Richard Dawkins’ Selfish Gene was a revelation to me in high school, at least to the degree I could understand it. I re-read it every few years, and so when the 30th Anniversary Edition dropped* I was particularly excited, the added sections and footnotes serving something like hidden bonus tracks. When I got to the short section where Dawkins first suggests the existence of “memes,” the cultural (or social) equivalent of genes–indivisible units of learnable cultural information, I recalled for the first time really disagreeing with it when I first read the book. It was almost viscerally unpleasant. The short excursus on memetics is dissonant from the rest of the book, which while packed with thought experiments and analogies is actually pretty stolidly scientific and meticulous.

A week or so ago a Twerkuffle** broke out between various political writers and journalists on my Twitter timeline. The details of it aren’t important; the relevant portion is that the word “privilege,” as in “racial privilege,” was used a number of times, and I had a reaction similar to that I had when first encountering “memetics”. This got me thinking about what the two concepts–”meme” and “privilege”–have in common and why they strike a resonant tone with each other in my mind.

Social scientists, and the journalists/essayists (I’m just going to call these people “writers” from now on) who synthesize social science for public debate, have always had trouble with this kind of thing. From the Enlightenment until probably around Marx’ time, political philosophers and other intellectuals had a sort of tic where they would reify concepts to explain observable behavior or historical conditions–you know the tic I’m talking about; it was usually expressed by Capitalizing the first letter to make it seem Big and Important and deserving of a Proper Noun. This is actually a kind of logical fallacy, and it makes reading a lot of the early modern philosophers so grating. I don’t believe in an Over-Soul that can actually act on the natural world. It’s like when you meet someone who says they don’t believe in a god but they do believe in an “energy” that we’re all a part of. That’s nice, but it’s also either meaningless or just employing a synonym for god.

Dawkins raises and moves on from the idea of memes in just a handful of sentences, but the “work” on them has been plentiful, and the concept has certainly entered popular consciousness. What bothers me is when they are treated as actual, concrete entities that can be studied somewhat quantitatively, but they haven’t been properly defined. Remember that in The Selfish Gene Dawkins was advocating for the “gene-centered” view of evolution by natural selection. A debate then raging (and still on-going) in evolutionary biology was at what “level” natural selection operated: are “traits” selected? Individual organisms? Groups? Entire species? Dawkins and his fellow travelers were arguing that in fact natural selection is unconcerned with anything of a “higher” level than genes–he famously said that bodies are nothing more than machines meant to ferry genes around. Evolution is the process of differential survival of competing alleles in a genome.

Memes were thus meant to be the analog of genes in the social sciences (and in evolutionary psychology). But genes are observable things. The bey2 gene on chromosome 15 in the human genome and partially controls eye color. Is the Levallois method of stone tool creation observable in the same way? It would be theoretically possible to catalog the genomes of a given population and observe them for generations and come up with an exact number to quantify the “fitness” of a given allele–but could you really do that for “I can haz cheezburger”? Because we know so much about genes, we can pinpoint with pretty good accuracy how and why they act like they do–how and why they successfully reproduce or fail to reproduce. One Galapagos island had harder seeds so the gene that shortened and hardened beaks grew in frequency. What force is “acting on” memes? Memes are an interesting thought experiment with some explanatory value, but they shouldn’t go further than that. I’m not saying in other words that memes are worthless or that to have value they must exist in some physical way, just that when you try to enlarge them from analogy or metaphor to a natural agent that drives behavior, you raise a lot of questions that need to be answered.

“Privilege” is not as clear of a case, but it raises the same sense of caution from me. In the contemporary era, sociologists and moral and political philosophers have developed the idea of “privilege” that undergirds much of the intellectual and popular understanding of society. What is privilege exactly? Does it operate in a uniform way in everyone who has it? And if not, how much explanatory power does it really have? If it is wholly subjective, what can we ever really say about it–how can we ever use it to understand and predict behaviors?

I’m not trying to be glib, because I’m fairly sure there is something privilege-y that operates in society, just like I’m sure that there’s something to the concept of memes.

Privilege then can’t just be a state of mind, an epistemological phenomenon that affects how the mind receives and processes information–a set of doxastic attitudes that are difficult, if not impossible, to communicate. It must be a quantifiable force. Otherwise, what true analytical power does it have? The analogy to memes isn’t tortured. Consider this. In Forbes Magazine, Gene Marks wrote an appalling article about what he would do if he were a “poor black kid.”

The reaction was rightfully one of outrage. Marks’ article was so tone deaf to the realities of life for “poor black
kids” that the internet scrambled for some explanation for just how a professional journalist could write something so stupid. A quick recap of Marks’ article:

If I was a poor black kid I would first and most importantly work to make sure I got the best grades possible. I would make it my #1 priority to be able to read sufficiently. I wouldn’t care if I was a student at the worst public middle school in the worst inner city…I would use the technology available to me as a student…If I was a poor black kid I’d use the free technology available to help me study. I’d become expert at Google Scholar. I’d visit study sites…I would also, when possible, get my books for free at Project Gutenberg…I would use homework tools like Backpack…I would use Skype to study with other students who also want to do well in my school. I would take advantage of study websites…

The responses to Marks routinely cited his white privilege, which blinded him to the realities of being poor and black, and couched his counter-factual coaching in terms that would be comforting for those operating with white privilege. This seems right to me. But this is an extreme case. It is not hard to imagine a not-dissimilar article being written by a black conservative of the Clarence Thomas school, or even Bill Cosby. If that had been the case, could privilege still have been to blame?

In fact, Michael Eric Dyson wrote a book about Dr. Cosby’s comments about poor black communities that focused on the privilege of the black middle class that made Cosby insensitive (or blind to) the mechanics of black poverty. The debate is a fascinating and multifaceted one. Many black intellectuals, for example Glen Ford of the Black Agenda Report, regularly attack “black elites,” including the President, who operate within a privilege bubble.

I’m not interested here in the merits of the different sides of this debate–just pointing out that though privilege is often cited as a factor in people’s political understanding and motivation, its contours are not easy to understand. In 2008, Tim Wise wrote a popular piece explaining white privilege via analogy; at the same time Glen Ford and his allies were excoriating then-candidate Obama for “assur[ing] oppressors in America and throughout the world that he can be trusted to protect their preferential, unearned privileges,” and that “if some stray white man in a clerical collar wanders in, assaulting white sensibilities with denunciations of white skin privilege and other unwelcome language, Obama can be counted on to slap the wayward priest down, forthwith.”

Those of us who remember the immensely frustrating debate between supporters of Senators Clinton and Obama during the drawn-out 2008 primary have myriad examples of the term being deployed as an attack. Most memorably, Gloria Steinem wrote an article pointing out that black males got the vote three generations before any women did:

Black men were given the vote a half-century before women of any race were allowed to mark a ballot, and generally have ascended to positions of power, from the military to the boardroom, before any women (with the possible exception of obedient family members in the latter). If the lawyer described above had been just as charismatic but named, say, Achola Obama instead of Barack Obama, her goose would have been cooked long ago. Indeed, neither she nor Hillary Clinton could have used Mr. Obama’s public style — or Bill Clinton’s either — without being considered too emotional by Washington pundits. So why is the sex barrier not taken as seriously as the racial one?

Die-hard Hillary partisans will still contend that Obama benefited enormously from male privilege, which, it must thus be inferred, is “stronger” than white privilege. Is it? What social relations, or institutions, would make this so? Indeed, Tim Wise, self-same author of the “white privilege” essay cited above, angrily countered Steinem:

In fact, here’s the biggest irony of all: what Clinton’s acolytes ignore is that had her final opponent this year been a white man, she would likely have received fewer votes from white men than she has received against Obama. Meaning that, if anything, Clinton has benefited more from white racism in her quest for the nomination than she was ever harmed by male chauvinism and misogyny. Indeed, racism–the force that Steinem and other white second-wave feminists insisted would be less of a problem for Obama than “sociopathic woman-hating” would be for Clinton (to quote feminist icon Robin Morgan)–almost did make the difference in the primaries. Although that racism has been unable thus far to derail Obama’s success, it has indisputably been a more potent force in terms of dictating voting behavior among whites, than sexism has been for determining the votes of men.

Is it truly “indisputable” as Wise says?

