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Driving, Police Power, and the Word: Sarah A. Seo’s Policing the Open Road

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The roadside police encounter gone wrong was a familiar genre in American media before audiences more recently began to develop a larger appetite for police misconduct stories. Is this merely a special case of a now general, nihilistic tendency in which “government failure now sets the agenda”? That is undeniably a key part of recent interest, but as Sarah A. Seo documents in Policing the Open Road, public concern over the relationship between the police and drivers goes back right to the beginning of mass automobility. When a police officer observes a car going over the speed limit, or driving away from the scene of a robbery, they do not have time to go and get a warrant. When they do pull someone over, the driver may be armed or become otherwise violent. Our legal system has ultimately taken these factors into consideration by giving police wide latitude in determining when it is reasonable to pull a driver over, search their vehicle, and by rationalizing most police violence as preemptive self-defense.

While changes in media and technology make it easier than ever to document and share specific instances of police violence, the fundamental situation we have created in this country makes police violence of the headline-catching sort all but inevitable. A civilized society ought not to subject even its criminals to the arbitrary discretion of individuals who can turn violent without repercussion, but the main theme of Seo’s book is the way in which policing cars created unprecedented contact between law enforcement and respectable, otherwise law-abiding citizens. The “Everyman,” an implicitly (and sometimes not-so-implicitly) middle class white man, became a much-discussed object of concern among police leadership and in Fourth Amendment jurisprudence. How can our safety and rights be guaranteed when huge proportions of the citizenry—even the high status “Everyman”—are likely to find themselves under the broad discretion of armed policemen?

Seo does not offer cause for optimism. As local governments expanded the scope of their policing in response to the real public dangers posed by mass automobility, and legislators churned out a mass of reactive, contradictory rules of the road, judges tried to issue rulings which made sense of it all. To constrain the reality on the ground with the written word of law, in some way. With notable but rare exceptions, they failed. The basic on the ground reality of on-the-spot police discretion were established long before the courts made peace with it, and making peace with it is by and large all they managed to do.

A failure of self-governance

However, the courts, the legislators, and even the police do not bear the sole responsibility for the situation in which we now find ourselves. It came about in response to the very real problems that arose from the mass adoption of the car. One especially significant and under-discussed consequence was the demise of the 19th century model of community self-governance. In contrast to the present, in the 19th century:

Even in the cities, the flow of movement on streets and highways was largely self-regulated, and traffic laws appeared mainly in collision cases between private parties who argued over whether an alleged violation demonstrated negligence.

Self-regulation also relied in large part upon membership in voluntary organizations which engaged in norm enforcement:

In the nineteenth century, self-governing associations like churches, trade unions, clubs, and fraternities maintained social order by instilling civic spirit and setting forth the rights and duties of their members. When people could not resolve disputes among themselves—and all disputes could be boiled down to disagreements about rights and duties owed to each other—judges and juries decided how the common law would govern the situation. When someone breached a social or legal norm, the aggrieved person brought the offender before a justice of the peace to settle the matter. Through this “judicial patriarchy,” lives were well regulated and disciplined. Both associational and common-law governance were local in scale, and proximity and regular contact among members and neighbors made accountability possible and effective.

Cars spelled the demise of this arrangement for a number of reasons, chiefly the surge in mobility that came in its wake, and the resulting weakening of local associations and local courts. 

Libertarians and small government conservatives are frequently criticized, not always fairly, for failing to see the need for the public provision and maintenance of roads. But the true problem that cars pose for these ideologies is the way people behave in them in practice. To this day, a century after Seo’s tale begins, the typical driver drives as fast as they believe they can get away with, looks for cars but not pedestrians when making a turn, and is just generally lawless and reckless until confronted with the police. Self-governance on the road has failed and continues to fail.

And so, where governance by norm-enforcing associations and local common law courts were unable to meet this new challenge, the traffic cop was born.

Containing police power with words

The Fourth Amendment holds that: 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In the 1925 Carroll v. United States, two bootleggers were caught with alcohol hidden in their car. It may surprise a contemporary reader, but not only did the defense argue that merely stopping the defendants’ car constituted a seizure—which would require a warrant—but the prosecution did not dispute that this was true according to established precedent.

Instead, and more astonishingly, the solicitor general urged the Supreme Court to uphold the convictions by revising the centuries-old law of arrests. The “use of such motor vehicles by criminals…demands that our ancient law be so amended as to cope with these modern facilities,” Beck pleaded. He argued that a lower standard than even probable cause was necessary when cars were involved.

The court upheld the convictions, but worried about allowing “a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search.” They therefore insisted that “where the securing of a warrant is reasonably practicable, it must be used.” But this, of course, was precisely a lower standard of the sort the prosecution had asked for.

Critics of the Warren Court frequently accuse it of deviating from either the text of the Constitution or the spirit of existing precedent, but it was policemen, prosecutors, and (by and large) lower courts who blew up the scope of Fourth Amendment protections. The Warren Court simply attempted to pick up the pieces, by providing a few procedural safeguards. In Mapp v Ohio, they held that the exclusionary rule (the existence of which seems a fixture to any audience who grew up watching Law and Order) applied to the states, not just the federal government. Two years after this ruling, New York City went from issuing a negligible amount of warrants per year, to over 5,000 per year. This was a rare case where courts had a palpable effect and put a layer of judicial oversight between citizens and the police—though Seo notes with disdain the tendency of judges to “rubber stamp” warrants.

Other famous cases—such as Gideon v. Wainwright, which established the right to a lawyer, and Miranda. v. Arizona, which applied the exclusionary rule to statements made without notice of that right as well as the right against self-incrimination—were important and certainly impacted how policing was conducted, but did not change its basic nature. Pulling over a car does not require a warrant under current law, and so drivers remain subject to the on-the-spot domination of policemen. The Due Process Revolution, as it came to be known, deals with what evidence will be allowed to be used against you in court, but by and large does not alter this fundamental relationship between citizens and police that was established in the wake of mass adoption of the car.

