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Part I: The Economy.

1) Every modern, prosperous, developed nation on Earth, without one single exception, has a large administrative infrastructure and has had a large administrative infrastructure in place since prior to participating in the historically unprecedented post-WWII expansion in the production of prosperity. Every single nation on Earth that lacks a large administrative infrastructure is an impoverished nation. No nation without a large administrative infrastructure has ever achieved post-WWII levels of prosperity and economic development. The claim, then, that such a large administrative infrastructure, which the far-right refers to as “socialism,” is incompatible with prosperity, is the precise opposite of what the empirical evidence suggests: It appears to be not only compatible with prosperity, but absolutely indispensable to prosperity.

2) Economic theory and empirical observation make clear why this is so: Due to the consequences of “transaction costs” (the costs of market transactions, such as gathering information or organizing interested parties to act as single market actors in public goods scenarios), government involvement in the modern market economy is a vital component of a robust and well functioning economy, and its absence ensures that centrally located market actors (who benefit from “information asymmetries”) will game markets to their own benefit and to the public’s often catastrophic detriment. The government helps to reduce transaction costs by investing in infrastructure and human capital development that involve a combination of high immediate costs and very long-term though extremely high benefits that is not conducive to reliance on private investment.

3) In the immediate wake of the implementation of New Deal policies, we had four years of historically unprecedented GDP growth, that only declined again immediately after budget hawks similar to the American far-right today pushed through a more conservative fiscal policy.

4) What finally ended the Great Depression and set the country and world on the most dramatic expansion of prosperity in the history of the world was the most massive public spending project in world history : WWII, in which the United States ramped up its industrial engine by producing enormous quantities of sophisticated heavy military equipment that was conveniently destroyed as fast it could be manufactured, demonstrating that even unproductive production can stimulate an economy, suggesting how much more economically beneficial investment in infrastructure can be.

5) Our period of greatest economic growth (the 1950s and 1960s) was also the period of our highest marginal tax rates, when we did, in fact, make massive investments in infrastructure (such as our interstate highways system) and scientific and technological research and development (such as the space program and the government sponsored advances in computer technology, both of which generated a plethora of economically enormously beneficial developments).

6) In the immediate wake of the stimulus spending by the Bush and Obama administrations, declining GDP turned to growing GDP and an accelerating rise in job losses turned into a decelerating rise in Job losses, literally turning the corner from the deepening collapse authored by eight years of Republican economic policies to gradual recovery within months of the resumption of a Democratic administration and sane economic policies.

7) Virtually no economists, liberal or conservative, recommend fiscal austerity during an economic contraction, and yet Tea Party lunatics, drenched in the false belief that a long-term deficit and debt problem is an immediate crisis, insist on policies that virtually every economic model shows actually INCREASES our debt while crippling our economy.

8) The overwhelming majority of professional economists do not agree with the Tea Party economic paradigm, and The Economist magazine called it “economically illiterate and disgracefully cynical.” 80% of American economists in a 2008 survey favored Democratic Party over Republican Party economic policies (and that was BEFORE the rise of the Tea Party!).

9) The Tea Party Congressional faction famously blackmailed the country with fiscally and economically nationally self-destructive default on our financial obligations (by threatening to refuse to raise the debt ceiling, which has never before been contentious and in most developed countries is automatic), in order to secure continuing tax cuts for the wealthiest Americans which even conservative economists called “indefensible.” Even though this catalyzed a damaging downgrading of our national credit rating, they seem poised, in 2013, to repeat the same self-destructive and irresponsible behavior.

10) The two greatest economic collapses of the last 100 years in America were both immediately preceded by the two highest peaks in the concentration of wealth in America in the last 100 years (in 1929 and 2008, respectively), both of which followed a decade or more of the kinds of “small government” policies favored by the right today. Following the 1929 collapse, we learned from our mistakes and used government to create a more sustainable economy. Following the 2008 collapse, the far-right has continued to try to inflict continuing economic harm on the nation, insisting on continuing the same policies which caused the economic collapse in the first place.

11) Yet despite these many compelling facts, those on the far-right not only continue to believe what is contradicted by reality, but are 100 percent certain that their ideological dogma is the indisputable truth, and are smugly dismissive of those who disagree with them.

Part II: The Constitution and the Foundational Values of the Nation.

1) The Constitution was drafted and ratified to strengthen, not weaken, the federal government, after ten years of living under the toothless Articles of Confederation. “The Federalist Papers,” a series of op-ed arguments for ratification of the Constitution written by Madison, Hamilton, and Jay, largely made the case that an adequately empowered and centralized federal government was essential to the viability of the new republic. (“Federalism” was originally used to designate the political doctrine favoring a strong federal government, but has been converted by the modern right-wing to refer to the political doctrine favoring a weak federal government.)

2) Despite the frequent refrain that government taxing-and-spending is an act of federal tyranny and “unconstitutional,” the fact is that Article I, Section 8, Clause 1 of the United States Constitution grants Congress the unqualified power to tax and spend in the general welfare, the Constitutional provisions limiting that power being the ones that define our electoral process, by which we the people get to decide, through that process, whether our representatives’ interpretation of “the general welfare” is one we the people agree with. So, if “socialists” vote in a “socialist” president who taxes and spends to provide universal healthcare, or to address issues of poverty or disability or other acts of humanity as a people, that is not unconstitutional, it is not an infringement on anyone’s liberty, it is not an abuse of federal power, but is, rather, Congress doing exactly what it was empowered to do.

3) While claiming to be the great defenders of the Constitution, right-wingers are in fact the great antagonists against the Constitution, because they reject the process by which we have resolved disputes over constitutional interpretation for over two centuries (Judicial Review) and fight to reduce the Constitution to a meaningless Rorschach Test which each ideological faction claims to support whatever that ideological faction favors, thus destroying the Constitution as a functioning document.

4) While pretending to be the great bulwark against tyranny, they in fact pose the greatest threat of tyranny and against our rule of law, by insisting that they are prepared to overthrow the government if they disagree with it, and by insisting that their “liberty” requires that we siphon political economic power away from our constitutionally and democratically constrained government organized to serve the public interest and into large private corporations that are not constitutionally and democratically constrained and are organized to serve the interests of the few who own the most shares rather than of the public in general (a transferal of power to corporate interests which is essentially the definition of “fascism”).

5) The claim to be the true representatives of the will and spirit of the Founding Fathers is almost the diametrical opposite of the truth, for several reasons. For one thing, the “Founding Fathers” did not have one simplistic ideological “will” that could be so easily represented. Ben Franklin, for instance, believed that all private wealth beyond that necessary to maintain oneself and one’s family in modest fashion should revert to the public “by whose laws it was created,” by means of very high luxury and inheritance taxes. Thomas Paine believed in redistribution of wealth, through the agency of government, from the more wealthy to the less wealthy. Alexander Hamilton believed in a very strongly centralized federal government. The two things that bound our Founding Fathers together and that, in the final analysis, they universally agreed on is that people can and should govern themselves through the use of their own reason and in service to their shared humanity, and that compromise was an essential tool in doing so, two things that the modern far right most vigorously rejects. In other words, the far right, by idolizing caricatures of the Founding Fathers, does the opposite of emulating them as rational and humane people striving to create an ever-more rational and humane society.

6) While power has indeed shifted from the states to the federal government over the course of our history, at the same time (and in part by that very mechanism), real protections against the potential tyranny of government have grown far stronger than they were even at the time of the founding of the nation, when states’ rights were paramount. As stated above, the first major step in that direction was the Constitution itself, replacing the toothless Articles of Confederation with a federal framework with a strong federal government.

Supreme Court Chief Justice John Marshall, at the beginning of the 19th century, made another step in that direction, instituting the doctrine of “judicial review,” which gives the Court the last word in legal and constitutional interpretation, thus ensuring that our short and ambiguous founding document has, for functional purposes, a single unambiguous interpretation that we accept as a matter of law.

The next major step was the Civil War, which increased federal power to protect the rights of individuals (in this case, slaves) from the oppression of more local (state) governments and private property owners. The New Deal nationalized our sense of economic purpose and shared fate, and our participation in WWII took that spirit abroad and ramped up our economy even further. The Eisenhower administration taxed and spent with impunity, and put in place an enormously beneficial infrastructure which led to decades of historically unprecedented growth. The Civil Rights movement, Court holdings, and Civil Rights and Voting Rights Acts all continued the use of the federal government to protect individual rights against state and private violation. Kennedy used the federal government to land a man on the moon, increasing our technological prowess in ways that have also been highly beneficial. And, finally, the federal government was instrumental in the development of information technologies which have created enormous prosperity.

In the meantime, the Civil Rights amendments to the Constitution and the Court’s interpretation of the Bill of Rights have led to an extraordinary extension of our liberties and of the vigor of their protection. The Bill of Rights came to be applied as a bulwark against state and local as well as federal intrusions of individual rights and liberties. The provisions came to be read with increasing rigor, requiring ever greater due process protections (which the faux-liberty-loving right have generally opposed with equal vigor), discovering a penumbra “right to privacy” that isn’t actually explicitly stated in the Constitution, and, in general, providing ever increasing protections for individuals against governmental exercises of power.

But rather than rejoice in this advance of liberty and prosperity, the right imagines that any intrusion on private property interests and their hoarding of private wealth is the real affront to individual liberty and human rights, just as their slave-owing ideological forebears did.

Part III. Morality, Humanity and Self-Congratulatory Historical Revisionism.

1) Right-wingers dismiss the plight of the poor, most of whom work long hours in low-paying jobs, as a function of their own defects and laziness, and insist that it is morally unacceptable for us as a society to assume any shared responsibility to address social issues such as poverty, hunger, homelessness, the special needs of the disabled, and unnecessary and unjust human suffering in general.

2) They do so despite the fact that every other developed nation on Earth has done a far better job than us of reducing poverty, reducing economic inequality, and reducing the myriad social problems associated with poverty and economic inequality.

