionist’ interpretation of the Constitution, since there is no language in the Constitution which addresses loss of value due to government regulation. However, those most adamant about the ills of ‘judicial activism’ are generally also those most likely to concur with this holding. In the absence of the judicial activism of the Court in this case, private property rights would have been more, rather than less, vulnerable to government intrusion.
“Brown v. Board of Education (1954) would certainly rate as an act of judicial activism by the ideological definition of that term currently in vogue. It overturned the Stare Decisis of Plessy v. Ferguson (1896), which held that segregation was Constitutional (instituting the ‘separate but equal’ doctrine), holding that ‘separate educational facilities are inherently unequal.’ Brown essentially launched the Civil Rights Movement as we know it today (it gave it its first major victory), a movement whose progress would have been at least slower, and possibly undermined altogether, in the absence of this Court decision.
“The Court also declined to limit Congress’ power to pass The Civil Rights Act of 1964, which used the Commerce Clause to prohibit private owners of commercial establishments from discriminating against potential customers, employees, renters, and buyers on the basis of race. This could easily be considered ‘judicial activism by omission,’ without which we would not have Civil Rights laws protecting minorities against the entire range of private discrimination, such as employment discrimination and housing discrimination.
“In Gideon v. Wainwright (1963), the Court established that the state’s failure to provide counsel to an indigent defendant essentially deprived that defendant of his Sixth Amendment right to counsel. The literal Constitutional right to counsel is not necessarily a right to be provided with counsel, at the people’s expense, but without interpreting it as such, this fundamental right would be accorded only to those who could afford it, and denied to those who cannot, reducing an essential protection of individual liberty to a commodity for sale rather than a guarantee to all citizens. In a world without this protection, the poor would receive even less justice than they do today.
“It’s worth noting here, again, that a series of Supreme Court decisions over the last century and a half have incorporated the Bill of Rights into the 14th Amendment Equal Protection clause, allowing those core protections to be applied to state and local governments as well as to the federal government, an act of ‘judicial activism’ without which states and counties and municipalities and school districts would be largely free to violate the Bill of Rights to whatever extent and in whatever ways they see fit. Hardly a boon to the protection individual liberty.
“Many other decisions could be included in this list, many other basic liberties that depended on an ‘activist judiciary.’ But the sampling above illustrates some of the ways in which our nation would be a very different, and in many ways far poorer place were it not for the role that the so-called ‘activist judiciary’ has played in our march toward increased equality of opportunity and rights, and increased protection of individual liberties.
“Finally,” said the angel, “let’s look at what your country and world would look like without the rise in America of the ‘Administrative State,’ through which to regulate the complex modern economy.
“Without the regulatory agencies that promulgate regulations, conduct hearings and inspections, license facilities, and engage in a complex web of tasks necessary to implement the laws passed by Congress, we would live in a far more insecure and unhealthy environment. Incidents such as the infamous ‘Love Canal’ toxic waste dump beneath a housing developing, causing an astronomical rise in cancer rates, would be the norm rather than the exception. The manipulation of markets, such as those by Enron which caused the California energy crisis of 2000-2001, would be constant and economically devastating. Confidence in investments would plummet, the economy would contract dramatically, and the financial system near-collapse of 2008 (resulting from underregulated financial markets) would be a constant and continuous event rather than a once-in-a-century crisis.
“The absence of the regulatory structure that has developed since the 1930s, and under the Administrative Procedure Act of 1946, would be akin to removing the mortar from between the bricks of the modern economy. The entire edifice would be less securely bound together, more unstable, and more likely to collapse. Those sheltered within it would feel every cold wind that blows through, and storms would whip through it with discomfiting regularity. Market failures would dominate the economy, and health and safety violations would be constant and ubiquitous. Commercial enterprises would know that they could sell toxic and dangerous substances with impunity, recognizing that there is more profit in not paying the costs of avoiding doing so. A major, perhaps completely dominant, economic niche would emerge for those that compete by avoiding such costs, simply changing names and products whenever the slow dissemination of information of the health and safety risks make the old product unprofitable to produce and sell.