Privilege certainly operates, but its imprecision as a term threatens its utility. We need to ask critical questions about privilege to better identify its characteristics–insofar as it operates, we need to know how. When does it manifest? Can it be overcome? Are there countervailing behaviors that mitigate its operation? Can countervailing privileges operate in the same person, or group? Is recognizing one’s privilege sufficient to ameliorate it? Is one type of privilege more prevalent than another, and if so, why? And how? Do types of privilege operate differently in different social relations? Is privilege a historical phenomenon–the cumulative result of ideas conditioning behaviors–or is it something intrinsic to human social organization?

It would be disingenuous to demand some kind of scientific quantifiablility for identity privilege, but so too would it be disingenuous to claim it has a supreme place of efficacy in our social relations and then insisting it is purely subjective. So long as that is the case, discussions and debates about it will be essentially unintelligible.

The result is what we too often see: privilege used as a cudgel in internecine debates by liberals and leftists, and cynical accusations of “playing the race/gender card” by the right. Insisting that privilege be treated seriously in our civic discourse (as opposed to in the social sciences, where it is seriously investigated but not accessible to the public) is righteous; but we have to in turn treat it seriously as an object of intellectual investigation, and be willing to be coldly critical when the debate turns itself over to competing “narratives” as opposed to factual and rational analysis.

*Dawkins’ word, not mine
**Dawkins’ word, not mine

“You’re just a dog. I’m a person. Don’t ever forget the discrepancy in our capacity for autonomous decision making.”

“All you care about is dog things. The world is a very wide place. Broaden your horizons.”

“For example, look at how preoccupied you are with that piece of rope. Consider how much work has gone into producing the vast catalog of human literature.”

“By chewing the fastenings on this papasan, you’re just compromising the structural integrity of your own favorite place to sleep. You must begin to contemplate the self-defeating character of this activity and desist.”

“Decide, once and for all, whether you are a dog, or a baby, or a dog-baby or a baby-dog. Your waffling on this matter will only cause you consternation.”

“Possessions are fleeting.”

People are influenced every day in ways we can’t really countenance. Our minds take in data and format themselves to incorporate that information in a way we’re mostly blind to. Yet most people, particularly writers and artists, are fond of listing their influences. In my undoubtedly cynical view, lists of influences are more wishful thinking than faithful reporting. They aren’t necessarily our influences as much as the component parts of the image we have of ourselves. Be that as it may.

Your short book, Letters to a Young Contrarian, was seminal in my personal and intellectual development–or pursuant to the above, is an important element of the way I’d like to see myself–but it wasn’t the first thing I read by you. That’s because I, like you, consider my greatest influence to be George Orwell. Like millions of American students, I read 1984 as a high school freshman and Animal Farm as a sophomore. I actually didn’t like 1984 when I first read it, but mostly because I intensely disliked the foreword, by Erich Fromm, that we were compelled to read and “respond” to. Re-reading it, I can’t remember what it was I found objectionable about Fromm’s deeply political elaboration of the themes of the book. But I loved Animal Farm, which I had actually first read earlier but didn’t retain. After Animal Farm, I rented every Orwell book from the local library and imbibed every word with religious relish.

It was your book Why Orwell Matters (and yes, I’m certain somebody started writing a book called Why Hitchens Matters as soon as your diagnosis was announced) that set off the same interest in your body of work. The pattern of good-way-Orwellian skepticism and material analysis was there, though his humanity (you could never have written Keep the Aspidistra Flying) was displaced or subsumed by a strong lacing of angry Oxbridgean wit.

In your iconoclastic works on Mother Teresa, Kissinger, and Clinton, I found a brave and unforgiving morality, and unabashed pride in Enlightenment ideals and dialectic method. Much of your collection Essays on Love, Poverty, and War, perhaps even more than your Letters, provide a sterling example of contrarian journalism and writing; and even more than Why Orwell Matters, stand as a testament to his legacy.

But Letters to a Young Contrarian is so sturdily assembled, so steady in its reasoning, generous without a strand of unnecessary compromise. I could quote entire pages without need of ellipsis. It was your citation of Orwell’s masterful essay Through a Glass Rosily as a “favorite text” that girded you for moments of conflict that won me over completely. Through a Glass Rosily should be required reading for America’s chattering political class, that is more concerned with narrative than even the most insular novelist. Orwell’s 70-year-old-words are distressingly relevant:

Whenever A and B are in opposition to one another, anyone who attacks or criticises A is accused of aiding and abetting B. And it is often true, objectively and on short-term analysis, that he is making things easier for B. Therefore, say the supporters of A, shut up and don’t criticise: or at least criticise “constructively,” which in practice always means favorably. And from this it is only a short step to arguing that the suppression and distortion of known facts is the highest duty of a journalist.

For the first few years of my life as a political writer, I was the worst kind of partisan, feeling my way towards a voice and worldview. Taking my cue from the partisan media that had pervaded traditional journalism, I mistook an ability to cobble together helpful facts and “reinterpretations” as marks of a good thinker, ignoring the “unseen witness” in my mind that disapproved of so much of what “my side” was doing and saying. Your reprimand helped set me straight and set that witness free:

“The catalytic or Promethean moment only occurs when one individual is prepared to cease being the passive listener to such a voice [of conscience] and to become instead its spokesman.”

Say what you believe and report what you see, not what you’d like to be so, or what may help your side. No argument is more devastating than one where you don’t bother inventing anything, or reinterpreting anything, or rationalizing anything, but use bare fact and even assume your opponents’ stated intentions are true. In law this standard is used in summary judgment motions, and nothing is more dispiriting for your opponent that to hear, “Even if I accept everything you say is true, you are still wrong.” Summary judgment is one of those particularly strong-sounding Anglo-Saxon terms that Orwell would have liked, if he had any patience for the law.

In the era where “savvy” is valued by a consolidated, insider-obsessed press corps (a disease you were not free of, frankly) and truth and opposition are considered at best gauche and at worst loony, the contrarian has fallen on hard times. Of course the contrarian is always going to be outside of the system; by hard times I mean that among the nation’s young intellectuals, writers, journalists, and activists, contrarianism’s traditional recruitment ground, opposition has been eye-rolled out of the way in favor of accommodation and loyalty and “organizational discipline.” The sight of so many devoted and brilliant young people so eager to show their ability to play nice with important people is sad, both in the sense of dolor and in the sense polite people employ it to mean pathetic.

As I feared, the election of an intellectual, youngish President who “gets it” has accelerated this problem. In my brief experience as an organizer, activist, writer, and bit of a radical myself, I have never met invective and self-delusion like that found among the President’s loyalist supporters. I made a feeble attempt to convince my fellow travelers that in fact now was the perfect time to be contrary on inauguration day in A Case for Contrarians. Re-reading it now, I find President-Elect Obama’s words about executive power particularly disheartening:

As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience’s sake.

Having made this statement, how can anybody not looking “Through a Glass, Rosily” come to the conclusion that the President is either a weakling wholly under the influence of malign forces in defense and security, or a cynical hypocrite willing to appeal to our greatest ideals with no intention of following through? He’d surely reject that as a false choice, but if there is a third option he has not articulated it.

The time is ripe for your exhortations to be heeded. If ever your examples of iconlocast were needed, they are needed now. Your fearlessness in the face of a fight–your Kissinger lawsuit comes to mind–all young writers should strive to emulate–or at least, list as an influence.

Your heady Trotskyist days were before my time, and I was a child and teenager in your Marxist critic heyday, so unfortunately by the time I was old enough, and well-read enough, to begin consuming your contemporary work as an essayist, it was at just the wrong time. But not because of your support for the war in Iraq.

You and I share a source of shame. I like you, supported the invasion. But not because I believed for a minute anything the Bush administration was saying, either as to weapons of mass destruction or a connection to al-Qaeda. I like to think being the child of a victim of Iraqi Baathist secret police is a good enough justification, but it isn’t. I knew, from the years of listening to people from the country, that there was no chance Saddam Hussein was harboring al-Qaeda, or any Islamist terrorist network, voluntarily. This makes my support of the war worse than had I had no familiarity with the country. A lifetime of stories of the horrors of the Baathist regime were my sole rationale. Saddam was evil and had to go. I didn’t anticipate the craven incompetence and greediness with which the war would be conducted–but that is a failure of judgment, too.

