Sunday, September 27, 2015

Equality, Emancipation, and Anthropocene Futures: A reply to Andreas Malm

Writing in Jacobin earlier this year, Andreas Malm launched a broadside attack on “the Anthropocene narrative” about climate change.  In this polemical essay, Malm makes some essential points about the distortions, evasions, and hidden complacency in the most “serious” and urgent-sounding climate talk.  What he is describing, though, is only one strand of Anthropocene thinking, the neo-liberal one.  There’s also a left Anthropocene that is essential to engaging planetary crisis in a way that doesn’t give up on egalitarian and emancipatory aims.

“Anthropocene,” a portmanteau word meaning roughly “the age of humanity,” refers to the fact that human impacts on the earth now amount to a geological force.  Exhibit One is that the global atmosphere, and so all the weather and the regional climates, are now parts of a Frankenstein hybrid.  Mass extinction, toxicity, synthetic hormones in marine environments, and the agricultural-urban-suburban surface of a densely inhabited planet are all supporting details.

Malm slams the Anthropocene for what he calls “species-level thinking.”  He means two things by this, and he’s right about both.  For one, simply talking about “humanity” as the agent of global change conceals difference and conflict among people.  It wasn’t humanity that put most of the greenhouse gases into the atmosphere over the last couple-few centuries, but the industrial economies of the rich countries.  There are still vast differences between the richest and poorest populations in carbon impacts.  And the effects of climate change and other environmental disruptions will intensify inequality: they promise, at least for the first couple of centuries, intensifying inconvenience for the rich, accelerating catastrophe for the poor.

Second, some scientists have treated the Anthropocene as part of natural history in very dubious sense: by tracing it to allegedly permanent human qualities.  These, conveniently, are often the same qualities that are often used to prove that there is no alternative to a certain style of market capitalism, including infinite acquisitiveness.  Malm objects to these in particular, and he also to the idea that any invariant human nature can account for, hence naturalize, the economic order that is driving the present crisis.

Universalizing the Anthropocene as simply a “human problem” encourages two kinds of pernicious response.  One, which Malm emphasizes, is moralizing about how “we” caused this crisis and now “we” have to overcome it.  Since there isn’t a “we” that caused it, this simply adds symbolic insult to structural injury for the world’s poor and exploited.  Moreover, being willfully blind to actual avenues of cause and potential response, this universalizing approach fosters a spuriously individualistic kind of lesson: “we” must improve our consumer behavior.  Besides ignoring inequality, this kind of non-program vastly exaggerates the autonomy of individuals living within systems of energy production, transport, shelter, food provision, and relations of production that all presuppose cheap, profitable fossil energy and an extractive relation to the planet (and, often enough, to other people).  Only a democratic engagement with these systems themselves can provide the pivot to shift to an economy that does less damage – off all kinds.  And that implies conflict, since some people are doing very well in the present economy.  But there is no room for conflict in a moralized “we.”

There’s also another neoliberal response to the Anthropocene, which Malm doesn’t really address, but which is just as inadequate as the first and probably more influential.  This is the managerial attitude that proposes that a certain kind of market-minded technocracy needs to take over the problem.  On the one hand, this means geo-engineering measures such as changing the atmospheric mix or limiting the amount of sunlight that reaches the earth (and so reducing warming from the greenhouse effect).  On the other hand, it means the “green bottom line” approach of economists, corporate sustainability officials, and business-oriented conservationists such as the Nature Conservancy’s chief scientist, Peter Kareiva.  They propose to build a higher valuation of “natural capital,” or “ecosystem services” into corporate accounting so that profits, at least, will be sustainable in a thoroughly monetized and privatized world.  This, approach too, embeds the current economic order more deeply than ever and hurries political alternatives off the table.  Its practical effect is a market-based confirmation of inequality – for instance, in the contracts committing decades of agricultural production in parts of Africa to Chinese consumers (at least as long as the Chinese can pay).  This response uses the Anthropocene story to say, in effect, If we are remaking the world in our image anyway, then we might as well be intentional about it.

Malm does not distinguish between these neoliberal uses of the Anthropocene and its democratic potential.  He writes as if there were only one Anthropocene.  But that is not so.  Calling this age the Anthropocene means recognizing that the shape of what used to be called the natural world is, increasingly, a product of political economy.  This fact expands and gives an ecological dimension to the process that Marx described in the Communist Manifesto: global capital involves all of humanity for the first time in a single system, with rules and relations that span the planet.  The point of the famous exhortation – “Workers of the world, unite” – was to turn a new material reality into a basis of self-conscious political activity.  It was present people’s new reality to their minds so they could reclaim it as theirs by remaking it.  This remaking was, of course, ultimately concrete material work, but a critical step was an insight into how the world had changed, in the ways that it bound people and in the ways it bound them together.  To borrow a somewhat clunky distinction, Marx presented workers with the reality that the world economy had made them into a class in themselves – they objectively had the same relation to capital, wherever they were – so that they might become a class for themselves, aware of their situation and able to act without illusion.

The Anthropocene idea does the same kind of work.  It points to a condition that binds every region and people of the world – not so much in a common humanity as in relations of unequal contribution to the planet’s changes and unequal vulnerability to those changes.   In this respect, invoking the Anthropocene issues a challenge to construct a political humanity that is commensurate to the scale of our unequal and often terrible material commonality.  This is “species thinking” – hence that anthropo- - in the sense of what it points toward trying to build, not for sentimental reasons or because “humanity” sounds heroic, but because the global material scale of unequal interdependence requires a global political scale for any reconstruction of interdependence along egalitarian lines.  This ambition marks the difference between a neoliberal Anthropocene, which naturalizes and reinscribes inequality in a global material order, and a democratic Anthropocene, which aims at making the future of a shared condition into a question for common decision among equals.  Nothing in the idea of Anthropocene requires the neoliberal version, or fosters sentimental blindness to the real conflicts present in a transition to a democratic approach to global ecology as a problem of political economy, emphasis on political.

This is all frustratingly imprecise, but so is the “environmentally responsible socialism” that Malm cites as his alternative to today’s capitalism.  That is the condition of alternatives now.  And making the political economy of the Anthropocene a democratic question – is certainly a precondition of Malm’s alternative.  For now, a democratic Anthropocene is mostly likely to begin, like the labor movements Marx was addressing, in local, national, and regional politics, the self-organizing of hopeful – and just desperate – protest and alternative that Naomi Klein calls Blockadia.  Even with a blend of local motives and internationalist vision, such movements are still likely to have their most important forum in national governments, because these, for all their failings, are still the best institutional approximations of anchoring real political power to some kind of popular will.

One of the most important political projects is to press against austerity, neoliberal changes to labor law and social provision, and economic inequality and insecurity.  The effectively limitless appetite for material things that has become a strut of political stability from the US to China is one of the major barriers to the plausibility of a democratic transition to a fairer and greener world.  But this appetite is a political artifact of economies that produce insecurity at every point in the human life-cycle, and so force human appetites into ever-more intrusive (and profitable) incursions on all the other life-cycles that are entangled with ours.

It’s true: talk of the “global” and the “human” can be soporific and hazardous all at once, and that the impulses to conceal inequality while naturalizing market capitalism are so pervasive that those who do it are often quite unaware.  Malm’s frustration with all of this is well taken.  But a democratic politics, aimed at a democratic political economy, now has to include humanity and the globe among its problems.  This isn’t about a choice among narratives, but about how to begin making history in circumstances that we didn’t choose.