“The already underfunded Food and Drug Administration would leave even more food and drug safety responsibility to the companies that have a vested interest in overlooking foreseeable dangers. The New York Times reported (September 28, 2007) that due to defunding, the FDA audits less than 1% of clinical drug trials in the United States. As a direct result we have increasing known cases of pharmeceutical companies fudging results of drug trials, leading to waves of preventable deaths, such as occurred with Propulsid (Johnson and Johnson), Bextra and Celbrex (Pfizer), and Vioxx (Merck).
“Similar stories of the consequences of deregulation and defunding of regulatory agencies can be found in food safety (increasing salmonella and E. coli contamination, even after companies had been asked to address discovered dangers but simply chose not to, a luxury afforded by underregulation), and product safety (such as children’s toys, imported from China, containing lead in seriously toxic quantities, undetected due to underregulation of imports). The more we ‘shrink government’ by reducing regulatory oversight even more than we have already done, the greater the frequency of such incidents will become. In the unregulated paradise that some in America are striving for, life would be, literally, ‘nastier, more brutish, and shorter,’ for thousands if not millions of children, and families, and innocent people just going about their lives.
“While there are some dysfunctional dynamics that lead to the production of laws that are thousands of pages long (e.g., earmarks, and other porkbarrel spending provisions; and controversial riders designed to piggyback on necessary legislation), the main reason is the complexity of the social institutional landscape that those laws are addressing. And those laws, even with their tens of thousands of pages of qualifications and provisions, don’t even begin to anticipate all contingencies, all unexpected consequences, all complexities that will emerge as the law is implemented. For that reason, regulatory agencies are necessary to implement the laws, to address those complexities, to adapt the execution of the law passed in Congress to the realities of the world to which it will apply.
“It is a very information-intensive enterprise, with an amazing amount of very precise expertise embedded in these organizations, able, for instance, to research the precise cancer rates associated with each commercial chemical substance on the market, or incorporated into items on the market; the ways in which these substances move through the environment and contaminate human beings; the probabilities of contamination and of contracting associated diseases from contamination; the fatality rates of doing so; the costs of regulation at each level; the balancing of legitimate economic concerns with legitimate health and safety concerns. It is not a process which leaves the public out, but rather one which, by law, includes the public, and invites public input.
“The same kinds of calculations and processes are required to oversee the use of public lands, the mining of water from aquifers and of minerals from the Earth, the emissions and dumping of toxic substances into the air and water and land; the determination of where to build roads and interstates and how to balance all of the concerns and interests involved; the determination of where to allow coal plants and nuclear plants and other installations to be built; the determination of what kinds of safety devices and scrubbers they require; the oversight of all of these protections and provisions without which we would all be dramatically worse off.
“Our economy has been growing (and continues to grow) in complexity at an accelerating rate. For example, the use of supercomputers programmed with complex algorithms to buy and sell stocks in order to reap gains made in fractions of a second distort the market, caused a freefall several months ago that rattled investors and required shutting the stock market down, and creates a competition for locating the computers as close as possible to the stock market servers in order to receive the information milliseconds before competitors. The market collapse caused by a malfunctioning algorithm resulted in an enduring loss of perhaps billions of dollars to investors, as the market had to creep back up, in a context of diminished investor confidence, from the depths to which it had plummeted. We need regulatory agencies equipped with human and material resources capable of keeping up with the tens of thousands of similar demands on them, if we want our market economy to continue to function, and to do so in the interests of all rather than at the long-term expense of the many in the short-term interests of the few.
“Here’s one very compelling objective piece of evidence about the value of that administrative state you are so eager to dismantle: Its emergence immediately preceded the most dramatic rise in wealth production in the history of the world. That very expensive “big government” administrative state has existed in every single nation on Earth that has ever experienced that dramatic rise in wealth production, both immediately prior to experiencing it and from then on, without exception, and every single prosperous developed modern nation is still characterized by the presence of that very expensive “big government” administrative state today, again, without exception. There is not one single exception, and never has been. While it’s true that you can’t prove a counterfactual (we don’t know what would have happened in its absence), there is not one shred of evidence that any other governmental form is able to facilitate this feat and accommodate its end result. By all available evidence, our wealth, the wealth of each and every one of us, is completely dependent on the existence of the administrative state.
