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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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This Week With Christiane Amanpour hosted an excellent debate this morning, with conservative pundit George Will and Congressman Paul Ryan on one side, and Congressman Barney Frank and Clinton Administration Labor Secretary Robert Reich on the other, over the fundamental, perennial issue of the optimum size and scope of government. First, please note that I did not frame it in the conventional way, with “small government” (SG) on one side, and “big government” (BG) on the other, because that is the frame created by SG advocates to mislabel their opposition. The real debate, as I see it, isn’t between SG advocates and BG advocates, but rather between SG advocates and advocates of “No Presumption Pragmatism” (NPP).
The legitimate concern is that NPP may tend toward limitless growth in government, but it is not therefore the case that those who are advocates of “no presumption pragmatism” are advocates of big government. Rather, it might be that there is an un-met challenge facing NPP that, if met, is a preferable path to either dogmatic SG advocacy or a careless, unrestrained-government growth version of NPP.
But there is an inherent tension between wanting government to perform an endlessly growing list of functions, and wanting government to be a minimalistic agent in our national affairs. ABC News’ John Donvan summed up that aspect of the debate nicely:
In the following introductory comments and opening salvos in this incarnation of The Debate, the participants lay out the parameters nicely, challenge some assumptions, redefine some positions, and offer some compelling insights and arguments:
Paul Ryan does an impressive job advocating his position, arguing that adhering to strict principals that generate optimal outcomes is superior to overreliance on government to take care of all challenges and address all issues, the latter error leading to a sprawling and cumbersome burden on human creativity and enterprise rather than an effective reduction in social problems and increase in human welfare. Barney Frank and Robert Reich respond that the government is too big in some ways and too small in others, and that reducing one’s position on the issue to an anti-government presumption fails to address the real challenges of managing a popular government.
Frank points out that many SG advocates are perfectly happy to rely on government to impose their will on others, advocating restrictions on women’s reproductive rights and a lack of definition of civil rights for gays and lesbians, while opposing the use of government in the productive manner of addressing “public goods” and “public bads,” not defined by arbitrary moral convictions, but rather by the real effects of our inevitable interdependence on our individual well-being. Reich reiterates that the question isn’t the size of government, but rather what factions of the population government is assisting or failing to assist.
Paul Ryan’s argument that smaller government is inherently more efficient and more effective than big government simply ignores the inevitable fact that any government function costs money, that, in a complex modern economy, there are a plethora of inescapable and quite expensive government functions that must be performed (e.g., regulating information-intensive markets such as financial and energy markets, which are easily gamed at potentially catastrophic public expense, but costly to monitor effectively); that the majority of the government programs targeted by SG advocates (with the notable exceptions of Social Security and Medicaid) actually involve piddling expenditures in relation to these large inescapable costs that government must be able to meet; that advocacy not to meet those inescapable costs is advocacy for a wildly self-destructive public policy; and that many of those piddling expenditures are in programs which research strongly demonstrates reduces far larger future costs that occur in their absence (such as those we currently incur in our enormous criminal justice system, far larger and more expensive, per capita, than those in other developed countries, incarcerating a far larger proportion of our population).
Since, in reality, there are expensive functions that a modern government must perform, and since, in reality, some social welfare programs have been strongly demonstrated to be cost effective over time, all things considered, what we as a polity really need to do in this debate is to transcend both the “big government is bad” platitude and the “every problem has a direct government solution” habit, and move into thinking more systemically, more intersectorally, and engage, in ever larger numbers with ever more commitment and knowledge, in the real challenge of using government as a disciplined and effective agent of our will, a portal into the organic processes of which we are a part, through which the essential functions of consciousness, of collective decision-making, of necessary oversight, of intentionality and value-driven intervention, can be implemented.
The debate in response to the audience question at the end over bailouts v. limiting the size of banks so that none are “too big too fail” is, as Robert Reich pointed out, an example of an information-intensive issue on which the relative positions of “conservatives” and “liberals” is not quite clear. The conservatives in this debate favored limiting the size of banks, while Frank on the liberal side argued that we require a different paradigm that allows for the existence of big banks in order to be internationally competitive. Though this Great American Debate historically began, in many ways, over a very similar question (should we have a national bank or not?), in its modern incarnation, it’s less ideological than technical, both sides admitting to the need to rely on economic analysis rather than blind ideology, neither side having the definitive solution to what is in reality a very complex problem.
The next segment deals with economic inequality and collective responsibility:
Elizabeth Warren’s introduction to this segment of the debate is, I believe, a very eloquent expression of the fundamental truth undermining the extreme SG/Libertarian argument: We are interdependent members of a single society, our political economy not being, never having been, and simply not capable of being, a mere market place for exchanges among atomized individuals, but rather an arena of coexistence in which some aspects of our shared lives are coordinated through market exchanges, but some aspects are necessarily coordinated in other ways as well.
These “extra-market” aspects of our shared existence aren’t just cultural, aren’t just a matter of family relationships and community relationships and voluntary organization memberships, but are also political and economic, involving our collective decision-making apparatus, our laws, and the ways in which a modern capitalist economy is populated with corporate actors whose own internal structure is hierarchical rather than “free market” based, and which wield enormous political power as a result.
The distribution of wealth and opportunity in America is clearly not a function of some mythical perfected meritocracy, but, as in all times and places throughout human history, is primarily a function of historical injustices reproduced through the chances of birth and the inherited opportunities and burdens that come with them. Our current legal system, evolved through periodic cleansings of the codification of those injustices, has certainly diluted the effects of those historical injustices, but their remaining legacy is clear to see, and is, in fact, a statistically undeniable current reality. Whatever policies we implement or decline to implement today, doing so with blithe disregard for the realities that currently exist is indefensible on both pragmatic and moral bases.
Paul Ryan’s response to Christiane’s opening question about economic inequality bordered on disingenuous: He blamed “current economic policies” for that growing disparity, despite the fact that the disparity has grown with the greatest acceleration, as it has in previous historical epochs, with the growth of deregulation and the success of SG political advocacy. This trend can clearly be seen in the three eras of most obscene concentration of wealth in America: The era of “The Robber Barons,” the “Roaring Twenties” of the Hoover Administration, and the current Reagan and post-Reagan era.
Ryan also, as he did throughout this debate (and as is an endemic deficiency in his ideological camp’s position), acted as if there is no other nation in the world with which we can compare our policies, to determine which kinds of policies really do increase social mobility and decrease economic inequality, and which ones really do exacerbate the lack of social mobility and the increase in economic inequality. The inconvenient fact is that a comparison to the social democracies of Western Europe and Canada demonstrates what the historical record I mentioned above also demonstrates: Social mobility is increased through social democratic government interventions in the economy, economic inequality is decreased, and prosperity is not undermined.
Paul Ryan argues that any attempt to decrease social inequality inevitably serves only to impoverish the wealthy rather than enrich the poor. This is an assumption and a fallacy. Historically, in fact, our political economic institutions have evolved in large measure to decrease social injustice (including economic inequality) without undermining the productive engine from which we all benefit. We’ve been successful enough at the latter goal that we consider merely slow growth to be economic failure, and periods of economic stagnation to be a crisis, and have, on average, maintained a fairly constant and sustained continuing growth in overall economic prosperity. While we’ve met that side of the challenge rather soundly, we not only have failed to address the increasingly inequitable distribution of the wealth thus created, but have actually devolved into a debate over whether we should care about that failure or not.
Ryan and Will represent the more “urbane” branch of their ideological movement, counterfactually insisting that their position decreases inequality and increases social justice, rather than that inequality and social injustice don’t matter. Unfortunately for Ryan and Will, the history of our own nation, and a comparison to other nations, demonstrate that the truth is the precise opposite of what they are claiming it to be.
Robert Reich added the observation that both the marginal tax rate on the wealthiest, and economic growth, were astronomically high under Dwight D. Eisenhower, debunking the assertion that they are antagonistic to one another.
George Will argues that Big Government always favors the wealthiest and most powerful, because it is most responsive to those who can pay expensive lobbyists and make large campaign contributions. Well, yes, government is skewed in favor of those with greatest political economic power, which is why the anti-government, deregulation movement has been so successful: It favors those with the greatest political economic power. To argue against using government to favor the interests of the less powerful on the basis that any government action is somehow inevitably going to favor the more powerful is a bizarre tautology, especially given the historical fact that disenfranchised groups have with some regularity successfully organized to gain power and legal protections throughout our history (e.g., women, African Americans, workers, environmental activists, etc.)
George Will then brought up the interesting observation that (therefore) the welfare state in America is primarily a transfer of wealth from the poorer young to the wealthier elderly (in the form of social security and Medicare). But this is a surprisingly sloppy representation, since neither the young nor the elderly are monolithic in their economic condition. I do agree, however, that social security and Medicare should be means tested; as a nation, we simply can’t afford to subsidize the wealthiest with public programs designed as safety nets.
But it is completely disingenuous to argue that the primary reason for that intergenerational disparity in wealth is due to Social Security and Medicare. The fundamental reason is insufficient government regulation of a market successfully exploited by a small minority of citizens over the course of their lives, such that they accumulate astronomical wealth by old age, creating the disparity that Will cites.
