Community Rights vs. States Rights vs. Federal Law

Don't Tread on Me In the last post I talked about Mitt Romney’s Energy Plan, where one point was his interest in increasing states rights over federal rights to regulate.

“States rights” is an issue that has been revived by the Tea Party. See States Rights and the Growing Rebellion to get an idea of where they’re coming from.  The Repeal Amendment was introduced to Congress in 2011, stating:

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

The Daily Kos notes that this amendment would be bad news for our country:

The purpose of the amendment is to allow states to veto any federal “law or regulation.”  Federal law is not limited to statutes and regulations but also includes treaties and our Constitution.  The Supremacy Clause of Article 6 provides that our Constitution, federal statutes and treaties constitute the supreme law of the land.  Back in 1819, the U.S. Supreme Court held that this Supremacy Clause is the essence of the balance of powers between the federal government and the states, providing that federal laws supersede conflicting state laws.  This means that state action cannot impede the federal government’s valid constitutional exercise of power.

Thus, one purpose of the Repeal Amendment is to change the balance of powers existing between the federal government and our states.

The states rights /Tea Party activists invoke the doctrine of nullification – “the idea that states have the right to unilaterally render void an act of the federal government that they perceive to be contrary to the Constitution.”  They point to the writings of Thomas Jefferson, among others, for support. See Jefferson’s Argument for Nullification and Limited Government.

Now, it is interesting to me that this line of reasoning used by Mitt Romney and used by the Tea Party – that local government can supersede federal government – sounds surprisingly similar to the arguments made by the “community rights” pro-environmental organization, the Community Environmental Legal Defense Fund (CELDF). They do not talk about states rights, but rather about “Community Rights,” superseding both state and federal law.

Friends and colleagues of mine have been working on this angle in my neck of the woods, but I have not felt comfortable with this approach.  They make this argument (CELDF Mission):

We believe that to attain sustainability, a right to local self-government must be asserted that places decisions affecting communities in the hands of those closest to the impacts. That right to local self-government must enable communities to reject unsustainable economic and environmental policies set by state and federal governments, and must enable communities to construct legal frameworks for charting a future towards sustainable energy production, sustainable land development, and sustainable water use, among others.”

Let me be clear that I’m NOT saying CELDF shares the same interests and motivations as the Romney campaign (or the Tea Party).  Far from it, they couldn’t be further apart. One side wants to use local government to overrule environmental regulations they see as too strict and burdensome, and the other side wants to use local government to enact stricter regulations that have more teeth (in fact not so much to regulate, but to actually ban activities such as fracking or coal trains).  What troubles me is that if CELDF were to be successful in achieving their goals, the outcome might be different from the original intent. As Michael Lilliquist wrote (see below), “Hyper-local democracy is a dangerous and potentially corrupting tool; you don’t want to use a tool which you would not allow others to use.”

I just don’t see local communities making better choices than those made at the state and federal level.  This may happen in isolated pockets, but by the same token you could see vast swaths of places overturning the few gains the environmental movement has achieved on the level of federal and state policies and regulations, which is exactly what the Tea Party wants to do.  As Tip Johnson, a long time local activist in my community has stated in another blog comment:

Local governments have an abhorrent record of doing the right thing. They have a long history of abusing their own, especially the poor, but anyone not in favor.  If local governments had been willing to do the right thing, federal imposition of civil rights would not have been needed.

I am personally proud of one of my local city council persons, Michael Lilliquist, who has a strong record of supporting sustainability measures, and also spearheaded a local resolution to oppose the Supreme Court “Citizen United” ruling on the rights of corporations. Lilliquist attended the CELDF democracy school, and understands and supports their critique of corporate and property based rights.  However, when a local community rights ordinance was proposed, he composed a well-reasoned letter on why he felt compelled to oppose it. Find the full text of his letter here, and the response from Coal Free Bellingham here.  He wrote, in part (I’ll post a larger excerpt in the comments below):

“Every city is not and cannot be sovereign and independent. To believe otherwise would be to undermine the very idea of the rule of common law, common justice, and common purpose. It would undermine the “we” in We the People. It would become, each community for themselves; our way or the highway. Local rejection of federal authority has a long, sordid past, known sometimes as “nullification” and put into service by racist southerners attempting to oppress and discriminate under the cloak of local democracy. Hyper-local democracy is a dangerous and potentially corrupting tool; you don’t want to use a tool which you would not allow others to use. The enlightened arc of history has been to expand our boundaries of shared community and values, not narrow it down city by city. The rule of law should not be thrown out so quickly. The ends do not justify the means.

…The central problem with Prop 2 is that it pits one democratically elected government against another democratically-elected government…It creates a constitutional showdown not over the issue of corporate influence or property-based rights, but rather a show-down between federal and local government. This is the wrong constitutional showdown, because a victory will bolster the dangerous states-rights agenda while not directly affecting corporation’s legal status.”

A related concern is that of  NIMBYism, where people, for example, continue to use natural gas, but oppose fracking operations in their community, or environmentalists who support alternative technology, but oppose wind turbines being sited in their communities because it might ruin some people’s view, and affect property values.  Alternatively, people like Amory Lovins and David Holmgren argue that destruction of the environment should occur in the places where people are using the resource that destroy the environment.  If we are made to suffer the consequences locally for our over-dependence on fossil fuels, maybe that would encourage us to actually reduce our consumption.  I understand Lovins once suggested, tongue-in-cheek, that if tailpipes of cars were routed so that exhaust was delivered inside the vehicles for people to breathe, only cars with zero-emission pollutants would be sold.

I’m a big believer in relocalization, but I still believe we need to work within the realm of federal laws as well as our continued connection with the world as a whole.

“This will not be an isolationist process of turning our backs on the global community. Rather it will be one of communities and nations meeting each other not from a place of mutual dependency, but of increased resilience.”
- Rob Hopkins, The Transition Handbook

As Jason Bradford wrote, “Relocalization is based on an ethic of protecting the Earth System–or Natural Capital– knowing that despite our cleverness, human well-being is fundamentally derived from the ecological and geological richness of Earth.”

The main feature of Relocalization, however, is not home rule government overriding federal law.  It is about building a parallel public infrastructure whose goal is “rebuilding more balanced local economies that emphasize securing basic needs. Local food, energy and water systems are perhaps the most critical to build. In the absence of reliable trade partners, whether from peak oil, natural disaster or political instability, a local economy that at least produces its essential goods will have a true comparative advantage.”

Concluding Thoughts

The Romney plan says “Only government is standing in the way of energy independence.”  CELDF says government has been hijacked by corporate interests and are standing in the way of sustainability.

To me it seems clear that CELDF’s analysis is basically correct.  A huge barrier to achieving real sustainability is the corporatocracy, and indeed the structure of the entire neoliberal global political economy that exists today.

This must change (and it will change, as this system dependent upon unending economic growth will not survive long in the post carbon civilization it is inadvertently helping to hasten on).  How to get there is where I disagree with CELDF.

This post has highlighted one area of disagreement, which is the idea that home rule “community rights” government is an effective strategy for achieving protection of the environment. I have other areas of disagreement as well, which will hopefully be addressed in future posts. However, I also want it to be clear that I applaud CELDF and its sister organizations for the degree of passion with which they stand up for the environment, and for shining a light on the concentrated power held by today’s multinational corporations.

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42 comments on “Community Rights vs. States Rights vs. Federal Law

  1. davidm58 says:

    Here is the extended quote from Michael Lilliquists’ letter.

    Michael Lilliquist Explains His Position on the Proposed City Initiative Prop. 2

    “… My point here is that the people’s sovereignty is embodied collectively not separately by the federal and state and local governments.

    Every city is not and cannot be sovereign and independent. To believe otherwise would be to undermine the very idea of the rule of common law, common justice, and common purpose. It would undermine the “we” in We the People. It would become, each community for themselves; our way or the highway. Local rejection of federal authority has a long, sordid past, known sometimes as “nullification” and put into service by racist southerners attempting to oppress and discriminate under the cloak of local democracy. Hyper-local democracy is a dangerous and potentially corrupting tool; you don’t want to use a tool which you would not allow others to use. The enlightened arc of history has been to expand our boundaries of shared community and values, not narrow it down city by city. The rule of law should not be thrown out so quickly. The ends do not justify the means.

