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A Facebook friend, commenting on my Facebook link to A Proposal, suggested that I check out Ted.com (http://www.ted.com/). I did, and it looks fascinating! It’s a website dedicated to “ideas worth spreading,” with “riveting talks by remarkable people,” with titles like “How Complexity Leads to Simplicity,” and “How to Make Global Labor Fair.” Kathryn, who occasionally posts here, sent me the link to the Progressive Ideas Network (http://progressiveideasnetwork.org/). It occurs to me that one valuable preliminary step toward developing the project outlined in A Proposal is to gather a comprehensive library of links to existing websites that are the most fruitful resources for social institutional and public policy information. Can I ask the assistance of all Colorado Confluence readers, and all of my Facebook friends, to help compile such a list? Please comment here, if possible (though I know that comments are more likely to accumulate on the Facebook link to this post). Thanks!
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What’s in a name? An Attitude. The Denver Post reported that the newly minted Republican State House Majority has not only renamed several committees to announce their disdain for workers, the poor, and the disabled, but threw in a little historical revisionism for good measure (http://blogs.denverpost.com/thespot/2010/11/12/house-committee-names-included-labor-and-welfare-under-prior-republican-rule/18581/). Yes, delightfully reminescent of other previous incarnations of a similar mentality, the House Republicans changed the name of “the House Business Affairs and Labor Committee” to simply “the House Business Affairs Committee,” and “the House Health and Human Services Committee” to “the House Health and Environment Committee” (signalling the presence of an obviously absent interest in environmental issues, while assuring us of a continuing disinterest in humanity?). They then claimed that they were changing the names back to what they had been prior to the 2004 Democratic takeover of the House, though in neither case were the pre-2004 names what the Republicans now adopted, and in the former case, the pre-2004 name was the same as the one that the Republicans inherited and then dumped. Remember the original Charlton Heston version of “Planet of the Apes”? Republicans = Gorillas, and Democrats = Chimpanzees and Orangutans. Nowhere more true than it is in Colorado, where we’ve been blessed with folks like Dave Schultheis and Scott Renfroe, the former having argued against a prenatal HIV test which prevents the transfer of HIV from the mother to the fetus on the basis that the mothers should have to suffer for their immorality, and the latter for having compared homosexuality to murder (http://blogs.rockymountainnews.com/rockytalklive/archives/2009/02/schulteis_says_if_baby.html).
As expected, the 2010 elections left us with a Congress comprised mostly of the Far-Right and Far-Left, and the few remaining moderates from either party badly outnumbered. The Economist reported on the increased power of the Tea Party nut-jobs who have now taken power while remaining utterly clueless, and on the decreased power of moderate Democrats who now comprise a smaller minority of the Congressional Democratic Caucus (http://www.economist.com/node/17465283). Immoderate voters give us an immoderate and polarized government, and a lot of spinning wheels kicking up lots of mud but getting no traction, and getting us nowhere, not even on issues such as deficit and debt reduction.
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There is much about the Tea Party mentality that is similar to anti-progress attitudes of the past, such as the fear that any improvement in the production or distribution of wealth comes at the expense of those who are invested in the status quo, and that the local and immediate interests of those who are inconvenienced or made worse off in the short run should trump the global and long-term interests of the many who would benefit from advancements in the production and distribution of wealth.
Throughout human history, in varying balances, there have been those who cling to a familiar past and those who reach for an improved future. The progress made despite the former has included a shift in balance in favor of the latter. Whereas traditional societies anchored themselves in ossified rituals and beliefs, modern societies have increasingly embraced the possibility of progress. But, as many have noted, modernity is “a candle in the darkness” (Carl Sagan’s phrase to describe science, still today), flickering in the midst of howling hordes of gods and demons, superstitions and arbitrary certainties, that continue to hold us back.
Early in the industrial revolution, British artisans protested mechanized production by destroying the power looms that were displacing them (http://en.wikipedia.org/wiki/Luddite). There are two important things to note about this: 1) Progress does indeed cause dislocations, and, unless we take pains to address it, localized losses amidst generalized gains; and 2) to the extent that these victims of progress, whether their victimization is real or imagined, succeed in obstructing progress, we all lose in the long run, for the improved techniques that were obstructed would have created far greater wealth and opportunity in the long run than the archaic techniques that were preserved.
The Tea Partiers are modern Luddites, taking mallets to social institutional rather than technological innovation. As I discussed in several previous posts (see, e.g., The Politics of Consciousness , Information and Energy: Past, Present, and Future, The Evolutionary Ecology of Audio-Visual Entertainment (& the nested & overlapping subsystems of Gaia), The Nature-Mind-Machine Matrix), both technological and social institutional innovation are part of cultural evolution, the reproduction, mutation, and selection according to differential reproductive success of “memes” (i.e., ideas). And as I’ve also discussed in several previous posts (“Political Fundamentalism”, “Constitutional Idolatry”, Liberty Idolatry, and Small Government Idolatry), the political fundamentalism of the Tea Party is akin to the religious fundamentalism from which it mutated, and to the Inquisition which is the historical model of such fundamentalism, clinging to archaic orthodoxies that do not stand up to rational scrutiny (see Real Fiscal Conservativism for an economic analysis of this vis-a-vis the Tea Party), and fighting against the heresies of progress.