“Yes, many of the problems that would occur in the absence of such a regulatory structure still occur within it; the poor are still burdened more than the rich by undesirable facilities in their neighborhoods; acquiescence to economic necessity still often triumphs over public health and safety; the interests of corporations still work their way through the system, in a variety of manners, at the expense of the public without always being off-set by a commensurate economic benefit; ‘industry capture’ of regulatory agencies to some extent ‘puts the foxes in charge of the henhouse.’ All of these problems diminish the degree to which our regulatory infrastructure efficiently and effectively does what almost all of us implicitly recognize to be necessary and desirable. But the absence of our regulatory infrastructure would erase the performance of that function altogether. The significant shrinkage of it that periodically occurs under Republican administrations almost always results in catastrophic effects, with a regularity that is matched only by the public disregard of the repeated lesson.
“To be sure, throughout this tour of what ‘small government’ would really mean, I have ignored the ways in which a strong centralized federal government, an ‘activist judiciary,’ and the rise of the administrative state have led to negative rather than positive outcomes for both Americans and the rest of the world (perhaps more the latter than the former, since a strong America has been strong to its own citizens’ advantage; for the most part, only when it incidentally served the interests of American citizens have others in the world benefited from American power. See “Democracy IN America,” But Not BY America). But the danger in America today, the one that most needs remedy, is not an exaggerated belief in the virtues of centralization of governmental power and effective political coherence, but rather an exaggerated belief in something that does not and cannot exist in the oversimplistic form imagined, a Liberty Idolatry that counsels the destruction of the very social foundation which liberty requires for its existence. And so that is the imbalance that I have addressed.
“Those poetic aspirations of America’s national youth were what defined its spirit and channeled its energies. They still guide and inspire its people today. But meeting real responsibilities as they arose is what carved that spirit into the more-often-than-not admirable world citizen and leader, and reliable agent of its own people’s interests, that it has become. The world, and the people at home who give the federal government life and whose lives that government in turn embues with expanded opportunities, would be poorer for the partial death that some would now impose on this vital vehicle of the American spirit. The demands that the federal government has risen to meet were not optional, could not have been disregarded. And idolizing rather than respecting the guidance given by America’s founding leaders and documents is an insult to them, and a disservice to those alive today, as well as those who will be alive tomorrow.”
The United States of America was founded to be a progressive nation. As Thomas Jefferson himself wrote:
I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.
Those who would strait-jacket us as a people with the ideological raiment that exists only in their own shrunken imaginations stand in opposition to this ideal, and to the very spirit of this nation. It’s time for George Bailey to come home, and bask in the fellowship of a society of people who strive to lift one another up, and help bear one another’s burdens.
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(Continued from “Wonderful Life,” Part III; see “It’s a Wonderful Life,” American Political Edition (Parts I-V) for all five parts combined and revised)
“Third,” the angel said, “let’s look at what your country and world would look like if you had not had an ‘activist’ judiciary interpreting the Constitution in ways relevant to, and adapting to, changing circumstances.” (See http://www.law.emory.edu/fileadmin/journals/elj/58/58.5/Green.pdf for a comprehensive exploration of the concept, including a discussion of why it, appropriately applied, has nothing to do with boosting individual liberty or governmental power, but rather refers to whether the judiciary adheres to the norms of judicial conduct which are its only real restraint.)
“In the conventional, ideologically charged use of the term, all Supreme Court decisions involve “judicial activism,” because those cases that the Supreme Court chooses to hear are precisely those cases that involve unresolved ambiguities, and require judicial interpretation. Therefore, a complete history of the evolution of Constitutional law, as defined by Supreme Court decisions, is, in a sense, one important slice of the history of ‘judicial activism,’ as the term is commonly used. And without that fully institutionalized form of ‘judicial activism,’ which is coextensive with the doctrine of ‘judicial review’ established by Justice Marshall described below, there would be no effective Constitution, and no established and coherent rule of law to the extent that there is today in the United States. But rather than write a Constitutional Law synopsis, I’ll just mention a few of the most important cases, that involved perhaps the greatest liberty of Constitutional interpretation on the Court’s part, but without which we would be a nation with far weaker protections of individual liberties and rights than we have today.