A way forward 

Seo offers little in the way of a path forward, except for the vague observation that “one era’s answers may not be sufficient to solve another generations problems,” but hers is not a work of activism; it is a history. We still wrestle with both “one era’s answers” to their problems and, by and large, the very same problems. Seo’s book is an excellent guide to understanding each in turn.

While there is little to be gained by lingering too long to condemn the police, prosecutors, and judges of the past for the “answers” they handed down to us, neither must we accept their failure to imagine other possibilities. Personally, if I were to single out any party for condemnation, it would be legislators, who by and large fell down on the job in this story, ceding responsibility to the cops on the road and the judges in the courts. Part of the problem is in the nature of our government—I leave it to Constitutional Scholars and other metaphysicians to determine whether a federal law governing how states use their policing power is Constitutional, but it clearly at odds with our constitutional practice. Were it an option, one way to address the problem of arbitrary police discretion would be to devise a federal law constraining the number of scenarios in which citizens come into contact with police. We also have options they did not; we could replace a lot of routine road policing with speed cameras—something that encounters a lot of local resistance that might not be as effectively mobilized at the national level.

More to the point, Seo’s book purposely offers a reappraisal of the now century-long American project of building our cities and our lives around the automobile. To resist that project’s reach in our new developments, to say nothing of reversing its accomplishments to date, will take much more than a single statute or precedent. But Policing the Open Road is a good place to start if one wishes to understand the stakes.

Featured image is a Ford Model T

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3 days ago
New York, NY
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College Accessibility Must Start Before College

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The use of education to secure more egalitarian economic outcomes without outright redistribution has been a cherished goal of liberals in the United States for centuries. The public education ideal, first nationally codified in the Northwest Ordinance that set aside land for public schools in the Old Northwest, has carried on until today because the promise it holds out is so attractive. If every child has equal access to adequate schooling, this creed holds, we can say with conviction that we have provided “equality of opportunity.” Among the most powerful advocates of social democracy and education reform in the US history (and target of immense conservative vitriol), John Dewey, made the case this way:

It is not enough to see to it that education is not actively used as an instrument to make easier the exploitation of one class by another. School facilities must be secured of such amplitude and efficiency as will in fact and not simply in name discount the effects of economic inequalities, and secure to all the wards of the nation equality of equipment for their future careers.

Providing an “equality of equipment” for the future is a common but difficult goal. It is often confused with providing equal resources or education to each individual student, but that is insufficient for the task. The resources students can bring to their educational careers are so unequal that even a system of perfectly free and equally funded schools through the college level—and such a system is of course far from the reality—will continue to produce dramatically unequal educational results. 

The animated debate between moderate and more radical Democrats about higher education—whether to push for tuition-free college, means tested programs, or some other policy—has brought these disparities to light and along with it another round of the national dialogue on education equity. The rising importance of a college degree to economic success, and the rising cost of securing such a degree, points to an obvious hole in this equal opportunity conception of our educational system. It is obvious even to those with little experience with either education or poverty that if only the wealthy can afford to attend college, students have not all received “equality of equipment for their future careers.” 

However, the back and forth over the relative merits of different tuition plans has obscured an important point. Regardless of the tuition policy, it can only truly impact college accessibility for a segment of the population, that is, high school students who make it to senior year, are mostly prepared for college, and who have the necessary tools needed to enroll and succeed there. This group, while not by any means exclusively middle class, is disproportionately so. All major Democratic candidates have put forth plans to improve these secondary outcomes, and these plans, and other necessary policy changes, deserve a higher priority in the national discussion on education policy. 

What the candidates have put forth

Every major Democratic candidate has proposed reforms to the tuition system for higher education, but their plans differ. Joe Biden has proposed making two years of college free in community and tribal colleges, with the federal government footing the majority of the bill, as well as doubling Pell grant amounts and increasing opportunities for income-based student loan repayment and outright forgiveness. Pete Buttigieg would offer tuition-free higher education for all students from families making under $100,000/year, and on a sliding scale for the next $50,000 in income. Finally, and most famously, Elizabeth Warren and Bernie Sanders would make four years of college tuition free for all students. Any of these changes would be welcome, but none would have as dramatic an impact on low income students as one might expect.

Many students, especially those from low income families, are never in a position to even apply to college—each year, over a half million students drop out of high school, and lower income students are nearly twice as likely as others to do so. Moreover, many students receiving high school diplomas lack both the formal requirements and the academic knowledge needed to succeed in college. Enrollment in remedial courses indicates that students of color and Pell Grant recipients are arriving to college, in many cases, less prepared than their middle class and white peers. While reducing or eliminating the tuition cost of college may improve some students’ motivation, and as a result their performance in high school, these numbers suggest that tuition-free college alone will strongly favor middle class students who are already expecting to attend college and have received an adequate high school education to quickly earn a two or four year degree. 

By contrast, the students who are most in need of educational reform are those for whom college costs are only the last in a long string of hurdles. For many, college would have been free or very low cost already on the basis of means tested programs and scholarships; nonetheless, they are either stymied by their high school experience or attend college but fail to attain a degree because they were poorly prepared by their secondary and prior education. Strong educational programs are needed to reverse this throughout a student’s academic career if they are to make use of tuition-free college; otherwise, the benefits of increased college spending are going to accrue disproportionately in the middle and upper classes. 

The first step to correcting this is ensuring the schools teaching lower income students have the resources they need. Frequently, state funding formulas mean that students in wealthy areas get more state funding due to mill levies and other local funding mechanisms. However, even if every school received the same funding—an important state goal—the opportunities for affluent districts would still be much greater. This is because wealthy districts can save money by pushing costs off onto parents who are eager or able to share the investment in their child’s education. Two parent households naturally have more time to help younger students with extra reading and math skills development; older students in wealthy districts will often be sent to private tutoring, a highly effective but expensive way of preparing them for more rigorous classes than they could tackle with just classroom instruction. Wealthy districts can also implement more fees for art, music, or other classes, saving them thousands in funding by tapping into a resource unavailable to poorer students. 