Ryan, however, made a potentially good point that Big Federal Government concentrated in Washington creates a convenient geographic and institutional nexus of power for corporate America to influence the political class. However, ironically, the policies that are most implicated in anti-BG advocacy are those policies that are most antagonistic to corporate interests, such as improved public health and safety standards, improved environmental standards, and expanded social services and programs for the neediest. The success of corporate lobbyists isn’t primarily the increase of government action to their benefit (though there is, of course, some of that), but rather the decrease of government action to their benefit (i.e., deregulation).
I do believe, however, that we need to move toward a paradigm of government facilitated public empowerment to carry out some of the functions currently embedded in governmental bureaucracies. Government can serve best to channel resources and pass legislation that will fund and guide local efforts. We need to think and act more systemically, in a more decentralized way, rendered coherent and conscious through our central agency of collective action (i.e., government), but utilizing all of the social institutional material on the ground in pursuit of social problem solutions and social institutional improvements.
The audience question that opens the next segment is very timely for me, since just yesterday I received my first “photo surveillance” ticket in the mail:
Paul Ryan’s repetition of the notion that economic equality automatically grows with economic growth is well answered by Barney Frank, who pointed out that economic growth is a necessary but not sufficient condition of wide-spread economic well-being
In fact, aggregate economic growth and economic equity (distributive justice, which is one aspect of social justice) are neither diametrically opposed nor perfectly compatible. There is a tension between them, in which some policies could indeed increase aggregate growth at the expense of distributive justice, some policies could increase distributive justice at the expense of economic growth, and some policies increase both economic growth and distributive justice at the same time. Obviously, the last category has the most to recommend it, but there are also times to accept trade-offs between aggregate growth and equitable opportunity to partake of the wealth produced by it.
As a thought experiment, consider the extremes: Few would support an arrangement by which one person accumulates ten times our current GDP every year, but everyone else is left in abject poverty. And, similarly, few would accept an arrangement in which there is absolute equality of abject poverty. There is clearly some balance to be struck between these two values.
Of course, Paul Ryan is right on target in the gist of his last remarks at the end of this segment: We need to end crony capitalism, eliminate subsidies to the rich, and address our economic challenges systemically. Those observations, however, do not belong to the larger ideological package that he is advocating, and, in the final analysis, are not compatible with it.
And on to the closing arguments:
Diminutive Robert Reich’s joke during his closing argument, reminding the audience that he has worked in government most of his life and then standing up and asking, “Do I look like Big Government to you?” struck me for a moment as funny but irrelevant, until I reflected on it a bit: Government is a human institution, comprised of human beings, acting in human ways. It is how we use it (and how we fail to use it), and what we do with it that defines its value. It is a vehicle of human will, not an external imposition, and it is, and should be, exactly as “big” as we are.
But, despite all of my arguments above, the take-home lesson from this debate, for everyone, should be that there is a legitimate debate to be had. From there, we can begin to acknowledge that no platitude suffices, and that the question is not one that can or should be answered with a slogan or reductionist philosophy. The responsibility of popular sovereignty, of self-governance, is that we govern ourselves wisely, succumbing to the manias and oversimplifications neither of the left nor the right. The more of us who take that step, who seek to transcend blind ideologies and embrace the challenge of being reasonable people of goodwill working together in a complex and subtle world, the better off we all will be.
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I’ve decided to coin a new term, “sharianity,” which is defined as the state of mind implicated in the citing of examples of sharia law being enforced somewhere in the world (or imagined instances of it being enforced somewhere in the United States) to stoke up anti-Muslim hysteria here at home (by arguing, arbitrarily, that sharia law is taking over America, and that, therefore, we must discriminate against all Muslims living in the United States). In two threads (so far) on Facebook, I have taken on this particular hysteria, part of the larger anti-Muslim hysteria sweeping across some factions of this country.
It’s important to emphasize that opposing the exploitation of horrendous acts of violence abroad under the guise of sharia law as a pretext for advocating prejudice and discrimination here at home is in no way a defense of or tolerance of or acceptance of those acts of violence. Just as the opposition to rationalizing any other form of racism by pointing to some crime committed by some members of a given race as a pretext for that racism is not an expression of approval for the crimes committed, so too opposing rationalizing this form of racism by pointing to some crime committed by some members of the given race (or, in this case, religious community) does not in any way imply approval of the crimes committed.
While it may be true that a significant portion of world Muslims support aspects of Sharia law repugnant to Americans, it’s also true that those who exploit that fact most vigorously to condemn all Muslims en masse are precisely those Americans who are most similar to those who endorse and enforce sharia (close-minded, bigoted religious fanatics). Jihad, meet Crusades, brought into the Modern era by remarkably similar throw-backs of two different stripes….
One commenter captured the cornerstone of that fanaticism with the assertion that, since both Islam and Christianity can’t both be right at the same time, to be tolerant of Islam is not enlightened but rather confused. I’ve addressed this error of false absolutism many times (see the essays linked to in the fifth box at Catalogue of Selected Posts, plus A Dialogue on Religion, Dogma, Imagination, and Conceptualization and An Argument for Reason and Humility). To summarize:
1) The world is comprised of groups of people, each defined to a large extent by some set of shared beliefs. Many or most of these hold beliefs that are considered “exclusive absolute truths.” In other words, they hold some ideological conviction (often, though not always, in the form of a religion) that they consider the absolute and indisputable truth, such that they know that their dogmatic certainty is the one correct one, and all others are wrong.
2) Of those that share this characteristic, at most one can be correct (though not necessarily any are).
3) By adhering to these exclusive ideological certainties, all such ideologues guarantee a perpetuation of a world divided by such mutually exclusive ideological absolutisms, often violently so, and, as we see in this case, even when not violently so, at least hatefully so.
4) Exercising the wisdom of humility, knowing that none of us are in possession of the one, final, absolute truth, but rather are mere human beings striving to understand a complex and subtle world and universe, is not the error of “relativism,” as such adherents insist, but rather the recognition that, while there is a single, coherent objective reality, our ability to ascertain it in its entirety is so limited that our various attempts yield these mutually exclusive absolutists ideologies instead.
5) This habit of thought is also the basis of the most robust system of gaining deeper and broader understandings of nature ever yet invented: Scientific methodology, which is based on skepticism rather than faith.
6) Faith may be a virtue, when it is pure enough not to conflict with humility, and takes the form not of words and beliefs, but rather of a sensation of being part of a wondrous and awe-inspiring reality. In this form, our religions become wonderful windows onto something that transcends them, and become languages that cease to divide us in violent and hateful ways.
Several commenters on both threads insisted that “they” (i.e., Muslims) have brought this on “themselves” by committing acts of terrorism and violence. This is, not surprisingly, a very popular meme. It’s also a very irrational one. I don’t recall a sudden outcry that white Americans had brought such prejudice on themselves when Timothy McVeigh, acting in the context of a large organized anti-government movement (that is even larger and more vocal today, and has even more paramilitary groups running around in grease paint firing semi-automatic weapons), bombed the Alfred P. Murrah Federal Building in Oklahoma City (killing hundreds, many of which were children in the daycare center in the building). We use that concept of “they” very selectively, to vilify those out-groups we are predisposed to vilify, but to individualize acts of violence committed by members of groups (generally in-groups) we are not predisposed to vilify.
One commenter asked “Where is your compassion for the young lady (who, according to the story, was executed under sharia law for participating in a beauty pageant) ??????” Again, condemning the hateful bigotry rationalized by means of exploiting that tragic event does not equate to indifference to the tragedy of the event itself. Americans commit crimes all the time, and their victims deserve nothing but compassion, but I doubt that many Americans would find that a convincing argument why generalized hatred toward Americans overseas, rationalized as a reaction to the crimes some Americans commit here (or there), can’t be criticized.
Or perhaps a better analogy is that America is one of the last developed countries to retain the death penalty, considered utterly barbaric by the citizens of most developed countries, and yet these same folks who are indignant over the lack of compassion shown by my criticism of their bigotry would be the quickest to take offense at any similar bigotry directed toward Americans in general by virtue of our continued execution of occasionally innocent convicts.
The trick of finding an atrocity committed by the group toward which you are eager to direct your bigotry is an old one. It was used frequently by people very much like the “sharianists” (those who invoke sharia as a pretext for anti-Muslim bigotry) to rationalize their own racism in the past, just as it is being used now to rationalize the popular prejudice of the present. If there had been an internet fifty or sixty years ago, Southern racists would have posted news stories of African Americans committing crimes, using those stories to condemn African Americans in general, just as some are now doing to Muslims.
The problem, of course, is that bigots are always perfectly insulated against any information that might expose to themselves the ignorance and hatefulness of their own bigotry. That’s the beauty of ignorance: Those who suffer it are able by virtue of it to ignore all information and reason that might inconveniently challenge their bigotry. And so the disease of racism, of bigotry, of hatred, “wrapped in a flag and carrying a cross” (as the very prescient and insightful author Sinclair Lewis said of how Fascism would come to America), marches on, unstoppable. And these new bigots are its foot soldiers.
The concept of “tolerance” popped up, of course, both rejecting and co-opting it at the same time (“those animals don’t deserve to be tolerated, but, if you’re so committed to tolerance, what about tolerating us bigots?”) But tolerance does not mean tolerating specific crimes by specific people; it means tolerating diversity that is not violent or predatory in nature. Being Muslim is not violent or predatory in nature; hating Muslims is.