I was barely 22 years old and wholly inconsequential when that war started. Frankly, I found it liberating, not shameful, to admit my mistake. It wasn’t something I couldn’t have avoided, it wasn’t youthful indiscretion–plenty of people situated similarly to me came out on the right side. I have no excuse but my own personal failure. So perhaps the best influence you had on me was your negative example.

I can excuse your anti-obituary of your once-friend Edward Said as gauche, and your support of the increasingly dictatorial Kurdish Regional Government as lazy myopia; I can even write off your asinine essay about women not being as funny as men as the embarrassing words of an aging, sad former playboy wandering into territory he doesn’t understand. After all, I don’t expect you anticipated a hagiography after your death. You did people you wrote about the courtesy of treating them as flawed human beings, not symbolic abstractions.

But your stubborn cleaving to the War on Terror generally and the Iraq War specifically is not really excusable. The lazy accusations of “Islamophobia” against you belie the real problem, an eager willingness to embrace the “War” on Terror as a vehicle for your legitimate loathing of superstition, backwardness, and authoritarianism of theocratic and quasi-theocratic states. I think you saw in the milquetoast left’s eagerness to defend fundamentalist Islam as a “reasonable” reaction to Western imperialist practice your Orwell-on-Sovietism moment. I think in your own mind you were finally given the opportunity to be as brave as Orwell, to beatify yourself.

But you’re no Orwell, and you chose the wrong moment. There is no heat-of-the-moment, forest-for-trees rationale that can ever justify why you wrote this:

When you meet a battlefield officer in Iraq as often as not, you are dealing with someone who cut his or her teeth in political-humanitarian rescue in Bosnia, Haiti, Kosovo or Afghanistan. Their operational skills are reconstruction, liaison with civilian forces, the cultivation of intelligence and the study of religion and ethnicity. Intelligence officers told me even then that they were getting more raw information than they could sift or process, and were being scrupulous in screening out tips that might involve grudges or revenge. This is, in every sense, a smart army.

Had you put down your own rose-colored glasses, you could have seen the situation there for what it was. Only contrition could have redeemed you, and while you bent slightly that way in admitting the war was not prosecuted perfectly, you refused to break, and now you’re gone and will never have that opportunity. Evaluation of legacies are best left to generations down the line. What we know now is that the good you could have done as the indefatigable and stilleto voice for contrarianism in a time of creeping authoritarian denial of truth you sacrificed not to some ideology or even sycophancy to power, but something maybe worse: to your fanciful image of yourself and your posterity.

To be more like your influence. I won’t insult irony by spelling it out and just let it stand there.

Thanks for writing,
Ramsin

More than two dozen schools in some of the city’s most prominent and largest charter networks, including the United Neighborhood Organization (UNO), Chicago International Charter Schools, University of Chicago and LEARN, scored well short of district averages on key standardized tests.

In two of the city’s oldest charter networks, Perspectives and Aspira, only one school — Perspectives’ IIT Math & Science Academy — surpassed CPS’ average on the Illinois Standards Achievement Test, taken by elementary schoolers, or the Prairie State Achievement Examination, used in high schools.

Next, Emanuel’s choice to spearhead his school-turnaround effort brought the word “cronyism” into coverage of his administration, always a quick way to convince Chicagoans the new boss is the same as the old boss. This week the Emanuel administration announced a turbocharged CompStat program for the public schools and the expansion of the privately run Academy for Urban School Leadership (AUSL) program, handing them six more schools to turn around. AUSL has a mixed to poor record with school turnarounds, and is connected to the Mayor through a number of campaign and policy staffers and his choice to head the Board of Education, David Vitale, raising questions of the propriety of the choice. Interestingly given the mantra of privatization advocates that public school supporters use poverty as an excuse, AUSL head Martin Koldyke defended their record by blaming kids for being slow to catch on.

Emanuel was reportedly testy when asked if there was a conflict of interest in his choice of AUSL given his political connections to them. Asked directly if there was a conflict of interest, the Mayor answered a wholly different question:

It is not a conflict to give kids a good education. It’s the responsibility I have as mayor.

Whether there was a conflict or not, this controversy, if it is that, lays bare one of the problems inherent to privatization of public trusts, namely, the ease with which, at worst, actual conflicts arise, and at best, the appearance of conflicts arise. Mayor Emanuel’s political connections to AUSL leadership are undeniable; whether they motivated in whole or in part his decision to hand them more business isn’t as germane as the ease with which he is able to hand them business, the lack of meaningful checks to that ability, and the absence of transparency in the decision. It is worth nothing that another major charter operator, United Neighborhoods Organization-Charter School Network (UNO-CSN), is headed by a co-chair of Emanuel’s Mayoral election campaign, Juan Rangel. From the outside looking in, the lesson is obvious: if you want to build a successful school operator, at the very least it helps to have strong political connections.

Now that the privatization train has started rolling, it will be more and more difficult to stop, and the Mayor’s ideological dedication to the principles underlying certainly grease those tracks. It is unfortunate that the years-old warnings that charters were unproven went unheeded. We now are looking at a class of powerful and connected rent-seekers with intense financial and professional incentives to preserve the system. If it bears out that charter schools offer not meaningful advantage over public schools, we have solved no problems while likely creating a whole new class of them.

The ASES would not apply to Lake Shore Drive, but it would apply to almost the entire city. Some interesting things about the bill:

First, the way it defines an “automated speed enforcement system.” That is as, “a photographic device, radar device, laser device, or other electrical or mechanical device or devices installed or utilized in a safety zone and designed to record the speed of a vehicle and obtain a clear photograph or other recorded image of the vehicle and the vehicle’s registration plate.”

Which brings us pretty seamlessly to “secondly.” Secondly, the bill defines a safety zone as any “area” that is within 1/8th of a mile (or a city block) from the property line of any public or private school or school-owned facility except central administrative buildings, and any park district owned property, except, again, for central administrative buildings. As you can imagine (see schools map below) that makes up a huge amount of the city–because the cut off isn’t just a block. The bill also provides, “However, if any portion of a roadway is within either one-eighth mile radius, the safety zone also shall include the roadway extended to the furthest portion of the next furthest intersection.” In other words, if a road falls within the a block of the property line of a school district or park district property, then the “safety zone” is extended to the next intersection, and through it.

Take a look at this map:

These are just the elementary schools.

The other thing is, the Automated Speed Enforcement Systems are not limited to photographic images. They include by implication video cameras: “‘Recorded image’ means images recorded by an automated speed enforcement system on: (1) 2 or more photographs; (2) 2 or more microphotographs; (3) 2 or more electronic images; or (4) a video recording showing the motor vehicle and, on at least one image or portion of the recording, clearly identifying the registration plate number of the motor vehicle.”

Take another look at that elementary school map, throw in the parks and high schools (and facilities owned by the parks department and high schools), and what you’ve got is a law that allows the City of Chicago to mount video cameras watching practically every inch of the city all the time–not even counting the vast network of police-linked cameras that can track cellphone calls:

“We can now immediately take a look at the crime scene if the 911 caller is in a location within 150 feet of one of our surveillance cameras, even before the first responders arrive,” Mr. Orozco said. (via the Chicago News Cooperative.)

Supporters of the ASES may respond that the legislation limits the “operation” of these cameras to a specific time frame around the opening and closing of schools and parks. However, the legislation isn’t particularly specific about this; it could be liberally construed to mean that it can only operate in the sense that it can only operate for the purpose of recording violations at these times–the key language below being “operational and violations be recorded…”:

(a-5) The automated speed enforcement system shall be operational and violations shall be recorded only at the following times: (i) [....] on school days no earlier than 6 a.m. and no later than 10 p.m.; and (ii) [....] no earlier than one hour prior to the time that the facility, area, or land is open to the public or other patrons, and no later than one hour after the facility, area, or land is closed to the public or other patrons.

In any case, for schools that would entail 16 hours of the day, and for many parks as many as 18. If the statute is construed narrowly.

Nor does the statute expressly prohibit any ASES from recording anything other than a license plate, although it says that the cameras must be “designed to” capture license plates–that it was designed to do that does not mean it cannot do other things, broadly speaking. (Of course, it will be initially cost prohibitive to install more capable cameras.) Thankfully, the statute does prohibit dissemination of images except for the purposes of enforcing civil fines. There is no requirement that images or video be destroyed.