Thursday, July 23, 2015

The Supreme Court, a literary exchange

"The past is never dead. It isn't even past." ~Chief Justice John Roberts, quoting Faulkner while dissenting in Obergefell v. Hodges (the marriage equality case),


"History is a nightmare from which I am trying to awake." ~Associate Justice Ruth Bader Ginsburg

"Welcome, O life! I go to encounter for the millionth time the reality of experience and to forge in the smithy of my soul the uncreated conscience of my race." ~Associate Justice Anthony Kennedy

"What fresh hell is this?" ~Associate Justices Stephen Breyer and Samuel Alito, in unison, entering from opposite directions

"What I'm trying to do is save your ass, gorgeous." ~Associate Justice Elena Kagan

"Hell is empty, and all the devils here." ~Associate Justice Sonia Sotomayor

"Now I am become death, the destroyer of worlds." ~Associate Justice Clarence Thomas, spurring his horse into a sulfurous pit in the heart of Rome

“I was a Flower of the mountain yes when I put the rose in my hair like the Andalusian girls used or shall I wear a red yes and how he kissed me under the Moorish wall and I thought well as well him as another and then I asked him with my eyes to ask again yes and then he asked me would I yes to say yes my mountain flower and first I put my arms around him yes and drew him down to me so he could feel my breasts all perfume yes and his heart was going like mad and yes I said yes I will Yes.” ~former Chief Justice William Rehnquist

"Words, words, words." ~Associate Justice Antonin Scalia

"One must imagine Sisyphus happy." ~Associate Justice emeritus John Paul Stevens

"Hell is other people." ~Associate Justice emeritus David Souter

Wednesday, July 15, 2015

Field notes on reality (+ Elena Ferrante, Greek gods, landscape aesthetics, and Antonin Scalia)

“We are each tiny parts of something enduring, something that feels solid, real, and true.”  When I read a sentence like that one, from James Rebanks’s much-praised A Shepherd’s Life, I grow suspicious.  What is it to claim that a place, an experience, a practice, is real?  As opposed to what?

Then I grow pedantic: real as opposed to nothing, I insist.  “Real” means “actual.”  Brand-new suburbs are real.  So are plastic trees, made-up religions, neurotic projections and hallucinations, and every page on the internet.  Every last one, an actual thing.  What is so specially real about sheep that descend from earlier sheep owned by your ancestors in the same place where you live now?

Of course, this kind of thinking will not get very far.  Calling something real pays it a certain kind of compliment, marks it for distinction.  And so, the same question again: real as distinct from what?

Well, usually as distinct from those other words that Rebanks uses: false or insincere rather than true; insubstantial rather than solid.  Fair enough.  But calling these qualities real raises the stakes.  It draws an ontological borderline and expels to its far side everything flimsy, fleeting, disingenuous, and unconvincing.  In practice, what is convincing is often what is familiar: old, well-trodden, with chthonic notes in the bouquet.        

So what “feels real” will often be an object of nostalgia, and in that respect a fantasy and flight from the real present – which may feel oppressive and inspire flight precisely because it really is flimsy, fleeting, full of halfhearted work and disingenuous words.  The real can be the mortal enemy of the actual, route of an attempted escape from it.  

What counts as “real” in this sense will often be conservative.  Collective nostalgia, in particular, is likely to seek after a golden age of real men and real women, real faith and real causes, as opposed to the shifting and hybrid genders and compromised movements and institutions that we live with in fact.  But this is not always true: some trans activists insist specifically on the reality of their non-traditional genders, as opposed to the false and constraining actuality of hard binaries.  Talk of reality can be revolutionary rather than conservative, abruptly recasting all that merely is as artificial and obfuscating.  Marx did something similar in Capital when he invited readers to follow him into capitalism’s basement workshop, where they could envision the extraction of surplus value, which no one had ever seen or touched, but which, he argued, was more real than all the contracts and property rights of the marketplace.

“Reality” has often had affinities with “nature” and all that is “natural.”  Real food is food from the earth, whose sources you can touch, whose taste you recognize, food for which your language has an old and perhaps colloquial name.  Real work is work with material things, tied to the rhythms of seasons, animals, and crops.  For Americans, in particular, wilderness, the most natural place, has often seemed the most real place, the place to encounter both the world and one’s self unmediated and unmodified.  Never mind that the places we call wilderness are designated as such by law, and managed by federal agencies to preserve a prescribed set of “wilderness values.”  Wild nature, as a paragon of reality, takes work to produce and maintain.  It is unavoidably artificial.

The very idea of nature is under pressure these days, and rightly so.  Scientists and humanists alike argue that the planet has entered the Anthropocene, a geological era when humans are a force, maybe the force, in the earth’s development.  In this time, there is no more nature that is independent of human action: from the upper atmosphere to the chemical composition of soil to the mix of species in an age of mass extinction, our mark is everywhere.  The world we find can only be the world we have made.  The question cannot be, as environmentalists have often put it, how to save the world, but only what kind of world, with limited powers and foresight, to try to shape.

The Anthropocene has a brute empirical dimension, based in the great and growing human effect on the world.  It also has a more theoretical dimension.  The discovery that there is no more nature comes along with the insight that “nature” has always been a way for people to talk to – and about – one another.  Nature has always been cultural and social.  So aesthetic concepts of the beautiful and sublime have been bids for status by social groups that prized them, and attempts to vindicate experiences that were precious to them – such as scaling mountains to admire creation’s wild and dangerous place.  So the Lockean idea that nature was made to fulfill human needs, if only people would clear, plant, and develop it, rationalized the displacement and expropriation of native peoples in the settler colonies of the Americas and Oceania, entering the political and religious culture of early United States and the law of Australia and New Zealand.  Such opposites as monarchy and democracy, slavery and revolution, have all been celebrated as the favored principles of nature, depending who is interpreting it, and with what purposes.

Of course, these motivated interpretations of nature do not feel strategic to those who undertake them: they feel natural, sincere, real.  Nature has always stood for what comes before politics and culture, is not susceptible to their judgments, and so sets their limits.  In this way, talking about the principles of nature has been a self-concealing mode of cultural politics, a politics premised on denying – with a pure heart – that it is a politics at all.

Followed through, embracing the Anthropocene would mean giving up this unearned purity of heart, and surrendering the happy protest, “It’s just natural!”  It would mean embracing the necessary artificiality of every version of the “nature” that is a joint product of human activity and the rest of the world.  That would require finding new and clearer ways of talking about what is precious in the forms of halfway artificiality that have been called natural.
The same goes for the real.


            In a rare interview earlier this year, the reclusive Italian novelist Elena Ferrante told the Paris Review that sincerity and accuracy, the hallmarks of the real, ironically falsify writing that relies on them.  She said, 

“The most urgent question for a writer may seem to be, What experiences do I have as my material, what experiences do I feel able to narrate? But that’s not right. The more pressing question is, What is the word, what is the rhythm of the sentence, what tone best suits the things I know? … It’s not enough to say, as we increasingly do, These events truly happened, it’s my real life, the names are the real ones, I’m describing the real places where the events occurred. If the writing is inadequate, it can falsify the most honest biographical truths. Literary truth is not the truth of the biographer or the reporter, it’s not a police report or a sentence handed down by a court. It’s not even the plausibility of a well-constructed narrative. Literary truth is entirely a matter of wording and is directly proportional to the energy that one is able to ­impress on the sentence. And when it works, there is no stereotype or cliché of popular literature that resists it. It reanimates, revives, subjects ­everything to its needs.”

            In other words, we should accept that the real is an aesthetic achievement.  Appreciating this point preserves the value of accuracy, the fidelity to fact that should be the standard for a piece of reporting or a police report.  It also preserves the real from the enervating confusion with mere accuracy.  It is, instead, an achieved resonance between expression and experience, or between subjective experience and its objective setting, that seems to clarify and dignify both.  What makes the real, in this sense, is a circuit linking self and world in a feeling of mutual fit that seems to touch something timeless, even as it is, itself, fleeting.

