w.gif "Go to Welcome page for She-philosopher.com website.")
.gif "Promote independent academic publishing without paywalls: please donate!")
w.gif "example of browser's RELOAD CURRENT PAGE icon"){kind=small}
First Published: 18 September 2016
Revised (substantive): 3 June 2022
w.gif){kind=small}
N O T E : There are 25 “hover” boxes used on this Web page. To learn more about DHTML hover-box technology and possible display problems with it (especially if you are using Google Chrome or Opera for Web browsing and/or viewing this Web page on a mobile device), visit She-philosopher.com’s “A Note on Site Design” page. To view all 25 of this Web page’s hover notes in a second-window aside (where they are clustered together like end-notes), click/tap here.
AC_w.jpg)
^ Justice. Ceiling vault medallion fresco from Raphael’s Stanza della Segnatura, for Vatican Palace, Vatican City (1508–12).
Raphael’s Justice is personified with closed eyes (symbolizing impartiality), holding a balanced scale in her left hand, and a sword (raised above her head) in her right hand. She sits on a cloud, and is flanked by cherubs.
In his Nicomachean Ethics (written c.350 BCE), Aristotle “considered justice to be a peculiarly important virtue, ... ‘virtue entire,’ because it alone of all the virtues is directly related to the good of others and ‘the best man is not he who exercises his virtue towards himself but he who exercises it toward another.’ Justice is a mean between suffering harm and inflicting it. Appropriate judgments about justice must consider the facts of the particular case and be grounded in universal, immutable principles of equity, proportion, and fairness.” (Lois Self, “Rhetoric and Phronesis: The Aristotelian Ideal,” 138)
Raphael invokes this Aristotelian hierarchy here, with divine-like Justice positioned above the other three chief natural virtues of Fortitude, Prudence, and Temperance (see the lunette in the following figure), all conducing to the right administration of law.
Eighty years later, the Italian political philosopher and ecclesiastical diplomat Giovanni Botero (c.1544–1617) revised this Aristotelian hierarchy, placing temperance (rational self-restraint, self-control) at the pinnacle of virtuous politics. For Botero, religion was “the mother” and temperance “the foster-mother of all the virtues. Without temperance, prudence is blind, fortitude grows faint, justice is corrupted, and every good quality loses its power.” (G. Botero, The Reason of State [Della Ragion di Stato, 1589; rev. 1598], Eng. trans. by P. J. and D. P. Waley, 1956, 69)
For millennia, philosophers and writers on health & well-being had recommended a regimen of living based on temperateness in all things. But Botero pointedly made the personal political, blaming intemperance — especially as fostered by intemperate women drawn to the evils of “luxurious living” which, according to Botero, emasculates humankind and undermines warrior culture — for the downfall of empires.
Still, it was the state’s ability to deliver justice that ensured its survival: “... the chief end for which a people pays tribute and taxes to a ruler is that he should keep them in peace and tranquillity by the exercise of justice.” (G. Botero, The Reason of State [Della Ragion di Stato, 1589; rev. 1598], Eng. trans. by P. J. and D. P. Waley, 1956, 28)
Click/tap here to open a second-window aside giving Botero’s Counter-Reformation take on justice and law reform: people who “govern themselves in a temperate manner ... that is to say with justice and reason ... have been innovators in the law, exponents of polity and masters of the arts of peace and war.” (G. Botero, The Reason of State [Della Ragion di Stato, 1589; rev. 1598], Eng. trans. by P. J. and D. P. Waley, 1956, 40)
AClr_w.jpg)
^ Wall depicting Law (or Jurisprudence), one of four wall frescos in Raphael’s Stanza della Segnatura, for Vatican Palace, Vatican City (1508–12).
Commissioned by Pope Julius II, as decoration for the pope’s small private library in his new residence on the second floor of the Papal Palace in Rome, the Stanze of Raphael depict on the library’s four walls the four principles of human knowledge and four pathways to truth, which together signify the virtues and learning most appropriate to a pope: the spiritual (Theology), the intellectual (Philosophy), the imaginative (Poetry), and the social (Law).
