Colorado Confluence

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Mischievous imps blowing invisible darts that stoke human passions and spin them out of control, moving twigs a few inches across the forest floor providing links in conflagrations that would not otherwise occur, plucking the strings of nature to produce crescendos of catastrophe. Zen-mathematician wizards dancing in their ice spheres high in the Vaznal Mountains, solving ever-deepening riddles of sound and sight and sensation, weaving order from the chaos the Loci imps foment. Winged muses carving sensuous stories from the clouds and celebrating the lives of those from whose dreams and tribulations they were born.

A fiery giantess is held captive in a hollow mountain. A sea serpent’s breath inspires the priestess of an island oracle poised above a chasm beneath which it sleeps. City-states are at war; slaves, led by a charismatic general, are in uprising; dictators and warlords are vying for power; neighboring kingdoms and empires are strategically courting local clients in pursuit of regional hegemony or outright conquest. Human avarice has strained the natural context on which it thrives. And ordinary people in extraordinary times, caught within the vortex of the powers that both surround and comprise them, navigate those turbulent currents.

Follow the adventures of Algonion Goodbow, the magical archer; Sarena of Ashra, the young girl at the center of this epic tale; their friends and mentors, guides and adversaries, as they thread the needle of great events, and discover truths even more profound than the myths of legend and lore. Discover the truth of fiction and the fiction of truth; celebrate the fantastic and sublime, in this magical tale laden with rich echoes of world history and world mythology, informed by blossoms of human consciousness from Chaos Theory to Thomas Kuhn’s theory of paradigm shifts, from Richard Dawkin’s Meme Theory to Eastern Mysticism, enriched by the author’s own travels and adventures.

A prophesied Disruption is upon the land of Calambria, causing the Earth to quake and societies to crumble. The Loci imps are its agents, but, according to Sadache mythology, it is Chaos, one of the two Parents of the Universe, who is its ultimate author. As Chaos eternally strives to make the One Many, Cosmos, the other Parent of the Universe, strives to make the Many One. The Sadache people view themselves as the children of Cosmos, whom they worship, and the lowest rung of a hierarchy of conscious beings opposing Chaos and the Loci imps. Above them, both of them and apart from them, are the drahmidi priests of the Cult of Cosmos, founded by the hero and conqueror Ogaro centuries before. Above the drahmidi are the Vaznallam wizards, Cosmos’s agents, just as the Loci are Chaos’s.

As the Great Disruption begins to manifest itself, Sarena of Ashra, a peasant girl from a village on the outskirts of the city-state of Boalus, flees an unwanted marriage to an arrogant lord and in search of freedom and destiny. She meets a young vagabond on the road, coming from the seat of the ceremonial High Kingdom, Ogaropol, fleeing his own pursuers. Together they form an alliance that leads through adventures together and apart, and binds them into two halves of a single whole.

Swirling around them are the wars of would be dictators and cult-leaders, of neighboring empires and kingdoms; the adventures of young Champions engaged in the prophesied Contest by which the Redeemer would be chosen and the Realignment realized. But, in both different and similar ways, the culmination of centuries of history flows through these two people, Algonion and Sarena, on haphazard quests of their own. And both the past and the future are forever changed by their discoveries and deeds.

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Though the 50th anniversary of the March on Washington, and Martin Luther King, Jr.’s iconic “I have a dream” speech in front of the Lincoln Memorial, is still three days away, today is the day to start reflecting on it, on its continuing relevance in so many ways, and on our need to recommit as a nation to that poignant dream of realizing our decency as a nation.

As we look back on recent events and recent developments, on the shooting death of an unarmed black teen walking home from the store by an armed vigilante out looking for “bad guys;” of the response by so many dismissing it as the price we pay for the “liberty” to “protect ourselves,” often informed by our bigotries,  in violent and deadly ways; of the combination of a right-wing drive to reinstate voter suppression laws and a Supreme Court holding making it easier to do so; of the rise of an angry, violent, divisive, and frequently racist political movement in America that loves guns and, by its ideological choices, hates humanity; it’s time for us to once again ask ourselves what kind of a people we want to be.

It’s time to dream again, America, and to shout that dream from the mountain tops. It’s time to dream of a nation in which we are more committed to lifting one another up than to knocking one another down. It’s time to dream of a future, of a present, in which we care that so many are so impoverished, that so many have so little access to basic health care, that so many suffer so much unnecessary violence. It’s time to dream again of being a people whose disputes are defined more by the limits of our reason and decency than by the extent of our bigotries. It’s time to dream again of striving to become a nation, and, eventually, a world, committed more to our shared humanity than to our explicit and implicit hatreds or, just as destructively, our mutual indifference.

It’s time to dream again, to care, to think, to strive, to work diligently on behalf of that which is most rational and humane, that which is most decent and good, that which is most caring and conscious. It’s time to dream again, and, in never-flagging opposition to those base and horrifying human tendencies that ever-seek to turn our dream into a nightmare, tendencies that are so in ascendance once again in this too-often troubled and misguided nation of ours, work diligently, work with all other rational people of goodwill, work in service to our shared humanity, to make that dream come ever-more true.

(Dr. King’s prepared remarks end at about the 11 minute mark of this video, and his “I have a dream” speech, extemporaneously building on a theme he had used a few times in smaller venues, begins just after the 12 minute mark.)

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The Child Welfare through Family and Community Facilitation Act (the Act):

(1): The Family and Community Facilitation and Child Welfare Administration (the Administration) shall be established to execute this Act and all of its provisions.

(a): The Administration shall be staffed by Community Facilitators (CFs) and Family Support Case Workers (FSCWs), trained and licensed in the skills necessary to implement the provisions of this Act.

(2): Current Parents, Expectant Parents, Foster Parents, Prospective Adoptive Parents, Legal Guardians, or primary care-givers (collectively, “parent,” whether referring to one parent acting alone or more than one parent making decisions together), along with their children, shall either formally belong to a Community, as defined in subsection (a), and participate in Community Parenting Support Meetings (CPSMs), or shall attend a Parental State-Disengagement Determination (PSDD) conducted by an agent of the Administration according to section 2(c) below. (Non-parents are encouraged, but not required, except as specified below, to belong to a Community and attend CPSMs). If a parent declines to attend either CPSMs or a PSDD, then an FSCW will automatically be assigned to that parent.

(a): The Administration shall create regulations to ensure that parents, both expectant and actual, follow procedures incumbent on parents in accord with this Act as soon after being informed of impending or actual parenthood, or beginning adoption proceedings, as is reasonably practicable.

(b): A Community, for the purposes of this statute, is either geographically or culturally defined.

(i): A parent shall by default belong to his/her geographical community, unless that parent selects a cultural community to belong to.

(ii): The upper and lower numerical limits of such Communities, the boundaries of Geographical Communities, the degree of geographic dispersion permissible for Cultural Communities, and the criteria of what constitutes a Cultural Community, shall be determined by the Administration according to guidelines designed to ensure that each Community is so constituted as to be capable of satisfying the functions described in the provisions of this Act, and of advancing the goals defined as the purpose of this Act (following the provisions described in subsection (iii) to protect parents utilizing culturally variant practices from ethnocentric presumptions of abuse or neglect).

(iii): Culturally variant practices that might be technical violations of the law, or presumptively harmful from a prevalent American cultural perspective, shall constitute grounds neither for refusing definition to a Cultural Community, nor for invoking the provisions in sections 4 and 5 of this statute, if they do not unambiguously create objective harm or deprivation to the child, if all or nearly all members of the Cultural Community would find the practice harmless and inoffensive, and if the Cultural Community has an independent existence and is not an artifact of convenience designed primarily to insulate its members from legal constraints to which they would otherwise be subject.

(iv): Communities shall be assigned the task of ensuring, with the organizational resources allocated and with the oversight of the CF, that the basic needs of parents and children in the Community are attended to by

(I): assisting parents in accessing the relevant family support programs established by complementary legislation, which provide children and families with adequate material support and vital services,

(II): facilitating mutual cooperation among Community members to provide one another with the moral, emotional, and informational support conducive to the long-term welfare of all of the children and parents in the Community, and

(III): providing children with age-appropriate means for expressing their views and preferences regarding their own upbringing and disposition, and having those views and preferences known and taken into consideration in any proceedings that involve them.

(c): CPSMs shall be held at a frequency to be determined by the Administration for each Community in consultation with the members of that Community, not to exceed one time per week nor be less than one time per month. By similar means, the Administration shall establish a mandatory attendance rate for parents in each Community, not to be less than 30% nor exceed 70% of all meetings, applicable to each parent individually, except in particular cases in accordance with subsection (ii) below.

(i): Each Community shall arrange on-premises child-care during the meetings by having three or more parents, on a rotating basis, undertake child care responsibilities during each meeting.

(ii): The Administration shall assist individual parents and Communities to make special arrangements in cases of particular scheduling problems, exercising a substantial commitment to accommodating parents with such verified scheduling problems, so long as the conflict involves an obligation that substantially contributes to the family’s material welfare.

(d): The Administration shall conduct PSDDs at the time and location most convenient for the parent whenever possible, and with substantial deference to the parent’s presumed right to direct the upbringing of the parent’s child(ren) as the parent sees fit. The Administration shall determine at the PSDD whether there is any compelling reason not to permit the parent to voluntarily disengage from the Family and Community Support apparatus established by this Act.

(i): The Administration shall establish a fully delineated set of criteria by which to make such determinations, and will do so under guidelines designed to prevent the influence of prejudices on the part of its agents, such as those regarding race, ethnicity, culture, class, gender, or sexual orientation.

(ii): If such a compelling reason is not found to exist, the parent will be allowed to disengage from the state involvement delineated in this Act, except for the provisions of sections 2(d), 3(a)(5), 5, and 6.

(iii): If such a compelling reason is found to exist, the parent will be assigned an FSCW.

(3): Family Support Case Workers (FSCWs) are entrusted with the responsibilities of monitoring families for evidence of Child Abuse or Neglect (as defined in 20-8-140 of the SHF Revised Statutes); working with parents (always deferential to parents’ preferences short of child abuse or neglect) and children to improve coping skills and devise more effective strategies to deal with the challenges of child-rearing; identifying particular family problems, challenges, and needs that are having or can reasonably be expected to have a significant impact on the child’s welfare; and recommending to the Administration interventions and assistance that are conducive to the continued provision of a safe and healthy home environment for the child.

(a): An FSCW shall be assigned to a parent when

(i): a parent requests it,

(ii): a Community Facilitator (CF) recommends it,

(iii): the Administration deems it necessary through a Parental State-Disengagement Determination,

(iv): a parent declines to participate in CPSMs or, alternatively, to attend a PSDD,

(v): the Administration deems it necessary as the result of an investigation into an allegation of Child Abuse or Neglect, or

(vi): to prospective adoptive parents upon initiation of adoption proceedings.

(b): An FSCW shall be authorized to recommend targeted financial and material assistance to parents, according to criteria to be developed by the Administration.

(i): An FSCW shall be authorized to predicate the receipt of such assistance on the parent’s participation in CPSMs, if the parent is not already participating in them.

(ii): The FSCW shall assist the parent, with substantial deference to parental autonomy, in self-monitoring parental choices, considering how well or poorly those choices serve the child’s welfare, and contemplating alternatives that might serve the child’s welfare better. The FSCW will be trained to be a parental resource rather than an imposing authority in this process.

(4): If either the FSCW or CF determine that a child is not in imminent physical danger but that the

child’s long-term welfare is being substantially compromised (according to the definition of Abuse or Neglect defined in 20-8-140 of the SHF Revised Statutes) by the child’s current home environment, (a): the parent can voluntarily submit to a process of Intensive Community Intervention (ICI), or

(b): the Administration shall investigate and determine if, by a preponderance of the evidence, the Administration’s determination accords with that of the FSCW or CF.

(i): If the Administration finds by a preponderance of the evidence that the child’s long-term welfare is being substantially compromised, the Administration shall initiate ICI.

(ii): If the Administration does not find that the child’s long-term welfare is being substantially compromised, then all adult parties will be brought together for a determination of how to proceed, which might include reassigning the parent to a different community, reassigning a new FSCW to the parent, or, if the parent prefers, maintaining the current FSCW and Community (and thus CF).

(c): Intensive Community Intervention (ICI) requires the voluntary involvement of Community and extended family members, as well as of teachers and others involved in the child’s life, working with the parent to rectify and remedy the problems that have been identified as substantially compromising the child’s long-term welfare. ICI strategies always include the determination of a designated period after which the case will be reviewed, and can include any combination of the following:

(i): parental behavior modification efforts, closely monitored by Community and extended family members, utilizing whatever institutional assistance is required (such as drug rehabilitation programs),

(ii): temporary in-home residence of Community or extended family member to assist the parent,

(iii): temporary placement of the child with a Community or extended family member,

(iv): limited or monitored parental contact with the child, and/or

(v): professional assistance in concert with the Community and extended family assistance.

(5): If as the result of an investigation into allegations of child abuse or neglect, or if an FSCW or CF determines that a child is in imminent physical danger; or if, after the designated period for an ICI, both the FSCW and CF determine that the ICI has been unsuccessful; or if an ICI was impossible due to a lack of willing extended family or Community members, the Administration will initiate a child custody hearing, adhering to the following guidelines:

(a): The Administration must find, by clear and convincing evidence, that the child’s long-term welfare is being substantially compromised, or that the child is in imminent physical danger, before parental rights can be wholly or partially terminated.

(b): The value of affective bonds and remaining in the child’s familiar home shall be given full weight as important, but not entirely decisive, factors in consideration of the child’s custody arrangements.

(c): Parental rights shall be terminated or limited only to the extent necessary to preserve the child’s safety and to secure the child’s long-term welfare.

(i): This Act imposes no presumption concerning the number of people that may be granted parental rights regarding a particular child, nor the precise scope of such rights in any given instance.

(ii): Preference will always be given to preserving and encouraging established healthy affective bonds between adults and the child, rather than severing such bonds in pursuit of parental exclusivity.

(iii): Partial, delineated parental rights may be granted to various adults, who must devise decision making guidelines commensurate with their various parental rights, with the assistance of an FSCW.

(iv): The Administration shall generate guidelines for relinquishing the rights and responsibilities associated with partial parental rights commensurate with the extent of those rights and responsibilities, and in accord with the child’s best interest, ensuring continuity of comprehensive parental services.

(v): “Parent,” for the purposes of this statute, does not refer to anyone with limited parental rights, but only to those with primary custodial rights, to be fully defined by the Administration.

(d): Consideration of custodial alternatives shall be given concurrently with consideration of the parent’s, and others’, custodial rights.

(i): The termination or diminution of parental rights do not necessarily result in an immediate or eventual loss of physical custody: The child will always be placed in the best available home, all factors considered, even if parental rights have been revoked from, or not yet granted to, the adult in whose custody the child is placed.

(ii): Preference will be given, in order, to (1) extended family members who are also members of the same Community as the parent, (2) other Community members, and (3) other extended family members, in any change of custody of the child, whether it is a temporary arrangement, the placement of the child in a foster home, or an adoption proceeding. The Administration has the authority to supersede or alter the ranking of these preferences in accord with particular circumstances.

(iii): No racial preferences beyond those implicit in the preferences above shall be implemented.

(iv): If the child can not be placed in a home according to the above preferences, and the Administration determines, by clear and convincing evidence, that the child’s safety or welfare is too drastically compromised in his/her current home to leave him/her there, the child will be placed in foster care and adoptive parents will be sought, with the parent retaining those rights of visitation, if any, that the Administration finds contribute to rather than detract from the child’s long-term welfare.

(e): Prospective adoptive parents must be members of a Community for one year prior to adoption, and must be recommended by their FSCW and the CF of the Community, and by a majority vote of both the community to which they belong and the Community from which the child is being adopted.

(f): A mother may not put her child up for adoption until 36 hours after the birth of the child if the decision was made in writing at least two months prior to birth, or three weeks after the birth of the child if the decision was not made in writing at least two months prior to the birth of the child.

(6): Extended family members, as defined in subsection (a), have the right to maintain a relationship with the child, subject only to the limitations delineated in subsection (b).

(a): An extended family member is, for the purposes of this statute,

(i): any blood relative of any parent (as defined in section 2 of this Act) that the child has ever had, who has formed a healthy affective bond with the child, as determined by clear and convincing evidence, according to criteria to be delineated by the Administration,

(ii): any other individual who, in a relationship sanctioned by any parent (as defined in section 2 of this Act), has formed a healthy affective bond with the child, as determined by clear and convincing evidence, according to criteria to be delineated by the Administration.

(b): The legal rights of extended family members (as defined in subsection (a)) to access to the child are limited in the following ways:

(i): No parent shall ever be obligated to relinquish temporary physical custody of a child to any current non-parent, unless by a formal hearing of the Administration the non-parent’s ability to have occasional temporary physical custody of the child, as opposed to mere visitation rights with parental supervision, is held, by clear and convincing evidence, to be vital and indispensable to the child’s long-term welfare, though the parent can rebut this finding by demonstrating by a preponderance of the evidence that any occasional relinquishment of temporary custody to the petitioning non-parent would be contrary to the child’s long-term welfare. If a finding in favor of the petitioning non-parent is made, the amount of occasional temporary physical custody shall be limited to the least possible to satisfy the needs of the child’s long-term welfare. The parent has the right of appeal; the non-parent has no right of appeal.

