Dear Citizens and Elected Officials:
Introduction
Every unjust system, “Empires of Liberty” included, have their turning points, when their rigidities and systematic ideological cruelties become suddenly, dramatically apparent to the average person in the streets. I hope the Harvard Law Review article, Policing and Profit, which appeared in April of 2015, and which forms the basis for this essay, helps delineate such a moment. I know it certainly did for me, in laying out the basic facts of life in already infamous Ferguson, Missouri, the deeper context to the troubles we all witnessed in the nightly news. harvardlawreview.org/...
But I had never heard of Tom Barrett’s case, from Augusta, George, who steals one can of beer worth $1.29 and quickly finds himself on an inescapable debt escalator, thanks to privatized probation and a prison system which charges the inmates, most already deeply in debt, daily fees for their own maintenance and essentials. It’s a system – let’s not mince the words - of calculated psychological and fiscal cruelty which has emerged in many other places around the country, and forms the infrastructure for the Age of Mass Incarceration. There is an underlying economic and moral logic to what the HLR article describes, and to the many additional accounts which I found about Barrett’s case; yet I did not find a single instance where that system was named, nor has it been during our Presidential election year. And this despite the fact that it has been the dominant system in America since the late 1970’s. I found that to be remarkable and very troubling. As troubling as I found the nation’s reaction to the death of Supreme Court Justice Antonin Scalia in February of this year. No tears from me over a man whose long career coincides with, if not embodies, the outrageous developments described in this essay.
What follows below makes the connections that others seem reluctant to make and names and explains that system. I did this because fate and luck, and the system’s massive gears, can turn any of us, happily middle class today, into a Tom Barrett tomorrow. Most Black Americans already knew that “Equal Justice Under Law” had a hollow ring, wasn’t what they saw in their daily lives, yet I don’t think anyone, even under that grey sky of sober realization, is fully prepared for what Ferguson had cooked up for its black citizens. To me, however, there is a deeper logic behind it; it is racial in part, no doubt, but it goes beyond just race. In Ferguson, and too many other places, the grinding mechanisms are no longer hidden from sight. I hope what follows below will help mark a turning point, away from the system that we have been living under for far too long now, approaching a half-a-century. And if my words throw some sand in those awful gears grinding the American people down, that won’t be such a bad thing at all.
Part I. The Political Economy of Neoliberalism
It’s hard not to notice, during the American Presidential election drama, that despite all the debates watched, and speeches heard, I’ve yet to hear the terms “neoliberalism” or “austerity” employed, much less explained, these being the two necessary words to describe the dominant economic “regime” of the past 35 years. And this despite the fact that most observers recognize that a “populist revolt” driven by economic unhappiness is underway via the campaigns of Donald Trump and Bernie Sanders. With Trump, of course, we are getting much more, the uglier side of American populism: it’s racism, xenophobia and misogyny, at least. Yet when Trump commented on the violence which canceled his Chicago rally on the evening of March 11th, he stated that the underlying driver of his supporters’ anger is economic distress, not the ugly cultural prejudices. The diagnoses for the root cause of this anger thus lie at the heart of the proposed solutions. For students of the Great Depression, this will sound very familiar. That’s because, despite many diversions and sub-currents, we are really arguing about a new New Deal versus an ever more purified laissez-faire, the nineteenth century term for keeping government out of markets – once those markets had been constructed. “Interventions,” however, as we will see, are still required, because no one, left or right, can live with the brutalities of the workings of “free markets” except as they exist in the fantasyland of the American Right.
Americans have never been known to be systematic thinkers about policy matters, least of all in an election year, but still, it is a remarkable thing not to be able to name in public forums the ideas which have ruled the economics profession for decades now and therefore the policy options of elected officials who turn to economists for guidance. Barry Goldwater, renowned, if not done in, for his candor, had no difficulty naming the system he opposed in his acceptance speech in San Francisco, 1964, nor in his ghostwritten book, the Conscience of a Conservative: it was liberalism in all its forms, but especially its interventions into private markets, aka Keynesianism. That included federal Civil Rights legislation and even Society Security.
Therefore, some clarification is called for when I use these two terms, or the Market Fundamentalism/Market Utopianism others have employed, myself included, more polemically to describe the dominant economic orthodoxy of our time.
By neoliberalism, I mean the revival of “classical economics” which first arose in the late 18th and early 19th centuries in England, with the founders’ famous names living on into our own time: Smith, Ricardo, Townsend, Malthus, Mill and Bentham and a few others. Early economic writers tended to reach into the world of biology, of Nature, for their metaphors and analogies, and these excursions had two main tendencies: to cite nature’s cooperative features, or alternatively, its tooth and claw brutalities, which was Malthus’ grim legacy, one we have not fully shaken to this day. Continuing this tradition, classical economics later flirted seriously with Social Darwinism (see the influence of William Graham Sumner in the U.S. and Herbert Spencer in England), almost becoming engaged to it, and then underwent the “micro” revolution of marginal costs in the late 19th century as the profession strained for its “scientific” laurels.
David Harvey, the prolific polymath Marxist writer, links the term Neoliberal to the later Victorian economists – Alfred Marshall, William Jevons and Leon Walras - who replaced their earlier classical colleagues from the first decades of the 19th century. But my own experiences of the past 30 years in America leads me back to the primal cruelties described by Karl Polanyi in those early industrial days, in his masterpiece The Great Transformation, and the religious intensity of the first classicals, not the later Victorian ones, who worked in an era when life for workers was supposed to have gotten much better, although the London of those better days still horrified savvy American observers like Jane Addams of the settlement house movement.
Neoliberalism was later greatly influenced by the conservative work - the defense of markets against governmental interventions - of Friedrich Von Hayek and Ludwig Von Mises (I prefer to keep the Von’s in the names, it makes them sound more sinister…) in the 1920’s and 1930’s, and Milton Friedman in the 1970’s, thinking which eventually eclipsed the Keynesian “revolution” of the 1930’s, and its demand-labor focused “macro” policies and required federal fiscal interventions. Friedman’s great debates with John Kenneth Galbraith in the 1970’s usefully date the decline of Keynesian economics for the general public, and the rise of “supply-side” economics: keeping entrepreneurs happy (and hopefully, inventive) with tax breaks without end. Don’t we all recall the linking of justice in the law with justice in the economy, courtesy of the old Smith Barney ads from the 1980’s, starring John Houseman from the movie The Paper Chase: these noble stock brokers “make money the old fashioned way, they earn it.” Nice British accent too, he had.
The “liberalism” part of neoliberalism is confusing to the average citizen thinking about the modern political spectrum, since neoliberalism is most certainly a conservative doctrine aimed at undermining every intellectual pillar of Keynesian true “liberals,” Social Democrats, and Socialists of all stripes. In its formative years of 1790-1840, liberalism and its liberal economists were hell bent on overturning the last vestiges of late feudalism and mercantilism which guided the treatment of the agricultural workforce in rural England. That workforce was about to be “conscripted,” under threat of starvation, as labor in the new industrial mills of the English Midlands, the infamous “Satanic Mills.” In this sense these economists were “liberal” reformers, urging dramatic individualism and heroic entrepreneurship upon society, to free economic activity from the last ethical restraints which Judeo-Christian morality had insisted upon. Ironically for the secular left of the 21st century, those biblical strictures, against usury, for example, are looking better and better as credit card interest rates soar between 18-25%, the rates being even higher for the notorious “pay day loans.” But the words “freedom” and economic “liberty” don’t tell one much in the “abstract”: historical eras and context text tell us much more about what they meant, and for different parts of society.
And this is where the term “Market Fundamentalism” or Market Utopianism comes in. Karl Polanyi (1886-1964), in his magisterial work from 1944, The Great Transformation, explains that the English economy of those years, 1790-1840, was the landscape for the first great attempt in human history to consciously construct all-embracing markets for land, labor and money, to turn these many faceted features of traditional human economic life into pure commodities, thus yanking them from their more organic historical connections to other, older governing values in traditional societies.
Polanyi, just to confuse the over-simplifications of today’s Republican Right, and the broader neoliberal worldview, was a socialist but not a Marxist. Yet I offer the Right these tantalizing facts: The Great Transformation, although begun and finished in England, and fittingly so given its subject matter, was mainly written at Bennington College in Vermont with a two-year grant from the Rockefeller Foundation, in 1941-1943.
Polanyi argued that what the classical economists claimed were universal laws, aiming to bring all nations into one giant market via “free trade” governed by the gold standard - and the guns of the British navy - were actually the very peculiar human constructs of a particular time and place. Polanyi also is the only economist I’ve ever read who has satisfactorily explained where the market fanaticism of today’s Right comes from: the original gambit of the early 19th century was so sweeping, so revolutionary, that it could only succeed in its Promethean mission by intensity equal to its impossible task. To paraphrase Polanyi, laissez-faire had to be planned, then legislated – then its horrors mitigated. Polanyi makes the proper connection: this movement closely resembles religious fanaticism, and perhaps that’s a clue to the rise of the economic Right’s religious allies within the Republican coalition: religious fundamentalism arose in the United States in the 1970’s almost simultaneously with Market “fundamentalism.” Here’s how he puts it his second chapter: “The mechanism which the motive of gain set in motion was comparable in effectiveness only to the most violent outbursts of religious fervor in history. Within a generation the whole human world was subjected to its undiluted influence.”
What is more, Polanyi says that the imposition of these terrible abstractions created such a shock in their initial manifestations that it set off an immediate reaction, the start of the “double movement,” with neither labor nor capital able to live with the stark horrors presented by the social realities of the 1840’s. This is when society first looked into the mirror of a “pure” market makeover and saw not progress but a social Frankenstein staring back at them instead: children broken on the looms, workers in their improvised, inadequate tenements, prostitutes roaming the streets if not starving in the gutters. In short, people no longer displaying human faces but the features of cornered animals. Economic, social or legal justice? This was not justice; it was the very rape of that term.
Polanyi stresses the social disruptions as much as the degree of economic exploitation at the heart of the long running wage argument, which continues to this day, comparing the cultural shock of a whole new way of life for the formerly agricultural workers to the shock of the encounter between primitive cultures with more advanced civilizations, documented in North American Indian tribes in 16th and 17th century encounters, and African cultures under late 19th century European imperialism. This anthropological approach has doubtless made Polanyi a troublesome writer for many doctrinaire Marxists, and I was pleased to see David Harvey quote from him in his fine Brief History of Neoliberalism.
American voters in 2016 have been re-introduced to democratic socialism. It has its origins, socialism does, the parent plant, the late George Lichtheim (1912-1973) explained, in two great Revolutions: the French and the Industrial. The struggle to win the right to vote in France and England was inseparable from that dual history. Eventually, well after 1850, wages did rise, along with the expanding franchise for the vote; whether that was due to the latent virtues of the system initially set up or the reforms engendered by its horrors is a debate which has not ceased even until our own time. Today’s neoliberalism had nearly silenced serious left dissent by the late 1990’s, or successfully isolated it in remote academic corners. Bill Clinton’s two terms in the 1990’s are proof of that. And there is the continuing tension between neoliberal economics and democracy: notice the desperate and barely concealed attempt by the Republican Right to shrink the franchise, using as one of its main levers the racial stigmas from “The Great Incarceration” and the yet to be proven accusations of voter fraud.
Political “shunning” happens even in the supposedly liberal Ivy League. The late political theorist Sheldon Wolin (1922-2015), shortly before his death, in an interview with Chris Hedges, spoke of the silent treatment he was given by the faculty at Princeton University when he placed a copy of his new magazine “Democracy” on the faculty lounge coffee table. He was shunned. Perhaps they did not like where he was going with his last book, or could see it coming much earlier: Democracy Inc.: Managed Democracy and the Specter of Inverted Totalitarianism (2008). Here is that interview, Segment Seven from a nine part series at the RealNewsNetwork: therealnews.com/...
Modern economic thought, and practice, since the 1970’s, has witnessed a growing crescendo of Market Utopianism – the “purer the better” - is still the rallying cry of the Republican Right, even in the wake of the sobering events of 2008-2009 and despite some professional economists making substantial dents in the pretentions. And if you had any doubts about that, then you haven’t been watching the Republican Presidential Primary debates of 2015-2016, or the sheer destructive obstructionism of its behavior towards President Obama as shamefully displayed in Congress. In its deliberate jamming of the democratic process itself, the Republican Right echoes the behavior if not the ideas of the Fascist parties in the Parliaments of Germany and Italy in the 1930’s, before they became outright dictatorships. Republican words do not mock the democratic process itself, but that is their effect, and it is clear that the intent is to de-legitimize the fairly elected President of the United States. Therefore it is very important for American readers to be clear about where Karl Polanyi thought the original Market Utopianism of the early 19th century would lead. And the connections he drew between the origins of classical economics and the collapse of the “long” 19th century in the 1930’s: “In order to comprehend German fascism, we must revert to Ricardian England.”
