Tuesday, November 25, 2014

Thanksgiving #Ferguson

     Thanksgivings


    This is a strange year, even an awful one, to celebrate Thanksgiving.  A grand jury’s refusal to indict Ferguson, Missouri police officer Darren Wilson has crystallized ugly truths.  Many Americans feel unsafe in their own neighborhoods, not despite law enforcement but because of it.  In some places, the police seem, and act, like an occupying force.  If the law does not represent you, but only governs you, you are a second-class citizen.

    So what are the “blessings” that Americans should “gratefully acknowledge,” as Abraham Lincoln put it in the 1863 proclamation creating the first national Thanksgiving?  That you are one of the lucky first-class citizens who feel safe wherever they go and expect polite help from the police and other authorities?  Or, if you aren’t so lucky, that things aren’t worse?  That you’re still walking around?  Taking satisfaction in national blessings feels grotesque just now.

    This November, we might look back to a mostly forgotten American tradition that lies behind Thanksgiving’s cheery feasting and mutual congratulation.  In 1776, the Continental Congress announced “a day of humiliation, fasting, and prayer,” a day of acknowledging “manifold sins and transgressions” and seeking “sincere repentance and amendment of life.”  Such fasting days were fixtures of the founders’ civic culture.  Prayer, repentance, and thanksgiving were woven together in the national holidays that George Washington and other early presidents announced.

    Yes, remembering national wrongs and seeking “amendment of life” seems better now than just being grateful.  But even that 1776 proclamation contains the seeds of today’s troubles.  It warned that the British were trying reduce Americans to “ignominious bondage” with the help of “the savages of the wilderness, and our own domestics” – that is, slaves.  The prayer and repentance of 1776 were ways of seeking God’s help in building a white man’s colony, an empire of liberty pitched on the back of unfree labor and land cleared with violence.

Ferguson arises from conditions – black poverty, mutual racial distrust, a tradition of policing by and for white people – that are the direct legacy of Jim Crow.  Segregation, in turn, was the direct legacy of the slavery that many of the founders practiced and prayed for help in defending.  The same words from 1776 contain a spirit of searching reflection and a steadfast willingness to protect what later generations would learn to call white privilege.

    In 1808, preaching in Philadelphia, a former slave named Absalom Jones urged a national day of thanksgiving 55 years ahead of Abraham Lincoln.  Jones’s date was not a harvest festival but January 1, the dead of winter.  Why?  January 1, 1808, was the day that Congress banned the import of slaves.  (The Constitution protected the slave trade until 1808, a time-limited compromise that the founders made iron-clad by immunizing it from amendment.)  On that day of remembrance, Jones said, “the history of the sufferings of our brethren” should survive down “to the remotest generations.”

    Absalom Jones's Thanksgiving is more help this November than Abraham Lincoln's or the founders'.  The root of thanks ties the word to think and thought: at its base it means “to hold in mind.”  Gratitude is a kind of remembrance, an act of holding in mind, and so is meditating on an unjust past that remains terribly present.

    Lincoln praised “fruitful fields and healthful skies” in creating Thanksgiving.  He also warned just 18 months later, in his second inaugural address, that after centuries of slavery, “every drop of blood of drawn with the lash” might be repaid with the sword before the country knew peace.
   
    In a better Thanksgiving, we would try to hold both these thoughts at once, the call to gratitude and the call to justice.  No doubt this is hard for everyone, and for different reasons. For some, racial inequality and fear are raw realities every day, and anything inspiring in American history rings false and remote.  For others, the call to reflect on injustice sounds feels like a personal accusation.  But we are caught in this history together. 

    Lincoln’s Thanksgiving proclamation called for thanks “with one heart and one voice by the whole American people.”  He did not say that, for those words to be more than hypocrisy or obtuseness, Americans needed to build a country where one voice could be possible.  But he knew that they did.  And still do.
   

Thursday, November 13, 2014

"Politicans in Robes": Is law just politics? What else would it be?


            Linda Greenhouse, the longtime Supreme Court reporter for the New York Times, declared surrender today.


 For decades, she argued that the Court was a higher form of government, engaged in Law, not just politics.  Now she has decided that the justices are just politicians in robes, after all.

            The straw that broke her faith?  The Court’s decision to review King v. Burwell, a case confirming that Obamacare subsidies can go to people in insurance exchanges that the federal government sets up in states that haven’t created the exchanges themselves.  Without the subsidies, the worst-case scenario has Obamacare entering a fiscal death spiral.  The best case is that it would be another body blow to a law that is managing to work despite design flaws and relentless opposition.  http://www.thedailybeast.com/articles/2014/11/10/the-gop-could-make-obama-kill-obamacare.html

            The Court’s hasty grab at a hot-button case it doesn’t need to decide is unseemly and partisan-feeling.  Greenhouse is absolutely right.  Coming from a very smart and sincere person who loves the Court and the law, her crie de coeur is striking.

            But the Supreme Court has been political since the day it was born.  It’s just that the way it is political today is a symptom of the nastiness and futility of our politics.

            Cast an eye over the history of the Supreme Court, and you will see no golden age of apolitical judging.  Today’s conservative activists, especially the older generation such as Justices Scalia and Thomas, came onto the Court in reaction against an earlier generation of liberal activists.  The liberals had established abortion rights, extended constitutional equality to women, increased the rights of criminal defendants, and briefly declared the death penalty unconstitutional.

The conservatives saw all of this as blatantly political activism.  They sought control of the Court to restore the Constitution and protect law from politics – at least as they understood it.  Now those conservative restorationists are the partisan activists who have broken Linda Greenhouse’s faith.

            And what about those liberal activists who made the young Scalia and Thomas so indignant?  They were the children of another revolution.  Their predecessors – and some of them – also came onto the Court to restore the Constitution and save the law from politics.  Only the activists they overthrew were conservatives: anti-New Deal justices who upheld “economy liberty” and “limited government” by striking down minimum-wage laws and the first wave of Franklin Roosevelt’s legislation.

            And so it goes, back through judicial struggles over Reconstruction, slavery, and the now-esoteric bloodletting of the early nineteenth century, which pivoted on questions like the constitutionality of the national bank.  Someone has always been trying to save the law from politics and restore the Constitution.  When you look at it clearly, saving the law from politics turns out to be a thoroughly political job.  First you have to convince people to accept your version of the boundary between law and politics.  Then you have to get judges onto the bench who agree with you.  The history of law is the history of politics, and vice-versa.

                So why do so many smart people believe in the difference between law and politics?  Why do they sincerely try to restore, or preserve, the line between the two, and get heartbroken when the line fails?

            It’s not just naivete.  The special role of the American courts, particularly the Supreme Court, is to administer principles that have won so decisively in politics that they get taken off the table. The triumph of the New Deal brought in a generation of judges who implemented new principles – above all, the legitimacy of the regulatory and welfare state – across the legal system as the shared framework of a national consensus.  The era of the Civil Rights Movement and the Great Society led a generation of elite liberals, including many of the Justices, to embrace broader principles of personal liberty and equality, which they saw as perfecting the American social compact.  They were busily implementing these in cases like Roe v. Wade when a right-wing insurgency took them by surprise.  The fight that started then has only become more pitched.

            There’s no line between law and politics now because our politics is too divided to generate one.  We cannot begin to agree which issues should be taken off the table and handed to courts.  The conservatives on the Supreme Court are aligned, intellectual, politically, and institutionally, with lawyers and activists who want to dismantle much of the regulatory and welfare state and stop or reverse the extension of civil rights and liberties.  The liberals are aligned with those who have opposite aims: preserving and extending civil rights and upholding the regulatory state as a legitimate aspect of government.  The country is divided, sharply and unrelentingly, over the same questions.  What one side tries to take off the table, to turn from “politics” into “law,” the other side is always trying to grab back.  With every grab, the idea that law and politics are separate becomes harder for anyone to believe.

            Politics gives law its premises: its basic commitments.  Law has its own kind of integrity, based in applying principles consistently, integrating competing goals, giving the same words the same meaning in different places and explaining why not when it doesn’t.  If you have worked closely with judges who practice this craft, you know it isn’t just politics, any more than architecture is just drawing.  Law in this sense is valuable, even essential work, but its fabric gets torn when the premises change – like ripping a weaving project suddenly into a new kind of garment.  It changed in the Civil Rights era, and in the New Deal.  And then it stabilized.  Now it is not stabilizing, and the constant contest at all levels, from basic premises to craft, means that, increasingly, everything feels partisan.  All that is solid melts into fetid air.

            We’ve been denied what Americans seem perennially to wish for – a Supreme Court that is better than we are – surer, clearer, wiser and more unified.  It turns out that was really a wish to be a better version of ourselves.  On the one hand, it’s good to be rid of the illusion and stand on the real ground of democratic politics.  On the other hand, what broken and disappointing ground it is.  But we will need a better politics to heal the law.