What’s distressing is not what the ASES will probably look like initially; it is what this statute, with no need to really amend it, could permit in the near future.

The ACLU has referred to the city’s current, vast 10,000+ camera, networked surveillance system as a “pervasive and unregulated threat to our privacy,” in a report that also quoted former Department of Homeland Security head Michael Chertoff as saying, “I don’t think there is another city in the U.S. that has an extensive and integrated camera network as Chicago has.”

Some fun facts about what capacities those cameras currently have:

• The cameras have a “pan-tilt-zoom” capacity, meaning operators can increase substantially the size of the captured images.

• The cameras have a “facial recognition” capacity, meaning a computer can automatically search for a particular person’s face.

• The cameras have an “automatic tracking” capacity, meaning a computer can automatically track a person or vehicle moving along the public way, jumping from one camera to the next.

As the city responds to the Occupy movement and prepares to host the G8 and NATO next year, do you think it is (a) more likely or (b) less likely that the city, state, and federal government (which helped finance the current system) will be expending the money necessary to expand this network to its broadest statutorily permitted limits?

As the ACLU report points out, the money spent on the existing surveillance network could have been spent to fund 1,000 more cops on the street, and has led to only 1% of the total arrests in the period of its operation.

It may well be that such a vast network of cameras enforcing red light and speeding infractions will free up police reports dedicated elsewhere. In my experience, pulling people over for speeding or rolling through stale yellow lights is not a high CPD priority as it is; and even if it were a huge time suck, it needs to be measured against the significant loss of privacy that Chicago residents face.

This last point is salient. Consider this from the ACLU report:

[T]he City of Chicago repeatedly has claimed that its camera network effectively deters all manner of crimes. However, when the ACLU pursuant to FOIA probed the City’s effectiveness assertions, the City was unable to locate any records that supported its specific public assertions of camera effectiveness. Thus, it is impossible to evaluate whether the City’s…assertions are statistically sound…and whether the cameras merely displaced crime to adjacent areas.

That last sentence reminded me of when I was working as an organizer on the city’s West Side. The local residents loathed a recently-installed corner camera (a so-called “cop in a box”) because while it initially scattered the open-air drug market near Augusta Avenue and Cicero, the dealers regrouped in the two-block area between August and Chicago Ave., pushing rival gang sets closer together.

As with most things, there is not a conspiracy here. What we’re looking at is a revenue-generating measure clothed in For The Children PR speak. But like the Panda’s Thumb, the granting of power to the state for one purpose can often mutate to be used for other unintended ones.

Technology changes, and democracy must must adapt. But the effortlessness with which governments–not just the federal government, but our own city and state–are eliminating the right to privacy and anonymity, and empowering themselves both legally and practically to watch the citizenry the instant they emerge from their homes is troubling. That these changes are made so quickly, and the media so eagerly accept them as necessary to “fight the terrorists” or “protect the children” means precisely that democracy is not adapting. That the state is incorporating technology into its apparatuses of power and the public and the public’s watchdogs are doing nothing to realign power and legal regimes to recognize that fact.

They want it back so badly you guys. So badly. Remember the good old days? Where activists and intellectuals put aside their skepticism and principles and threw their cash and energy at the establishment, and we all watched will.i.am videos and cried and stuff? It must be that the extent to which the left is dissatisfied with the President (and Democrats generally) is calibrated precisely to the degree that those activist and thinkers are intellectually dishonest, naive, or, my favorite, “emo.”

But this rationalization that dissatisfaction is due to anything besides the facts that President Obama is killing U.S. citizens without due process, uninterested in prosecuting corporate criminals while exporting record numbers of immigrants, bringing Wall Street functionaries into his cabinet, and privatizing public schools is getting confusing.

If my tone seems dismissive, I don’t intend it that way. The impulses are rational. It’s also something of a forest/trees problem. When you spend all day around people who are there in the Committee meetings and halls of power tearing their hair out dealing with obstreperous opponents, casual denunciations of the President and Democrats in general can seem ill-informed or naifish. But take a breath and look at the big picture: either Democrats don’t actually want to pursue fundamental reform of our economy and society, or they do but are so wildly inept at it they can’t communicate it to a public that they insist “really” wants the same thing. In either case, they aren’t worthy of the support (and money) of activists.

The latest bit of this comes from a New Yorker article by Jonathan Chait. Chait is an apologist for the President, though he would consider himself merely a realist in the face of unhinged or intellectually dishonest critics. Chait argues that lefty dissatisfaction with the President comes from…well, I’m not wholly sure exactly what he means. Here’s his thesis statement:

Liberals are dissatisfied with Obama because liberals, on the whole, are incapable of feeling satisfied with a Democratic president. They can be happy with the idea of a Democratic president—indeed, dancing-in-the-streets delirious—but not with the real thing. The various theories of disconsolate liberals all suffer from a failure to compare Obama with any plausible baseline. Instead they compare Obama with an imaginary president—either an imaginary Obama or a fantasy version of a past president.

Maybe. There is an alternate way to characterize this, of course. Firstly, it isn’t just dissatisfaction of the President as the executive of government. It is dissatisfaction with him as symbolic and practical leader of the Democratic Party. That’s important, because Chait and others who argue in the same vein like to point out that many of his failures are attributable to the Senate, which was (and is) controlled by his Party. Secondly, the “plausible baseline” the left compares him to maybe isn’t necessarily a once-living breathing person (like FDR), but principles, like, “Don’t kill American citizens without due process.” Or, “prosecute the corporate criminals who destabilized the world economy, got rich doing it, and then started to fund your political opponents.” Or, “forcefully support the right to collectively bargain as a means to end income inequality.” I don’t want Obama to be like Roosevelt, because Roosevelt is a rotting corpse in the ground. I don’t want him to be like President Martin Sheen from whats-it-show, because although I never saw it, I assume he was as annoying as President Michael Douglas from that movie. I don’t want him to be like Harry S Truman because although I have no evidence, I assume Harry Truman used the n-word a lot.

I want “him,” meaning I want the Democratic Party, to at the very least try to do these things and articulate them to the public. Chait responds to this by saying that these things aren’t politically possible. Well, if that is so, it is so because (a) our political leaders are unable to make the case to a public to support policies that would benefit them, despite raising enormous sums of money and with unprecedented activist excitement behind them; or (b) they don’t really want to, because they don’t want to risk being able to raise enormous sums of money particularly from extremely powerful industries.

If it’s (a), why should we support them? Because maybe we’ll get lucky and they’ll stop being inept? If it’s (b), well that’s precisely why we should criticize them: to get them to stop that behavior and change.

It’s true, as Chait points out, that the left has always hated its liberal Presidents. Leftists criticized Roosevelt for not going far enough. Of course, in the 1930s, “not going far enough” was “not coming just short of abolishing private management of capital,” whereas today it is “not privatizing the social safety net and education.” The sort-of parlor trick Chait is engaging in here is that he asks, “Well, who was an ideal President?” Waits for you to name one, and then says, “Well, liberals hated him, too.”

I really don’t care if liberals hated John Kennedy for cutting taxes on the rich. That has literally nothing to do with President Obama’s taking on health care reform instead of a jobs program first, and then starting out that reform process by initially jettisoning the public option. It has nothing to do with growing the security state, it has nothing to do with deporting record numbers of immigrants, it has nothing to do with those principles. I bet Harry S. Truman would have opposed same sex marriage, for example, because he was born in the 1800s. So I don’t really care to use another past President as a baseline for anything.

When you lose the historical baseline and use a policy or principled one, the response comes that those policies are politically impossible given GOP opposition. But that speaks to the Democrats’ ineptitude, and is also Panglossian: the only thing that was possible to do was precisely what was done, so exactly what the President did was perfectly right. Or rather left. So get over it and get in line.

The implication there of course is that we shouldn’t criticize the President for not pursuing in some way or another policies we the public want. Which…is that a democracy any more? Isn’t that the whole point? Is the idea that the Party leadership knows what we want, but then divine precisely what the public (or at least, Republicans) will accept, and then come out and say that’s what they want?