(ii): Non-parents with rights of access to a child are required to exercise reasonable self-restraint regarding the amount of access they demand, the degree of inconvenience they impose on the parent and other family members, and any disruptions or tensions that their relationship with the child may cause to or among the parent, family, or child. The Administration shall draft explicit guidelines regarding these issues.

(iii): Non-parents with rights of access to a child, who do not belong to the parent’s Community, shall be required to attend the Community Parent Support Meetings (CPSMs) at a frequency to be determined by the Administration, taking into consideration all relevant factors, though the frequency required may not be more than once per month nor less than once per year.

(iv): The parent can file complaints regarding non-parents with rights of access to the child, which the Administration is obligated to investigate, preliminarily through the agency of the child’s FSCW and CF. If the problem cannot be resolved to the satisfaction of all parties through the agency of the FSCW, CF, and CPSMs, a hearing must be held to determine if, by a preponderance of the evidence, the non-parent has abused his/her right of access to the child according to the criteria established by the Administration. If such a finding is made, then the non-parent shall have his/her right of access to the child revoked. Neither the parent nor the non-parent has the right of appeal regarding the determination of the Administration.

(20-8-140, a fictional statute to which I have cross-referenced in this hypothetical statute, would include conventional definitions of Abuse and Neglect, plus extreme emotional abuse).

I. Social Policy Concerns Addressed by the Act

            This Act addresses the care and custody of children, including the rights and responsibilities of extended family and community members involved in a child’s life, the procedures for identifying and responding to child abuse and neglect, and the procedures for reassigning legal custody of a child. The purpose of this Act and the responsibility of the Administration is to facilitate communities and families in providing healthy and stable homes for children by means of mutual support, encouragement, involvement, oversight, and, in the last resort, reassignment of a child’s custodial arrangements, among family and community care givers. It is based on the principle that the state should be a proactive agent and vehicle of the people, to be utilized in conjunction with other social institutions in the facilitation of the welfare of its residents, rather than a reactive intervener of last resort, standing aside to permit preventable failure and subsequent suffering, and only then stepping in to pick up the pieces at greater public expense and with less efficacy.

            This Act accordingly reconceptualizes the state’s role, relinquishing its theoretical commitment to initial minimal intrusion on family autonomy until a threshold is reached triggering a sudden extreme and generally inefficacious intervention (see Clare Huntington, “Mutual Dependence in Child Welfare,” 82 Notre Dame L. Rev. 2007, 1485: 1497-1505), and, in its place, constructing a state-family-community system which institutionalizes support to families prior to, and in prevention of, the failure of a family to provide for a child’s welfare.

            The Act is characterized by two essential innovations: 1) a legal construct called “Community,” which mediates, buffers, and articulates the primarily coincidental and only marginally or superficially conflicting real interests of parent, child, and state; and 2) a proactive rather than reactive approach to child welfare policy. The Act meets the challenge of reconstructing and refining, through legal artifice, a traditional and organically produced social institutional form (i.e., community) that has grown increasingly attenuated with the growth of modern individualism, while not violating the Constitutional 14th Amendment liberty interests of parents (and others) which give that cultural individualism legal teeth. It does so in order to meet the corresponding political and legal challenge of increasing the constant and constructive involvement of the state in family and community life in order to decrease the extreme and often destructive involvement made more frequently necessary by its absence (or less comprehensive and humanized presence).

            The central innovation of this Act is the introduction of the legal reincarnation of the Community, which serves, with focused intentionality in its new form as a legal construct, to mediate the tensions and alliances among the interests of parent, child, and state, and as a buffer coordinating the functions of family and state in more cooperative and mutually accommodating ways. It provides an arena of support, communication, negotiation, and resolution. It is a medium of both state coercion and parental resistance, the conflict between the two channeled, filtered, or dissipated according to the moderating, focusing, or amplifying influence of a middle-range of social organization through which both the individual wills of parents and the corporate will of society, via the agency of the state, must pass. It provides a familiar and intimate zone in which children have an increased opportunity to formulate and express their will, in which subcultural diversity can hold out against an often overreaching and categorically biased state demand for conformity, but in which authentic child abuse and neglect has reduced opportunity to hide. While no law or institution can either eliminate child abuse and neglect or erase all errors of overcontrol or undercontrol, of false positives and false negatives, the Community is designed to lower the rate of both child abuse and neglect itself and of errors in detecting it at both extremes, and to coordinate the freedom of parents to raise their children as they see fit with the desire of the state to ensure that those children are raised in a safe, healthy, and nurturing home.

            The Community, as defined in this Act, 1) humanizes the state, 2) provides parents with improved due process protections, 3) channels information to the state to assist in accurate administrative decision making, 4) accommodates and protects diverse practices, 5) reduces institutionalized bias on the basis of race, ethnicity, English language proficiency, or social class, 6) mobilizes and moderates local normative control in service to child and family welfare, 7) channels relevant information and guidance to parents to improve parental decision-making, 8) facilitates continuity without sacrificing flexibility, 9) preserves and fosters rather than severs healthy affective bonds, 10) provides a buffer for strained relationships among adults involved in a child’s life, 11) provides a vehicle for including the child in the process, and, most fundamentally, 12) provides a vehicle of proactive state support of parents and families instead of state reaction to structurally-facilitated family failure.

            The Community, as the humanized incarnation of the state, helps reduce the error of overly mechanistic or politicized responses by bureaucracies often processing children rather than attending to their needs, by relying instead on an intervening layer of intimate social bonds through which the state’s decision-making must operate. The current dysfunctions are poignantly illustrated in The Lost Children of Wilder (Nina Bernstein, 2001), from the institutionalized brutality of the Hudson Training School for Girls (pp. 8-26), to the institutionalized racism resulting from farming out child welfare services to private religious organizations (pp. 44-45), and on through the stories of bureaucratic in-fighting, severed ties, and inadequate mechanisms for adapting available human resources to children’s emotional needs. The need to humanize the process, to mobilize the many people of good will who would take an interest in the welfare of the children in their community were there a functioning community through which to exercise that good will, and to facilitate their ability to do so in concert and through mutual support rather than in mutual isolation, is eloquently argued both by the anecdotal evidence of current bureaucratic dysfunction (see Wilder; Elizabeth Bartholet, Nobody’s Children: Abuse and Neglect, Foster Drift, and the Adoption Alternative,  pp. 8-15), and historical analyses of how our child welfare system became a vehicle of often punitive race, class, and gender bias through paternalistic and ethnocentric assumptions about the duty of the state and the incompetence of the people perceived to be (and often in reality) most in need of its services (see, e.g., Jill Elaine Hasday, “Parenthood Divided: A Legal History of the Bifurcated Law of Parental Relations,” Geo. L.J. 90: 299; Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence, Viking: 1988; Annette R. Appell, “Protecting Children of Punishing Mothers: Gender, Race, and Class in the Child Protection System,” 48 S.C.L. Rev. 577 (1997)). The viability of alternative, community-mediated, and family empowering approaches, on the other hand, is illustrated by the anecdotal evidence of successful historical and contemporary examples (see e.g., Dorothy E. Roberts, “Black Club Women and Child Welfare Lessons for Modern Reform,” 32 Fla. St. U. L. Rev. 957, 2005; Huntington, 1531-36 (discussing state-sponsored family-service programs that, while not specifically community-mediated, reflect the kinds of services that community mediation can most effectively deliver)).

            Parental due process protections are improved as a result of this humanizing process by providing parents with a social resource through which their story can be effectively told. The Supreme Court, in Santosky v. Kramer, identified some of the structural challenges to the adequate provision of due process to parents in TPR proceedings, such as the state’s far superior ability to mount a case than the parents’ ability to mount a defense, and the conceptual separation of concern for the child’s welfare from concern for the parents’ due process rights (455 U.S. 745 (1982): 1310-11). In Lassiter v. Dept. of Soc. Servs., the Court accorded the loss of parental rights less due process than the loss of liberty, holding the former not to merit the requirement of appointed counsel (452 U.S. 18 (1981)). The Community, professionally organized and represented by the Community Facilitator, serves to mitigate these deficits by acting as a mediator, counselor, and conduit of information (sec. 2(b)(iv)). The resource thus provided helps to avoid what the dissent in Lassiter accurately identified as the average parent’s dilemma when opposed by the state in a legal proceeding: An inability to negotiate the rules and procedures of the court, resulting in an inability to mount an effective defense, coupled by, as in Ms. Lassiter’s case, what may well be a tendency for such lay people in such situations to exacerbate the judge due to their inability to follow the procedures expected of a litigant in court (pp. 62-60).

            This by-product of an institution (the Community) serving multiple other purposes, incidentally increasing due process protection to parents in TPR proceedings, fares well under the scrutiny of the Mathews v. Eldridge test (424 U.S. 319, 335 (1976)): The Supreme Court has made clear that the parental interest in their parental rights is of the highest order of magnitude (see, e.g., Lassiter (1981), Santosky (1982), and Troxel v. Granville 120 S.Ct. 2054 (2000)); the state’s interest in keeping children with fit parents coincides rather than conflicts with this interest, while the state’s interest in efficiency is served by the multi-functional quality of the Community (including the more family-supportive roles of the professionals involved) by which parental due process is increased; and, finally, the benefits of this additional procedural resource in avoiding error is substantial. A corollary of this increased due process protection to parents is an increased flow of relevant information to the state, both to the Administration and the courts, thus resulting in the reduction of error discussed above. The benefits emanating from this one institutional innovation are widespread: Error is reduced not just in a single court proceeding, but in all administrative and legal action involving child welfare and parental rights.

            The additional due process protections accorded to parents through the medium of the Community are substantive as well as procedural: The Community protects sub-cultural diversity and forms a bulwark against class, race, and cultural prejudices operating through the apparatus of the state. By providing people the opportunity to belong to a cultural (rather than geographical) Community if the choose (secs. 2(b)(i), (iii)), they are given an opportunity to preserve and insulate culturally divergent customs and practices. While the state still has a presence, and (what the state deems to be) unambiguously harmful practices will be prohibited, people with divergent customs are given a greater opportunity to preserve them in this Act than they would have in its absence (see sec. 2(b)(iii)). Furthermore, just as the Community protects divergent sub-cultures from the excesses of the conformity-imposing tendencies of the state, it protects historical victims of discrimination from the prejudicial presumptions of poorly informed state actors by embedding state actors in the Community with which they will be interacting.

            The Community is an arena where compromise can be achieved: If Somali refugees wish to retain a symbolic remnant of female genital mutilation that does not inflict the physical harm of the actual practice (see “Refugees’ Beliefs Don’t Travel Well,” Chicago Tribune, Oct. 28, 1996), then, despite our cultural outrage at the symbolism itself, that can and should be accommodated. If it is Afghani custom for loving parents otherwise providing appropriate care to kiss, as a sign of affection rather than an expression of sexual intent, the penis of one’s child (see State of Maine v. Kargar (Maine S.Ct. 1996)), then a well-informed state might wisely choose to prioritize substance over form.

            Of course, prioritizing substance over form does not always favor the divergent cultural practice. The Administration, if not the courts, might choose not to privilege spanking children with a ping-pong paddle for two hours in accord with the practices of a fundamentalist religious sect (see In Re Marriage of Hadeen, 619 P.2d 374: 620 (Wash. App. 1980)). Nor would it be incumbent on the state to permit parents to allow their children to die in lieu of providing medical care due to membership in the Christian Science church (see Hermanson v. State of Florida (Fl. S.Ct. 1992)). To the extent that federal law and the Constitution would allow, the Community replaces all other forms of deference to the particular, neither allowing it to justify what would otherwise be considered a clear and unambiguous infliction of substantial and palpable harm, nor forcing it to accede to vague and suppositional mainstream sensibilities. The issue remains the child’s welfare: Religion and culture can not excuse outright violence to the child, nor should the ethnocentrisms that seep through the state deny a family the discretion to provide a loving and safe household in accord with its customs and beliefs.

            The Community reduces the salience of racial and class biases in three primary ways. First, it empowers the members of the sub-group, providing a bulwark against marginalization. The “othering” of poor families of color that Appell identifies (1997, p. 579) can not so easily occur when the “other” is not, in a sense, “divided and conquered.” When represented and expressed by a Community that is the overlap of “state” and “family,” the “other” becomes internalized, recognized, acknowledged, and, to some extent, accommodated. The norms are negotiated in that arena, not defined and imposed from without. Similarly, the frequently encountered language and cultural barriers Appell describes (Annette Appell, “Spanish-Speaking Caregiver,” 7 Nev. L.J. (2007)) are mitigated by the medium of a Community that acts as a linguistic as well as cultural translator. Furthermore, the thus-far prevalent cultural assumption is reversed: Instead of depriving a loving caregiver of her granddaughter on the basis of the erroneous assumption that she would be carrying the burden alone (see id., pp. 116-17), a Community both reinforces and raises the profile of extended family and community care-giving.

            Second, the Community reduces the differential visibility of families of different socioeconomic classes (see Appell 1997, p. 584) by creating a continuous, recurring public interface for far more families regardless of socioeconomic class, an interface whose primary purpose is to ensure the welfare of the children in the Community. To a large extent, it merges together what Appell (1997, p. 581) identified as the bifurcated branches of public and private family law, one based on more intrusive treatment of the poor associated with child welfare intervention and the other based on more deferential treatment of the rich associated with property rights adjudication (see secs. 5(c), (d) of the Act). While it may be the case that more affluent than poor families opt for a Parental State-Disengagement Determination rather than belong to a Community, it is likely that many affluent families will be attracted to the material and social benefits of Community membership, and that the normative control (discussed below) exerted by Communities on its members will have an ameliorative effect across classes. Even those families that opt for a PSDD will have at least one encounter with the state in which their parenting skills and inclinations come under close scrutiny (sec. 2(d)), which may be one more encounter than they otherwise would have had.

            Third, the Community, and complementary legislation (see sec. 2(b)(iv)(I)), reduce the rate of neglect-due-to-poverty by providing material, informational, emotional, and social support according to need, thus mitigating what Appell (1997, p. 585) identifies as the breach of white middle-class norms of proper child care that accompanies poverty. This channeling of resources and services in proactive support of families produces many benefits, just one of which is the reduction of class bias in our child welfare system. (Other benefits are discussed below.)

            Like traditional communities before it, the Community will undoubtedly function as a vehicle of local normative control through the mutual enforcement of informal rules. This is accomplished by means of the diffuse social approval and disapproval of its members (see class, Jan. 27). The combination of the state’s involvement in the Community (see sec. 2(b)(iv)), and the historical tendency of communities in general to reinforce behaviors that are conducive to children’s welfare, are sufficient to ensure that the Community’s norms do indeed invoke positive and negative reinforcement of parental behaviors that, respectively, positively and negatively affect children’s welfare. In fact, due to the institutionalized interdependence Community members (see secs. 2(a)-(c), 4(b)), the externalities of individual parental choices is increased, and the incentive for other Community members to encourage good parenting and discourage bad parenting (as defined by some articulation of state and Community values) is correspondingly increased.

            Indeed, the most likely, and perhaps most legitimate, criticism that may be leveled against this Act is that the Community itself can be a very onerous intrusion on family autonomy and privacy. But, aside from the opt-out provided by the PSDD, the tyranny of the Community is, if not necessarily reduced, then at least made more coextensive with individual freedom, by allowing parents the option of selecting a cultural Community that best expresses their individuality (see 2(b)(i), (iii)). Leaving aside for now the discussion of how the Act moves from, as Huntington put it, the somewhat mythological “freedom from” notion of family autonomy to a self-determination-increasing positive mutual engagement model (2007, pp. 1510-20), and considering instead the residual need of the state to intervene in remaining child abuse and neglect cases, the Community provides an appropriate balance between a family’s right to privacy on the one hand, and the state’s need to be vigilant in the protection of children’s welfare on the other. Deficiencies fostered by our current social institutional framework, such as the very inadequate job we currently do of identifying and intervening in cases of sexual abuse (class, Jan. 15), and the decreased ability to intervene in cases of child abuse and neglect in affluent households due to their decreased interaction with public services (see Appell 1997, p. 584), can be addressed more effectively, with a moderate and reasonable compromise of privacy, by means of a Community to which each family belongs, and under whose intimate vigilance each family thrives.

            Along with the encouragement of practices conducive to child welfare and discouragement of practices antithetical to child welfare, the Community provides a conduit of information and guidance to parents to help them become familiar and comfortable with positive child care practices, as well as with coping skills to help avoid spontaneous responses to events that would be considered abusive or counterproductive to the child’s welfare. The Community Parenting Support Meetings (sec. 2) are, essentially, self-help group meetings held at regular intervals for just this purpose, as well as to resolve problems and address needs of individual families as they arise. As Huntington points out, this type of proactive assistance increases rather than decreases family self-determination, by “reducing the chance that a crisis will occur and the state will remove the child from the parent’s home” (2007, pp. 1511-12).