            Understood this way, the real is the antidote to a banal literary and aesthetic realism that amounts to literalism – the kind of storytelling that wants you to know it really happened.  Making literary reality is not unlike making Anthropocene landscapes: only the materials and certain formal constraints are given, and the goal is an aesthetic excellence that stems from self-consciousness about what experience one is trying to produce, and how the materials and craft can sustain or undermine those.

            This way of praising the real leaves room to doubt it where it doesn’t belong or its use is, as Ferrante puts it, falsifying.  For instance, in American constitutional law, the “originalists” who insist that the constitution’s phrases must mean today what they meant in 1789 are engaged in an aesthetic interpretive exercise that falsifies the nature of legality.  Justices such as Antonin Scalia gather scraps of old legal text and dictionary definitions, assemble them in the soft light of claims about the ethos of the American Revolution, and conclude, with an air of inevitability, that the constitution guarantees the right to own a gun, or contains no right to abortion or same-sex marriage.  When it is done well, the effect can be exhilarating: total persuasion!  The judge opens his hands, palms out to show that they are empty and innocent.  Reality made me do it!

            The originalist’s achievement mystifies the ways that law should be transparently artificial.  It makes a world that was not there before, by forming rules – such as liberty and equality – that are pure human creations.  It makes a dwelling-place, as surely as civil engineers make a city.  Its power should be lucid and open, hence potentially democratic, or at least open to criticism at every point.  Concealing its world-creating work by cloaking it in an old “reality” mystifies the workings of power.  Even when the execution is impressive, the response should not be admiration.

            Recognizing reality as an aesthetic achievement can also liberate world-making as a form of play.  Think again of nature and its landscapes.  Recognizing that they are doubly artificial – made or preserved by human power and interpreted in human experience – need not leave them flattened and lifeless.  The suspicion that this is so, that new and palpably artificial landscapes offer nothing, is what drives people back to familiar kinds of “real” places, places with sheep and cottages and old paths.  But creating and interpreting those is a way of inventing the real, not finding it!  And so, with that in mind, we should be able to invent it elsewhere, and in other ways.

            A week in the Peloponnesian countryside recently showed me something about how landscapes, stories, and the mind can play together.  I thought all the time of the gods and spirits that were supposed to have animated the peaks, forests, and streams.  The history of the place invited these thoughts, of course, but so did its shape. 

            The instinct that gods live in high came alive in a terrain with steep slopes that open up into broad terraces and generous mountaintops, level meadows shaped for revels.  Why would there not be a life up there, inaccessible but imaginable?

            It is a place of intense microclimates.  A slot canyon rips a lush, dusky line into an arid mountainside.  Surrounded by dry pines, backed against a thousand-foot cliff, a vertical stream throws out a fan of hanging grasses, then comes to ground at the roots of big, gnarled figs and planetrees (also called sycamore maples).  It reminded me of Northern California, and also of the Banias, a river cleft at the base of the Golan Heights in northern Israel, named by Roman occupiers for Pan.  In the spring, cold, blue-tinted meltwater races through a green, heavily shadowed rent in a near-desert baked in gold Mediterranean light.  Where a blade of that gold slices between wood and leaves and strikes the water, two worlds meet.

            This kind of anomaly is a place for spirits.  It’s a product of a place vitally unlike itself, always generating its own exceptions and inviting imagination in its interstices.   It’s a home for something of the place yet not entirely of the world – a dryad, say, or river spirit.

            In the modern west, the aesthetics of landscape generally comes down to two categories.  One is beauty, the quality of a restful and regular place – a lovely farming landscape, for instance.  The other is sublimity, the half-frightening, half-elevating power of huge, alien nature: a volcano, a whirlpool, the ocean in a storm, lightning in the Sierra Nevada.  Both beauty and sublimity have been traditionally figured as emanations of the real, emblems of a unified and given world, the product of monotheistic creation.

            The animated landscapes I’m describing fall into a third aesthetic category: the uncanny, the place we aren’t sure what to make of, which may or may be looking back at us with eyes like but also unlike ours.

These are the landscapes of the strange familiar, where we recognize ourselves but are also frightened and baffled.  They are inhabited, personal, vital, and alien, all at once.  Animist, pagan places, they have a variegated vitality that fills me as I race and stumble across them, trying to reach the next strange grove.  That is, they invite play more than reverence, and the reverence they elicit is only one of their moods, another form of play.  In them, the mind plays tricks on itself by invitations – some serious tricks, some not so serious.

I would welcome a world where such experience is more common.  This does not mean returning to the real, but it does not mean rejecting it, either.  It means learning the safe ways to have dangerous play with it.


Sunday, June 21, 2015

The Pope and I Are Having a Complicated Day

            The Pope and I agree on many things.

            We agree that economic growth does not solve all problems, and that it creates some.

            That the real question about an economy is what lives, relationships, and work are possible within it.

            That we use ourselves up in getting and spending, even in getting and spending experiences.  That this is waste.

            That the real work is to be open to others, especially the strange and inconvenient.  That this is very, very hard.

            That the natural world is part of all of this.

            That the world’s beauty is a sign of its goodness.  That its value is deeper and broader than our convenience.

            That we should make the places we live beautiful, open to the world, and serving to relationships.

            That there is a difference between working hand in hand with the natural world and dominating it, and that we should work hand in hand with it, as we should with one another.

            That the best way to these goals is not for each to get as rich as possible, and maybe give it away in old age.  That the world is too small for that, time is too short, and we have better things in us.

            The Pope and I disagree on many things.

            I don’t think that, without the backstop of God, we can only become selfish, insatiable, and trapped in ourselves.  That is, I don’t think climate change is a crisis of secularism.

            I don’t think that women’s choice is a symptom of our selfishness.

            I believe that much of the equality, cooperation, and love of the world that the Pope voices comes from the experiments of free people, often radical, scorned, and resisted, and that he is adapting to these values, not creating them.  Maybe one day women’s equality and choice will also change his church.

            I don’t think the world – what the Pope calls creation – contains a blueprint for its own right use.  I think we have to find that ourselves, in ethics, aesthetics, and politics.

            And I don’t share the Pope’s politics – which is, basically, what the Europeans call Christian democracy: capitalism with a human face, an updated, idealized society of orders.  But I note that, compared with the defenders of American capitalism today, the Pope is easy to mistake for a socialist.

            At base, I am uneasy when anyone’s high priest tells the world what should concern it most.

            But I take what the Pope says as ethics, aesthetics, and politics, clothed in theology.
            And he takes what people like me say as spilled theology, ethics that doesn’t know it needs God.

            In 500 years, I hope the world will be green and full of equals, that new forms of cooperation will have come, and that love will be pretty much the only law.  There will be no priests, just elders, teachers, friends, and wise advisers.

            The Pope’s future is different, but we want to move in the same direction out of this particular dark patch of time.

            And, although the disagreements concern “philosophical” questions, they will not have theoretical answers, only historical ones.  Time will tell.

            The Pope and I agree, as he says more than once in his encyclical, that “Realities are greater than ideas.”

            Here’s to the uncertain future of this one.

Friday, June 19, 2015

Constitutions of Violence (essay for the first issue of Scalawag)

The first constitution to govern what is now North Carolina, other than the original royal charter, was written for hire by the political philosopher John Locke, who served as secretary to the colony’s Lords Proprietors.  These rich Englishmen directed their draftsman to open with a statement of purpose: “that we may avoid erecting a numerous democracy.”  It was an ironic moment for the theorist of natural freedom and self-government, who later founded a theory of human equality based on the idea that people are “promiscuously born to all the same advantages of nature.”

