Creatures of habit

It’s been a while! Seven months. But spontaneous hiatus can be good. Gives time to explore the wilderness, refocus on what’s important. Here are some shots!

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Monarch Mtn

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Great Sand Dunes

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GSD

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GSD

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Flatirons Vista

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Huron Peak–14,009 ft.

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Huron

Even though the blog and I were on a breakthe sun god has been steadfast. The same sun, everyday, overhead everyone. Unifying us throughout history, across continents and species. But the reason we exist is not our reason for being. The sun does not unify us in meaning or purpose. Meaning and purpose are left for us to work out for ourselves. The world is not a mystic unity. Nor is “humanity.” We are an innumerable diversity; a spectacular tangle of world views and social orders that stretch back 7000 years to the origins of civilization in Sumerian Mesopotamia.

Human history is a cyclical narrative of social growth and decline, ecological feedback, and political upheaval. Modernity is hardly different from ancient Sumer or medieval Europe in that narrative—except in scale, intensity, and speed. We haven’t changed that much. Society has been ravaged with conflict, inequity and ecological degradation since Sumerians started farming around 5000 BC and population took off–eventually acquiescing Malthusian feedbacks.

ancient sumer

Ancient Mesopotamia–courtesy of the Ancient History Encyclopedia

Even then socioecological and political stability was hard to come by in the fertile crescent. Sumerian societies were extremely hierarchical and resource wars between city-states were constant. Eventually the Sumerians fell to the Akkadian Empire, the Akkadians then to the Assyrians, and so began the cycle of regime and revolution. Same story through Bronze Age and Hellenistic Greece; the rise and fall of the Roman Empire; the European Dark Ages and rise of the Islam in the Arabian peninsula, North Africa, and South and Eastern Mediterranean; the Renaissance and Enlightenment; the Industrial Revolution; globalization, and now the centralized military-industrial complex of worldwide neoliberalism. Seven millennia later, civilization is still stuck in the same cycles of social turmoil and ecological feedback as Sumer. The cycle of regime and revolution rolls on like a pumpjack. Social inequity and ecological degradation abound.

Except now we do it global.

Income, gender and racial inequity; climate change; ocean acidification and warmingmass extinctions and biodiversity loss; slavery and human trafficking; agroindustrial monocropping & exploitation of developing countries; NPK fertilizer run-off, eutrophication, and the Dead Zone in the Gulf of Mexico; the privatization of water; unprecedented deforestation; sea level rise; the Great Pacific Garbage Patchthe ozone hole over the Southern Hemisphere; the systematic placement of dangerous manufacturing plants in the developing world; CAFO non-point source animal-waste pollution; extended extreme drought in the southwestern US; distributive and participatory environmental injustices related to energy development in the US, Ecuador, Papau New Guinea, China, and elsewhere; indigenous displacement and inequities; and international geopolitical military conflict in Ukraine and the Levant, now merging via Russia a la Syria.

Courtesy of: http://www.chevroninecuador.com/

Ecuadorian Amazon after ChevronTexaco development—courtesy of Chevron In Ecuador

Global capitalism and the centralization of power and wealth in international neoliberal regimes, large States, and multi-national corporations are remarkable. We enjoy technology and material resource wealth in industrialized countries unlike anything the world’s ever seen–but at cost of exacerbating historic social inequities, military conflict, and ecological degradation the enormity of which can’t be overemphasized. This is the so-referred “socioecological crisis.”

Unsustainable and inequitable material resource consumption is central to the socioecological crisis.

Global material resource consumption has increased eight-fold in the past century, skyrocketing after World War II. We surpassed the Earth’s biocapacity (the amount of material resources we can sustainably consume) in the mid-70s, and now, consuming more than 60 billion tons/year, it would take more than 1.6 Earths to sustain our habit. It’s no surprise that large central powers clash over control of the world’s resources.

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Material resource consumption exceeds world biocapacity around 1976–courtesy of The Footprint Network

But we are a great diversity. People aren’t uniformly responsible for unsustainable overconsumption. And really, while we are each responsible for what we consume, inequitable unsustainable overconsumption is a systemic problem–it’s the doing of large central States, multinational corporations, and international regimes all with neoliberal economic motivations. Global capitalism has created material resource inequity unlike any in history.

Consuming more than ever in advanced industrial societies, billions around the world in subsistence economies still struggle to meet their existential needs.

A great few consume too much. Or rather, too many consume too much while too many consume too little. The ecological crisis is fundamentally a social crisis—a crisis of consumption. Really, overconsumption. But not straightforwardly so. It’s an inequitable overconsumption. A stark minority of wealthy people consume far more than is reasonable—than is fair—while far too many are left in want. Most ecological problems are symptomatic of inequitable social organization, irresponsible central governments, multi-national corporate resource privatization, the systemic oppression of coerced overconsumption in advanced industrial societies, and the procedural disenfranchisement of the poorest in the world often most vulnerable to ecological decline—we must, in turn, equitize in order to ecologize society.

Modernization. Industrialization. Centralization. Globalization. Development. Consumption. This has been Western civilization’s mantra since the Enlightenment, our recipe for wellbeing, for the Good Life—the heralds of modernity: that we are destined to overcome the poverties of the human condition through cumulative advances in science, technology, and the liberalization of central government and the global market; that we will be more free and endlessly better off for our complicity in an socioeconomic model of limitless consumption. Through industrial development and the expansion of “free” trade (as governed by a handful of impenetrable central authorities), neoliberals promise the world a secular deliverance from scarcity and oppression. Free markets make for rich, free people. Or so the story goes.

Instead of spectacular emancipation, global capitalism has exacerbated historical oppressions. Race, gender, and income inequities persist worldwide and ecological degradation perennially associated with human habitation has rapidly intensified since the Industrial Revolution. Three centuries after the great social and political liberalization of the Enlightenment, international neoliberal elites have institutionalized a scaled-up version of medieval European feudalism. The Earth’s resources, the land, the Earth itself, have been parceled and purchased—now “owned”—by a handful of powerful States, international governing regimes, and multi-national corporations—exploitation and commoditization their agenda. For most of us—we serfs—we own little and decide even less. But still too many consume too much while too many consume too little.

Courtesy of UN MDG 2013 Report

Courtesy of UN MDG 2013 Report

Paradoxically, despite enabling unprecedented and unsustainable material resource consumption in advanced industrial societies, people of subsistence economies the world over still struggle to meet their non-contingent needs—all amidst accelerating ecological decline. And usually it’s women and the especially impoverished in subsistence economies who shoulder social inequities and ecological degradation.

But that’s not to say advanced industrial societies are internally equitable themselves. Racial, gender, and income inequities persist throughout “modern” countries as well. Too often women are disenfranchised by social and cultural norms laden with sexism. Too often the poor and racial minorities in the developed world bear the ecological risks and harms of industrial land-use without inclusion in the decision to industrialize, informed consent or fair compensation. Local decisions are made instead from far away by iron triangles of feudal lords: corporate executives, purchased career politicians, and a revolving door of pretentious technocrats in opaque bureaucracies—the inevitable dehumanizing machinations of hyper-centralized government and the privatization of the planet.

