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A World Without the Traffic Cop

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On a hot June evening in Berkeley, California, last year, while his groceries sweated on the couch, 24-year-old Darrell Owens sent a tweet that changed his city.

“Traffic enforcement needs to be totally removed from the police …” it began.

Just a few weeks earlier, Owens had watched George Floyd being murdered in an intersection and had joined in the protests. The Berkeley city council had since promised police reform. But Owens, who, at 6 foot 6, is known by one city councilmember as the “youngest, tallest, and only Black” regular attendee of transportation-commission meetings, had been stewing on a more specific idea. His Twitter thread laid out his argument for transforming law enforcement by transforming city streets: “I prefer license plate cameras … and mailed tickets over: ‘ok make sure nobody does anything that justifies this cop pumping 4 rounds of lead into me.’”

To his surprise, the city responded. A councilmember retweeted his thread. A month later, the city council passed “BerkDOT,” a first-in-the-nation measure to shift traffic enforcement to unarmed Department of Transportation workers.

In the summer of 2020, cities across America made similar commitments: to curtail the use of force, shrink police budgets, and fund fleets of civilian officers. But Berkeley was the first to target the traffic cop. By doing so, it is rethinking police power at its root.

Traffic stops are by far the most common reason that police officers initiate contact with members of the public; they account for 84 percent of encounters, according to data from the Bureau of Justice Statistics. In fact, before cars, ordinary citizens rarely came in contact with law enforcement. As we rebuilt cities around the automobile, historians contend, drivers came to expect to be policed. And communities of color have paid the highest price.

In Berkeley, Black drivers are six times as likely to be stopped as white drivers, and four times as likely to be searched. Stops for minor infractions––a broken taillight, speeding––are also more likely to turn deadly for Black and brown drivers, as the deaths of Philando Castile, Sandra Bland, and Daunte Wright illustrated.

All this enforcement isn’t making our streets safe: Despite growing police budgets, the United States has the highest number of traffic deaths per capita of all developed nations.

Owens––along with a coalition of racial-justice advocates, anti-car activists, and traffic-court public defenders––wants to change that. Designing better streets, they say, won’t just prevent traffic accidents. It will reduce the need for police enforcement, and its potential for violence, altogether.

In the first half of the 20th century, traffic fatalities in Europe, Australia, and North America accelerated at similar rates. But in the 1960s and ’70s, many other countries reduced speed limits and ramped up public-transportation infrastructure while the U.S. continued to prize vehicle speed over safety. Today, an American dies in traffic every 14 minutes. And it’s never been a worse time to be a walker: From 2008 to 2018, the number of pedestrian deaths rose by more than 30 percent.

In the past six years, however, a movement called Vision Zero has taken hold. Introduced in Sweden in 1997 and common throughout Europe, it has a simple goal: zero traffic deaths. New York City adopted that goal in 2014, followed by San Francisco. Today, more than 40 American cities have embraced it, promoting their efforts with the “three Es” of street safety: engineering, education, and enforcement.

Police enforce the law. But they can’t fix the street-level issues that cause people to break it. In 2020, the San Francisco Municipal Transportation Authority examined the effects of speeding enforcement on driver behavior and found that once a visible officer leaves the scene, speeding violations recommence.

Offer Grembek, a co-director at the UC Berkeley Safe Traffic Research and Education Center, says that makes sense. Basic choices in American road design––speed limits, traffic-light timing, road width––treat “throughput” as the goal. For early city planners, the problem was congestion, not collision, to be solved by helping cars move faster.

“We are punishing drivers for doing what the roads are asking them to do,” Grembek told me in a recent phone interview. Narrow the road, protect bike lanes, and add medians, and drivers will slow down.

August Vollmer––known as the father of modern American policing––never wanted his officers involved in traffic regulation. In the early 1900s, when Vollmer was appointed the first chief of Berkeley’s police department, it resembled most municipal forces of the era: small, disorganized, and corrupt. Most criminal matters were settled by insurance companies or, for wealthier citizens, by a private eye. But Vollmer had a vision of a new professional discipline: an elite class of men who solved serious crimes. Berkeley police officers were the first to communicate by radio and the first to patrol their beats on bikes (then cars). J. Edgar Hoover cited Vollmer as inspiration for his “professionalization” of the FBI.

But just as Vollmer’s vision gained traction, a new threat was emerging on American streets. America’s first drivers––overwhelmingly well-to-do white men––were wreaking havoc, refusing to slow down for horses or pedestrians. Ordinary citizens were endangering one another’s lives, and police time was more and more pulled to the roadside.

“Cars profoundly altered the relationship between citizens and the police,” the legal historian Sarah Seo wrote in her 2019 book, Policing the Open Road. “Because so many people drove, a vast and mostly ‘law-abiding’ population suddenly became subject to policing.”

City governments, once reluctant to invest in law enforcement, changed course as cars were widely adopted in the 1910s. Suddenly, Vollmer’s dream of an entirely “motor-mounted” force no longer felt far-fetched. In 1925, traffic violations entered the criminal code. Fines and citations soon buttressed department budgets––funding more police on the ground, with more guns, and more cars to police other cars.

In 1925’s Carroll v. United States, the Supreme Court ruled that the police could search automobiles—unlike homes and offices––without a warrant. This Prohibition-era “vehicle exception,” passed to counter an uptick in alcohol smuggling, gouged a hole in citizens’ Fourth Amendment rights. Suddenly, law enforcement had unprecedented entry into our private lives––all an officer needed was a missing license plate or a broken taillight.

Thus was born the pretextual stop.

A century after Vollmer dispatched his officers down Berkeley’s streets, 17-year-old Darrell Owens was biking on the sidewalk, on his way to a karate class. He knew that he technically should’ve been on the road. But it was a busy day, and cars were whipping by at more than 40 miles an hour. This was years before Owens became a transportation advocate. He wasn’t trying to make a point. He was just a Berkeley High School student who didn’t want to get run over.

Bip-bip-bip! Owens’s heart sank. He glanced around his shoulder, saw the patrol car, and dropped one foot to the pavement.

The first time Owens saw his dad get stopped by the police, he was just a kid, sitting in the passenger seat. His dad pulled to the shoulder, turned off the engine, and told Owens to pay close attention. He pulled his keys out of the ignition. He put his hands on the dashboard. When the officer approached the window, he moved slowly, and announced every action before he took it. That, he told Owens afterward, is how you avoid getting shot.

An officer writing a ticket.
(Courtesy of Walk Bike Berkeley)

Standing on the sidewalk in 2013, watching the white officer step out of his vehicle, Owens couldn’t help but feel frustrated. He didn’t even have a driver’s license.

“You were riding your bike on the sidewalk,” the officer said. “Yes, sir,” Owens responded. The officer squinted at Owens. A number of bikes had been stolen recently, the officer told him, and Owens resembled a description of the thief. The officer would need to run a background check.

Owens sat on the curb outside a hair salon and waited. He could feel the glances of white families driving by. Fifteen minutes passed. Then the officer reemerged from his patrol car and cheerfully sent him on his way.