Saturday, July 12, 2014

Introduction to Nature Book, July 2014


            “Come forth into the light of things,” wrote William Wordsworth in 1798: “Let nature be your teacher.”  The woods in springtime could teach more about good and evil than all the teachings of all religions.  “A heart that watches and receives” would know more than all the “barren leaves” of science and art could ever reveal.  “Spontaneous wisdom” was all.  It entered through the eye that watched a green field, the ear that heard a finch’s song.  “Quit your books,” he urged, “or surely you’ll grow double”: fat from sitting at a desk, but also divided by too many doubts, too much confusing learning, too many theories.[1]

            Wordsworth was doubled himself, when, alight with enthusiasm for the French Revolution, he watched it move into the Terror and then adapt its bright vision of human freedom to the corrupting old regime of rulers and priests.  Surrounded by despair and cynicism, tempted by abstract ideas of law and duty, he found his way back to wholeness, “Nature’s self,” and “those sweet counsels between head and heart” that brought him peace.  He wrote in the Prelude that he still believed that human destiny was to “build social upon personal liberty,” even as France lurched back to its old ways “like a dog returning to its vomit.” [2]

            “Nature never deceives us,” Jean-Jacques Rousseau wrote in Emile, his treatise on education: “it is always we who deceive ourselves.”[3]  The book was a guide to preserving the natural goodness and moderation of humanity, to “keep us true to nature”[4] against the vanity, excess, and anxiety with which social life infected us.  Though Rousseau did not see the revolution whose early days Wordsworth called “very heaven,” his phrases made him a touchstone for many who did.

            But for every pronouncement of revolutionary nature, someone was prepared to testify to the contrary, that nature was the taproot of order and hierarchy.  A century before Rousseau, John Evelyn, the English forester and author of the first tract on air pollution, expressed delight that nature was terrifying.  Even atheists shuddered when they heard thunder.  Crashing storms were reminders that, no matter how complacent they might become, people were sinners in the hands of an unrelenting God.  John Ray, a naturalist who studied the motion of sap in trees, reflected that insect swarms were nature’s scourges, reminders that divine order would deal harshly with rebels – especially atheists and democrats.  Where Rousseau and Wordsworth saw a proto-democratic nature, pregnant with harmonious equality, Evelyn and Ray portrayed a nature made for piety and monarchy.  The natural order taught discipline, obedience, and “mutual subserviency.”[5]

            Nature turns out to be flexible like that.  It has been the handmaiden of revolutions and the underwriter of kings, proof of divine design and of atheist materialism, quite literally from Athens and Rome down to the age of democracy.  It proved and disproved the justice of slavery.  The most “natural” of peoples, Native Americans (as Europeans imagined them) stood as a rebuke to decadent civilization – except when the study of nature revealed, as it did to John Locke, that the world was made to be cleared and planted, so the tribes must be displaced by “the industrious and rational” Europeans.  No wonder that Edmund Burke, attacking certain theories of natural rights, announced, “Art is man’s nature” – that is, as social beings, we are what we make ourselves together, not the splendid products of any blueprint.

            Burke used the language of natural rights but regarded those rights as seeds that took different forms in the diverse soils of culture and politics (the art that is human nature).  Others were much harsher in attacking the idea of nature as a teacher.  John Stuart Mill called all political appeals to nature nasty and obscuring: they superstitiously projected human values onto a mute and violent natural world, usually to defend a narrow and reactionary interest like the subjection of women, the preservation of slavery, or the glory of the monarchy.  For Mill, the human duty was to struggle against “nature”: to drain swamps, channel rivers, and overcome our own natural barbarism – the love of power, the cruelty toward the weak and bowing to the powerful that distorted both personality and society.  Our purpose was to replace nature with art.

            This glance at nature’s political, ethical, and cultural uses is a reminder of why Wordsworth’s invitation – Let Nature be your teacher – can seem so quaint today.  Most of us know, or suspect, what history bears out, that “Nature” has been a vessel for many inconsistent ideas, often united by nothing more than their complacent self-confidence.  We agree with Mill when we hear opponents of gay rights talk about the divine plan and oppose natural to unnatural sexuality; but we also know that Mill’s confident program to master and reform nature was part of a worldview of high rationalism that has blood on its hands.  That rationalism nourished his enthusiasm for British empire in India, which he saw as an unregenerate mass of humanity that must be reformed.  Come forth into the light of things?  More like the cacophony of things, including many shadow-boxing contests over the meaning of “nature.”

            Another reason Wordsworth’s invitation is hard to take seriously today has nothing to do with literary and philosophical history and everything to do with “the light of things.”  What things reveal today is that they are neither natural nor artificial.  And neither are we.  The contrast between what is nature and what is not no longer makes sense.

            This merger of natural and artificial holds at every scale.  Climate change makes the global atmosphere, its chemistry and weather systems, into Frankenstein’s monster – part natural, part made.  The same is true of the seas, as carbon absorption speeds acidity that threatens the keystones of their food systems, and so threatens all ocean life.  The planet’s landscapes, its forests and fields, and its species, are a mélange of those we have created, those we have cultivated, and those we let live because we admire them – or, in only the deepest jungles, not reached them quite yet.  Even wilderness, that emblem of untouched nature, persists where lawmaking and management create it, artificial testament to the value of natural things.

            The plants and animals we eat and keep for company are our creations, through selective breeding (which now seems almost artisanal) and pruning and grafting of the genome.  The human body, seat of Wordsworth’s mutually counseling head and heart, is no more purely natural than our grains and cattle.  Tuned with vaccines, kept up with antibiotics, patched with surgery, every function extended by engines, screens, and data streams, we are cyborgs in artificial worlds, whether we are the fortunate paralyzed child who acts through his robot extension or just a bicyclist with black-rimmed glasses and a phone.  If Nature were a place, we could not find it.  If Nature were a state of mind, we could not attain it.  We are something else, and so is the world.

            Post-natural as we are, we have not advanced far toward Mill’s ideal of emancipated mastery over nature.  Instead, the more we understand and the more our power increases, the more control over nature seems a precarious fantasy.  We brew the storms, bring the droughts, and raise the seas, but we do not direct our own genies.  Climate change unleashes forces like those of the ancient pagan imagination, in which nature was filled with arbitrary, violent gods – one for the thunderbolts, one for the sea – who warred with one another and made human destinies their playthings.  With technological mastery, we have remade that unmastered world.  In our own bodies, we now learn that there are ecosystems, colonies of bacteria that make their home in us, and whose health is as important to ours as our lives are to the future of the planet.  Whether we look to the globe or within our own navels, we are imperfect, destabilizing, and vulnerable governors, apprentices without a master sorcerer.  We are in the shit.  We are it.

            The vastly increased human impact over the last 200 years, and especially the last 50, is the leading reason that earth scientists are discussing whether the planet has entered a new geological era, the Anthropocene, when humanity is a force, maybe the force, shaping the world’s changes.  The idea of the Anthropocene is useful, but it needs to be seen in the right light.  It is a way of interpreting our situation and a platform for responding.  The geological record is stratigraphers’ favored way to mark chapters in the earth’s history, but rocks do not come out the ground labeled Anthropocene.  The move toward giving our time a new name is a response to two spurs.  First is the Anthropocene condition, the massive shaping effect that people now have on the world.   Second is the Anthropocene insight, the recognition that, however tempted we are by Wordsworth’s invitation, ideas about nature have always been partly cultural and political things, ways of talking to one another about use and beauty, monarchy and democracy, women and men, or slaves and masters.

            I take the Anthropocene as a proposal in politics, ethics, and imagination: a way of seeing the world in which nature and human activity are inseparable aspects of a continuum.  Most important, the Anthropocene is a call to take responsibility for what we make as well as what we destroy.  It is the starting place for a new politics of nature, a politics more encompassing and imaginative than what we have come to know as environmentalism.  Stratigraphers debate when the Anthropocene began – the Industrial Revolution, the appearance of agriculture? – but it begins when we learn to see and act in new ways.  Though it is dressed as a fact about the planet, in fact it describes a human attitude toward the world.

            Three Crises
            The Anthropocene begins amid a threefold crisis, of ecology, economics, and politics.  These are the three great modes in which humans make a home.  (It is not just chance that the first two words begin with the Greek for household, oikos, and the last with polis, city.)  The three crises have the same starting point: the recognition that a system believed, or at least imagined and hoped, to be stable and self-correcting turns out to be unstable and even prone to total failure.  Ecology first.  The urgency of the Anthropocene opens by recognizing that, after nearly ten thousand years of relatively stable climate and burgeoning human wealth, ecological systems are intensely stressed, and their health or collapse, in fact their very form, is substantially down to human choices.  Ideas about natural ecological equilibrium are gone, along with older convictions that the world’s bounty inherently supported growing wealth.

            As for economics, its modern form, as a social science and as a way of life in market societies, also rests on an image of inherent equilibrium: billions of decisions merge into a spontaneous harmony through the invisible hand of a price system that puts supply and demand into balance.  When all are free to choose, efficiency reigns and all are better off.

            The ecological crisis has origins in a failure of economic harmony.  The first lesson of environmental economics is that the invisible hand is (to mix metaphors) blind to so-called externalities, that is, the effects of our choices that carry no market price, and so which do not appear on any bottom line.  Greenhouse-gas emissions are a perfect global externality: mostly free for those who release them, they distribute their harms around the planet.  The term “externality” suggests an aberration, the incidental exception to a system that works otherwise, but here the externality, the outside, is the globe that houses all economic activity, and the harms that are invisible to the economy may overwhelm the system itself.