If you think I, rather than Chait, am the one ignoring reality, consider the examples he gives of Roosevelt’s apparently Obama-like situation:

Liberals frustrated with Obama’s failure to assail Wall Street have quoted FDR’s 1936 speech denouncing “economic royalists,” but that represented just a brief period of Roosevelt’s presidency. Mostly he tried to placate business. When he refused to empower a government panel charged with enforcing labor rights, a liberal senator complained, “The New Deal is being strangled in the house of its friends.” Roosevelt constantly feared his work-relief programs would create a permanent class of dependents, so he made them stingy. He kept the least able workers out of federal programs, and thus “placed them at the mercy of state governments, badly equipped to handle them and often indifferent to their plight,” recalled historian William Leuchtenburg. Even his greatest triumphs were shot through with compromise. Social Security offered meager benefits (which were expanded under subsequent administrations), was financed by a regressive tax, and, to placate southern Democrats, was carefully tailored to exclude domestic workers and other black-dominated professions.

So, Roosevelt shouldn’t be a model, because, look, while creating Social Security out of thin air he compromised on its benefits. Because, look, while using the federal government to directly employ millions of people, he didn’t pay them all that much. After creating the National Labor Relations Act and telling people to join unions, he didn’t fully empower the NLRB. Take a moment with that.

I’ve come around on some of the benefits of the Affordable Care Act–that it does set the stage in one sense to incrementally alter health insurance to operate more like a public utility than a rapacious private market–with reservations. But the Affordable Care Act is no Social Security-minus-compromises-on-benefits. It is industry-friendly-regulation-plus-desperately-needed-reform.

Maybe the left is upset because it has some general principles that we want to see politicians hew to, and to differing degrees we are unhappy with failures to so hew.

Anyway, my point is to say that I always profoundly disagreed with them on a lot of things, but the big one—and the reason I could never be a socialist, or even a proper Marxist—is that I’m big on property. I think reasonably strong property rights are not just important, but fundamental to a working democracy and liberty generally. I think it’s so plainly obvious that it’s not even worth arguing about. Property rights are a funny thing though; libertarians—hard libertarian, not the vague Ron Paul-ish ones—take the extreme view that property rights precede all civil society. In other words, they are inviolably ours, to the degree that the state can have no powers that conflict with that right.

This isn’t a very common view; the Constitution itself gives the government the power of eminent domain in its 5th Amendment “takings clause.” The takings clause allows the government to take any property for a “public use” so long as it is done via due process and pays a “just compensation.” So our starting point, as a society, is that the right to and dominion over your property is not 100% absolute. The debate then settles in on what is an appropriate framework, or the optimal limits, for our property rights.

Consider two examples:

In the first, you are you. You work for a firm as, say, a designer of some kind. You lead a team, but don’t have any management authority. You’re there for five years. You get incremental raises every six months. You’re five years in, and you make $65,000 a year now, and pay about $18,000 in taxes. Now, a management position just under the executives, say, two levels above you, opens up. You interview and you get the job. Now you make $174,000 a year, and pay $55,000 in taxes, or a 5% greater rate. Is that fair?

In the second, you’re still you, but probably older. This time, you’ve bought a little vacation house—one story, a few rooms, modest—on the beachfront. The whole beachfront is homes, with the exception of a lookout point that is owned by nobody—or rather the public. Now it so happens that your newly bought house is situated so that it provides one of the only safe and convenient passages to this spot. After noticing that people will occasionally traipse across your yard while you’re barbecuing or hosting friends or what not, you decide to put up a little wooden fence to discourage people from crossing your property, and to instead take the extra-long way around. The state, which runs the coast, comes in citing an Open Beaches Act and historical practice and tells you that your property’s unique location gives the public an easement, or right, of entry over it and in fact you can’t put up a fence. What about this one? Fair?

I think most people have little problem with the first, but instinctively recoil at the second. But why? They’re both you’re property. Arguably, the government’s taking of that disproportionate $7,000 or so every year is just as bad, if not worse, than tolerating a few beach-goers every once in a while? Think about what you could do with just a handful of years of that $7,000. You could pay for a kid’s college tuition. You could take a dream vacation. You could invest it in a business and double it. You could buy a slightly worn first edition of Darwin’s Origin of Species. What do you really get out of building a little fence just so you don’t have to cast your imperial visage on an outlander?

Part of the answer is that we “feel” different about our real property than abstract property like money. Even if that quality is ineffable, there is a qualitative difference between these two kinds of property. The law agrees; it’s generally a lot easier for the government to take your money property than it is to take your real property, even in the trivial sense described above.

We can all agree on these two things, though: first, in neither case would it be okay if the government took this property without the force of law behind them, and second, we want there to be differing standards to address the differing qualities of these kinds of property.

A third example: you live in Chicago and you hate the jacked-up parking prices so much, you prefer to take your chances with a ticket rather than pump cash into the meter. You accrue tickets and one day, you walk outside to find they’ve towed your car, and they won’t release it to you until you’ve paid your $1,500 in tickets and penalties. Your car’s Blue Book value is only $1,250. Outrage! Right? That’s your property! GIVE IT!

Now, here’s the pitch: the evolving nature of the economy and the social relationships that define and are defined by it have given rise to the fact that our employment is a form, though definitely a differing form, of property, over which we have some degree of right.

Currently, we don’t have any property rights over our jobs. But we should have at least some. Not as much over our right over our real property, and perhaps not even as much as our right over our cash-as-property, but some. In the sense that if we’re threatened with losing it, we have some recourse to preserve our right over it.

Consider the example of the UK. In the UK, after working somewhere for a year, you can still be fired (or “dismissed”) but only for the following reasons:

Behavior or conduct; capability; layoffs (generally); reaching official retirement age; or because a change of law that made the job illegal.

These all sound like precisely the reasons you’d expect to be fired from a job. What other good business reason would an employer have to fire you? Surely we aren’t concerned with an employer’s right to fire you because you’re funny looking or complained to the human resources lady that your supervisor is always talking about your “taut, tear-drop ass.” In fact, if you work for a corporate employer, there is a near 100% likelihood that you were given an “employee handbook” that specified those UK-style causes as the appropriate causes for dismissal. With one addendum: you signed it when they told you to, and in so doing acknowledged that your employer didn’t actually have to abide by this. You acknowledged that you are an “employee-at-will” who can be terminated for any cause or no cause.

What we’re talking about is giving people a “property interest” in their job that requires a species of due process be satisfied before that property interest can be terminated. You have a right to your employment int he same sense, if not to the same degree, as you have a right over your money or your real property or your car. We could do it the same way the British did it, by statute that creates the right.

Thought of another way, it reads an implied element to our employment contracts. When you’re hired, you create a contract, whether or not you sign an actual contract. Normally, if you have a contract with someone, and they want out, they have to make you whole, or have to demonstrate why they have a right to end the relationship without doing so.

If we’re going to have an economy where wealth can freely accrue and more and more Americans work for fewer and fewer employers—something like 40,000,000 Americans work for fewer than 2,000 firms—it makes perfect sense to compensate for the inherently superior bargaining power of one side.

Our freedom to determine the boundaries of various property interests gives us a wide range of options. You could limit this rule to firms that employ more than 5,000 people, and thus impact less than 0.03% of firms, but meanwhile cover 40,000,000 people. Bring it down to firms that employ 1,000 people or more, and you’re still only impacting 0.1-0.2% of firms, but 55,000,000 people or nearly half the work force. Is this as radical a reform as requiring as many as 45,000,000 to buy health insurance?

The effects would be profound. Firstly, and perhaps most importantly, such a reform would protect your basic dignity in the workplace. Secondly, it would bring predictability and security to employment. Third, it would rebalance, at least a little bit, the bargaining power of employees vis a vis their employer. That’s important, because it would improve working conditions and stabilize income inequality in the workplace, rather than requiring government policies that are imposed (and arguably constitute taking of property).

One last example, I swear, to bring the point home. You live in Chicago. You own a small bungalow. On the same day you mail in your property taxes, you come home to find that you’ve got a boot on your car. You stomp into the backyard to have a cigarette and rue your fate. Once there, you find a Streets & Sans crew, and they’re telling you the city has to dig up a corner of your driveway abutting the alley and put in a grate so that crews can get to a sewage…uh, thing, that is under there. You shake your fist at the sky. “O! Let me but call a witness in my defense! Let the Almighty state his case against me! I would plead the whole record of my life and present that in court as my defense!”