“It was humiliating,” Owens told me. “But at the same time, the whole situation was just goofy. Why would I have to worry about this cop? Why would he have to worry about me?”

Owens never got a driver’s license. He started using the region’s public-transportation system and stopped seeing much of the police. But he kept hearing about them. Every year, it seemed, another innocent Black American was killed in or around their car.

He was interested in computer programming––which he now studies at UC Santa Cruz. So he started digging for data on traffic and violence, and emailing criminology professors his questions about the traffic code. By the time he graduated from high school in 2014, investigating traffic data had become “a kind of obsession.”

He gained a local following tweeting about city issues under the avatar Dragonfly. Berkeley Councilmember Lori Droste says she has followed him on Twitter since 2014 but had no idea he was so young until he showed up to a city-council meeting two years later.

“I knew the moment this 6’6” young guy came to the mic to speak so intelligently about land use issues, it was him,” she wrote to me recently. “Most 19-year-olds don’t attend local neighborhood forums in senior centers.”

When Owens tweeted last year that traffic enforcement should be removed from the police, he didn’t expect much. His several thousand followers had come to rely on his account, @IDoTheThinking, to regularly lob radical urbanist proposals at the city, but the city had never replied. This time, though, Councilmember Rigel Robinson responded: “Create a new department, BerkDOT, pulling the Transportation Division from Public Works and pulling all traffic & parking enforcement from PD.”

Ben Gerhardstein, an advocate of safe streets at a group called Walk Bike Berkeley, saw the tweets too. Since it formed in 2018, Walk Bike Berkeley had been pushing the city council to create a separate Department of Transportation. The city clearly had a car problem: Nearly 60 percent of its carbon emissions came from transportation, and it had some of the worst pedestrian-injury rates in the state. Overwhelmingly, Gerhardstein knew, traffic violence hurts communities of color worst: In Berkeley, as in many cities, the highest-injury corridors cluster around Black and brown neighborhoods with underfunded infrastructure. These areas, in part because of dangerous traffic, also tend to be the most policed.

Gerhardstein, a middle-aged white man, knew he embodied a stereotype of the privileged cyclist. But he saw his anti-car advocacy in terms of mobility justice: the idea that all people, regardless of race, age, or ability, should be able to move freely through their city. Gerhardstein reached out to Owens and Robinson. Soon, the East Bay Community Law Center––which defends low-income residents in traffic court and unhoused citizens cited for sleeping in the streets––joined the conversation. Together, they began imagining how to fix Berkeley’s broken streets.

A Trip Down Market Street: Filmed days before the 1906 earthquake that turned San Francisco to rubble, the 12-minute, shaky black-and-white video has more than a million and a half YouTube views. It’s enthralling. From every direction, in every direction, people are moving: zigzagging by foot, wheel, and hoof. A man selling newspapers walks backward toward an approaching carriage. A trolley car nearly cuts off an automobile being pursued by a gaggle of taunting children. At one point, a man stands in the middle of the street, folding his handkerchief and gazing absently as figures weave around him. It’s an orchestrated series of near misses. But nobody gets hurt. An ancient law is at work: right of way.

From the Roman viae publicae to the king’s roads of medieval England, Western public roads operated around a common premise: that every person has the right to travel unimpeded, with equal priority. Horses, walkers, and carts––and later bikes and trolleys––moved in a constantly negotiated balance of power. But as cars multiplied, horsepower became the enemy of equity.

In 1923, U.S. highway fatalities reached 17,870––an 18 percent per capita increase over the previous year. From 1920 to 1929, three-quarters of the victims were pedestrians, many of them children playing in the streets. As the historian Peter Norton describes in his book, Fighting Traffic, pedestrian advocates fought back. They wrote passionate editorials and proposed regulations to make cars safer. One idea, floated by the Iowa State Highway Commission, would have outlawed cars that could travel faster than 30 miles an hour. Another posited that a pedestrian, wishing to cross the street, could have tossed up a universal hand signal that would have immediately halted all auto traffic around him.

If that sounds ludicrous to you, says Eva Vaillancourt, a Ph.D. candidate studying traffic history at UC Berkeley, you are exposing yourself as a modern traveler––one who has fully internalized the power structures of today’s roads.

“Looking back, you wonder, Wow, what would the world have been like if we had bought into that?” Vaillancourt told me recently. “You glimpse alternative histories.”

For a moment, in fact, the scales of history seemed to tip toward the pedestrian. From 1923 to 1924, car sales slumped dramatically. And in 1924, U.S. traffic fatalities increased by only 1 percent per capita.

But the pedestrian activists underestimated the power of motordom. Industry tycoons and automobile clubs were gathering strength. Firestone, Ford, and the Automobile Association of America realized that to survive this public-relations disaster, they needed to change the narrative. They needed to prepare Americans for a future in which the car came first.

“Pedestrians must be educated to know that automobiles have rights,” George Graham, the chair of the National Automobile Chamber of Commerce safety committee, wrote in 1924.

The NACC launched an “accident news service,” slyly introducing the term accident to shield the vehicle from blame, and offering newspapers heavily doctored traffic-crash “statistics” that overwhelmingly put pedestrians at fault. The goal was to cure citizens of the intuitive—and factual—notion that high speeds increase danger. In Cincinnati, one newspaper published unsubstantiated data showing that “90 percent of accidents” occurred when cars traveled under the speed limit.

Signs paid for by automobile clubs went up chiding “reckless” children who played in the street. They popularized a new pejorative, jaywalker. Some newspaper editorials decried “the dumb pedestrian,” claiming that the walker was typically “intellectually inferior” to the driver. This argument––made at a time when most cars were owned by wealthy white people––had clear racist undertones.

The Automobile Club of Southern California lobbied to make jaywalking a crime. In 1925, Los Angeles launched an experiment in enforcement. Officers who spotted a jaywalker were encouraged to draw attention to the violator by whistling, pointing, and shouting. The president of the club, E. B. Lefferts, explained that humiliation was the best tool to “educate” the masses to defer to the vehicle.

By the ’40s, cars were everywhere. The victory of the vehicle was complete.

On a Zoom call in February 2021, eight months after adopting BerkDOT, the Berkeley city council voted to end police stops for all low-level traffic violations, such as expired license-plate tags or broken taillights. The reforms direct officers to focus on obvious safety violations––such as drunk driving or stolen vehicles—and each will undergo a traffic-stop-review process to assess and correct for any evidence of bias.

For the city, the vote represented meaningful progress. But to Owens and other reformers, it fell short. They were looking for a larger commitment: the design of a citywide “safe system” that doesn’t incentivize speed. That means adding medians and pedestrian spaces, slowing speed limits, and increasing options for public transit and bikes.

Safe systems work. In 2019, after years of slowing speed limits and replacing cars with transit lines and bike infrastructure, Oslo, Norway, became the world’s first major municipality since the dawn of motordom to go a year without a single traffic death.

Eventually, Owens hopes for “self-enforcing streets,” where networks of cameras will replace the need for human enforcement altogether. “No one’s ever been shot by a traffic camera,” he told me.