            The reliance on the Community as the arena in which both proactive and reactive needs are addressed first, and are addressed most, balances permanence in the provision of a home for a child with flexibility in meeting the demands of ensuring that the home is a safe and nurturing one, and that all adults who have healthy affective bonds with the child are allowed to remain in that child’s life. As Bernstein explained in The Lost Children of Wilder, citing Bolby’s Attachment and Loss to explain Lamont’s traumatization by the shuffling around he experienced in the New York child welfare system, young children experiencing repeated cycles of attachment to adult care givers and subsequent loss develop reactions of anger and anxiety in association with the prospect of future attachments (2001, pp. 257-58). The Community provides an increased layer of the familiar around the family, facilitating the  satisfaction of the sometimes conflicting demands of continuity on the one hand, and placement in a safe and healthy home on the other. It accomplishes this by 1) looking for foster care, adoption or temporary placement options within the Community first (secs. 5(c), (d)), 2) not severing the healthy affective bonds that the child has already formed in order to create parental exclusivity with each new placement (secs. 5, 6), and 3) investing in the proactive assistance to parents that will increase their ability to provide a healthy and safe home to their children in the first place (sec. 2(b)(iv)).

            Our current child welfare system dramatically fails to meet these demands. Elizabeth Bartholet, in Nobody’s Children: Abuse and Neglect, Foster Drift, and the Adoption Alternative, identifies how the dysfunctional combination of excessive individualism and lack of community (p. 2), the notion of family autonomy as freedom from the state (p. 3), and “a powerful blood bias” (p. 7), creates a model which sets up often loving but poverty-impaired biological parents to fail and children subsequently to receive suboptimal care. According to Bartholet, child welfare services either leave abused or neglected children in the care of damaged parents deemed “good enough,” or place the child first in a sort of limbo awaiting the improbable event of the parent’s mostly unaided resolution of her problems, and then set the more-damaged-than necessary children adrift in a foster care system that is unlikely to provide either a stable or nurturing home (id., pp. 8-15).

            Bartholet’s proposed solution involves the combination of a more proactive state assisting parents from pregnancy onward (id., pp. 15-16)  and “concurrent planning,” “proceed[ing] on two tracks simultaneously, working with parents toward family reunification, while at the same time developing an appropriate adoption plan” (id., p. 18). The Community serves as a vehicle for a more comprehensive solution that incorporates Bartholet’s proposal, but also improves upon it. Not only does it provide a conduit for the state’s proactivity, but it does so with an inclusiveness and constancy that a mere patchwork of state assistance programs can not match. It facilitates blending concurrent planning with a focus on continuity for the child, by involving prospective adoptive parents in the child’s community from the earliest possible date (see secs. 2, 2(a), 5(e)), and by not forcing, as a matter of policy rather than as the result of an individualized determination, either prospective adoptive parents or biological parents (or any other care giver) to severe their ties with the child if the child ends up in the care of another (see secs. 5(b)-(d)).

            This latter characteristic of the Act, of preserving rather than severing the healthy affective bonds that children have formed with adults (secs. 5(c), (d), 6), contributes not only to continuity for the child, avoiding the attachment-interruption problems described above, but also provides the child with increased adult human resources on which to draw. Who could doubt that, had Alicia’s loving bond to Lamont not been arbitrarily severed (see Bernstein, pp 300-302), had care instead been taken to preserve it, that Lamont would not have fared better? Or, for that matter, had Shirley been able to maintain some kind of relationship with Lamont throughout his childhood, even if not a custodial one, that they both would not have benefited (id.)? The Act explicitly allows for any number of adults to be involved in a child’s life, to have plenary or circumscribed roles, responsibilities, and rights, and for those roles, responsibilities, and rights to be coordinated in mutually accommodating ways by the Community and the agents of the Administration (secs. 5, 6). Through these mechanisms, the Act addresses and mitigates many of the problems associated with allowing more than two parents, while retaining all of the benefits (see class, March 5).

            The literature is rife with examples of severed or attenuated bonds between children in the system and adults who love them, often followed by disastrous outcomes for the child (or simply the loss of a loving parental figure) (see, e.g., Apell 1997, pp. 592-93; Appell 2007, pp. 116-21; Bernstein 2001; Suzanne Goldberg, “Family Law Cases as Law Reform Litigation,” 17:3 Colum. J. Gender & L. 307, 2008). The case law also provides numerous examples of the exclusion of adults who wished to form a relationship with the child, frequently on the basis of parental exclusivity (that is, only two parents per child) (see, e.g., Quillon v. Walcott, 434 U.S. 246, 1978; Michael H. v. Gerald D., 91 U.S. 110, 1989; Sider v. Sider, 334 Md. 512, 1994; In Re Baby M., 109 N.J. 396, 1988; Ohr v. Ohr, 97 P.3d 354, 2004; In the Interest of CTG, 179 P.3d 213, 2007). While in some individual cases a determination might be reached that a particular relationship is not in the child’s best interest, the presumption that a child can have no more than two adults with parental or quasi-parental rights severs valuable bonds and reduces the affective human resources available to the child.

            The focus on fostering and preserving healthy affective relationships with adults, and contextualizing the child’s welfare by membership in a Community, provides resources that can also serve as a buffer when necessary between two adults with shared parental rights. In In Re the Paternity of Baby Doe (207 Wis. 2d. 390, 1996), the court held that, absent a statutory distinction, the rapist father of a child had the same rights as any biological father. If, even under a more refined legislative regime, a rapist-father’s relationship with the child were found under certain circumstances to be in the child’s interest, the presence of multiple adults in the child’s life, and of a Community enveloping those relationships, could more easily accommodate a mother who might well be highly averse to any kind of interaction with the father. Even under less dramatic circumstances of divorced parents highly antagonistic to one another, the best solution at times, if all else fails, might be to preserve the child’s relationship with each while sparing all from forcing a relationship on the two antagonistic adults. Moving away from the current insular family microcosm and toward a Community model of socially contextualized families would facilitate such flexibility.

            The Community, as a facilitated organic medium for, among other things, interpreting, coordinating and accommodating the wills of various actors vis-a-vis the children whose welfare is the purpose of this Act, is able to give voice to those actors whose voice is most marginalized, though whose interests are most pertinent: the children themselves (see sec. 2(b)(iv)(III)). Just as the Community can interpret for care givers who are not fluent in English, it can interpret to some extent for children whose cognitive development renders their conceptual language to some degree out of sinc with the conceptual language of the adults around them. This is a function of the combined genius of numbers and of intimacy: The more intimate one is with a child, the more that adult can intuit the child’s thoughts, wishes, and perceptions; and the more adults so positioned, interacting both with each other and with the child over extended periods of time, the more able they are collectively to extract and render comprehensible the perceptions and wishes of that child.

            Children’s participation in Community Parenting Support Meetings, and their interaction with the Community Facilitator and with their family’s Family Support Case Worker (if they have one), will help to empower the children, and teach them through experience not only civic participation, but also how to live in a community, how to advocate for themselves, and how to engage with the world in a more aware and proactive way. The skills they thus actively develop, as well as the institutional apparatus through which they develop it, will help mitigate some of the inherent and, to varying degrees, intractable challenges facing the extension of rights of self-determination to children.

            As Justice Douglas put it in his dissent in Wisconsin v. Yoder, “the children should be entitled to be heard” (406 U.S. 205, 241: 244 (1972)). In Yoder, the rights of the parents, the state, and even of the reified Amish religion and community, were all considered, but the children were the ball rather than the players moving it down the field (see class, Jan. 29, though the metaphor is mine). The difficulty of obtaining a fully informed and well articulated statement from children involved in matters of concern to them, and the question of how to weigh such statements if obtained given the children’s cognitive limits (id.), contribute to the marginalization of a child’s will in determinations of that child’s fate.

            Perhaps most saliently, how could the state enforce a child’s right vis-a-vis a fit parent, when that child remains dependent on that parent (class, Feb. 3)? One step toward resolving these challenges is to provide the child with a social resource that is neither the parent nor the state, that is familiar with and supportive of the child, that is not an individual either guessing at the child’s best interest (e.g, a guardian ad litum) or a lawyer representing the child’s uninterpreted express views and preferences (see Elizabeth Brodsky’s class presentation on April 21), but is rather a Community that knows the child and can help the child to discover, formulate, and articulate his or her own views and preferences most effectively. And, perhaps most uniquely and importantly, the Community reduces the child’s absolute dependence on the parents with whom he or she is identifying imperfectly aligned interests.

            The parental advantage is far from eliminated in this context: The Community is always of the parent’s choosing (unless accepted by default). In Yoder, the relevant Community (the Amish community) would have sided unambiguously with the parents. The children would have had to leave their Community as well as their families to escape the adult will to which they were being subjected. But the Community will provide many children in many situations with an adult social resource that is more attuned to them then a GAL is likely to be, and is capable of being the child’s most powerful advocate in certain circumstances. And the presence of state actors in the Community (the Community Facilitator assigned to the Community itself, and the Family Support Case Workers assigned to families within the Community) helps to provide at least some counterweight to the Community’s own potentially totalitarian inclinations.

            Those totalitarian inclinations pose a serious challenge. The Community can as easily be the oppressor as the liberator, an increased weight dictating to the child (or parents) rather than an asset supporting them. Care must be taken in the design and management of Communities to prevent them from becoming suffocating forces, and to maximize their potential as an empowering resource.

            In many ways, the Community’s ability to perform effectively its functions is due to it being a permanent and familiar presence rather than a foreign agent suddenly introduced in response to events. And this, of course, is the crux of its utility: It is the vehicle of a proactive rather than reactive approach to the provision of child and family welfare services. The Community is the comprehensive operationalization (and marginal refinement) of Huntington’s “‘engagement with’ model of family-state relations,” which replaces “the ‘freedom from’ conception of family autonomy” (2007, p. 1485). Like the African-American child and family welfare advocates at the turn of the 19th to 20th centuries (Roberts 2005), this model is focused on supporting rather than penalizing parents and families facing the challenges of providing for their children, and particularly those families that are further burdened by the deprivations of poverty (Huntington 2007, p. 1494).

            Following Barbara Bennett Whitehouse’s (Ecogenerism: An Environmental Approach to Protecting Endangered Children, 12 Va, J, Soc. Pol’y & L. 409, 423 (2005), cited in Huntington 2007, p. 1496) identification of the salience of a child’s environment, “including a child’s peer group, neighborhood, and school” as “the systems surrounding a family” that should be supported in conjunction with the support of the family itself (Huntington, p. 1496), the Community is the vehicle for directing that support and coordinating the various components of a child’s environment. And rather than providing the “one-way ratchet” effect of regulation-imposing state aid (Huntington, p. 1506), the Community provides a two-way forum of state and family articulation.

            As Huntington points out (citing Frances Olsen, “The Myth of State Intervention in the Family, 19 U. Mich J.L. Reform 835 (1995)), the state is already heavily implicated in family decisions, first by “determin[ing] the contours of the world in which a family lives,” and second by “establish[ing] a system authorizing parents to make some decisions concerning children” (Huntington, p. 1514). In essence, the illusion of family autonomy is a function of the degree to which we accept the state’s involvement as a fixture of the social institutional environment, and so do not identify it as state involvement at all. Public education, for instance, is an enormous state investment in our children’s development (Huntington, p. 1522), one that affects children’s development in an often cooperative and occasionally conflicting dialectic with individual families (or, indeed, individual communities), but one that is not generally perceived as an unacceptable intrusion on family autonomy. Indeed, most parents have come to see it as an indispensable state service.

            There is no inherent, qualitative difference between the institution of public education, which parents generally accept and appreciate, and the institution of the Community established by this Act, which families could well come to accept and appreciate in much the same way. Just as the state has created an elaborate apparatus, both local and ubiquitous, to provide public education services, so too can it provide a similar apparatus, the corollary of the local school, providing comprehensive support to families in the enterprise of raising their children. And just as public education is an enormous investment that has paid off enormously, the fully endowed Community (see sec. 2(b)(iv)) holds the same promise multiplied many fold.

            The Community as a legal construct satisfies not only the need to provide a conduit through which to channel state services to families that need them, but also the need to replace, in some form, a valuable traditional social institution that has eroded with increased mobility and increased familial and individual insularity. The Yoder Court, by one not terribly strained interpretation, appears to have been implicitly informed by an appreciation of and deference to the stability and nurturing environment that a well-functioning community provides (406 U.S. 205 (1972)). The Community is the family writ large and the state in humanized form; it is the middle ground. As such, it provides many benefits beyond those that are the focus of this discussion, such as, by permitting and coordinating multiple adults participating in a child’s life, the facilitation of non-traditional family arrangements (see In Re Baby M 1988; John Bowe, “Gay Donor or Gay Day?” New York Times, Nov. 19, 2006).

            The Community is also an improved social thermostat, responding in real time to evolving situations, rather than, as in our current child welfare regimes, relying on a remote state which must choose between removing a child from his or her home (and thus ensuring that he or she is at a statistical disadvantage of faring well (class, Jan. 22), as well as risking the outright abuse found within the foster care system (see Taylor v. Ledbetter, 11th Cir. 1987)), or, conversely, risking a catastrophe such as that illustrated by DeShaney v. Winnebago (7th Cir. 1989), in which a boy was not removed from an abusive home and, subsequently, was beaten into a coma by his father and suffered permanent brain damage as a result. The Community satisfies the risk-aversion of the state (class, Jan. 22) by being its more vigilant immediate presence, but simultaneously permits less precipitous removal of the child than is often the result of that very same risk aversion (see, e.g., Appell 2007, pp. 116-121; Bernstein 2001, pp. 189-97).

            The Act contextualizes all decisions made regarding child welfare, and places all adults currently or prospectively involved in such decision-making (see, e.g., secs 2, 5(e), 6(b)(iii)) in the relevant Communities, aided by the trained professionals within those Communities. The professionals are attached to both levels (a CF for the Community as a whole, and FSCWs for individual families within the Community) in order to increase communication and cooperation across levels. Some flexibility for individual Communities and care givers is incorporated into the Act, such as, in sec. 2(c), allowing for some variance in the frequency of Community Parental Support Meetings, in sec. 2(c)(ii) allowing for accommodation of individual parents with scheduling problems, and in 6(b)(iii) allowing for variation in how frequently adults with more peripheral roles in a child’s life must attend meetings (depending on factors such as geographic distance). This flexibility combines assurance of actual integration into the Community with avoidance of making Community membership an onerous burden.

            The use of the Community, with the oversight of the CF, to target resources to families in need (sec. 2(b)(iv)), increases the efficiency of the channeling of resources to where they are needed, and deferential assistance in most effectively utilizing those resources.

            The Act strikes a balance between protecting privacy concerns and creating an intimate social context for proactively providing and targeting family services in provisions such as sec. 2(c), which provides parents with an opportunity to opt out of the entire proactive apparatus of the Act, after a deferential meeting to determine that there is no reason why the parent shouldn’t be allowed to do so. This meeting is designed to ensure that no parent remains completely insulated from the child welfare system created by the Act, and to give the Administration at least one chance to detect any obvious signs of concern before a parent is allowed to retreat into the current default of family insularity that is so conducive to undetected child abuse and neglect. Parents who do not opt-out can participate with varying degrees of engagement, receiving varying amounts of professional support, depending on a combination of their choices and the Community Facilitator’s recommendation (sec. 3).

            Section 4 provides an escalating process of intervention when necessary for the child’s safety or welfare, beginning with Community support and guidance if at all possible. Due to liberty concerns, the Act cannot mandate that Community members provide that support and guidance, though the hope is that by institutionalizing the opportunity and providing a framework through which to operationalize Community support and guidance (absorbing the transaction costs, so to speak), such support will become the norm rather than the exception. Section 5 continues the provision of steps to be taken to remove a child from a dangerous or unhealthy home, always focused on creating the least disruption possible to the affective bonds that the child has formed with adults, and contemplating available alternatives simultaneously rather than sequentially (secs. 5(d), 5(d)(i)), thus avoiding terminating a bad situation in favor of a worse situation. The concerns for maintaining continuity of racial and sub- cultural identity for the child are incorporated into the preferences outlined in sec. 5(d)(ii), and neither merit nor require any additional privilege. Sec. 5(e) further facilitates continuity for the child in adoption proceedings, and increased assurance of a good fit, by involving the prospective adoptive parent in a Community as soon as adoption proceedings begin, and encouraging involvement in the child’s Community as soon as possible by requiring the Community’s approval of the adoption.

            Section 5(f) is a slight modification and refinement of current (Colorado) rules of adoption requiring a four day waiting period after birth before a mother can put her child up for adoption (CRS sec. 19-5-103.5(1)(b)(IV)). Section 5(f) distinguishes between a considered decision made well before birth, and a precipitous decision made after birth. While sec. 5(f) recognizes the wisdom of giving every new mother a brief opportunity to reconsider her choice, it also recognizes that it is in the interest of mothers who made that choice rationally well prior to birth to abbreviate that period as much as possible (36 hours in this case), while for mothers who may be making the decision more precipitously it is important to extend that period enough (3 weeks in this case) to ensure that it is, in fact, a well-considered and rationally made decision.

            While section 6 describes the provisions for fostering and maintaining healthy affective bonds with all adults actually involved in the child’s life, it also recognizes the parent’s ultimate responsibility and right to be vigilant regarding such relationships (sec. 6(b)(i)). Sections 6(b)(ii) and (iv) similarly protect the parent’s privacy vis-a-vis other adults with rights of access to the child, and address the logistics of ensuring that such rights are exercised in a minimally intrusive and disruptive way.

