Tuesday, February 05, 2019

Is the Rule of Law More Important Than Breathing?

by Neil H. Buchanan

Public debates frequently invoke -- in deeply somber tones meant to convey the utmost seriousness of purpose -- the interests of future generations.  "Our children and grandchildren" are the ultimate political prop, favored because they seem so vulnerable and deserving of our protection.

Despite my disparaging tone, I do not at all disagree that we should think about the interests of people in the future when we make public policies.  My cynicism is driven by the blatant dishonesty of so many people who use future generations to justify their agendas, the most obvious being conservative politicians who claim that "we must not pile debt on the backs" of the kids as an excuse for taking away funding for, say, education or early childhood health care.  (No, that is not a fanciful example.  I wish it were.)

There are, however, honest and selfless reasons to adjust our policies to enhance the interests of future generations -- not just the immediately succeeding generations whom we will know and with whom we must coexist at least for a time, but also for generations much further down the road.  Although the philosophical arguments supporting such a long-term obligation are surprisingly tentative (as I explained in a long law review article some years ago), at least in some policy contexts it is easy to motivate concerns for future generations.

The most obvious interest that all generations share, one would think, is to preserve the environment so that all people can live long and healthy lives.  What in the world was I thinking, then, when I wrote last week that "if push comes to shove, democracy and the rule of law must come" before environmental protection?  Can that possibly make sense?

The answer is yes, although I readily concede that this is counter-intuitive.  Before describing my argument, however, I want to acknowledge and ultimately co-opt a point that Professor Dorf and one of our frequent commenters wrote on the Comments board for my column.  They argued that it is possible -- indeed likely -- that there is no tradeoff at all between democracy and environmentalism.

Just a quick glance at the environmental records of the world's most aggressively anti-democratic regimes -- including the Soviet Union (Chernobyl) and China (air in major cities that is taking on the consistency of mashed potatoes) -- at a minimum demonstrates that autocrats can be criminally uninterested in preserving the environment.  And to the (very limited) extent that these regimes were based on political theory, the glaring anti-environmentalism in Karl Marx's writings suggests that bad environmental policies in nominally Marxist regimes are quite deliberate.

Meanwhile, for all of the failures of the major post-industrial democracies in dealing with climate change, there is plenty of evidence that such countries take environmental matters much more seriously than others do.  Even with Donald Trump's minions gleefully implementing the pro-polluter agenda favored by the Republican Party, we are still doing better than most authoritarian countries.  Germany and other democratic nations are true leaders on the environment.

Moreover, the Republicans do not and never have represented the views of a majority of Americans on these issues.  It is not democracy that is failing us but the undermining of democracy and the rule of law (when, for example, Republicans use extraordinary means to steal a Supreme Court seat and to leave lower court openings unfilled for years under President Obama, only now to be filled by extremist hacks) that is the greatest threat to our environmental future.

In short, I agree fully with the comments suggesting that constitutional democracy goes hand in glove with environmentally enlightened policy making.  If anything, however, that merely strengthens the point that I was making in my column last week, which was not about the long-term (or even medium-term) political environment but about the question of immediate-term political priorities.

As I put it there: "One would hope that the political bandwidth would be sufficient to address climate change even while shoring up our constitutional system, but if push comes to shove, democracy and the rule of law must come first."  In other words, this is one of those "if we had to choose" hypotheticals that one hopes does not reflect the real world.  It would be great if we could do both, and we should try.  But what if we cannot?  What if we do have to choose?

The reason to suspect that we do have to make such a choice, at least implicitly, is that major legislative change is quite difficult.  Passing even a half-measure like the Affordable Care Act effectively took up an entire legislative year or more of the Obama Administration.  The Republican opposition on environmental issues -- hidden behind meaningless slogans like "the war on coal" and "job-killing legislation" -- will be intense, and the larger the number of major issues that Democrats try to push, the easier it will be for Republicans both to confuse people and to paint the Democrats as being out-of-control leftists.

Again, Democrats should definitely try to make progress on as many issues as they can.  Efforts to fight economic inequality, especially through progressive income taxes and expanded wealth taxation, mutually reinforce efforts to undermine the plutocracy and restore democracy, and there are plenty of other ways in which people can try to make progress.