We are simply embroiled in one of the on-going battles of human history, constantly reincarnated, and constantly obstructing our ability to do better. It is incumbent upon us to open as many eyes as possible to this fact, and leave those who prefer to be champions of avoidable human suffering to become increasingly marginalized and reviled, while those who prefer to be champions of human welfare and true spiritual growth can join all other reasonable people of goodwill in the shared enterprise of forging a progressive path into the future.
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Republicans claiming to represent fiscal conservatives signed a pledge not to raise taxes, though even conservative economists such as Alan Greenspan are adamant that continuing the Bush tax cuts for the uber-wealthy is irresponsible and indefensible. Those who decry the national debt, and exaggerate its significance, have proven that they are also unwilling to maintain a revenue stream capable of paying it down.
Economist and Money Manager Zachary Karabell (http://en.wikipedia.org/wiki/Zachary_Karabell) writes in the November 8 issue of Time Magazine, echoing what 2008 Nobel Prize winning Economist Paul Krugman and many others have long maintained, that the populist Tea Party obsession with debt is not only misguided, but economically and fiscally self-destructive (http://www.time.com/time/magazine/article/0,9171,2028095,00.html). “Whatever the Tea Party says, we haven’t mortgaged our future. We’ve endangered our present.” The national debt “isn’t excessive. On a relative basis the federal debt burden has hardly changed over the past 20 years. In fact…, the percentage of the federal budget spent servicing the debt has actually decreased…. [I]n 2009, net interest payments on the debt decreased from the year before, and the overall percentage the U.S. pays to service the debt (currently less than 3% of GDP) is lower than it was in the late 1980s and most of the 1990s.”
Karabell also tackles the currently popular Right-Wing mythology that New Deal stimulus spending prolonged The Great Depression, another step in the gradual revisionism of historical fact, moving from the long-held accurate recognition that The New Deal stimulated enormous economic growth (see The Economic Debate We’re Not Having) but failed to end The Great Depression due to Roosevelt’s compromise with fiscal conservatives in 1937, sending the economy back into a downward spiral (rescued by the massive public spending project called “World War II”). Prior to The Great Depression, he notes, “the orthodoxy of austerity and budget cutting hobbled the world and led to a decade of deflation and depression.”
Ironically, despite the enormous success of stimulus spending in avoiding the complete economic collapse that we were teetering on the edge of two years ago (see How Do We Stop The Insanity? for a discussion and link to a graphic depiction of how effective the stimulus bill was at turning around the growth in unemployment from rising at an accelerating rate to rising at a decelerating rate), “rational argument about (debt and deficit) is as rare as levelheaded discussion of sex and religion” (see “Political Fundamentalism”, comprised of the unholy trinity of “Constitutional Idolatry”, Liberty Idolatry, and Small Government Idolatry, for a discussion of the reasons for the similarity).
Karabell goes on to describe how the “simple narrative” of the Tea Party, “as economic policy…is the 2010 version of what the blind, rigid bankers of the 1920s and ’30s offered –and it will sink an already leaking ship.” “Debt is simply a cost,” Karabell emphasizes, “a powerful tool when properly used…. [W]ise fiscal policy–focused on investment—is a spark plug when activity sputters…. [A]ny business leader will tell you that you can’t cut your way to prosperity.”
As I’ve frequently repeated, there are legitimate debates to be had. A minority of economists (adherents of The Chicago School, which has been eroding for decades due to accumulating countervailing evidence) disagrees with Karabell and Krugman, and their analyses should not be dismissed out of hand. But neither, certainly, should the majority view of economists and historians, whose narrative, better informed and better reasoned than the popular Tea Party narrative, insists that this populist push for austerity is going to cripple rather than save our economy. The risk that those who know what they’re talking about might be right, and those who don’t might be wrong, is not a risk that rational people should take lightly.
As Karabell writes, “our children and grandchildren will not praise us….” They will reproach us for “running scared,” echoing President Obama’s apt characterization of the choice we now face: “A Choice Between Our Hopes and Our Fears”.
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The Compelling Economic and Humanitarian Reasons for Addressing Homelessness. As I continue to write about the ways in which the currently popular Small Government Idolatry pre-empts rather than utilizes the analyses necessary not only to knowledgeably weigh costs and benefits of various choices, but also to actually accomplish the “fiscal responsibility” that this particular element of “Political Fundamentalism” claims to serve, The Denver Post published an article today describing Denver’s highly successful program (initiated by Mayor/Governor-elect Hickenlooper), which brought both businesspeople and advocates for the homeless into the process, and has reduced not only the amount of homelessness, but also, quite dramatically, the costs the homelessness imposes on tax payers ( http://www.denverpost.com/news/ci_16580456). This is what responsible government looks like.
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As I began to discuss in the third installment in my series on “Political Fundamentalism”, “Liberty Idolatry,” the notion of individual liberty divorced from recognition of social interdependence just makes no sense. We are all aware of the most dramatic limitations on individual liberty in service to mutual responsibility: Laws against violence and predation. We are not free to act in ways which hurt others for our own benefit. Everyone understands, implicitly, that that is the limiting factor in defining individual liberty: One’s freedom ends where another’s rights begin.