II. Constitutional Issues Raised by The Act

            The Constitutional issues raised by this Act center on the 14th Amendment liberty interest of parents in their parental rights regarding the custody and care of their children, and the penumbra privacy right found through a distillation of the 1st, 3rd, 4th, 5th, and 9th Amendment rights. The case law at hand focuses on the 14th Amendment liberty interest, and, following that case law, I believe that the Act can withstand a 14th Amendment challenge. In Troxel v. Granville (120 S.Ct. 2054 (2000)), the Court, in a plurality decision, struck down a Washington statute permitting any person at any time to petition for child visitation rights against a parent’s express wishes, on the bases that the statute was overbroad, and that parents have a fundamental right protected by the due process clause of the 14th Amendment regarding the care and custody of their children. But the holding is ambiguous, in that the Court does not apply strict scrutiny despite the identification of a fundamental right (see J. Thomas’s concurrence, 2067-68). And the Court’s holding, “as applied” (p. 2060), strongly implies, if not explicitly states, that not any statute permitting people with specified relationships to the child to petition for visitation against parental will would not necessarily be unconstitutional according to this holding, but only a statute that permits “any third party seeking visitation to subject [a contrary parental decision] to state-court review” would be (p. 2061, emphasis mine). Since the Act (sec. 6) specifies that only adults that have formed healthy affective bonds with the child have such right of petition (and, had space allowed, would have made detailed provisions for biological parents who had not formed such bonds), it does not suffer the defect that caused the Washington statute in Troxel to be struck down.

            Troxel only requires special deference to parents not found unfit, on the rebuttable presumption that parents have their child’s best interests at heart (pp. 2061-62). The Act above provides such deference. In sections 6(b)(i), (ii), and (iv) of the Act, the special deference accorded parents is codified in precise detail. Section 6(b)(i) ensures that the parent can always be present, if she chooses, in any visitation with her child by any other adult, unless a very high threshold is met to demonstrate that the child’s best interest is served, and no harm is threatened, by the non-parent’s ability to visit the child without the parent’s supervision. Sections 6(b)(ii) and (iv) specify the deference to parents required by non-parents exercising these rights, and the procedures available to parents who feel that appropriate  deference (specified in the regulations) was not exercised.

            The Supreme Court of Colorado, in In Re R.A. (137 P.3d 318, 2006), interpreting Troxel, construed the Colorado grandparent-visitation statute to contain a rebuttable presumption that parental determination is in a child’s best interest, the burden being on the grandparents to prove by clear and convincing evidence that it is not in the child’s best interest. The Act, by placing the state, as parens patriae (see class, April 16), in the position of the petitioner, in essence legislates precisely this proposition: In sections 6(a)(i) and (ii), petitioners for such third-party visitation rights must demonstrate to the Administration, by the same standard of proof as that identified by the Colorado Supreme Court (“clear and convincing evidence”), that they have already formed a healthy affective bond with the child, thus, if opposed by the parent, rebutting the presumption that favors the parent’s judgment.

            The traditional two-parent limit, which this Act modifies, appears from the available sources to be an artifact of state statutory law rather than any form of federal law (whether Constitutional, statutory, or regulatory). The authority cited in Elisa B. (117 P.3d, 664) and Ohr (97 P.3d, 356) for the two-parent limit is the Uniform Parenting Act, as enacted by the states of California and Colorado, respectively. The Supreme Court of California weakly implied, in Elisa B. (117 P.3d, 665), that there is nothing to prohibit, a priori, a state from legislatively recognizing multiple parents, stating “we see no compelling reason to recognize [a multiple parent arrangement] here,” citing California law, and neither Constitutional nor federal law, as their authority. The Colorado Court of Appeals stated it more strongly in Ohr: “We think it best to leave to the General Assembly the decision whether to extend eligibility to seek parenting time…” (p. 358). The sharp distinction the courts consistently make, however, between “parents” and “third parties” (see, e.g., Troxel, p. 2061; Johnson v. Calvert 5 Cal.4th 84, cited in Elisa B, p. 665), raises some concerns that a diffusion of parental rights vis-a-vis a single child could confront a Constitutional challenge. However, since no provision in the Constitution speaks either directly or indirectly to this issue, one would hope that judicial restraint would prevail.

            The remaining 14th Amendment question is whether the requirement of attending a Parental State-Disengagement Determination in order to opt-out of the family-state engagement (Community) provisions of the Act violates a parent’s liberty interest in the care and custody of her children. Using Huntington’s analogy of public education (p. 1522), and noting that there is no Constitutional prohibition to imposing procedural requirements on parents wishing to disengage from the state in regards to compulsory public education as onerous as, or more onerous than, those incorporated into this Act in order to disengage from the Community (see, e.g., Pierce v. Society of Sisters, S.Ct. 1925, holding that parents can remove their children from public schools only if they send them at their own expense to state-regulated private schools instead), there is no reason to believe that a Constitutional challenge to the requirement of meeting with the Administration one time in order to disengage from the arguably more invasive elements of this Act would be successful.

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It’s no secret to people who read my essays, posts and comments that I am unabashedly critical of far-right-wing thought in America. That is not to say that there are no rational and humane conservative ideas, and no rational and humane conservatives, but rather that the current dominant brand of conservatism in America is neither rational nor humane (and it is this more extreme, currently popular version that I am referring to when I refer to “right-wing” thought). This is not a unique perspective, nor is it unusual for an intellectual to hold it; indeed, intellectualism is explicitly disdained by the ideological camp in question. Precisely those professions that methodically gather, verify, analyze and contemplate information are dismissed as bastions of liberal bias, and the (undoubtedly fallible) conclusions arrived at by those professional disciplines and held by the majority in rational deference to the greater reliability of such information are considered by right-wingers to be inferior to their own arbitrary, dogmatic false certainties.

Though we will not win the battle of narratives through rational argumentation alone, we will win it by driving home the fact that we are promoting the narrative of reason and humanity, because whether people actually engage in rational thought or not, the overwhelming majority recognize in principle the greater credibility of rationally over irrationally derived conclusions. The more that rational and humane people drive home the fact that they ARE rational and humane people, opposing the ideologies of irrationality and inhumanity, the more successful we will be in the battle of narratives that is the political arena. Therefore, be prepared, in every debate with a right-wing ideologue (or even, as is sometimes the case, an irrational left-wing ideologue) to mobilize formal logic and to name formal logical fallacies, or to describe specific fallacies routinely employed by right-wing ideologues. Let’s distinguish ourselves from them by looking like, as well as being, the voice of reason and humanity, because it is by making that distinction constantly and abundantly clear that we will move this country and this world in positive directions.

I’ve examined the very abundant universe of right-wing fallacy from many angles, tackling specific dimensions, specific issues, and specific aspects of it. But I’m not sure if I’ve yet published (on this blog) my growing typology of specific fallacies most particular to right-wing argumentation. Some don’t fit neatly into the list of conventional logical fallacies, or are very particular variations of them, and those are the ones I shall address first, because I find them the most interesting.

For instance, I’m fascinated by what I call “the right-wing two-step,” which involves first insulating poorly informed and poorly argued opinions from critical analysis on the basis of a relativistic argument, and then promoting them to the status of unassailable absolute truth on the basis of the argument that to fail to do so would be to commit the error of relativism. This fallacy, most common among right-wing evangelicals, is so luxurious in its absurdity that one has to admire the poetry of dogged ignorance that it represents.

It operates as follows: In Conversation 1, a right-wing opinion is challenged on the basis of a factual and rational critical argument, to which the right-wing ideologue replies, “I’m sure that there are equally good arguments supporting my position” or “whose reason, yours or mine?” as if there is no such thing as “reason” which exists independently of each person’s arbitrary claim to it. The right-wing ideologue will dismiss the critical argument not with a counterargument of any kind, but with an assertion of the equality of all opinions, and the right of each to have their own. In this way, they insulate their own opinion from any intrusion of fact or reason.

In Conversation 2, the right-wing ideologue is challenged on the more general basis that there are many different people from many different ideological camps who are as certain of their absolute truths as the right-wing ideologue is of his, and that there is no a priori reason for assuming that one is correct and the others false (this would be a good introduction to the critical challenge posed in Conversation 1, if it could get that far). This is in fact similar to the reasoning that the right-wing ideologue used in Conversation 1 to insulate his ideology from fact and reason, but rather than using it to bring the certainty of his own dogma into question, he uses it to reduce any other contention to a condition of a priori equality to his own. Now, however, in Conversation 2, he rejects that same line of reasoning, insisting that to accept it is to commit the error of relativism by failing to recognize that there IS one absolute truth rather than a variety of competing truths!

So, first, his opinion can’t be challenged because all opinions are equal, and then no other opinion can be considered because there is only one absolute truth, and since his can’t be challenged it must be that one absolute truth! It’s hard to overstate the wonder of such perfect irrationality.

It’s worth emphasizing that the actual order of conversations is irrelevant. I’ve ordered them as I have because I believe that that is the order by which they are used to insulate one’s own fortress of ideological dogma from both specific and general critical examination, the specific insulated against by a general argument, and the general insulated against by an appeal to specificity. This is a very particular and elaborate version of the tautological fallacy, described below.

The right-wing two-step is a particular variation of the broad spectrum of prevalent right-wing fallacy that involves selective perception, cherry-picked evidence, and what I call “pettifogging,” or the obfuscation of the big picture and the overwhelming thrust of evidence and reason by means of relentless picking at peripheral and often barely relevant details. This generally involves the narrowing of the frame of reference so as to ignore all contextual information, and focusing on anomalous or isolated information that supports their conclusions (and can generally be easily explained in the context of opposing conclusions) while ignoring the overall weight of the evidence comprehensively considered.

The George Zimmerman trial and the public debates surrounding it provide an excellent recent example of the narrowing of the frame of reference to an isolated instant, conveniently filtering out any consideration of the context leading up to that instant. By focusing exclusively on the moment in which the fatal shot was fired, and by assuming the facts most favorable to the person they most identify with (the guy going out with his gun to find “bad guys”), the far-right manages to disregard the fact that Zimmerman made aggressive choices that led to the shooting death, at his hands, of a kid who at least up until Zimmerman’s choice to follow him with a gun, had been committing no crime. But for Zimmerman’s choices to arm himself, leave his home, identify a black teen walking home from the store as suspicious looking, and stalk him, the violent encounter that led to Zimmerman shooting that teen to death would never have occurred. But by narrowing the frame to the instant of the shooting itself, this fact can be completely disregarded and the challenge it poses to their overall ideology ignored.

Another variation of this fallacy involves responding to statistical evidence with anecdotal evidence, as if finding any case that does not support the statistical correlation is disproof of that correlation’s validity. This is a favorite technique in arguments over gun regulations, when the statistical evidence demonstrating a positive correlation both domestically and internationally among developed nations of gun ownership and homicide rates is dismissed on the basis of the trope that “Chicago (or Washington DC) has the strictest gun regulations in America and the highest homicide rates,” or “crime rates went up right after gun regulations were implemented in X locale.” Sometimes this is true (sometimes invented), but the real point is that it is anecdotal, and not a meaningful response to the statistical data which does not cherry-pick convenient cases but rather considers all cases at once. (It also ignores the obvious causal relationship that jurisdictions with high homicide rates and strict gun laws generally implemented the latter in response to the former.)

My favorite analogy for the fallacy of using anecdotal evidence for rejecting statistical evidence is that of arguing that wearing seat belts in a car increases the likelihood that you will die in a car accident. One can argue against that position, which we all know to be absurd, by citing the statistics which demonstrate it to be absurd. But if a right-winger had some ideological reason to want to arrive at the opposite conclusion, they could simply cite every example they can find of the anomalous event that someone wearing a seatbelt died as a result of wearing their seatbelt, thus in their mind disproving what the statistical evidence demonstrates. Or, ideologues engaging in pseudo-science can data-mine for anomalous correlations, such as (hypothetically) “people driving four-door sedans on city streets in the third largest urban area in Illinois between 10:00 pm and 11:00 pm on weekdays are more likely to die if they are wearing seatbelts than if not.”

I’ve made the “cherry-picking” of the statistical correlation obvious in this case, in order to illustrate how it can be done (anomalous correlations can be found if you search long and hard enough) and the similarity to finding simple anecdotal anomalies to “refute” statistical evidence, but when used by right-wing ideologues, it is often less obvious to an untrained eye. (A favorite tactic, for instance, is to replace “firearms” with “rifles,” and then to cite homicide statistics by rifles as if rifles represented all firearms, often actually switching to “guns” from rifles when presenting the statistic.) John Lott’s study in “More Guns, Less Crime” for instance, has been widely criticized for the selection of parameters to arrive at desired conclusions, and has been rejected as invalid by a panel of experts convened by the National Research Council (as well as by numerous individual scholars), and yet is the study on which the most knowledgeable gun advocates almost exclusively rely.

(As a side note, this focus on anomalous data as a way of rebuffing the weight of all data considered comprehensively not only disregards the weight of the data considered comprehensively, but also disregards the explanations for such anomalies within the context of the larger causal relationships suggested by the comprehensive data. For instance, even accepting, for the sake of argument, the validity of John Lott’s thoroughly rejected study finding a positive correlation between laxer gun regulations and lower violent crime rates, such a correlation would not necessarily imply that such a paradigm is the optimal solution to the comparatively very high rate of deadly violence in America, due to a combination of considerations. Uneven local gun regulations in a nation with no internal barriers to the movement of goods across state and municipal lines mean that local regulations are undermined by laxer regulations elsewhere. The statistical fact that the overwhelming majority of the guns used in the commission of crimes anywhere in America are initially bought in jurisdictions with the laxest regulations reinforces this conclusion. And understanding the difference between local and global optima, in which it may be the case that in a gun-saturated society with no internal barriers to the transportation of goods across state and municipal borders, laws which increase “the war of all against all” could slightly reduce local deadly violence rates but keep them far higher than in other nations that don’t rely on “the war of all against all” to keep the peace, helps to put such anomalous evidence into perspective in the context of a comprehensive examination of the global evidence.)

One elaboration of narrowing the frame of reference, that also segues nicely into the issue of “pettifogging” discussed next, is the right-wing shell-game of isolated attention. This usually takes the form of focusing on one peripheral fact or anomaly or doctored study, which, once debunked, is replaced with another, until, after having exhausted their available supply, they return to the first one as if it had never been debunked. This is the more general tactic of which “the right-wing two-step” discussed above is one variation.

By far the favorite technique in right-wing “debate” is the tactic of “pettifogging,” which is picking away at every marginal and barely relevant detail of an opposing argument in order to avoid having to confront the central argument itself. This involves questioning the credibility of the source, even when the sources used are generally considered among the most credible (Harvard and other university peer-reviewed studies and conventional journalistic reporting by major media outlets are all dismissed as products of a liberal propaganda machine, while the arbitrary products of what is in reality a propaganda machine are embraced without question); insisting that every inconvenient assertion be cited in every casual exchange (though no one else is doing so); and finding peripheral and often irrelevant details to obsess about (definitions of conventionally understood terms, etc.). In this way, they can endlessly monopolize the time and energy of anyone arguing against any position they hold without permitting the argument to be compiled and presented in any coherent form, always derailing it with a barrage of irrelevant and peripheral demands, eventually wearing down the critique and thus claiming victory for having done so.

There is a hybrid fallacy that merits mention, even weaker than the others that it resembles: Changing the subject entirely. It has some straw man aspects (arguing against a position on an unrelated issue no one has advanced at all rather than a caricature of one advanced relevant to the issue at hand), some pettifogging aspects (picking at something not only barely relevant and marginal, but rather completely irrelevant and not even marginal), and some shell game aspects (not merely switching among distinct issues within the same argument, but switching to another topic altogether). A very recent example is, after providing comprehensive evidence debunking the notion that our gun culture has no relation to our rates of deadly violence, my opponent said, “so you must love “Fast & Furious, then.” The discussion, of course, had no relation to that bungled Obama administration program, but the idea was to get me on the defensive on something, anything, no matter how irrelevant it might be.

One last technique merits mention: Rejection by typology. This usually involves some label imbued with a strong negative judgment, and the shoving of all things to be critiqued into that label, the assumption being that by doing so the defectiveness of the thing so labeled has been proved. The most common label is “socialist” (though libertarians are increasingly fond of “statist” instead, imbuing the identical folly with a false veneer of intellectualism that the overuse of the word “socialism” lacks), and its use incorporates an element of the cherry-picking fallacy described above. By this technique, all governments with large administrative infrastructures are “socialist” or “statist,” and all socialist or statist countries are known to have been dismal failures. The problem is that using a definition that broad renders the second point simply false, since every single modern, prosperous, free nation on Earth has a large administrative infrastructure, and has had such an infrastructure in place since prior to participating in the historically unprecedented post-WWII expansion in the production of prosperity.

What really distinguishes the famously failed “socialist” or “statist” countries from the famously successful ones that share that completely non-distinguishing trait are a set of other variables: Freedom of speech and press, relatively legitimate democratic processes, and protection of individual civil rights and due process in criminal proceedings. The existence of a large administrative state not only is not exclusively associated with failed states, but, in fact, the most successful states all, without exception, have such large administrative infrastructures, and have had them for generations. This fallacy combines the “false dichotomy” fallacy described below (i.e., there are just two categories of states, socialist and non-socialist) with the selective perception tactic described above (only noticing those states with large administrative infrastructures that failed, and not those that comprise the entire set of the most successful political economies in human history).

Following is a fairly complete list of major logical fallacies, excerpted verbatim from “The Skeptics Guide to the Universe” website, which also includes a very good introduction on the structure of logical arguments (http://www.theskepticsguide.org/resources/logicalfallacies.aspx).