Theology is represented on the library’s entry wall, in the fresco known as the Disputà; Philosophy is represented on the opposite wall, in the fresco known as the School of Athens; Poetry is represented on the wall to the right of the Disputà, in the fresco known as Parnassus, showing the great poets of the past (including a beautifully serpentine Sappho) gathered round Apollo; and Law is represented on the last wall of the room, by scenes of the great lawgivers Gregory IX, Moses, Justinian and Solon.
The lunette of this last wall (representing Law) shows the three cardinal virtues of (from left to right) Fortitude, Prudence, and Temperance, juxtaposed with the fourth cardinal virtue, Justice, who sits enthroned above them in a roundel on the ceiling vault (see above, first illustration, for detail). On either side of the fourth wall’s shuttered center window (below the lunette) are painted (at right) Gregory IX Approving the Decretals Handed to Him by St. Raymond, the pope being a portrait of Julius II, and (at left) Emperor Justinian Receiving the Pandects. These two scenes celebrate the institution of Ecclesiastic and Civic Law respectively.
In the alternate visual tradition of heraldry, “Law, is depicted with an old grave countenance, in a purple Robe, seeded or set with golden Stars; with a Mantle of Carnation fringed with Gold; the buskins purple, and yellow: holding a Scrowl, or Roul in his hand.” And “Government, is clad all in Armour.” (Randle Holme, The Academy of Armory, or, a Storehouse of Armory and Blazon, 3 vols., 1688, 2.413)
California’s Good Neighbor Fence Act of 2013 (Assembly Bill 1404 or AB 1404)
On 12 March 2013, the California State Assembly Committee on Judiciary introduced
An act to repeal and add Section 841 of the Civil Code, relating to real property.
as documented here. Before being passed into law (approved by the governor and chaptered by the Secretary of State), the new statute was amended twice by the legislature: the first time, in the state Assembly on 30 April 2013; and the second time, in the state Senate on 14 June 2013.
A summary history of the legislative procedure relating to Assembly Bill 1404 is available here.
My special interest in “Section 841 of the Civil Code, relating to real property” dates to 2011, when I first began having problems with predatory neighbors in the adjoining subdivision. I proceeded to safeguard my property and security (as well as that of my subdivision neighbors) based on my understanding of the rights we had under Cal. Civ. Code § 841, as originally enacted in 1872, and still in force as of 2011. The original statute read in full:
[ O R I G I N A L L A W ]
841. Coterminous owners are mutually bound equally to maintain:
1. The boundaries and monuments between them;
2. The fences between them, unless one of them chooses to let his land lie without fencing; in which case, if he afterwards incloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter.
One hundred and forty years later, the only law I know of to offer California citizens protection against predatory neighbors was repealed and replaced by the flawed Good Neighbor Fence Act of 2013. For reasons which I have yet to learn, the authors of Assembly Bill 1404 severed Cal. Civ. Code § 841’s historical linkage between fencing and the process of enclosure — a connection dating to the middle ages in the common law of England, which was adopted by the American states, including California. And in so doing, they weakened state laws protecting long-time property owners like me.
The state legislature’s “clarified and modernized” version of Cal. Civ. Code § 841, enacted in August 2013 by way of Assembly Bill 1404 (California’s Good Neighbor Fence Act of 2013), reads in full:
[ C O R R U P T E D L A W ]
841. (a) Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.
(b) (1) Adjoining landowners are presumed to share an equal benefit from any fence dividing their properties and, unless otherwise agreed to by the parties in a written agreement, shall be presumed to be equally responsible for the reasonable costs of construction, maintenance, or necessary replacement of the fence.
(2) Where a landowner intends to incur costs for a fence described in paragraph (1), the landowner shall give 30 days’ prior written notice to each affected adjoining landowner. The notice shall include notification of the presumption of equal responsibility for the reasonable costs of construction, maintenance, or necessary replacement of the fence. The notice shall include a description of the nature of the problem facing the shared fence, the proposed solution for addressing the problem, the estimated construction or maintenance costs involved to address the problem, the proposed cost sharing approach, and the proposed timeline for getting the problem addressed.
(3) The presumption in paragraph (1) may be overcome by a preponderance of the evidence demonstrating that imposing equal responsibility for the reasonable costs of construction, maintenance, or necessary replacement of the fence would be unjust. In determining whether equal responsibility for the reasonable costs would be unjust, the court shall consider all of the following:
(A) Whether the financial burden to one landowner is substantially disproportionate to the benefit conferred upon that landowner by the fence in question.