            That is one form of economic crisis.  Another starts from Thomas Piketty’s empirical confirmation that even normally operating markets, as far as we have been able to observe them over the last two hundred years, produce accelerating levels of inequality that are quite likely ethically intolerable and politically destabilizing.  This finding, too, disrupts a familiar picture of the economy as a self-stabilizing system – in this case, the picture long associated with the “Kuznets curve,” which showed economic inequality stabilizing at (arguably) moderate levels in wealthy economies.  Ironically, this influential curve counted among its offspring an “environmental Kuznets curve,” which showed pollution rising during industrialization, then falling in wealthy societies.  Both versions now look like unwarranted extensions of the good conditions of the mid-twentieth century.  Today, greenhouse emissions continue rising with wealth, and so does inequality.

            Both families of crisis, economic and ecological, reflect the same predicament: to inhabit a stable and tolerable world, both social and natural, we must create and maintain it intentionally.  Nothing inherent in the physical world or the social practices we call the economy will produce that stability by itself.  What humans inhabit, house or city, they must build, and what they get will be no better or worse than what they have built.

            The only way to build a shared living place deliberately is through politics.  Common, binding decisions are how people can give the world a shape that we intend.  But here, too, there is crisis.

            Politics was the first of the three realms – ecology, economy, and politics – to be recognized as unavoidably artificial.  The authors of the United States Constitution were already, in their own minds, drafters and framers, inventors, not servants of a natural and shapely order of authority.  More than a century earlier, Thomas Hobbes argued decisively that political power can only be artificial, and that in creating it, people take on the responsibility that theology and superstition assigned to gods: creating a stable and livable order.  The much-contested recognition that both economy and ecology are also created orders means that both are political, that at bottom they are the creations of politics.

            This is an uncomfortable truth.  Politics suggests instability, arbitrary power, intrusions on personal liberty and local harmonies.  It is politics that authorizes strip-mining and produces mass surveillance in the US, takes away Chinese peasants’ farmland for development, leases African communal lands to Chinese agribusiness, and sets off war in Iraq, Afghanistan, and Ukraine.  Should we not avoid it rather than celebrate, and find some other, more harmonious order – economy or ecology, say – to lean on instead?  The attraction is potent and perennial.  The problem is that it is unreal.  No order that grows spontaneously will stabilize and preserve the common world.  The alternative to spontaneous order is deliberate creation, and its source is politics.  It is perfectly possible to make a political embrace of spontaneity, local harmonies, and markets, and in many cases that may be just what we should do; but the embrace must be political.  It may be somewhat comforting that this is nothing new: every modern market, like any other modern economy, is built out of law by the deliberate work of politics.

            But back to the crisis of politics: as with economy, part of the problem is that familiar ways of working do not fit our problems.  All serious responses to global climate change, like all serious responses to inequality in global capitalism, face the same basic problem.  There is no political body that is realistically able to adopt and enforce them.  The affliction of a global system outruns the reach of any national government.  Serious climate policies impose costs on domestic economies to benefit the world population and future generations.  Although national polities in the rich countries will stand for, even urge, some such policies, they have not come close to slowing the problem.  Even on its own limited terms, any national policy faces serious questions of effectiveness when the rest of the world goes its own way, and that is just what the developing countries – now including the biggest carbon emitter, China – are set on doing.  National self-interest breeds weak responses at the level of countries and failure to cooperate at the level of the globe.   The discovery that politics is the necessary source of a solution to global problems turns into a meditation on the barriers to a political solution.

            This unhappy situation coincides with a larger crisis of faith in political order.  It was only in the twentieth century that democracy, long a radical rallying cry and, before that, a term of abuse and synonym for anarchy, became instead the sole standard of political legitimacy.  Since the start of the twenty-first century, the supreme confidence of a global democratic tide has become a nest of doubts.  The United States launched a pair of wasteful and destructive wars on demagogic grounds, and in both an optimistic version of “exporting democracy” came to ruin.  Europe’s democracies seemed to have themselves into an ungovernable corner in the poorly coordinated, unpopular and not-very-democratic European Union.  Elite preoccupations turned increasingly to China, where a complicated and fissiparous oligarchy at least seemed able to pursue some version of national interest.  These fixations, though, were more compensatory fantasy than real program: the Chinese situation had plenty of palpable points of instability, and there was no path to that country’s form of elite rule from any other country’s situation, even if some wished otherwise.  (It hardly needs saying that, as with all fantasies of political and social elitism, those doing the wishing picture themselves among the elites, not the dispossessed peasants.)

            All that being said, there is no alternative to a political engagement with our three interlinked, politically shaped dwelling places, ecology, economy, and politics itself.  Recognizing this already turns the idea of nature on its head.  The “nature” that infuses ecological politics has had many political meanings and alliances, as diverse as democracy and monarchy or hierarchy and equality, but it has always had one defining characteristic.  Nature has been the thing without politics, the source of facts or principles that come before political judgment and limit its scope.  Whether it embraces the divine right of kings or the equality of all persons, nature’s special role has been to restrict what can be said and done in politics, generating claims for one’s own vision while limiting the claims of others.  Nature has been a source of putatively objective bounds in politics.

            A fully realized politics of nature will have to be something new.  The challenge will be to maintain the generative power of nature while surrendering its limits, for, as a political question itself, it cannot impose limits on the possible reach of politics.
                  
            Nature as Politics and Anti-Politics
            Why talk about an intensified politics of nature, rather than a politics without nature?  Why not say that “nature,” that oh-so-flexible argument-stopper that never quite succeeds in ending the argument, is just an archaic way of talking and thinking, best overcome and discarded?  There are several reasons that I don’t think this is either possible or desirable.  The most telling is that ideas about nature have been much more than rhetorical flourish or metaphysical gloss.  They have deeply shaped the landscapes, economies, and social practices in which we continue to live.  The material world – so-called natural and so-called artificial – that we inhabit is in many ways a memorial to a long-running legacy of contested ideas about nature: how it works, how we fit into it, and what we have at stake in living right by it.

            What does it mean to say that ideas have shaped landscapes?  Is this “idealist history,” like thinking that, once John Locke (and some predecessors) announced that human beings had inherent rights, it was only a matter of time before the American Revolutionaries and, eventually, Human Rights Watch showed up on the global stage to put the theory into action?  No, but it is history that takes ideas seriously, albeit in quite a specific way.

            We shape the world by living.  Our lives knit into a kind of collective landscape architecture.  By the ways we eat, move around, stay warm or cool, and amuse ourselves, we create the sub-systems of a vast metabolism tying us at every point to our environment.  We call these sub-systems the energy economy, the food economy, the transportation system, and shelter – cities and suburbs.

            We do not act blindly, though we often see only a part of the whole system.  From the beginning, there has been a link between how Americans have acted toward the natural world and how they have imagined it – as a wilderness designed by God to become a garden, as a piece of symbolic art with the power to bring spiritual insight, as a storehouse of essential resources for national wealth.  Imagination is less precise, less worked-out, more inclusive, than ideas, and it belongs to people in their lives, not to philosophers working out doctrines.  Imagination is a way of seeing, a pattern of supposing how things must be, in which one choice rather than another makes sense, or one fact stands forward as essential while others recede into the background.  Imagination helped early Massachusetts settlers to see their new landscape through biblical eyes, calling it a “wilderness” in the sense of Exodus, a barren place full of heathens, a testing-ground for a people’s faith.  Imagination was at work, too, when utilitarian foresters in the early twentieth century looked at the United States’ new national forests and saw commercial timber and erosion that clogged downstream irrigation – but not the many other species and interconnections that a later, ecological eye would bring to the same woods.  These examples highlight something the word “imagination” may miss because it has implications of frivolous speculation and pretend: imagination is intense practical.  What we see, what we become conscious of, is intensely linked with what we are trying to do, whether that is to manage forests for Teddy Roosevelt’s Forest Service, to understand ecological connections as a conservation biologist, or to survive in a harsh new place while seeking Christian salvation.

            Law is a circuit between imagination and the material world.  Laws choreograph human action in a thousand ways: laying down the highways and the electricity grid, allowing and regulating mining and drilling, setting the price of gasoline and the price (if any) of carbon emissions, guiding and limiting housing development, shaping the agricultural economy.  Just these few examples, usually invisible, channel our lives, providing the implicit blueprints of the landscape architecture that we practice on the world.

            Laws have several kinds of sources, among them economic interests and the hurly-burly of politics.  Imagination, too, is part of what law is.  Laws that govern the human relation to the rest of the world play out the logic of different versions of environmental imagination.  American environmental laws may be sorted according to four pictures of the natural and the human place in it, which they help to make real just by channeling human power as if they were already real.  These are (1) a providential vision, in which the natural world has a purpose, to serve human needs richly, but only if people do their part by filling it up with labor and development; (2) a Romantic vision, in which a key part of the world’s value is aesthetic and spiritual, and the aesthetic and spiritual are intertwined in the inspiration of mountain peaks, sheer canyon walls, and other extreme vistas; (3) a utilitarian picture, in which nature is a storehouse of resources requiring expert management, especially by scientists and public officials; and (4) an ecological view of the world as formed of intensely complex and interpenetrating systems, in which both sustenance and poison may travel through air, water, and soil, and in and out of flesh, as each thing becomes something else.