Perpetual growth, production, consumption, profit, and power are the agenda of the already powerful, not the vast majority of people. Most of us just want to live fulfilling, meaningful lives—to feel a sense of place, purpose, and existential validation—but have been deluded into mistaking material consumption for human wellbeing by those with an interest in selling it to us.

Consumption is not wellbeing. Existential consumption is obviously essential to basic wellbeing, but marginal returns on material consumption quickly diminish and eventually the consumptive cycle becomes futile and vicious. In many cases—especially in advanced industrial societies—we would live better for living with less. Or rather, we could consume less and still manage to be better off. Wellbeing is only a matter of consumption to a point. Once existential needs are met, living well really means resilient and enriching interpersonal and socioecological relationships: living in a community of social and ecological complementarity, free self-expression, fair distribution of resources and burdens, and equitable direct democratic involvement in political and economic decision-making.

But this diverges radically from everything we’ve been told by our neoclassical and neoliberal politico-economic overlords—they who would have we peasants remain complicit in an unsustainable global system of social organization that has left more than a billion people in destitution, disenfranchised all but the super-wealthy and well-positioned elite, and caused the worst ecological decline since the start of the Holocene.

It’s the same old story really. 7000 years after the birth of civilization we’re still spinning in the same circles as the Sumerians. Constant geopolitical conflict, cycles of regime instability, distributive and participatory social inequities, struggle with natural feedbacks to ecological exploitation—not much changes. Like Sisyphus we are bound to forever push our boulder up the mountain. We are creatures of habit.

But that’s not to say we should resign to nihilism. We must imagine Sisyphus happy and take responsibility for our boulder!

Predictable as the human cycle may be from 40,000 feet, we have local and interpersonal opportunities to find meaning and purpose in socioecological relationships on the ground—in connecting with the people and land around us. We might find that we live better and more sustainably for doing so.

And as long as we’re here, so too will be the sun. Ecosystems change, regimes rise and fall, but the sun is always overhead. Uniting us. Unifying us. Throughout history and across continents and species. We are a vast diversity of world views and societies, but the sun we have in common.

Sunset over the Continental Divide seen from Green Mtn

Sunset over the Continental Divide seen from Green Mtn

On identity, relativism, socio-legal equality, teleology, and religion in society: A critique of “In response to: On non-heterosexuality, religious absurdity, heteronormativity, human dignity, love, and freedom”

A couple weeks ago, my fraternity brother and friend, Blake Rustmann authored a blog titled “On Marriage” articulating his disapproval of non-heterosexuality, dissatisfaction with the state of marriage today, and opposition to U.S. District Judge Terrence Kern’s recent decision to declare Oklahoma’s ban of non-heterosexual marriage—Oklahoma Question 711—unconstitutional. In response, I took it upon myself to counter his claims in support of non-heterosexuality and non-heterosexual equality with my own piece, “On non-heterosexuality, religious absurdity, heteronormativity, human dignity, love, and freedom.”

In good form, Rustmann then wrote a response to my response called, “In response to: On non-heterosexuality, religious absurdity, heteronormativity, human dignity, love, and freedom.”

Naturally, the dialectic must continue! Which brings me to my long overdue response to his response to my response.

On the outset I want to express my respect and appreciation for Blake’s conviction, eloquence, attention to detail, and interest in participating in this discussion. I am proud to call him my friend and fraternity brother. He is one of the kindest, most considerate people I know, and, insofar as who he is is the cumulative totality of his conscious actions, qualities, and states, he is among the best of people. He just happens to not be right about the metaphysical, ethical, and socio-legal-normative questions examined here.

To enumerate the contentions at hand and show where we’re going before we get started, our debate centers around at least five fundamental divergences: 1) the nature of the self, action, and responsibility; 2) moral relativism and the goodness of non-heterosexuality; 3) the importance of socio-legal and institutional non-heterosexual equality and equity; 4) the idea of teleology in natural phenomena; and 5) the proper role of religion and religious values in society.

Let’s take each in turn.

1) The nature of the self, action, and responsibility

In his original piece, Rustmann argues that it is coherent and reconciliatory to disapprove of non-heterosexual actions—i.e. non-heterosexuality—while not disapproving of members of the non-heterosexual community themselves. I responded that non-heterosexuality is essential to the identities of non-heterosexuals, and that there is no ethical or socio-legal distinction between the two, especially with regard to the regulatory goals of anti-queer rights advocates. Regulating non-heterosexuality amounts to regulating non-heterosexuals themselves because non-heterosexuality is part of who they are. You can’t ethically and socio-legally condemn non-heterosexuality without simultaneously condemning non-heterosexual people and their identities.

In his response to my response, Rustmann then argues that by eliminating the distinction between non-heterosexuality and non-heterosexual identity I am inappropriately exempting the non-heterosexual community “from a distinction that applies to the rest of us.” Quite the contrary. I propose no such exemption. The inseparability of action and the self is as much an ethical and socio-legal claim as it is a metaphysical one about the very nature of identity, which, as such, implies a universal account of what the self—the I, the ego, etc.—is.

What we do is an essential and inseparable part of who and what we are as conscious beings. I am something of a Sartrean about the self. The self, as it were, is a thing that we as conscious beings create. Identity is an invention—an object—of consciousness. At the bottom of every “thing” is consciousness—but consciousness is not itself a thing. It is no thing. Consciousness creates “things” out in the world by distinguishing them, including the ego. In other words, consciousness carves up the world with distinctions. Without conscious distinction, there is only nameless being. Consciousness is fundamental in that it experiences the world—consciousness experiences being—and constructs subjective reality by making distinctions in order to cope with existence. Without consciousness to create distinctions—to differentiate between experiences of being—there could be no distinct things. Consciousness must distinguish them. Consciousness, then, in experiencing and making distinctions about the world, distinguishes the self and in doing so constructs it—the I—out of conscious qualities, states, and actions through the process of reflection and synthesis.

The self is the synthetic transcendent unification of our experiences—the qualities, states, and actions of consciousness. It is an object of conscious awareness—a composition of reflective consciousness—an amalgamation of consciousness as being and as a being—and one from which who we are is inseparable. Most fundamentally we are conscious, but who we are—our essence—selfhood—comes after the fact. Action is indistinguishable from who we are because action does not exist in being—as does consciousness—but as one aspect of the conscious experience and of the self. Who we are is an ever accumulating and changing gestalt of what we do. The self is, in that way, transcendent. Not transcendental, but transcendent in the sense that it consists of an infinite number of accumulating aspects. Through the cumulative process of experiencing conscious action, qualities and states, conscious reflection upon them, and finally synthesis, we construct the self. Reflective consciousness ties our conscious actions, qualities, and states together to create the essence of who we are—our sense of “I.” The human creates its self. “Existence precedes essence.”

If we take Rustmann’s view of identity, who we are exists in a void with its essence predetermined and unchangeable by our actions, qualities, and states; for him, who we are is independent of what we do. Only by fundamentally separating the two can we condemn one without condemning the other. The unsavory moral consequence of this separation, however, is that it dismantles the means by which responsibility for action is attributable to the actor: “Condemn my action, not me. Who I am is not what I have done.”