What happens, however, if Democrats put their best efforts into passing environmental legislation while failing to protect constitutional democracy and the rule of law?  What happens, for example, if we get a wonderful renewal and expansion of the Environmental Protection Act that represents genuine progress?  We should all be happy if that can happen, of course, but what then?

In my column last week, I invoked (what little I know about) Singapore to suggest why I am worried about a combination of a public sector that seems to provide a high level of public services across a multitude of dimensions with a government that is known for harsh and arbitrary governance.

If that is an inaccurate description of Singapore, that would be good news.  A more evocative example might be Duloc, the monarchy in the "Shrek" movies that is ruled by Lord Farquaad.  The official song of the realm is:
Welcome to Duloc, such a perfect town
Here we have some rules, let us lay them down
Don't make waves, stay in line
And we'll get along fine
Duloc is a perfect place
Keep your feet off the grass
Shine your shoes, wipe your ... face
Duloc is, Duloc is
Duloc is a perfect place
In other words, the trains run on time in Duloc, and if you have a problem with how things are done, you will be in trouble.

But it is worse than that, of course, because Farquaad can change his mind at any time and make the gleaming streets dirty or dangerous, with no opportunity for the public to say that they want Duloc to remain a perfect place.  So long as that is true, the environment is unsafe.  This, in other words, circles back to the point that I made above in response to the comments on my earlier column.

That means that Democrats need to understand that political reforms are not merely a matter of partisan advantage -- although, given how wildly unpopular Republican policies are, Democrats will certainly benefit at the ballot box when votes are not suppressed, when gerrymandering is banned, and so on.

In addition to those quite self-interested concerns, however, there is the simple fact that constitutional democracy is the only means available to protect any gains that Democrats might achieve legislatively.  Even then, of course, the Republicans are becoming ever more adept at undoing what the voters have decided, including moves after the last two elections to strip incoming Democratic governors and attorneys general of powers in North Carolina, Wisconsin, and Michigan.  That problem, however, is merely further evidence that the rule of law is under assault and needs to be defended from every angle.

Notwithstanding all of this, there must surely be something about environmental policies that push them up the priority list.  It is one thing to say that we need to protect democracy before, say, fixing the health care system or protecting LGBTQ rights.  (And even if one were to make that argument, it would still involve telling people who are suffering various harms -- including death and violence -- that they need to continue to wait.  That is not an argument that anyone would want to have to make face-to-face with any of the affected people.)  It is arguably quite another to say that, if we have to choose between the rule of law and the environment, the environment must wait.

That is an especially strong argument when we return to the intergenerational perspective, because today's young people and the generations yet unborn have to be able to breathe in order to enjoy political and personal (and economic) freedom.  Does that not change the calculus?

In certain extreme circumstances, where the environmental degradation is immediate and severe, and where remediation and adaptation would be impossible, then of course we would necessarily be in a drop-everything-else mode.  If it would take all of our political capital to, say, prevent the release of toxins that would kill millions in short order, then only a monster could say that anything else should be a higher priority.

As bad as our environmental problems are, however, we our fortunate not to find ourselves in that situation.  Many environmental harms are already inevitable, while others are avoidable, depending upon how quickly and aggressively we react.  We would not want to shrug our shoulders and say, "Oh well, we're about to lose x percent of the world's glaciers, so let's party like it's 1999.  It's too late."

On the other hand, we already know that much of our future effort will involve responses to the climate changes that are already irreversible.  Sea walls must be built, structures must be changed to deal with more frequent and severe storms, and so on.  Similarly, people are being forced to take into account matters like skin cancer or respiratory harms in ways that were previously unnecessary, dealing with them as well as possible under increasingly difficult circumstances.

If we are forced to divert our political attention to recapturing our constitutional system from the likes of Donald Trump and Mitch McConnell, environmental harms will intensify and efforts to cope will become more expensive -- and they will fall quite unevenly and unfairly on the most vulnerable among us.  This would be bad, but we are only talking about bad choices here.

The question is whether we would be doing anyone, including future generations, a true service if we were to give them some (inescapably reversible) progress on the environment while failing to give them a functioning constitutional democracy -- which is also reversible.  The answer seems clear, albeit deeply depressing and regrettable.  People living under the rule of law, properly understood, will be better able to deal with all other problems, even (especially!) life-or-death problems like the environment.