Each image echoes in laws that channel human energy to shape the world, and so nearly every American landscape is, in part a meditation on what people have valued in nature and what they have scorned or ignored.  The agricultural terrain of the Midwest – that patchwork-quilt geometry of crops that comes into focus from airplane windows – is the artifact of how the federal government turned public land, which had recently been Indian land, into private property.  The survey system of squares-within-squares was a model of how a free republic should live on the land – each family with its own sufficient plot, tied together by schools, townships, and county seats. 

The survey system was just one part of a legal architecture that channeled human energy into clearing, settling, and planting the continent – laws granting land in exchange for cultivating the ground, planting trees or clearing trees, draining wetlands or irrigating drylands, mining gold or silver, and gathering stone.  For its first 100 years, US law shaped Americans into forest-clearers and farmers, forests and grasslands into fields.  Other statutes had the same logic.  The 1872 Mining Law established a you-dig-it-you-own-it policy to encourage private mining for minerals on public lands.  Laws governing irrigation development (tellingly called “reclamation”) were mainly designed to support mid-sized farms and independent farmers on what had been desert.[6]  Working the land, once a degraded activity, gained dignity in American civic culture.  The pioneer and the yeoman who should come after him were model Americans in the rhetoric and imagination of the time.

Pro-development laws promoted a mode of activity and experience.  Under their aegis, settlers treated the world as conditionally bountiful, the way providential imagination drew it.  The Jeffersonian surveyors’ grid and the statutes creating private farms produced an American geography where these providential attitudes formed the dominant human relation to nature, even to the point of ignoring the facts of weather and geography.  The repeating rectangles galloped over streams and wetlands and mounted the High Plains, where rainfall is too scant to support farming.  After a few bizarrely wet summers and warm winters, the usual seasons returned and threw back the settlers, now the first modern ecological refugees in North America.  Yet that the land itself threw back settlement in this case highlights how successful the rest of the continental settlement was.  The ecological transformation and the cultural developments around it were world-historical, yet Americans often discussed them as if they were the most natural things in the world, the expected upshot of a people meeting a continent.  Soon another wave of settlers returned to the Great Plains, armed with technology to extend the grid westward, its lines now framing the crop-circles of center-pivot irrigation. 

A vision suffused this clearing and settlement, a picture of nature with religious and philosophical sources.  The world was a garden in potential.  It existed to serve human needs richly, but on a condition – only if people completed it with labor and settlement.  This vision helped to make a national mission of turning the continent into private property.  It linked economic development to a cosmology and sense of purpose.  It helped to underwrite the dignity of labor in a democratic culture that increasingly embraced the equal dignity of all its white, male members.

The second great American picture of nature, the Romantic one, has also relied on law to anchor experience and activity that, in turn, make a way of encountering nature possible.  Seen in Romantic light, the most extreme and dramatic places inspire epiphany: flashes of insight into the order of things and one’s place in it.[7]  One encounters divinity and one’s own self on a mountain peak, in the rainbow-laced spray of a crashing waterfall, or at the lip of a deep crevasses.  Drawing on literary sources such as Wordsworth and Ralph Waldo Emerson, early Romantic social movements, especially the Sierra Club, wove these themes into the landscapes of California’s Sierra Nevada and other Western high country.  Soon they were working to ensure that American law dedicated large tracts of ground, such as Yosemite Valley, to visual delight and inspiration.  Although many of the national parks were founded on the non-Romantic theory that they would nurture public health and civic spirit, by the 1920s the Park Service itself called them shrines to nature’s finest aesthetic qualities.[8]

Parks made the Romantic way of meeting nature into real and widespread experience.  Public wild lands are dedicated to a picture of nature as a spiritual destination, a place to make a pilgrimage.  In turn, they make that cultural idea of nature a physical reality for sojourners.  Their material landscape brings alive a cultural practice of aesthetics and spirituality.  These landscapes were inspired by ideas; but the ideas can enter lived experience only because the landscapes exist.  So humans spell out their imagination in the landscapes they shape, and the landscapes write their forms on human experience and the imagination it fosters.   

The protected public lands soon became testing grounds for radical ideas about nature.  Starting in the 1920s, a new movement arose dedicated to “wilderness.”  That word had long been used for all sorts of unproductive land, and in the providential vocabulary it was closely linked to the derogatory waste.  Wilderness advocates made wildness a virtue, insisting that the solitude of wild places taught one’s own smallness and dependence on the vast and ancient natural world.  Wilderness advocates went into the wild not so much to find the divine in themselves as to be strangers and learn by that strangeness.

The 1964 Wilderness Act, the fruit of decades of advocacy, gave legal operation to the new concept of wilderness, and now protects more than 107 million acres of public land from development.[9]  Crafting their arguments, wilderness advocates found words for their own experience and made it more fully available to others.   They did this work on the platform their Romantic predecessors had built: undeveloped land and a public vocabulary that gave found moral weight and aesthetic power in wild places.  With this example in mind, we might think of landscape as both a physical terrain and a cultural lexicon for encountering it, a way of seeing, feeling, and describing the big place and the many small places that it contains.  In shaping landscapes, law also shapes modes of experience, enshrining and amplifying some and shunting aside others.  The land law shapes is a geography of experience, as much as of landforms and things.

Make no mistake: this is an unequal landscape.  The four pictures of the natural world that have shaped American law, and so American geography, are imperial conquerors.  They have covered the continent like Jefferson’s grid.  Many other landscapes and experiences remain peripheral in this American geography, or are foreclosed.  Native American farming practices are gone, now glimpsed only in traces such as the “Indian corn,” Bloody Butcher, that is still grown in the fold of central Appalachia where I grew up.  Hunting and gathering as a way of life is gone too, though echoed in country foraging traditions and their urban revivals.  The gardens that enslaved people kept on plantations and that some of their descendants brought north generations later in the Great Migration are mostly forgotten now, and there has been room only on the margins for the plots cultivated by immigrants from Latin America, East Asia, and elsewhere, and for the new foraging knowledge some immigrants bring to what had seemed to be weeds.

There are many rich stories to tell about these experiences, some of them centered on violence and injustice, some on solidarity and pleasure seized in places that remain mostly invisible to those who do not live there.  I come myself from a marginal American landscape, one that does not fit the big pictures and grand stories so well.  I know that there is no equality among American landscapes: some are treated as sacred, some guided into many generations of habitation and use, and some sacrificed in just a few years.  And so, there is no equality among Americans as far as they care about their landscapes and wish to imagine that their children and grandchildren might live there as they have.  If you live in a wooded suburb of Boston and treasure the preserved lands next door, if you live in the dense neighborhoods of Boulder, Colorado, and like to climb into the Rocky Mountain National Park for your summer hikes, your relation to the land is secure, a privilege enshrined in law.  But if you love the hills of southern West Virginia or eastern Kentucky, if they form your idea of beauty and rest, your native or chosen image of home, then your love has prepared your heart for breaking.

The styles of environmental imagination I am describing are, among other things, ideologies.  They organize the world by simplifying it, highlighting some realities and casting shadow on others.  They enable people to see themselves in convenient ways – as nature’s allies or the servants of divine order.  They “justify” people in doing things to one another, such as clearing Native Americans from the land to press forward providential settlement.  Approaching North America in providential light figured the continent as a potentially democratic nature, a terrain where each competent man might have enough land to live by, a terrain that, unlike the scarce and unequally distributed lands of Europe, did not impose a hierarchy between lords and commoners.  The same view made nature complicit in genocide by treating clearing and development – European land-use patterns, which whites tended to assume were uniquely theirs even when Native Americans such as the Cherokee fully adopted them – as human obligations written into the world itself.  Even as it shut out the first people to live on the continent, the providential view also shut out ecological nuance, such as the dry land, swamps, and inconvenient species that did not fit easily in the agenda of development.

Why give pride of place to these accounts of nature, with all the crimes they trail behind them?  For one, they have contributed to the shape of the continent.  To live in North America today means inhabiting their legacy.  Overcoming their limitations, redressing their crimes, and improving on their past into the future, requires understanding the politics of nature that they inflected at so many points.  For another, the emphasis on their crimes and omissions is as incomplete as it is essential.  Like American democracy itself, a powerful practice and idea fraught with exclusions, the American environmental imagination is a multifarious thing that, for me and for many readers, is part of our us – part if not all, part of us even if not wholly welcome. 

Speaking for myself, I feel all four versions of American nature alive inside me.  The providential view came to me through my grandfather, a fifth-generation Pennsylvania farmer whose great-great-great grandfather was deeded a piece of land for service in a revolution that was one part democratic insurgency, one part an elite land-grab with crumbs for the soldiers (but what crumbs, compared to what he could have farmed in Ulster or the Scottish borderlands!).  It comes in the feeling I take from him that there is no better praise than being recognized for working hard all day outside.  It comes, too, in the political and constitutional legacy of Free Labor, the idea that American citizenship mean economic dignity, freedom from fear of bosses or masters, a claim on the good things of the world.  Half myth, often used to disingenuous ends, this idea is the reworked version of the democratic landscape of mobility and self-reliance that the providential vision celebrated and made real for many of those it favored.