We each have the right not to be assaulted, robbed, defrauded, or otherwise victimized, though there can certainly be legitimate debate over how far the law should reach to protect each from the victimization of others (few, for instance, would recommend criminalizing being a dishonest and self-serving “friend,” and the gray area between that which obviously should be legally prohibited and that which obviously should not be is bound to be contested terrain).
But, while most would agree that poisoning someone else is not an ambiguous instance of when my liberty to poison ends at the point where your right not to be poisoned begins, many can’t even contemplate the possibility that poisoning the air or water with toxic wastes might fall into a similar category, and that governmental regulations preventing it might be as necessary and appropriate as governmental enforcement of the law against poisoning less incidentally.
My point is not to argue that there is no difference between the two: Some relevant considerations are how harmful to others something is, how much an action harmful to others is also helpful to others, and how much something harmful to others is a traditionally acceptable practice embedded in our social norms and customs. But all acts that are harmful to others fall on the continuum defined by these variables, and all must be subjected to an analysis weighing them in a well-reasoned manner. And that is exactly what our regulatory agencies do, in a very well-developed procedure that explicitly considers all of these dimensions, and involves both experts and the affected public in the process.
It should be obvious that the need to balance the liberties of each against the rights of others permeates our social institutional landscape. One can argue whether it is enough to inform consumers of unhealthy or dangerous ingredients or parts in consumer goods, and that to fail to do so should be criminal in the same way that other intentional or reckless inflictions of harm are. But none can argue that that is sufficient for by-products of commercial or private activities which adversely affect others who are not willing participants (such as consumers of given products are). The demands imposed by our interdependence simply cannot be denied.
There are many gray areas to be discussed and explored: At what point does your right to smoke infringe on my right to breathe unpolluted air? At what point does your right to engage in unhealthy and dangerous activities infringe on my right not to have to bear the public costs (e.g., higher insurance premiums for those who do not engage in those activities, and higher tax burdens to pay for the emergency services sometimes involved)? Defining where one’s liberty ends and another’s rights begin is an information intensive, case-by-case requirement of good governance, and one which cannot simply be ideologized away.
This is just one of the many ways in which the Small Government Idolatry of the political fundamentalists is untenable: We need as much government as we need to address the challenges that government has to address. Doing so with complete consideration of all relevant concerns does not mean imposing one and only one imperative on government (that it be shrunk), but rather weighing all concerns in a complete c0st-benefit analysis, on a case-by-case and comprehensive basis. The concerns expressed by Tea Party fundamentalists are not irrelevant; they simply aren’t the only relevant concerns, nor the only relevant considerations. Often, ironically, they even lead to a government that is both more expensive and less functional (avoiding proactive services that both increase human welfare and reduce more crushing reactive costs).
Perhaps the best way to conceptualize how to balance all relevant considerations is captured in John Rawls’ “A Theory of Justice”, since a fully-informed and rational decision about what social institutions and policies would be optimal from a position of not knowing one’s own location in the social firmament (including not knowing whether one would be alive today or in the future) would include consideration of both the value of personal liberty and the value of being protected from the harmful effects of others’ exercise of their personal liberty. It would also include considerations of economic consequences, including a balancing of efficiency, fairness, and sustainability. Public policy subjected to the tyranny of a single fixation is harmful and destructive; public policy which balances competing values and concerns is healthy and rational.
Debates over where to draw the line are necessary and useful; debates over whether to draw the line are absurd and dysfunctional. Those political fundamentalists who fight tooth and nail to impose an absolutist, unbalanced notion of “liberty” on the rest of us are not contributing to a healthy public dialogue over how best to govern ourselves, but are rather arguing outside the bounds of reason, trying to advance the cause of harmful irrationality.
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Understanding what causes memes to reproduce most robustly is an important aspect of moving our social institutional landscape in directions that best serve humanity. Moving “minds and hearts” doesn’t always move them in positive directions: Many minds and hearts have been moved recently in some very self-destructive directions. But they were moved by recourse to a proliferation of a combination of haphazard and sophisticated messages which appealed to people’s frames and narratives, which tapped into the metaphors that comprise our minds and resonated with them. Doing so is an essential part of the challenge.
When we debate what can and can’t be done, what does and doesn’t work, one of the fundamental dimensions to be considered involves the variable malleability of reality. I can easily divert a small trickle of water following a rainfall, not so easily a large river, and probably not at all a planet in orbit around a star, particularly one that is light years away. When I’m attempting to affect the world, or any part of it (including another person), I need to look for those things that are most amenable to modification, and use them as leverage to address those things less amenable to modification. The time frame involved, mass, momentum, accessibility, available materials and technologies, existing social institutional and organizational vehicles and techniques, the rates and processes of change of the system or element that is the object to be altered, are all relevant variables contributing to malleability.
When you pick a goal, you need to identify a means to achieve it via those aspects of reality that are malleable enough to create an in-road to success. One of the biggest mistakes people often make when they talk about public policy, for instance, is to suggest something that a large number of decentralized actors have to spontaneously decide to do. For examples: “the solution to the crime problem is for parents to impose more responsibility on their kids,” or “the solution to war is for soldiers everywhere to refuse to fight.” The list is endless. The problem is that the suggestion not only fails to change the reality, it also fails to identify a meaningful strategy for changing the reality. It is a wish rather than a plan.