(B) Whether the cost of the fence would exceed the difference in the value of the real property before and after its installation.
(C) Whether the financial burden to one landowner would impose an undue financial hardship given that party’s financial circumstances as demonstrated by reasonable proof.
(D) The reasonableness of a particular construction or maintenance project, including all of the following:
(i) The extent to which the costs of the project appear to be unnecessary or excessive.
(ii) The extent to which the costs of the project appear to be the result of the landowner’s personal aesthetic, architectural, or other preferences.
(E) Any other equitable factors appropriate under the circumstances.
(4) Where a party rebuts the presumption in paragraph (1) by a preponderance of the evidence, the court shall, in its discretion, consistent with the party’s circumstances, order either a contribution of less than an equal share for the costs of construction, maintenance, or necessary replacement of the fence, or order no contribution.
(c) For the purposes of this section, the following terms have the following meanings:
(1) “Landowner” means a private person or entity that lawfully holds any possessory interest in real property, and does not include a city, county, city and county, district, public corporation, or other political subdivision, public body, or public agency.
(2) “Adjoining” means contiguous to or in contact with.
In January 2011 — after new tenants in a rental property (8485 Menkar Road, San Diego, CA 92126) in the adjoining subdivision removed their subdivision boundary fencing, altered the engineered grade between subdivisions (formerly protected by that subdivision boundary fencing), encroached on our private property, and began using our private fencing for purposes of enclosure — I contacted the tenants and their landlord, and based on my reading of Cal. Civ. Code § 841 (original version dating to 1872), asked that they maintain the original boundaries between our two subdivisions and cease their illegal enclosure. The tenants responded by expanding their trespass, and I responded in writing that, by law, I was entitled to compensation if they persisted in using my private fencing for enclosure. I also contacted our local regulatory agency (Neighborhood Code Compliance Division, Development Services Department, City of San Diego) to see if they could intervene to preserve the historical boundary between subdivisions (they couldn’t), and I sent a three-page letter documenting his contested construction activities to the adult male tenant’s employer — the CEO of a local construction company and government contractor, Kevcon, whose website touted the company’s core values of discipline (“Consistently doing the right thing right. We demand the highest standard of excellence and ethics from our employees.”) and integrity (“Always doing the right thing even when no one is watching. Every day we practice uncompromising honesty, moral, and ethical principles.”). In December 2011, the tenants finally ceased their illegal enclosure and put up new subdivision boundary fencing; they did not, however, maintain the original subdivision boundaries, choosing instead to locate their new fence well within the 21-inch graded clearing that had separated our two subdivisions since 1975.
In 2014, when the new homeowner of another property (8491 Menkar Road, San Diego, CA 92126) in the adjoining subdivision escalated their encroachment on our private property, I again wrote letters asking that they either cease their illegal enclosure (and rebuild their subdivision boundary fencing) or compensate me (I asked for rental payments) if they chose to continue sharing my private fencing. After multiple deadlines had come and gone, and I received no response at all to any of my written demands (2 letters and 6 invoices), I filed suit in small claims court, based on my understanding of my rights under Cal. Civ. Code § 841(a):
Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.
(as revised in the Good Neighbor Fence Act of 2013)
and on my common-sense interpretation of the “spirit” of the old (Cal. Civ. Code § 841(2)) and new laws of 1872 and 2013 — that it is unjust to freeload off others, without permission, and that the law requires us to compensate those whose private property we make use of and/or benefit from.
A miscarriage of justice
I lost my small claims court case in what I believe to have been a miscarriage of justice, resulting in an unprecedented verdict for the citizens of California, issued on 15 July 2015 by Commissioner Peter S. Doft (San Diego Superior Court Small Claims No. 37-2014-00312813-SC-SC-CTL).
I further believe that Commissioner Doft, who was a vigorous advocate for the defendant (at one point even advising her to take legal action against me) during my hearing, wilfully misinterpreted the law when he ruled that Cal. Civ. Code § 841(a), which states:
Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.
(as revised in the Good Neighbor Fence Act of 2013)
does not apply to subdivision boundary fencing, or to any other fencing that is not specifically required by law.