I carry the Romantic view in some part of me that has drawn toward mountains, to their highest places and steepest defiles, as long as I can remember.  It was in my rapt stare when, at seventeen, I saw the foothills of the Swiss Alps through a train window, and for the first time knew in fact that a peak can be, not gradual and rounded like the topography I knew, but abrupt, angular, even jagged.  It is racing along the crest of a volcanic ridge on Kau’ai, my hiking boots thudding on the dirt and stones of a wooded pasture that is narrowing by the foot into a promontory perched fatally, commandingly high over an emerald jungle clinging to land the shape of a mad Bavarian castle, whose every line plummeted into the Pacific Ocean.  It is shouting to no one, as I run, that I, never a religious person, have come there to talk to God.  Each of these is also a moment of tourism, a visit to a place whose everyday life I had no part in, where I had no thought of staying.
   
The ecological view of nature just is what it means to do what I professionally do: teach the laws that govern strip-mining, farming, and the treatment of endangered species and their habitat.  Thinking about these problems carries me into an attitude that is both scientific and aesthetic.  Complexity and interdependence are the keystones of practical management – how much of a stream’s biological richness comes from the rich headwaters streams that mountaintop removal buries, how much of a chemical spill in the Elk River will reach Louisville, on the Ohio? – but also the keys to fascination, the love of the world and wish to halfway understand that motivates all of us who do this work.  Its aesthetic speaks in the way I, like so many readers, can spend an afternoon following Michael Pollan through the life-cycle of a meal because it carries me into so many interwoven systems.

The utilitarian attitude is the closest of the four to a purely professional possession.  It is on my tongue when I reflect that, no matter how drawn I am to the idyll of a neo-traditional farm, agricultural policy is foremost about feeding billions of people safely, a vast and technical question that we can get hold of only by weighing calories, units of fertilizer and fossil fuel, the lifespan of aquifers, and the incentive structures of commodities markets.  It is present when I say that, to pivot the energy economy in an appropriate direction, we need a pricing system that captures the harms of greenhouse-gas emissions, even if this can only be a false exactitude that conceals many political and ethical judgments.  These are the techniques of social rationality, developed in the national forestry regimes of Europe and the United States, and have since extended to all useful things as we have realized that everything we need is too scarce and fragile for us to use it casually, without an eye to the needs of others and to the future.  They are the stock-in-trade of us who study law, even those like me, for whom they hold no poetry.

I doubt that any reader comes to these inheritances in quite the way I do, and some won’t regard them as inheritances at all, or at least not welcome ones.  For some readers, one or more of them will probably feel lifeless or hostile.  Many readers will come from their own marginal landscapes, places like my beautiful, wasted, half-wrecked Allegheny Plateau, which no vocabulary of American landscape quite captures.  Wherever anyone starts, we are all on this American landscape, all facing this daunting global future.

Regulating nature has never been a narrow, specialized task, or at least not for long, and ideas about nature have never remained just literary and aesthetic conceits.  The imaginative and practical dimensions, vision and action, have been like two spirals in a double helix.  The history of law, politics, and power is also the history of imagination.  Landscapes, natural and human, bear the shape of both.
History reveals the present as the joint creation of power and imagination, including the power – sometimes but not always democratic power – that imagination makes possible.

And, once more, understanding these shaping legacies can be a way of taking their measure to change them.  The landscapes that law shapes have ideological meaning, they resonate – or not – at the level of identity as well as policy.   They also make articulate what people might rather not admit.  They make priorities explicit.  When mountaintop-removal mining dynamites hills and hollows into a flat, treeless terrain and buries many hundreds of miles of Appalachian streams, that wrecked landscape states the values of the energy economy as clearly as anything could.  It is no surprise that coal companies make it as hard to see a mountaintop-removal mine in action as it is to look inside a slaughterhouse.  The effort that goes into concealing these places is unintended testament to how precisely they express what American law treats nature’s worth as being, and how poorly that fact sits with what some Americans would rather believe of themselves.

            Four Versions of Anti-Politics
American uses of nature have always been both political and anti-political, portraying the problem of inhabiting this continent to generate new claims on other citizens, and to shut down the claims one can make by setting them outside nature’s bounds.  Each  form of American environmental imagination has called on the natural world to underwrite, to “naturalize,” one version of politics, pressing others outside of serious debate.  Each version has in some ways powered political imagination and mobilization, by enlisting nature in support of political agendas; at the same time, each version has evaded politics, tried to shut down imagination and mobilization, by claiming that certain collective questions must be decided by nature, not by human judgment.

Consider one of the shaping political narratives of American nature, a pivot between the providential vision and the managerial one.  Frederick Jackson Turner’s “Frontier Thesis” diagnosed American democracy as the product of a fast-passing ecological moment and proposed to lay the ground for the managerial state of the twentieth century.

Turner, a University of Wisconsin professor who later taught at Harvard, announced his thesis at a meeting of the American Historical Association in Chicago on July 12, 1893.  He argued that the frontier had created American democracy and indelibly shaped national culture.  The free land of the frontier was a safety valve: both malcontents and the ambitious could head west.  Their constant emigration from eastern cities saved the country from being divided into Europe-like permanent classes of property-holding elites and low-wage workers.  The practical-minded equality of the frontier was a wind from the West, blowing east demands for voting rights and democratic constitutions, as well as resistance to faraway government.  But that era had ended.  The report of the 1890 Census had found settlement everywhere, erasing the westward line of settlement, and so “the frontier has gone, and with its going has closed the first period of American history.”[10]     

Chicago that year was the season of the Columbian Exposition, the World’s Fair marking four hundred years of European presence in the Americas and celebrating the cult of progress.  The fair grounds were rife with displays of a future perfected by technology and planning, all centering on the famous White City, stucco-coated, lighted by electricity, and meticulously designed.  It was both a monument to optimism and growing human powers and an unintended reminder of the fragility of all designs for the future, from its ephemeral architecture to its unplanned closing event, the shocking assassination of the popular mayor by an angry and delusional patronage-seeker.

Turner’s thesis had a vivd ascent-of-man linearity that would have suited an exhibition in the White City.  He claimed that the whole outline of human history displayed itself again and again on the opened continent, as it had in the longer and more meandering ascent of older societies.  Turner invited his reader to “Stand at Cumberland Gap and watch the procession of civilization, marching single file – the buffalo following the trail to the salt springs, the Indian, the fur trader and hunter, the cattle-raiser, the pioneer farmer – and the frontier has passed by.  Stand at South Pass in the Rockies a century later and see the same procession with wider intervals between.”[11]

There was a shadow in Turner’s account of progress.  He described a country shaped by the frontier at the moment when remaining a frontier people became impossible.  With the end of abundant land, a nation of individualists faced the interdependence of people stuck with one another; a culture built on the expectation of effectively limitless resources confronted scarcity and class conflict; and a democratic community, accustomed to self-governance, met a world too complicated for ready shared decisions, a world that only experts and planners could navigate.  Americans had lost their original nature, and they would now have to find a way to take responsibility for a planned nature, in some ways as artificial as the White City.

So, when Turner wrote that “American democracy … came out of the American forest, and it gained new strength each time it touched a new frontier,”[12] he was also saying that democracy’s time had passed, at least in that version.  The country was now “looking with a shock upon a changed world.”[13]  The national task was no longer how to cut and burn the Western forests, but to preserve timber, not to encourage settlement but to nourish scientific agriculture.  The age of conservation and management had come.

Just as nature now needed to be managed collectively and by experts, new social conflicts seemed to demand the same.  Turner’s idea of American democracy was highly individualist; libertarian equality and the democratic spirit meant roughly the same thing for him.  Yet, he reflected as he lectured on the frontier, the country was torn by labor strife – organized workers gathered against massed capital.  His beloved West was producing the most radical, which is to the say the most collectivist, of the American unions, among the miners of Montana and Colorado.  A new synthesis was needed, preserving a version of the old individualism in very different circumstances, when its simple form had become impossible. 

So Turner wrote in 1903 that American politics seemed to divide mainly on “the question of Socialism,” the question of how far economic life should be subject to collective control, and for what purposes.[14]  In an address late in 1910, he aligned himself with Theodore Roosevelt’s “New Nationalism,” a program of strong government that Roosevelt imagined as preserving the virtues of individualism and civic spirit through intelligent management.[15]  Like Roosevelt, Turner contrasted this management-for-individualism with the simple, laissez-faire individualism of conservatives like the railroad baron E.H. Harriman, whose simple rejection of government was a throwback to a lost frontier.[16]  This was a middle ground: economic management that reversed the individualistic techniques of frontier government to keep alive, as its advocates imagined, some parts of the individualist spirit.

Losing the frontier, then, meant losing political innocence.  Turner wrote that American democracy had taken shape in historically unique exemption from the basic problem of most politics, especially modern and democratic politics.  This is the problem of conflicting interests and values, made acute by relative scarcity.  There is not enough of the all the good things in the world – land, wealth, leisure – and conflict over those things determines whose wishes come true, and whose lives end up as the compromised instruments of others’ comfort.  Because one of the easiest ways to live comfortably is to exploit others, one of the basic political problems is what Turner identified as the political theme of his time, the relation between capital labor, or, in less stark language, the social terms of work and cooperation.  The frontier had relaxed the pressure of both these problems, making expansion an alternative to political conflict, exit an alternative to exploitation.  When Americans felt their interests pressed too hard, they could leave for open land, returning to what Turner imagined as an early stage of social development.  By reducing the force of social conflict, as much as by cultivating settler self-reliance, the frontier gave American politics the individualist stamp that Turner called democratic.