It makes as much sense to say, “the solution to the crime problem is for criminals to stop committing crime,” or “the solution to collective action and time horizon problems is for everyone to just automatically act in our collective long-term interests.” It’s meaningless, because it recommends as a solution an equally intractable intermediate challenge (sometimes merely restating the problem itself), rather than considering how to address it. How do you get parents to be better parents, criminals to commit less crimes, and people to act more cooperatively and farsightedly? These are the questions to be addressed.
The difference between identifying decentralized wishes and viable strategies is organizational and social institutional. I alone can divert that small trickle of water I mentioned above, but I would need to organize an effort and mobilize resources to divert a river. The challenge is to identify first the collective action problems involved, then ways in which it might be addressed, followed by how to get more people interested in realizing change and how they can contribute to doing so, and finally to design and implement policies which move us in the right direction.
Many dramatic changes in our social reality can be realized, but only by investing heavily in an analytical understanding of the systems which comprise it, and seeking the “pressure points” in those systems where manageable applications of focused human effort can have a rippling effect through the fabric of those social (and surrounding) systems. More parents can be assisted at being better parents, more criminals rehabilitated or, better yet, prevented from ever going down that path with early interventions and proactive policies, and more people in general channeled into more cooperative and far-sighted endeavors, by understanding what motivates them, what affects their decisions and choices, and creating institutional contexts which produce better rather than worse outcomes.
For those who insist that it can’t be done, all that is required is to point out that it has been done, frequently and on very large scales. Virtually every developed nation on Earth invests more in the challenges I just described than the U.S. does, and virtually every developed nation on Earth does a better job of meeting these challenges than the U.S. does. It’s no coincidence.
By far the most important political arena, the most important “pressure point” for social change, is the human mind, affected by formal and informal instruments of education, propaganda, and socialization, as well as by changes in the legal and economic context in which we live. “Will and Grace” arguably did as much for gay rights (along with all of the proliferating soap opera gay couples, and concomitant cultural shifts) as any law that anyone could have passed, because the change in attitude eases in the change in law, while a change in law grunts mightily against resistant attitudes. It’s a dialectic, to be sure, and laws help to change attitudes as well, become faits accomplis that are eventually accepted as the norm. But it is the cascade of changes in attitudes and understandings that is the real goal, and the real triumph.
One place to look for the dynamics of how such change occurs is to nature itself, and how life evolved: Those genes which were best at replicating themselves are the ones that persisted into the future. Humans are a product of that process as well, and, despite the resistance to the notion from various quarters, much of what we are can be best understood by understanding how that process, that lathe of heaven upon which we were rotated and carved over the millenia, made us what we are.
Human history spins on a similar lathe, an echo of Nature’s primary one (see, e.g., The Politics of Consciousness , Information and Energy: Past, Present, and Future, The Nature-Mind-Machine Matrix).
There are caveats: Just because change, even “progressive” change, can be effected doesn’t mean that it will increase human welfare to do so. The social institutions we sometimes too blithely condemn are more subtle and sophisticated than we are sometimes willing to acknowledge, because they are the product of a secondary lathe of heaven, the one which involves the reproduction and natural selection of memes, and they reflect the ways in which humans imperfectly align the interests of self-interested individuals in order to serve the interests of self-interested individuals. Not just those “in power,” but to a limited extent, and with great injustices of distributions of gains, their constituents as well.
The mistake many people make is in presuming that if they could just erase all that is and replace it with what they think would work better, the world would be a better place for it. In fact, whenever people have had some success in doing that, they have created only suffering and destitution. Arguably the most successful political revolution in World History (The American Revolution) wasn’t a revolution at all; it was a war of secession, which incorporated some very subtle and marginal modifications into the existing scheme of things, to great effect.
We must work with the material on the ground, understand it (by far the most difficult and important step of all), refine it, develop it, cultivate it to better serve the needs of social justice, economic robustness, and sustainability. This involves an appreciation for, and ongoing analysis of, the social institutions and social institutional materials that have been generated over millenia of cultural evolution, as well as a deftness in discerning where to tweak it, where to redirect it, where to channel it in new ways and utilize it in new combinations, in order to better serve the interests of humanity.
There are errors on both sides; the error of doing nothing on the pretext that it can only do harm, and the error of doing anything on the pretext that it can only do good. Trying to change that which can’t be changed, or is more resistant to change than the efforts mobilized have taken into account, leads to results often worse than those from which the change was made. The Russian and French Revolutions were bloody messes, and the Russian Revolution, at least, probably made just about everyone’s life worse, in perpetuity. The problem was that it replaced tyranny with tyranny, as so often happens, informed by the “good-guy/bad-guy” fallacy, and certain that replacing the bad guys with the good guys would solve all problems. But it failed to replace bad ideas with better ideas, and so only perpetuated and augmented the problems already deeply rooted in the social institutional landscape.
What the Tea Partiers call “socialists” are for the most part people who are pretty much right where we should be, preserving most of the institutional framework in which we live, but tweaking it in significant ways to address the unaddressed problems that have been festering for decades. The Tea Partiers themselves are extraordinarily addicted to stagnation and regression, clinging to a fictionalized past in order to create a dangerous new future, and obstructing any and all sensible attempts to make any improvements in our social institutional framework. Those at the other extreme, who would err on the side of sweeping away too much of our established social institutional framework, are such an insignificant minority, and so powerless to advance their agenda, that they are at present hardly relevant to the discussion.