This is the role of Title I education funding, but, averaging at just over $1200 per eligible child, this program is too underfunded to achieve the purpose of granting an equitable education to students in high poverty districts or facing special challenges. Joe Biden, Bernie Sanders, and Pete Buttigieg have all proposed tripling Title I funding, and Elizabeth Warren has proposed quadrupling it. These huge changes would make any additional college funding more progressive by giving students from lower income schools a better shot at graduating and being prepared to take advantage of tuition free college. These proposals are at least as important as any college tuition program currently being discussed; the fact that they’ve received less attention is unfortunate, and likely reflects the fact that media members, the most engaged media consumers, and primary voters are more likely to be college educated than the general public. If any of these candidates becomes president, it is important that activists, lobbyists, and legislators prioritize holding them to their Title I funding promises, rather than focus exclusively on college education.

Where candidates can go further

Making this money translate into actual results for students who are currently unlikely to attend college, however, may require more careful targeting—something which may not be achieved simply by granting more money to certain schools. Naturally, within local school districts, there is a political motivation to spend money on programs that can be sold as benefiting the majority of students, or at least the majority of students with vocal, voting parents. The problem is that the students in greatest need of assistance, for whom the state must go furthest to ensure adequate educational preparation, are often those whose parents have the fewest political resources at their disposal. A commitment by the president to specifically targeting students with the highest needs is required to start to give students equal preparation for college, without which any tuition program will fail to impact the students who need it most. 

First, of course, students need to graduate from high school. There is plenty of evidence that targeted programs can achieve higher graduation rates, but the efficacy of different elements of those programs varies widely. The most impactful programs, according to large meta analyses of hundreds of studies, are those that include family engagement and behavioral interventions. These programs may need to be encouraged through specific grants and programs, as they are often the programs schools are most skeptical about introducing, seeing them as beyond the traditional scope of educational policy. 

Similarly, efforts to encourage at risk students to attend college require specific efforts tailored to have that effect. The current federal efforts to improve college attendance by low income or first-generation students are the TRIO programs, a series of programs started in 1965 as part of the “war on poverty.” There is substantial evidence that the largest of these programs—Talent Search and Upward Bound—have been successful in increasing college attendance rates for their participants with the lowest initial educational expectations. In the case of Upward Bound, students’ rates of four-year college enrollment more than doubled, and the overall credits earned in college increased substantially. This impact is probably because Upward Bound requires students to meet with dedicated facilitators who are tasked with giving them much the same advice and support that other students receive from their parents. This includes both emotional encouragement and practical academic guidance that students with college educated parents often receive for free and take for granted. This is important not because parents in disadvantaged communities don’t value education—in my experience the ostensible fear of “acting white” is exaggerated by commentators looking for cultural explanations for academic performance gaps—but rather because the sort of advice and support a typical student needs to be successful in secondary and post-secondary education is generally gained through experience, and so even the most supportive parents often struggle to provide that assistance if they did not pursue higher education themselves. 

However, these programs do not reach most eligible students. Upward Bound, the most intensive of the programs offered, is only even offered at about 3,000 of the country’s 24,000 high schools. The expansion of programs specifically targeting students who are less likely to graduate or less likely to enroll in postsecondary education is an absolute necessity for any college access agenda to be successful. None of the major plans proposed by Democratic presidential candidates makes any mention of specific programs aimed at dropout prevention or the TRIO programs, although the three with federal policy experience (Biden, Sanders, and Warren) have all been supportive of such programs in the past. 

Campaign promises are notoriously difficult to deliver, but campaigning on a platform of specific interventions to help students with lower academic expectations would also push that national conversation in a salutary direction—putting more focus on evidence-based dropout prevention and higher education-promoting programs. Providing equitable educational preparation for all students, regardless of background, is one of the oldest goals of American liberalism; forceful efforts to achieve it now could pay dividends for decades to come. 

Featured image is The Severe Teacher, by Jan Steen

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11 days ago
New York, NY
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Hermeneutics and Constitutionalism

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Heidegger, Gadamer, Taylor, and Rorty all saw poetry, literature, art, and even sports as powerful lenses for understanding the world and explaining their philosophies. Ever since Gadamer bent my framework to the breaking point, I have found that stand-up comedy is the best lens for my own edification.

I have employed this lens in numerous venues before, so I hope you’ll forgive me quoting myself:

There’s something mysterious about a truly successful set. The comic spends no small amount of time laying groundwork, and then lands a punchline that lights up the room. There’s a palpable effect; people loosen up, they’re more likely to laugh at things they might have only chuckled at mere moments earlier. In a sense, the comedian seeks to master the room rather than any specific people in it. But he never knows ahead of time, or even most of the time he’s up, whether he’s going to pull it off or not. Comedians, especially unknowns and especially unknowns performing at open mics, step into a situation of great uncertainty and emotional vulnerability.

Even seasoned comics with well-tested material can blow it and face the agony of an uncomfortably or tensely silent room. There’s never a guarantee, no matter how good they are, that this day won’t be a bad one, this performance won’t win the audience over. And that is after years of years of almost entirely bad days. In short, it takes not only practice, but considerable commitment in the face of discomfort and humiliation in order to become skilled at comedy.

There are a few key pieces here. First and foremost, the circumstances; jokes do not stand on their own, but are funny in specific contexts. Then there is delivery, of course; the performance. To paraphrase Aristotle, a joke is funny when told the right way to the right audience under the right circumstances. Then there’s a relationship between the two: a successfully delivered joke actively influences the circumstances, improving conditions for the next joke and the one after that. Finally, there is an irreducible, even oppressive, uncertainty; no matter how experienced and skilled the comedian, no matter how reliably their set has worked for however long a time, it is impossible to know that here, tonight, at this performance, they will succeed.

This array of contingencies makes scientific humor impossible:

Now imagine cognitive scientists attempting to study humor. They have a set of pre-written jokes and have people read them in a controlled environment. Or use your imagination—try to think of any controlled environment in which they could systematically study humor. I can’t. Professional comedians brave pitiless audiences for years in order to master the art of formulating and delivering jokes. If they can’t be guaranteed to make you laugh, do you really think cognitive scientists could, much less reliably and in a way that replicates?