The problem is that both automated speed cameras and civilian traffic enforcement technically violate the California vehicle code. In May, the state legislature nixed a proposal to legalize speed cameras. Berkeley is still lobbying the state for a special exception to put transportation workers in charge of traffic oversight. Until that happens, the city could staff the new department with unarmed police officers, but it would need union buy-in for that plan.

The power of the car persists: Last week, California Governor Gavin Newsom vetoed a bill to decriminalize jaywalking, citing high pedestrian-fatality rates.

In the end, Berkeley may not be the first American city to civilianize traffic enforcement. Since last summer, Los Angeles, Minneapolis, and Portland, Oregon, have passed similar bills. Last October, the University of Arkansas researcher Jordan Blair Woods wrote “Traffic Without the Police,” a policy analysis of BerkDOT. In March, a Florida lawmaker adapted that paper for a statewide proposal for civilian traffic enforcers. The bill quickly failed in the Republican legislature, but to the BerkDOT coalition, the move was a sign that its ideas were catching.

The coronavirus pandemic has slowed the pace of reform. But it has also helped us imagine how our roads could be transformed.

On a recent clear, chilly morning, Darrell Owens stepped off a North Berkeley sidewalk and strolled down the center of the street. During the pandemic, Berkeley, like many cities, has embraced “Slow Streets,” erecting barriers to protect stretches of some roads from vehicles. In these spaces, pockets of community have cropped up: group workouts, children’s birthday parties, impromptu concerts. Without the pressure to be a conduit, a street can become a place.

Owens walked to the entrance of a restaurant. But he didn’t go inside. A masked waiter led him to a wooden shack erected on the curbside—a parking space converted into a parklet. Flower boxes bloomed red and yellow. As Owens ordered pancakes, he could hear the buzzing of bees.

Then the traffic light turned green. An 18-wheeler barreled by. Around him, the daisies bounced. “Man, if just one driver has a stroke or something, he’s gonna crash and murder us all,” he told me in a phone call.

Owens appreciates Slow Streets. But when he looks around, what he really sees are opportunities missed: to follow the model of international cities nearly free from traffic violence––such as Oslo––and ban cars from city centers.

Owens tries not to get frustrated with the city. His family goes back generations in Berkeley. His grandmother Gladys Glover didn’t drive either, but she was never more than three blocks from a trolley stop. Once, that trolley line stretched all the way to San Francisco. Over the decades, the line shrank, then disappeared.

People have a funny relationship with infrastructure, Owens has noticed. Once the cement dries, we struggle to imagine that things could be different. But even though we can’t see the old trolley line anymore, Berkley never pulled it up—just paved over it. A few feet below the surface, embedded like the steel capillaries of the city, the line is still there.

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Redecentralize Digest — September 2021

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Redecentralize Digest — September 2021

In this issue:

Cryptoeconomics as a Limitation on Governance

Nathan Schneider’s recent (draft) paper Cryptoeconomics as a Limitation on Governance investigates blockchain-based governance systems. Abstract:

“Governance practices in distributed-ledger systems have grown increasingly diverse and diffuse, while retaining a commitment to cryptoeconomics—the use of economic incentives to guide user behavior, in tandem with cryptographic technology. In the space of a few years, cryptoeconomics has introduced advances in techniques for self-governance. But reliance on cryptoeconomics also introduces limitations on governance possibilities. Drawing on earlier critiques of how economic logics can erode democracy, this paper identifies specific limitations that cryptoeconomic governance faces. It contends that, to overcome these limitations, designers should envelop cryptoeconomics within a logic of politics capable of seeing beyond economic metrics for human flourishing and the common good.”


“Political institutions are domains for homo sapiens before homo economicus. Even if politics cannot—and arguably should not—fully depart from economic life, what distinguishes politics is its capacity to notice and address less-economic considerations. While a country’s taxation policy utilizes economic nudges, for instance, lawmakers must generally rationalize it according to conceptions of the common good, rather than optimizing for financial metrics.”

The paper got wide reach as Ethereum-creator Vitalik Buterin wrote a reaction to it, in which he largely agrees while extending on the topic of collusion:

“The language of collusion prevention can be helpful for understanding why cryptoeconomic purism so severely constricts the design space. “Finance” is a category of patterns that emerge when systems do not attempt to prevent collusion. When a system does not prevent collusion, it cannot treat different individuals differently, or even different numbers of individuals differently: whenever a “position” to exert influence exists, the owner of that position can just sell it to the highest bidder.”

Vitalik concludes:

“Blockchain-based contraptions have a lot to offer the world that other kinds of systems do not. On the other hand, Nathan is completely correct to emphasize that blockchainized should not be equated with financialized. There is plenty of room for blockchain-based systems that do not look like money, and indeed we need more of them.”

Ecological awareness

Kelsey Breseman discusses Ecological Awareness for the Decentralized Web.

The obvious culprit is of course proof-of-work blockchains:

“The basic pattern is the same across the technologies: proof-of-work is an inherently and intentionally energy-inefficient process that is the basis for Bitcoin’s stability as a currency; as the value of the currency rises, mining (which performs the energy-intensive proof-of-work process) becomes financially incentivized; high energy consumption increases carbon emissions, oil and coal extraction and burning, and so on. And so, decentralized web technology contributes to the destruction of habitability on our planet.”

Using renewable energy might sound like a solution, and is necessary, but much more important is using less energy: “though decarbonization of our energy infrastructure is an important objective, any proposed solution that doesn’t attempt to decrease energy demand is underwhelming.” Ethereum’s ongoing transition from proof-of-work to proof-of-stake is a laudable move in this regard.

The deeper point however is to take a second to think why we are pursuing our particular projects, and “double-check the theory of change: do our technologies really serve the goods they claim to? How, and how can we ensure they do?”

“I remain attracted to the decentralized web space because I see so many people in it who are both thoughtful and taking action. People are reading books about power, about money, about justice, and making new protocols — both technical and human — that seem like they could fundamentally change the way our world works, and the way we work together within it.

But how can you know what is a sci-fi fantasy and what is grounded truth? As an expatriate of the Silicon Valley tech world, I know how easy it can be to get embroiled in the pitch: working so hard to earnestly convey that your startup is the key to changing the world. It’s a machismo-filled drive to oversell in order to stand out, to raise your VC seed, such that you yourself become over-convinced that the niche technology you’re developing is the one true way to save the world.”

Backchannel petnames

Research group Ink and Switch prototyped Backchannel, an alternative to the ubiquitous concept of user profiles, both removing the need for a trusted third party and blocking various forms of impersonation attacks. The paper is a nice follow-up to the group’s previous paper on local-first software, a must-read for decentralised software developers/designers (also covered in our digest).

“In standard user profile design, users are assigned a number in a database and can personalize their public identity. These profiles are usually owned, controlled, and moderated by a single authority. You have used one today: a profile photo and “real name” for yourself, locked with a username, password, email address or phone number. This design is ubiquitous.

However, user profiles present significant challenges when used between small sets of trusted participants. They are vulnerable to social engineering attacks, context collapse, and depend on access to cloud resources through a trusted third-party. In this article, we propose an alternative approach that replaces self-described user profiles with trusted digital relationships.”