Not only did Commissioner Doft rule that there is no legal requirement for the defendant (or any other property owner) to maintain her subdivision boundary fencing, he also encouraged new property owners to remove existing subdivision boundary fencing whenever there are two boundary fences in place, arguing that double fences serve no purpose. Moreover, to my considerable surprise, he placed no obligations on the new property owner who decides, on a whim, to remove her subdivision boundary fencing (no requirement to give “prior written notice to each affected adjoining landowner,” as specified under the Good Neighbor Fence Act of 2013; no requirement to have her property surveyed, before removing historical markers; no requirement to protect or maintain the engineered grade between subdivisions, as established by double fences; no requirement to reimburse the adjoining landowner for use of their existing fence, even when that fence is not a shared division fence, but private property).
Equally troubling, Commissioner Doft disallowed common-sense definitions of the terms “use” and “enclosure,” which I believe places an excessive burden on plaintiffs in small claims court, where the presumption is that the rules of evidence and procedure will be informal. When common-sense definitions of fence use, benefit, and enclosure are excluded from legal arguments, how are ordinary citizens to understand their rights and obligations under the law?
How does the average citizen manage disputes with neighbors over fencing when only professional lawyers can grasp the legal technicalities involved?
And what’s the point of having a state law about fences that has so little to do with common-sense standards of fairness, and community values of right and wrong, that homeowners who construct and maintain fences misconstrue their rights & responsibilities vis-à-vis those very fences?
Most of us believe that, under the U.S. political and economic system, we are guaranteed certain private-property rights. I was shocked to discover that long-time homeowners such as me can be forced, against our will, to share our private property and to subsidize the home ownership of predatory neighbors in an adjacent subdivision.
Holding lawmakers accountable
Believing that Commissioner Doft made “a legal mistake” in interpreting Cal. Civ. Code § 841(a), I sought clarification of the Good Neighbor Fence Act of 2013 with my first Open Letter of 30 July 2015, published to a restricted-access area of She-philosopher.com’s beta test site on 7/30/2015. My Open Letter No. 1 is addressed to the author(s) of California Assembly Bill 1404, and I submitted the URL for it to the office of Brian Maienschein (Assemblymember for the 77th District, and San Diego’s Member of the California State Assembly Committee on Judiciary) on 7/30/2015. His office replied promptly, without being responsive, as documented in the Updates section at the top of the Web page giving my open-letter comments on Assembly Bill 1404. That Web page’s Updates section includes a complete copy of all communications that have passed between me and legislative officials since I posted my first Open Letter to lawmakers on 7/30/2015.
Six months later, on 10 February 2016, I posted a second Open Letter to lawmakers and continued to correspond with Brian Maienschein’s office through the end of February 2016, until his office stopped responding (see Follow-Up No. 7 in the Updates section at the top of the Web page giving my open-letter comments on AB 1404). I waited to hear back from Maienschein’s office until April 2016, at which point I decided I was being stonewalled by Assembly officials who, for some reason, have still not explained why Cal. Civ. Code § 841(2), as originally enacted in 1872, was repealed instead of updated, ignoring key historical issues relating to fencing. Specifically, I continue to ask
3. Why are issues relating to enclosure, and unlawful enclosure, not addressed by AB-1404?
(from Follow-Up No. 17 in the Updates section at the top of the Web page giving my open-letter comments on AB 1404)
— a query I first posed in a 2/26/2016 e-mail to Robert Knudsen (in Brian Maienschein’s office), which has yet to be answered.
Frustrated that, even in an election year, legislators apparently feel no need to be accountable to their constituents, in April 2016 I contacted the new Speaker of the Assembly, Anthony Rendon (63rd Assembly District), “as my alternate representative in the California State Assembly” (see Follow-Up No. 9 in the Updates section at the top of the Web page giving my open-letter comments on AB 1404). Speaker Rendon’s office acted promptly on my request, and I soon entered into a more fruitful correspondence about AB 1404 with counsel for the Assembly Judiciary Committee, even though they, too, have yet to answer my question no. 3 concerning the repeal of historical language dealing with matters of enclosure.
I understand that the close of the California Legislature’s biennial session (the legislature adjourned 31 August 2016) was hectic and contentious, with hundreds of pending measures, and that Judiciary Committee counsel had no spare time for further correspondence with me explaining the rudiments of the legislative process and the logic undergirding the rewriting of Cal. Civ. Code § 841. But I’ve been seeking answers to my questions about Assembly Bill 1404 since July 2015 and, as of September 2016, have had enough of the excuses and delays.