In Gadamer’s formulation, understanding is an event, it is something that happens to someone, not something they choose to have. In comedy, a polite laugh is not the same as a deep belly laugh, the kind that leaves you laughing so hard you are crying. The latter is not something you can choose, it is something that happens to you, perhaps in spite of yourself.

For Gadamer, hermeneutics is what we reach for when something has gone wrong, when understanding has not happened. Much as we can choose to try and understand why other people find a joke funny when it failed to make us laugh. Perhaps the end result will be understanding, and as a result when we read new texts employing related ideas, we will understand them from the outset. And perhaps in attempting to understand what people find funny about a joke we did not laugh at, we’ll grasp something intellectually for now that will make us more likely to laugh at similar humor in the future (even if, as anyone can tell you, the very act of understanding a joke in this way kills the particular joke).

Now imagine a judge ordering his bailiff to take away a defendant the jury has just pronounced guilty. Imagine this bailiff does not immediately act; perhaps they are simply spacing out, perhaps they are actively hesitating for some reason. The judge, annoyed, barks his order again, startling the bailiff, who at last complies. Yet into this situation entered the possibility that the bailiff would not act, something that seems more strange, more alien, than the notion that a human being would almost mechanically comply with what another one told them to do simply because the words had been spoken. The judge’s annoyance conveys a frustrated expectation, but only frustrated, not impeded—he still expects to ultimately get his way, and has not even conceived of a scenario in which the bailiff ignores him entirely.

The judge’s order is a speech act, something more specific and institutionalized than the well delivered punchline or the interpretation of a text. Yet the three can usefully be put in parallel for my purposes. Speech act, punchline, and interpretation are all performed actions that achieve an effect on other human beings in specific circumstances. When all goes well, it is almost like an incantation; the bailiff’s body moves on command, the audience roars with laughter with a timing that couldn’t be more precise if it were rehearsed, and a “lightbulb goes off” in one’s head—the reader suddenly finds it impossible to understand something in any other way than the one that has just occurred to them.

I am currently working on a project, a crash course in the political science of the American system. When people have asked me why this project has consumed me the way it has, I have had trouble answering. One answer which is not exactly wrong is that it is relevant. Hermeneutics and pragmatism are fascinating to me, but at the end of the day the payoff of each is that you ought to attend more to the details of life than to the heady abstractions of (even pragmatist and hermeneutic) philosophy. Understanding how the American legal and political system works in practice has much more concrete and useful applications.

But this answer is incomplete. I’ve had trouble articulating the other part but think I have it at last. To me, constitutionalism—which is what this project of mine truly is, constitutionalism in the British sense, the sense not tainted by contractarianism—is simply institutional exegesis.

The constitutional whole

Wood has all the scholarly credentials needed to aid us in the reading of Hegel, but his purpose is to open up the richness of Hegel’s thought, and to answer in his own way Hegel’s claim that “the true is the whole.” This claim too is a source of difficulty, since it seems one must know everything to know anything. And yet this view can also be a source of enabling rather than hindering. If the true is the whole, in a sense one can start anywhere, one can start wherever one happens to be, and traverse the pathways of connection revealed by attentive thinking.

William Desmond’s foreward to Hegel’s Introduction to the System, by Robert E. Wood

To understand the court system you must understand parts like the role of judges, bailiffs, juries, prosecutors, and so forth. These parts add up to the institution of American judiciary as a whole. Only this picture is still partial; the judiciary operates in relation to other institutions; congress, the presidency, the administrative state, the many components of state and local governments, but also the law school system and the pillars of the American legal community. All these and more add up to the American constitution, small-c, which amounts to the whole social system of the nation.

Now, to return to the notion of “performed actions that achieve an effect on other human beings in specific circumstances.” Part of what drew me to constitutionalism in particular of all the possible fields of interpretation was reading more about the details of performed actions in our institutional setting that didn’t have the effect they are formally supposed to have. So The Color of Law contains numerous examples of Supreme Court decisions which simply did not change the reality on the ground at the municipal level, even though the Supreme Court is formally at the top of the system and the rulings were explicitly about municipal laws (rather than being federal cases). Here were judicial punchlines intended to light up the room that were instead met with utter silence.

I began to think of things in terms of:

  • What actors
  • under what circumstances
  • performing what actions
  • achieve what effects

The massive amount of possible combinations means that one cannot ever hope to achieve a comprehensive catalog, even if you lived for a thousand years (the circumstances component alone would be impossible to be comprehensive about). So what can you do?

You can draw an incomplete, imperfect outline of the whole—the constitution. Each part of the constitution is a subject of study with specialists (and practitioners!) who make whole careers out of just that part, or some part of that part. As a constitutionalist, you draw on these specialists from across each institution and corner of society and attempt to flesh out the relations as best you can, to see the big picture that creates the context that each component operates within.

No social action occurs in a void. Audiences are not passive receptacles of comedians’ jokes. Some may not even be there to enjoy the routine; they may be there begrudgingly, and seek to ruin it for everyone or to draw positive attention to themselves by upstaging the comedian. When a comedian sets up a joke, these hecklers can take specific action to torpedo the conditions the comedian is seeking to create. Skilled comedians know not only how to tell a joke to receptive audiences, but how to parry hecklers and use their barbs to the comedians’ own advantage.

Similarly, a ruling issued by the Supreme Court is not met by a passively accepting institutional structure; actors seated at different perches of power throughout the system can take action to nullify any possible effect the ruling might have. In as much as the jurisprudence known as legal realism has a useful practical message for judges on the bench, it is that these factors—how institutional actors will actually respond to rulings—need to be considered when deciding the rulings in the first place.