“Chief Justice John Marshall established the principle of ‘judicial review’ in Marbury v. Madison in 1803, the first and greatest act of judicial activism in U.S. History, without which there would have been no final authority on what was and was not Constitutional, which would have inevitably undermined the rule of law that, more than anything else, has distinguished the United States. Without the judicially determined Constitutional last word that Marshall successfully instituted, questions of Constitutionality, and thus ultimate legality, would be mere political footballs, overwhelmed by the bickering whims of conflicting ideologies and interests that characterize the rest of political discourse and decision-making. In other words, without this bold initial act of judicial activism, the Constitution would have been an empty promise, and would be referenced today for strictly rhetorical rather than legal support, a non-binding tool for political argumentation. Uninformed lay opinions about what does and does not constitute Constitutionality would be raised to a par with legal analyses and Supreme Court holdings, reducing the Constitution to a meaningless blank slate on which each interest group and ideological camp could impress its own preferred interpretation.
“In Yick Wo v. Hopkins (1886), the Supreme Court held that a facially neutral law that has the effect of discriminating (a selectively enforced San Francisco code restricting licensing for laundries to brick or stone buildings in order to target Chinese laundries which were built of wood) violates the equal protection clause of the 14th Amendment. This decision was not a foregone conclusion: The letter of the law itself didn’t violate the Equal Protection clause, and so the decision can be said to be one of ‘an activist judiciary.’ But had it been more literal in its Constitutional interpretation, the Court would have set the precedent that discrimination is Constitutionally permissible as long as it is done implicitly rather than explicitly.
“In Pennsylvania Coal Co. v. Mahon (1922), the Supreme Court held that a government regulation that essentially deprives a property owner of the value of its property is an unconstitutional “taking” (violating the Fifth Amendment protection of property), and the government must compensate the owner for that loss of value. Again, this is not an automatic “strict constructionist” interpretation of the Constitution, since there is no language in the Constitution which addresses loss of value due to government regulation. However, those most adamant about the ills of ‘judicial activism’ are generally also those most likely to concur with this holding. In the absence of the judicial activism of the Court in this case, private property rights would have been more, rather than less, vulnerable to government intrusion.
“Brown v. Board of Education (1954) would certainly rate as an act of judicial activism by the ideological definition of that term popular today. It overturned the Stare Decisis of Plessy v. Ferguson (1896), which held that segregation was Constitutional (instituting the ‘separate but equal’ doctrine), holding that ‘separate educational facilities are inherently unequal.’ Brown essentially launched the Civil Rights Movement as we know it today (it gave it its first major victory), a movement whose progress would have been at least slower, and possibly undermined altogether, in the absence of this Court decision.
“The Court also declined to limit Congress’ power to pass The Civil Rights Act of 1964, which used the Commerce Clause to prohibit private owners of commercial establishments from discriminating against potential customers, employees, renters, and buyers on the basis of race. This could easily be considered ‘judicial activism by omission,’ without which we would not have Civil Rights laws protecting minorities against the entire range of private discrimination, such as employment discrimination and housing discrimination.
“In Gideon v. Wainwright (1963), the Court established that the state’s failure to provide counsel to an indigent defendant essentially deprived that defendant of his Sixth Amendment right to counsel. The literal Constitutional right to counsel is not necessarily a right to be provided with counsel, but without interpreting it as such, this fundamental right would be accorded only to those who could afford it, and denied to those who cannot, reducing an essential protection of individual liberty to a commodity for sale rather than a guarantee to all citizens. In a world without this protection, the poor would receive even less justice than they do today.