This (2016) is an election year, and it’s past time to hold legislators publicly accountable for the flawed Good Neighbor Fence Act of 2013, under which long-time California property owners like me have lost rights & security.
To this end, I have converted the Web page giving my two Open Letters to California state legislators, with follow-on correspondence and full documentation of my small claims court case from restricted-access content (as originally formatted when first published on 7/30/2015) into a She-philosopher.com study, publicly accessible to a broad international audience, as well as to the world’s most popular commercial search engines.
In addition to holding California state legislators accountable for the laws that they write, I hope also with this study to raise awareness of another troubling development: that activist small-claims-court judges in California are now taking on the legislature’s policy-making role (as exemplified in my small claims court case, San Diego Superior Court Small Claims No. 37-2014-00312813-SC-SC-CTL).
I oppose this trend, because I believe it is fundamentally undemocratic. And it is symptomatic of a failing political system where powerful special interests already have too much control over what the government (local, state, and federal) does.
We desperately need legislative reform, whereby legislators write better laws, which serve the people of the state, rather than the special interests with enough wealth & power to buy influence the rest of us lack. Ordinary citizens ought to be able to interpret state law governing fences — something with which most of us must interact on a daily basis, thus having a huge impact on our quality of life — without having to hire a lawyer (indeed, I would argue that this money would be better spent on a surveyor, who will give you true information as to your property boundaries that should stand up in any court of law, even the most arbitrary small claims court hearing). We ought to be able to conduct and settle run-of-the-mill disputes with neighbors (over fences, trees, boundaries, noise, pollution) following the law and a legal process that levels the playing field, such that every citizen can know and assert their rights, especially those who cannot afford an attorney.
As noted in my first Open Letter “To the author(s) of California Assembly Bill 1404” I am a big fan of Nolo’s step-by-step guides “for making the legal system work for you” and the associated do-it-yourself law movement. But even the best self-help guides can not make up for a flawed state law, such as California’s Good Neighbor Fence Act of 2013. That requires legislative action by our elected representatives in the California state Assembly and Senate.
In closing, I wish to note that two members of the Assembly, both representing San Diego, who were involved with the passage of AB 1404 are running for office again in 2016:
• Brian Maienschein, Assemblymember, 77th District
(Maienschein is a member of the Committee on Judiciary, which authored AB 1404.)
If you live in one of the following zip codes
91942, 92014, 92020, 92024, 92025, 92027, 92029, 92037, 92040, 92064, 92065, 92067, 92071, 92074, 92075, 92091, 92109, 92111, 92117, 92119, 92120, 92121, 92122, 92123, 92124, 92126, 92127, 92128, 92129, 92130, 92131, 92142, 92145, 92150, 92159, 92161, 92172, 92177, 92182, 92191, 92196, 92197, 92198, and 92199
making up California’s 77th State Assembly district, you can vote for or against Brian Maienschein in the upcoming November 2016 election.• Toni Atkins, formerly the 69th Speaker of the State Assembly (from 12 May 2014 – 7 March 2016) and Majority Leader of the California Assembly (from 1 September 2012 – 12 May 2014), and a candidate for California’s 39th State Senate district in 2016
(AB 1404 became law under Atkins’ watch as Majority Leader.)
If you live in one of the following zip codes
91911, 91932, 91941, 91942, 91945, 92007, 92014, 92020, 92024, 92025, 92027, 92029, 92037, 92038, 92039, 92064, 92065, 92067, 92071, 92075, 92091, 92092, 92093, 92101, 92102, 92103, 92104, 92105, 92106, 92107, 92108, 92109, 92110, 92111, 92112, 92113, 92114, 92115, 92116, 92117, 92118, 92119, 92120, 92121, 92122, 92123, 92124, 92126, 92127, 92128, 92129, 92130, 92131, 92132, 92134, 92135, 92137, 92138, 92140, 92142, 92145, 92147, 92152, 92155, 92159, 92160, 92161, 92162, 92163, 92164, 92166, 92167, 92168, 92169, 92171, 92172, 92175, 92176, 92177, 92178, 92186, 92187, 92190, 92191, 92192, 92193, 92195, 92196, and 92198
making up California’s 39th State Senate district, you can vote for or against Toni Atkins in the upcoming November 2016 election.