But actions are not responsible for themselves, people are. The two are metaphysically and socio-legally indistinct.

To draw a fundamental distinction between action and actor amounts to little more than an impotent metaphysical trick to skirt accountability. People are held responsible for their actions because we are what we do. If I kill someone in cold blood, I am imprisoned for the act of murder and because I am responsible for killing. It has become part of who I am—ethically, socio-legally, and metaphysically. And insofar as we cannot change the past, our experiences—our conscious qualities, states, and actions—are, so long as consciousness persists, forever a part of who we are. We cannot escape responsibility for what we do.

Rustmann then raises an example and a question:

“For instance, my writings are an action. Jordan disapproves of the opinions that I wrote. Does that mean he disapproves of me as a person? I hope not.”

Here he wants to bolster the distinction between his writing and his identity by arguing that by my logic, if his writing is inseparable from his identity, and if I believe his writing or perspective is wrong or bad, then I must also think he is a bad person. I do not. I do think his written perspective on non-heterosexuality is wrong—or at least not right. I also think it is inseparable from his identity. But this is only one of an infinite number of aspects of his ever-accumulating identity, the cumulative gestalt of which is, I believe, overwhelmingly admirable and commendable. One bad branch does not mean the whole tree is bad—the bad branch just needs attention.

2) Moral relativism and the judgment of non-heterosexuality

Rustmann also argues that because I disparage moral absolutism, I “obviously” consider “any type of non-relativistic moral ideology as ‘oppressive, exclusionary, and discriminatory.’” Indeed, I do consider the ethical condemnation and socio-legal institutionalization of non-heterosexual inequality and inequity an oppressive, exclusionary, and discriminatory agenda. But I am not the strict moral relativist the author wants to paint.

Indeed, radical cultural relativism, if taken in principle to be absolute, yields another form of unacceptable universalism. The idea that, universally, no action can be judged or evaluated outside of the context of the actor’s culture is itself as dogmatic and absolutist as the position that all people should be held to any religious or secular universalistic moral system. Relativism if taken to its logical extent entails that relativists must be relativistic about even relativism as a universal ethical framework. Relativism contradicts itself in that way.

I, in contrast, contend that some actions are so offensive to moral sense and conscience that they cannot be tolerated—non-heterosexuality just isn’t one of them. Terrorism, holy wars, racism, genocide, female circumcision, slavery, sexism, torture, genderism, the rapacious destruction of the natural world, and institutionalized socio-legal inequality and disenfranchisement: these are among the set of intolerable ethical impermissibilities. A relativist could not make such a claim.

In large part, though not universally, I think J.S. Mills harm principle is a good guide for determining ethical and regulatory permissibility and tolerability. Actions that are wholly self-regarding—i.e. actions that pertain to and affect only the actor—are generally, if not always, permissible and should not be regulated, while actions that are other-regarding—i.e actions that pertain to or affect people other than the actor—should be regulated insofar as such actions compromise the liberty or right to freedom from harm of others. There is no strict relativism here. By rule of the Harm Principle, non-heterosexuality is self-regarding and therefore ethically permissible, and the freedom to socio-legally express non-heterosexuality should not be infringed.

3) The importance of socio-legal institutional equality and equity

The author then, contradicting himself again, argues that while he supports laws making non-heterosexuality illegal—e.g. the Oklahoma ban on same-sex marriage, and presumably the Defense of Marriage Act (DOMA) and California’s Proposition 8—he doesn’t “think the government should make laws criminalizing homosexual behavior, nor h[as] [he] ever proposed that.” In reality, however, to support Question 711 and similar laws that condemn and criminalize non-heterosexual marriage constitutes exactly such a proposition.

Perhaps the confusion stems from what follows. There are really two senses of condemnation at work here: ethical and legal. We must remember, what is ethical is not necessarily legal, what is legal is not necessarily ethical, what is unethical is not necessarily illegal, and what is illegal is not necessarily unethical. This is the intersection of the theoretical and the practical—the overlap of ethics and policy.

There are two dialectics of relevance here: 1) what is ethical and unethical (the ethical dialectic) and 2) what should be legal and illegal (the legal-normative dialectic).

Often the two are conflated and treated simultaneously, but it is important to clarify within which dialectic we are engaged and when because they are fundamentally separate and have radically different implications—and we ought to avoid making category mistakes. The ethical dialectic and any condemnation it might entail is theoretical condemnation and affects moral conscience, social perception, or perhaps the state of one’s soul, while the legal-normative dialectic and any condemnation it might entail is practical condemnation and affects literal social liberty and freedoms—i.e. imprisonment, monetary penalty, or socio-legal limits on self-determination.

The debate over non-heterosexual equality occupies the realm of the legal-normative dialectic, but often converges with the ethical. Still, it is two different things to argue, as Rustmann wants to do simultaneously, that 1) non-heterosexuality is unethical, and 2) non-heterosexuality should be illegal. To clarify, I contend that non-heterosexuality is neither unethical nor should it be illegal. Rustmann, however, in arguing that non-heterosexuality is both unethical and should be illegal, misses an important distinction. It is tolerable (though I think misguided) to believe non-heterosexuality is unethical. But being unethical (the ethical dialectic) doesn’t automatically entail that it should be illegal (the legal-normative dialectic). It is consistent and socially tolerable to hold that non-heterosexuality is unethical, but still believe that it should not be illegal. But Rustmann goes a step further. For him, not only is non-heterosexuality unethical, it should also be illegal. This, I believe, is inconsistent with the Harm Principle and ultimately explains his internal contradiction discussed before. Theoretical ethical condemnation of non-heterosexuality may be unenlightened, but by itself must be tolerated because theoretical condemnation does not necessarily entail socio-legal condemnation. But Rustmann and anti-queer advocates don’t stop at the theoretical. They push for socio-legal condemnation in the form of laws like Question 711, DOMA, and California’s Proposition 8. That is intolerable.

We cannot forget humanity’s multi-millennial legacy of socio-legally oppressing non-heterosexuals. Western religion has condemned non-heterosexuality almost unilaterally since the Old Testament. In 20th century America, rulings like Bowers v. Hardwick judicially institutionalized the legality of imprisoning non-heterosexuals for expressing their love and having sex. It was not, and probably still is not, uncommon for non-heterosexuals to lose work or appointments just for being non-heterosexual. Just recently President Putin signed a law permitting the arrest of “gay propagandists” and threatened its enforcement on LGBT athletes of the 2014 Sochi Winter Olympics. Not even a week ago India’s judiciary upheld a law criminalizing non-heterosexuality. And gay men are still put to death in the hyper-religious Middle East for no more than being gay. These are not theories. These are the disturbing realities.

4) Teleology disguised as science

In his response to my response, Rustmann also draws several repugnant comparisons between non-heterosexuality and a shocking list of degenerative diseases—in particular: alcoholism, bipolar disorder, and schizophrenia. Somehow, it seems to him that ethically and socio-legally condemning non-heterosexuality is equivalent to objecting to an alcoholic friend having another drink. This comparison is asinine.