Ad hominem:An ad hominem argument is any that attempts to counter another’s claims or conclusions by attacking the person, rather than addressing the argument itself. True believers will often commit this fallacy by countering the arguments of skeptics by stating that skeptics are closed minded. Skeptics, on the other hand, may fall into the trap of dismissing the claims of UFO believers, for example, by stating that people who believe in UFO’s are crazy or stupid.A common form of this fallacy is also frequently present in the arguments of conspiracy theorists (who also rely heavily on ad-hoc reasoning). For example, they may argue that the government must be lying because they are corrupt.It should be noted that simply calling someone a name or otherwise making an ad hominem attack is not in itself a logical fallacy. It is only a fallacy to claim that an argument is wrong because of a negative attribute of someone making the argument. (i.e. “John is a jerk.” is not a fallacy. “John is wrong because he is a jerk.” is a logical fallacy.)The term “poisoning the well” also refers to a form of ad hominem fallacy. This is an attempt to discredit the argument of another by implying that they possess an unsavory trait, or that they are affiliated with other beliefs or people that are wrong or unpopular. A common form of this also has its own name – Godwin’s Law or the reductio ad Hitlerum. This refers to an attempt at poisoning the well by drawing an analogy between another’s position and Hitler or the Nazis. Ad ignorantiam:The argument from ignorance basically states that a specific belief is true because we don’t know that it isn’t true. Defenders of extrasensory perception, for example, will often overemphasize how much we do not know about the human brain. It is therefore possible, they argue, that the brain may be capable of transmitting signals at a distance.UFO proponents are probably the most frequent violators of this fallacy. Almost all UFO eyewitness evidence is ultimately an argument from ignorance – lights or objects sighted in the sky are unknown, and therefore they are alien spacecraft.Intelligent design is almost entirely based upon this fallacy. The core argument for intelligent design is that there are biological structures that have not been fully explained by evolution, therefore a powerful intelligent designer must have created them.In order to make a positive claim, however, positive evidence for the specific claim must be presented. The absence of another explanation only means that we do not know – it doesn’t mean we get to make up a specific explanation. Argument from authority:The basic structure of such arguments is as follows: Professor X believes A, Professor X speaks from authority, therefore A is true. Often this argument is implied by emphasizing the many years of experience, or the formal degrees held by the individual making a specific claim. The converse of this argument is sometimes used, that someone does not possess authority, and therefore their claims must be false. (This may also be considered an ad-hominen logical fallacy – see below.)In practice this can be a complex logical fallacy to deal with. It is legitimate to consider the training and experience of an individual when examining their assessment of a particular claim. Also, a consensus of scientific opinion does carry some legitimate authority. But it is still possible for highly educated individuals, and a broad consensus to be wrong – speaking from authority does not make a claim true.This logical fallacy crops up in more subtle ways also. For example, UFO proponents have argued that UFO sightings by airline pilots should be given special weight because pilots are trained observers, are reliable characters, and are trained not to panic in emergencies. In essence, they are arguing that we should trust the pilot’s authority as an eye witness.There are many subtypes of the argument from authority, essentially referring to the implied source of authority. A common example is the argument ad populum – a belief must be true because it is popular, essentially assuming the authority of the masses. Another example is the argument from antiquity – a belief has been around for a long time and therefore must be true. Argument from final Consequences:Such arguments (also called teleological) are based on a reversal of cause and effect, because they argue that something is caused by the ultimate effect that it has, or purpose that is serves. Christian creationists have argued, for example, that evolution must be wrong because if it were true it would lead to immorality.One type of teleological argument is the argument from design. For example, the universe has all the properties necessary to support live, therefore it was designed specifically to support life (and therefore had a designer. Argument from Personal Incredulity:I cannot explain or understand this, therefore it cannot be true. Creationists are fond of arguing that they cannot imagine the complexity of life resulting from blind evolution, but that does not mean life did not evolve. Begging the Question:The term “begging the question” is often misused to mean “raises the question,” (and common use will likely change, or at least add this new, definition). However, the intended meaning is to assume a conclusion in one’s question. This is similar to circular reasoning, and an argument is trying to slip in a conclusion in a premise or question – but it is not the same as circular reasoning because the question being begged can be a separate point. Whereas with circular reasoning the premise and conclusion are the same.The classic example of begging the question is to ask someone if they have stopped beating their wife yet. Of course, the question assumes that they every beat their wife.In my appearance on the Dr. Oz show I was asked – what are alternative medicine skeptics (termed “holdouts”) afraid of? This is a double feature of begging the question. By using the term “holdout” the question assumes that acceptance is already become the majority position and is inevitable. But also, Oz begged the question that skeptics are “afraid.” This also created a straw man (see below) of our position, which is rather based on a dedication to reasonable standards of science and evidence. Confusing association with causation:This is similar to the post-hoc fallacy in that it assumes cause and effect for two variables simply because they occur together. This fallacy is often used to give a statistical correlation a causal interpretation. For example, during the 1990’s both religious attendance and illegal drug use have been on the rise. It would be a fallacy to conclude that therefore, religious attendance causes illegal drug use. It is also possible that drug use leads to an increase in religious attendance, or that both drug use and religious attendance are increased by a third variable, such as an increase in societal unrest. It is also possible that both variables are independent of one another, and it is mere coincidence that they are both increasing at the same time.This fallacy, however, has a tendency to be abused, or applied inappropriately, to deny all statistical evidence. In fact this constitutes a logical fallacy in itself, the denial of causation. This abuse takes two basic forms. The first is to deny the significance of correlations that are demonstrated with prospective controlled data, such as would be acquired during a clinical experiment. The problem with assuming cause and effect from mere correlation is not that a causal relationship is impossible, it’s just that there are other variables that must be considered and not ruled out a-priori. A controlled trial, however, by its design attempts to control for as many variables as possible in order to maximize the probability that a positive correlation is in fact due to a causation.Further, even with purely epidemiological, or statistical, evidence it is still possible to build a strong scientific case for a specific cause. The way to do this is to look at multiple independent correlations to see if they all point to the same causal relationship. For example, it was observed that cigarette smoking correlates with getting lung cancer. The tobacco industry, invoking the “correlation is not causation” logical fallacy, argued that this did not prove causation. They offered as an alternate explanation “factor x”, a third variable that causes both smoking and lung cancer. But we can make predictions based upon the smoking causes cancer hypothesis. If this is the correct causal relationship, then duration of smoking should correlate with cancer risk, quitting smoking should decrease cancer risk, smoking unfiltered cigarettes should have a higher cancer risk than filtered cigarettes, etc. If all of these correlations turn out to be true, which they are, then we can triangulate to the smoking causes cancer hypothesis as the most likely possible causal relationship and it is not a logical fallacy to conclude from this evidence that smoking probably causes lung cancer. Confusing currently unexplained with unexplainable:Because we do not currently have an adequate explanation for a phenomenon does not mean that it is forever unexplainable, or that it therefore defies the laws of nature or requires a paranormal explanation. An example of this is the “God of the Gapsa” strategy of creationists that whatever we cannot currently explain is unexplainable and was therefore an act of god. False Analogy:Analogies are very useful as they allow us to draw lessons from the familiar and apply them to the unfamiliar. Life is like a box of chocolate – you never know what you’re going to get.A false analogy is an argument based upon an assumed similarity between two things, people, or situations when in fact the two things being compared are not similar in the manner invoked. Saying that the probability of a complex organism evolving by chance is the same as a tornado ripping through a junkyard and created a 747 by chance is a false analogy. Evolution, in fact, does not work by chance but is the non-random accumulation of favorable changes.Creationists also make the analogy between life and your home, invoking the notion of thermodynamics or entropy. Over time your home will become messy, and things will start to break down. The house does not spontaneously become more clean or in better repair.The false analogy here is that a home is an inanimate collection of objects. Whereas life uses energy to grow and reproduce – the addition of energy to the system of life allows for the local reduction in entropy – for evolution to happen.Another way in which false analogies are invoked is to make an analogy between two things that are in fact analogous in many ways – just not the specific way being invoked in the argument. Just because two things are analogous in some ways does not mean they are analogous in every way. False Continuum:The idea that because there is no definitive demarcation line between two extremes, that the distinction between the extremes is not real or meaningful: There is a fuzzy line between cults and religion, therefore they are really the same thing. False Dichotomy:Arbitrarily reducing a set of many possibilities to only two. For example, evolution is not possible, therefore we must have been created (assumes these are the only two possibilities). This fallacy can also be used to oversimplify a continuum of variation to two black and white choices. For example, science and pseudoscience are not two discrete entities, but rather the methods and claims of all those who attempt to explain reality fall along a continuum from one extreme to the other. Genetic Fallacy:The term “genetic” here does not refer to DNA and genes, but to history (and therefore a connection through the concept of inheritance). This fallacy assumes that something’s current utility is dictated by and constrained by its historical utility. This is easiest to demonstrate with words – a words current use may be entirely unrelated to its etymological origins. For example, if I use the term “sunset” or “sunrise” I am not implying belief in a geocentric cosmology in which the sun revolves about the Earth and literally “rises” and “sets.” Inconsistency:Applying criteria or rules to one belief, claim, argument, or position but not to others. For example, some consumer advocates argue that we need stronger regulation of prescription drugs to ensure their safety and effectiveness, but at the same time argue that medicinal herbs should be sold with no regulation for either safety or effectiveness. No True Scotsman:This fallacy is a form of circular reasoning, in that it attempts to include a conclusion about something in the very definition of the word itself. It is therefore also a semantic argument.The term comes from the example: If Ian claims that all Scotsman are brave, and you provide a counter example of a Scotsman who is clearly a coward, Ian might respond, “Well, then, he’s no true Scotsman.” In essence Ian claims that all Scotsman are brave by including bravery in the definition of what it is to be a Scotsman. This argument does not establish and facts or new information, and is limited to Ian’s definition of the word, “Scotsman.” Non-Sequitur:In Latin this term translates to “doesn’t follow”. This refers to an argument in which the conclusion does not necessarily follow from the premises. In other words, a logical connection is implied where none exists. Post-hoc ergo propter hoc:This fallacy follows the basic format of: A preceded B, therefore A caused B, and therefore assumes cause and effect for two events just because they are temporally related (the latin translates to “after this, therefore because of this”). Reductio ad absurdum:In formal logic, the reductio ad absurdum is a legitimate argument. It follows the form that if the premises are assumed to be true it necessarily leads to an absurd (false) conclusion and therefore one or more premises must be false. The term is now often used to refer to the abuse of this style of argument, by stretching the logic in order to force an absurd conclusion. For example a UFO enthusiast once argued that if I am skeptical about the existence of alien visitors, I must also be skeptical of the existence of the Great Wall of China, since I have not personally seen either. This is a false reductio ad absurdum because he is ignoring evidence other than personal eyewitness evidence, and also logical inference. In short, being skeptical of UFO’s does not require rejecting the existence of the Great Wall. Slippery Slope:This logical fallacy is the argument that a position is not consistent or tenable because accepting the position means that the extreme of the position must also be accepted. But moderate positions do not necessarily lead down the slippery slope to the extreme. Special pleading, or ad-hoc reasoning:This is a subtle fallacy which is often difficult to recognize. In essence, it is the arbitrary introduction of new elements into an argument in order to fix them so that they appear valid. A good example of this is the ad-hoc dismissal of negative test results. For example, one might point out that ESP has never been demonstrated under adequate test conditions, therefore ESP is not a genuine phenomenon. Defenders of ESP have attempted to counter this argument by introducing the arbitrary premise that ESP does not work in the presence of skeptics. This fallacy is often taken to ridiculous extremes, and more and more bizarre ad hoc elements are added to explain experimental failures or logical inconsistencies. Straw Man:A straw man argument attempts to counter a position by attacking a different position – usually one that is easier to counter. The arguer invents a caricature of his opponent’s position – a “straw man” – that is easily refuted, but not the position that his opponent actually holds.For example, defenders of alternative medicine often argue that skeptics refuse to accept their claims because they conflict with their world-view. If “Western” science cannot explain how a treatment works, then it is dismissed out-of-hand. If you read skeptical treatment of so-called “alternative” modalities, however, you will find the skeptical position much more nuanced than that.Claims are not a-prior dismissed because they are not currently explained by science. Rather, in some cases (like homeopathy) there is a vast body of scientific knowledge that says that homeopathy is not possible. Having an unknown mechanism is not the same thing as demonstrably impossible (at least as best as modern science can tell). Further, skeptical treatments of homeopathy often thoroughly review the clinical evidence. Even when the question of mechanism is put aside, the evidence shows that homeopathic remedies are indistinguishable from placebo – which means they do not work. Tautology:Tautology in formal logic refers to a statement that must be true in every interpretation by its very construction. In rhetorical logic, it is an argument that utilizes circular reasoning, which means that the conclusion is also its own premise. Typically the premise is simply restated in the conclusion, without adding additional information or clarification. The structure of such arguments is A=B therefore A=B, although the premise and conclusion might be formulated differently so it is not immediately apparent as such. For example, saying that therapeutic touch works because it manipulates the life force is a tautology because the definition of therapeutic touch is the alleged manipulation (without touching) of the life force. The Fallacy Fallacy:As I mentioned near the beginning of this article, just because someone invokes an unsound argument for a conclusion, that does not necessarily mean the conclusion is false. A conclusion may happen to be true even if an argument used to support is is not sound. I may argue, for example, Obama is a Democrat because the sky is blue – an obvious non-sequitur. But the conclusion, Obama is a Democrat, is still true.Related to this, and common in the comments sections of blogs, is the position that because some random person on the internet is unable to defend a position well, that the position is therefore false. All that has really been demonstrated is that the one person in question cannot adequately defend their position.This is especially relevant when the question is highly scientific, technical, or requires specialized knowledge. A non-expert likely does not have the knowledge at their fingertips to counter an elaborate, but unscientific, argument against an accepted science. “If you (a lay person) cannot explain to me,” the argument frequently goes, “exactly how this science works, then it is false.”Rather, such questions are better handled by actual experts. And, in fact, intellectual honesty requires that at least an attempt should be made to find the best evidence and arguments for a position, articulated by those with recognized expertise, and then account for those arguments before a claim is dismissed. The Moving Goalpost:A method of denial arbitrarily moving the criteria for “proof” or acceptance out of range of whatever evidence currently exists. If new evidence comes to light meeting the prior criteria, the goalpost is pushed back further – keeping it out of range of the new evidence. Sometimes impossible criteria are set up at the start – moving the goalpost impossibly out of range -for the purpose of denying an undesirable conclusion. Tu quoque:Literally, you too. This is an attempt to justify wrong action because someone else also does it. “My evidence may be invalid, but so is yours.”

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Obviously, I think that it is a sad commentary on our country when a man can leave his home armed looking for “bad guys” to “defend” himself against and, guided by his own poor judgment and bigotry, identify an unarmed black teen walking home from the store as a likely prospect, stalk that teen, wind up shooting and killing that teen, and not only be found not guilty even of manslaughter, but be perceived as perfectly justified by a large faction (almost all white) of the American population.

If you look at the public debates over the George Zimmerman/Trayvon  Martin case, one thing leaps out, something that is more broadly relevant, something that distinguishes the mental modality of the right from the left in one very precise way. This is an issue of cognitive framing, with the narrower frame permitting a conclusion of justifiable self-defense (assuming the facts most favorable to the defense), and the broader frame precluding it.

For instance, if you ask, “does one have the right to defend himself, with a firearm, against someone about to clobber him over the head with a heavy object,” most people would answer, “of course.” But what if the “defender” were a mugger who had attacked the guy with the heavy object, the heavy object were his cane that he needed due to an infirmity, and the moment being referred to were the mugging victim’s response to being mugged by an armed assailant? Does the mugger then have the right to claim self-defense, for shooting his victim as his victim tried to defend himself? Of course not.

Let’s come up with an analogy that more closely parallels the Zimmerman case, emphasizing and playing on the stereotypes involved (and other stereotypes as well). Consider this scenario: A young, white middle class woman is walking through a residential neighborhood at night to return home from the nearby convenience store. She notices a big, black guy following her. She continues to walk, and confirms that he is definitely following her. Terrified, she slips off the path and finds an object to arm herself with, a plywood board. As her stalker approaches, she comes out behind him, swings the board, screaming. Her stalker, who, as it turns out, was an armed stalker, pulls out his gun and shoots her to death. (I am using the word “stalker” to refer to any stranger following around another person with some kind of unfriendly intent, including thinking that the other person is a “punk” who you don’t want to let “get away with” some imaginary infraction that their race induced you to believe they must be committing.)

Tell me, right-wing apologists, is your big black stalker innocent, because he was just defending himself? Are you as indifferent to this innocent white woman’s violent death at the hands of an armed stalker as you are of an unarmed black teen’s violent death at the hands of an armed stalker?

Here is the complete list of differences between this scenario and the Zimmerman-Martin scenario: 1) the races of the stalker and the person stalked; 2) the gender of the person stalked; 3) right-wing ASSUMPTION of the intentions of the stalker in each scenario and the different degrees to which they (right-wingers) identify with the stalker and the person stalked in each scenario; 4) the woman having armed herself (to make her at least as threatening as unarmed Martin was); and 4) the generous assumption for my alternative scenario that all of the facts best favoring the Zimmerman defense are true.