3) They revise history so as to define every historical movement that is now broadly condemned to have been “left-wing movements,” such as their conversion of Nazism –a political ideology and regime which hated communists, labor unions, intellectuals, journalists, the poor, and “foreigners” living within the country, favored policies which concentrated wealth and power into constitutionally and democratically unconstrained corporate hands, and relied on an ultra-nationalism stoked up with lots of jingoism and “patriotic” rhetoric and imagery– into a left-wing movement, and their main argument why this is so is because “National Socialism” has the word “Socialism” in its name (much as the German Democratic Republic, or East Germany, a Soviet client state, must have been a Democratic Republic, since it’s right there in the name, right?).

4) They revel in the (accurate) facts that the Republican Party freed the slaves while the Democratic Party was closely associated with the KKK, always implying that that alignment continues today. They neglect to mention (or recognize) that, in the wake of The Civil Rights Act of 1964, which LBJ (a Democrat) was as closely associated with as Obama is with The Affordable Care Act (“Obamacare”), southern whites (and northern white racists) abandoned the Democratic Party en masse and migrated to the Republican Party, which is why implicit and explicit racism now resides almost exclusively in the Republican Party, with the map of Tea Party strongholds closely corresponding to the map of the Confederacy, and with so many Tea Party policy positions containing so much implicit racism (e.g., voter suppression laws, opposition to any form of affirmative action, hyperbolic disdain for the first African American president, contempt for Latin American migrants, etc.).

Part IV: Guns, Violence, and a Reactive rather than Proactive Society.

1) The United States has the second highest homicide rate among 36 OECD nations (beaten only by Mexico, which “benefits” from a constant flood of our firearms crossing the border to fuel their problem), from 2 to 25 times the homicide rate of 33 of the 35 other OECD other nations.

2) In both domestic comparisons of homicide rates across all jurisdictions and cross-national comparisons of homicide rates in developed countries, there is a positive correlation between per capita legal gun ownership and homicide rates.

3) The overwhelming majority of firearms used in the commission of crimes in The United States are put into circulation by initially being legally purchased in those states with the laxest regulations, and entering the black market from there, through which they are distributed to all locales in the country due to the complete absence of any obstructions to the transportation of good across state and municipal borders.

4) As a statistical fact, a legally, privately owned firearm is many times more likely to be involved in EACH of the following than to be successfully used in self-defense: suicide, accidental shooting death, mistaken shooting death (not an accidental discharge or hunting accident, but an intentional shooting at an innocent person mistaken for an intruder or a threat), crime of passion and use as part of a cycle of domestic violence.

5) As a statistical fact, a firearm in the home has a greater likelihood of being the instrument of death of a member of the household or of an innocent visitor than to be used in self-defense, and the owner of a firearm is more likely to be the victim of gun violence than a non-owner of a firearm.

6) We, as a nation, have the highest absolute number and highest percentage of our population incarcerated of ANY nation on Earth, making us in a very literal sense the least free nation on Earth.

7) This high incarceration rate is in part a function of a right-wing retributive orientation, which believes that the world is neatly divided between the “good guys” and the “bad guys,” and that if the good guys are just better armed against the bad guys, and lock the bad guys up or execute the bad guys, we’ll be a more peaceful and law-abiding society as a result.

8) The right, in other words, believes that the more we threaten one another –with decentralized deadly violence, with incarceration, with capital punishment– the more we will reduce violence against innocent victims, despite the empirical evidence that the opposite is true.

9) When an unarmed black teen walking home from the store (Trayvon Martin) was shot to death by an armed vigilante out looking for people to “defend” himself against (George Zimmerman), the right tried to dismiss this as irrelevant to the question of whether being an armed society of fearful and angry people out looking for people to “defend” themselves against is really such a good idea. They insisted that if it was legally self-defense in the moment of the use of deadly force (as it may or may not have been), then there can be no basis for criticizing the policies and ideology that encouraged the creation of the need to use deadly force, neglecting to recognize the fact that the entire encounter was a function of Zimmerman choosing to go out with a gun and look for people to “defend” himself against, and neglecting to notice the implications of his choosing to “defend” himself against an unarmed black teen walking home from the store. Following this incident, numerous right-wing posts on Facebook showed “scary” black criminals as some kind of a justification for whites going out with guns, pursuing unarmed black teens, and shooting them to death.

10) Those societies that have a more proactive and less reactive orientation –that recognize that we affect the propensity and ability to commit violent acts by the cultural milieu that we create together, that recognize that taking better care of one another and providing more social justice and less destitution, and making access to instruments of deadly violence less rather than more easy , by reducing the flood of instruments of deadly violence and the idolization of instruments of deadly violence which in part define our society— have far lower rates of deadly violence than we do, far lower rates of incarceration, far lower rates of poverty and other social ills, healthier and (according to self-report survey studies) happier populations.

11) Unfortunately, the far-right in America insists that to recognize our interdependence, to be an aspirational and hopeful rather than fearful and angry society, to be proactive and caring rather than reactive and retributive, would be an affront to their “liberty,” and thus opposes such progress in an obviously preferable direction, a direction which is more humane and productive and life-affirming.

Part V: Their Ideology’s Historical Predecessors.

1) The abuse of the concept of “liberty” to mean the liberty to benefit disproportionately from an unjust system which results in a grossly unjust distribution of wealth and opportunity, the identification of the federal government as a threat to that “liberty” and a tyrant because of it, is an ideology that has existed as long as our country has existed.

2) This conflation of the concepts of “liberty” and “property,” and the related reduction of “liberty” to a socially irresponsible license to exploit and oppress others for one’s own benefit, was originally the ideology of Southern Slave owners, who insisted that their liberty to own slave was being threatened by the tyrannical federal government, an ideology explicated in John C. Calhoun’s “Union and Liberty,” in which he argued that the “minority” (southern slave owners) had to be protected from the majority who were trying to infringe on their “liberty” to own slaves.

3) It continued to be used by Southern Segregationists, who argued that any attempt to end Jim Crow and ensure the civil rights of discriminated against groups would be an infringement on their freedom.

4) In fact, when LBJ was instrumental in the passage of the Civil Rights Act of 1964, the result was the movement of racists from the Democratic Party to the Republican Party, where they now reside.

5) Rand Paul said that he would not have been able to support the Civil Rights Act of 1964. The abolition of slavery (even to the point of having to use years of military force) and the passage of laws protecting African Americans and others from discrimination in the public sphere were both federal governmental exercises of power.

6) The Right currently favors Jim Crow-like voter suppression laws based on a discredited pretext, dismisses as irrelevant the shooting death of an unarmed black teen walking home from the store by an armed vigilante out looking for people to defend himself against, opposes laws which address a historical legacy of an inequality of opportunity in America which disproportionately effects those categories of people who have been most historically discriminated against, speak in words and tones highly reminiscent of our nationally embarrassing McCarthyist witch trial era, and, in general, demonstrate that they are simply the current incarnation of an old historical perennial.

7) When confronted by those who disagree with them, people they constantly vilify and refuse to engage in any constructive national discourse with, they react with great hostility, their primary argument generally being that the act of presenting the factual and logical and moral errors in their ideology to them is an insult that cannot be tolerated.

Part VI: Their Short-Sighted, Socially Disintegrative and Globally Destructive Ideology.

1) Those on the far-right dismiss as a bastion of liberal bias precisely those professions that methodically gather, verify, analyze and contemplate information, thus insulating their dogma from any intrusion of fact and reason. (It’s no wonder, then, that only 6% of American scientists self-identify as Republican, and only 9% as conservative, compared to 55% as Democrat and 52% as liberal. 14% identify themselves as “very liberal,” over 50% more than those who identify themselves as merely “conservative.)

2) By doing so, they are able to dismiss scientific insights into the potentially catastrophic impact we are having on global natural systems through our unchecked accelerating exploitation of Nature in service to our immediate appetites and avarice, an exploitation which is converting us from fellow symbiotes in a sustainable biosphere into deadly parasites killing the host on which we are feeding.

3) Consistent with the general tone and tenor of their entire ideological package, this rejection of methodological thought and short-sighted commitment to immediate self-gratification, at the expense of others, at the expense of our planet, at the expense of our future, is an expression of a primal unmindfulness rather than the more mindful engagement with the world that we are capable of. It is a vestige of primitive inclinations rather than a progress into a more fully conscious existence on this planet. It is the rejection of the shared human endeavor that had begun to define us, a shared reaching for what we are capable of creating together, a shared commitment to reason and humanity.

Conclusion.

This is, of course, a very partial list of the logical, factual, and moral fallacies that define the modern Far-Right. It is a single folly comprised of innumerable dimensions, including the failure to invest in children and families and communities, to value the health and welfare of our population, to have compassion and respect for those who migrate towards opportunity and do our hardest and least pleasant jobs for us for the lowest wages. It includes the disdain for gays and lesbians and transgender people, for Muslims and atheists and all those who differ in any way which triggers any number of deep and hateful bigotries. It includes the movement for an American Theocracy similar to those in the Middle East, in which Fundamentalist Christians strive to turn the state into a vehicle for their tyrannical religious fanaticism.

All of these multiple dimensions of far-right-wing folly and barbarism are part of a single, coherent package, an ideology of fear and hatred, of a variety of in-group/out-group biases and bigotries, an ideology which insists that we must not govern ourselves in ways which promote human welfare but only in ways which react brutally to the failure to do so, an ideology which eschews more effective and less costly preventions in favor of less effective and more costly reactions to problems left to fester and grow. It is an ideology which refuses to allow us, as a society, to invest in our future, to recognize our interdependence and our responsibilities to one another as human beings, and to work together intelligently and humanely in service to our collective welfare.

They’re on the wrong side of fact, the wrong side of reason, the wrong side of morality, and the wrong side of history. And they’re smug about it. We, as a nation and a world, do need a moderately conservative voice to be a vital participant in our national dialogue, but we all need to subordinate such ideological leanings to a shared commitment to being rational and humane people, wise enough to know that we don’t know much, working together to do the best we can in a complex and subtle world. While all of us fall short of that commitment to some degree and at some times, when factions form that demonstrate a consistent determination to be the diametrical opposite of rational and humane participants in a shared national endeavor, those factions become the problem we must solve rather than participants in our effort to solve it.