13 comments:

David Ricardo said...

This is a provacative post in the sense that it provokes thinking about an issue that one does not usuaully think about.

In this case that issue is the possibility that one could have a partial or complete totalitarian government and still have strong enviornmental protections for future generations. In other words, that the nation has chosen or evolved into the situation that Mr. Buchanan says is the wrong choice to protect future generations.

The fact would seem to be that this future situation is not possible. The reason is that strong environmental regulation, preservation and conservation is the position of the majority. In a functioning democracy with majority rule and minority rights, the environmental policy that maximies protection for future generations would be enacted because it is the position of the majority and does not infrnge on minority rights.

So the choice that Mr. Buchanan presents of with does not seem relevant because lack of environmental protection that preserves the environment for future generations will only occur if constitutional democracy fails and allows a wealthy but small minority to triumph, or in other words the situation that we are evolving towards with current Republican rule.

So yes, we should choose as our top priority the delivery of a functional constitutional democracy to the future which will require substantial reform of our current political environment. If that happens, the environment will be taken care of. If not, then we will have the worst case in Mr. Buchanan's choices, environmental degradation and an absence of democracy.

Walt Tuvell said...

You write: "Public debates frequently invoke -- in deeply somber tones meant to convey the utmost seriousness of purpose -- the interests of future generations."

You're kidding,right?

I've tried communicaing with you many times, about abject Judicial Misconduct, but you're sheepishingly refused to address my points. Why?

C'mon, Michael … Be A Man for once.

— Walt Tuvell, http://JudicialMisconduct.US
— See esp.: http://JudicialMisconduct.US/CaseStudies/WETvIBM#smokinggun

Patrick S. O'Donnell said...

Hardly. One aspect of “alienation” in the Marxist corpus involves alienation from the natural world. See, for example, Moishe Postone’s Time, Labor, and Social Domination: A Reinterpretation of Marx’s Critical Theory (Cambridge University Press, 1993). As for the ecological and environmentalist sensibility in Marx’s work, see Kohei Saito’s Ecosocialism: Capital, Nature, and the Unfinished Critique of Political Economy (Monthly Review Press, 2017).

Patrick S. O'Donnell said...