Comparing non-heterosexuality to alcoholism, bipolar disorder, or schizophrenia warrants a dramatic face-palm. It is both an equivocation and a category mistake. Alcoholism, bipolar disorder, and schizophrenia are degenerative diseases that cause physiochemical and societal problems if allowed to persist unchecked. To compare them as if they’re equivalent is outrageous. Non-heterosexuality is not a disease, it is not a problem for non-heterosexual individuals, and it does not cause problems for society. Period. Nothing else ought need be said about this point to demonstrate its absurdity.

It is clear that Rustmann and I operate from different values systems. By his judgment, non-heterosexuality is bad, wrong, “disordered,” and contrary to human dignity. For reasons explained below, I obviously disagree.

My disagreement raises a fundamental question: From where does his judgment that non-heterosexuality is bad, wrong, disordered, and contrary to human dignity arise? The answer is two-fold: 1) Judeo-Christian values and ethics, and 2) the conflation of teleology and evolutionary function.

The author purports that his condemnation of non-heterosexuality is supported by the dictates of biology. But his reasoning relies upon a series of unsound scientific premises and an implicit assumption and furtive imposition of religious values. Let’s move through each one individually:

Premise 1: “Biology dictates that ‘natural’ sex occurs between a man and a woman.”

Counter-argument 1:Here he has reversed the logical relationship between “biology” and what is “natural.” Put correctly, everything within the purview of biology is natural, but not everything that is natural is within the purview of biology. In other words, to appeal to biology is to automatically admit and assume that the phenomenon in question—non-heterosexuality—is natural. If he wants to claim that non-heterosexuality is unnatural, he contradicts himself by appealing to biology. Biology does not distinguish between “natural” and “unnatural” sex—only kinds of sex, all of which is inherently “natural” by virtue of being within the realm of biological science.

Premise 2: Non-reproductive sex is “disordered.”

Counter-argument 2: Rustmann first defines “a disorder” as “when the purpose of [a] natural act is interrupted.” This definition is immediately problematic insofar as teleology—the idea of purpose—is inappropriate for discussing or explaining natural phenomena. But we’ll return to this point about teleology when I address Premise 3 below. More to the point: the claim that non-reproductive sex is “disordered” is an Augustinian distinction, not a biological one. Biology makes no such distinction. For biologists, non-reproductive sex is not “disordered.” Non-reproductive sex is just non-reproductive sex. Rustmann’s push to categorize non-reproductive as “disordered” vaults clear over Hume’s fact/value distinction without even realizing what it’s done. What of recreational or pleasure-oriented sex, or sex between the infertile or the elderly? Are these “disordered” as well? “Disordered” implies normative and teleological judgment that biologists, in aiming to remain objective, strictly avoid. In reality, the claim that non-reproductive sex is “disordered” is religious judgment, not biological.

It’s also worth noting that the author then makes another cringe-worthy comparison—this time comparing non-heterosexuality to incest and pedophilia. The very notion of such a comparison is just as inane as his prior juxtapositions to alcoholism, bipolar disorder, schizophrenia, and reminisces of Rick Santorum’s appalling claim that homosexuality is akin to bestiality. Absolutely ludicrous. Let’s move on.

Premise 3: There is only one “purpose of sex” and the only purpose of sex is procreation.

Counter-argument 3: For Rustmann, sex is reserved exclusively for reproduction. Procreation is the only “biological purpose of sex.” First of all, it’s clear that here he has conflated the ideas of purpose and function. Evolutionary theory—to which he subsequently appeals—has fundamentally removed the scholastic basis for teleological speculation about natural phenomena. Natural phenomena—being—do not have natural “final causes” or purpose, but function. Purpose is our perception of function. The two shouldn’t be confused. Purpose doesn’t exist out in the world, only function does. Purpose is a human idea applied to natural phenomena.

So we should talk about the functions of sex, not its purpose—as if there could ever be only one. Sex has many functions–reproduction among them—which include the expression of love or lust; the intensification of emotional, physical and spiritual connection; art; pleasure; etc. Non-reproductive sex does not “side step the primary purpose of sex” because there is no purpose of sex, there is only function, and reproduction is only one function of sex.

Nevertheless, the author continues to argue that non-heterosexuality is contrary to evolutionary function and thus is “disordered.” This is an incorrect and narrow reading of evolutionary function. First of all, that non-heterosexual genotypes exist in perpetuity within in our species all but necessarily entails that non-heterosexuality has been naturally selected for. The germane question is not “What is the purpose of sexuality?” as Rustmann puts it, but “What is the function of non-heterosexuality?”

Non-heterosexuality may have several evolutionary functions. First, it seems relevant to reiterate a basic tenant of ecology—diversity improves resilience. In other words, diversity in sexuality may ultimately make humanity as a species more resilient. On one hand, non-heterosexuality stimulates non-heterosexual social bonds that strengthen communities. On the other hand, as Josh Barrow points out, non-heterosexuals may serve a kin-selection evolutionary function by helping to raise the offspring of other family members—making it more likely that other family members will have children and that more children will survive—or adopted children. Finally, non-heterosexuality may be a natural evolutionary response to human over-population—the ultimate driver of the modern ecological crisis—which constitutes an undeniable threat to the perpetuation and survival of our species.

If the author’s concern truly lies in the wellbeing of children, then his interests are actually in direct alignment with non-heterosexuality and the biological fitness improvements—e.g. contributions to child-rearing, population stabilization—they entail for individuals and our species. In other words, evolutionary theory supports exactly the opposite of the author’s interpretation.

We ought do away with the discriminatory idea of non-heterosexuality as biologically “disordered” altogether. If anything, non-heterosexuality is an astonishing and awe-striking example of nature’s profound capacity to re-order itself as is necessary to maintain stability and homeostasis within its biological systems when chronic perturbations (like human over-population and subsequent anthropogenic pressures on the Earth systems) occur. Heterosexuality and non-heterosexuality may actually be best understood as akin to the black and white daisies of James Lovelock’s Daisyworld, existing in an interdependent and reciprocating dynamic stability.

Rustmann claims that his belief that non-heterosexuality is “disordered” is rooted in science, not theology. But this is an attempt to disguise religious values as scientific. His reading of science is undergirded by blatantly religious values and teleological dogmatism contrary to Darwin’s evolution. In short, his interpretation of science is incorrect. Moreover, he altogether ignores the ought/is distinction, imports religious values onto flawed scientific reading, and conflates the ethical dialectic and the legal-normative dialectics insofar as he claims his objection is an ethical one but then argues that society ought to institutionalize anti-non-heterosexual religious values as law (OK Q711, DOMA, etc.).

5) Religion and religious values in society

Within society, recall, there are—among others—two distinct dialectics of relevance here: the ethical and the legal-normative. Religious values are usually permissible in the ethical dialectic—and moreover, I should be clear, I have no inherent objection to faith in religious mythology. Faith in religious mythology is, after all, an especially resilient vehicle for values and ethics that make life feel meaningful and worth living—perhaps even more so than faith in secular mythology.