Then you walk inside and the mail is waiting for you on the kitchen counter. Right on top is an envelope from your employer and inside a pink slip. Under the reason for your termination, it says, “No cause at all.”

At which point in that chain of events would you feel most aggrieved? And when would panic, true panic, set in?

In my piece on the constitutionality of the individual mandate, I argued that the Affordable Care Act created a distressing precedent, whereby the government addresses inequality-causing market failures through broad requirements of consumers to protect profits as a precondition to regulations and requirements of capital. The administration’s thinking in creating the individual mandate was undergirded by left neoliberal preference for “market solutions,” as much as by an over-cautious political calculation whereby industry had to be placated before social ills could be addressed.

And lo and behold, unbeknownst to me, the Hon. Brett Kavanaugh, a D.C. Circuit Judge appointed by George W. Bush, was saying the same thing, although from the opposite perspective. In his dissent to the Fourth Circuit Court of Appeals’ decision upholding the Act’s Constitutionality, Kavanaugh characterizes the individual mandate as an example of legislative ingenuity in a new era of “privatized social services”:

The elected Branches designed this law to help provide all Americans with access to affordable health insurance and quality health care, vital policy objectives. This legislation was enacted, moreover, after a high-profile and vigorous national debate. Courts must afford great respect to that legislative effort and should be wary of upending it.

This case also counsels restraint because we may be on the leading edge of a shift in how the Federal Government goes about furnishing a social safety net for those who are old, poor, sick, or disabled and need help. The theory of the individual mandate in this law is that private entities will do better than government in providing certain social insurance and that mandates will work better than traditional regulatory taxes in prompting people to set aside money now to help pay for the assistance they might need later. Privatized social services combined with mandatory-purchase requirements of the kind employed in the individual mandate provision of the Affordable Care Act might become a blueprint used by the Federal Government over the next generation to partially privatize the social safety net and government assistance programs and move, at least to some degree, away from the tax-and-government-benefit model that is common now.

Courts naturally should be very careful before interfering with the elected Branches’ determination to update how the National Government provides such assistance. Cf. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). The significant implications of a Commerce Clause decision in this case – in either side’s favor – lead to this point: If we need not decide the Commerce Clause issue now, we should not decide the Commerce Clause issue now. I therefore would not strain to sidestep the Anti-Injunction Act.

(emphasis added)

In other words, Kavanaugh seems to be saying, the individual mandate may appear unconstitutional in the same way that the Civil Rights Act (Heart of Atlanta Motel) and the National Labor Relations Act (Jones & Laughlin Steel) did because it is novel, as they were. But novelty, or new-ness, isn’t proof of unconstitutionality; it may just augur a new era of legislative instruments. Kavanaugh, rightly I think, sees the Affordable Care Act as the first step in that new era: an era where the government, rather than redistributing wealth or restructuring economic relationships to address social ill, fuels capital’s ability to act on the assumption that the “spontaneous order” of consumer choice and entrepreneurial acumen will cure social ills.

You may believe this to be true, that it’ll work. But if you do, you have to contend with the fact that the empirical evidence for it is thin; for all the Great Society’s many failures, the replacement of tight regulatory regimes with preference for public-private partnerships and market mechanisms has seen an explosion in income inequality, economic insecurity, household debt, and the concentration of political power.

The budget affects deep cuts, particularly around staffing, to close the $600+ million budget deficit the city faced. The budget came in at $6.3 billion. Aldermen lauded the Mayor for being inclusive in the planning process. While under Mayor Daley unanimous budget votes were often used as evidence that the Council was a mere “rubber stamp” for the Mayor’s prerogative, a unanimity does not necessarily entail that. Aldermen seemed to feel like they got their words in during the preparation process, which is arguably much more important than voting against the final budget. Tracking how the budget has changed from its initial form to today would be more instructive; unfortunately that process is not particularly transparent, or at least self-evident.

AFSCME Council 31, which represents thousands of city workers, released a statement upon passage of the budget bemoaning the deep cuts to basic and needed social services:

“We’re very disappointed that aldermen have voted to reduce access to libraries, cut mental health services, privatize health clinics and cut hundreds of good jobs. Many aldermen voiced serious concerns about these cuts today. While the vote is over, the work of minimizing these harmful cuts is an ongoing process in which AFSCME and our labor and community allies will be fully engaged.

Yesterday, mental health advocates staged a sit-in outside the Mayor’s office that lasted into the evening to protest the cutting of services at about half of the city’s mental health facilities:

Some of the official Twitter chatter:

The big constitutional question at issue is whether Congress’ Commerce Clause powers allow it to compel people, “as a condition of residency in the United States” to purchase monthly health insurance coverage. It’s a big important question, because it is an unprecedented exercise of power by Congress, not in scope, but in form: where Congress has tried to achieve similar things in the past, it has typically either regulated producers or used its taxing powers, which is nearly infinite.

So here’s a bit of a primer to help you argue with the blowhard Randite at your office who thinks the individual mandate is slavery, as well as with your Democratic partisan former college roommate who thinks it’s the greatest thing since the New Deal.

What the Commerce Clause Has To Do With It

Article I, Section 8 of the Constitution lays out Congress’ enumerated powers. Clause 3 specifies that Congress shall have power to “regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” This is the “Commerce Clause,” and it is made up of two broad areas: the more obvious facial power, to regulate commerce between parties in different states, and the “dormant” power to prohibit states from passing their own laws that would, in effect, regulate such commerce. In other words, regulating commerce between states is the sole province of the U.S. Congress, and the U.S. Congress, unlike state legislatures, has only those powers granted by the Constitution, whereas states have a “general police power” [PDF] that Congress does not.

The Commerce Clause power has been steadily expanded since the ratifying of the Constitution. Decisions from Gibbons v. Ogden onward have given Congress more and more power to regulate Commerce. Without going into eye-rotting tedium of the cases that slowly and incrementally expanded the power, then slightly limited them, then expanded them explosively, then slightly limited them again, suffice it to say that in the aggregate the Supreme Court has greatly expanded the definition of “commerce” and “regulate” to increase Congress’ power to “regulate commerce…among the several States.”

Now, most of the federal laws you know and love and hate rest on Congress’ power to regulate commerce among the several States. The Civil Rights Act, Sherman Anti-Trust Act, National Labor Relations Act, Controlled Substances Act, Adam Walsh Child Protection Act, Mann Act, Brady Bill, and so many more, rely on Congress’ power to regulate commerce among the several States. Basically, unless it is a tax or having to do with treaties, currency, the judicial branch, the armed forces, the post office, or the seas, it is probably based on the Commerce Clause. So broad is the Commerce Clause power that people trying to invalidate statutes almost never even raise Commerce Clause questions.

The largest expansion of Congress’ power to regulate commerce among the several States (really enjoy typing that phrase) are the New Deal-era cases, including most notably NLRB v. Jones & Laughlin Steel and Wickard v. Filburn.

Here’s a quick and dirty summary of how the Supreme Court understands the phrase “Congress shall have the power to regulate commerce among the several States,” based on two hundred years of case law:

“Congress shall have the power to regulate, meaning prescribe or proscribe behavior, commerce, meaning the production, consumption, or distribution, of goods and services, among the several States, or to regulate economic activity within a state that directly and substantially affects interstate commerce, or to regulate non-economic activity that is essential to a broader regulatory scheme that regulates interstate commerce.”

This is based on a through-line of cases including (not exclusively), Jones & Laughlin Steel, Wickard, Heart of Atlanta Motel v. United States, Maryland v. Wirtz, Nat’l League of Cities v. Usery, U.S. v. Lopez, U.S. v. Morrison, and Gonzales v. Raich.

Let’s apply this. In Wickard, a farmer, Roscoe Filburn, was farming stuff, including wheat. Now, in 1938, Congress passed the Agricultural Adjustment Act, meant to keep prices up so that farming didn’t completely collapse. One of the regulations was that farmers could not thresh more than 11.1 acres of wheat (over-simplification of what the bill actually did, but good enough). Filburn wanted wheat for his family and his livestock, and didn’t want to buy it, so he threshed more than 11.1 acres, with no intent to sell it. He was fined, and appealed the fine. The Supreme Court did not buy his argument that in no way could “growing wheat for my own consumption” be called “commerce,” at all, much less “interstate commerce.”