    More importantly in my mind, Prop 2 is practically designed to create a constitutional showdown between local and federal government — but that’s not what most people are concerned about. The common target of concern is the influence of corporations in our political and legal and regulatory systems. CELDF has done a credible job in outlining how the regulatory system is often a rigged game in which the direct voices of the people or their elected representatives are stymied and thwarted by established legal privileges granted by the courts and federal laws. Well, if this the problem, then we need a healthy showdown between the rights of citizens to protect themselves and the rights of businesses to conduct harmful operations under legal shield of permits. This is a national problem, that calls for a national solution (e.g., pass an constitutional amendment that declares the Bill of Rights protect natural persons only). Prop 2 misses the mark. It’s the wrong fight. It attacks federalism not just corporatism.

    Many people, perhaps including yourself, are understandably frustrated — unable to talk to the decision makers on the Whatcom County Council, and also unable to vote on the issue. There is a feeling that, in all justice we ought to be able to vote to do whatever we feel is right and necessary to protect our interests, our health, our future. I hear you and I get it, but that’s not how the rule of law works, because different issues are dealt with at different levels of government. Under our system, the democratically-elected federal government has sole jurisdiction over some matters, while the democratically-elected state government has authority over others. The state, in turn, delegates certain responsibilities in part or wholly to democratically-elected local governments. In principle, the people are always in charge and sovereign, but we the people govern through different jurisdictions.

    The central problem with Prop 2 is that is pits one democratically-elected government against another democratically-elected government; it pits the people’s representatives against the people’s representatives. It creates a constitutional show-down not over the issue of corporate influence or property-based rights, but rather a show-down between federal and local government. This is the wrong constitutional show-down, because a victory will bolster the dangerous states-rights agenda while not directly affecting corporation’s legal status.

    The restoration of democracy in America needs to come about not through a weakening of our Constitution, but through a re-assertion of citizen control over federal government. If you want to take back control of our (your!) democracy, begin by understanding which jurisdiction controls what. Then work to change those rules that don’t work, but please do so at the proper level (local, state, national) and by effective means (electoral victories, etc.) that cannot be overturned in court. If passed, this proposition would no doubt be overturned, and where would that get us?”

    See complete text here:
    http://www.whatcomwatch.org/php/WW_open.php?id=1463

  2. Ben Price says:

    This is Ben Price, Project\’s Director for CELDF. I don\’t have a great deal of time to respond to this post at great length. Just to say: there is a reason that the analysis of CELDF is generally accepted but not to be acted on, according to this post. For that to be the conclusion, either the CELDF analysis is wrong, or the lens through which it is being viewed is distorted. I suggest the latter is the case.

    The notion that we need not challenge the (\”our\”) U.S. Constitution and its underlying premises indicates to me the source of the cognitive dissonance bleeding through this post. Without giving a deep history lesson here, the notion the the U.S. Constitution is anything but a legal guarantor for sustaining privileges for those who have gained them, and subordinating fundamental rights to those privileges, does not have and objective understanding of the counter-revolution that was the enactment of the U.S. second constitution (the first being the Articles of Confederation), nor the secondary and non-enforceable status of the so-called Bill of Rights. Many Americans, when they think of the Bill of Rights, identify the first ten amendments to the constitution as the soul of the constitution. However, not one person living under the governing authority of the second constitution in 1789 gained even of the smidgeon of the rights enumerated therein, who did not already legally possess those rights. In other words, only privileged white men with property were guaranteed those rights. The rest of us, over the past couple of centuries, have had to fight and organize and die to be recognized as being covered by that \”Bill of Rights.\”

    That the \”founders\” who drafted and pushed for the federal constitution were hostile to general rights and despised democracy can be discovered by anyone with patience to read the notes from the Philadelphia convention of 1787 kept by James Madison. The constitution which resulted elevated property rights high above general human and civil rights, as exemplified by the legalization of slavery (the elevation of the property rights of slave \”owners\” above the human rights of people now designated as \”property.\”). Women were in no better place — they were chattel of husbands and fathers nationally until 1920. Native Americans until 1922. White men without property did not finish the \”liberation\” of gaining the suffrage until after the Civil War in Rhode Island (the Dorr War) in 1842. And today, since corporations were granted Bill of Rights protections beginning in 1819 (the Dartmouth decision), and again in 1886 (Santa Clara) and in dozens of cases since, every community/local government is subordinate to the \”rights\” of property now deemed to have the status of \”legal personhood.\”

    The incomplete understanding reflected in this posting would take a lot more time to delineate, but I invite anyone who wants a more complete understanding to take the time and make the effort to contact CELDF, schedule a Democracy School, an not settle for half-measures and half-truths.

    Ben Price
    Projects Director
    CELDF.org

  3. davidm58 says:

    Ben,

    I appreciate you visiting my blog and taking the time to comment. Even though you didn’t have time to post at great length, you were still able to offer a 500 word response. However, I am troubled that you did not address the simple point of my post, which is that the CELDF model is asking us to use a tool that we might not want states rights or property rights activists to use.

    Also, you mischaracterize my post, put words in my mouth, and use what I believe are faulty points of logic.

    I wrote: “To me it seems clear that CELDF’s analysis is basically correct. A huge barrier to achieving real sustainability is the corporatocracy, and indeed the structure of the entire neoliberal global political economy that exists today.”

    I was attempting to be generous, and to acknowledge we are on the same team. It seems we both believe that protecting the enduring health of the planet is important, and that the corporatocracy in the U.S. is a huge barrier to that. I would add that it is a worldwide problem crossing numerous political arrangements, and not just a problem with the U.S. legal/corporate structure. And also that there are other important barriers – our lack of sustainability is not a single problem with a single source, and there is no single solution that is going to fix it.

    You characterize my position to be that this analysis is not to be acted upon, which is totally erroneous. From that incorrect conclusion, you then attempt a logical argument: “either the CELDF analysis is wrong, or the lens through which it is being viewed is distorted. I suggest the latter is the case.” It is entirely possible that my lens is distorted, but it does not logically connect to whether the analysis is correct or not.

    It might indeed be odd if I had said the analysis was correct, but not to be acted upon. However, if one says an analysis of a problem was basically correct, but the strategy to address that problem is faulty, that is a very reasonable thing to say, and I think I was fairly clear on that when I wrote “How to get there is where I disagree with CELDF.” And at the end of the post, once again I tried to be very clear: “This post has highlighted one area of disagreement, which is the idea that home rule “community rights” government is an effective strategy for achieving protection of the environment. ” Basically agree with the analysis of one aspect of the problem, basically disagree with the strategy to address that problem.

    You then go on to state: “The notion that we need not challenge the (\”our\”) U.S. Constitution and its underlying premises indicates to me the source of the cognitive dissonance bleeding through this post.”

    Putting words in my mouth again. Where did I state that we need not challenge the Constitution? Your last 3 paragraphs are a nice advertisement for your Democracy School, and you create a straw man implying that I disagree with these points (“cognitive dissonance,” “incomplete understanding,” “half-truths”). And the primary points in my post remain unanswered.

    Coal Free Bellingham had a long response to Michael Lilliquist’s letter (comment number 1 above), but did not address the central point he raised: “Every city is not and cannot be sovereign and independent. To believe otherwise would be to undermine the very idea of the rule of common law, common justice, and common purpose…Local rejection of federal authority has a long, sordid past, known sometimes as “nullification” and put into service by racist southerners attempting to oppress and discriminate under the cloak of local democracy…you don’t want to use a tool which you would not allow others to use. …The central problem with Prop 2 is that it pits one democratically elected government against another democratically-elected government…This is the wrong constitutional showdown, because a victory will bolster the dangerous states-rights agenda while not directly affecting corporation’s legal status.”

    No one responded to Tip Johnson when he raised a similar point in response to David Maas’ article at NW Citizen (http://www.nwcitizen.com/entry/our-right-to-decide): “Local governments have an abhorrent record of doing the right thing. …If local governments had been willing to do the right thing, federal imposition of civil rights would not have been needed”

    And now you also have not addressed this central concern, the topic of my post: “I just don’t see local communities making better choices than those made at the state and federal level. This may happen in isolated pockets, but by the same token you could see vast swaths of places overturning the few gains the environmental movement has achieved on the level of federal and state policies and regulations, which is exactly what the Tea Party wants to do.”