“It’s worth noting here, again, that a series of Supreme Court decisions over the last century and a half have incorporated the Bill of Rights into the 14th Amendment Equal Protection clause, allowing those core protections to be applied to state and local governments as well as to the federal government, an act of ‘judicial activism’ without which states and counties and municipalities and school districts would be largely free to violate the Bill of Rights to whatever extent and in whatever ways they see fit. Hardly a boon to the protection individual liberty.
“Many other decisions could be included in this list, many other basic liberties that depended on an ‘activist judiciary.’ But the sampling above illustrates some of the ways in which our nation would be a very different, and in many ways far poorer place were it not for the role that the so-called ‘activist judiciary’ has played in our march toward increased equality of opportunity and rights, and increased protection of individual liberties.”
(Continued in “Wonderful Life,” Part V)
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Few issues, few demands to balance legitimate competing concerns, better illustrate both the subtlety of the challenges we face, and the dysfunctionality of displacing careful and thorough analyses with ideological scripts. Louisiana Governor Bobby Jindal, on Meet the Press, just repeated the familiar right-wing refrain, “why are they more worried about the terrorists rights than about the rights of innocent travelers?” Some on the left (in an echo of Tea Party Liberty Idolatry) like to repeat the refrain, “those who trade liberty for security deserve neither.” Jindal also suggested that searching grandmothers and children at airport security is unnecessary, because they’re not the terrorists. Some on the left, in one of those all-too-common inter-ideological agreements on an oversimplification, insist that such measures are not about security at all, but rather about the exercise of government control and subjugation. (Vincent Carroll echoed that sentiment as applied to what he considers the government assault on Free Speech, as illustrated by, for instance, the opposition to the Supreme Court’s Citizens United decision, which protects corporate political speech from legislative restraints: see Freedom & Coherence).
It’s all Bullshit. Really.
Jindal’s refrain about Democrats’ overzealous defense of terrorists’ rights has been repeated in various contexts throughout American history, and has repeatedly been discredited. The very foundation of our system of justice is that people are presumed innocent until proven guilty. The constant allusion to the presumption of guilt that vests at the moment of being suspected (it is terrorists‘ rights that are being protected, rather than people suspected of terrorism) is as un-American as it gets. It was used to justify Gitmo, which every person I know of who actually visited Gitmo and talked with detainees there recognized held many, many completely innocent people.
The fact is, that despite our procedural bias in favor of protecting the rights of the innocent, we put thousands or tens of thousands of innocent people in jail every year, and some unknown number on Death Row. Violations of civil rights, including excessive violence by police against people who have committed the most minor of infractions, is a constant and real concern. Those on the right who are implicit advocates of decreasing our vigilance against those natural social forces that tend toward a police-state are doing this country an enormous disservice. As Sinclair Lewis said, “When fascism comes to America, it will be wrapped in the flag and carrying the cross” (there is some debate about the attribution: http://zalandria.wordpress.com/2007/01/13/sinclair-lewis-how-fascism-will-come-to-america-1935/).
On the other hand, the notion that we don’t have to compromise any of what we consider to be the full extent of our liberties and rights to the concerns of mutual security is equally absurd (sorry, folks). The very existence of any system of law enforcement is an intrusion on personal liberty. That’s what laws are: An intrusion on personal liberty. And enforcing them is, inherently, an invasion of privacy, including, to some extent, of the innocent. The vast majority of Americans prefer the slight invasion of privacy associated with airport security measures (at least prior to the implementation of the new, more intrusive measures) than the increased risk of violent death associated with their absence. I do, especially when my seven-year-old daughter is traveling with me.
The issue is not settled by some broad-brushstroke platitude on one side or the other, but rather by understanding: 1) the competing values; 2) the dangers of overemphasis of one or the other of those values; and 3) the cognitive and emotional biases that may play into exaggerating one or the other of those values (e.g., fear of criminal violence playing into an exaggerated predisposition to trade rights for security, or fear of government oppression playing into an exaggerated predisposition to trade security for rights). As in all matters, we are challenged to mobilize the best analyses, with all relevant information in play, and make the best decisions we can on that basis, in service to our values and to human welfare, all things considered.