But there is a degree of tolerance required, even of those who express such bigotries. I believe in the degree of tolerance that recognizes their speech to be protected, and to be opposed not with physical force, or any suggestion of any call to physical force, or any suggestion of any call to the passage of laws prohibiting such positions, but rather just with reason and knowledge and the power of competing speech. But it should not be tolerated in the sense of being disregarded and left unopposed by better reasoned, better informed, and more life affirming ideas and arguments.
Several commenters typically, tried to “rubber-and-glue” me in various ways, suggesting, for instance, that by criticizing them I was committing the same error they were supposedly committing by criticizing Muslims (unsurprisingly unable to distinguish between criticizing specific people for their own specific behaviors and criticizing whole categories of people for behaviors committed by some members of those categories). Two on two different threads bizarrely invoked the “glass house” proverb, suggesting that it was wrong of me to “throw stones” at them for the sin of throwing stones at Muslims in general.
One commenter implied that I must be an anti-Christian “bigot” since I was criticizing these good Christians for hating Muslims, to which I replied that no, I didn’t hold Christians in general responsibility for the viciousness of some. I also referred them to my arguments in A Dialogue on Religion, Dogma, Imagination, and Conceptualization, in which I argued vehemently against such anti-Christian or anti-religion presumptions.
I pointed out to another the questionability of insisting that “Christianity” stands in opposition to “liberalism.” Many great liberals have been Christians. Many liberal civil rights leaders have been men of the cloth, and a whole movement called “liberation theology” was prominent for decades, particularly in Latin America. I pointed out that one of the great ironies cited by many on the left is that the words attributed to Jesus sound much more like words that could be spoken by American liberals today than by American conservatives, with a focus on social justice and compassion and “tolerance” and a commitment to humanity. I pointed out that the commenter did not represent Christianity in its entirety, any more than those murderers in the article represent Islam in its entirety.
Several commenters tried to justify their reporting of the incident as unassailable in and of itself, though it was clear that the purpose was to advocate for discrimination against Muslims here in America. I pointed out that of all the destructive ideologies that exist in the world, when a group of people repeatedly seek out and publish examples of one in particular, plucked from the far side of the planet, to make a specific point about a specific culture that, coincidentally, they have been striving to vilify in general, here at home, for the past decade, that is no longer simply the condemnation of a particular set of violent acts motivated by a particular belligerent ideology. It becomes clearly identifiable as a pretext for an antagonism focused on a particular race or ethnicity.
Present in all of this was another example of one of the great ironies of modern American right-wing ideology: While its adherents claim, on the one hand, to believe in individual responsibility, they also think in very collectivist terms. The incident they cite is not about individuals committing an act of violence, but rather a cause to indict an entire culture, not all of the members of which subscribe to sharia law (and of those that do, not necessarily this more repugnant variety of sharia law).
There are some other great ironies embedded in this ideology. The habitual dismissive disregard for the Constitution espoused by the ideological camp that claims most loudly to be the great champion of the Constitution, for instance, is discussed below.
But a less well-known right-wing hypocricy is the convenient blend of relativism and absolutism. A subjective relativism is invoked to insulate arbitrary opinions, such that no opinion can ever be deemed better informed or reasoned than any other. This is combined with a conveniently invoked absolutism that declares that the set of arbitrary opinions, each of which can’t be challenged because all opinions are equal, comprise together the One Exclusive Truth by virtue of the fact that anything else would imply the error of relativistic thinking!
So, it is possible to condemn Muslims for being Muslims and insist that they must be excluded from American society as violators of absolute truth, and condemn those who say that this is bigoted for failing to accept just one more equally valid opinion! Reminiscent of John Calhoun insisting that the liberty of slave owners was threatened by emancipation of slaves (and that the rights of minorities had to be protected by ensuring that the rights of African Americans weren’t), these specimens insist that their right to be different by advocating for the discrimination of others is the one difference that should be respected!
This deftly convenient blend of relativism and absolutism came up repeatedly in the assertion that the commenter’s personal experience and personal perceptions were inviolate, and that therefore any suggestion that any of it might be empirically false or irrational or offensive was just someone else’s opinion, and therefore inadmissible as a response to the commenter’s condemnation of others for their (the others’) beliefs or identity.
There is clearly a convenient inconsistency, as well, in the way in which the selection of what to be indignant about and what not to be indignant about occurs, serving a blind ideology rather than a rational and humane philosophy. There’s no indignation over one of the richest nations on Earth being obstructed (by them) in its efforts to address poverty, homelessness, hunger, and other forms of needless and curable destitution within its own borders, a travesty that is actually within their political power to confront, but there is boundless indignation over the sins of a distant culture operating in a distant land, because that travesty is committed by a foreign enemy that they are eager to vilify.
We are talking about a political and cultural movement in America which blends the worst of all ideological worlds, mixing a form of individualism only invoked as a justification for belligerence and indifference to the neediest in our own society with a form of collectivism only invoked as a justification for belligerence toward all those outside our own society. It is a particular blend of individualism and collectivism selected not to serve humanity, but rather to attack humanity, to hate rather than to help. (See The Catastrophic Marriage of Extreme Individualism and Ultra-Nationalism for a more in-depth discussion of this issue.)
Here is one telling comment, that was applauded by others on the thread:
Americans were traumatized by 9/11. And, because of that they will be develop a certain dislike or mistrust of the culture that perpetrated it. That’s understandable. The fact that moderate muslims do not denounce the radical muslims looks like tacit approval of 9/11. The fact that when muslims emigrate to the US and other countries, they remain insular also doesn’t help. Western culture is so different to theirs makes it difficult for them to do so. Having American citizens of muslim descent become terrorists doesn’t help. So I suspect those are probably reasons why we are seeing the intolerance.
While my experience is anecdotal, female friends of mine have had problems with muslim men at work. The men feel strongly that they should not have to work with women and that women should not work at all. Well, this is America and women work outside the home. Furthermore, A muslim man just about knocked me to the curb when I was in London in May. I was in his way. I guess as an infidel and a woman, he felt he could do that. I made it clear that it would be assault if he even touched me. There were muslim-only cafes in London and women were not permitted in some. Wonder if this is what we will see in America if we’re not vigilant? Will we tolerate that sort of discrimination? I never thought I’d see it in London. Should we tolerate that here?
I’m also concerned at the apparent acceptance of sharia law and the apparent small inroads it’s making in the US. IMHO, islam needs a reformation–it’s like it’s operating in a bygone era. Educating the people would help. Once they’re educated, they’re not as dependant on one person’s interpretation of the koran as we see now in some muslim countries.
I’m glad I’m of a certain age. Our children and grandchildren will have quite the challenge on their hands.
Another commenter responded to this by asserting that she is not a bigot for agreeing with it, but rather “a realist” who “see(s) Islam for what it is.” Ironically, both emphasized that Islam is stuck is Middle Ages, apparently not having a mirror handy to notice the Inquisition and Crusades standing at each of their shoulders.
I responded to the latter’s assertion that these were “very good examples” by pointing out that they are very good examples of how to rationalize xenophobia, by combining false (and empirically refutable) assumptions with an assumption of being completely justified in an anti-Muslim agenda. I pointed out that a huge number of moderate Muslims have denounced the 9/11 attacks; that their denouncements have been all over the media for the past decade (and I provided some links to inventories of such denouncements by Muslims), and that her twice repeated insistence that no such denouncements occurred was an example of “confirmation bias,” by which one perceives what is most ideologically convenient for them to perceive.
This all, of course, boils down to defining the world in terms of in-groups and out-groups, and then conveniently looking for all of the reasons to condemn all of those who belong to the out-groups, while blithely disregarding all of the often very similar (and sometimes more egregious) transgressions being committed by those who belong to the in-group. (See Inclusivity & Exclusivity.)
The main argument is that, since there are threats confronting America, any degree of xenophobia is justified. There are real threats and challenges in the world that impact the United States, both within and without its borders. But, while we have laws governing people’s actions within our borders, their freedom of belief, speech, association, and religion are all constitutionally protected. (There are fairly well-defined exceptions to freedom of speech of course: You can’t incite violence, commit slander, etc. Also, freedom of religion stops when a practice claimed to be a religious one violates a law whose purpose is other than to infringe on the religious belief itself.) If someone violates our laws, we prosecute them for doing so. If they don’t violate our laws, then there is no issue.
What we don’t do, what we have learned is the wrong thing to do, is to identify people according to their religion, ethnicity, race, or political ideology, and in some way or another, target them for those things in and of themselves. Being Muslim in America isn’t a crime, must not be perceived to be a crime, and those who treat it as a crime are the ones in error. Gross, horrible, shameful error.
The commenters were adamant that we are not doing enough to nip this threat in the bud, to confront and obstruct the intrusion of Muslim culture into our society. But we have a little thing called the US Constitution, which guarantees all Americans, and all legal residents, freedom of belief, of religion, of assembly, as long as they do not break any Constitutionally permissible laws in the process.
Ironically, once again, the same ideological camp that crows about being the true defenders of the Constitution turns out to be the principal threat to the Constitution, trying to whip up a predisposition to target a particular religious community living within the United States that, to the extent that it is translated into the kinds of policies consistent with that predisposition, would be a frontal assault on both our Constitution and our decency as human beings.