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Here is my most recent comment on the conservative gun-idolater thread that has inspired many of my recent posts, in response to the somewhat correct allegation that it has devolved into nothing more than a shouting match:

A shouting match between fact and reason, clearly stated, on the one hand, and blind fanatical dogma, repeated endlessly despite being debunked (e.g., the constant insistence that any and all gun regulation is by definition an infringement of your Second Amendment rights, despite a universal rejection of that notion by Constitutional scholars, including uber-conservaitve Justice Scalia, as quoted above), on the other. You live in a world of fabrication in service to crude prejudices and bigotries and belligerence toward the world, and abhor those who stand for reason and for humanity. You invent your own caricature of the law and of the Constitution, your own caricature of history, your own reality, and then laugh like jackals when confronted by the reality you have simply defined out of existence.

You can persist, pretend, and posture to your heart’s content; it will only serve to convince those who are already as lost as you in your own shared arbitrary ideological delusions that the idols of your tribe are undisputable absolute truths, and to convince those who are not that you are yet another dangerous, violent cult posing as a political ideology. The fact that you are a large and well-established cult does not make you a benign one, or even one of mixed value. You are organized ignorance and brutality, a familiar perennial of human history, always popping up anew, with one shared constant: Rabid anti-intellectualism. You share that with the Inquisition, the Nazis, the Soviets, the Khmer Rouge, and Islamic terrorists, to name a few. You are on the side of ignorance and tribalistic ideological brutality, in opposition to reason and humanity.

The most telling distinction is that, by your own account, precisely those professions that methodically gather, verify, analyze and contemplate information are the ones you dismiss as bastions of liberal bias, without ever addressing why that would be so. Why would there be a positive correlation between the professional processing of fact and logic, on the one hand, and liberalism, on the other? The answer, while complex, is rooted in the fact that active and curious minds, immersed in observation and thought and the use of disciplined reason, tend to arrive at conclusions diametrically opposed to your dogma, because your dogma stands for the opposite of such modes of thought.

You stand in opposition to fact and reason and a commitment to humanity, which is why you simply ignore and dismiss the avalanche of statistics debunking the obviously absurd notion that there is no connection between our overabundance and overly easy access to instruments of deadly violence in comparison to other developed nations, and our extraordinarily high rates of deadly violence in comparison to other developed nations.

And the fact that there is a statistical correlation between laxity of gun laws internationally and homicide rates? The fact that the overwhelming majority of guns used in the commission of crimes in the US are put into circulation by being bought in those states with the laxest regulations? The fact that for every use of a gun in self-defense, one is used multiple times in a suicide, multiple times in a crime of passion, multiple times in an accidental shooting; the fact that a gun in the home INCREASES the likelihood of a member of that householder dying of a gun-inflicted wound; the fact that a gun-owner is more likely to be shot than a non-gun-owner, are all, to you, “spurious statistics” that you dismiss with the casual misuse of the word, thus never having to consider or acknowledge inconvenient realities. That’s not rational. It’s the intentional preservation of ignorance.

No, the problem is not just, or even primarily, a function of our gun culture; it is, more broadly, a function of extreme individualism, of the reactive rather than proactive orientation to our shared existence that you impose on us, of the social disintegration that you confuse for “liberty.” Our Founding Fathers were committed to the construction of a wise and just society; you are committed to its destruction.

The fact that you are certain that the Constitution verifies every last ideological conviction you happen to hold, and that therefore the thousands of legal and constitutional scholars over the last two hundred years who would and have argued subtle and complex points about that Constitution and how to interpret it are all wrong, are all irrelevant, because you know the one absolute truth, is the voice of ignorance, the voice of fanaticism, the voice of irrationality. You argue legal positions that are dismissed or challenged by almost all legal scholars, economic positions that are dismissed or challenged by almost all professional economists, historical positions that are dismissed or challenged by almost all professional historians, and not only commit the intellectual error of clinging to those positions as favored by reason, but insist that they are incontrovertible absolute truths. That is not the voice of reason, but rather of irrationality.

Of course you couldn’t stop engaging me, because you can’t stand to leave fact and reason disinterred and visible to all any more than I can stand to let you shovel unchallenged the dirt of your ignorance and barbarism over it once again. You have to bury the facts; you have to bury the rational arguments; you have to bury any authentic understanding of human history or economics or sociology; you have to bury any humane orientation to the world, because none of those supports your blind ideological fanaticisms.

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The following is a response to a Facebook commenter who insisted that legislators are no longer obeying the dictates of the Constitution:

First, we have to start with a clearer understanding of the real nature and purpose of the US Constitution.

Despite right-wing claims to the contrary, it’s purpose was not primarily “to limit the federal government,” but rather to define and strengthen it. Yes, part of defining it involves limiting it, but the modern notion that that was the primary purpose is, in a sense, the exact opposite of the historical reality. The Constitutional Convention was called due to the inability of the toothless Articles of Confederation to bind the nation together and overcome internal collective action problems. The Constitution was drafted to strengthen the federal government and impose a consolidating federal rule of law that had teeth. “The Federalist Papers,” which are a series of op-ed pieces by Madison, Hamilton, and Jay arguing for ratification of the Constitution, are mostly arguments about why a strong federal government is necessary.

The drafters were not all of like mind, but were in fact sharply divided on multiple issues (slavery being the most famous one). Franklin, for instance (who was the senior statesman of the new nation and second in respect commanded among the Founding Fathers themselves only to Washington), favored very high inheritance and luxury taxes, and a redistribution of private wealth beyond that necessary to maintain oneself and one’s family in modest fashion to the public sector for use in public projects and benefits (not to the poor, a form of public redistribution Franklin didn’t particularly favor). Hamilton and Adams favored a very strong central government, with a national bank and national control of economic and fiscal policy. So the modern reduction of the Constitution, beyond its letter, to one ideological camp’s insistence of what “the intention of the founding fathers” was is a convenient fiction and not very helpful.

The drafters of the Constitution did not generally expect it to survive more than a generation or two, knowing that changing times and circumstances would increasingly challenge its relevance. The fact that it has survived 225 years is a miracle, and should be considered with an awareness of how dramatically challenged and attenuated the foresight of these brilliant but merely historical and mortal individuals really has become.

The Constitution is not a precise document. It is very short and general, intentionally, so that legislators then and in the future would have room within it to operate and respond to circumstances. Many terms are not precisely defined (such as “due process,” for instance); there is wide space for interpretation of many clauses. The jurisprudence of this nation is a function of that ambiguity and that range of possible interpretation.

Ironically, one of the least ambiguous clauses in the Constitution is one that the right is most eager to re-interpret out of existence. Article I, Section 8, clause 1 states, without qualification, that Congress is empowered to tax and spend in the general welfare. This clause clearly means that it is left to our democratic (“electoral,” if you prefer) political processes and not to the Constitution or to foundational law to determine how much and in what ways citizens are taxed (as long as it is uniform) or how much or in what ways government spends in service to the general welfare. And yet the right constantly cites taxing-and-spending as their evidence of a “tyranny” that is an affront to our Constitution. It’s one of many ideological absurdities.

Because of this ambiguity, the Constitution would have been nothing more than a political football, a Rorschach Test for each partisan or ideologue to imprint their own preference upon, and thus something the meaning of which no one ever agreed on and therefore that each party, once in power, would interpret and implement according to their own preferred –and frequently highly stretched- interpretation. In other words, without a procedural anchor for interpretation, without a “last word” (short of the public’s “last word” to amend it), there could have been no functioning Constitution at all. Thankfully, Chief Justice John Marshall, in Marbury v. Madison, at the beginning of the 19th Century, managed to institute the procedural anchor of “judicial review,” which empowered the courts, and, as a last resort, The Supreme Court, with the final authority in Constitutional interpretation. By that mechanism, we have an “unambiguous” Constitution, at least in the functional sense.

And that brings us to your error. You think that the state and federal legislatures no longer are operating within the constraints of the Constitution because your own interpretation, ideologically tinged and at times grossly distorted, does not conform to current practices. But you don’t have the final word on legal and Constitutional interpretation; the Court does. And while I disagree with many of its holdings, they are usually if not always legally defensible, and usually if not always very thoroughly reasoned and articulated. (I might endorse one more layer of oversight, in which the academy of constitutional scholars has some ability to call the Supreme Court to task on any particular holding, if it appears to be an egregiously indefensible holding, due to the possibility of a completely politicized Court, no longer committed to the faithful application of legal analysis to questions of law, and a need to be vigilant against that.)

What you prefer, that the Constitution always be interpreted as you see fit, is not a defense of our Constitution, but rather a frontal assault on it, because every ideologue of every stripe desires the same thing, though their respective interpretations are in diametrical opposition to one another. A real commitment to our Constitution, and to the rule of law that it forms the anchor of, is to also remain committed to our procedures for giving that Constitution a functional viability, the most crucial of which is judicial review.

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There is much ado about President Obama’s recent statement “If you’ve got a business, you didn’t build that.” The overwrought right is abuzz with angry indignation. How dare he! they shout in unison, aghast that this evil communist could so thoroughly declare war on private enterprise. Let’s take a closer look.

First, it helps to have the entire quote before you:

If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. If you’ve got a business, you didn’t build that. Somebody else made that happen.

It’s a bit impolitic, a bit overstated. But how far off is it?

As I said in The War of American Interdependence, there are two cognitive frames in competition here, one which thinks that we are fundamentally, ontologically “individuals,” fundamentally mutually independent, and one which recognizes that we are fundamentally, ontologically members of a society, fundamentally interdependent. We think in languages we didn’t individually invent, using concepts and conceptual tools we didn’t individually invent. Every aspect of our lives implicates and depends on countless others, no matter how much of a rugged individualist one may be: Few frontiersmen built their own firearms, and, if some did, they did not mine the ores that provided the materials for it. And whatever they did, in almost all cases, they learned how to do it from others.

Most of us rely on one another to a far greater extent than that: Most of us don’t grow our own food, or, if we do, we don’t build the tractors and drill for the oil and do myriad other things involved in the enterprise. Most of us don’t make our own clothes, or build our own homes, or make our own tools, or produce our own electronic devises, or, if we do some, we certainly don’t do all. The market isn’t an expression of our mutual independence, but rather a social institutional form which helps deepen and facilitate our fundamental interdependence.