    And so I ask you Ben, what is CELDF’s opinion of the Repeal Amendment introduced in 2011? How do you view the balance of powers between federal and state governments? Should states have the right to unilaterally render void an act of the federal government that they disagree with? Or should local communities have that right? What do you think of Mitt Romney’s energy agenda, which includes “Empower states to control onshore energy development”? If you disagree with the Tea Party strategy for obtaining local control, how do you maneuver your group being allowed to use this tool and not other groups with a different agenda?

    Finally, my post was not designed to give a “complete understanding” of the CELDF model. I narrowed the focus for a reason, to try, within the confines of a single blog post, to flesh out some thoughts about a very specific, but important part of that model.

    Yet to be discussed are other important parts of the model.

    Regards,

    davidm58

    • Ben Price says:

      David,

      To put it as succinctly as possible, the difference between the political organizing of Tea Partiers and other property-rights based folks and the CELDF approach is that our strategy places inalienable rights above property privileges. In other words, unlike the materialist-property centered view of the purpose of law and governance (to protect privilege and vested property interests above all), the Rights-Based strategy follows the argument made by the Declaration of Independence: that inalienable rights may not legitimately be denied or abridged by any government, because people erect governments to guarantee those rights. When governments do otherwise, they are de facto illegitimate and the people have the fundamental right to alter or abolish them.

      It’s the same for local governments as for State and federal: the limitation on the authority of government is set by the inalienable rights of the people. And all levels of government have one core obligation: to protect those rights. And no level or branch of government shall delegate rights denying authority to anyone, including corporations.

      When the State or federal government acts to violate rights, the people have authority to use that government closest to them to correct the wrong. However, they DO NOT have the authority to use State or local government to undue, deny or violate rights. This last statement is what is rejected by those who would use “State rights” to limit or violate rights.

      It should also be noted that no government, Stale, federal or local, “has” rights. Governments have obligations, responsibilities and authority delegated by the people, which they at all times retain power to revoke.

      Ben Price

      • davidm58 says:

        Ben,

        Most of your second reply here is a very interesting discussion about rights, and what kinds of rights should take precedence over others. I am hoping to do a post later on this topic, perhaps entitled “Nature’s Rights vs. Community Rights vs. Individual Rights.” Your reply above could be an important contribution to that discussion.

        You say “our strategy places inalienable rights above property privileges.” I would say, that is not your strategy , that is your ethics or a part of your philosophy. That may sound like a pedantic or nit-picky complaint, but words matter here, because it is the strategy that I am trying to address in this post. Because it still seems to me that you’re engaging the same strategy – the same legal tool – that the States Rights advocates are using.

        You come closest to answering my questions when you say the people have the authority to use the government closest to them to correct the wrong, but do not have the authority to use state or local governments to undue, deny or violate rights. So I’ll take that as the answer.

        I remain concerned that you are opening a door here, creating a legal precedent. If the “targeted, isolated, qualified nullification” (as someone else described it to me in an email) you are advocating for were to be adopted, it then opens the door, where the other side then has their own petition and passes a proposition that they then convince the majority to vote for saying we (in whatever locale) decided that the clean air act is unconstitutional, and therefore we want to nullify it in our community. I just don’t think we can apply the point of law you are trying to use only to issues we care about, and not let others apply it to issues they care about. I’m not sure you’ll be able to retain control of the scripting.

        Also there is still this concern, which Michael Lilliquist articulates about “the wrong fight”: “CELDF has done a credible job in outlining how the regulatory system is often a rigged game in which the direct voices of the people or their elected representatives are stymied and thwarted by established legal privileges granted by the courts and federal laws. Well, if this the problem, then we need a healthy showdown between the rights of citizens to protect themselves and the rights of businesses to conduct harmful operations under legal shield of permits. This is a national problem, that calls for a national solution (e.g., pass an constitutional amendment that declares the Bill of Rights protect natural persons only).”

      • Ben Price says:

        Dear David,

        That you want to claim a mere semantic difference between claimed property rights and inalienable human and civil rights illustrates the point I have been driving at: that the supposed agreement you have with the CELDF strategy of organizing around community rights is an instance of false agreement. I won’t simply embrace your back-handed compliment without mentioning that it is no compliment at all. With due respect but certainty, I say you have a fundamental misunderstanding of the community rights strategy. And I assert it is no ideology — it leaves to those who employ the strategy the decisions about what to believe or not and what policies to implement — it is not even a legal theory at its core. It is instead an organizing strategy. That it is so and you do not agree is neither here nor there. It’s not dependent on your belief in it for it to be so.

        As a favorite author of mine once said: reality is that which when you stop believing in it doesn’t go away.

        I will truncate my remarks to simply say that you don’t know what you do not know, and that the distinction between inalienable rights and the privileges associated with property seem not to have been explored here. The right to own property is not in dispute, so long as we agree on a rational definition of property. If by “property” we mean that which is created by ones own personal efforts, then we can agree perhaps that there is a right to own property and it is a fundamental right. But the Rights OF Property, such as the privilege to profit from accumulating interest, dividends, rent, and other masked versions of general servitude, or the constitutional rights bestowed on corporations (property) are of another order and belong not to the realm of fundamental rights, but to an ideology of privilege. Likewise, no one is born with an inalienable right to maintain monopoly control over a certain acreage, lording over a part of the land on the earth’s surface. But that is the basis upon which U.S. law, derived from British Empire tradition, derived from the Law of Conquest, is built.

        It is not unscientific nor counter-empirical to observe that none of the property boundaries, nor any of the national borders, nor any state lines or municipal jurisdictions can be seen from earth orbit. Those lines exist nowhere but on paper and as ideas. Only from maps derived from other pages with ink upon them is it possible for us to imagine such chartered monopolies over parts of the planet earth — parts off limits to all inhabitants but those with the legal “right” and the violent fire power to back it up. Those lines are law. Who decides what the law will be?

        Those lines are not inalienable rights but piss lines in the dirt. They keep out everyone except those with “titles” to monopoly control, and those titles are trans-generationally transferable just as blood lines of nobility use to be. Property is the relatively new viral carrier of privilege from one privileged minority to the next privileged minority. We need to create a trans-generational carrier of fundamental rights, and so far the U.S. Constitution has failed miserably by comparrison.

        Privatization of the planet, beginning one might say with the British Enclosure of the Commons, barrels into the future with the full throated support of the Constitution and common law. It seeps into non-real-estate realms, into the realm of ideas, the patenting of life, and it crushes what rises to claim a birthright authority to self-determination without the titled credentials of property wealth.

        More some other time.

        Ben Price

      • davidm58 says:

        Ben wrote: “That you want to claim a mere semantic difference between claimed property rights and inalienable human and civil rights illustrates the point I have been driving at: that the supposed agreement you have with the CELDF strategy of organizing around community rights is an instance of false agreement.”

        This is getting tiring. I don’t need to go further than that first sentence, because once again you have totally misread my remarks. I can’t have a dialog with you if you keep misinterpreting my comments and put words in my mouth. I never discussed my thoughts on the differences between property rights and inalienable human and civil rights. I merely said it would be a good topic of future discussion.

    • ozob says:

      David — I’d like to respond to this: “I just don’t see local communities making better choices than those made at the state and federal level. This may happen in isolated pockets, but by the same token you could see vast swaths of places overturning the few gains the environmental movement has achieved on the level of federal and state policies and regulations, which is exactly what the Tea Party wants to do.”

      I think this indicates two things: 1. a confusion of how people act in the context of an oppressive federalist regime with how they would act having to care for one-another in a community context (which is how our species and societies originally evolved)

      2. a stunning lack of good faith in people to act in sophisticated ways (not necessarily ways you or i agree with, but thoughtful and sensitive ways, nonetheless) when we remove the systems and hierarchies of oppression and give them the freedom to heal and act accordingly.

      It’s that sort of stuff I think about when I hear conservatives complain about “liberal elitism” — it seems to me a patronizing attitude asserting that some classes of people (e.g., the political class) are simply better decision makers, or that it is somehow better that they make decisions “on others’ behalf.” Disempowering, to say the least.

      One of the subtexts of DS Online is that we must have faith in the people, because if we don’t, we are simply perpetuating the pre-existing systems of oppression. An example of this are the patronizing arguments used to deny black people personhood, because they “lacked the capacity.” Medical practitioners even used similar arguments to justify racist experimentation on black people.