Locke’s Carolina constitution, adopted in March 1669, for a region that included portions of today’s North and South Carolina, may be the strangest fundamental law ever to govern a piece of North America.  It populated the new colony with “signories,” “landgraves,” and “caciques,” and more familiar feudal categories – baronies and manors – under the government of a Palatine and his council of seven Lords Proprietors.  It sets out a hereditary aristocracy, with precise and unalterable proportions between political authority and land ownership.  Ratios of acreage, office, and power interlock and turn back on themselves like an Escher drawing.   Locke’s baroque scheme strikes the modern ear as more Dungeons & Dragons than Constitutional Convention. 

Indeed, no convention produced this constitution, just a board meeting.  In the new colonies, political governance was corporate governance.  Labor was to be done by a hereditary class of serfs called leet-men, who lived under the direct governance of their landed lords (who would administer law to the lower orders in “leet-courts”).  Below them were “negro slaves,” property at the whims of their owners.  Neither leet-men nor slaves were part of the body politic formed by Locke’s constitution.  His charter opened, “We, the lords and proprietors … have agreed to this … form of government.”  That is quite a contrast to “We the people,” the phrase that famously opened the US Constitution in 1789.  Most of the people in Locke’s Carolina were not the People, but the help, or just the stuff.  This constitution was intended to shut down all future democracy “in the most binding ways that can be devised.”

I feel a macabre fascination with John Locke’s constitution.  And, honestly, I find it funny.  It is funny because it is so rococo, racialized exploitation and political tyranny done up in ruffs and lace, a slave state from the Eastern Lands of Game of Thrones.  Daenerys Targaryen would have liberated John Locke’s Carolina.  Or maybe it’s not funny, but I wish it were.  I wish it were because I wish we could laugh away the absurdities of race, wish that all undemocratic and arbitrary power were as nakedly preposterous as what Locke proposed.  But of course what he wrote didn’t seem at all preposterous to him, or, more to the point, to “we the lords and proprietors.”  The world you have yet to change usually seems obdurate and halfway natural, while the injustices of faraway times and places feel fundamentally insubstantial: they should disappear like the Wizard of Oz, with a tug of a curtain.    


Locke’s phrases sometimes swam through my head at Moral Mondays rallies in 2013 and 2014.   There we were, still trying to erect a numerous democracy.  We were promiscuous in our equality, the kind of proud motley Carolina that generations of white supremacists have feared.  But we were also still unequal among ourselves, marked by lines of wealth and privilege, and subject to laws that have made the state less democratic: Locke’s Lords Proprietors would not have been entirely displeased by Thom Tillis’s North Carolina.

You don’t have to be, like me, a constitutional lawyer and political theorist to think of constitutions at a Forward Together rally.  Constitutional language is sacred text in the mouth of Reverend William Barber, head of North Carolina’s NAACP and the visionary of Moral Mondays and the Forward Together movement.  As anyone who has even dropped in on a rally know, Reverend Barber works with two canons: one religious, the other civic.  The Bible resonates everywhere in his speeches.  “Without vision the people will perish,” he quotes from Proverbs, and you realize that everything you have been hearing is in cadences and phrases that English speakers are trained to vibrate to, whether we are churched or unchurched.

But it’s the civic canon that really catches me.  When Reverend Barber raised the roof at 2014’s Netroots Nation, an annual gathering of progressive activists, he opened with several minutes of provisions from North Carolina’s Reconstruction constitution, written in 1868.  This later document established a principle of equal and universal citizenship to the state for the first time.  It outlawed slavery forever in the state.  Its drafters deliberately echoed the Declaration of Independence, declaring it self-evident that all people are created equal.  They also added “the enjoyment of the fruits of their own labor” to the people’s inalienable rights, a potent statement of the anti-slavery principle.  The Reconstruction constitution took Thomas Jefferson’s words, the fine phrases of a slaveholder, and applied them to everyone – restoring them to their right meaning, or, if you prefer, dismantling the master’s house with the master’s tools.

Constitutional language is living tissue in Reverend Barber’s fierce, looping rhetoric.  His speeches move in several dimensions at once.  They interpret the history of Reconstruction, interracial fusion politics, and white reaction, bending time’s arrow into a mythic loop, in which the present becomes the past, a second Reconstruction arising in the Civil Rights movement and Barack Obama’s election, a second Redemption (white supremacists’ favored term for their attack on Reconstruction) in the Tea Party and North Carolina’s right-wing legislature.  The language mimics this movement, phrases and images recurring and gathering force with each pass.  These cycles of ever more forceful recitation come to suggest an upward spiral, in the energy of the repeating words and the historical promise of the echoing events, until both explode into prophecy—not a promise of help from above but a call to act where you stand.  In dark times, the speeches manage to say that history is on your side, that language itself is on your side.

Barber would be the first to point out that North Carolina’s Reconstruction constitution was written with the ashes and blood of the Civil War still present to the minds of its authors.  Some of those authors were freedmen, recently enslaved people like Abraham Galloway, one of the Reconstruction constitution’s 15 black authors, who freed himself by escaping to Canada in 1857, returning to North Carolina as a Union spy and abolitionist tactician during the Civil War.  It is in part a peace treaty and document of surrender, abjuring secession forever and thanking God for the preservation of the Union.  It is a victor’s document, but one written to enshrine the rights of those its own canon – the Declaration and the US Constitution of 1789 – ignored.   Today it is the civic sacred text of a movement of underdogs, the charter of a dream deferred.

Like the Christian Word, civic sacred texts carry the memory of blood and wounds.  The idea of equal citizenship took on life and power among slaveholders, and also among settlers who expelled and slaughtered Native Americans, confident that both God and history were on their side.  Equal citizenship for some came with excluding others from citizenship altogether, either as enslaved laborers in the South or as inconvenient savages on the frontier.  Yet the lived reality of political equality among the oppressors worked the ideal ever deeper into American myth, imagination, and practice.  This reality drenched the fine phrases of equal citizenship in the blood of lynchings and massacres, associating them indelibly with what we have learned to call white privilege.  But these same phrases are also the civic catechism of Reverend Barber’s peaceful, democratic, and entirely unfinished revolution.  


How can slaveholders’ words anchor a language of prophecy and redemption?  (I am deliberately using redemption, the word that white supremacists used for their attack on Reconstruction, because it is also the right word for progressive constitutional prophecy.)  How does the record of hypocrisy and violence call Moral Mondays marchers – as Reverend Barber put it in his refrain at the mass rally of February, 2014 – to higher ground?  What are we doing when we treat a constitution as civic scripture?

            A constitution may do what its name suggests: constitute – form, make up – not just a system of government but a people.  A people, of course, is partly an imagined thing, a way of thinking and seeing.  When you imagine that you are part of such a people, constitutional language offers to tell you something about who you are.  The Civil Rights movement of the 1960s used such language to say, “As Americans, you are already committed to equality.  Now it is time to be true to yourselves.”  This is arguably strange or alienating, reaching inside you to make you someone else, while claiming not to change but to perfect you.  Yet this is also the language of transubstantiation, of redemption, of being born again into the self you were meant to be, the self you always were, but secretly or imperfectly.

            This redemptive attitude treats the glittering generalities of constitutional language, and of the Declaration of Independence, as a Word yet to be made Flesh. 
But it is not just a matter of borrowing religion for politics.  Something is happening in common between the two.

How do I, a secular marcher behind Reverend Barber, hear the language of prophecy and redemption?  There is a tradition in philosophy holding that all religion is a kind of Word yet to be made Flesh: that its promises of equality, dignity, and harmony express a worldly human possibility that has not yet become real.  If religion is a human creation, this tradition says, then it must be explained by human wishes and human capacities, not supernatural sources.  Seen this way, constitutional prophecy and redemption are not displaced forms of religious passion.  Instead, both constitutional and religious prophecy express the human knowledge that we contain more worlds than we have yet made and inhabited.  They are ways of naming and imagining a world we know we should make, a world we want, which we have not yet found the way to create.  It is a world of equality and inalienable rights, where there is no slavery and the fruits of your labor are your own.