But in the legal-normative dialectic of the United States—i.e. what should be legal or illegal in the US—we cannot simply ignore Constitutional Law and permit the entrance of religious value. By the First Amendment, it is unconstitutional to establish religious values as law. Freedom of religion does not mean the freedom to force your religion on others. Legislators “shall make no law respecting an establishment of religion.” Banning same-sex marriage on the basis of religious values precisely constitutes an unconstitutional establishment of religion. If marriage is an exclusively Judeo-Christian heterosexual institution, then marriage should not be a legal institution, but a religious one, about which, again, the Constitution forbids the legislative establishment.

The author also says he would be fine with civil unions or something of the sort for non-heterosexual couples. But civil unions as a solution to the marriage discrimination problem don’t go far enough, and are, moreover, unconstitutional under the Equal Protection Clause. Ultimately, civil unions for non-heterosexuals are a mere façade of socio-legal equality. Civil unions to side-step the marriage discrimination problem is no better than a revitalization of Separate But Equal doctrine pertaining to non-heterosexuals. And just as Separate But Equal was wrong regarding race, so too is it wrong regarding sexuality and genderism. If Rustmann wants to reserve “marriage” for heterosexuals, then, legally, as far as the government is concerned, every marriage should be no more than civil union and should be equally available to all adult citizens of any gender or sexuality.

In yet another strange and furrowing turn of argument, the author also contends that non-heterosexuals already are socio-legally equal and that “the definition of marriage should not be changed […] to any other definition.”

“LGBT people do have socio-legal equality,” he argues. “They are perfectly welcome to marry just like any other adult person. However, marriage requires one man and one woman. If they don’t want to be joined with a person of the opposite gender, then they should not get married.”

This sort of exclusionary criterion for legal matrimony is obviously not equal. Marriage equality does not mean the freedom to join with a person of only the opposite gender. It means the freedom to join with a person of your choosing. Limiting that choice to a person of the opposite gender is a blatant, harsh, arbitrary, and capricious limitation of that freedom. Moreover, insofar as the author opposes changing the definition of marriage, laws like Oklahoma’s Question 711, DOMA, and California’s Proposition 8 do exactly that; they change the definition of marriage to explicitly exclude non-heterosexual couples. This is not freedom, and it is not equal.

Freedom is a fundamental value about which Rustmann and I likely both agree. In other words, freedom–the conservation of personal liberty, autonomy, and self-determination—is important. But for him, freedom comes with an asterisk. Freedom with regard to marriage is reserved for heterosexuals—even more so, fertile heterosexuals willing to “on-record declare that they are open to having children.” Excluding non-heterosexuals, the infertile, the elderly, or those uninterested in procreation from the freedom to marry who they love if they so choose is outright antithetical to freedom. It seems all but obvious that, for freedom’s sake, it is important that allies of the non-heterosexual community continue to contest pieces of legislation like Question 711 and those who support them.

Discourse as optimism

As enumerated toward the top, this debate centers on several fundamental divergences about perennial philosophical questions. By definition, perennial philosophical questions are irresolvable in an absolute sense. But discourse is itself reason to be optimistic. We ought regularly and openly subject our views to the scrutiny of others. Only when we can amiably, and with mutual respect, engage in the process of open public dialogue will we be able to ameliorate the tensions and problems of society. Indeed, this responsibility falls to all generations, but I am especially confident that the present rising generation—we Millennials who will soon ascend to seats of power in the world and control, to what extent we the can, the trajectory of humanity—will be able to make a difference. Of course the extent to which we can control the human condition is quite limited, but some social and political aspects of human life are within our purview. And I rest with a hopeful assurance that we as people, if ultimately unified by being human together, are open-minded, thoughtful, discursive, respectful, tolerant, and politically engaged enough to respect and preserve the socio-legal freedom and equality of all people—not despite, but for their differences.

Shutdown the meltdown

Who cares about Antarctica? Between failed marine reserves, rogue icebergs, the ratcheting down of federal science funding, and research stalled by the US government shutdown in October, the Antarctic meltdown is something of a hard case. On one hand, the international delegation of the Commission for the Conservation of Antarctic Living Marine Resources (CCALMR) has been rumbling about the creation of a massive ocean sanctuary—what would be the largest in the world—which seems like progress. At the very least, the various reserve proposals by the US, New Zealand, Australia, France and others in the EU indicate rising awareness and political salience about “the last intact ocean ecosystem on Earth.” I suppose there’s the chance that underlying motives for its creation could be geopolitical or economic—a move to thwart anti-sovereignty claims or the fishery interests of other nations and bulwark their own competitiveness, but something tells me there’s genuine concern about the ecological pressures and risks to biodiversity at the heart of the marine reserve ideas.

Cape Denison--photo courtesy of Pauline Askin/Reuters

Cape Denison–photo courtesy of Pauline Askin/Reuters

On the other hand, the CCALMR has also failed to create the sanctuary three times in the past year because the commission requires unanimity in decision-making. In particular, Russia, Ukraine, (and now China) have repeatedly blocked the proposals to protect their own fishing interests in the Southern Ocean, presented under the guise of concern for legal technicality. Disappointing, to be sure. But it shows that Antarctica is more than just a blip on the political radar, even if the proposed reserve hasn’t managed to pass.

Speaking of radar—we may recall that NASA discovered an 18 mile crack in the Pine Island Glacier in 2011. Upon its discovery, scientists speculated that eventually the crack might cause a glacier to break off. In July of this year, the prediction came true. Images from the TerraSAR-X satellite of the German Space Agency reported that, indeed, a city-sized iceberg had separated from the Pine Island Glacier. At the time, however, it was basically being kept in place by other sea ice.

Pine Island Crack--Image courtesy of NASA/GSFC/METI/ERSDAC/JAROS, and U.S./Japan ASTER Science Team

Pine Island Crack–Image courtesy of NASA/GSFC/METI/ERSDAC/JAROS, and U.S./Japan ASTER Science Team

But not anymore.

Similar in size to Manhattan, the separated iceberg has made its way out of its icy entrapments and is floating out to sea. Sounds benign enough, but it’s actually a problem—on top of the disposition shared by many that the slow degradation of the West Antarctic Ice Sheet is itself lamentable. The problem at hand, however, is an instrumental one. The iceberg is headed for the space between Antarctica and Cape Horn on the southern-most tip of Chile, which is an especially trafficked international shipping lane.

Pine Island Rift--image courtesy of NASA

CLICK ME FOR ANIMATION! Pine Island Rift–GIF courtesy of the German Aerospace Center

The iceberg could stick around for more than a year before it dissipates, and if it does move through Drake’s Passage and end up in the shipping lane it could cause some serious obstructions to trade and transportation—or at least pose complications. It’s unclear what exactly could be done about the new glaciers other than circumvention, so perhaps the situation is better framed as a condition rather than a problem—but at least it’s a temporary one at that. Nevertheless, now that Antarctica and Antarctic issues are verging into the realm of economics and international trade its relative political importance may elevate. To that effect, a team of UK researchers recently received and emergency grant to track and study the iceberg’s movement.