So, why, exactly, is that white-woman-stalking-victim an innocent victim of the criminal-black-stalker, while the unarmed black victim of our real stalker (Hispanic, white, I don’t care) is just the unlucky person who was killed by an innocent person’s discharged bullet? The answer is very simple: The combination of the right-wing need to defend the absurd belief that we are a safer society if people go out with guns looking for trouble and their (right-wingers’) racism. a combination that is as horrifying and offensive to rational and humane people today as all similar past chapters of our national history have been.

Right-wing arguments (and particularly gun culture arguments) frequently rely on this narrowing of the frame, filtering out the contextual information which completely changes the analysis. Those who see in this case no guilt on Zimmerman’s part have chosen a very narrow frame, which excludes much relevant information; those who see guilt on Zimmerman’s part choose a broader and more inclusive one.

There are many other issues in which this difference in framing is central to the ideological differences found in regard to them. The right relies on a reduced frame, hyper-individualistic rather than social systemic, static and instantaneous rather than dynamical and over time. And that is not just a difference in personal taste, but a reduction in cogency.

The Zimmerman trial is over, the verdict is in, but the public issue over what kind of a people we want to choose to be continues. The right insists that it is good for society for people to have the right to arm themselves and stalk people they are suspicious of, for whatever reason they are suspicious of them, incite a violent encounter by doing so, and shoot to death the person they chose to stalk in the process of that violent encounter. I want to believe that the overwhelming majority of Americans don’t agree.

We’ve had Columbine. We’ve had Virginia Tech. We’ve had the Gabby Giffords shooting. We’ve had the Aurora Theater shooting. We’ve had Sandy Hook Elementary School. We have, on average, ten times the homicide rate of any other developed nation on Earth. We have half the privately owned firearms on Earth. And we have people who are so blithely indifferent to the death and suffering that their idolatry of instruments of deadly violence cause that they won’t let us, as a people, even implement universal background checks or limit the magazine capacity of their military grade weapons. The degree of insanity –vicious, destructive insanity– involved in this right-wing ideology is simply mindboggling.

At the same time, they want voter suppression laws (and have been assisted in being able to pass and implement them in a recent Court decision that disabled the Voting Rights Act), they want to dismantle Affirmative Action, they want to disregard the injustices and inequities of our society, they want to blame the poor for being poor, they want to disregard our responsibilities to one another as members of a society, they want to erase our humanity and promote only selfish disregard for the rights and welfare of anyone who doesn’t look just like them. And they are uncompromising in their commitment to these “ideals.”

(The examples mentioned here, of course, only scratch the surface. See Why The Far-Right Is On The Wrong Side Of Reason, Morality, Humanity and History for a more in-depth treatment.)

This is not a country divided by two opposing reasonable views, that we need to find some reasonable ground between. This is a country divided by, on the one hand, reason in service to humanity and, on the other, irrationality in service to inhumanity. It is time, America, to reduce the latter to a sad footnote of our history, and promote the former to the status of the shared foundation on which we all build. It’s time to allow our disagreements to be defined by the limits of our wisdom and decency rather than by the extent of our bigotries.

(See also Debunking The Arguments of the American Gun Culture for a cogent discussion of the competing narratives informing the right and the left, and how they fit into this struggle between reason in service to humanity and irrationality in service to inhumanity, a perennial struggle of human history, and one from which we are not, as it turns out, at all exempt.)

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In the continuing debate against Libertarians (and all other ideologues of all stripes, for that matter), here’s the bottom line: There’s only one rational ideology to adhere to, and that is to strive to be rational; there’s only one humane ideology to adhere to, and that is to strive to be humane.

Striving to be rational is not a vague, relative term: We have centuries of experience in the development of disciplined, methodical reasoning. We’ve developed scientific methodology and a wide spectrum of variations of it adapted to situations in which variables can’t be isolated, statistical data analysis, research techniques designed to rigorously minimize the influence of bias and to maximize accuracy. We’ve developed legal procedure based on a debate between competing views framed by a set of rules designed to ensure maximum reliability of the evidence being considered and to identify the goals being pursued (adherence to formally defined laws). We’ve developed formal logic and mathematics, rules of deduction and induction, which maximize the soundness of conclusions drawn from premises, the premises themselves able to be submitted to the same rules for verifying raw data and drawing conclusions from that data.

Not everyone is trained in these techniques, but everyone can acknowledge their value and seek to participate in privileging them over other, more arbitrary and less rational approaches to arriving at conclusions. A commitment to democracy and pluralism does not require a commitment to stupidity and ignorance. The mechanisms by which we balance the need for all to have their say and all interests to be represented with the need for the best analyses to prevail in the formation of our public policies is an ongoing challenge, but we can all agree that we should meet that challenge head-on, rather than pretend that the drowning out of the cogent arguments of informed reason by the relentless and highly motivated noise of irrational ignorance is the height of self-governance.

Striving to be humane is not a vague, relative term either: We have centuries of development of thought concerning what that means, including John Rawls’s “A Theory of Justice”, which provides a pretty good heuristic guideline of what humane policies should look lie (they should be the kinds of policies that highly informed and rational people would choose if they didn’t know what situation they were going to be born into or what chances of life they were going to encounter). This is basically a derivation and elaboration of the Golden Rule, which exists in some form or another in virtually every major religion on Earth. We all understand that justice requires that everyone be assured the same opportunity to thrive, and while we can agree that that is a formidable challenge that is more of an ideal toward which we can continue to strive than a finished achievement we can expect to accomplish in the near future, and that important counterbalancing imperatives must be considered and pursued simultaneously (in other words, that we need to balance the challenges of creating an ever-more more robust, fair, and sustainable social institutional framework), we can also agree that it is one of the guiding principles by which we should navigate as we forge our way into the future.

So, guided by our humanity, we have a clear objective that all of our public policies should strive to serve: Maximizing the robustness, fairness, and sustainability of our social institutional landscape to the greatest extent possible, such that no individual, if fully informed and rational, would want to change any aspect of it if they did not know where or when or into what situation they would be born or what chance occurrences they would encounter in life. And we have a clear means of most effectively pursuing that objective: Robust public discourse in which we allow the most cogent, information-intensive, methodologically and analytically sound arguments regarding how best to maximize the robustness, fairness and sustainability of our social institutional landscape, on a case-by-case, issue-by-issue basis, to prevail.

And THAT, what I just described above in the preceding five paragraphs, is really the only ideology we need, the only ideology we should adhere to as we move forward as a polity, wise enough to know that none of us knows all that much, humane enough not to blithely dismiss –whether implicitly or explicitly– the suffering and gross injustices endured by numerous others, intelligent enough to know that the appropriate role of a democratically and constitutionally circumscribed government in the modern world cannot be intelligently reduced to a handful of platitudes, informed enough to recognize that the rule of law is predominantly a procedural rather than substantive ideal, and smart enough to recognize that it is our commitment to these procedural and methodological disciplines of informing and devising public policies that will define how intelligently, humanely, and effectively we govern ourselves.

What continues to stand against this simple and clear ideology of a commitment to reason and humanity realized through disciplined procedures and methodologies are the plethora of blind dogmas, substantive false certainties, and precipitous conclusions that litter our shared cognitive landscape. Whether it is Marxism, politically active evangelical Christianity, politically active fundamentalist Islam, Libertarianism, or any other substantive dogma which presumes to know what we are in reality continuing to study, debate, and discover, this perennial need by so many to organize in an effort to impose a set of presumptive substantive conclusions on us all, one ideological sledgehammer or another with which to “repair” the machinery of government, is an obstacle rather than productive contribution to truly intelligent and humane self-governance.

It doesn’t matter if any given adherents to such an ideology are right about some things and those arguing from a non-ideological perspective are wrong about some things; it would be extraordinary if that were not the case, because disciplined analysis seeks to track a subtle and elusive object (reality), while blind dogma, like a broken clock, stands in one place, and thus is right on those rare occasions when reality happens to pass through that spot. What matters is that we all say, “I am less committed to my tentative conclusions than to the process for arriving at them, and would gladly suspend any of my own tentative conclusions in exchange for a broad commitment by all engaged in political discourse and political activism to emphasize a shared commitment to reason in service to humanity.”

The claim made by some that libertarians aren’t against using government in limited ways to address our shared challenges and seize our shared opportunities, while insisting that the problem now is that we have “too much government,” ignores the incredible breadth and depth of challenges and opportunities we face, challenges and opportunities that careful economic analysis clearly demonstrate often require extensive use of our governmental apparatus to meet and to seize. That is why every modern, prosperous, free nation on Earth has a large administrative infrastructure, and why every single modern, prosperous, free nation on Earth has had such a large administrative infrastructure in place since prior to participating in the historically unprecedented post-WWII expansion in prosperity and liberty: Because, as an empirical fact, that is what has thus far worked most effectively. But that does not preclude the possibility that the approach I’ve identified would lead to an overall reduction in the size and role of government; it only requires that in each instance the case be made, with methodological rigor, that any particular reduction in government actually does increase the robustness, fairness, and sustainability of our social institutional framework.

The challenge isn’t to doggedly shrink government in service to a blind ideological conviction, but rather to wisely, with open eyes and informed analyses, refine our government by shrinking that which should be shrunk and expanding that which should be expanded, an ongoing endeavor which requires less ideological presumption and more analytical intelligence. We  neither need nor benefit from neatly packaged blind dogmas; we need and benefit from an ever-greater commitment to disciplined reason in service to unflagging humanity.

Now, the legitimate contention arises that that is fine in theory, but in the real world of real people, ideological convictions and irrational decision-making prevail, and to refuse to fight the irrational and inhumane policies doggedly favored by some by any and all means possible, including strategies that do not hamstring themselves by seeking an ideal that does not prevail in this world today, is to surrender the world to the least enlightened and most ruthless. To that I respond that I do not oppose the strategic attempts by those who are informed by reason and humanity to implement the products of their discipline and conviction through strategic and realistic political means, but only implore of them two things: 1) That they take pains to ensure that their conclusions actually are the product of reason in service to humanity, and not simply their own blind ideological dogma, and 2) that they invest or encourage the investment of some small portion of our dedicated resources, some fraction of our time and money and energy directed toward productive social change, toward cultivating subtler cultural changes that increase the salience of reason and humanity in future political decision-making processes. I have outlined just such a social movement in A Proposal: The Politics of Reason and Goodwill.

Another legitimate contention is the recognition of our fallibility, and the need to rely on bedrock principles rather than arrogate to ourselves a case-by-case, issue-by-issue analysis, much as we limit our democratic processes with bedrock Constitutional principles that we can’t elect to violate. There is much truth in this, but it either becomes one more rational consideration that we incorporate into our ongoing effort to do the best we can in a complex and subtle world, or it displaces our reason and humanity entirely and reduces us to automatons enslaved by a historically successful reduction of reality. We see these alternatives in regards to how the Bible and Constitution are utilized, by some as guides which inform their own reason and humanity and require conscious interpretation and application, and by others as rigid confirmation of their own dogmatic ideology, the latter often through selective or distorted interpretations of their own.

We’ve seen the value of improved methodology and increased commitment to methodological discipline in the realm of science, which has bestowed on us a greatly invigorated ability to make sense of a complex and subtle universe. We’ve seen the value of improved procedures and procedural discipline in law, which has increased the justness of our criminal justice system (certainly an improvement over “trial by ordeal,” or the Inquisitor’s securing of a confession by means of torture, for instance). We’ve seen the value of improved methodologies in selecting and holding accountable political leaders, through carefully monitored “free and fair” elections and the supremacy of the rule of law over individual power. To be sure, all of these are mere steps forward, not completed journeys; the human foibles they partially mitigated are not entirely erased from the new paradigms they preside over. But they are steps forward.

And, though it’s more debatable, with more and greater atrocities seeming without end challenging the assertion, I think our humanity has grown in recent centuries as well. Historians almost universally agree that a larger proportion of the human population suffered violent death the further back in time you go. Even while exploitation and inhumanities persist, they are increasingly viewed as morally reprehensible by increasing numbers of people in increasing regions of the Earth. We have, indeed, as a national and international society, improved our formal commitment to human rights, even if our realization of that commitment has woefully lagged behind. It remains incumbent on us to close that gap between the ideal and the reality.

What, then, are the logical next steps for civilization? How do we advance the cause of reason in service to humanity? The answer, I believe, is to extend and expand the domains of these methodologies and attitudes, to increase the degree to which they are truly understood to be the defining vehicle of human progress. If it’s good to have a small cadre of professionals engaging in science, it’s even better to have many more incorporating more of that logic into their own opinion formation process. If it’s good for the election of office holders to be conducted through rational procedures, it’s even better for the knowledge and reasoning of those who vote in those elections to be fostered through more rational procedures as well. And if it’s good for some of us to include larger swathes of humanity in the pronoun “we,” then it’s even better for more of us to do so to an ever greater degree.

Even if the effort to cultivate a movement in this direction only succeeds, over the course of generations, in making the tiniest marginal increase in the use of disciplined reason, and the tiniest increases in the degree of commitment to our shared humanity, by the tiniest marginal fraction of the population, that would be a positive achievement. And if, alongside such marginal increases in the reliance on disciplined reason and commitment to humanity, there is also a marginal increase in the acknowledgement that the products of disciplined reason are more useful to us as a society and a people than the products of arbitrary bigotries and predispositions, and that the recognition of the humanity of others unlike us is more morally laudable than our ancient tribalistic and sectarian reflexes, that, too, would be a positive achievement.

The influence of reason in our lives has been growing steadily for centuries and has had a dramatic impact on our social institutional and technological landscape, though it has only really ever been employed in a disciplined way by a small minority of the human population. The increase in our humanity as well, in such forms as the now nearly universal condemnation of slavery, the increasing recognition of the value of equal rights for all, the generational changes in our own society with some bigotries withering with time, can also be discerned. Even marginal increases in the employment of reason and its perceived legitimacy, and of our shared humanity being the ends to which it is employed, can have very dramatic effects on the robustness, fairness, and sustainability of the social institutional and technological landscape of the future, and on the welfare of human beings everywhere for all time. This is the path that all of our most laudable achievements of the past have followed and contributed to, and it is the path we should pursue going forward ever more consciously and intentionally, because that is what the ever fuller realization of our humanity both requires of us and offers us the opportunity to do.

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What follows is an exchange on Facebook regarding George Zimmerman’s guilt or innocence in the Trayvon Martin shooting. It is a perfect illustration of one dimension of the two competing visions for America.

SH: I worry about the popular focus on the details of the Zimmerman case, because it plays into a right-wing narrative: That the facts not in dispute aren’t already dispositive for public policy purposes. (Disclaimer: the details are important for the trial and the jury, but what the public needs to get out of this is that we have created a context that increases rather than decreases violence, does so in ways which implicate racial prejudices and stereotypes, and that we need to pull back from that approach). Zimmerman set out with a gun looking for “bad guys” to defend himself against, identified an unarmed black teen in a hoodie walking home from the store as just such a “bad guy,” pursued the teen despite being told by the police dispatcher not to, and ended up shooting that teen to death. Nothing else really matters in terms of what this incident tells us about our continuing moral failure as a society in regards to both violence and race, and we shouldn’t let anyone sell the false narrative that it does.

MS: The main factor that needs to be decided is if Zimmerman really defended himself or got too heated. This case was screwed from the beginning based on the race issue being presented.

SH: M, I disagree, on both counts. If our laws currently sanction someone going out with a gun looking for people to defend himself against, identifying one such on the basis of his own perceptions (which certainly do seem have been influenced by race in this case, because there’s absolutely no evidence or even suggestion that Martin was doing anything other than “being black” to arouse Zimmerman’s suspicions), pursuing that innocent person, and as a result ending up shooting that person to death, then our laws are in error.

CL: I mean, seriously, what am I missing? Why was this case brought in the first place? Zimmerman is a creepy-ass cracker, but there isn’t enough evidence for a murder rap. I might not be some fancy, big city attorney, but it seems like the local prosecutors had a good reason for not pressing charges.

SH: What you’re missing is that when an armed assailant pursues an innocent individual walking home from the store and shoots him to death, that is certainly prima facie evidence of a crime.

CL: That’s really dumb. It’s conceded that Zimmerman was following Martin around for no good reason. But just because someone is following you around for no good reason doesn’t give you the right to attack him. If we don’t know who attacked who, then we can’t convict. This isn’t complicated.

SH: C, Zimmerman wasn’t just “following Martin around for no good reason,” but was doing so while armed and with the stated intention of finding bad guys. It’s a bit bizarre that you think someone who goes out with a gun and stalks an innocent stranger walking home from the store should get to claim that the altercation he thus incited (if there was one) means that he then acted in self-defense when he ended up shooting his stalking victim to death and thus is innocent of any crime, but that the kid who reacted to being stalked had no right to defend himself against his stalker!!! This is the problem with your underlying ideology: It is an aggressive one, which incites violence, which helps to explain why America has a homicide rate from 2 to 11 times higher than any other developed nation on Earth.

Let me ask you a question, C: If the person stalked had been a white woman, who, spooked by the stalker, grabbed something to defend herself, stepped off the path out of sight, came out and confronted her stalker, ended up swinging at him and making contact, and then was shot to death, would you be as adamant that the stalker was completely devoid of responsibility for her death?

When you go out with a gun looking for bad guys, follow innocent people because you arbitrarily decide that they might be a bad guy, and end up shooting one such person to death, you are damn well responsible for the death of that person whose only crime (if any at all) was to react to being stalked by an armed assailant! That there are people in this country who can’t grasp that is horrifying.