            A constitution, then, is a line of tension connecting the world that exists with other worlds that might be possible, which we name to try to imagine them, and imagine to try to bring them nearer—or at least to see more clearly the distance between their ideals and the unredeemed present.   We use words to form this line of tension, to name the distance between worlds, if not exactly to measure it.

To my mind, this is true and powerful.  But there is a danger in redemptive imagination that is part of its power: it gathers all history into covenant, all injustice into reminders of a promise betrayed.  It can obscure the waste, suffering, and horror of past and present, so that its gloss becomes the highest truth about moments of felt possibility, but also quite inadequate, even false, to the lives where we spend most of our time.

Each of these Carolina constitutions is threefold.  Each is a record of its time’s violence and exclusion: a record of a bloody social settlement, an imposed peace in a long struggle.  Each is also an occlusion, a cloak over violence, and so a record of hypocrisy.  From the open neo-feudalism and slavery of Locke’s constitution through the freemen’s constitution of 1776 and the nominal universalism of 1868 – which proved to be a hospitable framework for Jim Crow – the balance shifts from an open record of violence to a subtler and more tragic record of hypocrisy.  It is partly here, in the gap such hypocrisy produces between words and reality, that the third aspect of these constitutions, the prophetic possibility, emerges. 


Locke’s constitution didn’t last long.  By 1700, it had mostly faded from relevance.  That said, Locke’s constitution was widely printed and circulated in the colony for three decades, and was fundamental law in those strange and turbulent decades (which spanned a restoration and revolution in the home country). Later Carolina constitutions are comfortingly familiar.  The phrase “We the people” would not open a North Carolina constitution until Reconstruction, but already in 1776, the newly independent North Carolinians declared in their state constitution that “all political power is vested in and derived from the people only.”  This constitution is studded with personal rights and protections against abuse of power.  The trick is that these apply only to “freemen.”  It is a freeman’s constitution, meaning, mostly, a white man’s covenant.  A form of democracy had come, but those who were left out of it now did not even merit a mention, unlike the leetmen and slaves that Locke’s constitution had called out by name.  Only silence marked their exclusion in 1776, the unspoken implication that “freemen” had an opposite. 

Such early state constitutions formed the template for the Supreme Court’s notorious 1858 decision in Dred Scott v. Sandford, which just before the Civil War declared that the US Constitution should be read to mean “we the white people,” the Declaration of Independence to declare “all white men are created equal,” and that white supremacy was the implicit, permanent commitment of American nationhood.  This, of course, is what Reverend Barber’s beloved 1868 constitution was written to destroy.  And even this egalitarian vision lasted only thirty years. Then the violent reassertion of white supremacy was constitutionalized in new amendments that created literacy tests for all voters except those who had been eligible to vote in 1867—that is, the white people who had been “freemen” under the old, slavery constitution.  Those amendments brought a poll tax as well.  This was the constitution of Jim Crow and separate but equal, which only the Civil Rights Movement, the Second Reconstruction, would displace.


Locke’s colonial constitution – there, it still holds me! – holds that any ambergris found on the Carolina coast belongs to the Lords Proprietors of the colony.  Ambergris, for those who don’t recall, is a potent gray mass produced in the digestive tracts of sperm whales.  Before the magic of chemistry, it was a major raw material for perfume.  A rare ingredient for a luxury good, it was prized and costly.

            This is a telling little irony.  When Locke described the origins of property in his most influential work, the Second Treatise of Government, he offered ambergris as proof that the world primordially belonged to everybody and nobody, but a person could make a part of it his own by taking hold of it.  Isn’t it true, he wrote, that a walker who finds ambergris on the beach becomes its owner, and demonstrates this ancient, basic human power to make nature into property?  Well, not so much in Carolina.

            This small betrayal of Locke’s celebrated principles may stand for many larger betrayals.  Locke was a theorist of human equality, which nature had spread “promiscuously” throughout the species.  He argued that anyone who tried to get you in his absolute power had, in effect, declared war on you, and that you could kill him in self-defense.  Unless, apparently, you were a “negro slave” in Carolina and he your master.  In that case, his absolute power over you was part of the constitution, which has no more room for promiscuous equality than for a numerous democracy.


            These kinds of inconsistencies capture my imagination partly because, as a constitutional lawyer, I belong to a strange subculture whose members sometimes imagine principles as Archimedean points: if we could just find their true meaning, we could shift the world.  We are trained to go after inconsistencies the way acupuncturists go after blocked meridians.  In that sense, we are technicians of constitutional prophecy, trying to bridge the pregnant gaps between words and the world.

            But this is not just technical, professional craft;. here again, the redemptive idea makes itself felt.  If only we could overcome these betrayals and errors, it suggests, we could make things right, as they were always meant to be.  This is the implicit idea of the whole tradition of civic preaching that Reverend Barber echoes, and which goes back to Abraham Lincoln and the abolitionists, and runs through Martin Luther King, Lyndon Baines Johnson, and others who portrayed the first Emancipation and the second Reconstruction as redeeming the country’s original promise.  This is an American story with a Christian template: original sin destroys what should be perfect harmony; only a sacrifice of blood, faith, and patience can redeem it and restore the primal design.  Those who like to say this is a Christian country may not realize exactly how right they are.  They should be answered: yes, conceived in sin and redeemed in blood.

            But even the story of redemption makes it all too neat.  Powerful as it has been as a tool of emancipation, it misses something else, something the Declaration of Independence and the Reconstruction constitution conceal, but Locke’s constitution lays bare.  The settlements that became the United States did not begin as an imperfect democracy, struggling to work itself pure.  They began as a project of settler colonialism, building a new world of economic opportunity for free settlers and the investors at home – the Lords Proprietors of the Carolina Colony.  The American Revolution took the home investors out of the picture and consolidated self-government for free settlers – but still on the backs of enslaved people and the lands of expelled peoples.  The exclusion and oppressions of American history began not as original sin but as what conservative constitutional theorists call original meaning.  Steps toward equality and genuine democracy have not have been corrections to a founding mistake, but revolutionary reallocations of power and privilege.  They radicalized the idea of citizenship that white male settlers claimed for themselves with their revolution; but in radicalizing it, they transformed it, because exclusion and oppression were built into it from the start and by design – albeit over the objections of genuine democrats like the immigrant Thomas Paine and the free black radical David Walker.

            What does this mean?  Well, for one, that an adequate Reconstruction needs to be just that – a deep engagement with the roots of continuing inequality in inherited wealth, economic structure, between races, and in institutions such as schools and the criminal justice system.  We are fooling ourselves if we believe the key is already hidden in our old principles, if we could just get them right – no matter how potent and attractive this idea is, no matter how much partial good we can manage with it.  The problem is not just to perfect a flawed democracy, but to decolonize national life.  The constitution that would do that has not been written yet.


Thursday, June 18, 2015

South Carolina, 1782

Asked to dine with a South Carolina planter,
Hector St. John Crevecoeur took a small,
Cool path through the woods.
“Examining some peculiar plants,”
He felt the air disturbed, though the day was calm and sultry.

He saw “large birds of prey, anxiously endeavoring to perch”
On a cage, raised over the path, which held
“a negro: the birds had picked out his eyes,
his cheek bones were bare.
No sooner were the birds flown,
than swarms of insects covered the whole body.”

Crevecoeur lifted water to the dying man,
Then “mustered strength enough to walk away.”
His dinner host said that the slave
Had killed his overseer.