      Lastly, as a note on process: To the extent that communties are still racist, racism must still be addressed at the community level. Consider this quote:

      Oh so many times he stood up in front of Federal District Judge Ritter, that old fart, and he’d be picked up for picketing illegally and he never pled innocent or guilty; he pled anarchy… And Ritter’d say, “What’s an anarchist, Hennacy?”… And Ammon would say, “Why an anarchist is anybody who doesn’t need a cop to tell him what to do?”… Kind of a fundamentalist anarchist… And Ritter’d say, “But Ammon, you broke the law, what about that?”… and Ammon’d say, “Ah, judge, your damn laws… the good people don’t need ‘em, and the bad people don’t obey ‘em, so what use are they?”… http://overacandle.com/?p=1094

      Laws are just social contracts. When you try to impose a law on someone, mostly all you get is dishonesty. Laws created from grassroots consent of the governed have much more force (and honesty) than laws imposed from an oppressive hierarchy. When we get rid of that hierarchy, we will see more honesty in belief, thought and action. Not all of it will be pretty…and there certainly is plenty of work to be done. The good news is that the surge of honesty makes real progress possible, instead of stifling it under a veil of “progressive” legal imposition.

      Social innovation always happens at the personal and relational and community levels first, before it becomes codified in society. When you take away inhibiting frameworks, you get more social innovation, and it spreads more quickly.

      CR isn’t the end-all, be-all. But it is an important step in the process.

      • davidm58 says:

        ozob,
        Lots of interesting thoughts there. I don’t know what DS Online refers to – as near as I can tell its an investment center or a Nintendo product.

        It seems that the general difference between our approaches is that yours appears to be rooted in an anarchistic philosophy, and mine tends to gravitate around what I’ll call integralized Complex Thought (Edgar Morin). I’m trying to move beyond “either/or” answers where it makes sense to do so. For example, when discussing hierarchies Riane Eisler points out that dominator hierarchies are terrible; however, that does not mean all hierarchies are bad. Hierarchies exist in the natural world, and are, hence, natural. I would agree that in our day and age and culture, hierarchies have generally become way out of balance, and so we need to emphasize and consciously work to enact more networking and more “holarchies” to bring in a more healthy balance. I would agree with your statement that hierarchies of oppression need to be removed, but I would be careful to not remove all hierarchies.

        I would agree that we need to re-learn how to care for one another in a community context. How wonderful that would be. And yet I would not want to disband the larger structures and containers that help organize the world as a whole. Reform and perhaps in some circumstances revolutionize, but not disband. French philosopher/sociologist Edgar Morin says we must globalize (connect to the whole) AND de-globalize (connect to the community). We must think globally and act locally, AND we must think locally and act globally. I think there is some truth in this idea that we need to hold these seemingly opposite ideas as poles of a continuum – a polarity to hold in balance.

        Morin said in a 1997 interview, “The awareness of our global destiny as a community is the prerequisite for change that would allow us to act as co-pilot for the planet, whose problems have become inextricably intertwined. If not, we would experience a fate similar to that of ‘balkanisation’, a violent and defensive retaliation against specific ethnic or religious identities, which is the opposite of this process of unification and solidarity throughout the planet.”

        Regarding your point number 2: Again I think you bring in another valid point – we need to be careful about the dangers of elitism and abdicating decision-making to the political class. However, I do also believe people develop through stages (ala Piaget, Kohlberg,etc.). I would not want 4 year-olds to be running the country or the community. By the same token, I would rather have those who are at a world-centric (we are one people on one planet) level of development making decisions rather than those who are still at an ethno-centric (protecting me and mine) stage. I don’t see this as a lack of faith in people, it is an understanding that not all people have been afforded the education and opportunities to develop their potential.

        This doesn’t mean we should restrict participation in democracy only to those we deem to be at higher stages – I think that would be wrong and dangerous for many reasons, not the least of which would be having to judge and rank individuals, which is one the worst applications of developmental models. Rather, we have larger scale checks and balances of a large scale nested democracy that includes and connects local to regional to national to international. The goal being to protect the rights of all, as well as the needs of the whole. Looking after the parts and the whole, the whole and the parts. When all have an equal voice, there is a greater likelihood that the greatest good for the greatest number will occur.

        I like your thoughts about social innovation, but again, I wouldn’t go to the other extreme and eliminate the rule of law. Here I’ll quote my friend T. Collins Logan:
        “Do I believe that all conscious beings have the potential to embrace multifaceted, nuanced complexity? Yes, I do. Yet, although the potential is present in all consciousness, it is not yet fully realized…and until it is fully realized, we require the rule of law. The symbols that order all of existence into neat little rows, that reduce the Infinite into tidy boxes with highly specific locations and abbreviated memes, are necessary for now in many instances. Such order is of course artificial, and perhaps even seems silly to someone comfortable with advanced complexity and steeped in love-consciousness, but for a probable majority of humanity this order
        generates a sense of safety, a manufactured equilibrium that permits the tenuous aspirant to
        venture out of their symbolic shell, so they may encounter complexity in comfortable, bitesized
        experiments.”
        http://www.tcollinslogan.com/images/ManagingComplexity.pdf

        Thank you for your reply ozob. I don’t imagine you’ll agree with my response, but it did serve to help me think through some of these issues a little more deeply (and I expect these ideas to continue to evolve and change the more I learn and think and evolve).

        Check out my brand new page on Complexity:
        http://integralpermaculture.wordpress.com/complexity/

      • Sarah Owens says:

        Hey David, I’m still here, still thinking, noticed your question about DS Online — it refers to CELDF’s Democracy School at http://www.celdf.org/democracy-school-on-line

      • ozob says:

        thanks to Sarah for posting the DS Online link, apologies for the confusion :) Ahh, acronyms!!!

      • ozob says:

        also, I’d like to venture an interpretation of the nature of the conflict between you and Ben: Ben is entrenched in doing the work of asserting community rights, while you’re working on a more abstract level of framing, looking at pros and cons, and alternatives. I see him (and increasingly find myself) wanting to have a more practical vs abstract discussion.

        We have a tendency to overdevelop / overstimulate our minds and underdevelop our actual praxis / bodily experience. So whatever you decide to do to address the issues that we all hold as common concern, I encourage you to get out in your community and make it happen! It just so happens that Community Rights has convenient momentum and lots of resources toward developing a common language for organizing and related work (e.g., but not limited to Democracy School resources).

        My partner is reading Plants as Persons by Matthew Hall (?). I’ve read the intro and am highly excited by his survey of intellectual history and cross-cultural philosophies of the concept of personhood. I support universal personhood, personally. I am reading Wild Law, by Cormac McCullinan, as I study the various ways in which we can assert the Rights of Nature. I am almost finished with a study guide which I hope to become a training mechanism for our community (and maybe other communities) wishing to discuss how they might assert the rights of nature where they work and live.

        I suggest that we remember we all want the fundamentally same things, and refuse to be divided and conquered (and colonized http://www.thedailycrock.com/?p=580) simply because we disagree on some details here and there, or because we wish to engage at different levels in the continuum of thought, discussion and action.

        I ask for people’s good faith in the community rights movement, understanding the best intentions of the people working in that context. We need your good faith to give us greater chance of success. Furthermore, whatever we learn from this experience, we will learn, and will put it to good use further down the road. How can that be bad???

  4. I generally like CELDF’s analysis, but I read something in their newsletter that is an obstacle to energy literacy.

    They had an article stating the problems of “fracking” for unnatural gas, a huge problem in their home state of Pennsylvania. The writer claimed that we have the right to determine our energy future, instead of corporations. While this is nice politics, it’s not based in physics. A grassroots, democratic, compassionate approach on energy policy would still have to be rooted in what is physically possible.

    I’ve used solar energy for more than two decades. It’s great but it’s not going to replace our current consumption. We would have to relocalize production, not on a fifty or five hundred year plan, but much, much faster.

    Also, the price for not fracking (for banning it) would be an end to wasting natural gas for electrical production. We will need to save the remaining natural gas for heating cities in the winter and learning to live with considerably less electricity than we use today.

    Physics are more important than politics.

    A renewable energy society would have a smaller, steady state economy. Green growth is a myth at this late date.