An interesting starting point is that people do not usually look up each other’s accounts by their user names, instead using an existing communication channel to pass a ‘share’ link or show a QR code in order to connect or collaborate. Why then have user names and profiles at all?

“Collaborative applications could leverage this already-established mental model as the primary method to share access to resources. Then, we could remove this dependency on a namespace and use relationship-based identity instead.”

The proposed solution lets people choose their own names for their contacts (commonly called a ‘petname’ system), much like the personal phonebook maps names to phone numbers — except that now, there are no phone numbers, but rather a unique key that is generated for each relation. Like with phonebooks however, the scope was limited to 1-to-1 communications, as group communication poses further design challenges.

The authors prototyped several apps using this approach and conducted user research with them.

“Notably, very few users remarked that they did not need to sign up for an account to use applications with Backchannel’s relationship-based identity. Once they were presented with the fact that they did not need an account, they were pleasantly surprised and found this to be a positive part of the design.”

While the paper covers practical matters, it points to a more significant change in software design, concluding:

“With this research we propose an alternative point of view on digital identity altogether. We see great potential for relationship-based digital identity to replace user profiles in applications designed for small groups of trusted participants.”

New Public / Unfinished

New Public is a new publication “for better digital public spaces”. The theme of its magazine’s first edition is decentralisation, with “original stories about what forests can teach us about the web, how couples navigate decentralized sperm donation networks, why “less is more” when it comes to social media relationships, and much more.”

The magazine was released at the Unfinished live event in New York, which made an extravagant show around ethical digital tech; videos are online (though only viewable with Vimeo account) including e.g. a session by creators of the magazine and Anil Dash’s critical view on the tech industry.


  • The second issue of COMPOST magazine, publishing “creative works reflecting on the web as a digital commons”, is out (also published via ipfs and hypercore protocols).
  • The Chinese government demands its tech giants to stop anti-competitive practices between them and start interoperating.


For more events like these, check out and subscribe to the dweb.events calendar!

About this digest

The Redecentralize Digest is a monthly publication about internet (re)decentralisation. It covers progress and thoughts relating technology and politics, without ties to a particular project nor to one definition of decentralisation — figuring out its meanings and relations is part of the mission.

This digest was written by Gerben, with thanks to Ian and others for all tips & suggestions.

The digest’s format and content are not set in stone. Feedback, corrections and suggestions for next editions are welcome at hello@redecentralize.org. We don’t spy on our readers, so please do tell us what you think!

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The Myth That Democracies Bungled the Pandemic

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The idea that dictatorships get things done while democracies dither has an ancient provenance and enduring appeal. When times were tough in the ancient Roman republic, the Senate appointed a strongman with virtually unlimited powers (but a temporary term of office) to tackle the crisis. Abraham Lincoln, the savior of American democracy and the Great Emancipator, suspended the writ of habeas corpus and arbitrarily jailed dissenters to maintain the Union’s resolve to win the American Civil War. The Italian dictator Benito Mussolini supposedly “made the trains run on time”—democracies cannot always do the same.

The argument that authoritarian governments outperform democracies in a crisis has found new life during the coronavirus pandemic, especially within the Chinese government. The Global Times, a newspaper published by the Chinese Communist Party as an arm of the People’s Daily, stated bluntly that Western countries “failed to prevent the virus from spreading in their countries … as a result of their governance systems” and that “the West cannot have a government that is as powerful as China’s.” Indeed, China’s reported deaths from COVID-19 are remarkably low, just under 5,700 in a country of more than a billion people. In case the implication is too subtle, the paper has also directly said that “systematic advantages, including top-down effective governance and ability to mobilize social resources” are behind China’s success. Meanwhile, the United States—the world’s most powerful democracy—is well into its fourth wave of mass hospitalizations and deaths; more than 660,000 Americans are dead of the disease as of this writing. A recent article in Foreign Policy (hardly a bastion of authoritarianism) argued that nations with “collective discipline, deference to authority, and faith in the state” are the ones that have succeeded in confronting this public-health crisis, even though democracy itself is not to blame. Similarly, Francis Fukuyama thinks that it is not necessarily democracy but “whether citizens trust their leaders, and whether those leaders preside over a competent and effective state,” that is crucial to defeating a pandemic.

[Zeynep Tufekci: How the coronavirus revealed authoritarianism’s fatal flaw]

The idea that top-down societies have handled COVID-19 better may explain in part why governance around the world has become more autocratic since the start of the pandemic: People crave decisive action. Those in democracies who resist decisive action, such as vaccine mandates, often appeal to their right to personal freedom, despite the fact that vaccine mandates are both ethically and historically compatible with democracy. Meanwhile, Western news outlets announce that “America has failed at collective action” or that “the U.S. has failed to persuade Americans to get vaccines.” Even Francis Collins, the director of the U.S. National Institutes of Health, said that the U.S. is “failing” on COVID because of low vaccination rates. The pressure this criticism creates for democratic governments to be more forceful must be immense. Still, in 2020, most countries that had been designated as “free” by Freedom House stayed that way: Reductions in political rights and civil liberties were most marked in dictatorships and hybrid regimes.

Should the world turn to dictatorship to beat back the pandemic and the many other challenges we face? Even if dictatorships were better than democracies at fighting the pandemic, that wouldn’t be reason enough to replace presidents with politburos and parliaments with juntas. Freedom, equal representation, and civil rights are more important than ruthlessly enforced public-health measures. Nevertheless, the bold, resolute governance that autocracy supposedly offers may be tempting. The glamour of that dark path conflicts with the fact that, despite the negative publicity they have faced, democracies are at least as effective at vaccinating their citizens as non-democracies. Our World in Data, a collaboration between researchers at Oxford University and the Global Change Data Lab, provides up-to-date information on the proportion of each country’s citizens who have received at least one dose of COVID-19 vaccine, as well as on their GDP per capita. Experts from the V-Dem Institute at the University of Gothenburg classify regimes on the basis of their adherence to free elections and protection of individual rights, making it possible to compare the performance of democratic regimes with that of autocratic ones. At the same level of economic prosperity, democracies are on average comparable to or slightly better than their autocratic counterparts in terms of how much of their population has been vaccinated. Some democracies have underperformed their peers, but others have overperformed. The same is true for dictatorships.

Figure 1: Worldwide vaccination rates by regime type. Each point represents a country; the lines are the prediction from a best-fit logistic model.
Figure 1: Worldwide vaccination rates by regime type. Each point represents a country; the lines are the prediction from a best-fit logistic model.

In fact, though it may be surprising to many, democracies have proved that they have the edge in many aspects of this crisis, including the initial containment of spread and compliance with measures designed to limit transmission. They are also better at preventing deaths from COVID-19. Democracies have reported more fatalities from the disease than have autocracies, but these reports are complicated by autocracies’ tendency to fudge their data to make things look better. One way of getting around that problem is to estimate how many more people died in 2020 (when the pandemic broke out) compared with previous years. This is precisely what Ariel Karlinsky and Dmitry Kobak did. Although excess mortality is an imperfect measure of COVID deaths and available for fewer countries than the fatality data are (Russia is included but China is not), it is a harder number to falsify. Karlinsky and Kobak’s data can be used to compare democracies with dictatorships in their percentage of excess deaths during the pandemic. And at every level of GDP per capita, democracies do at least as well as, and sometimes better than, dictatorships.