A good constitutionalist will be able to see a particular action by a particular actor under a particular set of circumstances, and, without being able to scientifically predict anything, have useful thoughts about:

  • What the likely effect would be if no other actor made an attempt at nullification
  • What actions from what actors could potentially nullify the effect of the action
  • What actions from what actors would strengthen or complement the effect of the action

At this time, to speak of constitutionalism in America is rather presumptuous. We have political science and sociology. We have a legal community with a great deal of knowledge of case law. We have capital-C Constitutionalism, which, when it takes the form of philosophy rather than knowledge of relevant case law, is little more than a species of rationalism. But few really attempt the exegesis of American society, to read our institutional character, the constitution that matters more than any other could.

And it just seems to me to be very hard to get a sense of how a particular institution truly functions in the American setting if you don’t have at least a sketch of the overall constitution to provide context.

That, then, is part of my current interest—OK, obsession—with constitutionalism. Gadamer’s hermeneutics truly turned my world upside down and made me reconsider a great deal from scratch. Hermeneutics is the theory of interpretation, exegesis its practice. The more comfortable I became with the former, the more I hungered for a topic in which to practice the latter. Constitutionalism, for a number of reasons I hope I made clear above, has a great deal about it that excites me intellectually.

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16 days ago
New York, NY
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After the Wall: Branko Milanovic’s Capitalism, Alone

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To supporters of the market economy, the fall of the Berlin Wall nearly thirty years ago was supposed to mean the undisputed triumph of capitalism. But tensions today from increasing inequality, the rise of populism, and the remarkable growth of China have thrown this foregone conclusion into doubt. Did capitalism’s supporters take a premature victory lap? In his recent book Capitalism, Alone, Branko Milanovic argues that while we must resolve some of capitalism’s internal contradictions and countries like China show there is more than one recipe, capitalism is here to stay.

Marxists struggle, Milanovic points out, to reconcile Marx’s writings with the communist countries that in fact emerged. In Marxist thought, feudalism transitions into capitalism before eventually becoming communism. In historical experience, however, it was poor feudalistic or pseudo-feudalistic countries that became communist, skipping any stage of capitalism. Furthermore, if communism is the highest form of economic development, how are Marxists to explain the regression of countries like the Soviet Union that have passed from communism now into a less ideal system?

Of course, liberal theorists have their own explaining to do. If a richer and more globalized world is meant to create a self-sustaining peace whereby war is too costly, a peak of classical capitalism in 1914 should have never brought about the first World War. If the trajectory of economies really is, as predicted by liberal theorists, to gradually become more market-oriented, it’s hard to rectify countries that have transitioned into Marxism rather than liberal capitalism.

Milanovic believes Marxists got it partially right. Some shock was needed to shed the shell of feudalism that suffocated the productive potential of countries considered to be “third world” that were also often targets of foreign domination. Western countries had a bourgeois middle class that eventually developed enough political power to protect its interests—stop the rich from being entirely extractive and stop the poor from confiscating all the property. But for countries that had been dominated by foreign powers, communism—or some sort of radical revolution—presented an effective way to establish both economic and political independence.

Milanovic is quick to qualify his statement on the value of communism as a positive transitory force, however. He shows that poor countries like China and Vietnam experienced better growth rates from transitions to communism compared to more developed countries like East Germany and Czechoslovakia. Contrary to Marxist prophecies, “it is the very failure of socialism in rich countries that falsifies simple-minded Marxist teleology.”

The seeds of these revolutions grew into what Milanovic calls ‘political capitalism,’ a system with high levels of top-down control and corruption but capitalist nonetheless. Despite authoritarian tendencies, political capitalist countries fulfill Milanovic’s definition of capitalism as “the system where most production is carried out with privately owned means of production, capital hires legally free labor, and coordination is decentralized.”

This political capitalist system in countries like China, Vietnam, and Malaysia, relies on discretionary decisionmaking at all levels in order to overcome the red tape of democratic bureaucracies. Ample discretion is ripe for corruption, and citizens of political capitalist countries tolerate the corruption in exchange for fast economic growth. Even as these countries grow and become a part of the globalized economy, the roots of their entrance into capitalism linger in how their governments function.

It is against this prototype of the political capitalist countries that Milanovic describes the other path of capitalism: liberal meritocratic capitalism. These countries, with the United States as his prototypical case study, are characterized by rule of law, no formal obstacles to economic mobility, and democratic competition as the primary form of political accountability.

An increasingly globalized world has generated tensions aplenty for today’s liberal meritocratic capitalism. A widening gap in wealth and income inequality is weakening the faith many have in the current system. A feature of today’s liberal meritocratic system is that, unlike centuries ago, those with high wealth income also benefit from high labor income. Evidence shows that wealth is becoming more concentrated at the top, and notably the type of wealth held by the wealthiest produces higher returns. The middle 60% of Americans hold most of their wealth in housing—an exceptionally undiversified and volatile asset—whereas the wealthiest have their wealth in financial instruments that have much higher returns. According to Milanovic’s calculations, 12-15 percent of people in France “could live at the standard of living of a median worker without working for even a day.” All of this serves to perpetuate the difference between those at the very top and everyone else.

These tendencies towards increasing inequality are not unique to the US. Evidence shows wealth concentration is similarly high in Nordic countries. And the best data from China and other political capitalist countries suggest levels of inequality exceeding that in the US, and roughly on par with Latin American countries.

Some forces of inequality aren’t necessarily bad in their roots, and it’s not clear that we have the desire or tools needed to counter-act them. Although the association between spouses’ level of education was near zero as recently as 1970, college graduates are increasingly marrying others with college degrees. With high earners marrying other high earners, inequality at the household level—with downstream generational effects—has reached the point where 1/3 of the rise in inequality between 1967 and 2007 can be attributed to this “assortative mating.” Further, Milanovic believes that the ability to earn higher income from harder work is not entirely a bad thing, especially contrasted to previous eras of richness being almost completely derived from inheritance.