    • Ben Price says:

      Mark,

      Physics does not prove the need for an energy gormandizing society, and you rest your argument on a false premise that human society based on fossil fuel consumption for the past two and one half centuries is the only option for the future. An argument that depends on the status quo not being changed is tautological and not reasonable. Consider another argument: I suggest that water is the empirically provable contingent for human society to survive, as well as clean air to breathe. But fracking demonstrably destroys both. It is not mere philosophy to claim that the people directly affected by governing decisions have the greater claim to be the ones to make those decisions. And so an argument for localizing energy policy, as well as agricultural, water, waste disposal and other policies are not antithetical to the laws of physics. They are antithetical to the religion of empire, the doxology of centralization, the reverence for power of privilege over the authority of fundamental rights.

      What is peculiar to humans is the ability to create an utterly fictional meta-reality, using language and symbols, that not only separate humans from nature, but humans from the real universe. We tend to think technology is an instance where we use language and symbols (math too) to arrive at empirical “facts” and then use those facts to manipulate the “real” world to our collective advantage. For however much our math and reasoning leads us to more powerful manipulation of the empirical world, the uses to which we put such technology generally serves the interests of our fictional meta-realities (ideologies, dogmas, myths, faiths etc). So the science may be objectively factual, but the use of it is anything but. And the results may be community devastating, environmental destruction and lots of other negatives that scientists deny responsibility for and ideologues argue can’t be wrong because they are “science-based” and create economic profit centers.

      Who decides? Not science, but something else. Facts are facts. What we do with them defines who and what we are.

      Ben Price

      • You wrote:
        Physics does not prove the need for an energy gormandizing society, and you rest your argument on a false premise that human society based on fossil fuel consumption for the past two and one half centuries is the only option for the future. An argument that depends on the status quo not being changed is tautological and not reasonable. Consider another argument: I suggest that water is the empirically provable contingent for human society to survive, as well as clean air to breathe. But fracking demonstrably destroys both

        My reply:

        I actually have the opposite opinion that you suggest I have.

        I’ve used solar PV for over two decades.

        But the reason we use fossil fuels – and minerals – is they are very concentrated. Solar is great but it’s harder to concentrate. This is physics, not politics nor official science. It’s merely a physical fact.

        I’m glad to see the environmental movement wake up to the fact that fracking is evil, but few dare suggest that if this evil is banned – which it should be – the natural gas supplies will decline much faster and we’d have to stop burning natural gas for electricity, saving what’s left to heat northern cities in the winter. Conventional natural gas peaked in the US in 1973.

        It takes time to “transition” and when most communities in the US grow only about a percent or two of their food supply it is clear we are totally dependent on fossil fuel. It takes fossil fuels and minerals to make solar panels and wind turbines. We should use some of what’s left to make a bridge toward a smaller, relocalized society so our grandchildren have something usable at the end of the fossil fuel era.

        I recommend these short reports:

        “Awareness of Climate Change by the media and general public is obviously running well ahead of awareness about Peak Oil, but there are interesting differences in this general pattern when we look more closely at those involved in the money and energy industries. Many of those involved in money and markets have begun to rally around Climate Change as an urgent problem that can be turned into another opportunity for economic growth (of a green economy). These same people have tended to resist even using the term Peak Oil, let alone acknowledging its imminent occurrence. Perhaps this denial comes from an intuitive understanding that once markets understand that future growth is not possible, then it’s game over for our fiat system of debt-based money.”
        – David Holmgren, co-originator of permaculture, “Money vs. Fossil energy: the battle to control the world”
        http://www.holmgren.com.au/DLFiles/PDFs/Money_vs_Fossil_Energy.pdf

        http://www.futurescenarios.org
        David Holmgren, “Future Scenarios: Mapping the cultural implications of peak oil and climate change”
        this is the best short summary I’ve read about the need to integrate Peak and Climate together

        http://www.postcarbon.org/new-site-files/Reports/Searching_for_a_Miracle_web10nov09.pdf
        SEARCHING FOR A MIRACLE
        Net Energy Limits and the Fate of Industrial Society
        by Richard Heinberg
        Foreword by Jerry Mander
        A Joint Project of the International Forum on Globalization and the Post Carbon Institute. [ False Solution Series #4 ]
        September 2009

        There are a number of reports that claim a totally renewable energy society is possible in the coming decades. Carbon Free, Nuclear Free. The 2050 report from Stanford. These and others are correct – whatever society exists several decades from now will no longer use fossil fuels, because you cannot burn fuel that no longer exists. “Searching for a Miracle” asks the same question but with examination of the physical logistics of transition coupled with the fact that we are at Peak Energy.

        Energy Return on Energy Invested (EROEI) has to be considered when evaluating energy potentials and the investment of resources (not only fiat money) required for their deployment.

      • davidm58 says:

        Ben,
        I have a request that you slow down and carefully read what is being written here before you hit ‘reply.’ I don’t know Mark at all, but I did not interpret what he said to be remotely similar to what you are implying. Check out his website (linked from his name), and l I think you’ll have another confirmation that you must have read him wrong.

        Not only is he NOT saying that “human society based on fossil fuel consumption for the past two and one half centuries is the only option for the future,” I think what he is saying is the exact opposite: Simple physics dictates that human society based on fossil fuel consumption of the past 250 years is not possible to continue into the future. He is saying we will not be able to determine our energy future – instead we will have to make difficult choices based upon the physical limitations of our planet. We will be forced to consume much less energy.

    • davidm58 says:

      Mark,
      Thanks for visiting the site and posting comments. I just took a brief tour of your websites, and I like what I’m seeing. I so much agree with the graph on your PeakChoice.org site, where the hierarchy of needs begins with ecology, then goes to energy, then all the way up to spirituality. I also like the Permatopia.com site. I’ll have to add these to the blogroll.

    • ozob says:

      and we won’t have that smaller, steady state economy without community rights — without people who live in a community having final say in decisions that affect that community. It seems we agree that industrial scale society is fundamentally unsustainable.

      NIMBYism used to be a tool of the privileged to outsource the excesses of industrial society to poor / marginalized communities and neighborhoods. What happens when everyone has equal access to the NIMBY tool to protect their homes, families, communities, and environments? Then we need to start taking care of our own needs, which necessitates a dissolution of the industrial scale so-called “solutions” to waste management, energy production, etc, that enrich an elite few and leave the rest in the toxic dump (sometimes, quite literally).

      Community rights works on a community level, but the ultimate scope is global. Every community on earth needs these same fundamental rights, and any large-scale governments existing above them must be a result of the “consent of the governed” which is NOT possible without recognizing and asserting the sovereign rights of nature, natural communities and natural persons over “legal fictions” such as corporations and federalist governments.

      • davidm58 says:

        ozob,

        Do you see a legitimate role for federal government? Who looks after the whole?

      • ozob says:

        Absolutely, there is a role for *a* federal government at whatever size and strength the governed deem appropriate. The whole results from the consent of the governed. Its singular function is to protect its constituent parts. In this case, its singular goal is to protect the rights of its constituents, and I would also say, assert any derivative and subordinate responsibilities as well.

        But it is a bottom-up system, not a top-down system. Analogously, it is like us learning how to redress the imbalance we’ve learned through schooling (often called a deschooling process) by learning how to listen to our whole bodies, not just our brains — when our muscles complain, when our skin hurts, when we feel the general malaize of chronic inflammation — so many of us ignore these complaints from the “non-brain” parts of our body. But the brain only exists and functions inasmuch as it does so to protect the integrity of the whole, with their consent. By neglecting the other elements of the body, we destroy the consent and disintegrate the whole, and the relationship changes back to “top-down” with us “forcing our bodies” to do certain things through “sheer will” which is not only folly but incredibly self-destructive and unnecessarily stressful, resulting in further alienation and complaints.

        Only physical entities have rights, though — nature, natural communities and natural persons as the smallest individual rights-bearing units (we could then subdivide natural persons inasmuch as they are holonic natural communities in and of themselves, etc, but it’s not necessarily practical in a legal context at our scale of existence, although it is important philosophically for us to understand, IMO).

        Absolutely, hierarchies exist, always have, always will. Every true dialogue is a shifting hierarchy. I follow your lead and listen and learn, you follow my lead and listen and learn. No one has all the answers or skills. Therefore we must take our turns leading and following.

        My definition of anarchy includes any hierarchy that is NOT arbitrary, tending toward permanence, or imposed. So it does not include our current federal and state governments, which have tended toward all three of those oppressive characteristics of our quasi-monarchy.