Polanyi was far more broadly educated than most economists, perhaps an equal to Keynes. He was employed in Vienna in the 1920’s as the “senior editor for the premier economic and financial weekly of Central Europe”– the Financial Times of its day and region. On the very first page of the opening chapter of The Great Transformation, Polanyi delivers his judgement on where the logic of mandating free markets as the dominant force in society would lead if not tempered with countervailing power:
Our thesis is that the idea of a self-adjusting market implied a stark utopia. Such an institution could not exist for any length of time without annihilating the human and natural substance of society; it would have physically destroyed man and transformed his surroundings into a wilderness. Inevitably, society took measures to protect itself, but whatever measures it took impaired the self-regulation of the market, disorganized industrial life, and thus endangered society in yet another way. It was this dilemma which forced the development of the market system into a definite groove and finally disrupted the social organization based upon it.
That dilemma, the struggle over the nature of allowable interventions into the private market system to cope with its seemingly inevitable imbalances, gyrations, recessions and depressions, is still with us. There were prominent claims, however, in the late 1990’s, that recessions were gone forever, the perpetual growth machine having been overseen by Alan Greenspan, and he was confident that the new financial derivatives would spread the risk to those who could best bear it. Greenspan was one of the members of Bill Clinton’s “Committee to Save the World” along with Robert Rubin and Larry Summers. During that time they were Utopians and would be Prometheans.
The nature of these interventions was at the heart of the struggle to cope with the collapse of capitalism, 1929-1932, centered on currency issues (the gold standard and balanced budgets) and labor markets (public spending/ job creation vs tax increases/ budgets cuts – “austerity”). In the near collapse of 2008-2009, when financial markets froze around the world, the same basic arguments from the 1930’s and indeed, the second half of the 19th century, could be heard over President Obama’s stimulus program. The main issues are still unresolved, and the now ancient stalemate that Polanyi so forcefully describes is a growing worry to some of the better economists in Washington, DC, who wonder what tools, if any, will be available to meet the next financial collapse. They worry as well, if they could ever be politically deployed.
Just in case his readers might have missed “our thesis” which Polanyi declared on the first page of his first chapter, he reiterated it with a bit more detail, seventy- five pages later:
To allow the market mechanism to be sole director of the fate of human beings and their natural environment indeed, even of the amount and use of purchasing power, would result in the demolition of society. For the alleged commodity ‘labor power’ cannot be shoved about, used indiscriminately, or even left unused, without affecting also the human individual who happens to be the bearer of this peculiar commodity. In disposing of a man’s labor power the system would, incidentally, dispose of the physical, psychological , and moral entity ‘man’ attached to that tag. Robbed of the protective covering of cultural institutions, human beings would perish from the effects of social exposure; they would die as the victims of acute social dislocation through vice, perversion, crime and starvation. Nature would be reduced to its elements, neighborhoods and landscapes defiled, rivers polluted, military safety jeopardized, the power to produce food and raw materials destroyed. Finally, the market administration of purchasing power would periodically liquidate business enterprise, for shortages and surfeits of money would prove as disastrous to business as floods and droughts in primitive society. Undoubtedly, labor, land, and money markets are essential to a market economy. But no society could stand the effects of such a system of crude fictions even for the shortest stretch of time unless its human and natural substance as well as its business organization was protected against the ravages of this satanic mill.
These are powerful indictments, secular jeremiads hurled against the Market Utopianism of the 19th century, and now applicable again to neoliberalism and its present day program of austerity. Perhaps the main reason Polanyi’s work has been kept on the margins of America economic life for so long – that is changing now, however slowly – is that the American economy of 1945-1971 stood so successfully upon the foundations of the New Deal, which Polanyi supported, without major panics and depressions, and with Wall Street curbed and Main Street employed, a far more egalitarian society than the one which surrounds us in 2016. With significant exceptions, of course, delineated best by Michael Harrington’s (1928-1989) The Other America (1962).
Were Polanyi’s indictments too harsh? No, they weren’t, if one remembers the human wreckage strewn about the Western world in the wake of the events of 1929-1932 – and what followed politically in the 1930’s, which plunged civilization into World War II, what the historian Max Hastings has recently called “the greatest event in human history.” And they weren’t too harsh if one understands the “previews” to the Great Depression - the financial panics and recessions/depressions which usually followed in their wakes in the United States in the 19th century: 1837, 1857, 1873, and 1893. These grew in scope, intensity and scale of human suffering so that the acute periods of social pain stretched four years, then more than a half a decade. And the comparisons are not too harsh if one remembers that public job creation and all the other counter-cyclical tools which the New Deal inaugurated on a large scale were absolutely forbidden by economic and political orthodoxy prior to that Great Depression/New Deal watershed.
Thus when successful businessman Jacob Coxey led his dissenting “army” on a long march from Ohio to a protest on the Capitol’s steps in Washington, in the spring of 1894, driven by the terrible conditions from the 1893 panic, he petitioned for the creation of public jobs building and repairing roads - and was promptly arrested for his efforts. Just another example, alas, of the ancient clash between democracy and economic orthodoxy.
And we must face the facts of daily life for those who lived on the Lower East Side of New York, 1890-1910, or Hell’s Kitchen at mid-town, the forties, on the West Side, the Irish Hell…and their equivalents in all the other major industrial cities, and then, much later in the 20th century, the “rise” of the black ghettoes in the Northeast and Mid-West, and parts of “sunny” California, where American racism joined in “solidarity” with the worst features of the lowest rungs of industrial life, the most dangerous jobs, the last hired-first fired syndrome, leading to the formation of a true American “Lumpenproletariet.”
The ultimate cruelty for black citizens turned out to be that the later years of “The Great Migration” from the rural South, between 1917-1970, ran headlong into the beginnings of another “Great Migration”: the flight of industry, of capital, fleeing first to the nearby union-free suburbs, then to the rural Midwest, and eventually to the American South and the U.S. Mexican border region, then on to Puerto Rico and finally, Asia. It was in these desperate but widespread pockets of underclass American life, and in the 13 states of Appalachia, that the poorer people of America lived out their own version of Polanyi’s awful England of the 1840’s.
Two more important points need to be made in addition to Polanyi’s stark warnings about the dangers of pure free market-driven societies. One comes on the very first page of his masterpiece, that there were four pillars to that long nineteenth century, the one that began in the late 18th century and stretched, in reality and foundational principles, to the collapse of 1929-1932. And those pillars formed an interlocking nexus of the social/military with economic life. The first was the balance of power between nations that began with the Congress of Vienna in 1815; the second was the international gold standard, which required balanced budgets domestically and in trading accounts as well, or else the British navy would appear on the errant nation’s horizon – a form of militarily enforced “austerity”; third, the “self-regulating market,” the one that was built in England first…then held up as a model for the whole world, and fourth, the “liberal” state, with that word having a meaning somewhat closer to the Tories of the second half of the 19th century in Britain than to the New Deal liberals of the second half of the 20th century in America. Polanyi supplies an immediate qualifier to that liberal state, which he says was a creation of the market ideas and mechanisms, or more precisely, those whom imposed it. And therefore, he must logically say that the free market was the key element which underlay all the other institutions.
I must now shift to the modern day neoliberal equivalents of this interwoven nexus that was crucial to that long 19th century, to those ideas which have ruled the Republican Right since at least 1980, and to which the Democratic Party, chiefly in economic and foreign policy matters, has deferred since the rise of Bill Clinton, although the outlines were clear to attentive observers during the tarnished one term of President Carter, 1976-1980.
The cognitive scientist and linguist George Lakoff has given us a very useful and compact version of the Republican Right’s moral and policy synthesis, a ten word summary of the pillars of neoliberalism in our era, and they do echo very closely what Polanyi sketched out for us as the core of 19th century civilization in Europe. Lakoff put it this way: the Republican Right stands for “free markets; smaller government; lower taxes; family values; strong defense.” He also took a stab at what a ten word equivalent would be for Progressives, but it didn’t resonate with me and if one understands the many diverse movements composing the Democratic Party, it’s not hard to see why. I count seven, if one includes corporate America and the professions which serve them. And amazingly, Lakoff’s formulation did not include the word “equality.” My own attempt at a unifying summary would be: universal healthcare, full employment, greater equality, economic security and environmental protection, and the corporate wing would object to every one. Yet I can hear Feminists, Black Lives Matter, the Hispanic Caucus and LGBT activists complaining already, that their issues are being submerged – or ignored, or subsumed, under my “universals.” And unions? They have lost their independent voice, as demonstrated by their lack of stirring Labor Day national addresses. And they were perhaps the preeminent “countervailing” domestic power during the post World War II “golden decades.”
As tight as Lakoff’s ten words seem to be in describing the Republican Right’s 20th century recreation of the 19th century’s core values, it doesn’t quite capture the razor sharp cutting blades the movement uses to carve up what’s left of liberalism, the faint vestiges of the New Deal which hung on through the Reagan era. To do the Right full justice, we have to see how Bill Clinton’s famous declaration fit in so seamlessly with their program, which was to dismantle the New Deal and shrink the size of government to the point where it could be “drowned in a bath tub”: anti-tax activist Grover Norquist’s death threat for “liberalism.”
When President Bill Clinton declared the “Era of Big Government Over” in his 1996 State of the Union Address, he was signaling far more than what those words literally stated. The year and unstated context are as important as the declaration itself. Market Utopianism was at its zenith, economic downturns banished, or so many thought: all the right Washington players and a probably a majority of the economics profession. The crucial unstated premise in Clinton’s declaration was that big problems stemming from the private sector economy were over as well. It was a major premise about to be disproved: by the collapse of the Mexican peso in 1994-1995, trying to swim in the immediate wake of NAFTA; the Asian crisis of 1997; the Russian bond disaster of 1997-1998; and the collapse of the Promethean hedge fund Long Term Capital Management in 1998, the fund put together by the best minds in mathematical economics. But of course, since the Committee to Save the World and the Federal Reserve were there, who needed legislation and federal programs? This was the late 20th century’s equivalent of the rescue operations of J.P. Morgan in the wake of the 1907 panic.
The Clinton pronouncement did a good job of hiding the numerous policy implications that flowed from his premise (and wish?). The government was no longer going to be an ally of progressive movements outside of government, because there would be no big programs to promote, a mutually reinforcing dynamic of lowered expectations that is still playing out today in 2016 between the campaigns of Bernie Sanders and Hillary Clinton. And there were no powerful movements either, least of all from the economic left, none pushing a coherent program; the greater force on that side of the political spectrum had become the “ecological left.” The de-regulatory movement that went hand-in-hand as the enabler of the financialization of the economy and further political empowerment of Wall Street accelerated under Clinton, with near catastrophic consequences in 2007-2008.
Closely related to the de-regulatory push which the Democrats facilitated in alliance with the Republican Right was the growing movement for “privatization” of all formerly public functions: military, diplomatic, educational, social services, the prison and criminal justice system, even entire probation systems. Perhaps most publicly prominent in this trend was the move towards Charter Schools, the attacks upon teacher unions, and overthrowing the seniority system for teachers. Hedge fund leaders and high tech-social media champions like Mark Zuckerberg played a major role in this movement as principal funders, with a large dose of accommodation from the Obama Administration and Democratic urban mayors like Cory Booker in Newark, now a U.S. Senator.
And the Clinton pronouncement of 1996 does a very good job at keeping the discussion of taxation off the policy table, which the Republican Right has dominated ever since Proposition 13 passed in California in 1978. This policy direction goes hand-in-hand with the neglect of American infrastructure, the inability to raise the gas tax, or raise the funds for any major left proposal for national health insurance, proper family leave programs or pre-school programs.
It also goes hand-in-hand with the declaration of various leaders of the Republican Right in Congress, which I now fear is also believed in, or silently accommodated to, by almost the entire Democratic Party short of Senator Sanders and a few members of the Progressive Caucus, that “only the private sector can create jobs.” In order to believe this fiction, one does indeed have to bury the history of the New Deal, which is the still barely breathing historical legacy which refutes it (along with the domestic production record during WWII), the Civilian Conservation Corps and the WPA’s public works and projects now nearly erased from citizen memory. If we all need jobs and only the private sector can create them, and it won’t do so unless we the public give it an even greater share of GDP, haven’t we just created a powerful dynamic to further imbalance the distribution of power in our society, reinforced now by Supreme Court decisions putting the wealthy in the driver’s seats of the political system?
The logical questions following upon Bill Clinton’s dramatic pronouncement are these: what will replace big government in an era of growing private sector economic crises? What will stop the spiral of America’s decline from world economic leadership which is driven in good part by inadequate tax revenue despite the money leaving labor’s hands and congealing in the accounts of the 1% - here and abroad, given the rise of tax havens? Are not average citizens, the political parties and the public good itself now at the mercy of the economic powers of the private sector? Acquiescence in all of these dynamics was signaled in that 1996 declaration of Bill Clinton’s that the era of “Big Government” was over.