Here are a number of additional titles inspired by Marx’s writings that suggest the indispensable nature of his work to contemporary environmentalist and ecological worldviews that understand the capitalist character of modern industry and technology, the logic of which, is inherently “anti-environmentalist”:
• Angus, Ian. Facing the Anthropocene: Fossil Capitalism and the Crisis of the Earth System. New York: Monthly Review Press, 2016.
• Benton, Ted, ed. The Greening of Marxism. New York: Guilford Press, 1996.
• Bernstein, Henry. Class Dynamics of Agrarian Change. West Hartford, CT: Kumarian Press, 2010.
• Bernstein, Henry, et al., eds. The Food Question: Profits Versus People. New York: Monthly Review Press, 1990.
• Borgnäs, Kajsa, et al., eds. The Politics of Ecosocialism: Transforming Welfare. New York: Routledge, 2017.
• Burkett, Paul. Marxism and Ecological Economics: Toward a Red and Green Political Economy. Chicago, IL: Haymarket Books, 2009.
• Burkett, Paul. Marx and Nature: A Red and Green Perspective. Chicago, IL: Haymarket Books, 2014.
• Carter, Alan. A Radical Green Political Theory. London: Routledge, 1999.
• Foster, John Bellamy. Marx’s Ecology: Materialism and Nature. New York: Monthly Review Press, 2000.
• Foster, John Bellamy. Ecology against Capitalism. New York: Monthly Review Press, 2002.
• Foster, John Bellamy. The Ecological Revolution. New York: Monthly Review Press, 2009.
• Foster, John Bellamy. “Marxism and Ecology: Common Fonts of a Great Transition,” Monthly Review, 2015 (Vol. 67, No. 7).
• Foster, John Bellamy, Brett Clark, and Richard York. The Ecological Rift: Capitalism’s War on the Earth. New York: Monthly Review Press, 2010.
• Gorz, André. Ecology as Politics. Boston, MA: South End Press, 1980.
• Gorz, André. Capitalism, Socialism, Ecology. London: Verso, 1994.
• Klein, Naomi. This Changes Everything: Capitalism vs. The Climate. New York: Simon & Schuster, 2014.
• Kovel, Joel. The Enemy of Nature: The End of Capitalism or the End of the World? London: Zed Books, 2nd ed., 2007.
• Löwy, Michael. Ecosocialism: A Radical Alternative to Capitalist Catastrophe. Chicago, IL: Haymarket Books, 2015.
• Magdoff, Fred. “A Rational Agriculture is Incompatible with Capitalism,” Monthly Review, March 15, 2015 (Vol. 66, No. 10).
• Magdoff, Fred and Chris Williams. Creating an Ecological Society: Toward a Revolutionary Transformation. New York: Monthly Review Press, 2017.
• Magdoff, Fred, John Bellamy Foster, and Frederick H. Buttel, eds. Hungry for Profit: The Agribusiness Threat to Farmers, Food, and the Environment. New York: Monthly Review Press, 2000.
• Magdoff, Fred and Brian Tokar, eds. Agriculture and Food in Crisis: Conflict, Resistance, and Renewal. New York: Monthly Review Press, 2010.
• Moore, Jason W. Capitalism in the Web of Life: Ecology and the Accumulation of Capital. London: Verso, 2015.
• O’Connor, James. Natural Causes: Essays in Ecological Marxism. New York: Guilford, 1998.
• Patel, Raj. Stuffed and Starved: The Hidden Battle for the World Food System. Brooklyn, NY: Melville House Publishing, 2007.
• Pepper, David. Eco-Socialism: From Deep Ecology to Social Justice. London: Routledge, 1993.
• Ross, Eric B. The Malthus Factor: Poverty, Politics and Population in Capitalist Development. London: Zed Books, 1998.
• Ryle, Martin. Ecology and Socialism. London: Radius/Century Hutchinson, 1988.
• Smith, Neil. Uneven Development: Nature, Capital, and the Production of Space. Athens, GA: University of Georgia Press, 3rd ed., 2008.
• Tokar, Brian. Toward Climate Justice: Perspectives on the Climate Crisis and Social Change. Porsgrunn, Norway: New Compass Press, 2nd ed., 2014.
• Williams, Chris. Ecology and Socialism: Solutions to Capitalist Ecological Crisis. Chicago, IL: Haymarket Books, 2010.

Patrick S. O'Donnell said...

In my first comment, I was responding to this: Re: “the glaring anti-environmentalism in Karl Marx's writings”

Patrick S. O'Donnell said...

Cf.: “In Marx’s analysis, the growing destruction of nature under capitalism is not simply a function of nature having become an object for humanity; rather, it is primarily a result of the sort of object that nature has become. Raw materials and products, according to Marx, are bearers of value in capitalism, in addition to being constituent elements of material wealth. Capital produces material wealth as a means of creating value. Hence, it consumes material wealth not only as the stuff of material wealth but also as a means of fueling its own self-expansion—that is, as a means of effecting the extraction and absorption of as much surplus labor time from the working population as possible. Ever increasing amounts of raw materials must be consumed even though the result is not a corresponding increase in the social form of surplus wealth (surplus value). The relation of humans and nature mediated by the labor process becomes a one-way process of consumption, rather than a cyclical interaction.” — Moishe Postone

“The problem with capital accumulation, then, is not only that it is unbalanced and crisis-ridden, but also that its underlying form of growth [emphasis added] as marked by runaway productivity that neither is controlled by the producers nor functions directly to their benefit. This particular sort of growth is intrinsic to a society based on value; it cannot be explained in terms of misdirected views and false priorities alone. Although the productivist critiques of capitalism have focused only on the possible barriers to economic growth inherent in capital accumulation, it is clear that Marx criticized both the accelerating boundlessness of ‘growth’ under capitalism as well as its crisis-ridden character. Indeed, he demonstrates that these two characteristics should be analyzed as intrinsically related.” — Moishe Postone

Patrick S. O'Donnell said...