As long as there is inequality globally, Milanovic reasons, there will be forces pushing people to go where incomes are higher. The exact same person doing the exact same work can experience as high as a 700% wage premium in the United States compared to their home country. Those forces will meet a backlash from citizens who perceive a threat to their status quo and a strain to their social safety nets. Regardless of the reality of these perceptions, our Westphalian system of governance continues to give significant rights to citizenship and, as long as it does, those with special privileges will fight to maintain their power.

An under-appreciated trend in equality is the decrease in global inequality. Milanovic estimates that the Gini coefficient—a standard measurement of inequality where 100 is complete inequality and 0 complete equality—has dropped from 75 in the 1990s to around 65 now. In essence, some trends in the West that are credited for hollowing out the middle class have come in exchange for a global middle class. John Rawls’s egalitarian framework expresses the injustice we find at imbalances of endowments across a nation, but rarely is that framework applied to the world as a whole. The Rawlsian citizenship lottery is perhaps the single most important determinant of one’s lifetime material well-being, yet people’s sympathies too often stop at their national borders.

There seems to exist some realm of possible policies that acknowledge the gains to migration while not ignoring the fragile political forces that are hostile to newcomers. In essence, higher-income countries can put a wall around the welfare state rather than the country. Milanovic considers policies like guest worker programs that allow a freer flow of labor without putting strain on social safety nets. However, this creates a class of “subcitizenship” that often creates a self-fulfilling prophecy of a lower class not being fully integrated into society. Furthermore, citizens often perceive migrants as leaching off the safety net, despite massive evidence to the contrary and regardless of what the law says they are entitled to.

To understand the future of liberal meritocratic capitalism and how to resolve its most pressing tensions, it’s helpful to consider its past. Milanovic develops a taxonomy separating western capitalism into three stages: classical capitalism (countries like the US and UK before 1914), social democratic capitalism (1945-1980), and the current liberal meritocratic capitalism (21st century). One defining feature of classical capitalism is that those with high income from wealth rarely had high income from labor. Contrast this with today where those with increasing wealth are also high-income.

The second phase—social-democratic capitalism—was characterized by high collective bargaining of workers, very progressive taxation, and increased universal access to education. All three of these phases have a relatively high concentration of capital ownership and high transmission of advantages to future generations. For those with the impulse to simply re-establish the social-democratic phase, Milanovic points to some difficulties with this era being totally revived. Collective bargaining is more difficult in a globalized labor market where physical proximity of workers is scattered and competition more intense. Also, the gains from increased education to those lower on the economic ladder reaches a point of diminishing returns: Making non-literate people able to read will converge an income gap better than giving a master’s degree to someone with a bachelor’s degree.

His taxonomy of capitalism is a useful way to consider the so-far evolution of the market economy, but his description of the road ahead for political capitalism is far from convincing. His prototypical political capitalist countries—China, Vietnam, and Malaysia—have indeed experienced phenomenal growth rates compared to the high-income liberal meritocratic capitalist countries of “the West.” Yet he goes as far to say, “we should expect that income levels will eventually be similar across the entire Eurasian continent and North America, thus helping reduce global inequality even further.”

This is a stretch. Lower-income countries have the benefits of adopting the technologies of those on the production frontier, realizing the gains from mass urbanization, and the gains from infrastructure improvements by means of brute force. Yet these low-hanging fruits can only last so long.

The history of economic growth at the very least suggests a deceleration at some point, and it’s up to Milanovic to convince the reader that this time is different and China can sustain its incredible growth rates to the point of income convergence. China’s per capita GDP is only about a sixth of what is in Western capitalist countries. Admittedly, China has continued to chug along for decades of high growth for much longer than many economists predicted. Because China didn’t follow the “Western Path of Development,” in Milanovic’s phrasing, many incorrectly assumed it would plateau much earlier. Nonetheless, it does not immediately follow that this growth will last forever or is anything to be desired. It’s hard to take his arguments seriously until a political capitalist country reaches per capita GDP levels within a stone’s throw of liberal capitalist countries.

Milanovic seems to have too high a level of confidence in the bureaucracy of the countries he deems political capitalist. He states that “political capitalism promises much more efficient management of the economy and higher growth rates.” This derives from an idea that authoritarian governments can push optimal policies through without the inefficiencies of red tape that come from democratic accountability. But this “benevolent dictator” fallacy has been proven incorrect: The correlation and causation of authoritarian leaders with higher growth rates is weak and more likely negative than positive.

And again, Milanovic is too closely conflating high growth with good governance. When a country’s starting point is Maoist China, the institutions and groundwork that are ideal for sustained economic growth are so far away that almost anything would be a big improvement. He is comparing rates of change in economic output to absolute levels of quality in governance. He should be comparing rates with rates or levels with levels, but not mixing the two. He goes as far to say that “this remarkable performance of political capitalist countries is something that puts them, at least if prosperity is a key criterion, in competition with liberal capitalism as the best way to organize society.” Would he really prefer China’s type of governance over Hong Kong’s, even if economic performance were the only desired metric? If political capitalistic countries do indeed tend to depend on growth for their legitimacy, an eventual slowdown of growth makes Milanovic’s prediction of political capitalism as a force far less certain, and perhaps even discounted.

With China’s Belt and Road Initiative, China is exercising more of its influence across the world. And perhaps it will in a sense ‘export’ its model of political capitalism to more countries. But is its path truly a prototype for others? Many of the countries other than China he deems political capitalist aren’t also post-communist, and very few post-communist states are particularly political capitalist. India and Indonesia provide glaring counter-examples of how a country can go from colonialism to what he calls “indigenous capitalism” without communist flirtations.

Milanovic considers two hypothetical paths for liberal democratic capitalism: “people’s capitalism” and “egalitarian capitalism.” In people’s capitalism, everyone’s incomes differ from capital and labor but checks are in place to stop a tendency for inequality to rise. In egalitarian capitalism, “everyone has approximately equal amounts of both capital and labor income.” He believes we can objectively evaluate our goals from any new system by looking at concentration of capital income and intergenerational income mobility.