Drake's Passage--image courtesy of www.worldatlas.com

Drake’s Passage–image courtesy of http://www.worldatlas.com

Which brings me to another point—NSF funding, the government shutdown, and Antarctic research, which are especially relevant here at CU-Boulder since we have a legacy and prospect of research in Antarctica.

I talked about the state of federal funding for academic research at some length in Congress’ assault on knowledge. In essence, folks like James Inhofe and Lamar Smith are doing their best to restructure and minimize the federal budget for research and allocation priorities. Unless research strictly pertains to national security or will yield demonstrable economic benefit, apparently, by their account, it’s not worth funding. As far as Antarctic research goes, the economic benefits aren’t necessarily obvious, nor does it straightforwardly improve national security—which of course erroneously assumes that better understanding complex ecosystems and ubiquitous issues like the history of atmospheric carbon dioxide concentrations through ice cores and other paleontological records through programs like the WISSARD drilling project don’t strengthen national security, make us better off through new knowledge, or help us figure out what sorts of adaption measures will be necessary as the climate changes. Hogwash. Be that as it may, by new funding standards, it seems likely that funding for Antarctic research may become harder to come by.

Image courtesy of www.theguardian.com

Image courtesy of http://www.theguardian.com

What’s more, the partial government shutdown in October didn’t help. Of course the federal shutdown didn’t help anything, but—aside from national parks and furloughed federal workers—of particular relevance here, the budgetary holds ups stifled funding for the US Antarctic Program and its three field stations, to which a team of CU researchers had been planning to travel in late October (the beginning of summer in Antarctica). Perhaps not surprisingly, the research timetable is quite sensitive and so because of the shutdown and lingering budgetary priority questions, much of the Antarctic research planned for this year has been deferred. In a “Dear Colleague” letter, the NSF informed hopeful researchers from CU Boulder, UC Santa Cruz, UT Austin, and other institutions alike poised and expecting to head south, that, as they feared, they’d have to wait to embark on their icy adventures. As the NYT put it, the ripples of the government shutdown made it all the way to the end of the Earth. Well done, obstinate, uncompromising, and unreasonable members of Congress who shall here remain nameless—well done. In any case, we should all keep an eye on this. And we should all care about Antarctica.

The conservative confusion

I am conservative. But I am not a Republican. Why? Because a large faction of today’s GOP is desperately confused about what being conservative really means.

What does being “conservative” mean?

In fact, much of the United States seems confused about what it means to be “conservative.” The confusion is understandable, but the result is a frightening Orwellian conflation and dramatic oversimplification of rhetoric that seriously compromises the integrity of our political system.

Most presume that being conservative means being Republican. Likewise it’s often presumed being an environmentalist means being “liberal” and thus a Democrat. But these presumptions are erroneous and egregious.

Not all conservatives are Republican, and certainly not all Republicans are conservative. The religious fundamentalist, anti-environment, anti-gay, anti-science, anti-women, anti-healthcare agendas of much of today’s radical Republican Party are actually hyper-liberal in some important ways.

On the other hand, the secular, pro-environment, pro-gay, pro-science, pro-women, pro-healthcare platforms of many Democrats are ultimately rather conservative.

Being conservative, in a pure sense, means believing in conservation on two main fronts: 1) the conservation of individual liberties and self-determination and 2) the conservation of natural, human, and financial resources. The former amounts to protecting individual freedoms from government overreach—i.e. small government—while the latter pertains to minimizing the financial, environmental, human health, and international risks we take as a society.

It’s also important to mention that being conservative also means being in favor of free markets in a relative sense—but this idea is ultimately subsumed by the principle of conserving resources. And it’s only in a relative sense because no one takes the idea of an absolutely free market seriously anymore. Social Security, Medicare, Medicaid, the Anti-Trust Act, worker’s rights, emergency services like Police and Fire Departments, the Military, and the regulation of the financial industry are staples of our prosperous modern society—and are, in principle, socialist institutions. But no one questions their importance or goodness anymore.

Being in favor of “free markets” really means being in favor of efficiency—which in essence means conserving resources. The laws of supply and demand that govern “the free market” naturally produce efficient outcomes, otherwise known as the equilibrium price at which sellers should sell their goods and buyers should buy them. Prices represent real resources, so buying and selling goods at market equilibrium means conserving resources. Clearly this is conservative—but it’s not necessarily Republican.

The idea that free markets will produce efficient outcomes assumes that prices represent true cost, but we know that in many instances today this isn’t the case. Costs to the nonhuman environment and human psychology are often omitted from pricing schemes, as are costs to future generations and distant populations. True cost is also often obfuscated by government subsidization.

Fossil fuels, for example, would be vastly more expensive if costs to future generations, costs to the nonhuman environment, and costs to distant populations were taken into account when determining price—and government subsidies help keep the wool pulled over our eyes by further reducing the direct costs of fossil fuels for consumers. If the price of fossil fuels represented true cost, renewables would be far more competitive than they are, and in turn we’d be consuming far fewer fossil fuels to sustain our energy-intensive way of life. In other words, we’d be conserving more of our fossil fuel resources and conserving environmental quality. Insofar as Republicans support the continued subsidization of fossil fuels, they are certainly not being conservative about the conservation of resources or the environment. It takes a profound level of cognitive dissonance or hypocrisy to call oneself “conservative” and then simultaneously support federal subsidies for one of the most profitable industries in human history. Democrats who support subsidizing fossil fuels aren’t being conservative either, but Democrats generally don’t campaign on conservative rhetoric.

Hyper-liberal Republicans

Somehow, baffling as it may be, Republicans today have convinced the country that being reckless with the environment, opposing women’s and gay rights for religious reasons, taking enormous financial risks (e.g.—paying for wars with credit, forcing a federal budgetary shutdown, deregulating the financial industry, etc.), cutting funding for scientific research while increasing the government’s regulation of scientists, and precluding the provision of health insurance for a huge segment of the workforce are conservative ideas. They couldn’t be more wrong.

Being “conservative” in its historical and etymological sense is more akin to being precautionary or risk-averse about whatever issue is at hand, e.g. – the limitation of individual freedoms by the government, environmental quality and protection, technoscientific progress, etc., than it is to being Republican. In fact, many of today’s Republicans are actually hyper-liberal when it comes to some important issues.

Environmental conservation is conservative

Environmental conservation is a fundamentally conservative agenda. Being conservative about the environment means conserving natural resources and minimizing the environmental risks we take as a society by taking precautionary measures. Preserving biodiversity and natural land conditions makes ecosystems more resilient to changes in the environment—e.g. climate change—which transitively makes human civilizations that are part of those ecosystems also more resilient. Environmental protection is both conservative and in our best interest insofar as conserving environmental quality is both good for us and good in itself.

Sustainability, renewable energy resources, and wilderness conservation are all fundamentally conservative positions in that they conserve natural resources and the state of the natural world. Despite the fact that the EPA and several hallmark environmental statues were passed by Republicans, environmental protection couldn’t be further from most Republican platforms today. The problem is that many of today’s Republicans talk as if being pro-environment is synonymous with being anti-business or anti-economy.