As final proof that Clinton’s declaration had turned into neoliberal catechism, we have CNN host Chris Cuomo’s grilling of Senator Sanders at one of the televised town halls in early 2016, trying to get him to confess that his policy proposals violate this major commandment dominating the political sphere in the name of economic reality, the additional fitting irony being that Chris is the son of one of the last embers still glowing from the old New Deal’s ideals, of the late Governor Mario Cuomo of New York. It wasn’t a question; it was more of a secular Inquisition, a mini-McCarthy hearing on the potential violations of the boundaries drawn around political economy.
And what about that other major term of our neoliberal era, austerity, which is so cruel sounding, like it came from the mouth of a Dickens villain from the mid-nineteenth century? It is such an ingrained assumption that I don’t believe I’ve heard it uttered during the American presidential debates. Mark Blyth, who has written a passionate, readable book about it, subtitled “The History of a Dangerous Idea,” defines it as “a form of voluntary deflation in which the economy adjusts through the reduction of wages, prices and public spending to restore competitiveness, which is (supposedly) best achieved by cutting the state’s budget, debts and deficits” which will “inspire ‘business confidence.’” Blyth considers it very dangerous because it was the failed “classical” response to the Great Depression, 180 degrees in opposition to the Keynesian prescriptions, and also exactly what Germany has been prescribing today for Greece with predictably disastrous results, as Yanis Varoufakis had predicted and then resigned over in 2015.
Another way to look at austerity is that it functions as the policy “operating system” of neoliberalism. Yet in America, it has some particularly sadistic policy edges meant to bleed the remains of the New Deal federal government until it expires, what has been called the “starve the beast” direction. If “sadistic” sounds too strong for your middle class sensibilities, please follow closely the tale of the lead in the water for Flint, Michigan, where the poor got lead to drink and General Motors got the scientific driven clean-up, a story which even tops the cruelty of Wall Street banks selling very complex “interest rate swap” deals as budget deficit stop-gap measures to rural school boards in Pennsylvania – and local and state governments around the world. In both cases, this was the Austerity reality show, and the little people weren’t just “fired,” they were crucified on a cross of austerity. You can still find Bruce Bartlett’s informative article, Starve the Beast, online here at www.independent.org/...
I have said that the Republican Right has a near religious intensity about their policy goals, and this registers its highest pitch in their anti-tax commandments and the pledge that Grover Norquist requires of their candidates, which is enforced via primary election challenges by groups like the Club for Growth. It has become particularly effective since the 1970’s as middle class/working class wages and incomes have stagnated or declined, so that these segments of society look for any financial relief within their grasp, and the Republican Right is only too happy to offer the anti-tax pledge to them. It is usually accompanied by a not very well disguised Greek Chorus singing gently offstage, reminding them that most of their tax money was going to lazy minorities anyhow, not “hardworking families” like themselves, a phrase which carries within its unspoken terms the old 19th Century distinction between the deserving and undeserving poor. Hillary Clinton has sung this song to the middle class as well in 2016, pledging her own version of “no new taxes.”
In the United States, the “no new taxes” declaration has particular saliency, and cruelty, because almost all state and local governments must balance their budgets by law, even in times of recession and financial crisis, and if the Republican Right is successful in applying this reasoning to the federal government, it means that the Keynesian fiscal response to economic crisis has been entirely taken off the table, except for tax cuts. If the left proposes increased spending for a jobs program, via infrastructure spending or, heaven forbid, direct public job creation like the old CCC, then budget balancing is thrust forward as the Commandment, no matter how much the Right ignored it in their own administrations since 1980.
The “starve the beast” direction is also reinforced by one of the great “common sense” myths of American political life, the “kitchen table” wisdom that governments must balance their budgets just like families, thus assuring that all sectors, public and private, will be “contracting” during times of economic stress – just like the Great Depression! I was shocked when I conducted my own online survey in 2010 in Maryland, at what state- wide candidates were saying on these matters. Democrats were indistinguishable from Republicans, even in this post financial crisis mood, most repeating verbatim the kitchen table wisdom equating family and governmental budgets, with no mention that the federal government, with the powers delegated to the Federal Reserve, was an entirely different institution with specially designed powers…the crucial difference which can mean life or death for citizens and local governments in a severe economic crisis. Thus the family’s “kitchen table” common sense supplies the butcher’s knife to cut the federal umbilical cord of federal stimulus spending, the result being millions of families foreclosed upon.
And thus sadly the intellectual fulcrum point of American political economy is no different in 2016 than it was in 1929-1932, Modern Monetary Theory and the life of Keynes be damned. In terms of economic ideas we are still in the late 19th century, and as Karl Rove has declared, that’s just where he and the Right want us to be, secure in the embrace of William McKinley, not listening to William Jennings Bryan sermons about being “crucified on a cross of gold (or fiscal austerity).”
And what a world that long 19th century was. If Mr. Rove wants us to remember it for its spectacular economic growth, lack of a federal regulatory state and the illegality of unions, he certainly will not dwell, as I have, upon the growing intensity of its economic crises, with even the king of the trusts, Mr. Morgan himself, realizing after 1907, that the slumps of the age would have to mitigated by a hybrid institution, the Federal Reserve. Polanyi was correct: no one, not even the kings of the private sector, could live with the effects of a “pure” free market.
A decade ago, as I was teaching myself political economy to better understand what had gone wrong with our modern day economy, I more than once came across a very powerful sentence uttered by President Woodrow Wilson, usually placed as an epigraph introducing an important chapter. It said, in a bold, direct way what no modern president or candidate except perhaps Bernie Sanders could even be imagined as saying in public, the words being heresy to the illusions of our age, which shares much in common with the one Wilson was addressing: “‘The Truth is, we are all caught in a great economic system which is heartless.’”
Wilson was a Progressive conservative or conservative Progressive. Richard Hofstadter, whose classic The American Political Tradition appeared in 1948, entitled his forty-four page essay on him “The Conservative as Liberal.” Wilson’s powerful, compact judgement about our economic system is taken from the collection of his campaign speeches from 1911-12, published in book form as The New Freedom, and upon rereading it in 2016 it is remarkable how similar Wilson sounds to the Democratic candidates, sometimes leaning towards Sanders, sometimes sounding closer to the more cautious Mrs. Clinton.
In private correspondence, according to Hofstadter, he seemed to be evolving into a Social Democrat, especially in matters of energy and natural resource ownership; in public, on economic reforms, he was caught in that whirlpool which spins so many progressive reformers round and round: he brandished anti-trust rhetoric and thought jailing even just one prominent corporate lawbreaker would be sufficient shock to restore the “common good.” In fact and policy, though, he longed to restore the past, the economy of Lincoln’s boyhood, of many small competing firms. In reality, from his Progressive era to the New Deal, and into our own times, America has never put a vigorous, sustained anti-trust policy into action. The reason for the failure to do so, I believe, is because such a program would mean accepting what those further to the left have always said about capitalism itself: left to its own inclinations, it tends towards oligopoly if not monopoly.
Wilson was a Southerner at heart, raised by parents with deep roots in the Protestant ministry, and it is not unfair to say he was, at his worst, a moralistic, racist Victorian, linking him even more to the feel of our 2016 campaign, as black activists at Princeton University seek to rename buildings and schools for someone better. Wilson’s name today evokes a string of epithets from even the most refined on the academic left, like Corey Robin. Yet in re-reading his book, it is hard not to see a better side to him, someone who grasped that the private powers, the interlocking trusts of the late Gilded Age, were deeply impairing if not destroying democracy.
The New Freedom reminds us that we have had now three great Gilded Ages in America: the original, 1880-1916; then “the frenzy” of 1922-1929; and 1980 through to the present, with the high-water mark coming in the “Roaring” late 1990’s, with the crash of 2008-2009 still not marking the end of “Part III” because we have nowhere come close to dealing with the loss of industrial jobs overseas, wage stagnation or the great maldistribution of wealth. In other words, we still don’t have a green new New Deal, one that will have to come up with newly invented countervailing forces to keep economic power from strangling democracy. Hofstadter says that was also Wilson’s great failing: he called for a revitalization of American democracy, but not for economic democracy. The American state he envisioned was going to be a neutral arbiter among competing interests rather a champion of the middle and working classes. His intervention into World War I, left stranded, for a generation, the moderate reforms his administration did pass, and gave us an all too realistic preview of how powerful and reactionary the American state can be when embarked upon one of its “crusades” against evil “others.” Even when these directed enthusiasms, or orchestrated hatreds, did not start out that way, they have usually ended up being aimed at the American left.
For now, however, consider these brief passages for the connection of President Wilson to our own times and troubles, the better similarities, from the pre-war Wilson. All are taken from the early chapters of The New Freedom:
Since I have entered politics, I have chiefly had men’s views confided to me privately. Some of the biggest men in the United States, in the field of commerce and manufacture, are afraid of somebody, are afraid of something. They know there is a power somewhere, so organized, so subtle, so watchful, so interlocked, so complete, so pervasive that they had better not speak above their breath when they speak in condemnation of it…if he enters certain fields, there are organizations which will use means against him that will prevent his building up a business which they do not want to have built up…Why? Because the laws of this country do not prevent the strong from crushing the weak…
All over the union people are coming to feel they have no control over the course of affairs…until two years ago we had witnessed with increasing concern the growth in New Jersey of a spirit of almost cynical despair. Men said: ‘We vote; we are offered the platform we want; we elect the men who stand on that platform, and we get absolutely nothing.’ So they began to ask: ‘What is the use of voting? We know that the machines of both parties are subsidized by the same persons, and therefore it is useless to turn in either direction.’…
We are in a temper to reconstruct economic society, as we were once in a temper to reconstruct political society…We stand in the presence of a revolution, not a bloody revolution; America is not given to the spilling of blood, but a silent revolution, whereby America will insist upon recovering in practice those ideas which she has always professed, upon securing a government devoted to the general interest and not to special interests…
The law is still living in the dead past which we have left behind…We have not adjusted the law to the facts of the new order. (Editor’s Note: the emphases are mine, not Wilson’s.)
Part Two: The Roots of Our Troubles: Is Equal Justice Possible in an Unequal Society?
Is there any notion more corrosive to the sense of fairness in society– of “Equal Justice Under Law” - the expression is chiseled over the façade of the Supreme Court building in Washington, DC - than a pervasive sense among the people that such a notion no longer exists for “them”? It was once so important that the grandparent of American labor unions, the Knights of Labor, put it this way, as one of their founding principles in January of 1878: “…equal justice through the courts for working man and capitalist…”
Coupled with the now widespread recognition of economic inequality, these two perceptions of unfairness are ominous signs, forebodings of much trouble to come.
Let me ask, right off the bat, are they related to each other, and if so, how? I believe they are, and although they may manifest themselves differently in each era, they are rooted in the illusions of “liberal” legal ideals that remain in constant jarring incongruity with the realities of a class-structured society. Stop and repeat the words carefully: Equal Justice in a very unequal society. This is true despite the universal “Appeals Court” operating in our imagination to rule in favor of the underdog via the American Dream, where anyone can, through perseverance and hard work…make it…economically and presumably, obtain that “Equal Justice” in the legal sphere as well. That Dream’s realities and illusions are tempered by a fair reading for our “meritocracy,” truest symbolically, at least, in the successful entry to the Ivy League of the first generation of children from recent immigrants, but undermined by the recognition of what happens as the successful pass along their advantages to their children, as clearly laid out in Christopher Hayes’ Twilight of the Elites: America After Meritocracy (2012). With their newly won economic means, some of the methods the elite meritocrats are willing to use to pass along their advantages are frightening, obsessive. It leads to massive cheating scandals and high tuition private “pre-school” prep schools, to children on a competitive treadmill at the age of 4. Closely related is another American obsession: that a “good education” solves the problem of inequality. Even Diane Ravitch cannot seem to persuade us otherwise.
Towards the end of our first Gilded Age, when Woodrow Wilson was noting the time lag between the law and the structural realities of newly industrialized America, he was referring specifically to the law of contracts, an ancient construct truest in the Ante-Bellum world of the 19th century, between equally sized small firms with a dozen employees, but now exposed for all to see, except the Justices at the highest perches of the legal system. Wilson points out the absurdity of applying that law when we are talking about one worker, forbidden to combine with others to form a union, being free to bargain “equally” with his employer: one of 10,000 now working for one of Andrew Carnegie’s steel mills. Wilson also pointed out the hypocrisy of forbidding workers to join together for mutual benefit in the very midst of the dominance of “The Trusts,” the legally sanctioned green light given for capital to consolidate and cooperate through ownership patterns weaving together production, transportation and financing.
The pretenses of the law of contracts was one of the most substantial legal illusions working to block greater economic equality in the late nineteenth century, and as additional proof of how long that 19th century lasted, it was still the main obstacle when Frances Perkins had her face-to-face interview with newly elected FDR, in early 1933, her interview for the post of Secretary of Labor. This legal theory was called “Lochnerism,” after the 1905 Supreme Court decision, Lochner v. New York. Historian Eric Foner noted the decision “became almost as notorious as Dred Scott…” The state of contract law was the obvious road block to the list of labor market reforms Perkins insisted that Roosevelt allow her to pursue. And to which he agreed. The Supreme Court finally did adjust to the popular will, after much Presidential pressure via the Court packing gambit.