I would like to ask both politicians to explain how they would fix California’s Good Neighbor Fence Act of 2013 such that Cal. Civ. Code § 841 once again protects me from predatory neighbors in the adjoining subdivision.
Post-election (8 November 2016) update
The general election results for my San Diego-region representatives in the California state legislature are reported below:
| CALIFORNIA STATE ASSEMBLY – DISTRICT 77 (districtwide results for 11/8/2016 election) |
||
|---|---|---|
| Brian Maienschein - Rep | 121,140 votes | 57.83% of votes |
| Melinda K. Vásquez - Dem | 88,344 votes | 42.17% |
| CALIFORNIA STATE SENATE – DISTRICT 39 (districtwide results for 11/8/2016 election) |
||
| Toni Atkins - Dem | 258,686 votes | 62.52% of votes |
| John Renison - Rep | 155,053 votes | 37.48% |
Both Maienschein and Atkins won clear majorities. I did not vote for Brian Maienschein, and was disappointed — but not surprised — that he was re-elected. On the other hand, I did vote for Toni Atkins, in the belief that her experience as 69th Speaker of the State Assembly, and her intimate familiarity with that institution’s culture, enable her to initiate and enact the sort of legislative reforms that my other representative in Sacramento, Brian Maienschein, has shown he will not. Unlike some, I tend to judge career politicians on their individual merits — rather than lumping them all together in a “swamp” of corruption needing periodic drainage — and I appreciate real legislative expertise where I find it. I am hoping that Toni Atkins can be persuaded to lead on this, despite the fact that
Atkins’ first term in the Senate is expected to be a busy one as California legislators grapple with homegrown problems like affordable housing and infrastructure repair, along with national issues like health care and immigration.
(“Senator Toni Atkins on her Priorities for San Diego,” by Megan Burke and Maureen Cavanaugh, posted to the KPBS website on 3 January 2017, with link to video podcast of Toni Atkins interview with Ebone Monet)
These are grand legislative ambitions and, in comparison, fixing California’s Good Neighbor Fence Act of 2013 may not seem like a political priority, but I would argue that it should be, for several reasons.
While AB 1404 may seem like a relatively inconsequential law, it actually has a profound impact on the quality of life of property owners and others throughout California. When I am forced, against my will, to subsidize the home ownership of predatory neighbors in an adjacent subdivision — a subdivision that did not exist when my family purchased our house — it impacts my health (stress levels through the roof!) as well as my finances. Having lost control over a large portion of my own small piece of real estate, I no longer use my back garden or exercise daily in my swimming pool (a key component of the water-conservation plan I implemented decades ago when we had our first serious drought, but when I’m no longer swimming laps daily, the pool, which used to be a valued resource, becomes nothing more than an expensive waste of precious water). I have also stopped all work on an ambitious home-improvement project, because there’s nothing smart about investing further in my home and neighborhood when it is predatory neighbors, not me, who reap the benefits. And the consequences of such household cutbacks reverberate through my community: when I do only the bare minimum in repairs and upgrades to my home, property values decline for me and my subdivision neighbors; local artisans lose out on promised work and the chance to partner with enthusiastic homeowners on innovative “green building” experiments in a working-class neighborhood; and there are still more costs — again, borne by everyone except the predatory neighbors — from lost revenues to local businesses up and down the supply chain.
But perhaps even more important is the psychological toll all this takes on regular folk, as trust in our legal institutions and political system continues to erode. It’s laws like AB 1404 that feed the sort of NIMBYism that reigns in our communities. When legislators in Sacramento can’t even craft decent fence laws — which protect the private-property rights of California citizens who dutifully pay their taxes and play by the rules — how can we trust them to tackle such complicated, intractable problems as homelessness and affordable housing? In my experience, some of the worst fears a community has about signing on to more or different development in an adjacent tract of land may well be justified. When the law no longer protects us from predatory neighbors, is it any wonder that many of us feel the best way to protect ourselves & our property is to keep out those very predatory neighbors — who may well end up with more rights than we have — in the first place?