Among the comments were comments about how all of this bigotry is justified by the clash of cultures, somehow exhibiting a complete historical amnesia concerning how discredited that justification is. One of those commenters then insisted that all of these fine people posting on that thread would undoubtedly treat Muslims they encounter with love and respect, to which I pointed out that some of the posts included: “Those Jackasses Muslims (sic)…,” “AND THE GOVERNMENT LEADERS IN AMERICA STILL SAY WE CAN CO-EXIST WITH THESE ANIMALS ?? WAKE UP, PEOPLE !!” I mentioned that maybe that was a form of “love and respect” I just wasn’t familiar with.
There was then an endless going round in circles over the insistence that calling people “jackasses” isn’t bigotry, conveniently disregarding that feeling the need to impugn their entire religious community while doing so is. And no amount of pointing this out had any effect whatsoever.
There was the suggestion that I should be criticizing those Muslims who enforce sharia law overseas rather rather than those criticizing them here, to which I responded that 1) they are not mutually exclusive, and when I enter into conversations with Muslims in which they take positions that I find offensive, I have no hesitation to take them to task for it; and 2) having said that, there is a difference between criticizing remote others with whom I am not engaged in any process of shared self-governance and over whom I have little or no influence, and criticizing fellow citizens advocating an attitude and a policy for our nation that I find offensive and reprehensible.
There were comments about “birds of a feather,” and invoking the name of Danny Pearl as justification for the bigotry. I responded to these with:
….
2) The existence of categorical identities is certainly a staple of human history. Whether we will always have them or not is not something my crystal ball can tell me, but they have always existed and do exist today. But what we do with them has certainly been variable, ranging from genocide to amicable co-existence. The question isn’t whether those identities exist, but rather when the focus upon them serves no purpose other than as a vehicle for inter-racial or inter-sectarian hatreds. The former may be inevitable; the latter is not.
….
4) To use individual acts of violence as an excuse for sectarian hatred may seem rational and defensible to you, but it is the same thing you are condemning; it is what killed Danny Pearl, not what will save the Danny Pearls of the future; it is the problem, not the solution. It is bigotry.
To assertions that the anti-Muslim hysteria is justified by terrorism, I responded:
….
5) Since a significant portion of Muslims do not support sharia law, and do not condone the 9/11 attacks, Muslims in general cannot be held responsible for either; only those Muslims who support sharia law or condone the 9/11 attacks can be held responsible, among Muslims, for supporting sharia law or condoning the 9/11 attacks.
6) This is especially true since there is no centralized decision-making authority embracing all of Islam, and certainly no pan-Islamic democratic mechanisms by which Muslims in general can be held responsible for particular factional “policies” of Islam.
7) The criticism isn’t directed at any one who object to sharia, or object to terrorism, or discuss either in the context of Islam, but rather precisely and specifically at those who exploit the existence of sharia, and of the terrorist attacks, to foment hostility toward members of a particular religious community IN GENERAL.
8) Cultivating antagonism toward such an ethnic community, en masse, rationalized by factually less-than-accurate assertions that Muslims have a monopoly or near-monopoly on terrorism, by means of the absurd assertion that America is under threat of being overtaken by sharia law as evidenced by its patchwork existence in distant lands, is, indeed, an expression of xenophobia, not of a well reasoned and defensible reaction to real circumstances.
9) Terrorism comes in many forms. We normally use it to refer to the weapons of the weak, fighting against stronger powers by the only means they have, which is to attack the most vulnerable. And I am 100% in agreement that such attacks are reprehensible, but I am not in agreement that they are significantly less reprehensible than killing or being responsible for the killing of tens or hundreds of thousands of innocent victims of “collateral damage” inflicted by larger military powers just as eager to exert their influence forcefully in the world, but able to do so without targeting civilians specifically. The point is that many things escalate reactionary cycles of violence, and it is very common for those culpable in one way to only perceive the culpability of those who have inflicted violence on them, rather than include awareness of the violence they’ve inflicted on others.
10) Even terrorism more narrowly defined is hardly limited to Islam. It has been exhibited in the Balkans, in the former Soviet Union, in sub-Saharan Africa, and even by right-wing anti-government fanatics in the United States (remember Oklahoma City?).
11) There are always ready rationalizations for stoking the fires of tribalistic and religious hatred, such as those you’ve cited. Those you condemn for their violence committed their acts of violence in the heat of a very similar mania, and the repetition of it here and now is likely to feed, directly and indirectly, into acts of violence committed in its name. The anti-government extremists who stoked up that rhetoric in the years leading up to the Oklahoma City bombing I’m sure feel no responsibility for that act of violence either, but without them, it would never have occurred.
12) The fact that violence exists, that some of it is perpetrated by Muslim extremists, and that people have suffered horribly at its hands, does not justify or legitimate stoking a frenzy of anti-Muslim sentiment directed toward peaceful and law-abiding Muslim citizens and residents of our own country.
….
14) If the concern is over terrorist attacks, then stoking those fires of reactionary tribalistic hatreds is not a very wise strategy for reducing the frequency or risk. In fact, the bigotry I am addressing increases rather than decreases our vulnerability in a multitude of ways, by cultivating more hatred directed toward us in reaction to it, by reducing cooperation of those best positioned to provide information that would help avert such attacks, by, in general, pushing people deeper into antagonistic camps, including people who never would have been antagonistic to us otherwise. You don’t address the threat of terrorism by starting with rationalizations for racial or religious hatred, but rather by asking yourself first and foremost “what set of policies would best and most effectively reduce this risk?” The answer to that latter question is complex and multifaceted, but included within its matrix is “the reduction of anti-Muslim hysteria in the United States today.”
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I believe in the human endeavor. I believe in our ability to become ever wiser and more compassionate as a society. I believe that the technological and social institutional innovations we’ve come to take for granted, many of which were unimaginable just a few short generations ago, are ripples on the surface of an unfathomable sea of possibilities, and that what we accomplish in generations to come, like what has come before, will appear in retrospect not just to be more of the same, but rather profoundly revolutionary and transformative, and acceleratingly so.
But there is nothing automatic about the direction this punctuated evolution takes, and no guarantee that it will be benign rather than malignant. In what ways and to what extent, in service to which emotions and inclinations always vying for dominance within and without, we free the genius of the many, this captive giant fuming within her prison of oppression and repression, of intolerance and intransigence, will determine what wonders and what horrors we unleash.
Will we find new, more sterile and yet more virulent ways to enslave minds and souls, to shackle the human spirit by overlords of fear and bigotry, using our genius against itself in acts of brilliant inhumanity? Or will we harmonize more deeply and fully, through soaring but disciplined imaginations, with the malleable but coherent dream of which we are but a part?
Our minds form an ecology of their own, with flora and fauna of our fancy reproducing, evolving, giving way to new forms. We thrive best when we harvest most of that cognitive diversity, articulating the novel into the complex, sublime whole, accommodating more, suppressing less. So it’s no surprise that a sociologist such as myself, who perceives us less as a collection of individuals and more as slightly individuated moments of a shared consciousness, would become an advocate for mental diversity and mental freedom, for that mind we share does not best thrive by imposing as much conformity as fear and convenience counsel, but rather by tolerating as much non-conformity as wisdom and compassion allow.
If this movement, and this organization, were just about helping those in mental or emotional distress to find greater harmony within and avoid the ravages of a brutally destructive psychopharmacological paradigm imposed from without, that would be more than enough to inspire me to join in the effort. But it’s also about all of us together finding a richer and subtler harmony among ourselves and beyond ourselves, about that mind we share spiralling toward enlightenment, and about the increased wealth of joy and wellness we can produce together, from which we all can draw.
It’s to that latter ideal that all of us who believe in the human endeavor ultimately aspire.
(For essays and vignettes related to this one in various ways, see, e.g., Kick-Starting A ClearMind, Symptoms v. Root Causes, An Eddy In The Stream, The Politics of Consciousness, The Fractal Geometry of Social Change, The Hollow Mountain, and A Proposal: The Politics of Reason and Goodwill.)
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(The following essay is in large part drawn from and inspired by conversations I have had recently with my friend Dr. Mark Foster on these subjects. The opinions expressed, however, are my own. You can find Mark’s blog, “Healthy Living in Colorado,” at http://markfosterdo.blogspot.com/.)
I’ve previously discussed various aspects of the creative tension between the individual and the society, how it implies a more subtle and complex conceptualization of “liberty” than is currently in vogue, and how it reaches to the heart of how we define ourselves as individuals and how we organize ourselves as societies. These essays most explicitly include Liberty & Interdependence, Liberty & Society, Rights v. Security, Freedom & Coherence, Inclusivity & Exclusivity, E Pluribus Unum, The Meaning of “Representation”, Free Will, Determinism, Quantum Mechanics, & Personal & Social Responsibility, Social Coherence and Disintegration, Collective Action (and Time Horizon) Problems, The Genius of the Many, and The Inherent Contradiction of Extreme Individualism, to name a few, but really include most of the essays on Colorado Confluence to some degree or another, because the creative tension between the individual and the society is at the heart of so many issues, on so many levels, through so many disciplines.
One aspect of this creative tension involves a set of interrelated issues on both the individual and social levels, touching upon our notions of mental illness, deviance, human variation, professionalism, and tolerance or accommodation, and how all of these things integrate into our social systemic reality.