In reality, even command-and-control environmental regulation incentivizes innovation and ultimately conserves the very natural resources upon which business builds itself. Without natural resources, business would have nothing to work from. Moreover, the need today for environmental limitations on corporate freedom (i.e.—environmental rights) is just as obvious as was the need for labor rights during the Gilded Age and early 20th century. Certain human and environmental abuses and exploitations by unregulated industry are simply unacceptable by any modern standard of justice.

Opposing women’s and gay rights is not conservative

Republicans generally oppose same-sex marriage and abortion rights for religious reasons. But while these oppositions may be traditional, they certainly aren’t conservative. Setting aside the fact that legislating religious values is illegal and unconstitutional in this country, regulating away people’s freedoms—whether that be the freedom to marry who you love regardless of gender or the freedom to control your own reproduction—is big government by definition.

When it comes to issues as private as what happens in our bedrooms and within our uteri, Republicans today actually advocate flagrant government invasions of personal privacy and freedom—and think they can get away with calling themselves “conservative.” In fact, they’re just the opposite. Whether for religious or secular reasons, the limitation of individual liberty by the government is a liberal agenda.

Religious dogma aside—when it comes to abortion rights, being conservative actually means conserving women’s rights to control their own bodies, putting self-determination over and above the government’s right to dictate women’s lives. Abortion is taking a life (if life doesn’t begin at conception, then when?)—but it should be legal and it should be rare.

Likewise, same-sex marriage is actually both conservative and traditional. It may not be part of the Christian tradition, but Christianity is not the only relevant tradition pertaining to marriage. Legalizing same-sex marriage means conserving and protecting the rights of all citizens to deviate from heteronormative sexuality from big government. Moreover, same-sex marriages represent monogamy—a traditional conservative value. Banning same-sex marriage, on the other hand, as many Republicans have sought and some succeeded, is an obvious big government move.

Health insurance is conservative

While the Affordable Care Act may create a government mandate, its purpose is ultimately a conservative one. Insurance is a fundamentally precautionary endeavor. Insofar as being conservative means being precautionary about risks—human health and economic alike—taking public action to protect the health of our citizens and thus our workforce works on both fronts. At the end of the day, national health insurance means safeguarding both the health of our citizens and the strength of our economy (considering how much labor is lost to otherwise treatable illness).

Moreover, the argument that we “shouldn’t have to pay for someone else’s healthcare” doesn’t hold water. By buying into any insurance plan—public or private—we are, by definition, paying the bills of our provider’s other patrons whenever we aren’t using our insurance. What’s more, hospitals are already legally required to treat emergency room patients regardless of their financial status, and when those who can’t pay receive treatment, the costs are distributed to the rest of us. If anything, we’ll conserve both human health and economic resources by making sure that everyone has health insurance. Health insurance is conservative. And let’s not forget that we are all legally obligated to have car insurance and no one thinks that’s a bad thing.

Being anti-science, anti-education is not conservative

Finally—and I talked about this at some length in Congress’ assault on knowledge—if being conservative means reducing financial risks, then it’s also safe to say that being conservative about how we invest our nation’s money should mean making safe investments. In contrast, the anti-science anti-education positions personified by climate science-denying, NSF-defunding zealots like James Inhofe and Lamar Smith are polar opposites of safe-investment logic.

Scientific research and public education are among the safest investments society can make. The benefits of an educated workforce are clear. Educated workers are likely to be more efficient, more innovative, more industrious, more entrepreneurial, and more promotable. Likewise, the returns on investment in scientific research are often immeasurable and unforeseeable. Scientific progress is piecemeal, serendipitous, experimental, and unpredictable. While scientific progress can be twisted to serve evil purposes, the positive social gains of scientific R&D are all too obvious. Yet Republicans today seem bent on imposing dramatic cuts to science and education funding, while simultaneously increasing regulatory strictures on scientists and educators; the Inhofe-Smith agenda smacks of big government and flies in the face of safe-investment logic.

Reclaiming conservativism

Many Republicans today are not conservative. In many cases, the Republican Party seems to be a strange blend of hyper-liberal value-driven anti-science religious fundamentalism (“let’s legislate away women’s and gay rights, defund and over-regulate the NSF, and deny the simple physics of climate science!”) and radical xenophobic neoliberal anti-environment social Darwinism (“let’s disenfranchise the poor, minorities, and immigrants—who cares if they get sick?—and do away with as many environmental protections as possible!”). In no way are these conservative positions. And in no way should many of today’s Republicans be allowed to call themselves conservative. If anything, the secular, pro-environment, pro-gay, pro-women, pro-healthcare, pro-science politicians out there should reclaim the word “conservative” for true conservatives and true conservativism. Let’s get it together, humans.

Our new hydroverlords

The image below is one of four precipitation models published by the National Center for Atmospheric Research (NCAR) that together forecast extreme global drought less than 50 years from now as a consequence of climate change. What follows illustrates predicted global precipitation levels in 2060-2069 assuming a moderate greenhouse gas emissions scenario as defined by the International Panel on Climate Change. Moderate.

Climate prediction map 2060-2069

Precipitation Model with Climate Change: 2060-2069

Take a moment to let all the purple, red, and yellow sink in. These are Dust Bowl conditions and worse. Take another moment.

It is difficult to emphasize enough the gravity of this predicted drought. We should all keep the above image in mind when we consider the value of water. Water is fundamental to the existence of life as we know it. Not just human beings. All life on Earth. For obvious utilitarian and deontological reasons, by the land ethic and the difference principle, by the precautionary and proactionary principles, and by our natural moral sense, water is of the highest non-arbitrary value and it is our responsibility as constituents of the human world and of the Earth itself—if we even entertain such a distinction—to do everything in our power to prevent and prepare for this possibility.

Pause to consider what it would mean for governance, for geopolitics, for the world if we fail to curb climate change beyond this moderate GHG emissions path and simultaneously 1) fail to implement and enforce the universal human right to water as recognized by 122 countries of the UN in 2010, and/or 2) consent to the privatization of water resources by multi-national corporations. I, for one, would not welcome our new hydroverlords.

What’s worse, the map shown above is only the third of four models. The fourth model extends from 2090-2099. Brace yourself for the purple: Precipitation Model with Climate Change: 2090-2099

Water resource management, conservation, and preservation will likely fall into their own compartmentalized regime complexes—as discussed by Keohane and Victor—fragmented from other initiatives focused on mitigating and adapting to the various impacts of climate change. According to Keohane and Victor, there’s reason to be optimistic about the capacities of this regime structure. But simply adapting to new conditions of water scarcity equates to treating the symptom rather than the disease. While adaptation is absolutely necessary, we must simultaneously confront climate change at its source: human greenhouse gas emissions (carbon dioxide, methane, nitrous oxide, etc.) and the several positive feedback cycles that global warming entails.