Or consider another major aspect of “Equal Justice Under Law,” the great dividing line which is drawn between the rights of the owners of capital and the workers employed under them. That line was chiseled in stone above the entrance to what is said to be the most expensive college building ever built in America (per square foot), at Lafayette College in Easton, PA, and the first one dedicated to the study of government and law. It was built in 1929-1930 at the cusp of a transition from one era to the next: The Kirby Hall of Civil Rights (Sic). The words and building were the genesis of Fred Morgan Kirby, co-founder of the great Woolworth retail chain. The inscription reads: “Is it not lawful for me to do what I will with my own” (Matthew 20:15).
Those words were impossible to ignore, even for an unsophisticated incoming freshman like myself, whose dorm was close to the building, and who took classes there in 1968-1969. And that was surely the intent of the inscriber, to put his stamp on students and what they were taught. You can still sense the physical awe, if not intimidation, of the building and the philosophy of the man behind in this brief, uncritical video: www.youtube.com/...
I doubt my initial reaction, though, was what Mr. Kirby intended. I had paid close attention to the civil rights struggle of the 1960’s, even when I was in junior high, and had witnessed a domestic Civil War inside my own family, Goldwater dear cousin vs Martin Luther King quoting future brother-in-law. My immediate reaction to those words was therefore “is this a justification for slavery?” Even though the subscriber managed to get the words Anglo Saxon on his dedication plaque, and had a supportive Herbert Spencer saying chiseled elsewhere (“Every man is free to do that which he will provided he infringes not the equal freedom of any other” – which is a lot softer than the words over the entrance) he had something much more contemporary in mind: to limit the ability of his workforce to organize to defend themselves. It was aimed at unions and the defense of that contract clause: if you don’t like the terms, don’t sign the “contract.” You are “free to choose” where you work.
In many ways then, the contract clause represented the same notions from the economically powerful of an earlier era as our current one’s defense of political spending equaling free speech, as encapsulated in the Citizens United ruling. Is it not lawful for me to do what I will with my own money, my free speech? Although the economically powerful today would shy away from this formulation, what they are really driving at is also the right to own, and dispose of, the political process - democracy, in other words – reduced to just a footnote to Matthew 20:15.
As I was thinking back upon on this inscription, which left such a powerful impression upon me and which I spontaneously disputed even at the age of 18, I also thought about another cultural legacy from that decade of the inscribing: F. Scott Fitzgerald’s The Great Gatsby.
I’ve re-read it every five years since the 1970’s, and I testified, near the end of my environmental career, in 2001 or thereabouts, to the NJ Legislature on coastal law reforms by reciting passages from the closing page, about the once “fresh green breast of the new world” and the “green light” glowing at the end of Daisy’s dock, across the bay: a never ending signal to bury what’s left of nature at the coast under marinas and trophy houses, large exclamation marks to the successful pursuit of the American Dream but a death sentence for nature.
Upon my most recent reading, in the fall of 2014, however, I was struck by the passages describing the “Valley of the Ashes,” the opening pages of Chapter Two, where the working class lived, and Tom Buchanan’s mistress, Myrtle Wilson and her husband George. The Wilson’s lives were taken for granted and abused by the powerful. They struggled to become their own protagonists: to obtain justice when one of their own is run over by the epic carelessness of the economic elite. Gatsby arranges things to protect himself from the legal system, but George B. Wilson takes justice into his own hands, not perceiving any recourse to obtain Equal Justice Under Law from the depths of the Valley of the Ashes, which anticipates Polanyi’s “stark utopia” by nearly two decades.
Let me ask out loud now what I have asked myself privately: is it fair to take a society, especially a great one, up upon its own pretensions, illusions even, about actually dispensing “Equal Justice Under Law”? I suppose for one that is founded upon the denial of the reality of social classes, this is not unfair. After all, that illusion of classlessness depends upon denying the physical evidence before our very eyes as we drive out from the urban ghetto to the economically sorted suburbs: from Trenton to Lawrence to Princeton, from Newark to Paramus to Short Hills…from the South Bronx to the Upper West Side…or as Mr. Springsteen has taught us, from Asbury Park to Spring Lake. And let me address the further illusion that our free-market capitalism is some kind of steady state dispenser of fairness in the sense it rewards true worth and striving after the Dream in a historically even manner. To make it seem so, we must rely, in America, on destroying historical memory to pretend that the capitalism of Lincoln’s boyhood was the same as that of Twain’s Gilded Age or Jay Gatsby’s Roaring Twenties, that of the 1950’s the same as Bill Clinton’s Roaring Nineties.
So in all these senses that we in America insist upon our illusions, then let us take the premise, the inscription of “Equal Justice Under Law” as a serious ideal, even an operating feature of liberalism old and new, to hold our leaders to.
I say this under some strain, having worked as a social worker and “welfare” supervisor in the Trenton ghetto for more than a decade, where I saw firsthand the decay of the old urban ethnic New Deal coalition and the rise of Reagan’s Market Utopia, suburban driven, with the racial backlash component barely concealed. In the late 1980’s I heard Cornel West give a featured speech in the Reverend S. Howard Woodson’s Shiloh Baptist Church, one of the last intact black institutions in the city.
And then my environmental career spanned the last years of Reagan and two terms of Bill Clinton. Therefore I know very well how desperately short the resources available to Legal Aid societies and Environmental Law Clinics were compared to those of landlords and the NJ Builders’ Association, human and financial resources. To make it a bit more formal, the national Legal Services Corporation was authorized by Congress in 1974, re-authorized in 1977 but never again, a fitting punctuation mark on a society heading to the Right. In FY 2006 the federal appropriation was $327,000,000 spread over somewhere between 1.2 and 2 million agencies/organizations at every level. In the abstract it sounds like a lot of money, but an assessment of how this decentralized system was meeting the needs of the citizens that come to it for help states the cold water reality: it could only reach 20% of the applicants.
Equal justice? Not even close in my own direct experience with the poor or in the defense of what remains of nature in the grip of “the economy.” For middle class people with some financial “surplus” that could be spent to defend themselves when they encountered some unfairness…yes, there the system might proclaim some approximation of “equal justice.” For the poor, however, it would take a determined ignorance of the facts on the ground in American history to maintain the pretense, although from time to time a “Gideon’s Trumpet” of justice sounds amidst what has grown to be a heart of darkness.
I’m thinking here of the work of the very determined Bryan Stevenson, who founded the Equal Justice Initiative in Montgomery, Alabama in 1989, and who is trying to project a few beams of justice into all the lives which have been thrown into that darkness we now call the “Great Incarceration.” The daunting scope of his task reminded me of the proud notes that Gideon Trumpet’s once sounded for liberal society – and its pretensions to Equal Justice.
For you see, I first heard of Clarence Earl Gideon, a prisoner petitioner in a hand-written letter to the Supreme Court in January of 1962, when I read about his story and the book of that name by Anthony Lewis, read about him in an American liberal classic, Robert Dahl’s 1967 book Pluralist Democracy in the United States. That book was assigned to me in my freshman year at Lafayette College, assigned by a government and law teacher dispensing wisdom from under the shadows of that grim chiseled inscription, and I still have the book on my library shelf. I wonder if Bryan Stevenson has read it, because petitioner Gideon was a poor white man who had been in and out prison himself, and was challenging his latest prison sentence because “he had been tried – and – convicted – without benefit of counsel.” So his Supreme Court victory overturning that conviction was a big deal to liberals, to wave about to show us that the system worked for all, even the poorest. That was the late 1960’s, when the old New Deal liberalism was under great strain. It’s gone now, replaced by Neoliberalism and there are thousands of silenced black trumpets in our increasingly privatized prison Gulag, many with stories to tell far worse than Gideon’s. Bryan Stevenson and his attorneys are trying to win freedom, and a measure of equal justice, for as many as possible, a truly Sisyphean task. And as proof of our systemic troubles, some of the obituaries for the impressive Robert Dahl, who died in 2014, clearly noted his increasing pessimism about how our democracy functions under the strain of corporate power and mass media.
Given this dose of realism, which I must declare to protect myself from charges of complete naiveté, I still move forward to ask an important question: has the situation gotten worse, has the attempted dispensation of “Equal Justice Under Law” gotten worse or better since the rise of Neoliberalism in the 1980’s? I think you already know what my answer will be; now I must demonstrate the proof of it for you. I think it is relevant to note that just six years after the formal reign of neoliberalism began in the US, which I’ll date for convenience as 1980, Professor Dahl published a book entitled Preface to Economic Democracy, once again calling attention to the old tension between political equality and economic inequality.
Let me begin demonstrating the proof for you, not at the bottom of society, with the Great Incarceration and the suppressed voices silenced in solitary confinement, but rather at the top and with a special spotlight focused on the generalizations that set off conservative Neoliberalism from the liberal Keynesianism that flowered in the wake of the New Deal. And among these guiding generalizations among public policy elites, elected officials and far too many economists, the most crucial one is the vast presumption that anything rooted in the private sector of the economy is “better,” more creative and more efficient, than its equivalent, if there is one, in the public sector.
This is one of the foundational premises of classical economics, which saw itself as unleashing private individual powers from the last vestiges of feudal and mercantile monarchists. It was never without its great hypocrisies, as Polanyi so brilliantly pointed out, because markets were constructed by governments, and almost immediately public investigations and then regulatory agencies followed to try to put a “human face” on the inhumanities the market had wrought in the 1840’s. Even during left liberalism’s proudest moment, the New Deal, what historian Ira Katznelson has called an event “almost on a par with that of the French Revolution” and “the most important twentieth-century testing ground for representative democracy in an age of mass politics,” its most profound interventions into private labor markets, done out of sheer necessity, not ideological zeal – the CCC and WPA, for example – paid homage to the dominance of the private markets by keeping its wages pegged lower than the private sector’s. And these were viewed as temporary programs, waiting upon the recovery of capitalism, and never scaled to the level necessary to fully recover the economy. It would take the all- consuming effort to prepare for World War II to break through the powerful orthodoxies of classical economics, especially ignoring the supposed “catastrophe” triggers of the size of the public debt in relation to GDP.
It is from this vast intellectual imbalance, in theory and practice, between the public and private sectors, that most of our great ills, and the unspoken attack upon Equal Justice Under Law, flow. It serves as a great mask as well, covering up the almost unbroken military Keynesianism that has flowed into the private sector since World War II, always finding new “others” to fuel its unquestioned justifications: first Cold War, the Soviet Union; Red China, Vietnam, Saddam Hussein, Islamic Fundamentalists; Second Cold War, Putin’s Russia…This great imbalance between the “virtues” of the sectors propels the drive for privatization in all economic spheres and even into traditionally public sectors: education, charter schools, even public colleges which have become “business schools,” inviting joint ventures in research with the private sector, for profit colleges, many online; energy, where de-regulation of markets in the 1990’s became a disastrous fad…and on into the day-to-day staffing and services for American foreign policy, where the numbers of private contractors often outnumber regular troops and the old diplomatic corps… And on into social services, the prison and probation system, as we will shortly see in shocking detail.
This great imbalance between the public and private sector has become a moral force, with the stigma coming to rest upon the public sector. The cognitive linguist George Lakoff has done a very good job in showing how this brand of moral economics has merged seamlessly with the rise of fundamentalist religion in his book Moral Politics: How Liberals and Conservative Think (2002).
Understanding this moral foundation for the rise of Neoliberalism helps explain the power of the anti-tax movement, the “starve the beast” approach to dismantling what’s left of the New Deal. Declaring “no new taxes” for the inefficient government then becomes not just a practical thing to avoid a further drain on stagnant or declining middle class and working class incomes, it becomes a morally charged decision. Add in the racial factor of government programs perceived as disproportionately helping racial minorities, now illegal immigrants too, and the power of Neoliberalism has been vastly multiplied. To demonstrate that it is an ideology which transcends the particularities of the unique American nation, just lend your ear to the same tone and content coming from Germans as to why they shouldn’t pay for a “New Deal” for Greece, with “lazy” Southern Europeans substituting for the character flaws Americans attribute to ghetto blacks.
Beneath these dynamics fueling the current imbalances in the weighing of the public versus the private sector lays another major unspoken premise. And this is that the era of “Big Government” can be “safely” over only if one believes that the private sector, that is capitalism itself, will never again experience anything like its collapse in the Great Depression of the 1930’s. By the late Bill Clinton era in the 1990’s, it is true, it was hardly unspoken: the Utopianism of Market Fundamentalism was on many lips, in academe at the University of Chicago and elsewhere, and on CNBC, daily, in 1999, courtesy of Rick Santelli, who speaks like he is reciting from a George Lakoff primer on the moral values of the Right. Yet for the majority of public policy discussions, it remains unspoken, even after 2007-2008 and the subpar recovery, and economic turmoil round the globe in 2015-2016, with many major countries in recession, deflation rampant and China tottering on the edge of something profound.