Our laws, as well, are an expression of our interdependence. We forge them in the light of what that interdependence demands of us. The developments of the modern era that led to market economies and popular sovereignty framed by written constitutions with carefully delineated rights and powers are part of the evolution of our interdependence. The concept of “liberty” itself is an expression of our interdependence, of the discovery of both increased vitality and increased humanity achievable by freeing up individual initiative and creativity to as great a degree as possible, while still recognizing and working within the framework of our fundamental interdependence.

Obama was talking about exactly that. It’s not some crazy idea, it’s not even really debatable: It’s a fundamental fact of our existence. We thrive through coordinated efforts and actions, through participation in a society with divisions of labor and mutual reliance on one another. The ideology currently in vogue which attempts to erase that fact from our awareness is pernicious and destructive; it attempts to redefine private wealth as attributable to nothing other than private actions, when that’s simply not true. Ben Franklin, unsurprisingly, got it right: Wealth is as much a function of the laws and markets and other social institutions that we forge together, and of the efforts of countless others channeled through those social institutions, as it is of individual effort, because without the former our own efforts have no framework within which to achieve their ends.

So, no, even in the more exceptional rather than more common instance in which a business is built up without any element of relative privilege (the differential material and social inheritances that we draw at birth) having advantaged the entrepreneur, they are not solely responsible for the creation and success of that business; the myriad other human efforts that it implicitly depended on are as well. And the market does not magically reward all of those efforts in ways which serve the ultimate goal of continuing to create the most robust, fair, and sustainable political economy human genius is capable of.

Those who are adamant that human genius cannot intrude on some imaginary pure and absolute individual “liberty,” that to do so is “social engineering” or “communism,” are rather remarkably ignoring how that individual liberty was legally constructed in the first place. Our own Constitution is an act of “social engineering,” and, in the way that too many now use the word, a “communist” plot. Indeed, the framers had to argue that we needed a government strong enough to facilitate effective collective action in our collective interests, “The Federalist Papers” frequently seeming to forecast the later invention of “game theory” and the recognition of what has since come to be called “collective action problems.” (See Collective Action (and Time Horizon) Problems).

The right claims to rever our Constitution and our Founding Fathers, and yet can’t seem to recognize that both acknowledged our interdependence. Art. I, Section 8, Clause i of the United States Constitution empowers Congress to tax and spend in the general welfare, meaning that “what’s mine” isn’t just mine; the public also has some claim on it. How much of a claim isn’t specified; that’s for us, as the popular sovereign, to determine and redetermine, in the light of growing knowledge and udnerstanding.

And as for the Founding Fathers, their views differed. Jefferson’s and Madison’s are frequently cited, but Ben Franklin’s are generally ignored, even though Franklin alone among them helped to draft and sign every single one of our founding documents and was the undisputed senior American stateman at the birth of this country. Franklin maintained that any private wealth beyond that need to sustain oneself and one’s family “is the property of the public, who by their laws have created it” (Walter Isaacson, “Benjamin Franklin: An American Life,” Page 424, quoting Franklin).

It’s not about denigrating individual effort and initiative, or failing to respect the vital role they play in our shared social existence. I can only speak for myself, but I’ll tell you clearly: I respect and admire individual effort and initiative, and recognize it as absolutely vital to our collective welfare. It’s not about failing to recognize the need to frame our shared social existence in ways that take that into account, and work to liberate rather than stifle such individual effort and initiative: I am adamant that it is imperative that we recognize the importance of that dimension of our shared existence in every public policy debate.

But it is not the ONLY dimension that we need to consider; it is not the ONLY value that we must respect and maximize. Our nation today has the highest gini coefficient (statistical measure of economic inequality) of any developed nation on Earth, and the statistical reality of one’s socioeconomic status at birth predominantly determining throughout life is inescapable (see http://www.americanprogress.org/kf/hertz_mobility_analysis.pdf). This is not only unjust, but also systemically dysfunctional: The two most catastrophic economic collapses of the last 100 years in America were immediately preceded, by a matter of months, by the two highest peaks in the concentration of wealth in America in the last 100 years, in 1929 and 2008, respectively.

Such gross inequality of opportunity and in the distribution of wealth hurts us all, and violates fundamental American values of fairness. It is one of the challenges facing us as nation, that we have to meet and address as a nation. It’s not wrong to remind those who succeed by some combination of individual effort and good fortune, facilitated, in either case, by our entire social production function, that they succeeded by virtue of their membership in this society, and that their success does not come without reciprocal responsibilities to the society that made it possible.

And that was very clearly and explicitly Ben Franklin’s view as well as mine (in fact, his was a stronger statement of it), so if you want to vilify me for daring to recognize that the public has some claim on private wealth, be sure to vilify him as well.

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(This essay originated as a response to a Libertarian commenting on another Libertarian’s Facebook page, making the familiar argument about why Jeffersonian democracy, emphasizing minimal government, was both the intention of our Founding Fathers, and is the best form of government possible.)

As you might have gathered, I like the dialectic, so here’s both the antithesis to your thesis, and the synthesis of the two:

Adams, Franklin, and Hamilton wanted stronger central government than Jefferson did (thus, the first incarnation of our perennial, unintended and undesired,l two-party system was Jefferson’s Democratic-Republicans v. Hamilton/Adams’ Federalists, the latter pretty much meaning the opposite of what it does today: a strong federal government). The country was a product of these competing views, and has continued to be carved on the lathe of a similar dichotomy throughout its history, to excellent effect. The Constitution itself was the first victory for the “stronger federal government” side, requiring convincing a population that considered each state a sovereign…, well, “state,” in the original and still used sense of a sovereign political unit.

These arguments to a reluctant public were made, most cogently and famously, in The Federalist Papers, a collection of essays by Alexander Hamilton, James Madison, and John Jay arguing for the need to create a sufficiently strong central government. This was in response to the failed Articles of Confederation, which did not provide a sufficiently strong central government.

The history of the country ever since has been one of a punctuated growth in power of the central government. I know that I just stated your major contention, but I don’t see it as a necessarily bad thing, or a betrayal of our founding philosophy: It is, rather, the articulation of lived history with founding principles, since the latter guided the process and form of the former. We retained strong protections for individual rights within the context of that strong federal government: Free speech, freedom of assembly, freedom to organize, freedom of press, freedom of religion, protections from police (i.e., state) overreach into our private lives.

In fact, the stronger federal government has been primarily responsible for, and grew in response to the demand for, the extension of those protections of individual liberty; extending them to categories of people to whom they had been denied, and extending them to protect people from the overreaches of individual states as well as the federal government.

The genealogy of Libertarianism, and the argument on which it depends, while exalted by its association with Jefferson, is in fact characterized more by its defense of inequality and injustice (see also The History of American Libertarianism). From the ratification of the Constitution to the Civil War, it was the argument of slave owners resisting the abolition of slavery, the southern statesman John C. Calhoun famously arguing in Union and Liberty that a commitment to “liberty” and to the protection of “minorities” required the protection of the “liberty” of the “minority” southerners to own slaves! This argument was the argument of the “states’ rights,” small federal government ideological camp. That camp lost by losing the Civil War and by the abolition of slavery.

From the Civil War to the Civil Rights Era, the states’ rights, small federal government ideology was invoked to preserve Jim Crow and resist the enforcement of Constitutional guarantees to protect the rights of minorities (in the modern sense of the word), especially African Americans. That camp lost by a series of Supreme Court holdings (most notably Brown v. Board of Education) and the passage of The Civil Rights Act of 1964 (by which President Lyndon B. Johnson knowingly and willingly lost southern whites, who had until then formed a major branch of the Democratic Party, to the Republican Party, where they have since resided, and continue to comprise a large portion of the adherents to this perennial ideology).

Contemporary Libertarianism is the logical next step in this progression, after having resisted the abolition of slavery in the name of “liberty,” and the passage of Civil Rights legislation and Court holdings in the name of “liberty,” it now opposes the further confrontation of the legacy of that racist and discriminatory history by insisting, falsely, that “we’re all equal now, so any attempt to address, as a nation, the injustices still embedded in our political economy and culture is a deprivation of the liberty of those against whose interests it is to do so.” In other words, just as in those previous incarnations throughout our history, this particular concept of “liberty” still means “my liberty to screw you.”

Libertarians, conveniently, don’t see it this way, because it is a passive “screwing,” one that involves leaving in place institutionalized, but not legally reproduced, inequities and injustices. It is, as it has been before, the insistence that “we’ve done enough, and need do no more,” just as the defenders of slavery considered acquiescing to a national constitution was enough, and the defenders of racism considered acquiescing to abolition was enough, modern Libertarians think that acquiescing to a formal, legal end to racial discrimination is enough,and that it is an affront to their “liberty” to attempt to address as a nation, as a polity, the non-legally reproduced but deeply entrenched inequality of opportunity that persists in our country (see, e.g., The Paradox of Property).

This national commitment to ever-deepening and ever-broadening Liberty, including equality of opportunity without which liberty is, to varying degrees and in varying ways, granted to some and denied to others, involves more than just the African American experience: It involves women, Native Americans, gays, practitioners of disfavored religions (such as Islam), members of ethnic groups who are most highly represented in the current wave of undocumented immigration (such as Hispanics), basically, “out-groups” in general. It’s no coincidence that Libertarianism is so closely linked to Christian Fundamentalism and militant nationalism: It is an ideology that focuses on a notion of individual liberty that is, in effect and implementation, highly exclusive and highly discriminatory. (There are, it should be noted, branches of Libertarianism which are more internally consistent, and, at least, reject these overt hypocrisies, while still retaining the implicit, passive, retention of historically determined inequality of opportunity described above.)

History has demanded increasing centralization of powers for other reasons as well: an increasingly complex market economy with increasingly difficult-to-manage opportunities for centralized market actors to game markets in highly pernicious ways (due to information asymmetries); increasingly pernicious economic externalities increasingly robustly generated by our wonderful wealth-producing market dynamo (see Collective Action (and Time Horizon) Problems and Political Market Instruments); in general, a complex dynamical system that is highly organic and self-regulating, but not perfectly so, and without some pretty sophisticated centralized management is doomed to frequent and devastating collapse.