Atmospheric carbon dioxide concentrations alone are currently around 397 parts per million (ppm), which essentially guarantees an increase in average global temperatures of ~4 degrees Fahrenheit (~2 degrees Celsius). What’s more, unless we reduce GHG emissions by ~80%, we can expect the increase in average global temperature to be even more dramatic.

Confronting climate change means one of two things (and maybe both, but probably not—the former would render the latter largely unnecessary and the latter would likely preclude the former). We must reduce greenhouse gas emissions through 1) an immediate significant reduction in energy consumption or 2) a techno-scientific revolution in renewable energy, energy storage, energy transmission, transportation, agriculture, infrastructure, manufacturing, and architecture.

Coupling either approach with reforestation and afforestation projects would be a good idea too, especially considering the Brazilian government’s recent report that deforestation in the Amazon has actually gotten worse since May of 2012.

In all likelihood, the future holds an increase in energy consumption, not a decrease, so we must—at some level—prepare ourselves to rely on faith in Julian Simon’s infinite resource of the human mind to spark the large-scale techno-scientific advances that the climatic consequences of our industrial behavior demand. We must have faith in progress, despite the paradox therein. A daunting task, to be sure, but we have little choice as we have collectively agreed, both implicitly and explicitly, that the Good Life is an energy intensive one. The climate challenge is upon us. If we are to progress, we must progress toward sustainability—and hopefully to a future with more water than NCAR has predicted. Let’s get it together, humans.

jmk

Are we lobsters?

I am not a Constitutional law expert, but I have had a fair amount of legal education between my BA in Government and MS in Environmental Policy—and I’m sure I’ll receive more as I move through my PhD. For a while I’ve been reluctant to even mention the recent espionage and whistle-blowing controversies surrounding the Patriot Act, the Foreign Intelligence Surveillance Act and its 2008 amendments, NSA, PRISM, FBI, DOJ, Bradley Manning, and Edward Snowden because of, let’s say, ethical questions I had yet to flush out for myself. But in light of recent events I feel I can keep my silence no longer.

The Constitution of the United States of America is, I believe, among the most successful manifestations of secular liberal Enlightenment political philosophy. Obviously its amendments have had some good work done to them since the 18th century (slavery, suffrage, prohibition’s repeal, presidential term limits, etc.)—but why has it been so “successful”?

Loosely, because the Constitution represents one of those rare cases where what is legal also happens to be what is moral. Far too often morality appears smothered by the technicalities of law, but our Constitution is an exception to the common and unfortunate division between legality and morality—the gap between principle and policy.

We are a people of principle. Many codified as amendments, many as implicit social obligations. Among our implicit principles “is the first responsibility of every citizen to question authority.” Franklin’s adage is especially true today concerning the state of the 4th, 5th, and 8th amendments of the Bill of Rights.

The 4th amendment protects us from unreasonable searches and seizures by the government. Generally, for the government to extend its hand into the privacy of a private citizen entails a rather involved process of obtaining a warrant via probable cause for said search or seizure. But in the wake of FISA, the Patriot Act, warrantless wiretapping, and domestic communications surveillance, this precept is no longer seems so straightforward.

However, according to an opinion handed down by the Foreign Intelligence Surveillance Court, such domestic surveillance activity under FISA is unconstitutional, re: the Fourth Amendment. The DOJ tried to keep the ruling under wraps, but a DC court has now ordered the pertinent FISC opinions to be released under the Freedom of Information Act. DOJ fought it, but then reluctantly agreed to release redacted versions of the documents. So we’ll see what those look like.

Driving this point home even further, former White House Green Jobs Advisor Van Jones recently affirmed the existence of domestic spying programs despite the President’s reassurances on the Tonight Show that no such programs are in place. Jones says we should be trying “balance” domestic spying rather than “pretend like there’s no balancing to be done.” Presumably, the “balance” he’s referring to is one between the Executive’s prerogative to spy on Americans and our Constitutional right to privacy.

Before moving on to the federal government’s abuse of the 8th amendment, I’d like to mention a potential bright spot pertaining to the 4th amendment. A federal judge, Judge Shria Scheindlin declared New York City’s “stop-and-frisk” law to be a practice of unconstitutional unreasonable search and seizure. Scheindlin also brought the 14th amendment’s equal protection clause into her opinion because stop-and-frisk has been notorious for indirect racial profiling. However, the Judge only ordered that stop-and-frisk be reformed, not abolished altogether. If, for instance, police are equipped with body-worn cameras to deter wrongful conduct on their part then the law could be permissible. In any case, Bloomberg will certainly take Scheindlin’s judgment to the appellate court, so again, we’ll see what that ends up looking like.

Next, the 8th amendment—our protection from cruel and unusual punishment—is also taking fire. Bradley Manning wasn’t convicted of aiding the enemy, so he escaped the death penalty, but before his trial ever took place he was subjected to morally questionable “suicide watch” treatment. Manning was regularly stripped of his clothing, vision, and left in the dark while imprisoned before he was ever convicted of anything. It is an unnerving reality, to say the least, if authorities are allowed to treat pre-trial prisoners, military or not—who are, at that point in due process, still innocent until proven guilty—as if they had already been sentenced.

Thirdly, a recent US Supreme Court decision—Salinas v. Texas—that largely snuck in under the radar of mass media has broadened the Constitutional permissibility of police questioning. Now, the 5th Amendment gives American citizens the right to abstain from self-incrimination. In Miranda terms, the 5th gives us our right to remain silent. Or so we thought. It seems that the 5th amendment, too, is not so straightforward.

Apparently, according to Justice Alito, writing for the 5-4 majority of the Court, it is a longstanding precedent that our 5th amendment rights don’t apply until they are explicitly invoked by the subject or explained by police in the midst of an arrest. It seems, outwardly at least, that the 5th does not mean “a complete right to remain silent but only guarantees that criminal defendants may not be forced to testify against themselves.” Very well…perhaps this ruling narrows its meaning, but does similar logic apply to other rights? Must we declare our right to free speech every time we speak our minds or else we have no such right to do so?

Finally—regarding the moral elephant in the room—Guantanamo Bay is still open for business, rife with human rights violations ranging from indefinite imprisonment without trial or charges to waterboarding and the use of force-feeding tubes to keep hunger strikers alive for further imprisonment and coercive interrogation. Of course, those imprisoned at Guantanamo are not US citizens, so legally we are not obliged to abstain from cruel and unusual punishment, nor are we compelled to provide a speedy trial, proper representation, or any semblance of due process. Morally, however, have we forgotten that our own Declaration of Independence enshrines the self-evident truth of the equality of all people? Those interned at Guantanamo may not be US citizens, but are they not human beings? Do they not deserve basic dignities simply for respect of their being alive?

Again, I am no constitutional lawyer, but these questions seem increasingly salient. Are our constitutional rights being systematically dismantled? Will we, like lobsters in a slowly warming pot, one day suddenly realize we’ve been boiled?

The whole situation smacks with the acrid taste of principled hypocrisy. If nothing else, we may assert–with more or less safety–that the United States’ moral high ground, our self-proclaimed superior and uniquely American respect for Constitutional and human rights is being, if not already, lost.

Love your country, question your government.

jmk