Mental Health has traditionally been conceptualized as a duality: Those that are mentally ill, and those that are not. Some things that used to be considered mental illnesses (such as homosexuality, until 1974 according to the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association) no longer are, but it involved the moving of an item from one category to another, not a reconceptualization of the categories themselves. I addressed this somewhat in Sound Mind, Sound Body, Sound Society; Sound Good?
The similar duality involving deviance v. social conformity has experienced some parallel developments. It could be argued that homosexuality, removed from the rolls of mental illnesses in the 1970s, has remained until recently, in many or most minds, within the broader category of “social deviance” (and remains there in the minds of too many). At both the individual level of what we define as “mentally ill,” and at the societal level of what we define as “socially deviant,” we are addressing the issue of where we draw the line between that degree of deviation from the norm that is tolerable, and that degree which exceeds the limits of our tolerance.
To be fair, it is not a one-sided affair, merely a matter of how much diversity society will tolerate, but also a matter of how much deviation from the norm is functionally possible. A person must be able to integrate him- or herself into a society to a degree adequate to thrive within it. A person who deviates from the norm in a way which makes engaging in any productive contribution impossible, for instance, regardless of how accommodating the society strives to be (such as, for instance, by simply refusing to work under any and all conditions), will have a hard time paying the bills. (On the other hand, someone who disengages equally in terms of contribution and in terms of benefits is more easily tolerated.)
Generally, a deviation which involves drawing upon our collective production of wealth and welfare without contributing anything to it is deemed to be parasitic. It makes sense, on some level, not to tolerate such deviance, even if we might want to look beyond it and figure out what is motivating it and what might be done to address it. At that point, considering it either a mental health issue, or a character flaw, and how to encourage or facilitate a change of heart, becomes a functional necessity.
More emphatically, we clearly don’t and can’t tolerate forms of deviance that involve acts of violence or predation against others. This is an important point, because I believe that one of the reasons for relatively low tolerance of less threatening forms of deviance is that they challenge our faith that more threatening forms might not be implicated. For instance, if someone walks toward us acting in extremely odd ways, even if not in any explicit way threatening violence, most of us feel some apprehension that the norms which most of us follow, including those which protect us from one another, are not well enough in evidense to feel secure that they will be adhered to. In other words, when someone is acting oddly in a non-violent way, we generally have raised apprehension that he or she has above-average likelihood of acting oddly in a violent way as well.
But there is a dialectic between, on the one hand, how accommodating and flexible and tolerant a society is, and, on the other, how well that society incorporates and benefits from the true diversity within it. A police state is, by definition, a state in which there is an authoritarian stifling of all officially intolerated deviance, which is usually that deviance which is most threatening to those in power. But it tends to include almost all forms of ordinary minor deviance as well, since authoritarian states tend toward “overcontrol,” considering all variability generally threatening to the status quo from which they benefit.
In America today, those who are the most inclined to support more rather than less stringent enforcement and punishment of laws, and who are least tolerant of human variation (e.g., homosexuality, bilingualism, etc.) are also those who come “wrapped in the flag and carrying a cross.” Ironically, many who most readily invoke the word “liberty” in America are least tolerant of human variation (i.e., the liberty to deviate from social norms). “Liberty” to them means only the opposite of “collectivism,” which leads to the perverse conclusion that it is better for our social systems to be coopted by powerful individuals and groups than for the polity as a whole to exercise, through its elected agents, some public oversight in the public interest.
In other words, the modern right-wing concept of “liberty” has become co-opted by an authoritarian world view. A true commitment to liberty would involve recognizing the dialectic between the individual and the society, the legitimate demands by society for some degree of conformity or “articulation” by the individual, and the legitimate countervailing force of individuals testing and stretching those limits by deviating from the norm and advocating for a social systemic evolution which ever more organically accommodates such deviations.
There is a dynamic and creative tension between the individual and the society. The society is, and must be, coherent, able to maintain its coherence, to function with the greatest possible efficiency in producing and distributing wealth (and other forms of human welfare), and in doing so in a sustainable manner. But societies benefit from individual initiative and diversity. The division of labor is a more robust creator of wealth than all people doing identical work (e.g., farming). The markets that emerge from a substantial degree of individual liberty in finding one’s niche is more robust than a command economy. But a failure to enforce the laws within which such markets function would result in a disappearance of that robustness; in other words, some centralized conforming forces are necessary and useful. The trick is to figure out how and where to draw the line.
Though we fancy ourselves a society defined by the utmost respect for individual liberty, we may in fact be a more conformity-demanding society than most other developed nations. In any case, we are a more conformity-demanding society than is optimal. This is most apparent in our prevalent standards of “professionalism,” and the impact they have on the vibrancy of our professions.
“Professionalism” has come to mean, to too great an extent, being sufficiently bland and conformist within the professional institutional setting. A doctor who blogs about the over-prescription of drugs in the treatment of mental illnesses may lose his job as a result (as one I know did), or a particularly outstanding teacher who rocks the boat by having too much personality may be driven from the profession, as many are. We are, to some extent, prisoner’s of Max Weber’s “Iron Cage of Rationality,” sterilizing our environment and ourselves in the interests of conformity and the smooth operations that it facilitates.
This does not mean that any and all behaviors should be blithely tolerated, but rather that we need to work at loosening up our social institutional framework, making it flexible enough to accommodate more rather than less human variation, tapping into that variation as a resource whenever and however possible, and demoting it to the status of a self-imposed burden as reluctantly as possible. We have to recognize that our differences, even some of our more dramatic ones, aren’t threats to our collective welfare unless we refuse to accept them and adapt to them, that we don’t have to cure ever deviation from the norm, nor dismiss every person who isn’t enough like every other person.
Liberty requires tolerance. Prosperity requires utilizing rather than ostracizing our diverse human resources. Mental health requires accepting and accommodating our differences more and seeking to eradicate them less.
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(Opening scene: Angels, represented by twinkling stars, are talking about a troubled soul on Earth. They review this soul’s life, and the circumstances that led to its present attempt to kill itself….)
It was conceived with great hopes in a simpler time, by a variety of generous parents, and a few original sins. England (via the British Empire), in which modern democracy developed; The Enlightenment, characterized by a fluorescence of rationalistic philosophy; a wide-open new land, with an easily displaced indigenous population; abundant imported and domestically bred slave labor. It developed a grandiose vision for itself, one comprised of the somewhat incompatible memes of ‘manifest destiny’ and champion of liberty, and an exaggerated faith in its own exceptionalism.
But, as often happens, life presented unforeseen challenges which diverted this soul, the sovereign American People, from its youthful dreams. It gradually was forced to confront its original sins, brutally divided by one of them. Innovations complicated the landscape in which its dreams had been formed. It had to cope with a world comprised of other people with interests of their own, people less convinced of the benevolence of this powerful and self-interested nation than its own populace persistently was (rather too conveniently).
But despite this diversion from its original dreams, it was the same soul, peforming many good deeds, more often born of pragmatism than idealism, that were not always part of the original plan. It grew to address a changing world, doing what needed to be done to increase the welfare of those who depended on it. It intervened in its parent-continent when brutality racked the latter’s fields and towns, and then watched that continent, unencumbered by youthful dreams, combine the best fruits of their child’s aspirations with the reduced purism that comes from maturity.
But something in the people clung to the purity of youthful dreams, sulking with resistance to adulthood’s demands, an error that sometimes characterizes idealistic youth. Just at the point when both the people and their government were on the verge of following the mature wisdom of moderation and adaptation, the oversimplistic idolater within, childish and narcissistic rather than noble and generous, rebelled, and rent this national soul in an internal conflict over whether mature moderation would prevail, or childish purism.
It rebelled in a moment of crisis, a large faction of the people chanting the mindless refrain, “Government is not the solution, it’s the problem! The world would be better off without this government we’ve allowed to grow and grow, displacing the purity we had believed in and tried to implement in our youth! We would be better off if we had not allowed the lessons of life to adapt those youthful dreams to the demands of reality!”
And so this soul’s guardian angel decided to show it what the world would have been like without that modern government it now wished dead….
“First,” the angel said, “let’s look at what your country and world would have been like had you not further amended the Constitution after the Bill of Rights.
“Slavery would not have been legally abolished by the 13th Amendment, nor Congress empowered to enforce its prohibition.
“The 14th Amendment’s transformation of the legal framework of the country would never have occurred. The Dred Scott Decision, which held that no African American, whether free or slave, was an American citizen, would have remained the law of the land. The states’ exemption from the Bill of Rights, a document originally interpreted to limit only the federal government’s intrusion on state and individual rights, would have persisted, and the protections of the Constitution would have continued not to apply to or restrain state and local governments in any way. African American slaves would have continued to be counted, legally, as 3/5 of a human being.
“The 15th Amendment’s legal guarantee, not to be effectively enforced for a century more, that all citizens, regardless of race, have the right to vote, would not have come into existence.
“The 17th Amendment’s increase in direct democracy, by shifting elections for U.S. Senators from the state legislatures to the people of the state, would not have happened.
“Women might still be denied the vote in some states.