(This is why, by the way, every single modern developed nation, without exception, has a large administrative infrastructure, and had in place a large administrative infrastructure prior to participating in the post-WII explosion in the production of wealth. The characteristic that Libertarians insist is antithetical to the production of wealth is one of the characteristics universally present in all nations that have been most successful in producing wealth.)

The tension between our demand for individual liberty and minimal government, on the one hand, and a government adequately large and empowered to confront the real challenges posed by our increasingly complex social institutional landscape on the other, is a healthy tension, just as the tension among the branches of government is a healthy tension. We don’t want one side of any of these forces in tension to predominate absolutely: We want the tension itself to remain intact, largely as it has throughout our history. Through it, we took the genius of the Constitution, and extended it to constraints imposed on state and local as well as federal government, recognizing through our experience with the institution of slavery that tyranny doesn’t have to be vested in the more remote locus of government, and the resistance to it doesn’t always come from the more local locus of government. And through it, we took the genius of the Constitution, and extended it through the lessons of history and the pragmatic demands placed on our national self-governance by the evolution of our technological and social institutional context.

The pragmatic, moderate, flexible, analytical implementation of our ideals that has resulted, protecting the true liberties that we treasure, extending them to those who were excluded, deepening them in many ways for all of us, and allowing, at the same time, for us to act, as a polity, through our agent of collective action (government), in ways that serve our collective interests, is what serves us best, and what we should remain committed to, with ever greater resolve.

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(The following is a response to an extreme Libertarian who posted the New Hampshire Constitution’s endorsement of a right to revolution as a justification and encouragement to his ideological fellow travelers.)

The only problem is that you are “rebelling” against a government that is both Constitutional and, within those constraints, democratic. You resent the will of the majority, which differs from yours, and misname the will of the majority, with Constitutional restraints to protect minorities, “tyranny.” By your definition, any use of government of which YOU disapprove is automatically tyranny. Rather, you would wish to overrule the will of the majority, and discard the Constitution, in order to impose your radical, economically illiterate, ahistorical, impractical, inegalitarian, and nationally self-destructive ideology on the rest of us. You can utter all of the magical rhetorical incantations you want, but it remains what it is: A cultish, glassy-eyed fanaticism rearing its ugly head in our own country and our own time, as it has reared its ugly head in so many other times and places.

The government you are rebelling against is Constitutional because your main objection, to the taxing and spending of Congress, is a Constitutionally granted power. Article I, Section 8, Clause i of the United States Constitution grants Congress the unlimited power to tax and spend in the general welfare. You can argue about what constitutes the general welfare, and, in perhaps some extreme instances, can find a Supreme Court that would hold that some use of that power was too clearly NOT in the general welfare to pass Constitutional muster (e.g., Congress taxed and spent in a manner which was unambiguously and incontrovertibly only on the welfare of the members of Congress), but none of the programs that are in controversy fall into that range. The Constitutional limitation on Congress’s power to tax and spend in the general welfare is the electoral system, by which we can fire those members of Congress whom we feel have abused that power, or have not executed it as faithful agents of our will and interests.

The government you are rebelling against is democratic, because the people making the decisions with which you disagree were elected according to our electoral process, administered with a relatively high degree of legitimacy and precaution against fraud and abuse. You oppose the will of the majority, appropriately constrained by Constitutional protections of minorities, and wrap that anti-Constitutional, anti-democratic inclination to impose your own factional will on all others, in defiance of both our Constitution and our electoral process, in a faux-nobility and patriotism, though it is, in fact, exactly the opposite.

The government you are rebelling against is the one that has been honed by the lathe of history, in part through a Civil War and Civil Rights Movement which institutionalized the recognition of the fact that minorities and individuals don’t just need to be protected against the tyranny of the federal government, but also against the tyranny of state and local governments, and, in some instances, the tyranny of private corporations or individuals (e.g., against racist employment discrimination).

And, ironically, the consequences of your efforts, to the extent that they are successful (whether through legal or extralegal means), is the increase of real tyranny, not only by rolling back such protections, not only by reducing our national commitment to equality of opportunity, but also by transferring de facto political power from those public institutions which are (imperfectly) Constitutionally and democratically constrained, to those powerful private institutions that are not.

This is a subtle and complex world we live in, in which the lathe of history works on the raw material produced by our Constitution and by our basic values as a nation. The development of our political economy, of our administrative state, of our need to rein in not just governmental power but also private corporate power which in many instances has grown to the size of medium-sized nations, are not developments to be tossed away because a group of blind ideological fanatics believe that there is some single platitude which overrules all other knowledge and historical experience. You counsel for a kind of imposed mass stupidity, a quasi-religious fanaticism which rejects all knowledge in deference to generally misinterpreted sacred documents and ancient prophets. You may succeed; there’s enough lunacy in this country for that to be a real possibility. But to the extent that you do, it will be an immeasurable tragedy for those hundreds of millions who must suffer the consequences.

On this 100th aniversary of the tragic sinking of the Titanic, it seems fitting to write a tribute to that historic event, but one which takes what lessons it may offer and applies them to our own ship of state today.

A story on the PBS Newshour yesterday (Friday, 4/13/12; http://www.pbs.org/newshour/bb/media/jan-june12/titanic_04-13.html) about an interesting New Yorker article (“Unsinkable: Why We Can’t Let Go of the Titanic,” by Daniel Mendelsohn; http://www.newyorker.com/reporting/2012/04/16/120416fa_fact_mendelsohn) got me to thinking about the parallels between that ill-fated vessel, and our perhaps equally tragic nation. The parallels Mendelsohn drew were to Greek tragedy, to the themes of hubris, of Man v. Nature, of something glorious and admired and full of a sense of its own exceptionalism going down in flames, or icy waters, as the case may be. It is about too much smugness and too little pragmatism.

As Mendelsohn aptly put it: It’s too perfect, too much like a story, the “unsinkable” ship sinking on its maiden voyage. Like Oedipus, the flawless hero, swept up and sucked down by forces that grab hold of all those who eschew humility, the great Titanic was doomed by its own sense of perfection, or the sense of those who had invested their identities into it. It was about the limits of technology, about class and injustice, about the bracing, icy reality confronting the dreamed up ideal. It was, of course, the ideal of unsinkability rather than the reality of unpredictability which sank.

The United States is, in many ways, “the Titanic Nation,” this great ship of state launched by the culmination of European development, by the Enlightenment and the Industrial Revolution, full of a sense of its own exceptionalism, bigger than life, “unsinkable.” We are still on our maiden voyage, for the first couple of centuries in the history of a nation is still its infancy. And we are careening toward the icebergs of our hubris, of our uncompromising belief in our own exceptionalism, in our scoffing at the demands of pragmatic reality in deference to the oversimplified ideal we believe will always trump it.

Despite what many say, despite what many cling to, despite the satisfaction it may give to entertain the notion, in the final analysis, America is not an ideal; it is a nation, a product of history, a living, breathing, thriving and striving and faltering and self-correcting society, a work in progress, an on-going challenge to be met with a modicum of humility and a heavy dose of pragmatism. And it is the increasing rather than decreasing loss of this awareness that sends us hurtling toward unseen icebergs, destined, perhaps, to collide with them and rip ourselves to shreds in the process.

But we have not collided yet. We have not sunk yet, and do not have to. We can regain our humanity, our recognition of being nothing more or less than a nation struggling with the challenges of thriving in a complex and subtle world, a nation guided by wonderful values and founding principals, but a nation that is not invulnerable because of them, or beyond improvement in deference to them. Sometimes, we need to correct our course, to re-chart our trajectory, to avoid the obstacles that those who designed and launched us could not possibly have anticipated. Their design, and the course they charted for us, remain our foundation, but they do not remain the limits of who and what we are.

There are those in America today, too many, too loud, too smug, too full of hubris and folly, too natonally self-destructive, who insist that we must not evolve, that we must not develop our political economy to confront the challenges of today, that we must not adapt and grow and steer our course through the ever-dangerous waters of history. There are those who offend the spirit and character of the brilliant but historical and fallible men who drafted our Constitution by reducing it to a shallow sacred document, stripping it of its meaning, stripping it of its intent, and seeing in it only a mirror of their own blind ideology, whether its specific clauses actually mirror that ideology or not. (See. e.g., Right-Wing New-Speak.)

There are those who insist that a century-old non-empirical Austrian economic philosopher got everything right, and the entire empirical and analytical discipline of economics as it has developed ever since has gotten everything wrong, and who claim that theirs is the only reasonable position imaginable, all others being error. There are those who are as lost in their own blind ideologies, as insulated from reason and evidence, as any Medieval Inquisitor ever was, and who insist that that is what America is, that that is what America was meant to be. And they are steering us straight toward those icebergs of human folly, of ignorance, of hubris, of believing that an act of admirable engineering, whether technological or social institutional, whether a historically unprecedented giant ocean liner or a historically unprecedented national Constitution, once accomplished, need no longer be piloted in response to the realities as they are encountered, and can not possibly fail if only left to barrel ahead blindly.

As the economist and dynamical systems analyst Brian Arthur noted in his wonderful book, The Nature of Technology, these feats of engineering, of historical innovation, are not faits accompli, but are rather always works in progress, always tested and honed and refined by the reality of life and the challenges that it poses. The brilliance of our nation is not that we got it right once and for all, and only must adhere to that perfect, unsinkable design, but rather that we accomplished something admirable on which we can build, which we can continue to steer, which will take us farther than we ever imagined if only we continue the work rather then rest on ancient laurels.

We are, indeed, a Titanic Nation. But ours is one Greek Tragedy whose ending hasn’t yet been written. We are the ones who will write it. We are the ones who will determine whether it is written by our hubris and folly, or by our wisdom and humility. We are the ones who will either steer it into the icebergs that lay before us, or will continue to navigate our way among them, refining our institutions and developing our humanity to confront a reality that was not part of or foreseen by our original design, but rather is a part of what continues to make us . . . or break us.

As I like to say, let’s write our story well.