Legislative process in the most rebellious and diverse of the founding Thirteen American Colonies (East New Jersey)
History shows that, from the beginning of what we now call the United States, legislators have made plenty of mistakes when legislating, and as laws get tested in the real world, have had to amend or alter legislation. The laws passed in 1682, 1688 and 1693 establishing one of the first small claims courts in the U.S. are an interesting example of what used to be a responsive and flexible legislative process.
w.gif){kind=small}
[ 1 March 1682 – 28 March 1682 ] Passed by New Jersey’s General Assembly, “began and holden at Elizabeth Town, in this Province of East New Jersey, the first day of the month called March, Anno Domini, 1682, and in the five and thirtieth year of the reign of King Charles the Second ... and there continued by several adjournments thereof, until the twenty eighth day of the said month of March”:
An Act to Erect a Court of Small Causes.
FOR the more orderly hearing and determining all matters and cases of controversy between party and party, and for the due execution of the laws. Be it enacted by the Governor, Council, and Deputies in General Assembly met and assembled, and by the authority of the same, that in every town in and throughout this Province of East New Jersey, there be one court held monthly, and every month throughout the year, on the first Wednesday of the month, for the determining of small causes and cases of debt to the value of forty shillings, or under; which causes and cases shall be heard, tryed and determined by three persons without a jury: the process or warning to this court, shall be a summons under the hand of a messenger belonging to the said court, which being personally served by him, or left at the defendants house, four days before the court, shall be sufficient authority to and for the members of the said court to proceed on such cases or causes, and determine the same in the defendants absence, if the members of the court see not cause to the contrary, and to grant execution thereon against the defendants person, and for want thereof, his estate, which the messenger shall and may serve. Be it further enacted, that plaintiff or defendant desiring a jury it shall be allowed, but at the proper costs and charges of the person desiring the same. Be it further enacted, that this act or any thing therein contain’d, shall not infringe the liberty or priviledge of any grant, or charter already granted.
(The Grants, Concessions, and Original Constitutions of the Province of New-Jersey, compiled by Aaron Leaming and Jacob Spicer, 1758; 2nd edn., 1881, 229–30)
[ 1 March 1682 – 5 December 1682 ] Passed by New Jersey’s General Assembly, “begun and holden at Elizabeth Town, in the Province of East New Jersey, the first day of March, Anno Domini, 1682, and in the five and thirtieth year of the reign of King Charles the Second ... and there continued by several adjournments, unto the fifth day of December following”:
An Act Concerning the Monthly Court.
WHEREAS in a General Assembly amongst other things there was an act made, that there should be in every town within this Province, a monthly court, consisting of three members to end all small causes of debt, to the value of forty shillings, and finding by experience that one of the three may be absent or have a case depending. Be it therefore enacted by the Governor, Council and Deputies now met, and by authority of the same that if any two of the three members shall be present they may proceed to act; any thing in the said act, to the contrary in any wise notwithstanding.
(The Grants, Concessions, and Original Constitutions of the Province of New-Jersey, compiled by Aaron Leaming and Jacob Spicer, 1758; 2nd edn., 1881, 271–72)
[ 14 May 1688 – 24 May 1688 ] Passed by New Jersey’s General Assembly, “begun and held at the town of Perth Amboy, in the County of Middlesex, the fourteenth day of May, one thousand six hundred eighty and eight, and in the fourth year of the reign of our sovereign lord James the Second ... and there continued by several adjournments thereof, until the twenty fourth day of the said month of May”:
An Act for a Court of Small Causes for the
Out Plantations in Bergen County, and Another
for Acquickannick,and New Barbados.
Forasmuch as the inhabitants of the out plantations of the county of Bergen and of Acquickanick, and New Barbados, in the county of Essex, having made frequent complaint of the daily loss they sustain for want of a monthly court, or court of small causes in each respective place, as is already granted in each town in and throughout this Province. Be it therefore enacted by the Governor, Council and Deputies now met in General Assembly, and by the authority of the same, that for the orderly hearing and determining all matters, and cases of controversy between party and party, and for the due execution of the laws, that after publication hereof, there shall be held at the house of Lawrence Andriss of New Hackensack, in the said county of Bergen, a monthly court, or court of small causes, upon the second Wednesday in every month, for the ending of all differences between party and party, to the value of forty shillings, and under the said court to be held after the same forms and methods as are prescribed in former acts of Assembly, for courts of small causes in every the respective towns within this Province. And be it further enacted by the authority aforesaid, that there shall be also held at the house of Doctor Johannes, upon Hackensack river, in the said county of Essex, upon every first Wednesday in every month, the like court of small causes for the ending of all differences of the like nature, amongst the inhabitants of Acquickanick, and New Barbados, aforesaid.