Cf.:
“… [A]ny attempt to respond fundamentally, within the framework of capitalist society, to growing environmental destruction by restraining this society’s mode of expansion would probably be ineffective on a long-term basis—not only because of the interests of capitalists or state managers, but because failure to expand surplus value would indeed result in severe economic difficulties with great social costs. In Marx’s analysis, the necessary accumulation of capital and the creation of capitalist society’s wealth are intrinsically related. Moreover, …because labor is determined as a necessary means of individual reproduction in capitalist society, wage laborers remain dependent on capital’s ‘growth,’ even when the consequences of their labor, ecological and otherwise, are detrimental to themselves and others. The tension between the exigencies of the commodity form and ecological requirements becomes more severe as productivity increases and, particularly during economic crises and periods of high unemployment, poses a sever dilemma. The dilemma and the tension in which it is rooted are immanent to capitalism; their ultimate resolution will be hindered so long as value remains the determining form of social wealth. [….] The particular relation between increases in productivity and the expansion of surplus value shapes the underlying trajectory of growth in capitalism. This trajectory cannot be explained adequately in terms of the market and private property, which suggests that, even in their absence, economic growth would necessarily assume the form marked by increases in productivity much greater than the increases in social wealth they effect—as long as social wealth ultimately remains a function of labor time expenditure. Planning in such a situation, however successful or unsuccessful, would signify a conscious response to the compulsions exerted by the alienated form of social relations expressed by value and capital; it would not, however, overcome them.” — Moishe Postone

“There has to be a change in our whole system of production, for technology in the present-day world carries the capitalist mode of production within itself.” — Rudolph Bahro

“More important than the quality or quantity of consumer goods, in my view, is the need for a new consumption pattern geared to the qualitative development of the individual, so that the length of young people’s education, for example, becomes a higher priority than the addition of one more piece of clothing to my wardrobe. [….] [W]e have not yet succeeded in breaking through the horizon of capitalist civilization to reach the vision of a world-wide alternative. It is true that the peoples of the world are at different levels of development, but one has to make use of the concrete possibilities where the civilization is not so overdetermined. [….] The point of the concept of a cultural revolution is that man has to rise above the level of capitalist reproduction process for the satisfaction of life’s necessities. We cannot wait until we are sated with material goods. A level of basic needs has to be defined, and a standard of living may be achieved in underdeveloped countries that may be more rational than our own.” — Rudolph Bahro

Unknown said...

Is neil any relation to James M?

Shag from Brookline said...

Does Joseph Schumpeter's "creative destruction" endorse Marx in some fashion?

Neil H. Buchanan said...

Heavens no!!

Shag from Brookline said...

But doesn't "creative destruction" lead to potential environmental problems, such as what fracking has brought about? I'm not suggesting that Schumpeter's economics endorsed Marx in some fashion. Rather, that technology that results in creative destruction may create environmental problems. I had hoped for a reaction from Patrick

Patrick S. O'Donnell said...

I don't have much of a "reaction" except to note that at least Schumpeter read, and took seriously, Marx's writings on capitalism, so much so that he attempted, with some success, to refute Marx's views on the origin of profits. And Schumpeter appears to share with Marx an equally robust dialectical understanding of capitalism insofar as, for both, "the good and the bad [of capitalism] are inextricably intertwined" (Meghnad Desai). Certainly the innovations that came with industrialization were more environmentally destructive than the skilled crafts and trades they displaced and destroyed. Schumpeter's particular take on "booms and busts" if you will, differed from orthodox liberal economic theory, enchanted it was with market equilibrium (and 'efficient' allocation of resources invariably clashes with the capitalist pursuit of profit ... the latter eventually trumping the former). Schumpeter reinforced the view that "cycles, with their manias, crashes, and panics, are endemic to capitalism." While capitalism remains "the most effective mode of production discovered so far in wealth creation," it "is not a kind or a benevolent system," as its indirect provision of growth and employment, for example, exist alongside ample misery and destruction. While capitalism achieved a remarkable reduction in global poverty since the nineteenth century, poverty remains obdurate, and relative poverty even more so, and of late this has been exacerbated by startling growth in inequality, and it is this latter fact that appears to have direct and deleterious effects on democracy.

Shag from Brookline said...

For some reason Trump in his SOTU speech neglected to mention the growth in inequality, but stressed the need to challenge his perceived threat of socialism (as camera pans on Bernie). Thanks, Patrick.