Figure 2: Worldwide COVID-19 deaths. The boxplot shows the distribution of death rates for countries sorted by regime type. The bold line in the center of the box is the median death rate; the edges of the box represent the 25th and 75th percentiles of death rates. Outliers are indicated by black dots. The poorest countries are excluded from this plot to avoid including possibly unreliable reports from states with low capacity; however, the qualitative difference in death rates between democracies and dictatorships is unchanged by this exclusion.
Figure 2: Worldwide COVID-19 deaths. The boxplot shows the distribution of death rates for countries sorted by regime type. The bold line in the center of the box is the median death rate; the edges of the box represent the 25th and 75th percentiles of death rates. Outliers are indicated by black dots. The poorest countries are excluded from this plot to avoid including possibly unreliable reports from states with low capacity; however, the qualitative difference in death rates between democracies and dictatorships is unchanged by this exclusion.
Figure 3: Worldwide excess mortality rates in 2020 by regime type. Every point represents a country. The lines are the prediction from a linear best-fit model, excluding Peru as an apparent outlier.
Figure 3: Worldwide excess mortality rates in 2020 by regime type. Every point represents a country. The lines are the prediction from a linear best-fit model, excluding Peru as an apparent outlier.

[Conor Friedersdorf: Australia traded away too much liberty]

The desire for swift, unified, and determined policy to fight COVID-19—and for an end to endless health restrictions—is understandable. But before we embrace authoritarianism in the name of expediency, we should remember that Mussolini did not actually get the trains running on time. The supposed improvements were partially mythical, partially attributable to pre-Fascism initiatives, and limited to only some aspects of the railway system. In addition to being murderous, fascist Italy and Nazi Germany were deeply corrupt, even kleptocratic. Democracies face criticism of their vaccination campaigns precisely because they are democracies: They have cultures of open discussion and free media. But when it comes to developing and administering the lifesaving vaccines that can stop the virus, democratic governance is working.

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The Problem With Problematic

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Academics like me love to describe things as “problematic.” But what do we mean? We’re not saying that the thing in question is unsolvable or even difficult. We’re saying—or implying—that it is objectionable in some way, that it rests uneasily with our prior moral or political commitments.

For instance, when I described applying Ancient Greek free-speech ideals to social media as “problematic” in a recent article, I wasn’t saying that Socrates’s audience was impossible to please. I was saying that these practices were premised on exclusion in a way that modern egalitarians won’t like. Or when my Oxford colleague Amia Srinivasan describes stand-up comedy in Los Angeles as “problematic,” she’s not saying that she struggled to understand the jokes. She’s saying that they relied on sexism in a way that she—and everyone—should find morally bad.

In principle, every usage of the term problematic should be followed by an explanation. Is the situation or person in question unjust, immoral, or unfair? Racist, sexist, or otherwise bigoted? Wrongheaded, perhaps, or just plain wrong? All too often, the explanation never comes.

[Read: How capitalism drives cancel culture]

Snark artists on Tumblr have parodied pretentious, pejorative uses of problematic for years. Yet today, they are as popular in mainstream publications as with professors. According to a recent article in Scientific American, JEDI is “problematic” as an acronym for “Justice, Equity, Diversity, and Inclusion” initiatives because, among other issues, the Jedi protagonists in Star Wars employ “toxically masculine approaches to conflict resolution.” Elsewhere, we’re told that the facial features of Bond villains are “problematic” because they cast aspersions on people with disfigurements, or that West Virginia’s long history with the coal industry is “problematic”—at least, according to members of the Rockefeller family.

Which other academic buzzword can boast of going so decisively and pervasively mainstream? Conventionally, problematic just means “presenting a problem or difficulty,” a usage that The Oxford English Dictionary traces back to 1609. But this definition can’t explain the word’s current popularity.

Like the verb problematize, the adjective problematic came into its own in the 1980s with the importation of French structuralism into American academia. The philosopher and historian Michel Foucault presented “problematization” as a process whereby something previously taken for granted comes to be understood as a problem to be addressed.

We ultimately owe problematic, however, not to Foucault, but to his Marxist colleague Louis Althusser, for whom the phrase la problematique described a structured, theoretical system through which ideas are processed. Incidentally, Althusser also strangled his wife, Hélène Rytmann, to death in 1980. The fact that many who embrace his terminology today would now reflexively describe Althusser himself as “problematic”—instead of “misogynistic” or “violent”—illustrates how successfully the word has slipped the bonds of social theory to become an all-purpose term not of art but of opprobrium.

Problematic may have escaped the academy, but scholars and teachers still bear a lot of responsibility for its current use. Like any casual Twitter user, academics use problematic as an innuendo, or better yet, an “insinuendo.” Rhetorically, this usage divides our audiences between those who know already what our commitments are—in many cases because, on a politically homogeneous campus, they share them—and so are presumptively in the know about what we find objectionable. To this audience, problematic indicates where the problem is; they do not need to be told what it is.

Yet for those who, for whatever reason, don’t belong to this community of judgment, the effect is very different. Problematic implies that they, themselves, may present a problem. They are offside, and they better get onside, and quick—whether they understand the objection or not.

In effect, problematic communicates that those who don’t share our commitments at the outset are not worth arguing with, let alone persuading. It relies on a subtle sort of bullying in place of mutual justification. It excludes, rather than explains.

To say that problematic functions as an exclusionary rhetorical strategy implies intent, but I blame intellectual indolence more than malice. In my field of political philosophy, we like to do things with words; we are less attuned to the ways in which words do things with us. Academics are also human beings, often with imposter syndrome, and we come to rely on words such as problematic precisely because they are vague enough to preempt objection. Students, especially, would rather agree with us than admit that they don’t understand what we mean.

In this way, problematic is highly efficient. But it is also disastrous for learning.

This is why I find the word problematic to be, well, problematic. I object to its proliferation not simply because it encourages sloppy thinking and poor communication among scholars and students alike, but because it divides audiences into in-groups and out-groups based on unstated, but assumed, commitments. Moreover, by failing to express our own specific objections, we academics insulate ourselves from critique. We make ourselves unchallengeable as teachers and so fail our students and ourselves.

[Read: I’m concerned about wokeness at my child’s school]

Now here, someone might object that I’m being too hard on my fellow professors. Words such as problematic may be exclusionary, but they also allow us to share our provisional judgments or suspicions out loud without having to justify ourselves to others. One might argue that this freedom is valuable, especially for marginalized individuals, upon whom the burdens of justification fall disproportionately. If a society regularly inflicts injustices, large and small, on members of a given racial group, for example, that group’s members should be able to speak up without having to explain themselves with philosophical precision; let the people at fault figure out what they’ve done wrong, for once.

I take this objection seriously. Still, I doubt that the benefits outweigh the harms, particularly in the classroom. One might rephrase the worry as follows: “The word problematic is valuable because it allows those of us committed to social justice or equity to exclude the right people in the right way.” But how can we know, for sure, who the right people to exclude are? Or who among our opponents today might not be on our side tomorrow?