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It’s not possible to fully understand American politics without understanding the language that is employed in political discourse, and how the terms are defined by those who use them. Interestingly, one American political faction has come to define all terms as precisely the opposite of what the rest of us have long understood them to mean.

Whereas some people, for instance, think that the word “liberty” refers to a lack of infringement on freedom of thought and action, and lack of intrusion on privacy, careful observation of how those on the Right use it reveals that we have all been mistaken all these years. Apparently, it really means:

1) allowing members of the dominant race, ethnicity, religion, and sex to impose their will on all others and to protect the privileges inherited from a history of oppressing and exploiting others;

2) facilitating the displacement of political power from the people, through their elected representatives, to private corporations unhindered by democratic processes or public accountability;

3) ensuring that individuals are as unprotected as possible from the greatest threats to their well-being, posed by organized others in service to an obscenely inequitable distribution of wealth and opportunity, while simultaneously ensuring that we react as vindictively and counterproductively as possible toward the impoverished and destitute;

4) fetishizing both privately owned instruments of violence and nationally organized acts of violence (as long as the perpetrator of the latter is one’s own nation); and

5) insisting on policies that have led to the incarceration of the highest percentage of any national population, and the highest absolute number of people, of any nation on Earth, bar none (making the United States, in the most literal sense, the least free nation on Earth).

More specifically, “liberty,” apparently, is a value which dictates that

1) Adherents of Islam who have engaged in no crimes nor done anything to draw suspicion should be placed under covert surveillance and have dossiers dedicated to them in order to ensure that any crimes they might commit in the future are pre-empted (otherwise known as “Ethnically and Religiously Exclusive Liberty,” or, more simply, “Police State Liberty”);

2) Impoverished people who migrate toward greater opportunity without governmental permission, or the children of such people who migrated with them as infants, should be rounded up and placed in detention centers, often subjected to poorly maintained facilities and poor treatment, until such time as they can be forcibly removed from the “land of opportunity” to which they migrated (Otherwise known as “Geographically Exclusive Liberty,” or “Fortress America Liberty,” or “‘If You’re Lucky’ Liberty”);

3) Women should be reduced to the legal status of human incubators, with no rights over their own bodies once they become impregnated, whether by their own choice or by force (otherwise known as “‘You’re a Toaster’ Liberty”); and

4) People who are sexually attracted to people of the same sex should be denied the kinds of legally and socially defined rights that those who are attracted to people of the opposite sex enjoy, because it as an affront to the ideal of “liberty” not to discriminate against those who are different from you in any significant way (otherwise known as “‘Liberty as long as we white Christian heterosexuals are okay with how you use it, but otherwise, not so much’ Liberty”).

5) Each of us has a God-given right to leave our home packing heat and looking for people to defend ourselves against, decide that an unarmed black teen in a hoodie innocently walking home from the store is just such a person, pursue them and initiate an altercation that leads to the armed person out looking for trouble shooting to death the unarmed black teen walking home from the store, and then complain bitterly whenever anyone points out that maybe, just maybe, that teen’s right to his life was greater than the shooter’s right to go out looking for people to “defend” himself against.

This imaginative definition of “liberty” is reminiscent of how this political faction’s historical predecessors used the word. For instance, John C. Calhoun, the famous Antebellum Southern politician, used the word “liberty” to refer to the freedom to own slaves, and “minority” to refer to those who believed that they had an inalienable right to own slaves, and was very strongly committed to protecting the rights and liberties of that embattled minority. In other words, to these neo-nullifcation-doctrine adherents, liberty means “my freedom to screw everyone else.”

Similarly, the venerable phrase “United States Constitution,” which to most of us means that document drafted by a group of very intelligent but historically contextualized propertied white men in 1787 in order to strengthen the federal government and overcome the disintegrative dysfunctionality of The Articles of Confederation which had preceded it, and which is the foundation of our rule of law, in reality refers to the complete disregard for the actual provisions of that document or to the rule of law established in accordance with those provisions. Rather, it refers to a strange, incoherent combination of Fundamentalist Christian theocracy, corporate oligarchy, and indifference to gross social injustices produced by current and historical distributions of privilege disproportionately favoring the racial, religious, ethnic and sexual orientation categories to which those who adhere to this imaginative interpretation of the phrase “United States Constitution” coincidentally belong.

For instance, Article I, Section 8, Clause 1, which grants Congress the power to tax and spend in service to the general welfare, in reality prohibits Congress from taxing and spending in service to the general welfare, the rest of us failing to understand that the Founding Fathers meant that Clause tongue-in-cheek, and that a literal, non-judicial-activist reading of the Constitution requires us to realize that it means the exact opposite of what it says.

Or, the First Amendment, which protects the right of each to adhere to and practice the religion of their choice, and ensures that the government does not favor any religion over any other, really means that the government must assiduously favor Christianity over all other religions, and decline to extend the same permission and accommodation to, for instance, adherents of Islam practicing their religion, because to do so would be to force good, all-American white Christians to endure people of other religions practicing non-Judeo-Christian religions in “our” country (not “their” country, because, of course, if they’re Muslim, then they’re not American…, right?).

“Liberty,” in Right-Wing New-Speak, means indifference, injustice, predation, violence and mass incarceration. “Freedom of religion” means Christian Theocracy and intolerance of any disfavored religions. The provision granting Congress the authority to tax and spend for the general welfare means that Congress is prohibited from taxing and spending for the general welfare. You almost have to admire such an impressive commitment to the complete inversion of reality.

So, if you find yourself driving a car with a right-wing ideologue riding shot-gun, and he or she shouts in a panic “Floor it!” …don’t. Hit the brakes instead. The wayward gay Muslim Hispanic pedestrian who wandered into your path will thank you for it.

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One of the great paradoxes of American history and society is that we are simultaneously a country founded by religious zealots committed to the promotion of religious zealotry, and a country established on Enlightenment principles committed to the creation and preservation of a secular Constitutional Republic. In an honest debate over which direction best serves current and future generations of Americans and humanity, I personally believe that there is no contest: Religious fanaticism and Theocracy are the authors of untold horrors in the world, and it is not a model to be emulated.

It’s true, of course, that some secular “religions” have produced the same horrible outcomes (Bolshevism is the iconic example), which leads to the wise conclusion that it is not the presence or absence of some conceptualization of the divine that renders an ideology destructive to human welfare, but rather merely an aura of absolutism, a belief that the complex and subtle reality of the world has been perfectly distilled into an easily grasped human ideology, and that no further discussion is required. It is not religion that is at fault, but rather blind dogma, absolute faith in some reductionist representation of how the world works and how we should interface with it.

Identifying this problem is easier than solving it. Humans have no choice but to conceptualize the complex and subtle reality of which we are a part in manageable ways, to reduce it to images and forms and packages that we can understand and work with. Our most sublime intellectual achievements do this as surely as our most shallow superstitions. But what distinguishes our most sublime intellectual achievements is that they are products of a process through which our imaginations and our intellects are disciplined and evolve, whereas our most shallow superstitions are ossified products of ancient imaginations entrenched in our consciousness and as insulated as possible from the continuing lathe of reason and imagination. One modality is based on skepticism, on critical thinking, and the other on Faith, on blind acceptance of given “truths.”

(The same holds true for modern dogmas, sometimes intellectual and frequently political ideological, as for archaic superstitions: The greater the extent to which adherents dogmatically believe substantive tenets, the more in the mode of “religious fanaticism” they are; the more they commit to on-going procedures –facilitated by wise uncertainty– which favor reason and humanity, the more they are contributing to the progress of both human consciousness and the social institutional and technological landscape that emanates from it.)

The dilemma in America is not that we are in a debate over these two modalities of thought, but rather that one of these two modalities precludes such a debate. It is not possible to engage in a debate with blind dogma insulated from reason and information. But worse yet, not only is such a debate precluded, but those who preclude it play a shell game with these two very different modalities of thought, turning the U.S. Constitution, which is so much in the tradition of reasoned engagement with the complex and subtle world we live in, into a quasi-sacred document, stripped of its actual subtlety and wisdom, and selectively understood and interpreted in service to the blind dogma that they favor.

They claim to be champions of the Constitution, while in reality being its most virulent enemies. What the Constitution represents first and foremost is rule of law, and what rule of law is first and foremost is a procedural discipline, a commitment to making decisions about legality through processes established by both the Constitution and by the challenge of implementing it in a real world more complex than any such document can fully anticipate.

But rather than accept that we have a real Constitution, written by mere human beings in a language full of ambiguities and imprecisions and in a time which framed their understandings and emphases, a document that Constitutional Scholars debate and study and spend dedicated lifetimes trying to fully understand, in the context of an ever-changing world, these would-be theocrats insist that only their superficial and frequently poorly informed interpretations, sometimes completely at odds with any literal interpretation of the document itself, must prevail.

If one points out to them, as I have sometimes done, that Article I, Section 8, Clause 1 of the U.S. Constitution states that “Congress shall have the power to lay and collect taxes…to pay for the general welfare,” and that that is a rather broad power that, if literally interpreted, means that there is no limitation on what Congress can tax and spend in service to, as long as Congress can make a case that it serves the general welfare, they answer that there must be limits on it, because, after all, isn’t such a limitation what their dogma insists upon? They love the Constitution until it blatantly contradicts their ideology, at which point it is, in their view, the Constitution rather than their ideology which must yield. That is the very essence of anti-Constitutionalism.

(The limitation on the tax-and-spend power of that clause is, of course, that if voters don’t like the way Congress is exercising it, voters can fire them and hire representatives who do so more in accord with their wishes. The Constitution, drafted to strengthen rather than weaken the federal government, was designed, as explicitly elaborated on in The Federalist Papers, to overcome the collective action problems rampant under the Articles of Confederation that preceded it. It’s no accident that the Founding Fathers included this ample power to tax and spend in service to the general welfare.)