The challenge now is to find the mechanisms, the pressure points, the means of social persuasion and institutional catalyst that will allow us to move the center of gravity to a more functional and useful place, where the debate revolves around questions of what works and what doesn’t work, what can be accomplished and what can’t be accomplished, costs and benefits, means and ends, inspiration and aspiration, hope and progress. We have a long way to go, but it’s not beyond our ability to get there.
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In this complex and subtle world of ours, the path of reason usually isn’t one of the paths that is most clearly marked or heavily traversed, but is rather the one that weaves a barely discernible thread among those others, combining what to them are incompatible contradictions, and avoiding what to them are incontrovertible truths. One such path combines cynicism and idealism, dodging the idols strewn across the political ideological landscape, while embracing the elusive wisdom that whispers past them on momentary gusts of wind.
The title marriage of yin and yang, of thesis and antithesis, can be phrased in various ways: Realistic Idealism or Pragmatic Idealism, for instance. But the point remains the same: Being pragmatic, recognizing reality, acknowledging the aspects of human nature and nature in general that present sometimes immutable challenges, does not need to be in service to surrender, but can rather be in service to aspiration. The notion that we can’t do better stands in stark disregard of the fact that we occupy only the latest moment of a world history full of doing better, hardly pausing at all in the relentless march of progress. Not all of the progressions have been good ones, but, I would say, on average and overall, we’ve made more gains than losses, improved more than we’ve worsened, increased wealth and justice more than we’ve decreased them. Change is the one constant, and progress seems to be an enduring aspect of that constant.
So, despite human aggression, selfishness, violence, predation, exploitation, cruelty, and nastiness; and despite the limitations of nature and its bounty; we have more reason to believe in our ability to do better than to disbelieve in it. However, that ability is better realized to the extent that we are more precisely informed of, sharply focused on, and diligently grappling with the realities which comprise the challenge which faces us. To be effective, we must be pragmatic. To create what might be, we must fully and deeply understand what is. To be dedicated to ideals, we must be cynically aware of what stands between us and their realization.
It’s important, however, to combine useful cynicism with achievable idealism, rather than, as is more often the case, emotionally gratifying cynicism with impossible idealism. To a large extent, discerning between the two involves an understanding of what I call “The Variable Malleability of Reality.” Being cynical about a superficial aspect of reality, and idealistic about a more fundamental one, is backwards, because the superficial aspect isn’t a parameter which can’t be changed, whereas the fundamental aspect is. We should be cynical about the least malleable elements of our existence that form apparent obstacles to progress, and idealistic about the most malleable aggregations of the elements, that can be reshaped by reframing the dynamics by which they are generated.
One mistake is to be cynical in the identification of “bad guys” out there, and idealistic in the belief that if the “good guys” (including the speaker) prevail over them, then all is well. This is only true to the extent that there are those who are advocating bad ideas, and those who are advocating good ideas, the ideas rather than their carriers being the proper focus of judgment. So, the crowd on the left that is big on identifying “corporate fascism” as the root of all evil is caught on the treadmill of human folly, because it blames the human greed, which is not terribly curable, instead of the social institutions, which are. Neither corporations nor the humans which comprise them are the villain. They are merely part of an imperfect social institutional landscape which channels that greed in ways that are partially useful and partially predatory.
So, it makes sense to be cynical about human motivations, recognizing that some degree of local and ego bias is probably more or less inherent to human nature (I know that this is debated, and I’m open to good arguments, but the apparent absence of widespread and prevailing altruism in both natural and human history suggests that some degree of selfishness or local bias is simply one of the parameters with which we must contend). But it makes less sense to be cynical about particular aggregations of that underlying reality, such as a belief that frequent and large-scale warfare is inevitable, or that excessive inequality in the distribution of wealth and opportunity is a necessary motivator of human productivity, or that it’s necessary to allow deadly environmental contamination in order to facilitate the robust production of wealth. The latter are precipitous conclusions about how underlying realities have played out, rather than about how they inherently must play out.
The prevailing ideology on the far right today, The Tea Party, engages in this backwards combination of cynicism and idealism, considering particular aggregations of underlying realities are inescapable (poverty, gross inequality, widespread avoidable human suffering, social injustice), and therefore refraining from working with those underlying realities is ideal. “Liberty,” redefined as complete surrender to prevailing inequality, social injustice, and human suffering, becomes the highest ideal, while intentional institutionalized collective action, which is the intentional aggregation of human efforts for human benefit, is an affront to all that is good and holy (except when mobilized aggressively against others, such as “securing our borders” against the brown invasion of eager labor from the south, or the occasional indulgence in committing mass murder abroad to advance our own national interests).
We need, instead of enshrining bad results as inevitable and unconstrained individualistic caprice as ideal, need instead to recognize that human nature (generally something subtler than what we reduce it to) may be, at some level, immutable, but how we frame the context in which it aggregates into social institutional consequences is not.