More pressing, I see it as my job to communicate effectively to all of my students, as well as to all of my readers, and to teach them how to reason morally and politically, whatever their commitments. Problematic may show our students and readers how to be—or rather how to sound—righteous. But it does not encourage learning or reflection on how to be right.

So the next time anyone, including your professor, describes something as “problematic,” please let your next question be: How so?

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18 days ago
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The Non-coastal Elites

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American wealth and power usually have a certain look: glass-walled penthouse apartments in glittering urban skyscrapers, sprawling country mansions, ivy-covered prep schools, vacation homes in the Hamptons. These are the outward symbols of an entrenched oligarchy, the political-economic ruling class portrayed by the media that entertains us and the conspiracy theories that animate the darker corners of the American imagination.

The reality of American wealth and power is more banal. The conspicuously consuming celebrities and jet-setting cosmopolitans of popular imagination exist, but they are far outnumbered by a less exalted and less discussed elite group, one that sits at the pinnacle of the local hierarchies that govern daily life for tens of millions of people. Donald Trump grasped this group’s existence and its importance, acting, as he often does, on unthinking but effective instinct. When he crowed about his “beautiful boaters,” lauding the flotillas of supporters trailing MAGA flags from their watercraft in his honor, or addressed his devoted followers among a rioting January 6 crowd that included people who had flown to the event on private jets, he knew what he was doing. Trump was courting the support of the American gentry, the salt-of-the-earth millionaires who see themselves as local leaders in business and politics, the unappreciated backbone of a once-great nation.

This class of people exists all over the United States, usually in midsize metropolitan areas such as Yakima, Washington, the agricultural city where I grew up, 140 miles southeast of Seattle, the Pacific Northwest’s largest metro. According to the prominent sign on the freeway outside town, Yakima is the “Palm Springs of Washington.” The sign is one of the few things outsiders tend to remember about Yakima, along with the excellent cheeseburgers from Miner’s and one of the nation’s worst COVID-19 outbreaks. I loved Parks and Recreation because it accurately portrayed life in a place like Yakima: a city that isn’t small and serves as the hub for a dispersed chunk of rural territory, but that isn’t tightly connected to a major metropolitan area. But Parks and Rec is an exception. Places like Yakima and Parks and Rec’s fictional Pawnee don’t figure prominently in the country’s popular imagination or its political narratives: San Luis Obispo, California; Odessa, Texas; Bloomington, Illinois; Medford, Oregon; Hilo, Hawaii; Dothan, Alabama; Green Bay, Wisconsin.

[Read: The world order that Donald Trump revealed ]

Yakima isn’t a tiny hamlet; it has a population of about 90,000 and sits at the heart of an extended metropolitan area that’s home to nearly a quarter of a million people. Millions of Americans live in small metropolitan areas much like it: exurban, surrounded by rural territory and wilderness, but not exactly isolated in the middle of nowhere. Seattle is only a two-hour drive away through the towering Cascade mountains, but it’s an entirely different world culturally, politically, and economically.

Yakima is a place I love dearly and have returned to often since I left, but I’ve never lived there again on a permanent basis. The same is true for many of my close high-school classmates: If they left for college, most have never returned for longer than a few months at a time. Practically all of them now live in major metro areas scattered across the country, not our hometown. The kinds of jobs they are now qualified for—in corporate or management consulting, nonprofits, media, and finance—don’t really exist in Yakima.

Yakima’s economy revolved then, and revolves to an ever greater extent now, around commercial agriculture. As a result, the whole region is dominated by its wealthy, largely agricultural property-owning class. They mostly owned, and still own, fruit companies: apples, cherries, peaches, and now hops and wine grapes. The other large-scale industries in the region, particularly commercial construction, are essentially economically downstream from agriculture: These companies pave the roads on which fruits and vegetables are transported to transshipment points, build the warehouses where the produce is stored, and so on.

Commercial agriculture is a lucrative industry, at least for those who own the orchards, the cold-storage units, the processing facilities, and the large businesses that cater to them. The owners have a trusted and reasonably well-paid cadre of managers and specialists in law, finance, and the like—members of the educated professional-managerial class that my close classmates and I have joined—but the large majority of their employees are lower-wage laborers. The owners are mostly white; the laborers are mostly Latino, a significant portion of them undocumented immigrants who often work under brutally difficult circumstances. Ownership of the real, core assets is where the region’s wealth comes from, and it doesn’t extend down the social hierarchy. Yet this bounty is enough to produce hilltop mansions, a few high-end restaurants, and a staggering array of expensive vacation homes in Hawaii, Palm Springs, and the San Juan Islands.

These elites’ wealth derives not from their salary—this is what separates them from even extremely prosperous members of the professional-managerial class, such as doctors and lawyers—but from their ownership of assets. Those assets vary depending on where in the country we’re talking about; they could be a bunch of McDonald’s franchises in Jackson, Mississippi; a beef-processing plant in Lubbock, Texas; a construction company in Billings, Montana; commercial properties in Portland, Maine; or a car dealership in western North Carolina. Even the less prosperous parts of the United States generate enough surplus to produce a class of wealthy people. Depending on the political culture and institutions of a locality or region, this elite class might wield more or less political power. In some places, it has an effective stranglehold over what gets done; in others, it’s important but not all-powerful.

[From the June 2018 issue: The 9.9 percent is the new American aristocracy]

Wherever these elites live, their wealth and connections make them influential forces within local society. In the aggregate, through their political donations and positions within their localities and regions, they wield a great deal of political influence. They’re the local gentry of the United States.

These folks’ wealth extends into the millions and tens of millions rather than the billions we typically associate with the world-shaping clout of international oligarchs. There are, however, a lot more of them than the global elites who get all of the attention. They’re not the faces of instantly recognizable brands or the subjects of award-winning New York Times profiles; they own warehouses and Applebee’s franchises, concrete companies and movie-theater chains, hops fields and apartment complexes.

Because their wealth is rooted in the ownership of physical assets, they tend to be more rooted in their place of origin than the cosmopolitan professionals and entrepreneurs of the major metro areas are. Mobility among major metros, the characteristic jumping from Seattle to Los Angeles to New York to Austin that’s possible for younger lawyers, creatives, and tech folks, is foreign to them. They might really like heading to a vacation home in Bermuda or Maui. They might plan a relatively early retirement to a wealthy enclave in Palm Springs; Scottsdale, Arizona; or Central Florida. Ultimately, however, their money and importance comes from the businesses they own, and those belong in their locality.

Gentry classes have been a common feature of a great many social-economic-political regimes throughout history. Pretty much anywhere you have a hierarchical form of social organization and property ownership, an entrenched gentry class of some kind emerges. In the course of working on my doctorate in history and years of research for my podcast, Tides of History, I’ve come across many different gentries, each with its own ideas about its legitimacy, role in society, and relationship to those above and below on the social scale: the local civic elites of the Roman Empire, the landlords of late Han China, the numerous lower nobility of late medieval France, the thegns of Anglo-Saxon England, the Prussian Junkers, and the planter class of the antebellum South. The gentry are distinct from the highest levels of a regime’s political and economic elite: They’re usually not resident in the political center; they don’t hold major positions in the central administration of the state (whatever that might consist of); and they aren’t counted among the wealthiest people in their polity. New national or imperial elites might develop over time from a gentry class, even rulers—the boundaries between these groups can be more or less porous—but that’s not typically the case.