Of course, as many point out, well-reasoned and well-informed arguments fall on deaf ears, because people in general, and religious and quasi-religious fanatics in particular, do not form their opinions according to the dictates of reason applied to evidence –or in service to humanity rather than to their own national, racial, class, ethnic, etc., in-groups– but rather on the basis of emotional appeals to the frames and narratives which form our consciousness and our identities. When I argue that we should all strive to be reasonable people of goodwill (toward all humanity), and others respond that that won’t work because there are those who lack reason and lack such goodwill, I reply that the irrationality and belligerence (toward humanity) of others does not imply that we must be irrational and belligerent (toward humanity) as well.

I emphasize “toward humanity” because the misconception is common, among both those who tend to agree with me on substantive positions and those who tend to disagree, that goodwill toward humanity precludes hurting the feelings of those who preach ideologies or behave in ways which are antagonistic to humanity. It doesn’t. (Those on the right embrace this fallacy to discredit those challenging the substance of their ideology, by claiming that anyone who criticizes their ideology is not acting with goodwill toward humanity; those on the left embrace this fallacy to discredit the challenge to their preference for righteous rage over effective advocacy, arguing that since goodwill toward belligerent fanatics is ineffective the ideal of goodwill toward humanity is irrelevant to political discourse.)

Goodwill toward humanity does not mean that you cannot intervene militarily to stop a genocide, even though shooting at people (in a military action to stop a genocide) is not really the best expression of goodwill toward them personally. Nor does goodwill toward humanity preclude one from hurting the feelings of someone preaching some hateful ideology by sharply criticizing their ideology, and doing so in terms which are logically and emotionally compelling and thus, to them, offensive. To the contrary, goodwill toward humanity requires it, not gratuitously, and not in service to one’s own emotional gratification, but rather in service to moving the zeitgeist gradually in a desired direction.

For those who believe that moving the zeitgeist in a desired direction is impossible, all I can say is: Glance back across the sweep of human history, and you will see that it has been done before, and is done constantly. Scientific methodology didn’t exist half a millennium ago, but has grown in prominence over that span of time, in large part due to human effort, and frequently against human resistance. That thread of history, in fact, is the archetype of what I’m advocating. We have, historically, increased the salience of reason and goodwill in human affairs, by developing scientific methodology and legal procedures, and by developing humanistic philosophies which identify the rights of individuals and the value of various forms of egalitarianism. Extending these historical processes is what Progressives should be most committed to. And, by that definition, all reasonable people of goodwill should be Progressives.

(I’m tempted to dump the word “Progressives,” though, because, of course, the ideology that goes by that name is not precisely the ideal ideology I have described. True “progressivism” would involve reducing the emphasis on precipitous substantive certainties, and increase the emphasis on ever-evolving procedural disciplines developed for the purpose of realizing an ever-evolving humanism.)

It’s true, of course, that merely making well-reasoned and well-evidenced arguments is not the primary way in which the zeitgeist changes. We think in frames and narratives, and it is through those frames and narratives that change occurs. But one frame which almost all modern Americans embrace is that they are reasonable people, that their beliefs are what are supported by reason and evidence, that in any debate between equally competent debaters, their point of view inevitably wins. Another frame common to almost all modern Americans is that each believes themself to be a person of goodwill, a person whose ideology is the ideology which best serves others. Few Americans explicitly applaud Scrooge before the transformation and condemn Scrooge after the transformation; almost all define themselves as being a reasonable person of goodwill.

One way to challenge these frames is to ply the lever of cognitive dissonance, to make the discrepancy between the narratives that people are subjectively applying to themselves and the narratives that they are “objectively” living as inescapable as possible. And that means not only throwing well-reasoned arguments in their face, but rather throwing in their face well-reasoned arguments that challenge not particular policy positions but, more importantly, their own fundamental identity.

The way in which I habitually do this is, in every conversation in which a blind and belligerent dogma is being favored, to ask the person favoring it if they would be willing to set aside for a moment our substantive disagreements and agree with me only that we should all strive to be reasonable people of goodwill working together in a complex and subtle world to do the best we can in service to humanity. Some leap to agree; many do not. But almost all recognize, on some level or another, that they can either agree with this premise or suffer the cognitive dissonance of realizing that they are unwilling to.

I strongly recommend that this one, simple commitment become our core ideological identity and the platform that we most consistently and relentlessly advocate. It is a position which most find difficult to denounce, and to which many who do not consider themselves “progressives” would gladly gravitate. It is the basis for all well-conceived progressive policies, the standard by which they should be measured, such that it is this ideal rather than anything else we currently believe that should hold sway. And it is a shared foundation to which we want to attract as many people as possible (from all across the ideological spectrum).

The catalyst for this essay was an exchange on Colorado Confluence’s Facebook page (http://www.facebook.com/ColoradoConfluence). The exchange captures much of what I’m talking about, and expands upon some of the ideas I’ve presented here, so I am reproducing it below. It started with my posting a link to this Economist article on the relationship between religion and politics in America (http://www.economist.com/node/21548964) accompanied by this comment from me:

A nice summary of the disingenuity of Santorum’s remark about people of faith being banished from the public square (which is both the opposite of the current reality, and not advocated by any mainstream public official past or present), and the complex relationship between faith and politics in America.

One thing the article doesn’t note is the tension between the “Free Exercise” and “Establishment” clauses of the First Amendment: Government can neither inhibit nor promote any particular religion, which leaves a very narrow band between the two in which to operate.

Many religious zealots in America, for instance, don’t realize that, while it is unconstitutional for a school to promote or sponsor prayer on school grounds, it is also unconstitutional for schools to prohibit prayer on school grounds, as long as it is done in a manner which does not disrupt the normal functioning of the school and does not appear to carry the “imprimatur” of the school (e.g., does not use the school PA system, or occur as a part of a school event). It is, of course, the right balance…, except for theocrats who don’t want freedom of religion but rather a tyranny of their own religion.

For more on religion, see “Is Religion a Force for Good?” (http://coloradoconfluence.com/?p=742), “A Dialogue on Religion, Dogma, Imagination, and Conceptualization” (http://coloradoconfluence.com/?p=2452), “Do Deities Defecate?” (http://coloradoconfluence.com/?p=2504), and “Discourse, Diderot, and Deity” (http://coloradoconfluence.com/?p=1081).

A woman named Dina then commented “wow, drink the cool aid (sic) much?” This was my response:
Okay, I’ll bite. What Kool-Aid are we talking about? If we’re invoking cult leader Jim Jones and the mass suicide he orchestrated (which is where the term comes from), then it would make more sense to use it to refer to those who are defending dogmatic beliefs (particularly religious beliefs) against a commitment to a more open and moderate secularism. But such reversals of meaning, though ironic in the extreme, are also remarkably common.
She then replied, “”‘socialism,’ ‘secularism,’ let’s call the whole thing off!” To which I responded:
“Secularism” and “Socialism” are not the same thing. Our Constitution essentially guarantees a secular form of government by not only guaranteeing to each the freedom to practice their own religion (“The Free Exercise Clause” of the First Amendment) but also prohibiting government from favoring any one religion over others (“The Establishment Clause” of the First Amendment). For an ideological faction whose adherents generally fancy themselves the defenders of the Constitution, it’s remarkable how eager some members of that faction are to disregard and undermine that very same Constitution in both letter and spirit.

The word “socialism” has been applied very broadly, especially in service to a particular ideological agenda, to societies that are widely divergent in form. At one extreme are a group of societies that are characterized by autocratic, oligarchical governments that completely dismantle market economies and replace them with command economies. These have all been horrible failures. At the other extreme (in normal usage) are the “democratic socialist” countries such as some Scandinavian countries have at times been, and these have been by and large quite successful (robust economies, excellent quality of life, extensive individual rights, and far more equitable than average).

More generally, all modern developed nations are, in reality, a hybrid of robust market economies, popular sovereignty, large administrative states, a strong commitment to rule of law, and a thoroughly secular (non-religious) and civil (non-military) government. All nations that participated in the post-WWII economic boon were characterized by this combination of institutional qualities, bar none. To call them “socialism” would mean that the word “socialism” must be understood to encompass both a certain category of failed states, and the unique category of the most successful states in world history (i.e., all successful, fundamentally capitalist countries).

The point of using the word “socialism” to describe both is to obfuscate the fact that some of the states being so labelled comprise the entire set of modern prosperous, free nations on Earth, and to imply instead that all states so labelled actually belong to the set of failed states known by that label. In other words, it is an attempt to relabel all modern, prosperous, free nations as something other than what they are, and to pretend that a proposed extremist form that has never described any actual successful nation on Earth is what defines that category instead! It is a triumph of meaningless, cultish rhetoric over anything even vaguely resembling reality.

There are legitimate debates to be had about the issues that divide us, about the right balance between public investment in human and material infrastructure and laissez-faire market dynamics, about the degree to which we should be committed to maximizing equality of opportunity and how to go about it, about to what extent we should try to consider possible future consequences of current policies and to what extent we should focus exclusively on present outcomes, about, in general, what works and what doesn’t work, what best serves our liberty and prosperity and well-being and what doesn’t. My fondest hope and highest aspiration is that we become a nation that has those debates, as reasonable people of goodwill, wise enough to know that none of has all of the answers, working together in a complex and subtle world to do the best we can; to be, in other words, a nation of people who decline to drink various flavors of “the Kool-Aid,” and choose to be thoughtful, open-minded, and constructive citizens instead.

The purpose of my blog, Colorado Confluence, and this Facebook page that links to it is to promote the application of reason and imagination to evidence and accumulated knowledge and understanding in service to humanity. All points of view, all arguments, are welcome. If you have an actual argument to make, please feel welcome to make it: Understanding and insight are served by robust debate (the opposite of “drinking of the Kool-aid” of insulated dogmas blindly adhered to). The informationless, unreasoning, and generally meaningless one-liners about “drinking the Kool-aid” of secularism (ironically completely inverting the meaning of the phrase), and equating “secularism” and “socialism” in a catchy cliche about “calling the whole thing off,” are modalities best suited to other kinds of forums, offered for other purposes.