Nope, said the Court. It doesn’t matter that your particular act in isolation doesn’t affect interstate commerce. That is not germane. The question is, the Court said, if your activity in the aggregate “substantially affects” interstate commerce. Clearly, they said, people growing their own wheat rather than buying substantially affects interstate commerce. It increases the supply and drives down costs. If we prohibit Congress from regulating this, the Court said, we are essentially keeping them from regulating interstate commerce in wheat.

This “substantially affects in the aggregate” standard stood more or less untouched for generations. It formed the backbone of Civil Rights era challenges to the Civil Rights Act. Congress made it illegal for a restaurant or hotel not to serve black customers. Hotel and restaurant owners sued to enjoin (verb form of injunction) enforcement. The Supreme Court, citing the New Deal cases (usually Wickard) laughed these challenges off. Segregation, they said, obviously substantially affects interstate commerce, because black consumers are way, way, less likely to visit places that segregate. Duh.

Then, the Rehnquist Court. The big one here was U.S. v. Lopez, a challenge to the Gun Free School Zones Act, which made it a federal crime for someone to carry a gun around a school. Congress based this on their Commerce Clause power. The Court didn’t buy it, and added the “direct” to “substantially affects,” and clarified the “essential to a broader regulatory scheme,” rule.

In Lopez the government argued (quite lamely, frankly) that carrying a gun near a school affected interstate commerce because guns often lead to violence, and violence can disrupt the learning process, and the learning process once disrupted impacts students negatively, and those students are likely to be less productive as adults, and less productive workers make a worse economy, and therefore we can regulate carrying guns near schools. This, the Court said, was “too attenuated” a link to interstate commerce, and required “piling inference upon inference.” The Court invalidated the Act, also citing the fact that Congress offered literally no findings (common element of statutes) justifying the connection, and, another big one–the regulation was not “essential to a larger regulatory scheme,” which would be necessary if the activity regulated was non-economic.

The New Deal cases hadn’t been overturned, but this was a big deal, because it put Congress on notice that it couldn’t take its Commerce Clause powers for granted.

This gets us to the present day.

That’s Nice. But it’s Not “Activity”

Real quick: Section 1501 of the Affordable Care Act requires everyone to prove that they have maintained “minimum coverage” for the previous 12 months when filing their tax returns. “Minimum coverage” is to be defined by the Secretary of the DHHS. There are very narrow exceptions for conscientious objectors (like Christian Scientists) and there are provisions for those who cannot afford to pay (i.e., getting them into public programs) and penalties for those who fail to do it. Congress’ rationale, according to the act itself, is to avoid the phenomenon of “adverse selection”; since Section 2704 forbids discriminating by insurers on the grounds of pre-existing conditions, and other sections require “community rating” for those with pre-existing conditions, the individual mandate is necessary so that people don’t wait until they’re sick to buy insurance and then drop it as soon as they get the care they need. This, Congress says, could lead to “market failure.” Okay.

Opponents of the individual mandate, including in the 11th Circuit, are not trying to overturn Wickard and other New Deal era cases, and thus undermine things like the minimum wage or the FDA. Instead, they’re arguing that Congress isn’t regulating any activity, much less “commerce.” Go back and read that judicial understanding of the Commerce Clause. See the word “activity” pop up? Now, it doesn’t appear in the Constitution itself, which is important. Only the word “commerce” appears. But in its interpretations the Court has always assumed that Congress was regulating some activity–in Wickard it was threshing wheat. In Civil Rights cases like Heart of Atlanta Motel, it was discriminating in how they sold their service/product.

In this case, opponents say, Congress is regulating “inactivity”–not buying insurance. You are being subject to Congress’ power for not doing something, merely because not purchasing a product will “substantially affect” interstate commerce (obviously–every time you don’t buy something, you affect interstate commerce, in a trivial sense). If Congress has power over inactivity, they say, then Congress has a general police power–something granted only to the States, see above–and there is no limit to the Commerce Clause.

Which, opponents will point out, is something else common to every Commerce Clause case: that that clause must, to be meaningful, have some limit.

States can make you buy car insurance, but states have the police power–and also, you don’t have to buy car insurance unless you buy a car first. Farmer Filburn from Wickard wasn’t being forced to buy wheat until after he became a farmer, and then grew and threshed 11.1 acres of wheat. The owners of Heart of Atlanta Motel weren’t just being forced to serve blacks out of the blue; they had already financed, built, and operated hospitality services. In other words, all of these people had done something to subject themselves to the regulation. In this case, people are literally doing nothing. They are inactive. So Congress isn’t “regulating” commerce, it is creating it out of thin air!

What other markets, they ask, can Congress force me to enter? If not buying insurance is “essential to a broader regulatory scheme,” because my not buying it makes health care more expensive, then doesn’t my decision not to buy a gym membership, or eat healthy food, substantially affect health care costs? Can Congress force me to buy that membership, or buy healthy food?

The government reply has typically been that, first of all, there’s nothing in the Commerce clause that requires an activity. Secondly, they say, in this case, because health care is so unique (everybody uses it, whether they want to or not) if you don’t buy insurance you’re just shifting costs to other people. Also, Congress has forced people to buy things before! It forced young men to buy muskets!

The first argument isn’t persuasive because even if the Constitution is silent on it, an unbroken chain of precedent is not, and the Supreme Court is pretty touchy about taking an unbroken, two century chain of precedent as a coincidence. The second argument isn’t all that great either, because while uncompensated care cost $43 billion in 2008, obesity will cost $345 billion in 2015. That last argument, which I saw from a state attorney general, is ridiculous because that was not a Commerce Clause power, it was based on Congress’ power to raise a militia, a wholly distinct enumerated power of Congress.

The “slippery slope” argument of opponents is seductive. This time, Congress is saying health care is unique because everyone uses it, and fairly often people use it against their will. But…everyone eats food, breathes air, drinks water, transports themselves from place to place, and, hell, more people used the internet (240 million) last year than visited a doctor. Can Congress, based on a desire to “bring down cost” and “increase availability” constantly force people to buy products? Can they eliminate deferral of consumption or discretion in consumption? Is that even a market system any more?

What’s worse, since the executive branch is empowered to decide what constitutes “minimum coverage,” aren’t we just begging to let big powerful insurers make sure that only they and their buddies can “compete” for our dollars, since they can lobby for “minimum requirements” that small mom-and-pop insurers (as if that’s a thing anyway) could never offer with their small capitalization?

Fie! What have we wrought!?

That’s Nice, Except Yes It Is

Yeah, not buying insurance is totally an activity. It’s an activity called “self-insuring.” The Supreme Court recognized self-insuring as a thing in a case called Metropolitan Life Insurance v. Massachusetts. Federal statutes like the Employee Retirement Income Security Act (ERISA) applies to self-insurance program of employers. The reason not buying health insurance is actually “self-insuring” is because except for religious objectors, who are protected by the mighty First Amendment, and the admittedly reckless, who are protected by nothing because fuck them they’re reckless, people who are not buying insurance are not saying they don’t ever plan on seeing a doctor or going to the hospital or that they plan on grabbing the steering wheel away from the EMT driving their ambulance to the ER after a car accident.

No, they’re saying they’re putting aside some amount of money to make sure they can buy health care as they need it. They’re managing their own risk. They’re self-insuring.

If you’re a parent who hates Obama so hard that you’re not going to buy no stinkin’ health insurance under his Maoist individual mandate, and also you’re not saving money in case your kid needs emergency medical care, then you are an unfit and reckless parent, and, not only that, but insured people will eventually foot the bill if you take your kid in for care and then refuse to or can’t pay the bill or declare bankruptcy. So in this unique instance, the inactivity is in fact an active decision that does have a direct and substantial affect on interstate commerce. And all that is if you don’t buy the “self insuring” thing, which is, you must admit, at least a reasonable (and more charitable to the voluntarily uninsured) interpretation.