In his letter Crevecoeur hoped this scene
Would account for his “melancholy reflections,”
For which he apologized anyway:
“While all is joy in Charles-Town, would you imagine
that scenes of misery overspread the country?
Where do you conceive that nature
Intended we should be happy?”

His host, wrote Crevecoeur,
Had given all the usual arguments,
Self-protection and the order of nature,
“With the repetition of which I shall not trouble you.”

Saturday, June 13, 2015

Inequality, Democracy, and Law (keynote address, 2015 SELA conference, Rio de Janeiro, Brazil)

Inequality is very old.  Until now, indeed, deep economic and social inequality has been perennial in all remotely complex societies. 

Democracy, by contrast, is arrestingly new.  Manhood suffrage is 100-150 years old even in the so-called “mature” democracies.  Women’s suffrage is a product of the twentieth century.  In the United States, effective enfranchisement of African-American and Latino citizens dates to the passage of the Voting Rights Act of 1965, and policies like denying former felons the vote continue to qualify the right. 

            How should we think about the relationship between one of the oldest features of social life – inequality – and our new political condition – democracy, at least nominal and aspirational democracy?  I put the question this way emphasize that, historically speaking, these questions are fresh as well as difficult, and we shouldn’t be surprised to be unsure or baffled in answering them.  Everything I will say has the tentativeness appropriate to this novelty and uncertainty.

            Now, although inequality is old, it feels fresh, even surprising, just now. 

            To recite a cultural history that you already know as cliché, Thomas Piketty’s Capital in the 21st Century alerted Americans to a body of research that had been developed over more than a decade, showing both income and wealth growing sharply more unequal around the world.  Piketty warned that a new rentier class of inherited wealth and social prestige is on the verge of emerging.

            It has become mandatory to raise an eyebrow at “Pikettymania,” and Piketty himself has had the good grace to profess bemusement at all the attention, but the fact remains that the book is a watershed from which many streams of inquiry are beginning. 

            There was a period in the North Atlantic countries, between the end of World War Two and the 1970s, when profound inequality seemed a thing of the past, growth was widely shared, and the shares of capital and labor in national income looked stable. It was easy to assume that those years were Act V of a comedy, watching history’s conflicts resolve into harmony. But maybe those years were instead Act II of a tragedy, observing but failing to understand inequality-producing dynamics that were at work below the surface. If so, we are now in Act III or IV of that tragedy.

Besides giving the numbers, Piketty’s book charts cultural changes that we’re all witnessing: the financial power of the one percent and the 0.1 percent change social life. Talent and ambition follow the money.  They go where capital either trades (Wall Street) or ventures (Silicon Valley). The professions seem drab and mediocre by contrast, and building up a good life by working for wages is becomes unrealistic. Working-class security, middle-class mobility, and stable, respected professions all give way to a rush for big money.  Picking the right parents becomes the key to good prospects — or marrying into the right family if you are born into the wrong one. Piketty lingers over Jane Austen’s asset-oriented marriage comedies with affection but also a certain horror: the need to marry someone with the right capitalization level, a central assumption of those plots, is no longer a quaint feudal relic. It is courtship in advanced capitalism.
            As his most acute respondents have pointed out, Piketty’s work opens more questions than it answers.  He has no theory of how the economy produces and distributes value.  Numbers — powerful ones — are what he has. He has counted things that were harder to count before now — income, asset value — and adorned the bottom line with some nice formulas for holding onto their importance. But the famous inequality r > g, as Piketty readily admits, is not a theory of anything; it is a shorthand generalization from some historical facts about money’s tendency to make money. Those facts held in the agrarian and industrial societies of Europe and North America in the nineteenth century and seem to be holding in today’s industrial and post-industrial economies. But these are very different worlds. Is there something constant that unifies different versions of inequality — that unites plantation owners and Apple shareholders, in their shared position above bondsman and Best-Buy techs — or is the inequality itself the only constant? Without answers to these questions, we don’t have a theory of capitalism, just a time-lapse picture of it.

            The growing interest in connecting private law with theories of inequality, which Amy gave us a terrific introduction to on Friday morning, is one attempt to use law to begin filling in these gaps.  Part of what is happening here, I think, is trying to nail down the thought that Piketty’s famous r, the rate of return on capital, is in part the product of struggles, struggles between those who own the world and those who just work here. Sometimes these are contract negotiations, sometimes strikes, and sometimes elections and lawmaking.  

 Maybe the basic question is power, arrayed along various dimensions, including the comparative power
of organized wealth on the one hand and organized working people on the other. Focusing on this question means putting human struggle at the very heart of any analysis of economic life. As the author of an earlier book titled Capital put it (though not in that book), the root is man.
The period of shared growth in the mid-20th century was not just the aftermath of war and depression, which Piketty makes much of. It was also the apex of organized labor’s power in Europe and North America, which came from many decades of organizing, not a little of it bloody, not a little under the flag of democratic socialism. Various crises cleared the ground, but the demands of labor, and an organized left more generally, were integral to building the comparatively egalitarian, high-wage world that came after the wars, with its strong public sector, self-assertive workers, and halfway tamed capital. A new attention to the distributive effects of the law of the economy – what we tend to call “private law” – is an attempt to get specific about the world that this egalitarian politics built, what became of it, and what might be involved in building a successor to it.

The kinds of changes we are discussing must pass through politics, which is to say, in various versions, that they must succeed democratically.  But of course, democracy, like capitalism, is not one thing but a pattern with many versions.  The culture of unequal wealth, with its patterns of status, influence, and ambition, shapes the practice of politics.  As Zephyr Teachout has emphasized in her important book, Corruption in America, unlimited spending in elections by the wealthy produces dependence on the part of candidates, who need money for political survival.  The result is not usually the outright bribery that the Supreme Court classifies as “corruption,” but a subtler reorientation of attention and concern.  You might think of it by analogy to the ways one sees and hears in a crowded room: where does the eye go, which voices does the ear pick up?  Who, a day later, does one remember was there?  In a democracy that depends on private wealth for its basic activities of communication and mobilization, candidates see and hear the wealthy, because they need them.

Here, then, we are beginning to see the entanglement of unequal wealth and democracy.  It is increasingly common to say that inequality matters to democracy in this way, that it undermines a version of civic equality that democracy presupposes.  But of course this is not obvious.

There is no pre-theoretical formulation of democracy’s relation to unequal wealth.  The question depends on one’s conception of democracy, and also on one’s conception of economic order.   The stronger one’s commitment to a idea of robustly equal citizenship, and the more strongly one believes that a political community might choose among a range of economic orders, the more of a problem unequal wealth looks to be for democracy, because it undermines citizenship and constrains the choices that belong to the political community.

Conversely, the more one sees politics and law as handmaidens to a naturalized set of market relations, the less is at stake in unequal wealth among citizens.  The naturalization of markets is a long tradition.  Its eighteenth-century version rooted rights of property and contract in human nature and divine design.  The twenty-first century version is more likely to proceed negatively, asserting that – in the famous phrase - “there is no alternative” to markets –on account of incentives, information costs, or some other constraint on institutional design.  In either case, the basic logic of the argument is demotion of political sovereignty by the naturalization of market economics.

Let me bring down to earth this question about the work that theories of wealth and democracy are doing, and connect with the role of law in structuring inequality.  Consider the U.S. Supreme Court’s First Amendment cases on money in politics.  What are the implicit theories of markets and democracy here? The Court’s ready assimilation of money to speech assumes that there is, in principle, no conflict between political argument and economic accumulation, that these are compatible, even mutually supportive.  The Court’s embrace of for-profit corporations as essential participants in the process of American democracy also highlights its confidence that there is no contradiction between the accumulation of great wealth and the survival of effective self-rule.