No one should underestimate the power of this “faith” in private markets, a belief so religious in its intensity that it had to attribute the near collapse of 2007-2008 to bleeding heart liberalism in housing markets, not its own ideological program of 30 years’ standing. This blind faith had been growing intellectually among policy elites even as it was factually harder and harder to sustain ever since the East Asian crisis of 1997. But it is still a living, breathing set of premises, theological in intensity, heard every day from the lips of the leaders of the Right in the American Congress.
Before I take a closer look at how neoliberalism is skewing, if not destroying, the ideal of Equal Justice Under Law in different sectors of American life, there is one more major clarification that needs to be made. So far, I have put the burden on the Republican Right for advancing with great intensity, the Neoliberal agenda. It was greatly facilitated by Democrats moving right since Jimmy Carter, especially reaching a climax under Bill Clinton, but it has clearly continued under President Obama. We have also held up the New Deal as the moral compass in matters of political economy, a compass that the Democrats have abandoned, with both parties trying to bury FDR’s legacy. However, there was more than one New Deal, there were two distinct phases, the early New Deal from 1932-1937, and the later New Deal, which was forced to retreat by the growing alliance of Southern Democrats with traditionally business oriented Republicans. By 1938, the outlines if not the actual substance of the contemporary Republican Right should be clear to anyone who wants to take a close look, back over their contemporary shoulder.
Liberals had changed as well under this rightward pressure of the late 1930’s in Congress. The New Deal, the ally in government of the dispossessed and unorganized industrial workers of the early 1930’s, had a conservative side as well. Its caution and the “neutral procedural state” which it left us after its early phase helped create a value vacuum if not a power vacuum, which private corporations and the Right were only too happy to fill, although it took quite a while for the ramifications of this vacuum to become apparent. To sketch this out for readers, I will rely upon the insightful summary of this ambivalent legacy of the New Deal presented in the Epilogue of Ira Katznelson’s Fear Itself: The New Deal and the Origins of Our Time (2013). Once the ramifications of what Katznelson presents are fully grasped, it is much easier to understand how Sheldon Wolin’s last book, Democracy Inc. reaches for its subtitle, the “Specter of Inverted Totalitarianism” in 2008.
This was also the theme of William Greider’s 1992 book Who Will Tell the People: The Betrayal of American Democracy, which clearly stated that it was corporations which were stepping into the democratic vacuum, not populist insurgencies. His chapter entitled “Citizen GE” is a compact classic, twenty-four pages, and ought to be required reading in all high school civic classes as well college government, history and economic classes, and yes, even within the syllabi of the most popular college major of our day, “Business.” Already by the time Bill Clinton took office in 1993, Greider had put the intellectual spotlight on GE for its tax avoidance, lobbying practices, international trade directions and yes, ability to commit repeated crimes and escape significant penalties, criminal and civil, in the way no ordinary citizen could.
So how did this vacuum develop in the wake of the New Deal “system?” Katznelson traces its evolution into a governing system whose flaws set the stage for a takeover by a counter-philosophy from the Right. Here are the main themes, from two pages in his Epilogue. If some of them sound familiar, they should be, especially to followers of the classic works on Liberalism of Theodore J. Lowe, who Katznelson cites:
The vision that underpinned this procedural state was not ‘radically decentralized and democratized down to the grass roots and the shop floor…’ Rather… ‘the New Deal realists…accepted the basic social interests pretty much as given; the benefits of government-sponsored ‘counter organization’ bypassed most farm laborers, black sharecroppers, and the poorest of the poor. Their essential job, as the New Dealers increasingly saw it, was to keep the craft of state, leaky and unevenly loaded, in balance.’
The social whole, and with it the idea of a common good based on shared goals, disappeared. There was no attempt to galvanize agreement about the ends of government…With government possessing no inherent goals of its own, the potential to abuse power is moderated…
But this particular type of democratic state opened the door to three kinds of deep problems that have persisted. First is a narrowing of politics to thin, confined, restricted, and potentially polarized interests. This contraction of civic sensibility to a politics without public purpose or norms can heighten conflict over limited matters and lead to gridlock or the rule of intense minorities.
Second is how putatively neutral rules favored those with more resources. Open rules can lead to the capture of key policies, agencies, congressional committees, even political parties, by outside interests with focused goals and concentrated means. A state without substance is a state ripe for special interests to grab hold of key elements of government. Although the procedural face of government did not officially recognize particular private interests as more privileged than any others, it effectively reduced the scope of labor as a national class, and in so doing helped enhance the power of capitalist firms and business ideology. ..From time to time, efforts have been made to counter the imbalance of money, organization and access, but unless strong counter pressures can be mobilized, inequality grows, poverty is neglected and equal citizenship is compromised.
Third is how, with ‘sovereignty …parceled out among the groups’ and with public values trumped by private-regarding goals and power, the procedural state generates recurring crises of public authority and civic trust. Disillusionment and cynicism result when a system declared to be impartial and just by definition is found to be unfair. The result is either too little political participation or episodic and volatile participation by enraged citizens who are convinced that the putatively neutral rules of the game are rigged.
Once the New Deal’s more assertive projects for managing capitalism ended and the prospects of a national labor movement diminished, both the result of actions by fearful southern representatives, the longer-term prospects of the American democracy were sharply constrained, and the range of feasible options narrowed to a conservative return to business capitalism or a liberal defense of the fiscal policies that the New Deal ultimately fashioned. (Editor’s Note: my emphasis…)
By 2011 it was becoming increasingly apparent that the Justice Department, headed by Eric Holder, the Attorney General under President Obama, was not going to criminally prosecute the executives behind the high financial crimes committed by mortgage originators, the ratings agencies, or the Wall Street banks which marketed the final derivative products, the mortgage-backed securities. This despite the work of Yves Smith at Naked Capitalism, Bill Black at the University of Missouri, Kansas City, Matt Taibbi at Rolling Stone, and Bill Greider’s article in The Nation magazine, “How Wall Street Crooks Get Out of Jail Free,” which appeared in the April 11, 2011 print edition.
Greider’s article served to remind the public that what emerged glaringly, shockingly in the wake of the financial crisis – fines, but not jail time or even criminal prosecutions after the courtroom failure in the Bear Stearns case in early 2009 – was not new, had a long genesis, and has formally existed since 2003. That year saw the official emergence of the “deferred prosecution agreement” at the Department of Justice, the place where prosecutions must happen, the SEC not having those powers, only the ability to submit referrals for prosecution. The “Deferred Prosecution Agreement” allowed companies to avoid criminal liability, to substitute fines and monitoring instead, and essentially to avoid the “severe consequences of criminal conviction – the loss of banking and professional licenses, charters, deposit insurance or other government benefits, including eligibility for federal contracts and healthcare programs. In other words, the punishment prescribed in numerous laws.”
Corporate crime has a tricky structure, and a key part of it emerged from the early intent to shield corporations, a legal creation of the 19th century, and blessed with fictitious personhood, from the crimes of individual officers. Add to that the high hurdles set up for proving criminal intent, and the legal playing field is already tilted against criminal prosecution compared to that for the individual citizen. What is perhaps even worse is that corporations are shielded from cumulative judgements on their repeated crimes, as any look at SEC compilations will demonstrate. To put it bluntly, corporations receive the exact opposite of what a citizen with repeated violations faces – for example, from their own their driving record. The corporate laws hold the same punishment potential, but the prosecutors have the discretion and a new “forgiving” system has evolved. (This treatment surely must bother legal crusader Bryan Stevenson, whose 2014 book, Just Mercy, pleads for such forgiveness for the innocent racial victims of the Great Incarceration. But if it does, he keeps it well under wraps in his public talks; as we will see, we just get a glimpse of the line of logic I lay out here…)
Yet Greider himself seems to have recognized that this trend long preceded its formalization in 2003 in the Deferred Prosecution Agreements. In his 1992 book, in that famous chapter on “Citizen GE,” Greider quotes now well-known Professor Amitai Etzioni, “who found that 62 percent of the Fortune 500 corporations were involved in one or more ‘significant illegalities’ in the decade from 1975 to 1984. Nearly half of them – 42 percent – were identified in two or more episodes of corrupt behavior.”
In 1992, Greider was inclined to stress business school emphasis on corporate efficiency – cost cutting – not individual executive moral failure – for the growing illegalities, stating that cutting costs and corners was a business fact of life that no corporate executive could ignore and survive. But since then, as he points out in his 2011 “update,” such reasoning has been taken to a new level of brazenness. Greider cites legal scholars Frank Easterbrook and Daniel Fishel on the new realities: “‘Managers have no general obligation to avoid violating regulatory laws, when violations are profitable to the firm.’ They even argue that ‘managers not only may but also should violate the rules when it is profitable to do so.’” It seems like Volkswagen executives were paying attention.
Now the legal system is not even holding guilty individual managers, much less firms demonstrating repeated illegal activities, accountable, unless you believe that the fines are adequate deterrents. For this outcome we have to search for deeper causality. That causality has a number of layers, built upon the assumptions of policy makers and key governmental actors, like the regulators at the SEC and the “national prosecutor’s office” - the Attorney General’s. At the highest level of generalization, it flows from the belief system of neoliberalism that the economic actors of the private sector, upon which the health of the national economy is dependent, are so crucial to the “public good,” or “national interest” if you would prefer, that any legal action which damages their “standing” must be softened, and the “collateral damage” limited as well.
Citizens, this is how in a nation without an aristocracy, and without formal castes once slavery was abolished, the economic winners climb to assume privileges indirectly, by a chain of labored reasoning that places them out of the reach of the ideals of “equal justice under law.” It doesn’t happen overnight, or in a grand coup, it happens in slow increments as the interlocked and self-reinforcing premises of a new ideological age inch forward to claim every piece of social and economic terrain, and finally, as they must to add certainty, to capture the legal system’s mechanisms.
It is one thing to make the economic case for leniency in the immediate wake of a great financial crisis, when the culpable banks were at the heart of the teetering system, but it had already been made by 2003, if not before, before the Great Financial Crisis of 2007-2008. Powers had been created which we all depend upon; do you want to risk the shockwaves from tampering with it? The lending system is frozen. That was essentially the frame and dare presented to Congressional leaders gathered in House Speaker Nancy Pelosi’s office by the Secretary of the Treasury, former Goldman Sachs CEO Henry M. Paulson Jr., and Federal Reserve Chairman Ben Bernanke on Thursday evening, September 18, 2008. Now it has been generalized. If it is true that “only the private sector can create jobs,” and everyone wants and needs a job, (speaking of another type of dependency here, 180 degrees opposite the Right’s usual usage) then to damage the “job creators” in a significant way, legally deserved punishment or not, is a fraught line of action and consequences.
The era of Big Government being over, where is the countervailing power to balance the rise of great nodes of private economic standing, the dominance of corporations and super-wealthy individuals? And since Attorney Generals and key governmental regulators are appointees of the political system, and the political system of both parties has been captured by large private donors, the linkages have spread too far, the damage has been too great, it is overwhelming James Madison’s checks and balances even among the supposed “conflicting” private interests in a large republic, because Madison failed to imagine the power of ideology to align so many of these conflicting interests in the same direction: anti-government, anti-tax, anti-regulatory.
The great imbalance of power between Bill Clinton’s gelded “Big Government” and the private sector is also significantly reflected in the imbalance in pay in the structure of the job market for regulators and congressional professional staffers. Before Bill Greider’s article How Wall Street Crooks Get Out of Jail Free appeared, Matt Taibbi, the street-smart journalist who followed in Greider’s footsteps at Rolling Stone magazine, had his own take on “Why Isn’t Wall Street in Jail” in February of 2011. Taibbi’s contribution was to point out the actual career ladder for the regulators at the SEC, the Commodities Future Trading Commission and the other relevant financial regulatory agencies, including the crucial U.S. Attorney’s Office for the Southern District of New York. The young legal regulators aren’t dreaming of becoming the Ferdinand Pecoras of our era, not after the example which was made of Brooksley Born in the 1990’s by Larry Summers, Robert Rubin and Alan Greenspan, during Bill Clinton’s second term. (See the PBS Frontline show “The Warning.” PBS-Documentary, Frontline, The Warning. October 20, 2009. www.pbs.org/... www.pbs.org/... ) Their eyes are rather on becoming partners at the major law firms which defend the same corporations they are charged with monitoring and targeting for prosecution via referral to the Justice Department. It’s a clear situation of a “captive bureaucracy,” Taibbi declares, “and when the state simply gives up on the notion of justice – this whole American Dream thing recedes even further from reality.”