Now, we can quibble about that, and that is fair. But it’s also kind of the point. You could classify most things as “inactivity” because it’s a really imprecise word. And the Supreme Court isn’t going to declare a brand new rule, that the Commerce Clause excludes “inactivity” which is defined as…what exactly? If you think about it, as much as you hate the big govern-a-mint with its socialism and whatnots, and git yer government hands off my Medicare, do you really want individuals and corporations to be able to exempt themselves from regulation by calling something they’re doing “inactivity”? Ask yourself: when an investment house declines to sell stock despite a negative report, is that economic inactivity or activity? If your employer automatically enrolls you in health insurance or a 401(k), is it inactivity or activity to maintain it? Or to decline it?

Also, No Mandatory Gym Memberships or Broccoli

Also, ironically, the test from U.S. v. Lopez protects against the nightmare scenarios–probably. Remember, Lopez added the “direct” requirement. Buying a gym membership requires “piling inference upon inference” to connect it to interstate commerce; the individual mandate doesn’t require that I use my insurance, only that I buy it. You can buy a “minimum coverage” gym membership and never use it, or use it rarely, or use it inadequately, or use it all the time and then deep fry your daily Twinkie Pizza for breakfast. In other words, to see how buying a gym membership is connected to health care costs, you have to “pile inference upon inference”–you need to assume people will use it, use it appropriately, and also eat well, etc. The same way the Gun Free School Zones Act required all those inferences about the effect on education.

Ignoring this, there is a pretty good case that the federal government can’t force you to do things like see a doctor, eat broccoli, or go to the gym; the doctrine of “bodily integrity” that underlies cases like Planned Parenthood v. Casey or Cruzan v. Missouri Dept. of Public Health precludes the government from this kind of intrusion. Given this, it’d be hard for Congress to show how a requirement to buy a gym membership, absent a constitutionally defensible requirement to use it, would somehow limit the effect of obesity on health care costs.

So Why Is It Unfortunate?

The opponents do have a case. Their case just isn’t particularly strong. The weakness in it is that “activity/inactivity” is not by itself a good standard that we can use, particularly in this case, where the inactivity is quite clearly, in all but reckless cases, an activity known as “self-insuring” that is recognized by the Supreme Court.

The problem with the individual mandate isn’t that it is unconstitutional, it is that it is really goddamn stupid. Congress could have achieved this goal through its taxing power with absolutely no problem.

There is no “free rider” or “adverse selection” problem with transportation for example, because we all pay for it, in the form of gasoline taxes, property and sales taxes, and fares. Instead, Congress did something that the Congressional Budget Office in 1994 described as “unprecedented.” It regulated consumers as a class to protect corporate profits. Remember, there is no requirement that insurers lower their premiums; it is just assumed that will happen. But why? Now insurers have a captive market, and the lobbying strength to define minimum coverage.

A Supreme Court decision upholding the individual mandate will have one direct and substantial affect of its own: it will encourage Congress to find demand-side, rather than supply-side, solutions. It will direct consumer behavior rather than regulate business, because as we all know, when we regulate business the Ayn Rand Memorial Free Market Unicorn Brought to you By Palmolive cries. True, the ACA regulates insurers, but the trade off the government made was enormous and unnecessary.

Oh, that’s the other thing. It wasn’t necessary. It wasn’t necessary for a few reasons, among them that adverse selection isn’t always a thing, at least according to some econometric studies, and also more importantly because enrollment windows, or maintaining coverage requirements (i.e., once you buy it you have to keep it), or a tax surcharge to pay for an automatic public option would have accomplished the same thing. Instead, a Democratic Congress and President chose to create a powerful precedent that if you want to “control costs,” or “increase availability” you prescribe behavior rather than proscribe it (i.e., price controls). You put the onus on the consumer rather than the business. Any regulation of business must be attended by a broad and clumsy regulation of consumer behavior.

If you’re answer is, “Well, they couldn’t have gotten that through the Senate,” my answer is, “Well, they didn’t try.” If your answer is, “People would’ve gone apeshit if Congress had tried to create a tax or public option,” my answer is, “More apeshit than 26 attorneys general filing a lawsuit to invalidate the act?”

Congress and the Court continue to incorporate free market logic into our legal system to a dangerous degree. The same thinking that went into designing this Rube Goldberg Statute went into the Kelo v. New London decision, specifically, that capital operating with freely is a necessary condition for the public good. How many more international crises capital has to cause before we’re free of this fallacy is currently unknown.

Don’t Panic, But Kinda Panic

Here’s the thing. The Supreme Court is a naturally conservative (in the plain meaning sense) body. Its members are appointed for life, and the principal of stare decisis–essentially, compelling respect for previous decisions–makes major changes difficult and rare. And to be fair, that’s more or less a good thing. We don’t want drastic changes in the law every few years, because then nobody will know it, and not knowing it nobody will obey it, and not obeying makes it inoperative. That’s a lawless state. The development of Commerce Clause powers shouldn’t worry you, whether you’re a progressive or a conservative (leftists and libertarians have more abstract, ideological problems with it). The reason is that if you track it, the development of Commerce Clause powers makes sense given the changes in the economy.

Between the foundational case Gibbons v. Ogden and the passage and affirmation of the first anti-trust act in 1890, the number of Americans working as wage laborers grew from 75,000 to to tens of millions. In other words, commerce changed.

Today, whatever your job is, you probably engage in interstate commerce every day. Your company buys computers from other states, uses servers located in other states, sells products or services in other states, is insured by a company from out of state, invests in retirement funds located in other states, accepts federal funds generated from all 50 states, and is probably incorporated in another state, etc. If you’re a Starbucks barrista, you have tourist clients, you use coffee from out of the country that is imported from out of state, your paycheck comes from out of state, your supplies come from out of state. Interstate commerce undergirds your work every day. The Framers plainly wanted the Commerce Clause to empower Congress to regulate commerce. If “commerce” is different today than it was back then, then we should calibrate it to allow Congress to regulate what commerce is today.

Think about it–shouldn’t the invention of the railroad have changed in substance Congress’ regulations of commerce? And flight? And the telephone? And the Internet? I communicate with a resident of a different state literally dozens of times a day, and I do business with one almost daily, often multiple times a day.

The Framers anticipated changes in social relationships and industry–one of the few elements of the Constitution I remember being hammered home in middle school civics was the “Elastic Clause,” more properly the “Necessary and Proper Clause,” which says “The Congress shall have Power to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers…” It was precisely the rapid evolution of social and commercial relationships that the Constitutional Convention contemplated in drafting this. The Federalist Papers specifically point out that the Constitution would be a dead document without this clause, and that in any case all it did was allow Congress to adapt to changing social conditions, it didn’t allow Congress new powers–they can still only execute “the foregoing Powers.”

The Commerce Clause, in other words, is not a threat to your liberty as a power of Congress, unless your personal affirmative rights are construed weakly. Whatever powers Congress has, when they conflict with your rights, Congress loses. If the ACA had not had an exception for conscientious objectors, it would have been invalidated as it applied to them. If it required you to go for a jog every day, they’d be violating your right to privacy or bodily integrity. The Congress can’t even require your kids to say the Pledge of Allegiance at school. Our rights–due process rights, privacy rights, speech and religious rights, assembly rights, rights to juries and habeas corpus and so on–are the real battleground.

The Other Things

The Court is also considering some other elements:

(1) Whether the individual mandate, one element of a huge bill, can be invalidated without invalidating the rest of the stuff along with it. Probably it can, but maybe not, since Congress intended all elements to operate together, expressly saying that the reforms wouldn’t work without it.

(2) Whether the Anti-Injunction Act forbids any judicial action. This is because the Anti-Injunction Act forbids any court from barring the collection of a tax. Is the penalty for not buying insurance a tax, or a penalty? Well, Congress calls it a penalty, so it’s probably a penalty, even though you pay it with your taxes.

(3) Also, is the Medicaid expansion is Constitutional? Opponents argue that the government’s reimbursement rate is so generous that Medicaid is no longer voluntary, but coercive. Congress’ taxing and spending powers don’t allow it to force the states to conform to a federal statute; they can only pressure it to do so. But Congress’ taxing power is indeed very broad–one of its most sacrosanct powers–and the test for invalidating a law for exceeding it is very hard to meet. The fact that Congress is so generously funding Medicaid reimbursement is probably not enough to meet the test.

Hope this helps. For more on the Constitution, see here.