And why would the justices think those things?  Part of the answer may lie in an implicit theory of what self-rule is.  These decision hold that campaign-finance regulation cannot be justified by the goal of equalizing influence among citizens or avoiding so-called “distortion” of political debate by moneyed interests. In other words, equal citizenship as a constitutional value does not imply any rough equality of political means, influence, or efficacy – other than the vote itself.

Instead, the Court’s concern for democracy seems much more minimalist: to avoid the entrenchment of a political class through self-serving campaign laws, even at the cost of ensuring the entrenchment of a class of wealthy donor-citizens who effectively set policy.  That is, as it happens, the role to which twentieth-century economist and political theorist Joseph Schumpeter restricted democracy: facilitating elite rotation while declining as romantic the idea that ordinary citizens should, or can, participate in self-government in any meaningful way.  The patronage relationships that the Court’s decisions foster between wealthy donors and their preferred candidates and movements are exemplary Schumpeterian politics, intra-elite disruptors that change the menu of choices for voters who are mainly passive.
By invoking Schumpeter, I mean to do a little more than name-drop.  When I emphasized the newness of democracy at the start of this talk, part of what I had in mind is that much of the experience of widespread and stable mass democracy occurred in the halcyon years when economic inequality seemed to be in abeyance, those years that seemed to be the late act of a comedy.  In that time, from the mid-1940s through the mid-1970s, the worry that market-driven inequality would undermine democratic equality seemed to have been resolved in practice.  At the same time, resources – intellectual and institutional – for dealing with conflicts between the two were being eroded.  But of course that didn’t seem to matter so much if no conflicts should be expected to arise.

During these decades, a line of argument widely broadcast in the United States by Schumpeter and Walter Lippmann, among others, held that actually existing mass democracy could not instantiate any robust account of collective self-rule.  Voters were ill-informed, emotional, and often in states of fantastical confusion.  Majorities were contingent and fleeting.  Even at its most lucid, the will of the majority was simply visited on the minority like an authoritarian dictate.  The idea that democracy involved a collective body deliberately choosing its direction was insupportable outside certain archaic circumstances, such as the Greek polis or Swiss canton.  The most optimistic account one could give of democracy was to describe majoritarian elections as a rule of decision to resolve contests among rotating bands of elites – the position Schumpeter adopted.  These arguments appeared between the 1920s and the 1940s: by the 1970s, a sophisticated body of public-choice literature portrayed government as, in effect, a subset of economic life: a congeries of rent-seeking by industries and constituencies, power-accumulation by bureaucrats, and, at worst, utopian flights of reformist fancy free of the discipline that cost-internalization imposes on private decisions.

            But there remained a confidence that markets would solve their own problems with respect to inequality.  We had, with help from technocrats, enough democracy to serve as a handmaiden to markets, if not much more than that.  It might have seemed to be enough then; it might not now.

            I am describing the return, in the 21st century, of a 19th-century drama: the worry that the economy has a logic of its own which intrudes on other institutions & domains of life.  It is also the revival of the question what we can do about it.

            In the nineteenth century, among those who thought a basic conflict between market order and political community was real and a serious problem, one can identify two alternatives.  The first, associated with various strands of socialism, sought to absorb economic life fully into the community of equal citizens, that is, to overcome the distinction between the political and economic domains and dissolve all forms of unequal economic power into the sovereign power of democratic politics. 

The other, associated with Progressive reformers in the United States and in Europe with social democracy and, later, Christian democracy, took the opposite approach. It used the power of the state to strengthen the boundary between economic relations and non-economic social life, notably in the domains of the family, education, culture, and professional activity.  The latter was the basic strategy of the accommodation that structured post-War life in the twentieth century.

            Trans-Atlantic social democracy, then, was more social than democratic.  It took seriously the appetite for security in a relatively familiar, stable, and manageable social world, whether that of the factory, the union, the neighborhood, the university or profession, or the family.  Through pluralistic representative institutions, it sought to maintain a reasonable balance among interests.  Its basic strategy of reform was to open up existing institutions of representation and advancement to previously excluded groups while also redefining the state’s relation to individuals through an increasingly homogenous and libertarian scheme of negative rights that was complemented by a scheme of social provision.  It all seemed to be working well enough – until a reassertion of market principles and market power began to break down the barriers protecting various secure domains of social life and revealed the lack of power, or maybe lack of will, in the democratic state to reassert their protection.

The most sustained and influential intellectual attack on this Great Society optimism came from economist Friedrich Hayek.  Hayek argued that, contrary to welfare-state promises of security, an economy could do its work only if it maintained a measure of insecurity and arbitrariness.  Hayek famously argued that the economy should be understood as an information-processing system, conveying data about the relative scarcity of goods, time, and talent, and the extent and intensity of desire for them.  Effective communication of this data laid the groundwork for rational decisions about the trade-offs between possible uses of resources that are the ligature of economic life.

The key to this informational function was the price mechanism, which expressed the kaleidoscopic facts of economic life in uniquely succinct and usable form.  Prices could do this work only if they were in fact allowed to coordinate decisions about distribution and use of resources: every redistributive or regulatory mandate clogged and diverted the flow of information, turning a healthy vascular system of data into a swampy delta of drifting decisions, culminating in an administered state.  Faced with a choice between liberalism – which for him meant the classical liberalism of laissez-faire – and democracy, Hayek argued, one should prefer liberalism.  The more democracy developed in social-democratic directions, the more it tended to force the choice.

On the strength of these arguments, Hayek has become the exemplar of the approach to political economy often called neoliberalism.  Less a program or system of thought than a constellation of programs united by an intellectual mood, neo-liberalism is sometimes bolstered by the claims that markets secure liberty and equality (which Hayek argued), fairness (which he did not), or welfare (which he did, but in qualified form), but the heart the neo-liberal position is a negative one: there is nothing much for the state to do but make and maintain markets.  Ambitious political projects that aim at equality or fairness will undermine these and take welfare welfare with them.  A market regime is the least-worst for all of these values.

These ideas form an important part of the intellectual climate in which new revelations of growing inequality have been received.  One of the major divisions in today’s political economy must come over why neoliberalism has advanced as it has.  Was it because Hayek’s recuperation of market theory, combined with a long-running theoretical demotion of democracy, was intellectually right, and sensible policy-makers saved the world from incipient statism?  Or was it because, as Wolfgang Streeck has argued, capital revolted against the broadly social-democratic mid-century accommodation? Put differently, is the surging inequality of recent decades a feature of the best of possible worlds, or of a world where false necessity enforces an undue impression of inevitability in the very market arrangements that produce and sustain inequality?  Obviously, the stakes of this question are not small.  They concern whether the inequality-generating logic of economic life limits the possible forms of democracy or, on the contrary, the real possibility of democratic decisions about the shape of the economy has been suppressed by a counter-democratic revolt of capital.

            Now I would like to suggest that we treat this question in a pragmatic light, not trying to answer it generally and in the abstract, but concretely as a matter of experimentation.  I want to suggest that law fills in a large part of the picture of how inequality is produced and reproduced that is missing from Piketty’s account.  This gives us pressure points where we might find out how far it is possible to do things differently, and with what result.  And – this is a key further step – law is also the vehicle that will foreclose experimentation in these dimensions, if it is foreclosed.  What I presented earlier as a pair of abstract, theoretical questions – whether one views democracy more or less robustly and whether one sees market-driven inequality as contingent or necessary – may turn out to be a very practical question about how law is used concretely.