Many of Milanovic’s solutions to the fragilities of the current system are promising. A higher inheritance tax could dampen the intergenerational transmission of advantages, even if not eliminating it entirely. Shifting the wealth profile of the middle class by increasing access to high-returning financial assets could level out wealth concentration. More unconvincing is his assertion that housing wealth itself—a lower-returning and highly volatile asset—should be encouraged. Additionally, exploring alternatives to nonbinary citizenship systems could achieve an ideal balance between increased migration and stronger welfare states.

But a couple of Milanovic’s solutions to the fragilities of the current system are left underdeveloped and with unclear efficacy. Mass investments in public education as a road to curbing inequality are no slam dunk: Government spending on public education in the US has dramatically increased over the last fifty years with shaky improvements in quality. Truly equalizing educational opportunities would involve decoupling funding from local property taxes and nailing down how to provide for the non-schooling aspects of education. At the very least, it is not as simple as finding the political will to turn a knob to “equality” from the spigot of spending.

In the end, Milanovic’s greatest contributions in Capitalism, Alone come from his fresh approach to the history of different capitalist countries. His taxonomy of Western countries evolving from classical, social-democratic, and now liberal-meritocratic capitalism helps us put the current state of affairs into better context and think about the ways policy can and cannot improve the system. While he is overconfident in political capitalism as a dominating force in global politics and a sustainable alternative to liberal capitalism, his analysis of the forces and magnitudes of different kinds of inequality give a more nuanced story than is often found in public discussions.

Featured image is Pin Maker, from Diderot’s Encyclopedia

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17 days ago
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The Queen is Dead

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When I shot her, she cried out, perhaps to her friends, but presumably to her maker, and I felt bad. I knew I had hit her a bit high because I had determined to shoot her as soon as she saw me, so I was aiming center mass, toward the front of her body. A mere augenblick later and I would have managed a better-placed shot. She kicked at the ground for a bit, and I agonized, deciding to reload my gun in order to deliver the coup de grace. By the time I had the expended primer out of the breech, she ceased moving and expired. I was grateful to my maker.

Once I had torn her guts out of the carcass, I examined the heart and lungs. I had missed the heart entirely, but the fifty-caliber bullet had sliced through the top of both lungs. I puzzled, and still puzzle, how she managed to cry out for a few seconds. Nevertheless, beforehand, a few minutes after she grew still I approached her and spoke to her. “Did I do you a wrong? I hope not.” And she ceased from being a doe and became venison.

A wise man asked me recently what I find most joyous; what makes me happy. I answered almost without hesitating: “I find precious joy in being in the woods, armed, ready to kill. Nothing makes me happier than having a coyote come to me, with nothing between me and him but my .44 magnum. I love to touch the primal. I love to kill.” It was, in fact, a primal moment to even say such a thing. I waited for him to respond, and he did.

“We all have a need to kill,” he said. He then related experiences he has with murderers in prison, of a particular sort (I won’t bother to pretend I know the taxonomy of murderers as a group and over against other criminals). The gist of his comments was that we are all killers; we carry a desire to kill within our bosom, but civilized people manage to channel their killing so that it does no bodily harm. When bodily harm occurs, we must incarcerate, or we as a society descend into barbarism. To go hunting, for example, under the restrictions of the state which serve to manage wildlife populations for their own good, is a civilized channel for my desire to kill. As for me, I literally kill a large game animal.

Killing a large game animal participates in profound questions, the morass of living and eating. On the day I killed my doe, I tracked several coyotes, at least two of which hid under a spruce tree only early that morning, after the dawn broke open the day. They had rushed out upon two turkeys and tore them to bits while they were still alive. One of the coyotes then left a large deposit of his own scat, in a post-breakfast relief, I suppose, and then they were off to the further reaches of the woods which lay across two plowed fields.

When they approached the edge of the woods, they spotted a small herd of deer and intercepted them, and the deer leapt across a ditch full of ice, one of them breaking through the surface of the ice and stumbling onto the farm access road, where the two coyotes thoroughly harassed the deer, leaving torn up snow and mud where their tracks created a chaotic map. Eventually the deer overcame the coyotes, and they sped away into a western woods.

Perhaps the deer were circling back to the eastern woods when I caught them unaware. There were three of them. Two ran away while their friend cried out in realization of death. Perhaps my shot was unfair; after all, they had just given those coyotes the slip, and they were mere yards from safe haven in a bed-down area, a thicket of security.

One of my closest relations suffers from a mental illness. The illness itself remains a puzzle to those who are charged with diagnosis: she does not respond well to medication, yet the illness is so debilitating that the government was easily convinced to deem her a disabled person. The illness manifests itself in times when you and I would experience joy: she experiences misery.

What is it? What about joy causes her such pain? A wise person mentioned to her that perhaps it is ice: before she was conscious of feelings, she was taught to not feel anger. Anger is bad. Anger is wrong. Anger is not to be experienced. Anger, then, is put on ice. Of course, when you put ordinary anger on ice, you put all ordinary emotions on ice with it; anger and happiness are not somehow stored in separate buckets in the emotional realm. They all dwell together in one messy human being. If you ice one, you don’t ice them all, you ice it altogether, the emotional realm, that is.

A joyous occasion: birthday? Christmas? a musical recital? Joy is evoked, but compressed rage is waiting to boil over the ice boundaries like so much lava; though it remain beneath the surface, the water boils, and the pressure of the unleashing causes fissures and upheavals, and whatever it is that lurks beneath cannot be contained, not by any strength, not even medical strength.

So she wants to kill.

As a civilized person, she will stay in the channels, but the urge to kill is heavy in her bosom, heavier than it is as it lies under some sort of control within most of us.


Lady Macbeth by George Cattermole (1850)

In the Christian realm there is a lordly indictment. Jesus says (paraphrased), “If you say to your brother, ‘you fool!’ you have committed murder, and you are liable to the hell of fire.” All the saints themselves stand under condemnation by this epithet, guilty as hell and going to Hell for murder, murder, murder; murder many times over. And so it is, the saints repent, and they go about the business of expunging murder from their hearts and lips. But then Job’s wife founded Twitter.