That got her goat! Here’s how she replied:
well, I guess you told me, huh? I will leave the rest to your ‘enlightened’ state of mind! My point being that your insulting comments regarding the disingenuousness of Santorum feed into the rhetoric we hear everyday in the main stream media. There has been a war against Christianity in this country for decades..actually, around the entire world! Mr. Bloomberg in NYC should heed your words about the ‘imprematur-lessness (sic) of churches who have used public buildings for worship when school is not in session….Other public entities would be smart to heed these same words when they are insistent on shoving other religious tenets down our throats by installing foot washes and prayer rooms in their institutions! IMO, secularism and socialism go hand in hand and both ideas are ruining this great country…Our Forefathers must be turning in their graves! God Help the USA! Goodbye….
And, finally, my response to that:
The NYC law prohibiting the use of public schools for religious purposes is currently in the courts, where that balance between Free Exercise and non-Establishment will be struck. The main problem is that the congruency of non-school use days to some religious holy days and not others (Jewish and Christian, but not Islamic) may be construed as an implicit favoring of those religions that [have] their sabaths on the weekend. It’s a subtle question; my guess is that the courts will find that the NYC law is unconstitutional, and I would agree with that decision.

Your comments about the allowance of Islamic practices as well as Christian and Jewish, on an equal footing, merely goes to demonstrate your theocratic rather than constitutional orientation. Islam, according to our Constitution, is neither to be privileged nor discriminated against, and, if we fall short at all as a nation, it is in the latter rather than former error, one which you are determined to increase rather than decrease. You are of a mindset that Christianity should be privileged, and that the failure to do so is a failure of our national conviction. But that simply is not how our nation is Constituted. We are not a theocracy; we are a Constitutional Republic.

What’s most remarkable to me about her last comment was the equation of adhering to the Free Exercise Clause of the First Amendment of the United States Constitution, permitting and accommodating the free exercise of non-Judeo-Christian religions, with “shoving (those religions) down (the) throats” of those who don’t adhere to them! The notion that Christians in America are more discriminated against than Muslims, that Islam is “shoved down the throats” of Christians but that Christianity is just one religion among many, in no way privileged and in no way seeking to be, is so incredibly ludicrous, it simply boggles the imagination that anyone could argue such a position.

Our national debates aren’t over whether to permit Islamic and Christian religious imagery to co-exist, but rather whether to continue to privilege Christianity in the ways that it has been historically privileged, to use exclusively Christian imagery and language in official displays and communications relating to holidays and other religious events. It is not that these would-be theocrats want no religion shoved down anyone’s throat, but rather that they want their religion exclusively shoved down everyone’s throat!

This isn’t just an issue of religious zealotry and hypocricy and anti-constitutionalism pretending to be the opposite; it’s one example of the more fundamental divide in American politics, one which tracks the left-right divide to some extent but not exactly, one which is where our focus should be as we work on both ourselves as individuals and the nation and world to which we belong. That divide is between ideologies which favor irrationality over reason, and belligerent tribalism/sectarianism over a commitment to humanity. The solution is not to remain entrenched in the struggle to ensure that our own substantive certainties prevail over opposing substantive certainties, but rather to promote a greater and more widespread commitment to procedures and attitudes which systematically favor reason over irrationality, and humanity over various forms of bigotry and belligerence.

Buy my e-book A Conspiracy of Wizards

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I had an epiphany during a panel discussion of Lobato v. State of Colorado (the Colorado district court holding that the Colorado public school system violates the state constitutional requirement that the state provide “a thorough and uniform” public education system, and that vastly increased funding would be necessary to be in compliance with the state constitution) at the annual policy summit of CLLARO/CLF (Colorado Latino Leadership, Advocacy and Research Organization/Colorado Latino Forum): A constitution is unenforceable in a state that allows direct democracy, or what I call “government by plebiscite” (usually in the form of the initiative process, through which the polity can directly amend the constitution or pass legislation, entirely circumventing the state legislature), and therefore such direct democracy is ultimately incompatible with both constitutionalism and the rule of law.

The panel consisted of Lisa Calderon (the mother of one of the plaintiffs), James Eklund (an attorney for the state), Prof. Kelly Hupfeld (UC Denver Assistant Dean of the School of Public Affairs) and Liane Morrison (Executive Director of GreatEducation Colorado). Two of the panelists (Lisa Calderon and Liane Morrison) were advocates of and in agreement with the Lobato decision; one (Kelly Hupfeld) was academically fascinated by and apparently somewhat favorable toward the decision; and one (James Eklund) had the thankless and clearly not entirely heartfelt task of presenting the state’s opposition to the decision to an audience of progressives overwhelmingly on the other side.

The discussion revolved around the familiar issues of quality of education, deficiencies in funding, the constraining constitutional provisions of TABOR and the Gallagher amendment (which constrain Colorado state government taxing and spending power, and require the state to submit any proposed tax increases to the electorate for approval), and the question of whether the court overstepped its bounds and addressed what is properly “a political question” and therefore not within the competence of the court to address (a separation of powers issue). For the record, I’ll state that I’m agnostic regarding the central legal question involved in the decision (i.e., whether it was the court’s role to quantify in dollars what constitutes “thorough and uniform,” or whether that is a political question to be addressed by the state legislature), but wholeheartedly agree with the decision as a matter of public policy, and am glad to see it as a potential catalyst for much needed systemic change.

(As an aside, non-lawyers aren’t always familiar with, or interested in, the distinction between legal analysis, on the one hand, and social/political/economic public policy analysis, on the other. But this distinction is a vital one to constitutional government and the rule of law, and I think we’d be well-served to make it a more commonly understood aspect of our social institutional landscape, a goal, ironically, that could be more effectively met through a better-funded and designed public education system.)

Of the facets of Lobato directly discussed, the reference to TABOR and Gallagher comes the closest to identifying what I think is really the most essential issue implicated by this decision, though it was raised in too superficial and limited a way to identify that issue clearly. Some might take exception with this claim, arguing that the deficiency in school funding and subsequently in quality is the central issue, but I am not talking about the obvious and fairly easy to understand political ideological battle between those who, on the one hand, recognize that we have underfunded and underperforming schools, and those who, on the other, believe that less government is always better government (the latter delusion being one I address at length and in depth is a series of essays hyperlinked to in the fourth box at Catalogue of Selected Posts). Rather, I’m talking about the subtler and more structurally fundamental question of whether the rule of law and governmental accountability can exist in the absence of a government to be held accountable.

Though TABOR and Gallagher don’t eliminate government entirely, they do diminish its role sufficiently to raise this question, because compliance with the court order to dramatically increase public school funding is, in reality, virtually impossible for the government to accomplish without the electorate agreeing to it, and if there is no concise and identifiable population of people (e.g., the state legislature) that can be held legally accountable for refusing to obey the court order, how can the court order possibly be enforced? And if a court order mandating governmental compliance with the state constitution can’t be enforced, how can the state constitution be said to exist as a legally relevant and effective document? In other words, in circumstances when direct democracy makes the enforcement of court orders mandating constitutional compliance impossible, direct democracy is incompatible with constitutionalism and the rule of law!

Certainly, there are subtleties and complications involved in this analysis. Courts never have troops to enforce their orders, and I may be exaggerating to some extent the distinction between a state legislature choosing to ignore a court order and a populace choosing to ignore a court order. But, while the distinction may be less stark than I have made it, I think it still exists, and is still critically relevant: A state legislature consists of a very limited number of identifiable individuals who can be held directly responsible for violating a court order, while an entire electorate is comprised of a large population of ultimately anonymous individuals who can not be held directly responsible for defying a court order.

Many, perhaps most, court orders directed against governments require state expenditures to be carried out. Desegregation in the Civil Rights era certainly did, for example. Those who hold the purse strings are those who can be held responsible for either complying with or disobeying such court orders. If the purse strings are held too diffusely to hold anyone responsible, then such court orders are essentially meaningless, and therefore so are the laws they serve.

One can argue that while direct democracy is incompatible with a bill of rights which protects the rights of individuals from the vagaries of power, including the rights of minorities from the democratic power of majorities, it is not incompatible with a constitution, since a constitution need not include a bill of rights. A constitution might say, instead, that as long as majorities exercise their power according to a prescribed law, which is ultimately up to those same majorities to interpret, then the rule of law has been adhered to. But this is a sham rule of law, only marginally better than the “rule of law” created on the spot by the whims of a ruthless dictator (since even dictators hold power in part by dispensing favors to supporters who form with the dictator a ruling faction, and the tyranny of the majority is nothing more than such a faction that is at least one person –though never necessarily more than one person– larger than half the population).

In other words, such a “constitution” is merely a ruthless dictatorship of a bare majority over all others, always subject to the caprice of that majority, regardless of how that maj0rity might choose to exercise it. If such a majority decided to interpret its constitution to permit the execution on sight of everyone with green eyes, then that would be within the law as defined by this “constitutional” society. A law which protects only those who wield power, whether they are few or many, is no law at all, but rather naked tyranny.

In reality, constitutions not only protect minorities from majorities, but also majorities from themselves, since it is often the case that foolish fanaticisms, sometimes entirely organic and sometimes fabricated or fanned by and for a minority with resources to influence popular opinion, inform mass decisions that are self-destructive. A majority mobilizing its genius through a process of careful reflection and contemplation to guide and channel its future passions (i.e., by drafting a constitution) is likely to fare better than a majority which simply surrenders to its own ephemeral whims.

This argument is related to the argument by the plaintiffs in Kerr v. State of Colorado, a challenge to the constitutionality of TABOR under the U.S. Constitution, which “requires all states to have a Republican Form of Government embodied in a representative democracy” (http://www.scribd.com/doc/56167554/Kerr-vs-State-of-Colorado-Challenge-to-Colorado-Taxpayer-Bill-of-Rights-TABOR-Amendment). In the complaint, the plaintiffs reference Federalist #10 (by James Madison), which states:

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union.

The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.

But the observation in this essay goes beyond that of Madison: Not only does representative (as opposed to direct) democracy temper passions and protect minorities from majorities, but it is ultimately indispensable to the very existence of the rule of law!

“The Father of the U.S. Constitution” understood the defects of direct democracy, and condemned those who advocated for it. A careful analysis of the effects of direct democracy demonstrate that it is fundamentally incompatible with the existence of an effective constitution and the rule of law. Ironically, once again, it’s precisely those who arrogate to themselves the mantle of defenders of the Constitution who are the ones against whom it must be defended.

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