“The increased tardiness and unevenness with which the United States would have dealt with these morally enervating issues would have reduced the human capital of the nation, delaying its fuller liberation and development longer, if not, in some places, indefinitely. It would have been a less innovative country, and a less inspiring one to other nations. Resentments would have grown even stronger, divisions even deeper, the problems bred by these defects even more inextricably embedded in the fabric of your society. Those who later depended on the United States as a beacon of liberty would see only a quagmire of exploitation and oppression, either lagging even farther behind the finally pacified continent across the Atlantic it continually claimed superiority to, or, by not being a strong enough nation to lead, leaving the world into a downward spiral from which it couldn’t escape.
“The world would have been a very different place indeed had the United States not become what it became. And while there are those in the world who think that would have been a good thing, sometimes with considerable justification, it most certainly wouldn’t have been a good thing for America, nor, all things considered, for global peace and prosperity.”
“Oh, Angel,” the suicidal faction groaned condescendingly. “First of all, most of us don’t object to Constitutional Amendments, but rather to other increased exercises of federal power without recourse to such amendments. And second of all, many of these things would have come to pass by the choice of individual states, without the federal government imposing them on the states.”
“Slavery wasn’t going anywhere, anytime in the foreseeable future, without the legal and military coercion of the federal government,” replied the angel. “The gradual incorporation of the Bill of Rights into the Fourteenth Amendment by successive Supreme Court decisions, which continued into very recent times (because state and local governments were not universally committed to protecting those rights), would not have occurred, and those states would remain free to disregard those protections. We see even today how fragile those protections are, at the hands of those who claim most respect for them, in the repetition of the refrain that granting due process to those suspected of certain crimes (e.g., terrorism) reduces the rule of law, a chant that is phenomenally ignorant of what the term ‘rule of law’ means in a Constitutional republic (hint: ignoring it out of convenience, in order to increase conviction rates, no matter how heinous the crime, is the exact opposite of what it means).
“As for your other concerns, about increased exercises of federal power not granted by Constitutional amendments, follow me….”
The angel then said, “let’s look at what your country and world would have been like had you not had a strong federal government to hold the country together, pursue its collective interests, and impose its core values on its constituent parts (leaving aside for the moment the issues of so-called ‘activist courts’ and of the rise of the ‘administrative state’).
“It took a strong federal government to end slavery and hold the union together during and after the Civil War. A century later, it took a strong federal government, complete with National Guard, to enforce court-ordered desegregation. And it took a strong federal government to pass The Civil Rights Act of 1964, which utilized attenuated Commerce Clause power to prohibit racial discrimination by private owners of commercial institutions.
“It took a strong federal government, captured by the will of the people in a series of populist and progressive movements in the later 19th and early 20th centuries, to rein in ‘the robber barons,’ and redress the biggest disparity of wealth in this country ever…, until today, when we have finally exceeded it. It took a strong federal government to give the country hope during The Great Depression, and, despite the revisionism popular with the far-right today, launch record-setting economic growth in its midst (from 1933-1937), until budget hawks managed to convince to FDR to compromise his policies to their concerns.
“It took a strong federal government to mobilize the country and lead the allies during World War II, and to lead NATO during the Cold War.
“Without these efforts, slavery might still be extant, and, certainly, Jim Crow (American ‘Apartheid’) would still be extant in some regions. The country would have fractured not just into two as a result of the southern cessation, but into multiple tiny republics, neither viable on their own nor of any import on the world stage.
“Mexico and Canada, our more politically, economically and militarily successful neighbors to the north and south (in this alternate reality), probably would have annexed large chunks of what would otherwise have been The United States. European and World History would have been different, possibly with fascism prevailing in Europe and, eventually, threatening the tiny, weak republics across the Atlantic, in what would otherwise have been The United States of America.
“There would have been nothing other than fascist Europe to check Soviet and Chinese expansion, and, it is more probable, given the lack of moral compass of both fascism and Sino-Soviet Communism, that they simply would have arrived at a mutually agreeable division of the world into competing but mutually accommodating and reinforcing tyrannies.
“Without a federal government as strong as this one has been, there would be no ‘United States’ today, certainly no liberties in some regions for those who were deprived them historically, and quite probably a more tyrannical world in general.”
“Next,” the angel said, “let’s look at what your country and world would look like if you had not had an ‘activist’ judiciary interpreting the Constitution in ways relevant to, and adapting to, changing circumstances.” (See http://www.law.emory.edu/fileadmin/journals/elj/58/58.5/Green.pdf for a comprehensive exploration of the concept, including a discussion of why it, appropriately applied, has nothing to do with boosting individual liberty or governmental power, but rather refers to whether the judiciary adheres to the norms of judicial conduct which are its only real restraint.)
“In the conventional, ideologically charged use of the term, all Supreme Court decisions involve ‘judicial activism,’ because those cases that the Supreme Court chooses to hear are precisely those cases that involve unresolved ambiguities, and require judicial interpretation. Therefore, a complete history of the evolution of Constitutional Law, as defined by Supreme Court decisions, is, in a sense, one important slice of the history of ‘judicial activism,’ as the term is commonly used. And without that fully institutionalized form of ‘judicial activism,’ which is coextensive with the doctrine of ‘judicial review’ established by Justice Marshall described below, there would be no enforceable Constitution, no established and coherent rule of law to the extent that there is today in the United States. But rather than write a Constitutional Law synopsis, I’ll just mention a few of the most important cases, that involved perhaps the greatest liberty of Constitutional interpretation on the Court’s part, but without which we would be a nation with far weaker protections of individual liberties and rights than we have today.
“Chief Justice John Marshall established the principle of ‘judicial review’ in Marbury v. Madison in 1803, the first and greatest act of judicial activism in U.S. History, without which there would have been no final authority on what was and was not Constitutional. the lack of such judicial authority would have inevitably undermined the rule of law that, more than anything else, has distinguished the United States. Without the judicially determined Constitutional last word that Marshall successfully instituted, questions of Constitutionality, and thus ultimate legality, would be political footballs to a far greater extent than they already are, overwhelmed by the bickering whims of conflicting ideologies and interests that characterize the rest of political discourse and decision-making. In other words, without this bold initial act of judicial activism, the Constitution would have been an empty promise, and would be referenced today for strictly rhetorical rather than legal support, a non-binding tool for political argumentation. Uninformed lay opinions about what does and does not constitute Constitutionality would be raised to a par with legal analyses and Supreme Court holdings, reducing the Constitution to a meaningless blank slate on which each interest group and ideological camp could impress its own preferred interpretation.
“In Yick Wo v. Hopkins (1886), the Supreme Court held that a facially neutral law that has the effect of discriminating (a selectively enforced San Francisco code restricting licensing for laundries to brick or stone buildings in order to target Chinese laundries which were built of wood) violates the equal protection clause of the 14th Amendment. This decision was not a foregone conclusion: The letter of the law itself didn’t violate the Equal Protection clause, and so the decision can be said to be one of ‘an activist judiciary.’ But had it been more literal in its Constitutional interpretation, the Court would have set the precedent that discrimination is Constitutionally permissible as long as it is done implicitly rather than explicitly.
“In Pennsylvania Coal Co. v. Mahon (1922), the Supreme Court held that a government regulation that essentially deprives a property owner of the value of its property is an unconstitutional ‘taking’ (violating the Fifth Amendment protection of property), and the government must compensate the owner for that loss of value. Again, this is not an automatic ‘strict constructionist’ interpretation of the Constitution, since there is no language in the Constitution which addresses loss of value due to government regulation. However, those most adamant about the ills of ‘judicial activism’ are generally also those most likely to concur with this holding. In the absence of the judicial activism of the Court in this case, private property rights would have been more, rather than less, vulnerable to government intrusion.
“Brown v. Board of Education (1954) would certainly rate as an act of judicial activism by the ideological definition of that term currently in vogue. It overturned the Stare Decisis of Plessy v. Ferguson (1896), which held that segregation was Constitutional (instituting the ‘separate but equal’ doctrine), holding that ‘separate educational facilities are inherently unequal.’ Brown essentially launched the Civil Rights Movement as we know it today (it gave it its first major victory), a movement whose progress would have been at least slower, and possibly undermined altogether, in the absence of this Court decision.
“The Court also declined to limit Congress’ power to pass The Civil Rights Act of 1964, which used the Commerce Clause to prohibit private owners of commercial establishments from discriminating against potential customers, employees, renters, and buyers on the basis of race. This could easily be considered ‘judicial activism by omission,’ without which we would not have Civil Rights laws protecting minorities against the entire range of private discrimination, such as employment discrimination and housing discrimination.
“In Gideon v. Wainwright (1963), the Court established that the state’s failure to provide counsel to an indigent defendant essentially deprived that defendant of his Sixth Amendment right to counsel. The literal Constitutional right to counsel is not necessarily a right to be provided with counsel, at the people’s expense, but without interpreting it as such, this fundamental right would be accorded only to those who could afford it, and denied to those who cannot, reducing an essential protection of individual liberty to a commodity for sale rather than a guarantee to all citizens. In a world without this protection, the poor would receive even less justice than they do today.
“It’s worth noting here, again, that a series of Supreme Court decisions over the last century and a half have incorporated the Bill of Rights into the 14th Amendment Equal Protection clause, allowing those core protections to be applied to state and local governments as well as to the federal government, an act of ‘judicial activism’ without which states and counties and municipalities and school districts would be largely free to violate the Bill of Rights to whatever extent and in whatever ways they see fit. Hardly a boon to the protection individual liberty.