            I suspect that for many of you, the idea that law produces inequality will not be as novel as it might be to some US lawyers, especially private-law scholars for whom, as Amy pointed out yesterday, questions of distribution were exiled as pointless a generation ago.  The examples are not hard to find.  Law is the source of the original allocation of productive assets, and repeated new allocations, ranging in the US from the first land grants to settlers in the eighteenth century to the federal housing policies of the twentieth century, all favoring certain races and other groups.  Labor law, especially but not only the law of unionization and collective bargaining, shapes the push and pull between profits and wages.  Antitrust law limits or tolerates industry concentration, meaning both wealth and the power to shape markets.  Amy helped us to see on Friday how thoroughly intellectual property distributes control of wealth – and also direct control of goods essential to life, such as certain medicines.  When Piketty says that the economy produces inequality, it is only natural for lawyers to lift the hood and ask, How does law produce the economy?

            And how does law reproduce inequality, embedding it in the class structure Piketty warns against?  Answers come so quickly that you have already thought them.  Income taxes.  Inheritance taxes.  Wealth taxes.

            But taxes are merely the explicit part, the favorite policies of a tax-and-transfer era.  Our earlier examples, like labor law and antitrust, looked at how the economy produces and distributes income – under the hood, so to speak.  Now let’s ask how the shape of economic power helps to shape those laws, the legal rules of economic life.  For instance: the massive and very effective lobbies for pharmaceuticals and entertainment, which are endowed by IP law and, in turn, get to write IP law – including defining international IP law from their US base.  Or think of how antitrust and financial deregulation helped to produce the too-big-to-fail banks that were widely seen to constrain policy options in the US after the crisis of 2007-08.  Or move directly to politics: labor law feeds back into a recent finding that more than half of US business executives surveyed said they pressed their employees to be politically involved, and, of those, more than three-quarters were pushing for donations to specific candidates, showing up at rallies, voting for certain initiatives that they saw as business-friendly, and so forth.  Here is the return of a kind of dependency relationship that would have horrified the more idealistic republicans at the US founding, and was part of the reason that many radicals and progressives in the late nineteenth and early twentieth centuries argued that democracy under modern conditions had to become economic democracy.

            And I have not yet mentioned spending on elections.  Here, the situation in the US is astonishing.  The advocacy group Public Citizen estimates that between the 2008 and 2012 elections, spending by outside groups, newly empowered by the Supreme Court’s Citizens United decision, rose almost 250 percent.  If you are a Republican candidate for the US presidency, you need a billionaire patron.  If you are Hillary Clinton – well, it takes a village of wealthy donors cultivated over the Clintons’ unprecedentedly lucrative years between White House stints.  When political scientists Martin Gilens and Benjamin Page published a study last year finding that the distribution of policy influence across economic classes in the US was less suggestive of democracy than of oligarchy, it drew attention less because it was news than because it came as a certain kind of technical confirmation of what was already widely believed.

            Does it have to be this way?

Unless you are a thoroughgoing fatalist, it seems fair to judge from the last seven decades that there is a range of possibility in both the ways that law structures economic life and, in turn, the ways that the economy structures politics and law.  The social-democratic accommodation of the mid-twentieth century represents a genuine alternative to a marketized social and political order.  This is true despite whatever social democracy’s internal failures were (notably failures of inclusion), and despite the doubts that its decline raises about its sustainability in the face of marketizing pressure.  As I noted earlier, however, social democracy, always had more to do with securing a strong form of social membership for citizens than with the active political supervision of economic life: it was, to repeat, more social than democratic.  This may have been its Achilles heel.

            Now I want to turn to another way that economic inequality can colonize the production of law.  LAW’S CONCERN WITH JUSTIFICATION MAKES IT AN IDEOLOGICAL BATTLE-GROUND: it contains vocabulary for both criticizing and justifying inequality.
            Under democratic conditions – even loosely, imperfectly democratic, or aspiringly democratic, to justify the law is to argue that it is law fit for a community of equals.  The question then becomes: what is a community of equals?  What does it look like?

            This is a self-referential question: the question itself has to be answered by such a community.

            In the US, we are now seeing a trend in legal interpretation that deepens inequality by entrenching it in the way law structures and reproduces the economy; but it also does something more: it interprets basic values such as liberty and equality in ways that tend to reinforce market logic by identifying it with the defining commitments of a democratic community.

            I already talked about the Supreme Court’s interpretation of free speech in the cases on political spending.  These decisions are dismissive of the idea of a robust conception of equal citizenship or sovereign community.  The liberty they protect is the liberty to project your own interest or opinion as far as your bank account allows. 

There are plenty of other examples.  Sebelius v. NFIB, the Supreme Court’s first encounter with the Affordable Care Act, came very close to overturning the keystone of the law – a requirement that individuals purchase health insurance – to protect consumer sovereignty, the freedom not to be told what to buy.  The Court has used free speech principles to invalidate regulation of tobacco advertising and restrictions on pharmaceutical companies’ sale and commercial use of prescription data.  It has warned that it may invalidate laws requiring workers represented by unions to pay union dues.  In a whole series of cases, individual liberty has meant to liberty of a company to resist regulation, or of an individual to impose a collective-action problem on a scheme of regulation designed to overcome just such problems, such as mandatory insurance and collective bargaining.

            And what about equality?  The same justices who are driving the anti-regulatory interpretation of personal freedom are also advancing a view of constitutional equality, color-blindness, that interprets the civil-rights cases of the twentieth century as forbidding government to take account of race even in remedial policies such as affirmative action.  These opinions describe racial classification as an affront to the dignity of the individual.  They are idealistic, in their way.  They insist on the autonomy of self-defining persons, whose identities and relationships are theirs to form, and may not be dictated by a supervisory state.  But in a world where racial stratification remains pervasive and tracks economic and educational inequality, this form of constitutional individualism can be simply unreal.
            If there is a neoliberal approach to race, this is it: respectful of a certain kind of individual choice, wary of political intervention, and mainly blind to the ways that inequality persists and makes race real in practice.  In our doctrines of equality as well as our doctrines of liberty, then, Americans are finding in our law an increasingly laissez-faire, or neoliberal, image of a community of equals.  It is an image in which individual choice comes to the fore and collective interventions into structure recede or become unthinkable.  That is, it is an image in which mobilizing law to engage the sources of inequality becomes that much harder to do.

It is increasingly common to believe that economic inequality must be brought under control for democracy to realize, or recover, its potential.  As we have seen, this claim depends on one’s conception of democracy; but it is highly plausible for any conception of democracy that aims at meaningful version of collective self-rule, rather than simple elite rotation. 

And there is something further: robust democracy may be necessary if wealth is to realize its potential for social benefit.  Indeed, democracy must be able to intervene in the definition, creation, distribution, and use of wealth precisely to capture the humanitarian and emancipating benefits of growing total wealth.  A political scheme of social provision, and political limitations on the scope of inequality, are the most plausible means to prevent growing wealth from undercutting its own benefits through inequality that limits life-prospects, creates hierarchy, and distorts the image of a community of equals – and, in turn, makes inequality that much harder to combat.

            In the abstract, inequality is not good or bad; it is just a ratio.  In practice, its effects must be measured, like those of any economic order, by the kinds of lives it makes possible, the kinds of relations people live out within it, the human powers that it fosters and those it inhibits and constrains.

            We can key growing inequality to many such powers – or, if you prefer, capabilities: health, mobility, self-development and self-expression, the sense of dignity and efficacy at work and in personal life.  But the most basic danger is that inequality might undercut a political community’s capacity to master inequality itself, making inequality self-perpetuating and all but natural, inscribing it in culture, politics, and personality as well as in the economy.  In this setting, democracy stands for the power of collectively choosing the structures in which we make our private choices, for the idea that a community of equals can aim at equality in many dimensions, and does not need to accept inequality as fate.

            Of course, these thoughts all add up to nothing more than an experiment in trying to think our situation.  But, as a long-dead lawyer with misgivings about equality once told us, all of life is an experiment.  Democracy is a way of owning and sharing the experiment, rather than submit to be experimented on by blind economic and historical forces that are, themselves, just the residue of earlier human choices.