        Energetically speaking, large-scale governments are incredibly resource-intensive and inherently unsustainable, which is why they tend toward becoming expansive imperial interests. There will certainly be a collapse in the near future to sustainable scales of decentralization / centralization, whether we like it or not. The central governments should exist only inasmuch as the governed view them as necessary and derive benefit from their existence. Community Rights is an example of the beginnign of a citizens’ controlled demolition of the oppressive hierarchies of society, destroying them but then rebuilding them in the opposite direction, so that local monies and resources stay mostly local, for example. It’s not only feasible, it’s necessary :) CELDF’s work isn’t the end-all, be-all, but it’s a really friggin’-a sweet step in that direction, and there’s lots to learn from participation. In my experience, it has been an intensive learning experience for the non-profit itself, too, which, IMO, is doing wonderfully to lead, provide resources and empower local communities to assert the inherent and inalienable rights of nature, natural communities and natural persons.

        The courtroom battles should fail, though. If I were a judge, I would rule against the universal rights of nature, natural communities and natural persons because there is simply no place for it in our current structure of law. So we highlight that and organize grassroots nationally to develop and assert new, alternative rights- and responsibilities-based structures of law instead, and develop the larger structures from the consent of the governed. That was what was supposed to happen in the original American Revolution, but what happened instead was the American Counter-Revolution where Madison, et al imposed the federal government (which reluctantly included the Bill of Rights as a last-minute add-on, but did nothing to address the fundamental purpose of the 2nd, Federalist constitution to protect the interests of the “opulent minority” [Madison])

        If we for some reason win in court, it does little to advance our cause, and may even hinder it, because at that point a few weird things happen: 1. the “rights” we win become de facto “privileges” bestowed upon us by the court in an ironic top-down fashion, which will remain under constant legal assault until the powerful opulent minority overturn them again to restore the status-quo of institutionalized oppression 2. Our argument is more along the lines that self governance is not a privilege but is an inalienable and inherent right that no state or other governing authority can legally impinge upon, since they exist purely by the “consent of the governed” to protect the rights of nature, natural communities and natural persons. If we win that case, then we’re basically mandating the courts — even the supreme court — to mandate the rest of government to redraft all our state and federal constitutions accordingly and to dissolve itself in the process so it can no longer issue such mandates.

        That would be a weird process, indeed!

        It seems to me that the idea that we shouldn’t get rid of the patronizing, oppressive parent-child structure of governance is based out of fear — of anarchy in its worst and least accurate definition, as sheer and total chaos. Or fear of the privileged. It is better for us to let go of our fear of people, and act in good faith and have good-faith trust in others until proven otherwise. EG, if i were to believe only what Rush Limbaugh says I should believe about poor people, people of color or women, i would be living in fear of acknowledging their rights and responsibilities! When we get to know people directly, we see how full of Sh*t Limbaugh is, and it frees us to act with more courage and less fear in fundamentally different ways.

  5. Sarah Owens says:

    David, you mentioned in your blog, “This post has highlighted one area of disagreement, which is the idea that home rule “community rights” government is an effective strategy for achieving protection of the environment. I have other areas of disagreement as well, which will hopefully be addressed in future posts.”

    I very much appreciated what you had to say in this post. Have you in fact addressed those other areas of disagreement in other posts? If not, I hope you will, and soon.

    • davidm58 says:

      Sarah,
      Thank you for your comment; I never did get around to those follow-up posts. Maybe someday…

      Feel free to share any further thoughts that you have.
      David

    • davidm58 says:

      Sarah,
      Some of the other areas of disagreement can be surmised from the various things I’ve said in these comments below the post. Since I never followed up with other posts, I’ll try to provide an overview of my thinking on this topic, which is informed by integral theory, complexity theory, and permaculture theory.

      Recognizing the limits and ineffectiveness of the Regulation approach, a rights based approach has developed in the U.S. This approach finds fault as far back as the U.S. Constitution, which was crafted by wealthy land owners seeking to protect their own interests. In terms of the regulatory system, it is believed that the cards are stacked supporting harmful projects getting approved because environmental laws are written by corporate interests and are designed to grant permits. Remedy is sought via the Declaration of Independence and the U.S. legal system by creating community initiatives to protect local rights against those of outside corporations and developers, and acknowledges the rights of nature itself as well.

      Problems: This is the flip side of the Wise Use movement. Which governmental jurisdiction better protects the environment? Community level, state level, or national level? It seems to depend on who is in power at a given time. On the community level, it would depend on the center of gravity of the population at the time in terms of cultural and political convictions, as well as the level of development.

      Ken Wilber suggests that for a majority to be able to understand ecosystems and the rights of nature, they would need to be at a post-conventional level of development, which is currently a low percentage of the population. I both agree and disagree with Wilber. I think that ecosystem understanding is a line of development itself – we can understand it and resonate with it in some ways (different ways) at any level of development – but that our understanding will deepen and mature as we develop – if we give it appropriate attention. I do tend to think that to meaningfully understand and connect with the rights of nature takes a high level of development. I think we have to go through stages of ego-centric (me) to ethno-centric (my group) to world-centric (all of us) to some sort of planet-centric (all beings) stage to really get full buy-in on that. Right now I think most of the action is in the ethno-centric to world-centric move.

      However, I also recognize that we must be very careful when considering these stages of development models. They have often been used in very unhealthy ways, and we need to hold these concepts very lightly, and NOT use them to judge or pigeonhole individuals. They are more like probability clouds and centers of gravity – not a clunk and grind linear process. Useful in discussing generalities, and sometimes in self-evaluation, but not to be used to judge other individuals.

      Considering how people respond to environmental concerns based on how their material needs are being met is an important consideration. Maslow’s hierarchy is good, as are numerous other developmental schemes. It is a significant portion of Integral theory to consider lines and levels (stages or waves) of development. Developing a “levels literacy” will help us learn how to better understand and communicate with all people. We can perhaps gently encourage movement to higher levels of development, but more importantly learn how to communicate the needs of the planet in ways that are targeted toward various levels (“integral multi-lingualism”).

      As mentioned in the post above, another problem is NIMBYism, where people, for example, continue to use natural gas, but oppose fracking operations in their community, or environmentalists who support alternative technology, but oppose wind turbines being sited in their communities.

      I agree that communities have rights, and that the rights of corporations need sometimes be challenged. Corporate personhood needs to be repealed. All sentient beings have some level of rights, but we need to be careful about subtle distinctions, and to be respectful, skillful, and strategic in how we deal with those who don’t believe in such rights. Rather than imposing the enforcement of the rights of nature, the approach i recommend is to “meet people where they are, engender respect, promote crucial information-sharing, and motivate change.” – See more at: http://peakmoment.tv/videos/a-sustainability-renaissance-man/#sthash.6qGB4dbW.dpuf

      For more on the integral theory of development, see my post on Sex, God, and Integral international Development
      http://integralpermaculture.wordpress.com/2013/02/25/sex-god-and-integral-international-development/

      • ozob says:

        Ken Wilbur has demonstrated an unbridled and somewhat fragile ego — I would shy away from the fruits of his thoughts and more toward Christian de Quincey’s work (Radical Nature, Radical Knowledge, Radical Science — he is who i am familiar with as an analog, there are probably other choices as well), who, in my experience, aspires to the same type of engagement, thought and dialogue that you aspire to here.

        If a community decides to trash their community, that is unfortunate. However, in the context of community rights, they most certainly do NOT have the right to trash other peoples’ communities. Compare this to our history: The evolution of civilization and agriculture-based societies in general has been one of people trashing their community and then moving on to colonize, co-opt and dismantle others’ communities to feed their growing destructive needs. Further compare it to our current context, where an “opulate minority” has the right to both protect their community and trash other communities in the process as a result of their irresponsible lifestyle choices and decision-making. It’s the worst of both worlds. For a recent example: http://www.bizjournals.com/dallas/news/2014/02/24/exxon-ceo-dick-armey-sue-to-stop-water-tower-in.html