In July of 2015, Taibbi bid farewell to Attorney General Eric Holder whom he called a “Wall Street Double Agent” who “Comes in from the Cold.” He entered government from the private law firm Covington and Burling, which defends some of the largest banks, and Holder apparently had an office waiting for him when he left government. Taibbi accused him of “creating a system of indulgences wherein the world’s richest companies paid cash for their sins and escaped the sterner punishment the law dictated.”
Taibbi is merciless on the conflicting rationales Holder had offered over his six year tenure, for adopting the light touch he did in handling financial and corporate crimes:
But in the end it was pretty convenient, wasn’t it, that ‘the right thing’ also happened to be the strategy that preserved the Democratic Party relationship with the big-dollar donors, kept the client base at Holder’s old firm nice and fat, made the influential rich immeasurably richer and allowed Eric Holder himself to crash-land into a giant pile of money upon resignation. What a coincidence! In any civilized country it’d be a scandal. In America, though, he’s just another guy selling whatever he can get by with. It’s just too bad that what Holder had to sell was the criminal justice system. (Editor’s Note: my emphasis.)
The same power imbalance that radiates outward from the dominance of the private sector is also reflected in the revolving door between government and private sector lobbyists. Jeff Madrick’s scrutiny of two new books in the April 7, 2016 print edition of the New York Review of Books is entitled “How the Lobbyists Win in Washington.” The works under consideration tell us something by their very titles: The Business of America is Lobbying: How Corporations Became Politicized and Politics Became more Corporate by Lee Drutman, and The Influence Machine: The US Chamber of Commerce and the Corporate Capture of American Life by Alyssa Katz. One of the structural problems brought to our attention is that private lobbying firms are offering double and triple the salaries of the professional staffers who advise our elected representatives, and then become the experts that the same Congresspeople rely upon for the background information that shapes legislation. It is no longer a game of just “shaping” that legislation or clarifying technical points, though. Private corporate lobbyists now draft sections of a law, if not the whole law itself, and they have been repeatedly “caught,” if that is the right word – there is now apparently no shame in it – in drafting partisan talking points for elected officials. (The warnings are not new: Kevin Phillips 1994 book, Arrogant Capital: Washington, Wall Street, and the Frustration of American Politics contained very similar indictments of the system.)
What struck me as quite different, and insightful, in Madrick’s review is that private corporate lobbyists are now aiming at “changing the ‘intellectual environment.’ The requirement is again to invest ‘considerable sums in saturating the ‘intellectual environment,’ writes Drutman, making it possible to overload the ‘minds of policymakers and their staff so that when the time comes to make a decision, certain argument and frames will come to mind quicker than others.’”
This ought to be of interest to every intellectual historian who has ever considered the concept “climate of the times,” or what makes a historical “era.” At one time, in less cynical times, one might believe that different eras evolved organically, and I suppose there is still some truth to that, although certainly not always for the better. Neoliberalism, however, has been driven by intellectual ideologues for a long time, at least since the founding of the Mount Pelerin Society in Switzerland on April 1, 1947 to advance the ideas of its seminal voice, Friedrich von Hayek. Or since the arrival of the Lewis Powell memo at the U.S. Chamber of Commerce in August of 1971, a memo entitled “The Attack on the Free Enterprise System.” Talk about shaping the “intellectual environment.” As described in Kim Phillips-Fein book Invisible Hands: The Making of the Conservative Movement from the New Deal to Reagan (2009), Powell’s memo urged corporate America to “marshal their power to influence the universities, the media and the courts…business needed to recognize that ‘political power is necessary; that such power must be assiduously cultivated; and that when necessary, it must be used aggressively and with determination…’”
So by 2016, we don’t have corporate lobbyists as one set of actors with particular technical knowledge that is useful, if not important, for legislators to be aware of, as Hillary Clinton has described her relationship with them. Lobbyists are now cultivating the “climate of the times” – Neoliberalism – actually growing it in a “forced” ideological “hothouse” that has the Congress baking in its heatwaves.
I was very much aware, during my environmental career (1988-2001), that there was a many-branched conservative legal movement, foundations and legal professional societies, which were focused on overturning what they saw as the key legal foundations to the New Deal and its regulatory state. Much of my work centered on land-use, and by the early 1990’s at every turn we were encountering the “property rights movement” intent on moving the center of gravity on the “takings” issue under the 5th Amendment, pushing eventually, successfully, so far to the right of the spectrum that the legal outlook in South Carolina at the nation’s founding was more liberal than the new center of gravity in the Supreme Court. It was becoming so absurd that conservative lawyers were declaring a taking when a governmental regulation caused any reduction in property values, a far cry from the three pronged test and high threshold for value reductions that existed in the 1960’s and 1970’s, with the NJ Pineland Preservation Act of 1979 representing the high water mark of the environmental legal left.
A similar conservative push has been long underway to reduce the power of the commerce clause to be the author of much nationwide environmental regulation, especially in the matter of wetlands, but certainly not limited to that category.
Anyone who followed the funding issues for national and state parks saw the rise of the popularity of “user fees,” a sign of the neoliberal attack on taxes and the use of general revenues for what were traditionally seen as very public functions. I mention this issue because the logic of making users pay rather than the general public has also been carried to an absurd degree, as we will shortly see in the criminal justice system. Even the more conservative environmental groups have caught the user fee fever, employing it in such policy areas as “congestion pricing” where peak time road and tunnel users pay more, and toll roads are becoming more and more common …while the alternative of mass rail transit, publicly subsidized, has fallen out of favor with both parties because of the cost-tax issue and the determined hostility of most the Right.
I will leave it – perhaps a mistake – to legal scholars to tell us, comparing different eras with different ideological leanings, whether the Right has, since the mid-1970’s, done more legal “forcing” than the left legal institutes did during the 1932-1973 New Deal liberal era. I do know this much, however: wherever I look, I find synergy between neoliberal economics and conservative legal strategies, and I see more institutions creating that synergy, far more, on the right than on the left, and it’s been that way for quite some time now.
So much for Equal Justice Under Law at the top of our system, where the laws are conceived and crucial decisions to prosecute major financial actors - or not – are also made. But what about the ground level justice for what I will call the “middle class” of the financial crisis, the citizens who had their homes foreclosed upon? Well, I think Matt Taibbi more than earned his reputation as a dogged reporter on this one, a gritty street level reporter, because he got the very good idea to actually sit in on what came to be called the “Rocket Docket,” a special court set up by the Florida legislature in July of 2010, to clear out at least 62% of the backlog of foreclosure cases that were jamming up the regular Florida court system. I wrote about his findings at some length in my essay from January of 2011 entitled 10 Million Foreclosures: No Saving Pvt. Ryan this Time.
Taibbi makes it clear that this court did not set out to be “fair” in the way the chiseled Supreme Court ideal proclaims. Its purpose was to clear out foreclosure backlogs quickly, with a “prosecuting attorney” from a major law firm representing the banks and trusts who have come to hold the mortgages, financial instruments that have now become, since the late 1990’s, part of an “industrial system” which produces investment securities composed of hundreds if not thousands of individual mortgages. Between mortgage originators, Wall Street banks and the entities where the mortgage agglomerations come to rest, the legal instruments may have changed hands a half-a-dozen to a dozen times. The American legal tradition in mortgaged properties rests upon county clerks recording the mortgages each time they change hands, and with fees also being paid each time they do. And every time a sale occurs, both the promissory note (the IOU) and the mortgage itself, the deed of trust, should change hands with new signatures and dates properly displayed.
This is, for the United States’ timeline, an ancient system of recording, in some cases going back to the 17th century. It became very expensive and inconvenient to the industrial production system Wall Street banks had invented, and that mortgage origination firms like Angelo Mozilo’s Countrywide Financial became a crucial part of. So when a journalist actually does a field visit to see the legal rip-saw of foreclosure at work, up close, it tells us as much about the new financial system and the powers behind it than it does about those who are no longer able to meet their monthly payments.
Most defendants do not show up at all. The lucky ones get help from the Legal Aid Society, or a crusading whistle-blowing attorney like James A. Kowalski, who uncovered the robo-signing practices of the General Motors Acceptance Corporation in a case in Pennsylvania in 2006, and now is working in Florida. What Taibbi finds though, as he learns the “foreign language” of the foreclosure system in this new era, is that a high percentage of the case folders show a broken chain of possession and even worse: irregularities of stamps and dates…confusion…fraud. The word fraud crops up repeatedly: I counted 21 times in his 12 page article. Taibbi is clear about the purpose of the court: “Their stated mission isn’t to decide right or wrong, but to clear cases and blast human beings out of their homes with ultimate velocity. They certainly have no incentive to penetrate the profound criminal mysteries of the great American mortgage bubble of the 2000’s, perhaps the most complex Ponzi scheme in human history…” The full article is here: www.rollingstone.com/...
At the same time I was following Taibbi’s ground zero, street level account of how foreclosures were being mass-processed, with no pretense of “equal justice,” I came across a reference to what the banks and mortgage originators were up to in the administrative and political realms. It’s the storyline of Neoliberalism writ large, with a financial innovation from the private sector– mortgage backed securities – seemingly making a four hundred year old system of property mortgage recording and local revenue raising suddenly obsolete. And although the new system bears a striking resemblance to the structure of the old industrial system, with poor home owners being the “raw materials” extracted out of society to be compressed like fiberboard into units before being sold around the globe, this system is unfolding in the high tech computer-Internet era, so adjustments must be made. How that will be done becomes its own commentary upon democracy in the Neoliberal era.
Prior to 2010, I had never heard of MERS, the Mortgage Electronic Registry System, and when I queried even members of the Maryland legislature, including some of the leadership, neither had they. Fortunately a legal academic, University of Utah law Professor Christopher L. Peterson gave brilliant and far reaching testimony to the House Judiciary Committee on December 2, 2010, and for intrepid readers, you can still find it here at judiciary.house.gov/...
Revealingly, the title of the hearing was “Foreclosed Justice: Causes and Effects of the Foreclosure Crisis.” When I wrote my long essay about the foreclosure crisis, I wondered aloud why Peterson’s testimony had not made headlines in papers across the country; it was that direct and powerful. Since 99% of the citizens, including most of the homeowners, had not heard of MERS either – or who was behind it, wasn’t this something to be dramatically broached? Peterson had explained that MERS was the brainchild of Wall Street Banks and mortgage originators, like Angelo Mozilo of Countrywide, who set out to create a private registry system that could handle the rapid changes in title and ownership resulting from the new “industrial” system of mortgage backed securities. It seemed to be also designed, according to Professor Peterson, to avoid the tens of billions of dollars in fees that would otherwise have to be paid to local county registrars of deeds each time the properties exchanged hands. Most of the time now this did not reflect a new resident owner, but a new mortgage deed holder, the “package holder” of the mortgage backed security…the new investor being perhaps a hedge fund, or a German school teachers’ pension fund.
Peterson stuck his neck out, judging that the business model behind MERS was “arguably fraudulent,” claiming to be both an agent and the actual mortgagee, and easily selling its seals to other agents – “employees of mortgage servicers, originators, debt collectors and foreclosure law firms.” He says it presents two very different faces: the easily accessible friend for those pushing foreclosure actions, and the nearly impenetrable bureaucracy to the homeowners being foreclosed upon. During my long environmental career I heard a lot of attorneys representing good causes speak in public, but I have to say I’ve never heard a law professor put such serious charges in writing in front of an arm of officialdom with the high standing of the House Judiciary Committee. That’s why I say that I expected to read about those charges in headlines in the New York Times, the Wall Street Journal and Bloomberg News, but I never did.
By late 2010, when the Professor testified, MERS had captured the recording for tens of millions of mortgages, some 60% of the 47 million in existence, so it had become a big deal, although most of the public was in the dark, and most of the home owners as well. It was, defacto, overturning a vast existing system of American property law, and the revenue system based upon it, recording fees of a ballpark figure of $35 per transaction, so the old system was hardly gouging new home buyers. And it was a clearly a decentralized system, a bottom up one built upon local county clerks.
And how was this done? Well, it was done with only one state, Minnesota, passing a law to authorize the change, even though most states original recording systems had been explicitly authorized by earlier laws. And in Congress, “The Interstate Recognition of Notarization Act of 2009” (H.R. 3808) had only three House sponsors and two Senate ones, very unusual for a bill that claimed it was “uncontroversial” – but nonetheless, it passed the House by a Voice Vote in April of 2010 and the Senate by “unanimous consent” in early October, only to be pocket vetoed by President Obama on October 8, 2010. The President seems to have been made well aware of the cresting tide of home foreclosures that autumn. And as best as I can judge, and I’m corresponding with my Congressman as I write, MERS has yet to be sanctioned by Congress. Here is a quick study outline of MERS for those who don’t want the full Peterson Congressional Testimony: www.washingtonsblog.com/... , and some further context on the veto: truth-out.org/...