No doubt one reason the Frontier Thesis caught fire was that Turner’s claims were the opposite of original.  He was recasting in the tenets of a civic religion.  Thomas Jefferson had promised in his first inaugural address that frontier land would enable Americans to live a rural, egalitarian life for a thousand generations.  Two years before the Civil War, Abraham Lincoln argued that open land created unique social mobility, so that the old-world division of labor and capital did not apply here as it might in Europe.  William Gilpin, Colorado’s first governor and a great rhetorician of Manifest Destiny, announced that geography formed America’s destiny – a destiny of a continental empire of liberty.  These were only some of the most prominent expressions of a whole world of American rhetoric.

Turner was more distinctive in claiming that the frontier had closed and changed the terms of American life.  Not that this idea was new, either: early in the nineteenth century, the philosopher G.W.F. Hegel had argued that because the American frontier was an escape-hatch from the conflicts of politics, the United States would not develop a genuine political life until it ran out of land and Americans had to turn and face one another.  Until then, its politics would be a gloss on escapist expansion, and would hardly confront such problems as scarcity, exploitation, and conflicting goals.  Nor was the idea of a closing frontier restricted to speculation in the German universities.  Five years before Turner announced the Frontier Thesis, Theodore Roosevelt founded the Boone and Crockett Club, an elite sportsmen’s organization devoted to conserving North American big game in the face of commercial hunting and development pressure on wild lands – concerns that would attract Roosevelt, nostalgic western novelist Owen Wister, and other members of the club to Turner’s thought, as Turner would later be drawn to Roosevelt’s program.

Turner’s thesis has been subject to so much academic criticism that it is, itself, more an object of historiographic interest than a contender in theories of American political development.  It is true, nonetheless, that American political culture was formed in constant engagement with, and reflection upon, a rich continent, new to its settlers, which they turned into wave after wave of advancing frontiers.  In some broad sense Turner can only have been right, even if he was wrong in many damning particulars.

Turner argued that Americans had been oblivious to the basic problems of politics, enjoying a long national adolescence in which energy and individuality seemed enough to organize the world.  They had evaded politics until his time, when Roosevelt and other Progressive reformers squarely faced the problems of social and political order.  Nature had powered a peculiarly American anti-politics.

What Turner left out of this story was just as important as what he included.  His own account was an anti-politics, too.  Looking backward, he treated the continent’s clearing and development as a natural process, the pageant of universal history, when in fact it was rife with political struggles and ethically costly choices.  After all, the continent was rich and “empty” only after it was cleared of its first peoples in campaign that Turner concealed when he placed the Indian hunter at the head of a pageant of progress, first to follow the bison, next to fade away before the dawning future.  The continent had to be created as a crucible of democracy in other ways, too, some less horrific: the demands from the West were democratic, not just for ecological reasons, but because much of the country’s public culture was staked on an idea of egalitarianism among white men, which helped the liberty of the frontier become an emblem of the country in a way that it never was, for instance, in more orderly and persistently colonial Canada.  Turner described the character of the providential republic’s ideal citizen, alert, practical, and self-reliant citizen, as if it had been molded from prairie soil and fired in the heat of burning Midwestern forests, rather than taught in thousands of sermons, campaign speeches, and humbler exercises that tied democratic culture to the labor of grubbing up roots and planting a continent in grain.

But the more momentous anti-politics in Turner’s account was reserved for his present, not his past.  He described the reforms of the Progressive era as the advent of mature politics; but these reforms contained their techniques for invoking nature to block the reach of democracy.  They purported to show the way the frontier’s non-politics into political rationality. but what they offered was, like the settler ideology, really another version of political imagination, founded on its own version of nature, with its own political and legal agenda, its own version of the American mind, and its own way of seeing the non-human world.  Each version had its own kind of rationality, and was rational relative to an ideological image of nature and the human place in it. 

            Progressive reformers like Roosevelt saw nature as existing to serve human purposes, though, in contrast to their predecessors, not all insisted that it was created to that end.  Some did take this providential view, while for others human interests were the touchstone, and it just made sense to regard nature as a reserve of resources to serve those.  Either way, Progressives insisted that, contrary to the providential view, nature did not smoothly support the small-scale clearing and settlement of frontier culture; the American landscape was not arranged for harmony with the Homestead Act and the Jeffersonian grid.  Instead, many natural systems worked on scales that were too large, and in ways that were too complex, for Jeffersonian settlers to manage them well.  Moreover, the self-interest of individual settlers would not always lead to good management of nature, as the providential view tended to suppose.  Instead, pioneers had cleared forests too quickly, exhausted their fields, and sent eroded soil downstream to clog waterways.  The country was using its natural wealth poorly, and too quickly.  What was needed was management at the scale of the complex and interdependent resources themselves – forests, rivers – over nature’s time-scale, and in the interest of the whole political community, not just some lucky members of the present generation.  Only government could do that, and it had to be a government staffed by people with scientific training.  Where the providential version of nature called out for clearing and settlement, the Progressive version demanded management.  Early in the nineteenth century, the continent had seemed to call forth a homesteading, agrarian empire of liberty; now it invited a strong national state, the administrative state of the twentieth century.  This was the program that Roosevelt advanced, and Turner praised, as what came after the frontier.

            How was this embrace of governance an evasion of politics?  The key lies in a famous remark about Theodore Roosevelt, that he loved government but did not care for democracy.  It is not, of course, a matter of Roosevelt’s personal temperament, but his attitude captures something in the politics of his time.  Roosevelt once said that his whole program of domestic reform was nothing but widespread application of the principle of conservation.  From antitrust to labor law, from city planning to public-health regulation, social and economic life was encountering the same problems that Progressives found in nature: the systems were so large and complex that leaving them up to individual decisions dis-served the public good.  Like rivers and forests, the streams of commerce and even the lives of citizens had to be managed for the long-term benefit of the whole population.  This management was a public-minded project, but not a democratic one.  It did not take its standards from popular will, but from expert knowledge.  It is not strange, then, that some of the strongest conservationists, including Roosevelt and his great supporter, Indiana Senator Albert Beveridge, were adamant imperialists, confident that the US could govern the Philippines and other far-off places for the benefit of their people, since the touchstone of legitimate government was not democracy, but, as Beveridge argued in support of Roosevelt’s foreign policy, administration.  Nor is it strange that many of Roosevelt’s closest advisers, such as Gifford Pinchot, who built and led the Forest Service, were committed eugenicists, to whom the human species was itself a kind of resource for rational management.

            A key to the evasion of politics was the conviction, which many Progressive reformers shared, that there was one right definition of the public good, a utilitarian calculus that would tell the expert manager just where the national interest lay.  When Roosevelt and his allies treated natural-resource conservation as the model of all regulation, they implied that the social benefit of a policy was an uncontroversial quantity, not a target of competing values and interests.  Managing a forest for timber and erosion control allowed a straightforward accounting of public costs and benefits that a manager could use to schedule logging over decades.  Forestry, as a young science of resource management, had little room for disputes about just what the value of a tree was, or whether trees, or ecosystems, might have their own interests – ideas that Romantics like Sierra Club leader John Muir had begun to sound in public, but which Roosevelt’s circle mostly scorned.  Taking forest management as a general model meant acting as if the competing demands of labor and management, laissez-faire capitalists and socialists, were open to the same objective accounting.  It implied that there was no irresolvable clash of values between antitrust advocates such as Louis Brandeis, who wanted to protect an economy of smallholders, and others, like Roosevelt, who wanted to embrace big business, then regulate it.  There was only the question of coming to the right answer.

            Conservation, then, was pivotal in the rise of cost-benefit analysis, which today is a touchstone language of American policy and lawmaking.  Since the 1980s, when it became central to environmental policy, critics of cost-benefit analysis have argued that a technical, would-be objective technique is not enough to judge whether laws are good, let alone legitimate.  Historians of economic and social policy recognize that those debates crystallize broader problems that emerged when American policymakers after World War Two began pursuing overall consumer welfare rather than openly distributive politics or other traditional concerns of political economy, such as the quality of work that people do.  That policy has its roots in the Progressives’ technocratic, managerial approach to social policy, which itself rested on their understanding of nature and the human place in it.  In a sense it was the American landscape, the vast tracts of interdependent forests, waterways, and soil systems, many of them still under public management and ownership when Roosevelt’s reforms got underway, that made plausible a managerial, welfare-maximizing approach to social policy generally.  This approach remains a leading way of making policy non-political, even anti-political, in the name of an objective and technical conception of the common good.

            Roosevelt and his allies worked at the same time as another politically generative politics of nature that was also, itself, yet another anti-politics.  Romantic activists such as John Muir insisted that the landscapes they treasured should be preserved as something like secular cathedrals.  Their position was not exactly that these places should be outside the utilitarian calculus of public benefit – the Sierra Club made an early peace with cost-benefit analysis – but that aesthetic, recreational, and emotional satisfaction should be central to the meaning of public benefit.  “Not by bread alone” was a frequent refrain of Sierra Club arguments that aesthetics belonged in public decisions. 