Gentry are, by definition, local elites. The extent to which they wield power in their locality, and how they do so, is dependent on the structure of their regime. In the early Roman Empire, for example, local civic elites were essential to the functioning of the state. They collected taxes in their home city, administered justice, and competed with one another for local political offices and seats on the city council. Their competition was a driving force behind the provision of benefits to the common folk, in the form of festivals, games, public buildings, and more basic support, a practice called civic euergetism.

These local elites of the Roman world served as the linkage between the emperors, such as Augustus and Hadrian, and the archipelago of cities that made up the Roman Empire. The central state essentially outsourced the day-to-day running of the empire to the city councillors of Marseille, Tarragona, Antioch, Athens, Carthage, and the dozens of other cities scattered from Britain to Arabia. Roman elites were fundamentally urban; they owned rural estates (fancy villas with vineyards and fields and bathhouses and libraries) and spent a great deal of time there, but cities were the venues for their competition with one another. Contrast those Roman elites with the planter class of the antebellum American South. Superficially, they share a great deal in common, and not just because the planter class loved to read the classics and explicitly modeled itself after the aristocracies of Greco-Roman antiquity. Both were slaveholding elites; both valued a specific kind of elite education as a marker of social status; both owned extensive rural estates; and both exerted strong, effectively unchecked control over their localities. But the planter class was fundamentally rural. Its members went to a few cities to show off their wealth and sophistication—such as Charleston, South Carolina; Augusta, Georgia; and New Orleans—but by and large they spent their time and energy at their plantations. These were the places they effectively ruled, politicking with their fellow aristocrats. There were incredibly wealthy planters with huge estates, some of them owning hundreds of enslaved people and thousands of acres, but plenty of planters operated on a more modest scale. But even the more modest planters—those owning more than 10 enslaved people in some areas of the South, more than 20 in other parts—were still an elite group by any reasonable standard.

The medieval European gentry was likewise a fundamentally rural group: living in their manor houses, collecting rents and customary labor duties from their serfs (or, later in the Middle Ages, leaseholders), presiding over the local courts, and plotting and fighting with their gentry neighbors over inheritances, marriages, and access to the resources of whatever more centralized state existed. They were distinct from the higher nobility—dukes, counts, and whatnot—whose holdings included multiple estates and who were more directly connected to royal authority. Medieval Europe was notable for its general tolerance of private violence carried out not only by higher nobility but even by local gentry, with their bands of men-at-arms and hired soldiers. That right to violence was part of what distinguished them as a social group, and they didn’t hesitate to employ it in defense of their position in local society.

We could talk about many, many more types of gentry: some of, but not all, the holders of iqta (tax-revenue units) in the Delhi Sultanate of the 14th century; the English country gentry of the 18th and 19th centuries; on and on and on. The greater the level of social inequality, the more prominent the gentry class—the group that owns the resources—tends to become in economic and political life. In agrarian societies, where land and its produce form the primary source of wealth, rural elites dominate. In more urbanized societies, the local elites can be a bit more diverse.

[Eliot A. Cohen: Meet the Trumpverstehers]

This, not just pure nostalgia, is why I started with Yakima: because it’s easy to see the structural parallels with the past when we look at a heavily rural and agricultural region, even one that’s not exactly prominent in the American imagination. The gentry residing in my hometown largely own land, the products of which form their primary source of wealth, and they sit atop the local hierarchy. But much of the United States isn’t as rural or as obviously hierarchical, in either social or racial terms, as Yakima. It’s not hard to spot sprawling apple orchards or vineyards and figure out that the person who owns them is probably wealthy; it’s harder to intuitively grasp that a single family might own 17 McDonald’s franchises in East Tennessee, or understand just how much money that the ownership of the third-biggest construction company in Bakersfield, California, can generate.

When we talk about inequality, we skew our perspective by looking at the most visible manifestations of it: penthouses in New York, mansions in Beverly Hills, the lavish wastefulness of hedge-fund billionaires or a misbehaving celebrity. But that’s not who most of the United States’ wealthy elite really are. They own $2 million houses on golf courses outside Orlando, Florida, and a condo in the Bahamas, not an architecturally designed oceanfront villa in Miami. Those billionaires (and their excesses) exist, but they’re not nearly as common as a less exalted category of the rich that’s no less structurally formative to our economy and society.

An enormous number of organizations and institutions are dedicated to advancing the interests of this gentry class: chambers of commerce, exclusive country clubs and housing developments, the American Society of Concrete Contractors, and fruit growers’ associations, just to name a small cross section. Through these organizations and their intimate ties to local and state politics, the gentry class can and usually does wield significant power to shape society to its liking. It’s easy to focus on the massive political spending of a Sheldon Adelson or Michael Bloomberg; it’s harder, but no less important, to imagine what kind of deals about water rights or local zoning ordinances are being struck across the U.S. on the eighth green of the local country club.

Some people work their way into this property-holding gentry class by virtue of their blood, sweat, and sheer gumption. That’s one variant of the American dream: the belief that hard work and talent, and maybe a bit of luck, can take a person into the ranks of the elite. But far more members of the gentry class are born into it. They inherit assets, whether those are car dealerships, apple orchards, or construction companies, and manage to avoid screwing things up. Managers run their companies, lawyers look over their contracts, accountants oversee their finances, but they’re the owners, whether or not they’ve done a single thing of their own volition to accumulate those assets. This is broadly true of gentry classes: They’re hereditary. Large amounts of property of any kind form a durable base for generational wealth, whatever specific shape it might take. The American gentry class isn’t entirely closed to new blood, but it, too, is hereditary.

Equating wealth, especially generational wealth, with virtue and ability is a deeply American pathology. This country loves to believe that people get what they deserve, despite the abundant evidence to the contrary. Nowhere is this more obviously untrue than with our gentry class.

The American gentry stands at the apex of the social order throughout huge swaths of the country. It shapes our economic and political world thanks to its resources and comparatively large numbers, yet it’s practically invisible to the popular eye.

Forget the skyscrapers and opulent country mansions, the elite family dynamics of Succession and the antics of the Kardashians and Kardashian-adjacent; look instead to the far more numerous multimillion-dollar planned golf-course communities and their controlling homeowners’ associations. Think about the informal property-development deals struck between sweating local grandees at the country-club bar in Odessa, Texas, or Knoxville, Tennessee.