Let me share with you my formal thoughts from that essay of mine from January of 2011. I begin with wondering aloud about the origins of MERS in the 1990’s:
Now let’s see: who was the President when all this was unfolding, 1992-1998? Wasn’t it the man with perhaps the most comprehensive knowledge of American politics ever to hold the office since FDR…none other than the great de-regulator himself, William Jefferson Clinton? President Clinton famously announced that the era of Big Government was over; he wasn’t as clear as philosopher John Gray has been as to what was going to replace it, but right here, as we’ve seen, out of a rear view mirror unfortunately, was the power of the financial industry, appointing themselves as the universal replacement for the old fashioned land registry system and a long-standing tradition of federalism, of state and county power in these matters. It was part and parcel of the trend towards the privatization of public functions. As the right’s ideology demanded ‘no new taxes, smaller government and free markets,’ old industrial towns in Pennsylvania saw their school boards try to raise revenue by swallowing the bait – and hooks – of Wall Street’s ‘interest rate swaps,’ and other local governments swallowed too for the ‘variable interest rate bonds’ offered in the now collapsed ‘auction-rate’ market. Bloomberg News reporters Martin Braun and William Selway have written that ‘dozens of municipalities have paid banks billions to get out of swap contracts’ gone bad. At least Citigroup and UBS had to give back some $7 billion in settlement costs for customers left handing by the failure of the ‘auction-rate’ market. Greece, struggling to make the cut-off limits for their public debt levels in order to get into the European Monetary Union in 2001, turned to Goldman Sachs for creative ways to raise cash by turning over formerly public revenue streams to private parties, including airport landing fees, lottery proceeds and highway tolls (according to the lead story in the New York Times from Feb. 10, 2010: ‘Wall St. Helped to Mask Debts Shaking Europe.’
I like to think of myself as not easily shocked by new evidence about how far America has drifted to the Right since Reagan’s election in 1980. After all, I’m not persuaded that Bill Clinton or Barack Obama are progressives at all – especially on economic matters; perhaps conservative progressives at best, but well within the neoliberal range of policy prescriptions. ( Same for Hillary Clinton, who is explained quite well by Naomi Klein here www.thenation.com/... ). I wasn’t even surprised to learn something I hadn’t heard before about MERS, which did surprise me the first time around. While doing research for this paper, that revolving door leading to the intersections of political and economic power re-appeared once again: the large international law firm Covington and Burling, the launching and landing pad for President Obama’s Attorney General, Eric Holder, was also the law firm standing by MERS’s side through all the legal challenges that have been thrown at them from various jurisdictions and protesting foreclosure victims.
Part Three: The Harvard Law Review’s Article “Policing and Profit”: Psychological and Fiscal torture for the poor, not Equal Justice.
Still, I have to say that I’ve never been hit over the head as hard, or been as shocked, and angered, by what I read in the fall of 2015 when I came across the Harvard Law Review article Policing and Profit, dated April 10, 2015, which you can read here at harvardlawreview.org/... . Perhaps the words of Karl Polanyi from The Great Transformation, his seething description of the system set up by the Poor Law Reform of 1834 in England can give you the emotional feel of my reaction: “Never perhaps in all modern history has a more ruthless act of social reform been perpetrated; it crushed multitudes of lives while merely pretending to provide a criterion of genuine destitution in the workhouse test. Psychological torture was coolly advocated and smoothly put into practice by mild philanthropists as a means of oiling the wheels of the labor mill.”
There was no trace of philanthropy at work in what I read in Policing and Profit. It begins with the green light the legislature of Missouri gave in the late 1980’s to privatize their criminal justice system, including probation systems, and also to allow local governments to raise revenue via fines for non- violent crimes. This has led, in already inflamed Ferguson, Missouri, to a system which issued 32,975 arrest warrants for nonviolent offenses in FY 2013 for a population of just 21,000 people, about twice the rate of other local jurisdictions. Police fines have become the second largest source of revenue for Ferguson. Tickets, and fines, are issued for motor vehicle infractions, many involving lack of correct documents. If the fine is not paid, or a court appearance is missed, the fines are increased and arrest warrants are issued. Jail time is ordered for those who can’t pay, many because they are too poor to afford the fines in the first place. Those jailed are then charged a daily fee for their incarceration, so a situation which is grounded in poverty only gets worse. It is cruel and perverse, and it builds from the premises of no-new taxes, neoliberal austerity, and the unspoken belief that the successful, “the producers” in the society shouldn’t pay, and that the weakest “citizens” in the political system, the poor, especially the black poor, are a resource from whom additional money can be extracted, even when they are incarcerated or on probation.
There should be no mistaking the racial aspect to what happened in Ferguson. The town went from 25% black in 1990 to 67% in 2010. That is noted in the U.S. Department of Justice’s (Civil Rights Division) Investigation of the Ferguson Police, which issued its report on March 4, 2015, which you can find here: www.justice.gov/...
I was surprised at how quickly the report got to key elements of the problem: “Addressing the deeply embedded constitutional deficiencies we found demands an entire reorientation of law enforcement in Ferguson. The city must replace revenue driven policing with a system grounded in the principles of community policing and police legitimacy, in which people are equally protected and treated with compassion, regardless of race.” Yet the more I thought about that diagnosis and remedy, the more it troubled me as not quite getting to the heart of the matter. And I had the same feeling about what the Harvard Law Review (HLR) article had left unnamed. However, before I plunge into those matters, which turn upon the very core assumptions of our neoliberal era, let’s see what else the HLR article documented, because the Ferguson situation was only the first instance of a broader trend.
The HLR article introduced me to one Tom Barrett of Augusta, George, a former veteran, pharmacist and middle class citizen who fell out of society due to his growing addictions, which led him to steal a can a beer. It was one can of beer which led to a fine he could not pay. There’s no mistaking the Barrett we meet, whether in the Harvard Law Review article, the American Bar Association one, the NPR story, The Guardian newspaper one, and eventually, the Human Rights Watch one, the organization which took up his cause, no mistaking him for a model citizen. Yet even though all these organizations and media outlets took up his case, I had not seen a word of it on CNN and I’ve heard no reference to him in the Presidential election campaign, his biography being a kind of inverted Joe the Plumber story from the 2008 Presidential campaign. Our society, however, is not yet ready to change the deeper framing of Tom’s story, as we will see.
Tom Barrett’s personal life history, his theft of one can of beer, led him directly into the strange world of privatized probation. Tom didn’t have the $80 dollars for a court appointed defender, and so pleaded no contest to the crime and received a fine of $200, which of course he couldn’t pay. (The beer was worth $1.29.) He was placed on probation by the judge, who ordered him to wear an alcohol monitoring ankle bracelet, even though the HLR article makes it clear that his sentence did not require him to stop drinking. Under the privatized probation system however, Tom must plunk down an initial $50 fee, plus a $39 dollar monthly fee and an additional $12 per day – all to be paid to Sentinel Offenders’ Services, the private company who runs this probation system – and many others. Barrett, of course, can’t meet these fees, so he is arrested for being in arrears, jailed and then begins running up daily fees for his incarceration.
By now you can understand why Polanyi’s bitter, unforgiving language about the original Poor Law in England came to my mind. This is psychological torture, without question. Barrett is not model citizen, but he is still a human being and a U.S. citizen, a veteran as a matter of fact, although he is forced to sell even the physical essence of his humanity – his blood plasma – the final extractions from his body to try to meet the financial extractions of what has become an inhuman system. Here is the more detailed ABA article about his case: www.abajournal.com/...
The Harvard Law Review article quickly moves on beyond the awful situation of Tom Barrett’s plight; in fact it is on the way to sketching the outlines of a system, without naming it or all its operating premises. Instead, it sticks to the new system’s more outrageous features, which are bad enough, though not sufficient for fully understanding why this legal Frankenstein has emerged. To inflame perceptions of injustice even more, justice itself is for sale for those who can afford it: the flip side of the police departments raising revenue and probation for private profit is the affluent side, for citizen’s who can pony up. In Oklahoma, the prosecutor’s office can offer to “stall” a case for a fee of $40 per month for as long as three years, with the proceeds being used to fund that prosecutor’s office. The HLR rather dryly states that “unlike plea bargains, these agreements require no finding or admission of guilt.”
And the same applies to the whole legal area of “Civil Forfeiture,” which I, like most Americans, still believe is connected to convicted drug dealers and the physical apparatus they assembled for their work: a fleet of cars, a string of properties for the “retail” end of the operations, secluded palatial getaways as the gains of their illicit trade. But not at all: the same driver that did in the poor black citizens of Ferguson, and Tom Barrett in Augusta, Georgia, is at work here in formulating something very different than our “French Connection” shaped screen fantasies. Federal agencies like the Post Office and Treasury can use these proceeds to fund themselves, and 39 states allow their police departments to keep the proceeds for their own use. But here’s the kicker revealed by this study: 81% of the local proceeds from Civil Forfeiture mobilized in this way “came from people who were not charged with a crime.” ( Editor’s Note: Maryland State Senator and House of Representatives Democratic primary candidate for the 8th Congressional District, Jamie Raskin {D, Mont. County} informs me he was successful in reforming the Maryland law on forfeiture to place the burden of proof on the government to show the property in question is “guilty” of the criminal connection, what he called a “Due Process” victory. A tougher bill to only allow forfeiture after a criminal conviction is in the works but will be more difficult to pass. Senator Raskin is a Constitutional Law Professor at American University and a former Editor of the Harvard Law Review. )
And so the HLR article drives relentlessly on to its conclusions, which are worth paying close attention to, although I still have something substantially different in mind in the way of “conclusions”:
Instead of distributing the cost of policing throughout society, police are allowed to single out who will shoulder this burden…part of a larger trend of thinking about government through the logic of business…a regressive tax, turning the poorest segments of the population into an easy source of revenue, raised based on the discretionary whim of executive actors.
And of course this is a law review article, so these mechanisms of revenue raising that are coming to substitute themselves for those now spurned traditional ones know as taxes, also plow right through some other antiquated “constitutional traditions”: the Due Process Clause, from both the 5th and 14th Amendment; the Equal Protection Clause, part of the 14th Amendment from 1868, the one which inspired the ideal of Equal Justice Under Law; and the much less well known “Excessive fines Clause” named in the 8th Amendment.
These violations are no small matter, and the wonder, and part of the limited outrage over this article (more hoped for than widespread, I regret to report) is that the systematic constitutional violations being delineated have unfolded in the land of a million lawyers - 1.22 million by 2011 , who, no matter how jaded they might have become in their routines, and the unspoken neoliberal system that they labor within, which is never named, not in the HLR article, the Justice Department Report, the ABA article or the rest of the coverage on Tom Barrett’s stolen can of beer - should have been jolted by the implications of how Equal Justice is being destroyed for the poor at the bottom of society.
That was bad enough. I was riven, however, by other recollections, by other strains of thought and connections about what was just laid out for me in this review article. I want to sketch them out for you, not in great deal, but hopefully in a suggestive way, my own method of compensation for living in a land without historical memory, which has its benefits for the individuals who can walk away from bad pasts and reinvent themselves as our economic system seems to repeatedly require us to do; but it also has its costs, enormous ones, and among them is the realization that we cannot see how we might have re-invented some of the worst cycles of human degradation in our not-so-happy past societal selves, new forms of human servitude, built upon assumptions of who does and does not have standing in this post-modern neoliberal capitalist society.
The HLR article made me think, as I’ve mentioned already, of Polanyi’s descriptions of the Ur experience in the very foundation of capitalism, of the English poor in the new factory towns of the Midlands of the 1830’s and 1840’s. But it also made me think of Wendell Berry’s 2012 Jefferson Lecture, an award, which he took as a challenge to be issued, and delivered, face-to-face, on April 23rd, 2012 to the complacent, hard-hearted American establishment of Washington, DC, at the Kennedy Center. He had prepared a formal speech, and its title was It All Turns Upon Affection, which must have come as somewhat a surprise to those members of the establishment who attended, most of them surely operating, as I have tried to show, upon somewhat different guidance systems, doubtless downloadable now as various “apps.” Not even in the starriest eyed illusions about society’s operations in the minds of the Founding Father’s – and they didn’t have too many stars in their eyes – did they think our nation would turn upon Affection. Self-Interest is much closer to the truth, then and now, with minor footnotes. And which “self-interest” would adopt the protection of nature? Or society’s poor? Just in case the gathered might have be inclined to doze off during his reading, Berry left a written copy of his speech on each seat. Some nerve these old farmers have. Did he think it was 1896 all over again? Perhaps not quite, but getting closer.
He began by speaking of a family memory, of his grandfather coming home from the grand “settle” he had with the Duke patriarch of the tobacco monopoly (and much else) in the winter of 1907; even though his grandfather was not a tenant farmer – he owned his own small farm - he came back home from the “settle” - which is the yearly accounting of profit and loss where all the definitions, and final facts, are in the hands of the great land-owner, not the small farmer, or tenant, and the brutal realities of power cannot be escaped, even in this, our land of great dreams, illusions - and diversions. This was unusual for Berry; he later said the speech was hard to write but it had to be done because he saw what was unfolding, that “…the nation and its economy will conquer and destroy the country” - that was why he went back to his primal family experience with great power imbalances.