CL: The evidence is that Zimmerman followed Martin — but there is no good evidence of who started the fight. This whole “kind who reacted to being stalked had no right to defend himself!!” line of argument is unsubstantiated. Maybe Zimmerman hunted down Martin and shot him. Maybe Zimmerman followed Martin, Martin didn’t like it and decided to attack Zimmerman, and then Zimmerman defended himself. Zimmerman is guilty of murder in the first scenario and guilty of being an idiot in the second. So far in the trial, the evidence isn’t really helping us figure out which scenario is the real one.

SH: You didn’t answer my question: If it were a white woman who had been stalked by a black guy she didn’t know, grabbed something to defend herself, stepped off the path, confronted her stalker, ended up in that confrontation taking a swing at him and making contact, and then was shot to death by the stalker (who, as it happens, wasn’t just a stalker, but an armed stalker), would you be so adamant that the stalker was or should be completely devoid of any legally enforceable responsibility for that woman’s death? I doubt it.

And what is the only difference between that scenario and the one we are discussing? The races and genders of the stalker and his victim. I even added in arming the woman being stalked with an object, to make her as threatening to her stalker as Martin was to his.

CA: Steve, would you rather police and security personnel not be armed, or not investigate further into something they can articulate to be suspicious? I don’t know what exactly happened in this instance, but it sounds like Zimmerman was a hired security professional whose job it was to provide security in the area he was in. He saw something and/or someone he thought was worth checking out, which was his job. If Martin was innocent and not doing anything wrong I imagine this would have been a quick encounter and brief conversation about how he is in the area for good reason, ie he lives there or is staying with family, and that would have been the end of it. The fact it turned into a brawl for some reason would seem to indicate Martin got caught doing something he shouldn’t have been doing by security. Zimmerman did have a gun, and he was out looking for bad guys. Thing is, bad guys don’t usually wear signs indicating to the world that they are bad guys. So police and security contact many, many perfectly innocent people all the time after seeing something that might be suspicious. An innocent person will generally provide a legitimate explanation of whatever behavior was observed that seemed suspicious and the contact is over very quickly. If in the course of determining whether or not someone is innocent or appears guilty of something, Martin attacked Zimmerman, then Martin just committed a crime and Zimmerman has a right to defend himself.

SH: No, he wasn’t “a hired security professional.” He was a neighborhood watch volunteer, which is not a credential, and is not a license to kill. And the whole point is that Zimmerman WASN’T a hired security professional, that he was told by the police dispatcher NOT TO follow Martin, that his actions were those of a private citizen reacting to his private prejudices against the instructions of the actual police, that there is no legal or moral difference between a private citizen that you identify with stalking an unarmed person you don’t identify with and a private citizen you don’t identify with stalking an unarmed person you do identify with, and that when an armed stalker ends up shooting to death the person he was stalking, that stalker is responsible for that death, even if the stalker was a self-appointed vigilante rather than a career criminal, and even if your victim was a black kid in a hoodie rather than, for instance, a middle class white woman. And, again, it is horrifying that there are still so many people in this country who can’t grasp that.

CL: What we have now is something like this:

1. A follows B

2. [[[SOMETHING HAPPENS]]]

3. A shoots B

You seem to know exactly what happened at point 2. I applaud your insight.

SH: One beloved right-wing rhetorical ploy is to filter information being considered in such a way as to arrive at a preferred conclusion (sometimes done by those on the left as well, but with far less of a “cornerstone of the ideology” aspect to it). So, let’s be more complete, shall we?

1) A goes out with a gun looking for “bad guys.”

2) B is a black kid in a hoodie walking home from a store.

3) A sees B walking through the neighborhood and decides, apparently on the basis of 2 above, that B looks suspicious.

4) A calls the police, who advise A not to follow the kid.

5) A tells the police that those “damn assholes always get away with it” (or something to that effect; I don’t have the exact quote in front of me), apparently referring to the black kid in a hoodie walking home from the store, and pursues the kid, with a gun, despite having been told by the police not to.

6) (Something happens)

7) A shoots B.

I have no idea what happened at your point 2 (my point 6). My point is that, while it may have legal relevance because of fucked-up right-wing yahoo laws, it isn’t really relevant to the moral conclusion that A is responsible for B’s death., as a result of the aggressive (and apparently racially motivated) decisions that A made which incited the incident that resulted in A killing B.

Personally, I don’t want racist whack-jobs running around with guns inciting violence, and then claiming that their having shot to death unarmed black kids walking home from the store that they decided to pursue while armed and out looking for trouble was “self-defense,” and I would probably feel even more strongly about it if my skin were darker. But, hey, that’s just me…, and every rational, decent human being on Earth.

What this exchange illustrates is the nature of the two competing ideologies in regards to violence, race, and whether to be a society driven by our fears and bigotries or a society striving to do better than that. The two overarching orientations illustrated here are discussed in greater depth and detail in Debunking The Arguments of the American Gun Culture, and a thorough analysis of the fundamental flaws of modern American right-wing thought is provided in Why The Far-Right Is On The Wrong Side Of Reason, Morality, Humanity and History.

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(The following is the beginning of an exchange on a libertarian’s Facebook page, with the first comment being his status update. It continued, as these exchanges often do, with my repeated suggestion that we step back from our substantive certainties and agree to base our discourse on the premise that we’re all fallible, and if we all strive to be rational and humane people, in disciplined and methodical ways, it would serve society better than our competing blind ideologies, and with this suggestion being responded to with every excuse imaginable for why it couldn’t be accepted. And this is the great ongoing tragedy of our shared existence, not just the persistence of irrationality, but the emotional investment in its preservation against all suggestions and invitations to work toward transcending it.)

KW: God Bless You for your choices, now kindly step aside as I make my own.

SH: What if your choice were to hurt others? Should I kindly step aside then? So, you have to qualify it to say “now kindly step aside unless my choice is to hurt others and good citizens need to stop me from doing that.”

But lots of things hurt others in subtle ways. We are interdependent, and our actions affect one another. So some of our laws have to recognize that there are individual actions that we each can engage in that cause one another more harm than we, as a society, can allow. For instance, if I do work in my home that produces some form of toxic waste, and I dump that waste on my own property in such a way that gets into the groundwater that others drink and causes deadly disease among those who drink it, then don’t we as a society have good reason to say that no individual can dump toxic waste on their own property?

There are so many things like that in our lives, so much interdependence, that the meme that each should be absolutely free to do whatever they choose really serves more to obscure the real challenge of determining where to draw the line between individual liberty and agreed upon limits to it for mutual benefit than to enlighten or guide us in any meaningful way.

RA: Live Free!

SH: Self-governing on the basis of slogans rather than in-depth, nuanced, and diligent thought isn’t really that good an idea. One of the things you’ll notice about every one of the most horrible chapters of modern world history is that the authors of those horrors were all always deeply immersed in moving slogans.

JW: @Steve you are dangerously close to the most dangerous slogan of all time “for the greater good”. How about, “my ability to swing my arm ends at your nose”. People have to learn to live in close proximity to one another without resorting to trying to live each others lives for them.

SH: J, our own Constitution declares the importance of governing for “the general welfare.” The fact is that I live by no slogan at all, but rather by the belief that there is only one ideology to which any of us should ever adhere: That of striving to be rational and humane people, wise enough to know that none of us knows all that much, working together to do the best we can in a complex and subtle world. That’s not “a slogan,” but rather a philosophy, and not a shallow philosophy that fails to capture the true complexity and subtlety of the world we live in, but rather one based squarely on the recognition of that complexity and subtlety.

As I’ve said repeatedly, I don’t consider the liberal-conservative divide the fundamental one, nor is it how I define my own commitments. I am committed to the disciplined use of human consciousness in service to humanity, period. That includes using disciplined reason, imagination, research, analysis, contemplation, and discourse, recognizing our limitations, uncertainties, and the value of allowing some organic processes to function without trying to impose ourselves on them at every turn. It includes many, many things that can be discussed and debated and ever better understood by ever more people.

If a person comes to that process with that attitude self-identifying as a conservative, that’s fine with me. If they don’t embrace that process at all, but self-identify as a liberal, then they’re as much a part of the problem as those who don’t come to that process at all and self-identify as conservatives. The blind ideologies are not the answer; the processes that best liberate and mobilize human genius are, including the genius of laissez-faire to the extent and in the ways and under the circumstances that laissez-faire is best recommended by our best understandings of how the world works. 

But that’s not what happens. What happens is that people come fully armed with an array of false certainties arrived at haphazardly, through socialization and indoctrination and emotional predisposition, and treat those false certainties as indisputable truths. We all do it to some extent, even those of us who do it to the least extent, because that’s how the human mind works: We reduce an infinitely complex and subtle reality to manageable form in order to function in the world, and mistake our cognitive models for the reality itself. A critical step toward being rational and humane people is recognizing that, and working with it.

But when people declare that they have the one right substantive ideology, they are digging into the opposite cognitive orientation, the cognitive orientation which clings most tenaciously to their own false certainties, and is most insulated from actual fact and reason and growing comprehension. Do I think that that is more closely associated with modern American conservatism than modern American liberalism? Yes, but that’s not really the point. The point is that all of us should strive to be wiser than that, and those who refuse, regardless of what ideology they identify with, merit criticism for refusing. 

I always refer to reason AND humanity, though in many ways humanity is implicit in reason, as long as we agree on certain underlying values of fairness and long-term functionality, because we are ultimately interdependent, and reason dictates that we recognize our interdependence and act not under the pretense that it doesn’t exist but with the constant awareness that it does. “Liberty” does not mean the absence of interdependence, but rather a particular orientation to it, a value embedded within it that only has meaning in its context. Those who neglect to understand that end up turning the beautiful and valuable concept of human “liberty” into a cruel and ugly excuse for acting in predatory and implicitly inhumane ways. 

It’s no coincidence that slave owners used the concept of “liberty” to rationalize their commitment to the institution of slavery (the greatest assault on human liberty in the history of our nation, matched only by the displacement and destruction of the indigenous population), arguing that to deny them (the slave owners) their property (their slaves) would be an assault on their (the slave owners’) “liberty” (see John C. Calhoun’s “Union and Liberty”). And it’s no coincidence that modern Tea Party/libertarian ideology is part of a continuous ideological thread reaching back into that same use of the concept of “liberty.” Knowing and understanding history, deeply and richly and thoroughly, is useful to our present understandings and commitments. 

I could go on. I could write books on this. But there is only one rational place to start, only one rational foundation to build on, and that is reason itself, not the arbitrarily claim of already having embodied it in one’s current substantive certainties (as some I’ve interacted with insist upon, as their way of rejecting the notion that we should all strive to be rational and humane people), but in a commitment to the methodologies and procedures which have proved in recent centuries to be the most robust for minimizing bias and maximizing accuracy, and using those procedures –which include debates that aren’t just shouting matches but actually adhere to the rules of debate, the rules of evidence, the rules of logic, or whose relative merits are judged by how well they adhere to them—in service to our shared humanity. 

It’s a simple premise. I think it would generally favor what are now considered liberal positions, but if I’m wrong, I’d rather surrender my own false certainties than insulate myself from reason in order to preserve them. It is the process of reason in service to humanity that I am committed to, not to any current assumption of what conclusions it leads to. 

And that’s something that all rational and humane people should be able to agree to, should be able to rally around. I know some moderate conservatives who do, and I identify more with them, am more reassured by their presence in our polity, than I am by dogmatic liberals who don’t. And if we can simply put aside the shouting matches over precipitous substantive false certainties, and instead agree to work at being that kind of a polity, a rational and humane polity, then this would be an even more admirable and extraordinary nation than it already is (if that’s what it already is), and an even greater gift to the world than it already is (if that’s what it already is). And we would leave on the margins, on the dust heap of history where they belong, the commitment to ignorance and bigotry and oversimplistic dogma that some insist on adhering to, moving forward instead as an increasingly rational and humane people. 

KW: Steve, why do you use my status to go on your diatribe. I respect your take but you immediately disregarded the simple fact that I am Libertarian and not a single one of my choices harm another. 

JW: I know better than to feed the trolls but I am going to respond to your essay Steve. Shakespeare said “Brevity is the soul of wit”. At least with the simple statements that K and I have made, a reasonable person might gather the basics of our personal philosophies. I read through your entire post and honestly could not make a determination of where you fall philosophically. Given the lengths to which you used as many words as possible to say as little as possible, I am inclined to believe that you are a statist leaning liberal that would bind us in the chains of some nebulous “social contract” that no party signs yet all are supposed to abide by. Orson Wells took such thoughts about “humanity” to its inevitable conclusion in Animal Farm where of course, all are equal but some where more equal than others. Unlike K, I will not respect your philosophy if it is one that would consign us to the politics of pull, where influence becomes the prime product of a society and the real producers are enslaved to the “greater good”.

SH: K, the whole purpose of the rule of law is that we can’t simply rely on each other to do the right thing, and that we must govern ourselves, as a people, with laws that bind us and limit us in certain ways for mutual benefit. You say that I disregard the fact that you are a libertarian and that your choices harm no one else. No, I dispute the notion that we don’t need laws because some people are not inclined to break them in the first place, or that the recognition that we do need laws is compatible with the ideologically exclusive emphasis on absolute freedom.

As for why I use your status to go on my diatribe: If one propagates defective ideas that can be harmful to humanity where I can challenge them, then I will challenge them.

J, you couldn’t make that determination because not all philosophies are dogmas, and mine is one such that is not a dogma. It is a commitment to the same foundations that inform science and law, a commitment to methodologies and procedures rather than to presumptions and false certainties. “My” philosophy is not reductionist, is not the folly of imposing on a complex world a simplistic panacea. It is, rather, a commitment to reason (which is served by disciplined methodologies and procedures that have proved their worth over the last several centuries) in service to humanity (rather than in service to some segment of humanity at the expense of other segments of humanity).

You assume I’m an adherent to your caricature of left-wing ideology, to which you relegate everyone who is not a member of your preferred reduction of reality, not recognizing the existence of any form of political economic thought that does not fit neatly into one or the other of your two caricatures of political economic thought. It’s a tidy but shallow world you live in. Maybe it’s time to consider the possibility that it’s not the last word of human comprehension. (And that’s the point, isn’t it? Knowing that we don’t know rather than insisting that we do, and, in the womb of that wise humility, actually learning, discovering, growing, approaching the challenge of engaging a complex and subtle world with imagination and analytical discipline rather than blind ideological fervor. THAT is the real political divide in America today, whether to be a raging ideologue, or an imaginative and analytical participant in an on-going enterprise.)

“My” philosophy is to start with the simple agreement among all who are willing to strive to be rational and humane people. It may seem insignificant, but I think that it is an important step, because both reason and humanity are easily lost to the zeal of blind ideologies. So, we say, “look, I know that I’m fallible, and that the world is complex, so lets agree, first and foremost, that we’re going to strive to be rational and humane, and take it from there.” it’s a good agreement to make, a good foundation to build on, and very much in the spirit of the formation of this nation, which was founded on the Enlightenment philosophy that a people can and should govern themselves rationally and humanely, debating as rational citizens rather than merely clinging to ideological assumptions.

Once we make that agreement, we can discuss how to realize it. Clearly, scientific methodology is better than other preceding and generally more haphazard approaches when it comes to understanding empirical phenomena, to ascertaining factual and systemic knowledge. Similarly, legal procedure is preferable to, for instance, trial by ordeal, for ascertaining guilt or innocence, or ascertaining facts and applying the law to them. These are developments over recent centuries that have increased the role of rationality in our lives. We can work to extend their domain beyond the halls of academe and the courts of law, and to employ more of their logic, and reap more of their benefits, in public discourse in general.

And it all starts with something as self-evidently desirable as simply agreeing to strive to be rational and humane people, and giving that agreement priority over any other ideological commitments.

George Orwell (not Orson Wells) wrote “Animal Farm” about an ideology coopted in service to oppression. Any ideology can be used as such a pretext, even one that claims to exist for the opposite purpose (as, indeed, Communism itself did). Ideologies always insist that every other ideology is the road to Hell, and that they alone provide salvation. It’s a common theme. They use rousing symbols and slogans to proclaim themselves the defenders of some noble ideal, and then, if they are not more procedurally than substantively oriented, inevitably betray that ideal.

A commitment to humanity is not a commitment to totalitarianism. But a failure to commit to humanity, to commit to reason, is an invitation to the institutionalization of irrationality and inhumanity, as has so often happened in so many times and places. Ironically, Libertariansim has something fundamentally in common with Marxism, and that is profound and oversimplistic political economic dogmatism. Marxism identified the state as the solution to all problems, and Libertarianism identifies the market as the solution to all problems, though economists well understand that neither is and that both have a vital role to play.

We should all act more like economists and less like ideologues when discussing economic issues. We should, in general, all strive to act more like rational and humane people, wise enough to know that we don’t know much, working together to do the best we can in a complex and subtle world. That should be our one and only ideology

By the way, the concept of ‘trolls” on Facebook has clearly become distorted to mean “anyone who invades an ideological echo-chamber with any perspective discordant with that of the pariticpants of the echo-chamber.” If that is the new definition of “troll,” than I’m proud to be one, because these echo-chambers are unhealthy to our democracy and do poor service to the growth of reason and understanding. We need, instead, a robust, informed and informative, rational and disciplined, public discourse, where ideas are exchanged and challenged, and we work together to improve our understandings and our ability to cooperate for mutual benefit.