I called a friend of mine a tool on that website, back in 2016, the petulant ass. He deserved it; oh, he deserved it so richly, the arrogant, idiotic, mindless, smug, pretentious, ignorant fool, and I was only too glad to bury the knife in his chest. It was a sin; I was ashamed; I removed myself from Twitter; nevertheless, I had murdered him. Just like that, in a slight fit of my own petulance, and in the heat of the moment, with the number of keystrokes not amounting to enough to measure the time it took, I murdered him. A handful of people chuckled, but I assure you, the angels were horrified at my deed.

What, exactly, are we to do with all this unexpunged sin? Even if there is no such thing as sin (surely the wise are correct to note that murder lurks in at least my heart, and I cannot believe I am extraordinary in that way), do we merely toss the carcass aside and go on guard for vengeance? The return shot may come soon; it may come later. Who prevails in this free-for-all neverending murder spree? We walk around scarred for life, gnashing our teeth, in Hell, thinking–nay, imagining–that we will find the way out of Hell if we could only just kill enough of our enemies.

And what do those do, those who know not to kill–what do they do to alleviate the innate desire and the attendant power to kill?

There are some choices over misery. If you cannot bring yourself to kill and be killed, you can turn the gun on yourself. Many people nowadays have ice so thick upon their hearts they find this the only escape from Hell.

There is another figure to kill, however; where all the killing comes to an end, and the outcry goes up into the dark nether.

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30 days ago
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Reclaiming Constitutional Thinking: William Selinger’s Parliamentarism

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There have only been five presidential elections in the history of the United States in which the winner of the electoral college did not win the popular vote. Two of the five, the only ones which did not occur in the 19th century, were the most recent Republican presidents; one, George W. Bush, under infamously contentious conditions, and the other, our current president, who received some 4.3 million fewer total votes than his opponent. As a result, the electoral college has entered the ranks of topics on which party affiliation predictions position, with Democrats favoring its abolition and the Republicans defending its provenance.

We Americans would do well to get a little perspective from history and from outside our own context. William Selinger’s fascinating book, Parliamentarism: From Burke to Weber is a great place to start. It is a book which makes it difficult to take seriously those “traditionalists” who cite Edmund Burke or speak of political artifacts such as the electoral college as though they are sacrosanct. The salient facts of the English constitution in Burke’s day were quite recent developments and still in play. He was an important player himself, both through his decades-long career in the House of Commons, and as a titan of parliamentary theory who would set the terms of debate for a generation. Here in America, the founding fathers were very much kindred spirits. Their institutional experimentation was far more radical, but it did not begin or end with the document signed in 1789. To act as though honoring these figures requires freezing the institutions they left us in place is ignorant at best. Were they alive today, they might not want to abolish the electoral college, but they would without a doubt be monkeying around with our institutions.

Which is not to say that the best course is simply to abolish the electoral college and leave it at that. The final chapter of Selinger’s book discusses how the parliamentary theorists were swept aside by the tide of mass democracy at the turn of the 20th century. The democratic theorists that replaced them are big on thought experiments and thinking through the moral grounding of true democracy, but not big on institutional or procedural details. 

Say we did abolish the electoral college, what then? We would still have a powerful executive with a wide popular base (indeed, even more so in this scenario). Is that truly where we ought to leave things? John Stuart Mill and the other Victorian parliamentarians saw that the problem with America’s Presidency was not in the electoral college system but in the weakness of Congress, when compared to the supremacy of the House of Commons. Mill’s commentary is more relevant today than ever:

[T]here ought not to be any possibility of that deadlock in politics, which would ensure on a quarrel breaking out between a president and an assembly, neither of whom, during an interval which might amount to years, would have any legal means of ridding itself of the other.

The English constitution avoided this by making the King’s ministers accountable to the House of Commons, and by giving the executive the power to call new elections. Mill emphasized this as well, but the theorist who first made it central to parliamentarism was Germaine de Staël, center of the Coppet Circle of intellectuals in Switzerland during the French Revolution. Looming large in the mind of theorists of this period was the failure of France’s Constitution of 1791, which fell apart after repeated use of the royal veto led to an outbreak of violence and, ultimately, the Reign of Terror. De Staël suggested an institutional arrangement in which the executive (a committee rather than a monarch in this case) was constitutionally subordinate to the legislature, but had the ability to call a new election—a tactic that would only work if popular opinion favored them over the current legislators.

De Staël argued not only that the executive committee’s ministers should resign when opposed by the legislature but that in such a circumstance, the committee itself should resign as well. This would ensure that “there never arrives something which cannot reasonably exist: a supreme authority executing a decision it reproves.” The executive’s other option was to dissolve the legislature and call an election. “In a free government,” according to de Staël, “public opinion in all its force can alone force one of the powers to cede to the other, if by misfortune they differ.” By dissolving the legislature, the executive committee was gambling that public opinion was on their side. If a legislature friendlier to their position was elected, they could stay in office—but should the electorate return a legislature still at odds with them, they would have no choice but to resign.

Like the other parliamentarians examined in the book, de Staël thinks carefully about how to offer each side a mechanism, with teeth, that nevertheless won’t threaten to throw the entire enterprise off balance. In this case, the executive is subordinated, but can fight back largely by holding parliament accountable to public opinion. For other thinkers, such as Benjamin Constant, a monarch who “rules but does not govern” subverts unhealthy status competitions by occupying a position at the top which no one else can reach, channeling ambition into the healthier competition for ministry positions. In each case, the thinker carefully mapped out the faultlines of the system as a whole and sought to address each in ways that did not put pressure on the others.

In our own country, we are afforded only rare opportunities to amend our written Constitution. Should we liberals find ourselves with such an opportunity and choose to abolish the electoral college, thinking it will change much of substance, it would be a tremendous waste and certain disappointment. We could do worse than turning to Selinger’s book to observe, without the baggage of our own history, numerous examples of how to think seriously about a political system as a whole, and how best to improve it.

Featured image is The Trial of Warren Hastings, 1788

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36 days ago
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