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Inspired by Libertarian’s frequently repeated and broadly representative complete lack of understanding of the true nature of property rights, and the true demands on government, I’ve cobbled together this post from some distilled and explained passages from a Property Law final exam I wrote a few years ago, with a few additions. Aside from illustrating some of the inevitable complexity of property rights, it also illustrates the inevitable and valuable role that courts play, and must play, in the precise definition of the law, because legislatures and regulatory agencies simply can’t anticipate all fact patterns. The complexities of the real world impose demands that can’t be met by exclusive reliance of a few general rules for general purposes.
The system by which bundles of property rights are distributed, defining social relations regarding access to and use of tangible and intangible “things,” is, arguably, the cornerstone of any political-economic system. Words like “capitalism,” “communism,” and “feudalism” refer, clumsily and imprecisely, to general property right regimes, within which infinitely finer gradations of multi-dimensional variation can be discerned. While ideologues often contemplate the broad political-economic “systems” listed above, and social scientists and policy analysts focus on somewhat finer gradations. it is the holdings of courts, by virtue of their embeddedness in the details of particular cases, that seep into the crevices unanticipated by political theorists and legislative and executive policy makers. While this legalistic obsession with minutia can sometimes lose the forest for the trees, it is particularly well adapted to exploring those fine gradations which the blunter (but more encompassing) instruments of conventional policy analysis often fail to discern. The scalpel of legal reasoning dissects, among other things, property parcels along various spatial, and potentially temporal, lines; “ownership” into a plethora of temporal, spatial, and conceptual estates; and a finder’s property rights according to the precise location of the item when it is found.
First and foremost, there is the issue of inevitable public property, such as the air we breathe, which involves the concepts of “public goods,” and the inevitability of having to regulate the ways in which our behaviors affect that public property. Some property that could be privately held isn’t, such as public parks. All of these must have their use governed by our public agencies, in order to ensure everyone’s equal right to enjoyment of them.
There is the related issue of how one’s disposal of or behavior regarding their own property can affect others’ enjoyment of theirs. Can I play my own stereo, in my own house, as loud as I want any time I want? No. Can I dump my own toxic waste in my own backyard? No. The myth that there is some simple world in which we each have absolute rights to use and dispose of property that we absolutely own does not and cannot reflect the complexity of interdependent rights and mutual responsibilities in the real world.
Cases involving “conceptual severance” illustrate that decisions regarding property rights depend on how you define the property. The Constitution guarantees that the government can’t take property without due process or compensation. “Takings law” often rests on the question of whether a property owner is deprived of the full value of their property by an act of government, or only part of the value. But whether the lose of value of some portion of an owner’s property is the loss of the full value or not can depend on whether the property is “conceptually severed” into separate parcels, so that the portion that lost value is either 100% of that conceptually severed portion, or only some lesser percentage of the value of the property considered as a whole.
In Pennsylvania Coal, for instance, one party owned the mineral rights and the subjacent support rights, while the other owned the surface rights. The Supreme Court held that a state law that coal companies can’t cause subsidence was a taking, since it deprived the coal company of 100% of the value of the subjacent support (conceptually severed into a complete property parcel). But, in another case, when Penn Central was denied the value of its air rights, since New York City’s designated landmark law prohibited the owners from building a high-rise over the old edifice, (in the form of building a high-rise over the old edifice, the Court inconsistently held that “’taking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated”. The inconsistency of the Court’s decisions in these two cases is not atypical, but rather reflects the fact that the same law, the same right, the same Constitutional protection, can be interpreted in two different ways, depending on whether you consider a partial property right to be 100% of that right, or less than 100% of the physical property.
Despite the conventional belief that all property is owned in “fee simple absolute” (outright ownership of the complete bundle of rights of a given parcel of property), property is in fact often divided into separate “estates,” with various people having various rights over the same property. Again, the law recognizes finer gradations than most of us ever knew existed, carving a single dwelling into a myriad of present and future interests. If someone has a future interest in a parcel (let’s say as eventual heirs) in which someone else has a present interest (e.g., the widow who gets to live in the house until the children inherit it), the person with the present interest can sell only their interest, not the parcel for all time (i.e., can only sell the right to live in the house while she is alive, but not thereafter).
What happens when land deeded to a school on the condition that it be used only for school purposes is converted into a storage facility after the reversionary interest has uncertainly passed through two more hands, or was possibly inherited from the original owners and subsequently disclaimed? The court sorts it out (Mahrenholz v. County Board of School Trustees). These are not the kinds of issues that legislators and regulatory agencies typically grapple with. These are the kinds of issues that fall through the nets other policy makers weave, and are caught in the more finely woven nets of legal analysis. Indeed, legal analysis is the art of sewing threads into the policy gaps through which particular situations have fallen.
Even when property is owned in fee simple absolute, there are various complexities and limitations, such as the infamous “rule against perpetuities,” and rules against restrictions on alienability. The latter means that the owner of a parcel can’t bequeeth it to someone else on the condition that they not sell it. One can debate whether some restrictions that exist on property rights are necessary, but a choice must be made between a current owner’s right to dispose of his or her property as he or she pleases (bequeething it with a condition attached) and a future owner’s right to do so. One must be restricted in the exercise of their right over their property to allow the other not to be. A choice regarding how to divide the bundle of rights over a particular piece of property has to be made.
