an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
1) Barbara Ehrenreich on "How America Turned Poverty Into a Crime:" It's hard to believe that Ehrenreich's Nickeled and Dimed came out 10 years ago. As she's written in the book's re-issue, things have only gotten worse for the struggling families whose plight she chronicled in the book. Ehrenreich describes how officials at public assistance programs treat many beneficiaries with contempt. One needy mom named Kristen says caseworkers "treat you like a bum. They act like every dollar you get is coming out of their own paychecks."
Nationally, according to Kaaryn Gustafson of the University of Connecticut Law School, "applying for welfare is a lot like being booked by the police." There may be a mug shot, fingerprinting, and lengthy interrogations as to one's children's true paternity. The ostensible goal is to prevent welfare fraud, but the psychological impact is to turn poverty itself into a kind of crime.
Another impact is to permanently estrange many of the temporarily needy from government. In Griftopia, Matt Taibbi interviews members of the US Tea Party. He reports that their views of government arise out of their interactions with officials at the IRS, DMV, TSA, zoning boards, or similar agencies: stressful, one-shot interactions with bored, inattentive, hostile, and/or underpaid bureaucrats. Is it any wonder why many so many of those in economic distress may want to turn their back on government altogether?
Dismissive attitudes from frontline bureaucrats end up corroding state action generally. The worse they do, the less voters want to fund their agencies; and the more strapped agencies are, the less likely they are to retain qualified and motivated workers. Corey Robin puts it well as he assesses the immense popularity of anti-tax movements:
Liberals often have a difficult time making sense of these movements – don’t taxes support good things? – because they don’t see how little the American state directly provides to its citizens, relative to their economic circumstances. Since the early 1970s, with a few brief exceptions, workers’ wages have stagnated. What has the state offered in response? Public transport is virtually non-existent. Even with Obama’s reforms, the state does not provide healthcare or insurance to most people. Outside wealthy communities, state schools often fail to deliver a real education. In such circumstances, is it any wonder ordinary citizens want their taxes cut? That at least is change they can believe in.
Matthew Yglesias questions whether there is still much anti-tax fervor left. But whatever the current polling numbers are, both Ehrenreich and Robin show how the weakness of our social welfare state is self-reinforcing. Ehrenreich also shows how social silences about poverty are imposed, down the very youngest children:
At school, [Kristen's] seven-year-old's class was asked to write out what wish they would present to a genie, should a genie appear. Brianna's wish was for her mother to find a job because there was nothing to eat in the house, an aspiration that her teacher deemed too disturbing to be posted on the wall with the other children's requests.
That teacher's reticence is re-enacted daily on a happy talk MSM that leaves it to the World Socialist Web Site to report on the US's soaring child poverty rate. If the middle class is invisible to them, how can they glimpse those barely keeping their heads above water?
The triumph of market freedom has been accompanied by increasing authoritarian government control in many spheres. . . . [For example, in the] welfare reform policies of the 1990s . . . restrictions on poor mothers were rationalized as expanding their “freedom of choice” by making their power to bargain for better choices appear pathological. . . . [F]ree market rhetoric identifies welfare state protections with market losers who threaten others gains, so that security seems to come from controlling rather than supporting those who are most insecure.
As with the market fundamentalism in Lochner v. New York, constrained choices can be reconstructed as free choices by masking the role of law in coercing and penalizing many peoples’ choices in the interests of privileging some interests. The ideology of market freedom contains a contradiction: if freedom comes from maximizing unconstrained self-interested gain in a harsh world of zero-sum competition, then maximizing one’s freedom can mean imposing the most constraint on others. Market winners will not be those who best make the tough choices necessary to maximize resources within given constraints, but those who create better choices for themselves by mobilizing government power to constrain others. This strategy permeates foreign policy that links military and corporate power to control global competition, and it shapes domestic policies controlling struggling workers and racialized groups through mass incarceration and the criminalization of immigration.
McCluskey's deconstruction of free market rhetoric reminded me of the paradoxes explored in a recent article titled Monopoly and Competition in 21st Century Capitalism. The authors note that, today, "most of the examples of competition and competitive strategy that dominate economic news are in fact rivalrous struggles between quasi-monopolies (or oligopolies) for greater monopoly power." The authors back their ideas with empirical data about the degree of concentration in many US industries. More importantly (given the endless contestability of such data), they give a fascinating account of competition as an essentially contested concept in the history of political economy.
3) Glenn Greenwald on the surveillance state: Greenwald believes that a sprawling surveillance apparatus is becoming increasingly focused on political "radicalism," rather than the terror threats that were its founding rationale. This is a real problem, made all the more menacing by economic instability. The state could address it by embracing the bold experimentalism of the New Deal. That nurturing and supportive role is being increasingly eclipsed by a domestic state remade in the image of its foreign roles. Alfred W. McCoy has argued that "the crusade for democracy abroad . . . has proven remarkably effective in building a technological template that could be just a few tweaks away from creating a domestic surveillance state—-with omnipresent cameras, deep data-mining . . . biometric identification, and drone aircraft patrolling 'the homeland." The "Secure Communities" program may be validating McCoy's (and Greenwald's) fears.
I think all of this work is an important "reality check" as we consider the patterns of privilege and burden created by the modern economy. Don Peck recently observed the self-serving two-step that many at the top have used to justify their accelerating affluence:
As America’s winners have been separated more starkly from its losers, the idea of compensating the latter out of the pockets of the former has met stiff resistance: that would run afoul of another economic theory, dulling the winners’ incentives and squashing their entrepreneurial spirit; some, we are reminded, might even leave the country. And so, in a neat and perhaps unconscious two-step, many elites have pushed policies that benefit them, by touting theoretical gains to society—then ruled out measures that would distribute those gains widely.
Peck is mostly comfortable with the idea that those at the top are a legitimate meritocracy, though he does note that "some of the policies that have most benefited the rich have little to do with greater competition or economic efficiency." John Kay of the Financial Times ups the ante, suggesting that we must always be careful to assess whether fortunes spring from productivity (a sign of a well-ordered society) or brute power (an indicator of injustice):
Two broad economic theories describe the allocation of income and wealth. The power theory states, broadly, that people get what they grab: from the forest, the markets, or the shop window. The distribution of income reflects the distribution of power. . . .The alternative theory is that what people earn reflects their marginal productivity – how much they personally add to the value of goods and services. The marginal productivity theory has many attractions, especially to those who are well paid: if what they receive is a product of their own efforts, their rewards are surely well deserved.
Kay worries that, among elites, the "ethic of just reward through effort gave way to the culture of present entitlement from possession." If, as McCluskey, Ehrenreich, and Greenwald all suggest, today's low wage labor force is being pressed toward privation by the state's "guard labor," then the edifice of industry built on a cheap workforce owes as much to state discipline as it does to managerial genius.
When the dragnet replaces the safety net, workers have fewer options and are more desperate for any position they can get. Instead of developing better technology, methods, and innovations, business leaders can count on profits from squeezing workers. Profits based on that kind of sweating can't last forever, as dollar stores are now learning. But when CEOs' average pay is $9.8 million per year, they need only keep the game going a few years to earn the fortune of a lifetime.