I would limit the term “troll” to mean anyone, on any thread, whose contribution is intended or designed to drown out signal with noise, and reduce rather than increase the informativeness and rationality of the discourse taking place.

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(This essay is an elaboration of Collective Action (and Time Horizon) Problems).

Imagine that I offered each person in a group the following deal: You can agree to give me $30, and in return I’ll give $10 to each and every person in the group, including you. I’ll give the $10 to everyone, whether they paid $30 or not, for each person that does pay $30.

Each person is faced with an offer to pay $30 dollars in return for, to him or her individually, $10, a bad deal for that individual (a loss of $20). But since everyone else in the group also each gets $10, for any group with a membership of more than three people, it is a bigger return to the group than cost to the group. If there are 10 people in the group, and everyone makes the deal, they each pay $30 and each get $100 in return, for a net gain of $70. However, if one doesn’t pay, he or she gets $90 outright (9 people taking the deal times $10 to each person in the group) while each of the others only get a net gain of $60 ($90 minus the $30 paid in). The individual incentive is not to pay in, even though everyone is better off the more people who do, with everyone coming out ahead if 3 or more people pay in. Those who don’t pay in, however, always do better than those who do (the “free rider problem”).

This dynamic is a major underlying force in the generation of social institutions, which to a large degree exist to overcome this collective action problem. There are many scenarios woven throughout our collective existence in which people benefit from some form of cooperation (even those forms that establish the rules for competition, such as the enforcement of property rights in service to the functioning of markets), but are tempted by individual incentives to cheat or fail to act cooperatively. Our laws, our contracts, our governments, our social norms, our ideologies, all are laden with mechanisms that have evolved with the purpose of creating mutual commitment mechanisms, enforced either externally by social institutions or internally to one’s own psychological make-up. Combined, they form social institutional technologies which are robust sets of memes self-replicating and spreading throughout our shared cognitive landscape (see the essays linked to in the first box at Catalogue of Selected Posts).

It has always been a dynamic at the heart of intertribal and international relations, in which sovereign societies must strategically interact in a world with limited international legal enforcement mechanisms. With increasing political, economic and cultural globalization, and information, communication and transportation technologies make the world ever smaller and more tightly integrated, examining these dynamics is one critical component of understanding the shared geopolitical landscape in which we live.

“The War of the Woods”:

Imagine that long ago, two countries, Apestonia and Pulgalandia, had a forest on their border. Both countries desperately needed the wood in the forest, because it was both their primary building material and their fuel. Each country was faced with the choice of either dividing the forest evenly, or attacking the other and trying to get more of the forest for themself.

There are 1000 acres of forest between the two countries. If the two countries agree to draw their border right through the middle of it, they can each have 500 acres of forest, which they both desperately need.

But if one attacks quickly while the other one is planning on sharing the forest evenly (and so isn’t prepared for war), the one that attacks will capture 700 acres of the forest, 300 acres will be burnt or destroyed during the fighting, and the other will get zero acres. Since they are militarily evenly matched, if they both attack each other at the same time, 400 acres of forest will be destroyed in the fighting, and they’ll each end up with 300 acres of forest.

Here’s a table that summarizes these choices and outcomes:

Pulgalandia Apestonia Cooperate(don’t attack) Don’t Cooperate(attack) Cooperate

(don’t attack) Apestonia: 500 Acres

Pulgalandia: 500 Acres Apestonia: 0 Acres

Pulgalandia: 700 Acres Don’t Cooperate

(attack) Apestonia: 700 Acres

Pulgalandia: 0 Acres Apestonia: 300 Acres

Pulgalandia: 300 Acres

Each country faces the following logic: “We don’t know what the other country will do. If they decide to cooperate (not attack first), we will get 500 acres if we also cooperate, but 700 acres if we don’t (if we attack unprovoked). Therefore, if they cooperate, we are better off not cooperating (attacking). If they decide not to cooperate (to attack), then we will get zero acres if we cooperate (don’t attack), but 300 acres if we don’t (if we attack). Therefore, no matter what the other country does, we are better off attacking.”

However, if both countries follow that logic, they each end up with 300 acres, though if they had cooperated and split the forest, they would have each ended up with 500 acres. So, while each country has an incentive to attack, if they can find a way to commit one another to cooperation, they both benefit.

So, even though they have a conflict over the forest, they have a shared interest in finding a way to commit one another to cooperating for mutual benefit. This is often the case, with war being costly in blood and treasure, and peaceful coexistence (and even mutually beneficial exchange) being far more conducive to general prosperity.

Historically, real tribes and countries have faced this challenge. Some have said, “Okay, let’s agree to cooperate, and to make sure no one cheats, we’ll exchange hostages.” And then each country would send an important member of their own society (often the ruler’s daughter to be raised by the other ruler as his or her own) to go live with the other society, so that if either cheats, that hostage can be killed in retaliation. Later, countries sent the children of royalty to marry the children of royalty in other countries, sort of as “permanent hostages,” but also to bind the countries together so that they can act more cooperatively.

In the modern world, we’ve developed a much more elaborate system of international diplomacy, with embassies in each other’s countries, and treaties, and international organizations (like the United Nations). The European Union, whose roots go back to post-WWII efforts to create economic ties that would diminish the chances of resumed warfare, is perhaps the most advanced example of emerging international political economic consolidation

Not just internationally, but within nations, overcoming this collective action problem is a big part of why we’ve created many of the social institutions we’ve created. Our Constitution, our laws, even our religions, have developed in many ways to help make it easier for people to commit one another to mutually beneficial actions even when they have individual incentives to cheat or act in non-cooperative ways.

With modern technologies, modern weapons (such as nuclear weapons), modern transportation and communication technologies, an increasingly global economy, increasingly global environmental and natural resource issues, all nations in the world face many collective action problems. Our increasing political globalization is a complex tapestry of conflict and cooperation woven within this underlying logic.

So far, we’ve assumed that the countries were equally matched, and looked at the cost-benefit analysis of each when considering whether to attack the other or to live in peace. But what if they weren’t evenly matched? What if one was militarily stronger than the other? How would that change things?

If Apestonia were more powerful than Pulgalandia, then Apestonia would capture more forest than Pulgalandia would if the two went to war. If Apestonia were to attack first, perhaps it would capture the whole forest against the weaker Pulgalandia, losing only a small portion (let’s say a tenth) in battle. This outcome can be seen in the lower-left square of the two-by-two table, in which Apestonia attacks first and captures 900 acres, while Pulgalandia ends up with zero.

Conversely, if Pulgalandia attacks first, it will gain the advantage of surprise, but will still be facing a superior force, and might manage to capture and control 300 acres against Apestonia’s 500, 200 being lost to the destruction of war. This outcome is summarized in the upper-right square.

Pulgalandia Apestonia Cooperate(don’t attack) Don’t Cooperate (attack) Cooperate

(don’t attack) Apestonia: 800 Acres

Pulgalandia: 200 Acres Apestonia: 500 Acres

Pulgalandia: 300 Acres Don’t Cooperate

(attack) Apestonia: 900 Acres

Pulgalandia: 0 Acres Apestonia: 600 Acres

Pulgalandia: 100 Acres

If they both attack each other at the same time, more forest will be lost to the destruction of battle, and neither will have the benefit of surprise, but Apestonia will still come out ahead. This is reflected in the lower-right square.

Because of the difference in power, when they negotiate a peace in which neither attacks, Apestonia can demand more of the forest than Pulgalandia. This is reflected in the upper-left square.

The logic that the two countries face is still similar to the logic that they faced when equally powerful. Neither knows what the other will do. Apestonia says to itself, “If Pulgalandia cooperates (doesn’t attack), we can get 800 acres for also cooperating (not attacking), or 900 acres for attacking. If Pulgalandia doesn’t attack, we are better off attacking. If Pulgalandia does attack, we can get 500 acres for not attacking first (only reacting to their attack), and 600 for attacking first, so, again, we are better off attacking. No matter what Pulgalandia does, we’re better off attacking.

Similarly, Pulgalandia is better off attacking no matter what Apestonia do. They say to themselves, “If Apestonia doesn’t attack first, we get 200 acres for also not attacking, but 300 for attacking, and if Apestonia does attack first, we get zero acres for not having attacked at the same time but 100 acres for having attacked at the same time. Either way, we’re better off attacking.”

But they both know this, and both know that they’d be better off not attacking one another. So, just as before, they need to invest in some way of committing one another to cooperation.

But the pay-offs can look different as well. It may be that, while the weaker Pulgalandia has incentives to attack no matter what the stronger Apestonia does, Apestonia gets a stronger benefit from cooperation. In the chart below, Pulgalandia still is better off attacking no matter what Apestonia does, and Apestonia, knowing that, knows it has to attack to get 550 rather than 500 acres. This is reflected in the table below:

Pulgalandia Apestonia Cooperate(don’t attack) Don’t Cooperate (attack) Cooperate

(don’t attack) Apestonia: 800 Acres

Pulgalandia: 200 Acres Apestonia: 500 Acres

Pulgalandia: 250 Acres Don’t Cooperate

(attack) Apestonia: 650 Acres

Pulgalandia: 100 Acres Apestonia: 550 Acres

Pulgalandia: 200 Acres

But the most Pulgalandia can possibly get is 250 acres, if they attack before Apestonia does. Apestonia can just say, “look, we’ll give you 300 acres, 50 more than you can possibly get by attacking us. We’ll keep 700, which is more than we can get in any other way. If you attack, even while we are planning on cooperating with you, you lose 50 acres. You have no reason to attack, and we’re both better off than we can otherwise be.”

This is reflected in the table below, in which neither country has any incentive to do anything other than cooperate:

Pulgalandia Apestonia Cooperate(don’t attack) Don’t Cooperate (attack) Cooperate

(don’t attack) Apestonia: 700 Acres

Pulgalandia: 300 Acres Apestonia: 500 Acres

Pulgalandia: 250 Acres Don’t Cooperate

(attack) Apestonia: 650 Acres

Pulgalandia: 100 Acres Apestonia: 550 Acres

Pulgalandia: 200 Acres

This is an illustration of how power is exercised among nations (or factions within a nation), even without having to exert any military force at all to do it. Nations know their relative power to one another, and when they negotiate treaties and deals they negotiate agreements that favor the more powerful. When the United States was formed, the more powerful (populous) states made sure that their power was reflected in the new government (by having representatives in Congress proportional to their population). When the United Nations charter was drafted, the most powerful nations insisted on forming a “security council,” that had far more power over the organization than other nations did.

Weak nations sometimes have the power of threatening to create problems for stronger nations, and thus get concessions to keep them calm. But nations also sometimes have leaders or governments that cease to act rationally, like the current government of North Korea seems to not be acting rationally.

Of course, if, in the end, the United States, worried about an irrational nuclear armed North Korea, gives them large amounts of aid to keep them from causing problems, then it will have turned out that North Korea’s “craziness” was pretty smart after all…. Strategies that “trump” rational considerations can be very rational strategies, including various ways of binding oneself to a limited range of options in order to increase one’s own bargaining power, or behaving in ways which make an opponent question one’s rationality in order to make them more accommodating for fear of erratic responses.

The scenarios presented above are highly simplified, leaving out many factors, such as uncertainty (real actors in such situations don’t know what the exact outcomes of various combinations of choices will be), more complexity in available options (not just binary choices), more interacting actors (not just two), more conflated issues being bargained over (not just a single resource), more costs and benefits to be considered (not just the amount of that single resource gained or lost), factional conflict across levels (different interest groups and political parties vying for different outcomes due to differing material interests and political ideological orientations), less centralized decision-making (not a single ruler making unlimited autocratic decisions, but rather in various ways collective decision-making processes impinging on the negotiations between actors constituted in that way), and various intrusions of emotional and irrational considerations, that even rational actors have to take into account.

But the complexity of the real world does not mean that abstraction from it is not a helpful tool in understanding underlying dynamics. Rather, it is a way of isolating individual dimensions of those underlying dynamics, gradually adding in enough of the complexity to begin to capture a deeper and subtler understanding of how our social institutional landscape really functions.

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Many of us are motivated by the desire to affect the world in a positive way. Everyone engaged in political activities on any level believes in their ability, working with others, to affect people’s beliefs and actions, at least on the margins. And, indeed, the fact that change is constant, and that some of that change is in part a result of intentional social movements demonstrates that intentional actions by some can affect the beliefs and attitudes of others, at least on the margins.

Most political activities and discourse target the turbulence on the surface of our shared existence, focused on passing this or that bill or getting this or that candidate elected. But the most successful and memorable movements have reached deeper, stoking either our humanity or our inhumanity, our generosity or our selfishness, our reason or our irrationality. Their focus has generally been narrower than the one I am suggesting (hatred, prejudice and discrimination toward specific groups, or ending hatred, prejudice and discrimination toward specific groups), but they are memorable for being more sweeping in breadth and more profound and lasting in effect than more superficial political struggles.

In many ways, there is a deeper political struggle that is less attended to than the more superficial issue-specific causes to which we address our attention and energies: the struggle between, on the one hand, our more primal inclinations, our bigotries and hatreds, our fear and anger, our irrational tribalistic dogmas, and, on the other, our “higher consciousness,” our compassion and imagination, our hope and aspiration, our generosity and humanity. Each year, around Christmastime, a small barrage of meta-messages celebrating the latter is repeated (e.g., A Christmas Carol, It’s a Wonderful Life, Miracle on 24th Street), and these meta-messages resonate with many people, who enjoy having those centers of their mind and spirit stimulated. We feel good seeing hope and love prevail.

One part of my proposed social movement (see A Proposal: The Politics of Reason and Goodwill) is based on the constant, strategic and intentional creation, identification, dissemination and use of such meta-messages to “soften the ground” for more superficial political discourse, to stimulate the centers of the mind more conducive to the passage of rational, humane, compassionate and generous public policies. This is a movement that occupies a largely unexplored and untapped region between culture and politics, a region usually addressed only by religions, and usually enveloped in a lot of noise not related to what I’m talking about here. But what if a motivated group of people, organized to do so, targeted the zeitgeist itself, stoking and stimulating those areas of the human mind that respond in emotionally gratifying ways to messages of generosity and hope and inclusiveness? And did so in conjunction with related narratives about a commitment to disciplined reason in service to those values?

I understand the skepticism about such a movement, because we think of all of the people who will not be responsive to it, and how Quixotic it seems to be. But it’s clear that over the course of a period of time (a generation or so), similar movements a little narrower in scope and in conjunction with haphazard cultural reinforcing messages have been dramatically successful, by moving people on the margins. The Civil Rights Movement and the Gay Rights Movement are two prominent examples. Under the influence of social movements with political agendas and accompanying proliferation of cultural narratives reinforcing their agenda (e.g., TV shows “normalizing” in the collective consciousness the world these movements were striving to create), dramatic change in the zeitgeist, in the course of about a generation in each case, was accomplished.

What if we combined all of this into a single, coherent, intentional social movement? What if we created a movement whose purpose is to promote disciplined reason and imagination in service to humanity? The fact is that there are relatively few Americans who, if pressed, would explicitly reject the value of working to be more rational and humane people, despite the fact that there is a large faction that implicitly and in effect does reject both reason and humanity. But politics, at root, is a competition of narratives, a battle over human consciousness, and given that we are at a time and place in world history in which few would explicitly reject the value of reason and humanity, that narrative already has an advantage in the competition of narratives. What we need to do is to put meat on its bones, to make sure that that which is, and that which is not, reason in service to humanity is easy to identify and easy to relate with. And the successful movements to which I’ve referred give us shared cognitive, cultural material with which to do so.

America lags behind the rest of the developed world in this cultural progression because of a set of memes, a narrative, which creates a “safe haven” for bigotries and irrationality, an emotional packaging of them which gives them a veneer of nobility. That fortress of ideological delusions continues to resist the progress of reason and humanity. And those who are committed to reason and humanity simply take on the armies sent forth from that fortress, leaving the fortress itself intact. We need to get out our corps of engineers and work on undermining the battlements themselves, work on revealing what’s really hiding behind those walls of faux-patriotism and abused “liberty”. And we need to do so in an organized, strategic and intentional way.

I believe in the human ability to organize to accomplish great things. And I believe it’s time to organize to try to affect the zeitgeist in an intentional way, working to stimulate and liberate our collective genius, to stimulate our compassion and humanity and to lay bare and unprotected the cultural pathologies that stand in the way of our collective genius and our compassion and humanity. It’s time to work in a conscious and organized way at becoming a more conscious and humane people.

Many things have led to this moment, and have made it ripe for all rational and humane people to stand up and speak with one voice, and do so in an effective way. The struggle between those driven by fear and loathing on the one hand and those driven by hope and humanity on the other has come to a head. Both forces are at or near a peak. And those who preach hatred, those who preach irrationality, those who preach implicit inhumanity, are an embattled faction, with only residual influence on the zeitgeist.

When a fresh and inspirational young candidate was elected president in 2008 on a wave of hope and a widespread desire for the kind of change I’m referring to, the resistance rallied, fear and hatred rallied, irrationality rallied. It is a desperate and embattled opposition, crying out in the death throes of a failed ideology. We need to stop letting their anger and irrationality penetrate us, and need to smile at it indulgently, saying, “you are the past, and we are the future.”

Because by doing so, we can make it so.

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