The cases involving finders’ rights offer perhaps the best examples of the hair-splitting policy analyses engaged in by the courts. As a general guideline, the “first in time” principle holds. Ownership is considered relative, with a finder having a valid claim against any subsequent finder, but not against any previous finder or the “true owner.” But, of course, this begs the question of who qualifies as a “true owner” or a previous finder. If a brooch, lost or placed there by a previous owner, is found lodged in the wall of a manor house by a soldier billeted there, does it belong to the soldier or to the current owner of the house who never occupied the house nor knew of the brooch’s existence (Hannah v. Peel)? Is the owner of the house the “true owner” by virtue of having bought the house and everything in it, or a prior finder for having “constructively” found anything previously lost and left in the house he had bought, or does he have no claim whatsoever since the lost brooch was not actually found until it was found by the billeted soldier? And which of these solutions best serves the social policy purposes of property rights, such as giving the “true owner” the greatest chance of recovering his property? (The court, in this case, cited precedents going in all directions, distinguishing between property embedded in the ground and embedded in a wall, for instance, and then decided in favor of the soldier, almost arbitrarily).
Such fine legal distinctions carved, in part, by the lathe of policy considerations are evident in McAvoy v. Medina, in which the court had to determine whether a customer who found a wallet on a barbershop table, or the owner of the barbershop in which it was found, had the superior claim. The court made a distinction as to whether the object was mislaid or lost, as evidenced, for example, by whether it was found on a table or on the floor. If found on the floor, and therefore lost, it belonged to the finder, but if found on a table, and therefore mislaid, it belonged to the shop owner. The court held that since “[t]his property was voluntarily placed upon a table in the defendant’s shop by a customer…who accidentally left [it] there…, it was…the duty of the defendant, when the fact became thus known to him, to use reasonable care for the safe keeping of [the wallet] until the owner should call for it.” In other words, since the property was mislaid rather than lost, it could not be “found” in the legal sense, and since the true owner might well remember where he had mislaid it, leaving it with the shop owner rather than the customer best facilitated recovery. If the wallet had truly been lost (i.e., found on the floor), however, the rule granting the finder a valid claim would have prevailed. (It is possible, of course, that the rule established in this holding could have the adverse effect of encouraging finders of mislaid objects simply not to announce their finding, since by doing so they would relinquish any hope of keeping the object).
Legislators and regulatory agencies (let alone drafters of 223 year old Constitutions) can’t foresee all contingencies, and rarely craft laws so prescient as to include such fine distinctions as “embedded in the ground” versus “embedded in a wall,” or “found on a table” versus “found on the floor.” The courts are left to weave such fine filaments in the interstices of the coarser net of legislation and regulation, and even in the interstices of the Common Law, i.e., the fine (but never fine enough) filaments already woven by precedent. That they do so not merely with legalistic attention to detail, but also with broad notions of fairness and utility, with personal inclinations and prejudices, and even with occasional caprice, cobbling together (hopefully) plausible solutions to concrete problems in an ad hoc fashion, only serves to accentuate the continuity of legal analysis with other forms of policy analysis. It is a similar process carried out by human beings in a variety of venues, repeating itself in slightly altered form from the general to the specific, from the crafting of overarching guidelines to the cobbling together of particular applications, forever repeating itself on smaller and smaller scales, filling in the interstices wherever a case finds its way through the mesh of the policy net.
If there is an unanswered legal question, fine threads of policy are being woven in the process of answering it. If the case is never appealed, then the policy is ephemeral, a few strands of gossamer that dissolve the moment the case is disposed of. This is the level on which the finest filaments of temporally and situationally local policy are being woven.
The lesson of these examples is that those who state some broad brush-stroke ideological platitude, less precise even than the Constitution itself (see “Constitutional Idolatry”), are not stating anything that applies to all, or even many, of the questions that arise to challenge such all-encompassing notions. Not even those who state the rules with great precision and caution, trying to anticipate all contingencies, succeed in actually anticipating them. What we most require is a procedure for filling in the gaps, for making judgments in particular circumstances. The strength of our system is that we govern ourselves by the rule of law, but the rule of law is not, and cannot be, the rigid adherence to rigid laws that require no interpretation nor application, but rather a set of procedures by which to adapt imperfectly precise and inevitably ambiguous rules to precise circumstances.
Those who rely on any form of “Political Fundamentalism” are trying to reduce a world characterized by such complexities to some caricature or other, and to impose that caricature on our processes for governing ourselves, to our profound collective detriment. Governing ourselves, and forging our public policies, is an information intensive activity, in which we need to mobilize a variety of expertise in service to doing so effectively and intelligently. The particular form of Political Fundamentalism represented by people like Libertarian, characterized by “the unholy trinity” of “Constitutional Idolatry”, Liberty Idolatry, and Small Government Idolatry, simply disregards complexities such as those discussed in this post, which exist in far more abundance than most people realize, permeating every aspect of our lives.
Our Constitution provides the broadest of guidelines, the most loosely knit weaves of the net. Legislators weave strands into the gaps that are left, and regulatory agencies in the gaps that are left by legislators. Courts weave strands into the gaps left by all three. Those whe pretend that our laws are all, or should all be, cut-and-dry, and that there is no need for a complex network of various kinds of governmental agencies (from all three branches of government) constantly weaving the net of law by which we govern ourselves, simply do not understand either law or history, or the real nature of the challenges we face.