            Romantic claims might have revealed that what counts as “public benefit” is an inevitably contested question, so that how it is resolved in a public decision can only be a political matter, not an impartially scientific judgment.  Muir and his allies, who clashed loudly with more conventional managers over land-use decisions, famously the flooding of the Hetch-Hetchy Valley for San Francisco’s municipal water supply, did enrich the politics of nature, but they always avoided saying that they were opening the horizons of democratic argument.  Instead, they had their own ways of evading politics in nature’s name.  They claimed to call on the real meaning, value, and purposes of nature, which they had special power to perceive as devotees of the high country.

The Sierra Club and its allies also limited the potential of their claims by making a hasty peace with a consumerist relationship to nature, whose paradigm was the vacation.  Their call for a new, spiritualized relation to nature was always focused on defending high-country sanctums while ignoring the environmental politics of everyday life, which belonged to the fallen lowlands.  They claimed to rise above politics when they spoke for the places they valued most, while they otherwise ignored what might have been the political implications for daily life of their call for a more consciou and humanly enriching relation to the living world.  This combination of quasi-religious elitism on one hand and touristic consumerism on the other meant that the Romantic movement produced no political agenda to open wide the human relation to nature as a democratic question.

            The fourth major version of American nature, the ecological, has now been at the center of environmental politics, lawmaking, and imagination for roughly fifty years.  It took energy from the growing visibility and sophistication of ecological science; from the massive increase in the American and Western European resource footprints in the consumer-industrial economies that grew up after World War Two, which pressed many natural systems harder than ever before; from a new cultural emphasis on security and cleanliness in the prosperous suburbs of the era; and from growing doubts that technological mastery of nature always meant progress, doubts spurred by, among other things, the atomic threat and the failure of US technology and planning in Vietnam.  The heart of ecological nature is interconnection so deep and widespread that boundaries among organisms, places, and systems are neither stable nor secure.  Rachel Carson’s Silent Spring crystallized what this meant for an industrial society: toxins released into air and water ended up in soil, flesh, and DNA.  The suburbs were unsafe; even the body was not secure.  From the beginning, the ecological image of the world brought a threat, the apocalyptic specter of a “poisoned world.”[17]  It also brought a comforting, pastoral promise: recognizing oneself as a part of the non-human world, as continuous with it, could be redress for alienation and discontent.  This promise was a version of the restorative unity with nature that the Romantics had sought, but with a basis that was more homely than the “cathedrals” of the high country.

            Ecological nature required new forms of regulation, pitched at the level of systems, such as the Clean Air Act and Clean Water Act, or protecting “critical habitat” wherever it occurs, as the Endangered Species Act authorizes.  Most earlier lawmaking around the non-human world had amounted to zoning on a continental scale, with regions of private property implicitly dedicated to economic use, public lands explicitly committed to a mix of managed production, as in the national forests, and recreation, all the way to the wilderness areas that law protects from all development.  The zoning-style approach grew palpably inadequate once it became apparent that natural systems respect overrun jurisdictional boundaries.  In a way, the ecological insight did to the conservationist, zoning-based approach what the conservationists had done to the providential, property-oriented lawmaking that came before it: showed that its artificial boundaries were too narrow for a deeply interconnected natural world.

            There is also no separating human beings from ecological nature.  Wilderness was the apex of the Romantic view – a nature without people, without production or extraction, set aside for leave-no-trace pilgrims.  By contrast, agriculture would make an apt touchstone for ecological nature.  Eating is one of the most basic ties between the human body and the rest of the world, a relationship of sustenance and survival.  Agriculture shapes landscapes, soil systems, and human labor, technology, and culture.   Its practices, from plant breeding to pesticide and antibiotics, define the chemistry and bacterial ecosystem of the human body.  Another candidate is energy.  The energy economy transforms the chemistry of the global atmosphere through its emissions and drives change in global climate.  It forms landscapes directly through mining, drilling, or windmills and solar panels. Energy sources also shape human habitation: today suburbs and exurbs have grown up around cheap fuel, as towns and villages once clustered around waterways that could drive their mills and carry their goods.

            In these ways, ecology has deepened the problems and raised the stakes of environmental law and politics.  In fact, the intensification may be so great that referring to “environmental” questions is artificially narrow; in a real sense, we are talking about everything.  To shape the human relation to the natural world, we have to take account of most of what we do and how we live

            Yet ecological nature has inspired its own evasions of politics.  Some, to be sure, are not to be taken seriously.  The recent center-left fantasies of living under Chinese efficiency are second-time-as-farce replays of 1970s fantasies that a Green authoritarian state might be the answer to the ecological crisis.  Such ideas are instructive more as symptoms of disaffection from stumbling democracies than as prescriptions for a cure.  Quite apart from the moral priority of democracy, which is no small thing, the hope for benign and sustained authoritarianism is absurd in practice and a mark of intellectual desperation.

            Other evasions are more serious.  The most influential ecological evasion of politics is the idea, everywhere in environmental politics and policy, that all would be well if only markets were engineered to reflect the “true costs” of economic decisions.  On one level, this is an indisputably excellent idea.  Pollution needs to be regulated, and raising prices is one kind of regulation – a kind that has some practical and ethical advantages over more direct control of individual decisions.  (It would be messy and complicated to tell each individual how much fuel to burn, and intrusive and potentially oppressive as well; much better to raise the price and let people decide how much that daily drive is really worth to them.)  This approach also has the appeal of hard-headed objectivity – forget about moral and aesthetic arguments and just get the numbers right!  Perhaps not surprisingly, environmental advocates and policy types have rushed to put a price on nearly everything, from swamps to oceans to wild plants.  This kind of thinking closely resembles the traditional cost-benefit analysis of the early twentieth century, but with an essential difference.  Then, the imagined target was a decision by a public planner, who would schedule a logging concession or require a certain level of cleanliness in water to maximize benefit to the public.  The economic bottom line, in that traditional calculation, appeared on an administrator’s ledger.  In the new version, the ideal is a market, which registers and aggregates the preferences (at least the ones backed by spending power) of everyone involved.  The image of the reform is this: it brings all environmental goods into the marketplace, so that we have a market-generated price for the stability of the global atmosphere and the diversity of the deep seas, as surely as for phones and shoes.  In this way, market-oriented environmental reform fits the spirit of a time when everyone is urged to understand themselves as consumers and entrepreneurs, their conversations as sales pitches, even their personalities as brands.  These cultural echoes are not random or trivial.  They express the widespread assumption that markets are dynamic, intelligent, and effective, while politics – not least democracy – is static, stupid, and bootless.  In this image, whenever we can switch a problem over from political governance to market governance, we can expect the market to do the better job.

            There are serious problems here.  There is no objective way of valuing the environmental considerations that reformers want to bring into markets.  Their “price” must be a function of how much, and in what ways, they matter to people.  This is not much of a problem for, say, shoes: their price reflects how much people want them and how much money they have to spend.  But market-oriented environmental reforms address externalities, effects that escape ordinary market processes.  This means that reformers cannot just wait for a price to bubble up from the play of supply and demand, because they would wait forever – as if you waited patiently for the world’s gasoline buyers to begin paying a spontaneous surcharge to show their worry about climate change.  (If we could expect that to happen, we would not have a problem in the first place.)  Instead, reformers must put a price on the good, either directly (as with a carbon tax that would translate into an extra charge on fuel) or indirectly (for instance, by limiting total carbon emissions so that the price of releasing carbon would rise with its relative scarcity).  That means the “market-correcting” price can only take hold when there is a binding political decision to impose it, which includes deciding, through politics, how and how much to value the environmental good.  There is no way around politics here.  Environmentalists in the US met a rough reminder of this fact in 2010, when they tried and failed to pass a market-oriented climate-change law whose technical details for regulating greenhouse gases had been many years in the making.

            Market reform is not a way around politics.  Imagining that it could be dampens the very politics that might produce an adequate response.  Widely held, strongly felt ways of valuing nature are sometimes necessary conditions of new laws that govern nature in new ways.  Such new ways of valuing nature arise, crystallize, and spread in politics.  Running from politics toward a fantasy of an ecologically appropriate market doesn’t only put the cart before the horse; it also starves the horse.  Our market-oriented anti-politics saps the political and cultural energy that drive new kinds of governance.  As likely as not, the effect is to deepen disaffection with politics by increasing its sense of futility, and amplify the notion that a corrected market would make everything right – if only we could get there.  This is a double bind that grows tighter as we struggle with it, unless we can find and undo the knot.  Undoing the knot would mean recognizing that we need a renewed environmental politics – in elections, but also at the level of personal, local, and movement innovation – that can generate both the values and the power to engage this generation of problems.
                

           **
            WHAT IS AT STAKE
            Politics will determine the shape of the Anthropocene.  Consider one dystopia – a modest one, as they go, but bad enough.  Earlier versions of nature have concealed inequality among people, their landscapes, and their forms of life, by naturalizing it, treating it as a simple aspect of the given world, quite apart from political judgments.  Theories of race and sex, of the inherent direction of history, or of the purpose for which the natural world is designed, have all done this work.  These are not gone, of course – indeed, their traces are everywhere; but they are greatly weakened.  The more distinctive and potent danger today is a naturalized version of post-natural human mastery.  That is, the danger is in an approach to the Anthropocene that rhetorically embraces the need for humans to shape the world, but cuts off all avenues of radical and generative politics about how to do that, reducing our Anthropocene choices to a convenient minimum.