“Many other decisions could be included in this list, many other basic liberties that depended on an ‘activist judiciary.’ But the sampling above illustrates some of the ways in which our nation would be a very different, and in many ways far poorer place were it not for the role that the so-called ‘activist judiciary’ has played in our march toward increased equality of opportunity and rights, and increased protection of individual liberties.
“Finally,” said the angel, “let’s look at what your country and world would look like without the rise in America of the ‘Administrative State,’ through which to regulate the complex modern economy.
“Without the regulatory agencies that promulgate regulations, conduct hearings and inspections, license facilities, and engage in a complex web of tasks necessary to implement the laws passed by Congress, we would live in a far more insecure and unhealthy environment. Incidents such as the infamous ‘Love Canal’ toxic waste dump beneath a housing developing, causing an astronomical rise in cancer rates, would be the norm rather than the exception. The manipulation of markets, such as those by Enron which caused the California energy crisis of 2000-2001, would be constant and economically devastating. Confidence in investments would plummet, the economy would contract dramatically, and the financial system near-collapse of 2008 (resulting from underregulated financial markets) would be a constant and continuous event rather than a once-in-a-century crisis.
“The absence of the regulatory structure that has developed since the 1930s, and under the Administrative Procedure Act of 1946, would be akin to removing the mortar from between the bricks of the modern economy. The entire edifice would be less securely bound together, more unstable, and more likely to collapse. Those sheltered within it would feel every cold wind that blows through, and storms would whip through it with discomfiting regularity. Market failures would dominate the economy, and health and safety violations would be constant and ubiquitous. Commercial enterprises would know that they could sell toxic and dangerous substances with impunity, recognizing that there is more profit in not paying the costs of avoiding doing so. A major, perhaps completely dominant, economic niche would emerge for those that compete by avoiding such costs, simply changing names and products whenever the slow dissemination of information of the health and safety risks make the old product unprofitable to produce and sell.
“The already underfunded Food and Drug Administration would leave even more food and drug safety responsibility to the companies that have a vested interest in overlooking foreseeable dangers. The New York Times reported (September 28, 2007) that due to defunding, the FDA audits less than 1% of clinical drug trials in the United States. As a direct result we have increasing known cases of pharmeceutical companies fudging results of drug trials, leading to waves of preventable deaths, such as occurred with Propulsid (Johnson and Johnson), Bextra and Celbrex (Pfizer), and Vioxx (Merck).
“Similar stories of the consequences of deregulation and defunding of regulatory agencies can be found in food safety (increasing salmonella and E. coli contamination, even after companies had been asked to address discovered dangers but simply chose not to, a luxury afforded by underregulation), and product safety (such as children’s toys, imported from China, containing lead in seriously toxic quantities, undetected due to underregulation of imports). The more we ‘shrink government’ by reducing regulatory oversight even more than we have already done, the greater the frequency of such incidents will become. In the unregulated paradise that some in America are striving for, life would be, literally, ‘nastier, more brutish, and shorter,’ for thousands if not millions of children, and families, and innocent people just going about their lives.
“While there are some dysfunctional dynamics that lead to the production of laws that are thousands of pages long (e.g., earmarks, and other porkbarrel spending provisions; and controversial riders designed to piggyback on necessary legislation), the main reason is the complexity of the social institutional landscape that those laws are addressing. And those laws, even with their tens of thousands of pages of qualifications and provisions, don’t even begin to anticipate all contingencies, all unexpected consequences, all complexities that will emerge as the law is implemented. For that reason, regulatory agencies are necessary to implement the laws, to address those complexities, to adapt the execution of the law passed in Congress to the realities of the world to which it will apply.
“It is a very information-intensive enterprise, with an amazing amount of very precise expertise embedded in these organizations, able, for instance, to research the precise cancer rates associated with each commercial chemical substance on the market, or incorporated into items on the market; the ways in which these substances move through the environment and contaminate human beings; the probabilities of contamination and of contracting associated diseases from contamination; the fatality rates of doing so; the costs of regulation at each level; the balancing of legitimate economic concerns with legitimate health and safety concerns. It is not a process which leaves the public out, but rather one which, by law, includes the public, and invites public input.
“The same kinds of calculations and processes are required to oversee the use of public lands, the mining of water from aquifers and of minerals from the Earth, the emissions and dumping of toxic substances into the air and water and land; the determination of where to build roads and interstates and how to balance all of the concerns and interests involved; the determination of where to allow coal plants and nuclear plants and other installations to be built; the determination of what kinds of safety devices and scrubbers they require; the oversight of all of these protections and provisions without which we would all be dramatically worse off.
“Our economy has been growing (and continues to grow) in complexity at an accelerating rate. For example, the use of supercomputers programmed with complex algorithms to buy and sell stocks in order to reap gains made in fractions of a second distort the market, caused a freefall several months ago that rattled investors and required shutting the stock market down, and creates a competition for locating the computers as close as possible to the stock market servers in order to receive the information milliseconds before competitors. The market collapse caused by a malfunctioning algorithm resulted in an enduring loss of perhaps billions of dollars to investors, as the market had to creep back up, in a context of diminished investor confidence, from the depths to which it had plummeted. We need regulatory agencies equipped with human and material resources capable of keeping up with the tens of thousands of similar demands on them, if we want our market economy to continue to function, and to do so in the interests of all rather than at the long-term expense of the many in the short-term interests of the few.
“Here’s one very compelling objective piece of evidence about the value of that administrative state you are so eager to dismantle: Its emergence immediately preceded the most dramatic rise in wealth production in the history of the world. That very expensive “big government” administrative state has existed in every single nation on Earth that has ever experienced that dramatic rise in wealth production, both immediately prior to experiencing it and from then on, without exception, and every single prosperous developed modern nation is still characterized by the presence of that very expensive “big government” administrative state today, again, without exception. There is not one single exception, and never has been. While it’s true that you can’t prove a counterfactual (we don’t know what would have happened in its absence), there is not one shred of evidence that any other governmental form is able to facilitate this feat and accommodate its end result. By all available evidence, our wealth, the wealth of each and every one of us, is completely dependent on the existence of the administrative state.
“Yes, many of the problems that would occur in the absence of such a regulatory structure still occur within it; the poor are still burdened more than the rich by undesirable facilities in their neighborhoods; acquiescence to economic necessity still often triumphs over public health and safety; the interests of corporations still work their way through the system, in a variety of manners, at the expense of the public without always being off-set by a commensurate economic benefit; ‘industry capture’ of regulatory agencies to some extent ‘puts the foxes in charge of the henhouse.’ All of these problems diminish the degree to which our regulatory infrastructure efficiently and effectively does what almost all of us implicitly recognize to be necessary and desirable. But the absence of our regulatory infrastructure would erase the performance of that function altogether. The significant shrinkage of it that periodically occurs under Republican administrations almost always results in catastrophic effects, with a regularity that is matched only by the public disregard of the repeated lesson.
“To be sure, throughout this tour of what ‘small government’ would really mean, I have ignored the ways in which a strong centralized federal government, an ‘activist judiciary,’ and the rise of the administrative state have led to negative rather than positive outcomes for both Americans and the rest of the world (perhaps more the latter than the former, since a strong America has been strong to its own citizens’ advantage; for the most part, only when it incidentally served the interests of American citizens have others in the world benefited from American power. See “Democracy IN America,” But Not BY America). But the danger in America today, the one that most needs remedy, is not an exaggerated belief in the virtues of centralization of governmental power and effective political coherence, but rather an exaggerated belief in something that does not and cannot exist in the oversimplistic form imagined, a Liberty Idolatry that counsels the destruction of the very social foundation which liberty requires for its existence. And so that is the imbalance that I have addressed.
“Those poetic aspirations of America’s national youth were what defined its spirit and channeled its energies. They still guide and inspire its people today. But meeting real responsibilities as they arose is what carved that spirit into the more-often-than-not admirable world citizen and leader, and reliable agent of its own people’s interests, that it has become. The world, and the people at home who give the federal government life and whose lives that government in turn embues with expanded opportunities, would be poorer for the partial death that some would now impose on this vital vehicle of the American spirit. The demands that the federal government has risen to meet were not optional, could not have been disregarded. And idolizing rather than respecting the guidance given by America’s founding leaders and documents is an insult to them, and a disservice to those alive today, as well as those who will be alive tomorrow.”
The United States of America was founded to be a progressive nation. As Thomas Jefferson himself wrote:
I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.
Those who would strait-jacket us as a people with the ideological raiment that exists only in their own shrunken imaginations stand in opposition to this ideal, and to the very spirit of this nation. It’s time for George Bailey to come home, and bask in the fellowship of a society of people who strive to lift one another up, and help bear one another’s burdens.
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(Continued from “Wonderful Life,” Part II; see “It’s a Wonderful Life,” American Political Edition (Parts I-V) for all five parts combined and revised)
“Second,” the angel said, “let’s look at what your country and world would have been like had you not had a strong federal government to hold the country together, pursue its collective interests, and impose its core values on its constituent parts (leaving aside for the moment the issues of so-called ‘activist courts’ and of the rise of the ‘administrative state’).
“It took a strong federal government to end slavery and hold the union together during and after the Civil War. A century later, it took a strong federal government, complete with National Guard, to enforce court-ordered desegregation. And it took a strong federal government to pass The Civil Rights Act of 1964, which utilized attenuated Commerce Clause power to prohibit racial discrimination by private owners of commercial institutions.