In many ways, looking back upon this speech, it really was the preface for the 2016 Presidential campaign, especially the Sanders campaign, although Berry tilts heavily towards a local, decentralized “organic” society, low tech by choice, and surely that tilt insured that the establishment would turn its back on what he had to say, which was, in philosophical thrust, much broader (and deeper) in its criticism than “just” an ecological critique of our troubles. Berry himself was turning his back upon the costs of “Creative Destruction” and uncannily anticipating President Obama’s 2016 State of the Union Address, when he asked, in a section devoted to “change,” “What technology can undo the collateral damages of an inhuman rate of technological change?”
The few conservatives who reviewed this speech – the nation’s highest honor bestowed in the humanities - chastised Mr. Berry for his impoliteness and alleged barely concealed anger towards the powerful, although the facts of speech and his manner, upon both reading and listening to it – did not seem to me to have a “driving the money changers from the Temple” tone to it – far from it; I heard very measured tones. But American conservatives are not used to hearing speeches like this and it struck them as a betrayal from someone they thought they could count on for not disturbing the peace, even as many his writings, heretical as they are to progress and the worship of our system’s “creative destruction” – clearly do just that.
Berry’s life and thought and this powerful speech – are in fact the antithesis and full bodied ecological answer to President Obama’s State of the Union Address although you will never hear or read another soul make that connection. That’s what they are, in the perspective of the history of ideas in America – and more than a touch Utopian, in my opinion. But containing much wisdom, wisdom this nation badly needs to hear, even if it cannot turn its great technological juggernaut fully around to comply with Berry’s new course.
Berry is hard to label ideologically. Upon rereading his speech – I wrote about it extensively in a long essay in 2012 – he at times sounds like he is immersed in Karl Polanyi’s critique of Market Utopianism, but then he cites Allan Tate and John Lukacs, who hardly can be called “progressives.” You can read the lecture for yourself here at www.neh.gov/... and I urge you to do so. Or watch it here: www.neh.gov/...
And here is what else I thought of upon reading the Harvard Law Review article:
I thought of the history of coal mining in our nation, of the coal barons who owned not just the mines and equipment, the capital equipment, but the local currency, the script, and the local stores where all the necessities to live were sold under carefully watchful eyes, and the very houses of many of the miners, and in certain cases, some have alleged, they even “owned” the bodies of the wives of the miners themselves, which became mere collateral in the handling of unpaid debts of injured minors who fell behind. But I don’t want to trouble readers with memories of things like that…Wess Harris does, though, in his 2012 book, Dead Ringers: Why Miners March, Buried Truth from the Mountains.
I thought also of the description of tenant farming and share-cropping, the fate of blacks and whites too in the South after the Civil War, in the late “Reconstruction” South, described so carefully by Nicholas Lehmann in his 1991 book The Promised Land: The Great Black Migration and How it Changed America, and especially all the cyclical cruelty it meant for the black residents of Clarksdale, Mississippi; for a system with no escape routes visible under its one-sided rules, no escape but to physically flee, and even that was not easy to pull off, being the more modern version of the Underground Railroad, absent the formal slave catchers.
And I thought of Roger Lane’s 1986 book, a Bancroft Prize winner in American history but one which you will never hear mentioned in “polite” society today, just like Berry’s lecture, even in the context of Black Lives Matter and all the outrages of Ferguson covered in the HLR article, which is the northern counter-part story to the one Lehmann tells about Clarksdale, the Northern end and Southern end of American racism – and economic exploitation, it being hard to separate the two. The title was the Roots of Violence in Black Philadelphia, 1860-1900 and what I remember is the bitter and futile taste it left in my mouth, just like Lemann’s book did, of systems constructed by the economic powers that be that both physically limit and psychologically torture the victims, the racial bottom of society, the construction of economic mazes, legal mazes with no way out until something powerful and maybe destructive intervenes…with this sense of foreboding that it cannot end well…especially for the people at the bottom.
And I thought of the work of Chris Hedges on our prison system. Hedges knows that system first hand, having taught creative writing to prisoners in the NJ Gulag for years. Even when the system is not fully privatized, many of the supporting services that prisoners rely upon for their basic necessities have been, and it’s nothing more than an extraction, extortion racket which ends up not supporting rehabilitation but utterly alienating inmates and what’s left of their families on the outside. Hedges’ account ends on a note that the authors of the HLR might have also have recognized: that what is transpiring at the bottom of society outside the prisons is beginning to resemble the corporate dominated life inside the walls. Here at www.truthdig.com/...
And I thought of the work that lawyer Bryan Stevenson is doing with his non-profit Equal Justice Initiative, ever since 1989, trying to tilt, if ever so slightly, the balance scales of “Justice” back towards their proper equilibrium from their terrible skewing under the era of Mass Incarceration for black citizens. He works to acquit those improperly convicted on death row, the mistreatment of young teens as adults, some given “life sentences without the chance of parole,” and other major inequities that have sprouted from the racially charged “law and order” backlash of the 1960’s, still a force powerful enough to have shaped the Clinton Administration’s 1994 crime bill, with Bill Clinton himself still arguing it out in public with protesting Black Lives Matter representatives in early April of 2016.
I came across Stevenson’s work this fall, my search triggered by reading Policing and Profit, and wondering if the two efforts connected, or crossed paths at least. I learned of his stellar performance in his TED talk, his foundation awards, and his memoir, Just Mercy: A Story of Justice and Redemption. He has been called, by Archbishop Desmond Tutu, “‘America’s Nelson Mandela.’” He has called for a racial Truth and Reconciliation Commission in America, but he seems to have settled for something less, based in good part on the disappointing reaction to his 2014 book: “ ‘We can’t insist on both truth and reconciliation because you cannot reconcile people to something they clearly don’t feel bad about. But we can insist on the truth.’” And so he pursues his individual cases, and has begun a project of placing iron historical markers in the ground to identify major sites in the history of slavery in the deep South. Which takes some considerable courage. If you’ve never seen him speak in public, here is a good place to start: www.ted.com/...
I listened to some of his major speeches, and read articles about him wondering whether his pursuit of justice went beyond his major focus on racial injustice. He has a line about injustice which intrigued me, for the line of inquiry I’m pursuing here, when he said that at the top and corporate end of society “the rich and guilty” are doing better than the “poor and innocent” at the bottom. But he does not dwell on this discrepancy; he is focused on bringing what justice and mercy he can compel out of the mechanisms of the Great Incarceration to the poor and innocent at the bottom. I could not, knowing myself and my own career curve as a social worker, then environmental “lobbyist,” or even as a writer, continue to speak in the even tempered, I might even call them “sweet” tones of forgiveness and redemption that Stevenson does. I’m somewhere between him and the angry prophet that Chris Hedges is, or where Cornel West dwells. There is a place, however, and a need, for the full range of voices if we are to reform the society we live in.
And yet, despite the importance of the Harvard Law Review article, and its sweep, the extensive coverage given to Tom Barrett’s case in the American Bar Association’s story, in the Human Rights Watch coverage, and all Bryan Stevenson’s wonderful public utterances, as in our Presidential campaign, no one has given a name to the system we all live under, the one that has delivered such awful injustices to so many of our people, legal and economic, and that has helped to destroy the remains of our always imperfect aspiration to “Equal Justice Under Law.”
Surprisingly, a National Public Radio article from 2014 (www.npr.org/... ) about Barrett’s case came closest to naming a direct connection to neoliberalism’s “austerity” when it focused on the mood of elected officials towards paying for our criminal justice system. George Drake, an advisor to governments contemplating purchasing the private sector’s monitoring tools, says “‘No one wants to raise taxes on the public. Politicians – it’s the last thing they want to do.’” Then the article observes “most states face sizeable budget deficits. So that state legislators – often lobbied by the companies that make the devices – pass legislation to require offenders to pay the fees.” That’s about as close as one can come describing the system we’re living under – its basic mechanisms, at least, without naming them.
And then the article closes on a note that the other works did not, one so familiar to me that it becomes almost a ritual incantation of the American version of good vs evil. Barrett blames himself for his tribulations: “Barrett will be the first to tell you that it was his substance abuse and his crimes that caused his problem.” The cruelty of the fee system then merely compounds his own character flaws, and we end this version of Barrett’s fate and life very close to where Bryan Stevenson ended up with his dashed hopes for that Truth and Reconciliation Commission: “you cannot reconcile people to something they clearly don’t feel bad about.”
And so we settle for telling our sense of the truth. I’m doing that now, because I come out differently than the NPR version. It’s what James A. Morone has called “The Great American Moral Dialectic”: who do we blame when things go wrong, the individual or the system, especially the economic system? Addressing matters of justice, he asks “how do Americans get around all their constitutional safeguards and repress rivals, strangers, and scary others? Morality. We are bound to honor our fellow citizens and their rights, unless the neighbors turn out to be bad. Then they can be – and often are - stripped of their lives, their liberty, and their legally acquired property.”
Mrs. Margaret Thatcher, one of the founding politicians, if not philosophers, of modern neoliberalism, may have most brutally stated this very American dialectic, when she said there is “ ‘no such thing as society – only individual men and women’” and only later added, according to David Harvey’s account, “and their families.” Of course this sounds like it could have come from a fundamentalist pastor preaching in Lynchburg, Virginia, rather than the former Prime Minister of Great Britain. Yet I began this essay with an account of the founding of classical economics in England. And the moral connection is this: Thatcher’s view is an attack on the long standing assumption of the left, ever since the French Revolution and the Industrial one, of secular and Social Gospelers alike: if there is no such thing as “society,” then there are no bad systems, like capitalism, underneath them, and therefore there is no such category as a social evil, only good and bad people.
In our modern context, “The Market” sorts them out, with the good people justly, in their own minds, claiming their vastly disproportionate share of wealth and income, and the bad people, like the self-confessed Tom Barretts , blaming themselves and deserving to pay, all along the line, for their time in the criminal justice system. Barrett, by the way, happens to be white, but when one adds in American racial history, I have no trouble at all imagining how we have ended up with the Great Incarceration and the Ferguson systems we have, the great American moral dialectic meshing very nicely with all the inclinations to be found in the historical roots of the Neoliberal system.
Of course, individual responsibility for our actions lies at the heart of the ancient Judeo-Christian origins of our Criminal Justice system, and it is very hard to imagine an altogether different basis for one. The Right, here and in England, became, in the 1970’s, very adept at mocking the absurd lengths some on the left would go to in exculpating individuals from their criminal actions by invoking all the malevolent forces outside of themselves that had “shaped them.” In particular, I remember Malcolm Muggeridge doing just that on Bill Buckley’s show Firing Line.
But that is a very different thing than accepting where Neoliberalism has taken our sense of justice, as shown by “Policing and Profit.” That work has revealed, for all with eyes to see, that there can be no real legal justice, equal justice, under a system of blatant social and economic injustices, and deeply buried racial ones; those imbalances will eventually destroy whatever balance remains in the scales of legal justice.
Morone says this inclination to blame the individual instead of the economic system is the dominant feature of American history, except for such brief times as when the results of economic calamity are so widespread that they have to be called systematic, as in the Great Depression. Then a version of the Social Gospel, the name of a movement from the late Gilded Age’s religiously motivated reformers, begins to surface. He hopes, having written Hellfire Nation in 2003, that we will yet see another one.
I believe I see the start of one, but we have a long way to go, a long way to regain our sense of balance between individual responsibility and social and economic morality.
This essay was written in the belief that in order to begin to correct a system gone bad, one must first be able to name it, its features having already scarred so many human victims with its workings, and its assumptions so uncritically accepted among all its private powers that they can’t fully visualize what has happened to the rest of us, or how their ideas have hardened into something malevolent.
I believe that eras and ideological movements based on extreme exaggerations in their formulations eventually distort the meaning of being human, of common decency even, so that the bitter truths on view in daily life can no longer be hidden from the average person. That happened in the late 1980’s in the former Soviet Union. I believe that’s what Malcolm Muggeridge was driving at in his interview, his cautions to the left in the 1970’s that we were destroying human agency and self-determination by assigning too much power over us to systems.
I believe the Right in America has reached such a point, its ideas having shaped our public lives for close to half-a-century now. Its cruelty and absurd logic has been put on display in the Harvard Law Review article. Now I have given it a name and linked it directly to the dominant ideas in our economics. Is a turning point upon us, and is 2016 the year when many others think so too, and are finally acting on it? I hope so, but the situation is very fluid. The key question is whether the Democratic Party itself will begin to step outside of the dark shadows of Neoliberalism and return to its New Deal roots, putting the nation on a course for a green New Deal. This work is my statement that I couldn’t let what I read pass by as “just another study.” Human degradation like that on display in Ferguson and in so much of the criminal justice system is unacceptable, and any system which condones it and indeed, in this case, advocates for it, is unworthy of our support.
BillofRights
Frostburg, MD
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