            As economy, ecology, and politics unite with growing intensity, the natural world itself will enforce unequal economic and political power with special force.  Wealth has always meant the power to resist natural shocks and carry on with one’s life.  Wealth commands vaccines and antibiotics, upland real estate safe from floods, reliable flows of food and water when drought strikes, and muscle and weaponry when the desperate and the opportunistic try to help themselves to those things.  In these ways, natural stresses can amplify existing inequality.  When sea levels rise, malaria spreads, and storms intensify, low-lying and poor regions will see their poverty confirmed by disasters for which no one can quite be blamed, while rich countries, even ones that have started out as haplessly as the United States, will get proof of their can-do resourcefulness as they innovate in seawalls and adaptive buildings and cities.  The global atmosphere is a great launderer of historical contributions to, and benefits from, inequality.  Everything washes out in the weather.  As providence once seemed to give Europeans technological and immunological advantages over Native Americans and other peoples, in the neoliberal Anthropocene, the justifications will be misfortune, happenstance, and the rich countries’ resilience and flexibility in the face of change.

            It is too anodyne to say that climate change creates hazards for which wealthy countries are better prepared.  It is more accurate to say that it creates a global landscape of inequality, one in which the already wealthy peoples who have contributed most to the problem see their relative advantages multiplied.  As the shaping force of human pressure on the planet grows and global inequality relentlessly inflects it, other landscape-level inequalities will emerge.  Already, many millions of acres of rich agricultural land in Africa are under leases of a hundred years or longer to feed burgeoning China as the Middle Kingdom dives into meat-eating and obesity and builds cities on its farmland.  Once, in a world of scarcity, peasants produced for lords and priests in a landscape that mapped out hierarchical bonds in differentiated legal positions that came down to different claims on the land and its products.  Those differences broke down, at least within political societies, as technology and wealth lifted the burden of scarcity.  Intense inequality has never gone away on the global scale, but it has been concealed and made politically avoidable by distance – literal geographic distance, but also social and imaginative distance, the distance of those who do not believe their lives are entangled.  The question now is whether, as competition for resources gets more severe, a more openly interdependent world will reproduce by region and continent the landscape of inequality that feudal society enforced field by field and family by family.  It was once hard to imagine that the landlords would starve, even when crops failed and spring came late.  Will it be hard to imagine that China, let alone the United States, might sacrifice its appetites when other bellies are tight?

The prospect is much the same for water, as global demand outstrips total supply.  Rich regions will become, in US terms, the Los Angeles of water, surviving on the rains of other places, transferred across deserts by technology and wealth.  Some places will become uninhabitable so that others can remain ecological exemption zones, places where no cities would be possible without massive hydro-engineering.  Those exemptions will become increasingly invisible as the engineering becomes more pervasive, just as we seldom think today of skyscrapers and suburbs in the American South as “exemptions” because they rely on air conditioning to keep up year-round business and busyness, or of dense cities in general as exemptions because vaccination saves their residents from epidemics.  But the logic, in a world of scarcity that is linked across regions and continents, will be a landscape of artificial drought and plenty.  As with the medieval precursor to a global food economy based on inequality, we might think of this global water engineering with reference to the West Bank of Israel-Palestine, where Israeli settlements enjoy running water at all times while Palestinians in neighboring villages plan their weeks around some ten hours when water is available.  The inequality is vivid there, because it falls out along national (and often ethno-religious) lines and is at a flashpoint of international politics.  We might expect to see the same logic, however, spread out through canals, pipelines, and tankers, without the nearness and the political valence that make it so vivid in a single valley of olive groves, pastures, and militarily fortified exurbs.

            I would call this dystopia the neoliberal Anthropocene.  It is distinguished by a legal device that launders inequality as neatly as the global atmosphere: free contract within a global market.  The 100-year leases that African governments are entering into with China may look like the extractive imperialism that marred world maps for centuries, but its legal basis is an agreement entered with open eyes by governments that, in theory, are equally sovereign.  The question is how much this justifies the inequalities that result, especially considering that the agreements are themselves the products of underlying inequalities between an increasingly rich and hungry country and others that are desperate for capital.  This is not the place to try to answer this enormously complex question, but only to emphasize that, in the neoliberal Anthropocene, it would hardly be a question at all.  This is the version of the Anthropocene that does not treat it as a source of new political questions at all, but simply envisions ever-intensified management of the globe, carried forward by market means, beginning from our vast present inequality.  If scarcity and environmental disruption tighten under these conditions, the planet will become a man-made unequal landscape, a dispersed and interconnected version of a feudal manor or an occupied territory, but one constructed out of market materials: free agreements backed by wealth.

            The alternative would be a democratic Anthropocene.  It would begin by extending a famous and important observation of Amartya Sen’s: that no democracy has suffered a famine.  Sen’s point is that famines are not the natural products of absolute scarcity, but the political products of distribution.  Famines occur when some, who have enough or more than enough, can peaceably ignore others who do not.  By tying together the fates of rich and poor, rulers and ruled, democracies put a limit on such indifference.  It is, alas, a broad limit that does not guarantee anything like equality or even decent treatment, but it is a limit nonetheless.  Extending Sen’s point would mean accepting that, in the Anthropocene, landscapes of inequality are human creations, and our decisions whether to create, tolerate, or change them are all political.  The neoliberal Anthropocene would be a politics of the Anthropocene, but a self-straitened one, implicitly committed to man-made ecologies that amplify existing inequality.

              A democratic Anthropocene would mean a few things.  First is Sen’s point, that the world of scarcity and plenty, comfort and desperation, is not just where we live: it is what we create.  Second is a premise of equality: if Anthropocene ecologies are a political question, then no one can be left out of the decisions that shape them.  In a world with no political institutions that can grapple meaningfully with global ecology, this principle is more a demand, a standard of legitimacy that will call all arrangements into question until it begins to be met, than it is a scheme of governance.  It is a way of saying that the global ecology is everyone’s: not just because it affects everyone, not just because everyone has a part in shaping it materially, but because, for these reasons, it should be everyone’s authorship.  As long as it is not, those who are committed to a democratic Anthropocene should work to imagine it so, and to insist upon it.

            Saying that the question of global ecology should be answered by everyone’s authorship has three meanings, each of them tied to one of the things that democratic politics does.  One of these is sovereign: it draws everyone’s vote into a single decision about what will happen, what the world will be.  That the world can pivot on that decision is the sovereign power of democracy, the most vivid and direct sense in which people can be, together, the authors of their world.  The second is discursive: everyone’s voice is in the often cacophonous scrum as the argument (too exact and orderly a world) unfolds over What We Should Do Together, a question that has grown into What the World Should Become.  Third is exemplary, or prophetic.  People may display and prefigure a way of living in and valuing the world that, though it would once have been impossible or even unimaginable, becomes a living question because someone has embodies it in her life.  The prophetic strand has been important in the long history of environmental politics, and one of the reasons to insist on a democratic Anthropocene is the circuit it maintains between the wildest creations of ecological imagination and the sovereign decision that makes a world.

            The discursive and exemplary aspects of democracy are especially important because the Anthropocene is not anthropocentric in the narrow sense of treating the world as a storehouse of resources for human interests, or even in the somewhat broader sense of assuming that the only perspectives that should count in politics are human perspectives.  The history of environmental imagination shows recurrent aliveness to the ways that the world is full of consciousness, experience, and pattern that are distinct from ours but, in imperfect ways, available to us.  How to stand toward the vital opacity of other life and of non-human order is one of the basic questions for a politics of the Anthropocene.  The world we make expresses our alertness or insensibility to these things, and, in turn, shapes us for great sensibility of blunts us into indifference.  Imperfect as democracy still is as a human thing, part of its challenge now is to make space, in the imagination and sympathy of people, for the non-human world.
           

           


[1] Wordsworth, “The Tables Turned”
[2] Wordsworth, Prelude
[3] From the discussion of the Crooked Stick.
[4] From the discussion of how “maxims keep us true to nature”
[5] Ray Wisdom of God 375.
[6] See, e.g., Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (1956) (arguing that the federal design of settlement carried out a policy of unleashing human energy and initiative).
[7] See John Muir, My First Summer in the Sierra 129 (“South Dome . . . seems full of thought, clothed with living light, no sense of dead stone about it, all spiritualized, neither heavy looking nor light, steadfast in serene strength like a god.”); id. at 169-70 (droplets of water passing from “form to form, beauty to beauty, ever changing, never resting, all are speeding on with love’s enthusiasm, singing with the stars the eternal song of creation.”); id. at 124 (“The whole landscape glows like a human face in a glory of enthusiasm, and the blue sky, pale around the horizon, bends peacefully down over all like one vast flower.”).
[8] See id.
[9] See 16 U.S.C. sec. 1131, et seq.; James Rasband, James Salzman, & Mark Squillace, Natural Resources Law & Policy 636-49 (2nd ed. 2009).  
[10] Significance of the Frontier in American History (last lines).
[11] Id. [earlier]
[12] FJT, The West and American Ideals
[13] Id.
[14] FJT, Contributions of the West to American Ideals (1903, Atlantic)
[15] FJT, Social Forces in American History.
[16] Id.
[17] [Cite for popular use of this phrase.]