“It took a strong federal government, captured by the will of the people in a series of populists and progressive movements in the later 19th and early 20th centuries, to rein in ‘the robber barons,’ and redress the biggest disparity of wealth in this country ever…, until today, when we have finally exceeded it. It took a strong federal government to give the country hope during The Great Depression, and, despite the revisionism popular with the right today, launch the record-setting economic growth in its midst (from 1933-1937), until budget hawks managed to convince to FDR to compromise his policies to their concerns.
“It took a strong federal government to mobilize the country and lead the allies during World War II, and to lead NATO during the Cold War.
“Without these efforts, slavery might still be extant, and, certainly, Jim Crow (American ‘Apartheid’) would still be in some regions. The country would have fractured not just into two as a result of the southern cessation, but into multiple tiny republics, neither viable on their own nor of any import on the world stage.
“Mexico and Canada, our more successful neighbors to the north and south (in this alternative reality), probably would have annexed large chunks of what would otherwise have been The United States. European and World History would have been different, possibly with fascism having prevailed in Europe and, eventually, having threatened the tiny, weak republics across the Atlantic, in what would otherwise have been The United States of America.
“There would have been nothing other than fascist Europe to check Soviet and Chinese expansion, and, it is more probable, given the lack of moral compass of both, that they simply would have arrived at a mutually agreeable division of the world into competing but mutually accommodating and reinforcing tyrannies.
“Without a federal government as strong as this one has been, there would be no ‘United States’ today, certainly no liberties in some regions for those who were deprived them historically, and quite probably a more tyrannical world in general.”
(Continued in “Wonderful Life,” Part IV)
(Continued from “It’s a wonderful life,” U.S. political edition, Part I; see “It’s a Wonderful Life,” American Political Edition (Parts I-V) for all five parts combined and revised)
“First,” the angel said, “let’s look at what your country and world would have been like had you not further amended the Constitution after the Bill of Rights.”
“Slavery would not have been legally abolished by the 13th Amendment, nor Congress empowered to enforce its prohibition.
“The 14th Amendment’s transformation of the legal framework of the country would never have occurred. The Dred Scott Decision, which held that no African American, whether free or slave, was an American citizen, would have remained the law of the land. The states’ exemption from the Bill of Rights, which was originally meant to limit only the federal government’s intrusion on state and individual rights, would have persisted, and the protections of the Constitution would have continued not to apply to or restrain state and local governments in any way. African American slaves would have continued to be counted, legally, as 3/5 of a human being.
“The 15th Amendment’s legal guarantee, not to be effectively enforced for a century more, that all citizens, regardless of race, have the right to vote, would not have come into existence.
“The 17th Amendment’s increase in direct democracy, by shifting elections for U.S. Senators from the state legislatures to the people of the state, would not have happened.
“Women might still be denied the vote in some states.
“The increased tardiness and unevenness with which the United States would have dealt with these morally enervating issues would have reduced the human capital of the nation, delaying its fuller liberation and development longer. It would have been a less innovative country, and a less inspiring one to other nations. Resentments would have grown even stronger, divisions even deeper, the problems bred by these defects even more inextricably embedded into the fabric of your society. Those who later depended on the United States as a beacon of liberty would see only a quagmire of exploitation and oppression, either lagging even farther behind the finally pacified continent across the Atlantic it continually claimed superiority to, or, by not being a strong enough nation to lead, leaving that continent to a downward spiral from which it couldn’t escape, impoverishing the world along with it.
“The world would have been a very different place indeed had the United States not become what it became. And while there are those in the world who think that would have been a good thing, sometimes with considerable justification, it most certainly wouldn’t have been a good thing for America, nor, all things considered, for global peace and prosperity.”
“Oh, Angel,” the suicidal faction groaned condescendingly. “First of all, most of us don’t object to Constitutional Amendments, but rather to other increased exercises of federal power without recourse to such amendments. And second of all, many of these things would have come to pass by the choice of individual states, without the federal government imposing them on the states.”
“Slavery wasn’t going anywhere, anytime in the foreseeable future, without the legal and military coercion of the federal government,” replied the angel. “The gradual incorporation of the Bill of Rights into the Fourteenth Amendment by successive Supreme Court decisions, which continued into very recent times in our familiar reality (because state and local governments were not universally committed to protecting those rights), would not have occurred, and those states would remain free to disregard those protections. We see even today how fragile they are, at the hands of those who claim most respect for them, in the repetition of the refrain that according due process to those suspected of terrorism reduces the rule of law, a chant that is phenomenally ignorant of what the term ‘rule of law’ means in a Constitutional republic (hint: ignoring it out of convenience, in order to increase conviction rates, is the opposite of what it means).
“As for your other concerns, about increased exercises of federal power not granted by Constitutional amendments, follow me….”
(Continued in “Wonderful Life,” Part III)
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Few issues, few demands to balance legitimate competing concerns, better illustrate both the subtlety of the challenges we face, and the dysfunctionality of displacing careful and thorough analyses with ideological scripts. Louisiana Governor Bobby Jindal, on Meet the Press, just repeated the familiar right-wing refrain, “why are they more worried about the terrorists rights than about the rights of innocent travelers?” Some on the left (in an echo of Tea Party Liberty Idolatry) like to repeat the refrain, “those who trade liberty for security deserve neither.” Jindal also suggested that searching grandmothers and children at airport security is unnecessary, because they’re not the terrorists. Some on the left, in one of those all-too-common inter-ideological agreements on an oversimplification, insist that such measures are not about security at all, but rather about the exercise of government control and subjugation. (Vincent Carroll echoed that sentiment as applied to what he considers the government assault on Free Speech, as illustrated by, for instance, the opposition to the Supreme Court’s Citizens United decision, which protects corporate political speech from legislative restraints: see Freedom & Coherence).
It’s all Bullshit. Really.
Jindal’s refrain about Democrats’ overzealous defense of terrorists’ rights has been repeated in various contexts throughout American history, and has repeatedly been discredited. The very foundation of our system of justice is that people are presumed innocent until proven guilty. The constant allusion to the presumption of guilt that vests at the moment of being suspected (it is terrorists‘ rights that are being protected, rather than people suspected of terrorism) is as un-American as it gets. It was used to justify Gitmo, which every person I know of who actually visited Gitmo and talked with detainees there recognized held many, many completely innocent people.
The fact is, that despite our procedural bias in favor of protecting the rights of the innocent, we put thousands or tens of thousands of innocent people in jail every year, and some unknown number on Death Row. Violations of civil rights, including excessive violence by police against people who have committed the most minor of infractions, is a constant and real concern. Those on the right who are implicit advocates of decreasing our vigilance against those natural social forces that tend toward a police-state are doing this country an enormous disservice. As Sinclair Lewis said, “When fascism comes to America, it will be wrapped in the flag and carrying the cross” (there is some debate about the attribution: http://zalandria.wordpress.com/2007/01/13/sinclair-lewis-how-fascism-will-come-to-america-1935/).
On the other hand, the notion that we don’t have to compromise any of what we consider to be the full extent of our liberties and rights to the concerns of mutual security is equally absurd (sorry, folks). The very existence of any system of law enforcement is an intrusion on personal liberty. That’s what laws are: An intrusion on personal liberty. And enforcing them is, inherently, an invasion of privacy, including, to some extent, of the innocent. The vast majority of Americans prefer the slight invasion of privacy associated with airport security measures (at least prior to the implementation of the new, more intrusive measures) than the increased risk of violent death associated with their absence. I do, especially when my seven-year-old daughter is traveling with me.
The issue is not settled by some broad-brushstroke platitude on one side or the other, but rather by understanding: 1) the competing values; 2) the dangers of overemphasis of one or the other of those values; and 3) the cognitive and emotional biases that may play into exaggerating one or the other of those values (e.g., fear of criminal violence playing into an exaggerated predisposition to trade rights for security, or fear of government oppression playing into an exaggerated predisposition to trade security for rights). As in all matters, we are challenged to mobilize the best analyses, with all relevant information in play, and make the best decisions we can on that basis, in service to our values and to human welfare, all things considered.
Both Jindall, and some on the left who are indignant over TSA intrusiveness (in a Facebook thread on a post of the video of the little girl screaming “don’t touch me!” while being physically searched), invoke the refrain that small children and old ladies aren’t the terrorists. The fact is, that the terrorists are adaptable, and that there are those in all demographic categories who can be recruited, knowingly or unknowingly, willingly or unwillingly, to carry explosives or other instruments of terrorism across airport security. Without a doubt, the TSA procedures can be better designed, and their treatment of children can be more sensitive to the particular needs involved (i.e., have TSA employees trained in working with children, using techniques that put them at ease). But those current imperfections are not some kind of major scandal. They’re just current imperfections, that we should insist upon refining.
The message is the same message that permeates all of my posts: Don’t reduce the challenges of self-governance to ideological refrains and broad-brushstroke platitudes. Avoid precipitous conclusions driven by political-emotional predispositions. Do the analysis, and recognize that we live in a complex and subtle world, that demands more of us than ideological purity and self-righteous indignation when the presumptions of that purity are violated. The challenge of self-governance is not a trivial one. Let’s stop trivializing it.
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(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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