Both Jindall, and some on the left who are indignant over TSA intrusiveness (in a Facebook thread on a post of the video of the little girl screaming “don’t touch me!” while being physically searched), invoke the refrain that small children and old ladies aren’t the terrorists. The fact is, that the terrorists are adaptable, and that there are those in all demographic categories who can be recruited, knowingly or unknowingly, willingly or unwillingly, to carry explosives or other instruments of terrorism across airport security. Without a doubt, the TSA procedures can be better designed, and their treatment of children can be more sensitive to the particular needs involved (i.e., have TSA employees trained in working with children, using techniques that put them at ease). But those current imperfections are not some kind of major scandal. They’re just current imperfections, that we should insist upon refining.
The message is the same message that permeates all of my posts: Don’t reduce the challenges of self-governance to ideological refrains and broad-brushstroke platitudes. Avoid precipitous conclusions driven by political-emotional predispositions. Do the analysis, and recognize that we live in a complex and subtle world, that demands more of us than ideological purity and self-righteous indignation when the presumptions of that purity are violated. The challenge of self-governance is not a trivial one. Let’s stop trivializing it.
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David Harsanyi wrote in the Denver Post that the Obama Administration is running out of people to demonize(http://www.denverpost.com/opinion/ci_16321444). This right-wing columnist insists that Democratic “demonization” of the Chamber of Commerce is reinforcing moderate perceptions that the Democratic Party has gone bonkers. Ironically (too painfully so), it is what has become the Republican mainstream that literally (rather than figuratively) demonizes Obama himself, accusing him of being foreign born, Muslim, and, yes, the the anti-Christ. As a mouthpiece for right-wing extremism, Harsanyi has turned reality completely on its head, accusing the opposition of the defects that so dramatically characterize his own ideological camp.
The Denver Post criticizes Rep. Ed Perlmutter (CO CD 7) for, among other things, supporting cap-and-trade (http://www.denverpost.com/opinion/ci_16281757). I think that Ed is doing a great job in general, is supporting what reason and goodwill dictate that a responsible elected representative support, and has revolutionized constituent services and outreach (his “government at the grocery store” town halls have become famous). But what strikes me as incredible is the Post’s irresponsible position on cap-and-trade on the basis that it raises energy costs.
The rest of the developed world, responding to abundant and compelling evidence, recognizes the need for an affirmative global warming abatement policy (the prime contenders being cap-and-trade or a carbon tax), but has been stymied in its attempt to create a globally concerted policy to address the problem by the short-sightedness of a country that would rather keep energy prices low today than start to reduce the infinitely higher future costs that we can no longer completely avoid. We scuttled the Kyoto Protocol, and now the Denver Post wants to make sure that we make continue to stick our heads in the sand rather than even begin to address this most consequential of challenges. It’s one thing to have to fight popular misconceptions, it’s another to have them amplified by Denver’s last remaining major metropolitan newspaper. I’ve never in my life felt less respect for any newspaper anywhere in America than I feel for this one now.
Susan Greene reports on the strong-arm tactics of the Denver Archdiocese of the Catholic Church, suing a lesbian Sunday School teacher the Archdiocese had fired for brining her case to the Colorado Civil Rights Division (http://www.denverpost.com/greene/ci_16314690). Such strong-arm tactics by institutions that should be in the vanguard of nobler attitudes are all too common. I’ve experienced them at the hands of the current Jefferson County Schools administration, first for trying to bring to the district’s attention the serious problems with a principle who was the superintendent’s “dear old friend,” and more recently for trying to establish a robust school-community partnership in Jefferson County. In all such cases, it is the community’s responsibility to stand up and reject this privileging of power over purpose. I strongly encourage people to be more aware, and get more involved.
The Economist reports on the use of steganography, and a program called “Collage,” which distributes and hides messages among files posted to public websites, and allows intended recipients to reassemble them (http://www.economist.com/node/17243251). It is another example of the decentralized, and unstoppable, flow of information in the modern world, with all of the vast implications that that has. Totalitarian governments will find it increasingly difficult to control what information people have access to, and their ability to organize in opposition to the government. And more responsible governments will find it increasingly difficult to control the organization and implementation of violent extremism.