Power resides in gated communities and local philanthropic boards, in the ownership of staggering numbers of fast-food franchises, and in the smooth transmission of a large construction company’s assets to a new generation of small-yacht owners. Power can be found in group photos of half-soused, overweight men in ill-fitting polo shirts, and in the millionaires ready and willing to fly their private jets to Washington, D.C., in support of a certain would-be authoritarian. The yeoman developer of luxury condominiums, the single-digit-millionaire meatpacking-plant owner, the property-management entrepreneur: These were the people who, remembering or inventing their tradition of dominance over their towns and cities, flocked to Make America Great Again. As much as the United States loves to think of itself as an egalitarian paradise open to talent of any stripe, hierarchy and local power are no less the American way.

This article was adapted from an essay published on Patrick Wyman’s Substack, Perspectives.

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26 days ago
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A Strategy of Confusion

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On the verge of a landmark victory by judicial fiat, the Republican Party is being strangely quiet.

As my colleague David Graham has written, Republican Party leaders and conservative intellectuals haven’t been trumpeting the Supreme Court’s decision to allow a Texas ban on abortions to go forward, which for women in the state has all but nullified the 1973 Roe v. Wade decision that guaranteed the right to an abortion. Instead, in a show of formidable message discipline, they’ve been downplaying it. High-ranking Republican politicians have avoided commenting, or described the Court’s decision in technical terms. Conservative intellectuals and media figures, meanwhile, have sought to cast the decision as a procedural matter of minor significance.

The Texas law bans abortion around six weeks, before most women know they are pregnant. It promises a $10,000 reward to anyone who successfully sues someone who “aids or abets” a person trying to get an abortion after that time—or “intends” to do so—which not only deputizes Texans to snitch on one another in the hopes of getting a cash prize, but creates a litigation risk that its proponents hope will put abortion clinics out of business forever.

In response to appeals from abortion providers, the Court issued a 5–4 decision through its shadow docket in which the majority insisted that the structure of the Texas law raised “complex and novel” procedural questions the justices weren’t prepared to address. Other Republican-run states are now promising to follow Texas’s example. Although the Roe decision hasn’t been officially overturned, a legal landscape in which states pass abortion bans that the Supreme Court pretends to be powerless to address is one in which the decision has no legal force.

[Adam Serwer: Five justices did this because they could]

The idea that all of this is a procedural matter of trivial significance is nonsense—the architects of the Texas law deliberately designed it to evade judicial review, and its defenders are essentially repeating an anti-abortion group’s legal strategy as analysis. If a Democratic-run state passed a law that nullified a constitutional right by some clever legal scheme, conservative writers and personalities would not be praising its cleverness and insisting that the Court was correct to feign helplessness. Nor would the conservative justices have taken as kindly to an effort to make them look like hapless fools, were they not so sympathetic to the results.

“If this were New York passing a law creating a private right for citizens to sue someone for having a gun, the Court would step in in a heartbeat,” Adam Winkler, a law professor at UCLA, told me. “I don't think there's any doubt that the Court’s decison to allow Texas’s law to stand was a reflection of the justices’ belief that abortion is not a constitutionally protected right.”

The notion that no harm was done here is risible—it is simply that the Texas law’s defenders are pleased with the outcome. Patients are already being turned away from clinics; those with the means to do so are going to other states for treatment, even though it is unclear whether the law allows the people who help them to be sued regardless.

The Court’s supposedly narrow ruling also dissuades abortion providers from setting up a legal challenge to a law that is plainly unconstitutional under current precedent. These providers could just keep providing services and wait to be sued—mooting the weak procedural rationale on which the current majority opinion relies. But now that a majority of the Court has indicated that it no longer considers abortion a constitutional right, doing so would risk validating the Texas law rather than overturning it.

“The Court's pretense that it's not sure it could do anything … is akin to someone pretending they're locked in a room while they themselves are holding the key all along,” Aderson Francois, a law professor at Georgetown University, told me. “It seems to me we've reached a point where we don't have to pretend that the Court is intellectually honest. It's not.”

The Texas law’s critics have seized on its perverse social incentive—bribing Texans to inform on one another—as potentially creating a nightmare scenario, a kind of privatized surveillance state. But if no one ever sued, the law might avoid challenge and still achieve its objective, with the added reward of the law’s supporters being able to again characterize its critics as hysterical for accurately describing their means and ends. Of course, once you deputize the citizenry to seek bounties on one another, you can’t control who takes you up on the offer.

The point of hiding behind proceduralism is to minimize political backlash by drawing muddled coverage of the decision. As Irin Carmon writes at New York magazine, the justices have “decided to confuse us with process.” Their political allies in the Republican establishment got the message, and are dutifully repeating it.

[Mary Ziegler: The justices are telling us what they think about Roe v. Wade]

This does not mean that Republicans are necessarily fearful of the political consequences of overturning Roe. The long-term Republican strategy—as opposed to that of the anti-abortion movement—has always involved cultivating a degree of uncertainty about the party’s objectives in order to minimize the political backlash. Few Americans support allowing abortions with no restrictions, but even fewer support outlawing the procedure entirely.

In that environment, the Republican Party has pursued a balancing act—harnessing the commitment and passion of the anti-abortion movement while assuring centrist voters of a more moderate approach. The Trump era showed how easily media standards toward fairness could be manipulated to maximize uncertainty, and leave the public confused about the significance of any given development.

As Laura Bassett wrote last week, Republican politicians have repeatedly insisted that their nominees to the bench would not seek to overturn Roe, and characterized critics as paranoid. Both Justice Brett Kavanaugh and Justice Amy Coney Barrett, whose defenders insisted that they were agnostic on the question, were in the majority last week. But the charade goes back decades. During his confirmation hearings, Justice Clarence Thomas insisted, “No judge worth his or her salt will prejudge a case,” and then he called Roe “plainly wrong” after less than a year on the bench. Donald Trump, with his characteristic subtlety, simply said that his appointees would overturn Roe, and they’ve given Americans little reason to believe otherwise.

An upcoming case before the Court offers the justices the opportunity to overturn Roe formally, rather than by increment. Even if they do so, I am skeptical that a massive political backlash is necessarily in the offing—the era of social media has amplified the ability of committed propagandists to confuse masses of people about what is happening in their own country. The muddled media reaction to this ruling is a case in point.

Nor does the logical extension of the majority’s decision, that the entire Constitution can be nullified by states outsourcing enforcement of unconstitutional laws to private actors, mean that blue states will prevail if they, say, adopted a similar scheme to curtail gun rights. But the Republican appointees now have a majority even when they lose the vote of Chief Justice John Roberts, whose commitment to managing the Court’s reputation has occasionally placed him on the side of the Democratic-appointed justices. The conservative justices don’t fear the nullification of rights they recognize, because they know they have the power to do whatever they want.

On Thursday, as the Justice Department filed suit to block the law, Attorney General Merrick Garland argued that “this kind of scheme to nullify the Constitution of the United States is one that all Americans—whatever their politics or party—should fear.” Under different circumstances, that would be true. It should be true.

[Laura Bassett: All of those ‘hysterical’ women were right]

But the superficial proceduralism and ideological fanaticism of the Court’s unaccountable majority enable the conservative justices to allow what they want and bar what they don’t, while claiming that some legal technicality has dictated the result.

The Court’s approach is ideal for hiding a radical result behind a veneer of propriety. But there’s no need for the public to be confused about what’s happening here.

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39 days ago
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