  6. Thanks David for providing a forum for some thought-provoking dialogue. My 2 cents would be that we already have the tools to resolve many the tensions alluded to in this thread, and examples of their successes in modern contexts. I cover these in detail in my latest book, “Political Economy and the Unitive Principle,” but as a brief overview, the elements include: community empowerment through a) citizen commissions that have influence/oversight over implementations of local law; b) “daily direct democracy” that steers the efforts of locally based civic institutions, business entities and government organizations; c) routine citizen appointments to key political positions (sharing responsibility with elected officials); and d) businesses shifting away from large, privately owned corporations to networks of smaller, worker-owned cooperatives for certain industries. At the same time, the very nature of how we define property, along with our valuations of that property and our methods of exchange, would also of necessity evolve, likewise moving away from private ownership to communal ownership (and further beyond that), while we also would have to depart from traditional exchange value calculations into what I call “holistic value,” which includes critical externalities. This, in turn, would compel a complete revamping our monetary system, the rule of law, etc. And so, by redefining both property and how we manage property collectively, we can create a Goldie Locks zone between anarchism and statism. As an aside, in my schema social mores become one among many abstractions of “property” under this redefinition, so their evolution into law would harmonize with the same design principles/constraints. As for the U.S. Constitution…alas, much of it would have to be rewritten/amended for any of this to work in the U.S. And lastly, as to examples, we have a sampling of direct democracy in Switzerland, huge worker co-ops in Spain, citizen appointments in our own court system (juries), and so on. The pieces are all there…we just have to put them together in a different way. This will mean dismantling some of more feudalistic elements of our current structure, which entails disruption of the status quo and its attending spectacle. How this last bit – the transition – is accomplished, should echo the system we want to create: as we sow, so shall we reap. In that spirit, my proposals in the book are offered as one possible way to achieve a given outcome, but the core considerations are the design principles and the guiding intentionality they embody. So of course there must first be agreement on the values hierarchy informing that intentionality, and I further suggest that this has already been established by generations of thinkers and our own prosocial habits.

    • davidm58 says:

      Thank you T. Collins for participating. As you know, I’ve read your book, and I recommend it. http://www.amazon.com/Political-Economy-Unitive-Principle-T-Collins/dp/0977033651
      I do need to read it again to refresh myself on the details.

      I wonder if you have any specific comments related to my concerns (and those of Michael Lilliquist) regarding dangers of “hyper-local democracy” as a dangerous and potentially corrupting tool. That “Every city is not and cannot be sovereign and independent.”
      I think you hint at your view when you speak of a “Goldilocks zone” between anarchism and statism.

      To bring Edgar Morin back into the conversation, his discussion of the trinity of Liberty, Equality, Fraternity is fascinating:
      “What is interesting is that the formula itself is a complex one: the three terms are both complementary and antagonistic. Liberty on its own quashes equality and even fraternity. Once imposed, equality destroys liberty without achieving fraternity. As for fraternity, which cannot be decreed, it must regulate liberty and reduce inequality. It is a value which, in fact, is based on one’s own relationship with the general interest, in other words citizenship in its deepest sense. As soon as the spirit of citizenship crumbles, as soon as we cease to feel responsible for – and united with – those around us, fraternity is done for. These three notions are therefore very important. There are historic moments in which the crucial matter is that of liberty, especially in conflicts of oppression such as under the Occupation in France, and those where the main issue is that of solidarity, as is the case today.”

  7. Yes of course David…I should have done so. I try to address the concerns you raise in the book by proposing a parliamentary system of national government that is more representational, with opportunities for direct national participation in the legislative process as well. One striking difference: this government’s involvement would mainly encompass “essential infrastructure and services” that support civil society in order to create a level playing field for both civil liberties and opportunities to participate in local, regional, national and international exchange systems. There would still be the inevitable tension between the desire for personal freedom and a necessary sacrifice of some freedom to support collective responsibility, but this again would be resolved by an agreed-upon set of unitive values. Day-to-day investment and management in this political economy would become as distributed as possible, in accordance with the “universality” of certain essential services and access to similarly fundamental resources (as defined by the aforementioned property designations). This would also be similarly reflected in certain industries where economies of scale insist on larger, centralized entities. It’s a balancing act, to be sure, but communities would have much more power than they do now, as would the electorate in terms of national agendas and diverse representation. Implicit in these proposals is an end to corporate personhood and cronyism…i.e. the feudalist structures that so disempower us now. Hope that clarifies. :-)

  8. Sarah Owens says:

    David, thanks for taking the time to follow up on my question about other areas of disagreement. The facts would seem to support your comment re the problem of “NIMBYism, where people, for example, continue to use natural gas, but oppose fracking operations in their community, or environmentalists who support alternative technology, but oppose wind turbines being sited in their communities.” — see below.

    http://www.neogap.org/neogap/2014/03/12/press-release-town-meeting-new-hampshire-communities-advance-community-rights/

    http://www.vnews.com/home/9111605-95/grafton-cut-from-wind-farm-project-scaled-back-has-fewer-turbines

    I appreciate your other points, and am continuing to think about them and the other thoughtful comments posted here as I try to come to terms with the community rights concept and strategy. I’d like to share my conclusions here and maybe continue the conversation, it’s just taking longer than expected to sort through the many, often conflicting, views of the subject.

    • ozob says:

      I want to push back on the (IMO, baseless) assertion that “NIMBYism, where people, for example, continue to use natural gas, but oppose fracking operations in their community, or environmentalists who support alternative technology, but oppose wind turbines being sited in their communities” is actually a problem in the community rights frame. It is *currently* a problem, but the end results of community rights gets rid of that problem.

      1. NOBODY seems to like the externalities of industrial-scale production of anything. But right now, only a few people can enjoy their benefits w/o really reaping much of the drawbacks (ref. the Dick Army / Exxon CEO lawsuit against the frackign water tower). Right now, in our current frame of law, both privileged NIMBYism and industrial production scales are a problem.

      2. The community rights frame asserts rights inherent to nature, natural communities and natural persons. Rights inherent — that is key. Even if a few more or less privileged communities are the pioneers in changing our structure of law, everyone benefits when the overall (and insane) structure of law and governance in this nation changes. However, that’s also a baseless suggestion. NIMBYism right now is a tool of the privileged few — that’s been the status quo for centuries, under our current frame of law, all the way back before (and throughout) chattel slavery (ref, “all the benefits, none of the screams” https://faroutliers.wordpress.com/2005/09/26/all-the-benefits-and-none-of-the-screams/). Rights inherent have been asserted mostly by poor, marginalized (often very rural, small) communities against privileged behemoths, just as suffragists and abolitionists have asserted. So the “facts” of community rights do not necessarily support the “problem of NIMBYism” — they actually oppose it.

      3. When the law finally recognizes the rights inherent to nature, natural communities nad natural persons, the only places that will have industrial scale production are the places that are willing (and able) to deal with its externalities (all the benefits, all of the screams?), because everyone else has the right to tell them “we don’t want to deal with your shit, deal with it yourself” (sometimes, quite literally). It creates solidarity amongst the most marginalized communities if/when a privileged few try to trespass against those inherent rights. And then we won’t have to deal with the current weirdness of privileged consumers wanting natural gas or wind power but not willing to actually “pay” for it in its entirety. And we will innovate better, smaller-scale, more decentralized and self-contained solutions (including living more sane lifestyles that require only a fraction of the energy inputs we currently demand). For example, humanure composting systems will finally have a chance to proliferate (see http://humanurehandbook.com/).

      • Sarah Owens says:

        Ozob: Agreed that “NIMBYism…is a tool of the privileged few.” You write, it’s not “actually a problem in the community rights frame. It is *currently* a problem, but the end results of community rights gets rid of that problem.” According to you, if I understand correctly, community rights gets rid of the problem (NIMBYism) by “a few more or less privileged communities [becoming] the pioneers in changing our structure of law.” I think I understand the logic there, but what I don’t understand is how the community rights strategy (that is, having a few more or less privileged communities assert through ordinances/initiatives mostly unenforceable rights to local self-government) is going to “change the structure of law.” Is the hope that a “sympathetic judge” will recognize the right? Few are that naive, though some pretend to be. Is the hope to radicalize these more or less privileged communities you refer to? They don’t seem to me to be good prospects. So why persist at the local level, where efforts are, ultimately, doomed to futility, as everyone knows? Even Thos. Linzey admits the community rights effort must eventually focus on amendments to state and federal constitutions. Why not have these more or less privileged community actors start there? Because community rights is simply not going to bring about the kind of change you’re hoping for, which is systemic change. System change would require us, all of us, globally and publicly, to confront capitalism. Until community rights advocates are willing to do that, their efforts likely will not rise above, much less eliminate, NIMBYism.

      • ozob says:

        “According to you, if I understand correctly, community rights gets rid of the problem (NIMBYism) by “a few more or less privileged communities [becoming] the pioneers in changing our structure of law.””