(This is the fourth in a series of four posts which discuss Tea Party “Political Fundamentalism”, comprised of the unholy trinity of “Constitutional Idolatry”, Liberty Idolatry, and Small Government Idolatry.)
To recap briefly, “Political Fundamentalism” is the mutation of christian fundamentalism that allows it to appeal more broadly to the highly secularized by equally dogma-reliant anti-intellectual populism that permeates our culture. Whereas there has long been cause for some concern about the fanaticism and cooptation by the Republican Party of right-wing evangelicals, I had always maintained that dogmatic ideology rather than merely religious fanaticism was the real problem, and that religious fanaticism in our highly secularized society could only go so far. This mutation into a secular fanaticism, equally rigid and dysfunctional, equally tyrannical, and equally anti-intellectual, is far greater cause for concern.
Political Fundamentalism is the continuation of the Inquisition, adapting to a changing world in an attempt to prevent the world itself from adapting to changing circumstances and insights, creating an obstruction to the continuation of the growth and application of the Scientific Revolution and the Enlightenment. Political Fundamentalism can be found all over the political ideological spectrum, just as religious fundamentalism can be found all over the religious spectrum, and, in both cases, the differences in ideological particulars are less compelling than the similarities in attitude. But the currently most dangerous form of Political Fundamentalism in America is the right-wing version, comprised of the three elements already named.
“Constitutional Idolatry,” the first element I wrote about, is the conversion of an historical document meant to provide a somewhat flexible legal doctrine and framework into a sacred text the caricature of which must be rigidly adhered to according to some non-existent and impossible literal interpretation. And “Liberty Idolatry,” the second element I wrote about, is the reduction of the concept of “liberty” to one divorced from consideration of interdependence and mutual responsibility, defending freedoms independently of consideration of the harm they may inflict on others or on all.
The third element in the unholy trinity of Political Fundamentalism is Small Government Idolatry. It is a fixed belief that smaller government is always better, that lower taxes and less spending are always better, that “government is the problem” (as Ronald Reagan famously proclaimed, ushering in a movement that will long be the bane of our attempts at designing and implementing reasonable proactive policies and public investments). Like its strongly intertwined fellow travelers, Constitutional Idolatry and Liberty Idolatry, it is a fixed belief, impervious to reason and evidence, insulated from compelling counterarguments or sensible attempts to achieve balance and moderation. It is a force for the contraction of the human mind, opposition to reason and knowledge, and obstruction of progress, at a very real and tragic cost in increased human suffering and decreased human welfare.
An argument against Small Government Idolatry is not an argument for big government (just as an argument against Constitutional Idolatry is not an argument against the Constitution, and an argument against Liberty Idolatry is not an argument against liberty). It is an argument in favor of doing the analysis, in favor of applying our principles knowledgeably and rationally in the context of a complex and subtle world, on a case-by-case basis. It is an argument for facing the responsibilities we have to one another and to future generations, utilizing authentic economic analyses rather than ideological pseudo-economic platitudes to balances the demands imposing themselves on government against the real economic and fiscal constraints that must discipline how these demands are met.
A blind commitment to “small government” is both humanly and fiscally irresponsible, for most economists, other social scientists, and lawyers recognize the inevitably large role that modern governments must play in modern economies, even independently of the demands that a commitment to social justice and improved equity impose on them. I’ve frequently referenced the role of information asymmetries in creating an absolute imperative that we continue to develop our regulatory infrastructure to keep pace with the opportunities to play the market system to individual advantage at sometimes catastrophic public expense. We’ve seen examples in the Enron-engineered California energy crisis of 2000-2001, and the financial sector collapse that nearly catalized a second Great Depression in 2008. Designing, implementing, and enforcing functional rules of the game for our complex market economy is an essential function of government, and one which already destroys the notion that a government too small too meet that need is preferable to one large enough to do so.
It is also fiscally, as well as humanly, irresponsible to let the problems of extreme poverty, child abuse and neglect, frequently unsuccessful public schools, high rates of violent crime, poor public health and inadequate healthcare for many, and other similar and related social problems, all of which form a mutually reinforcing matrix of dysfunctionality and growing problems that both undermine the safety and welfare of us all, and end up costing us far more to react to (with astronomical rates of very expensive incarceration, and other costs of dependency and predation) than it would have cost us to proactively address.
The fiscal concerns that the Political Fundamentalists identify are not to be disregarded, or treated as irrelevant, but rather are one set of considerations among many, to be included in a complete analysis rather than treated as always and forever dispositive independently of any application of reason or knowledge to the question of whether it is actually dispositive or not. The challenge of self-governance requires utilizing our fully developed and focused cognitive capacities, applied to all available information, in pursuit of intelligent and well-conceived policies. It is undermined by the imposition of an a priori set of fixed certainties that are impervious to both knowledge and reason.
We need, in our political discourse, less fundamentalism and more analysis, less idolatry and more (and better) methodology, less false certainty and more foundational humility. We need less deference to fixed and static beliefs, and more to our process by which we test our beliefs and improve upon them. We need less commitment to ideologies, and more commitment to working together as reasonable people of goodwill, doing the best we can to confront the challenges and opportunities of a complex and subtle world.
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