        No, that’s decidedly not what I said, and it ignores the content and context of the rest of my post which clearly contradict that out-of-context interpretation. I ask that you please reread / read my post in full, because I am saying almost the exact opposite of what you are implying in the quote you’ve taken out of context. (e.g., “Rights inherent have been asserted mostly by poor, marginalized (often very rural, small) communities against privileged behemoths, just as suffragists and abolitionists have asserted.”)

        Then I will be happy to continue the discussion, as most of the points you raise will already be addressed by actually reading what I wrote. But you start your discussion with an entirely false premise and you work amazing circles from there!

        There are no “hopes” in community rights movement strategy, IMO. I don’t know where or why you are bringing “hope” into it. There is only critical mass, or not. Communities united in asserting their right to self governance and the inherent rights of nature and natural persons, or not. That means building and educating people to believe that their rights are inherent and not derived from a constitution that actually serves more to deny rights and turn natural persons, communities and nature as a whole into property and (potential) corporate profit.

        The goal of constitutional change is to recognize rights that already exist to get rid of rogue government structures and actions that work to oppose the inherent rights of nature, natural communities and natural persons. The role of government is to recognize and protect the inherent rights of nature, natural communities, and natural persons. Whether a government or structure of law does so doesn’t change whether the rights exist or whether they are asserted — it only makes things easier or more difficult for us.

        The only way to get change is to force it, by building a movement that will force it. Otherwise we are merely “hoping” that the system will change itself (ha!), regardless of whether and how we “ask.” There is no “ask” in the community rights strategy. Similarly, the courts are not a “test” for the viability of community bills of rights. Whether the people in that community support and wish to assert their rights is a test. How many communities across the US are willing to do this is a test. It means working outside of the existing frame of law, until we can change the law to recognize the more sophisticated range of ethical considerations community rights demands of it. It is the exact same strategy as the american revolutionaries, the abolitionists, and the suffragists, all of whom worked outside of the law as necessary (and inside of it when possible, although they did not limit themselves to it). The governors of the colonies attempted to assert martial law, remember. The revolution would have played out differently if the revolutionaries had said, “oh, shoot, what we’re doing is illegal? we’ll, I guess we’d better stop!”

        It sounds like you are bringing a stubborn and persistent interpretive frame into this discussion that is filtering what you read in a counterproductive way. I’m not sure how you can accomplish this, but I think it would help immensely if you could abandon some of that baggage somehow (we all have it, I’m just not exactly sure what/how we consistitute and manifest “open-mindedness”). I liken it to a personal decolonization process. The closest thing I can think of is the need for us to “deschool our stories” as per http://pspirro.com/2011/04/05/deschooling-our-stories/ — it becomes more difficult the more stories of colonization become entrenched in our thinking as we age. I suspect that younger people willl have an easier time grasping “community rights” than older, activist types, although I’m sure there are many other factors at play as well. For example, lawyers often seem to have a *very* difficult time with the concept of community rights. Probably because they are trained to work in a frame of existing law, and spend very little time on the question of jurisprudence in any way except to understand and rationalize the existing system.

        The movement needs lawyers (are you a lawyer?), for sure — but only if they are willing and able to step outside the limits of their professional framework and help conceptualize an earth jurisprudence (e.g., Cormac Cullinan’s Wild Law) vs rationalize (and justify, and limit ourselves to only working within) the current system. Only if they are willing to help local communities explore what local self-governance actually looks like vs steer us problematically toward trying to work “with the existing system” at the “non-local level” — where somehow our efforts AREN’T doomed to futility? That is histrionics at best, and otherwise logically incoherent. Let’s say, hypothetically, that we change the federal system and then, voila, we’re done. Right? Wrong. Because we’re still working within the framework that “states are creatures of the nation” and “counties and municipalities are creatures of the state.” Top down. Structurally speaking, that means that we’ve changed the system to expand privileges of nature, natural communities and natural persons, not to recognize inherent rights. Structurally speaking, this has to be a local-first, bottom-up movement, where change — and ultimately authority — comes to the higher levels from the lower levels. As a demand, not a request. The same as every other successful democratic movement in history. The same for Puerto Rico, as well — they are not asking for statehood. They demand independence where they decide, on their own terms, whether they become a state or an independent nation.

        The Framers of the Federalist System (aka, english common law v2, aka, “limited monarchy”) already protected that scenario by instituting “checks” to “balance” against the democratic rule of the people. We can’t change the law — it would be unconstitutional. The law does not seek to self-eliminate. It self-justifies. And so, what, we’d be asking the Supreme Court to do something about it? Fat chance (where’s the “hope” in that?). and EVEN IF the supreme court somehow ruled in our favor, it would be ruling to abolish our entire system (including itself). That would create a power vacuum, and there needs to be a groundswell where we’ve largely come to terms with the structure and process of local democratic self-governance. Otherwise, well, meet the new boss, same as the old boss…so again, it needs to be bottom-up.

        Community rights has a long, hard road ahead of it. Just like the revolutionaries, the abolitionists and the suffragists. The relevant questions, IMO, have to do with whether and to what extent the people are up to the task.

      • Sarah Owens says:

        But Ozob, community rights adherents are not mainly “working outside the existing frame of law.” They’re exploiting NIMBY tendencies in a few citizens and communities to get them support the enactment of CELDF-conceived and drafted legislative measures, not unlike the ALEC strategy, and paying costs for CELDF to defend the clearly unconstitutional and unenforceable measures in court, where they ultimately lose. Nothing could be more “in the frame”, or less “revolutionary.” The question remains, then, how is this strategy going to change the structure of law? I take your position to be that it’s not. If so, we are in agreement.

    • Sarah Owens says:

      I’ve finally completed the analysis referred to above, but it turned into a blog of its own, too long to post here. If you’d like to take a look at it,

      http://zcomm.org/zblogs/community-rights-as-an-organizing-strategy/

      http://www.iopsociety.org/blog/community-rights

      Thank you again for your thoughtful analysis, to which the blog gives full credit.

      • davidm58 says:

        Sarah,
        Apologies for not approving your above reply until just now. I incorrectly thought it had already posted. I took a look at your blog, and I think this is a very good analysis (http://www.iopsociety.org/blog/community-rights). I will note, however, that my name is mis-spelled (should be “MacLeod”).

      • Sarah Owens says:

        David, apologies for the spelling error. The blog has been corrected. No need to apologize for any delay — I just assumed you needed time to look at the blog, which I appreciate your doing, and for the kind words. Sarah

  9. davidm58 says:

    Hello folks,

    I felt the need to put on my “editor” hat here. There’s been lots of good information shared back and forth in this thread of late from all sides, but things gradually started getting more and more personal, to the point where I felt it best to remove the remaining exchanges between ozob and Sarah.

    The web is a great place to post position papers, but unfortunately not always the best forum for respectful dialog. There was a suggestion of a face to face meeting between the two parties, and I think that would be a good idea. If that is not worth doing, then it’s also not worth trying to continue the exchange here.

    I expect respectful, inclusive conversation here, and reserve the right to edit or remove comments that I determine fall outside of those boundaries. It is more likely that I will remove a post (though this is the first time), rather than attempting an edit, so please beware.

    The goal is to agree to disagree agreeably and to not judge the motives or character of those who take opposing positions.

    [p.s. I have saved the offending comments in case the commentators want them returned in order to attempt their own rewrites]

    • ozob says:

      thanks for the comment and transparency about your decision-making. I will await Sarah’s decision to address my questions and substantiate her as-of-yet unfounded claims before I continue any further.

  10. Sarah Owens says:

    Ozob, it’s apparent to me that we see things, including how to conduct a civil and constructive dialogue, differently, so differently that there is no value to either of us further exchange of views. I wish you well.
    (Revised)

  11. Sarah Owens says:

    BUT, if you are sincere in wishing an exchange of views, I suggest we, you and I, along with my partner Michael, and anyone you might like to invite, arrange to meet at a mutually agreeable time here in Salem, at the Ike Box, over coffee or tea, and discuss face to face the community rights strategy as a method for addressing the very real, very serious problems in our society. (Revised)

  12. ozob says:

    I appreciate these revisions. I am very willing to meet as soon as you address my outstanding concerns with our previous attempts at discourse. Otherwise, there is no point in continuing to have a non-conversation in-person, especially if it doesn’t lead toward a commitment of our skills, energy, time and experience to community-level action.

    Please let me know whether you are willing to proceed in that manner.

    cheers!

    ethan

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