(The Grants, Concessions, and Original Constitutions of the Province of New-Jersey, compiled by Aaron Leaming and Jacob Spicer, 1758; 2nd edn., 1881, 304–5)
[ 14 May 1688 – 24 May 1688 ] Passed by New Jersey’s General Assembly, “begun and held at the town of Perth Amboy, in the County of Middlesex, the fourteenth day of May, one thousand six hundred eighty and eight, and in the fourth year of the reign of our sovereign lord James the Second ... and there continued by several adjournments thereof, until the twenty fourth day of the said month of May”:
An Act Concerning Small Causes.
WHEREAS at a General Assembly, begun and held at Elizabeth Town, in the county of Essex, in the month of March, 1682, a court of small causes, or monthly court was establish’d for the tryal of all cases to the value of forty shillings or under; nevertheless many persons have taken liberty contrary to the good intent of the said act, to trouble their neighbours, by commencing suits of debts under the denomination of actions of trespass upon the case in the county courts, or courts of sessions, wherein the sum due has been found to be under the value of forty shillings; for prevention whereof be it enacted by the Governor, Council and Deputies now met in General Assembly, and by the authority of the same, that if any person or persons, shall (after publication hereof) bring or commence any action or actions whatsoever, in any of the courts of sessions or county courts, in and throughout this Province, wherein upon tryal, the debt or damages assest in such action or actions, shall not exceed the sum of forty shillings, that then and in such case, the said court wherein the same shall be try’d, shall allow to such plantiff no costs of court, excepting in such cases where such plantiff shall make it appear before the justices of such court, that the defendant hath refused to come to an account, or to refer the same to two indifferent persons in the neighbourhood. And be it further enacted by the auhority aforesaid, that in all causes and cases whatsoever, and at all times, when and so often the messenger of any of the courts of small causes in and throughout this Province, shall from and after publication hereof, take the body of any person or persons in execution, for any sum or sums of money by virtue of any precept of such court, that then and in such case, the sheriff of such county is hereby required, to take and receive from such messenger, all such person or persons, and them safely keep in close prison until he or they shall pay all such debt, damages, and costs of court as hath been recovered against them, and for which he or they are taken in execution.
(The Grants, Concessions, and Original Constitutions of the Province of New-Jersey, compiled by Aaron Leaming and Jacob Spicer, 1758; 2nd edn., 1881, 310–11)
[ 12 October 1693 – 3 November 1693 ] Passed by New Jersey’s General Assembly, “begun and held at the town of Perth Amboy, in the County of Middlesex, and Province of East New Jersey, upon the twelfth day of October, in the fifth year of the reign of our sovereign lord and lady William and Mary ... Anno Domini 1693, and there continued by the several adjournments thereof, until the third day of November following, for the public welfare of the said Province”:
An Additional Act to the Court of Small Causes.
WHEREAS in several acts concerning the court of small causes, there is no provision made obliging non residents upon summons, to stand tryal, which may be to the great damage of the inhabitants of this Province; for the prevention thereof, be it enacted by the Governor, council, and Deputies now met in General Assembly, and by the authority of the same, that the clerks of the respective courts of small causes, shall have power, and is hereby authorized and impowered, to issue out a warrant to arrest or attach the body of any non resident, which said warrant, the messenger shall have power to serve and hold the said non resident to bail, and upon refusing to give bail to stand tryal, to convey him to the sheriff of the county, who is hereby required to take and receive from such messenger, all such person or persons, and them safely keep, till he or they shall give bail or come to tryal.
(The Grants, Concessions, and Original Constitutions of the Province of New-Jersey, compiled by Aaron Leaming and Jacob Spicer, 1758; 2nd edn., 1881, 326–27)
At the same time the General Assembly of New Jersey struggled with setting up what proved to be a very popular small claims court system for the colonial citizenry, they also enacted a late-17th-century fence law, of interest today because of what it shows about developments in Anglo-American legal thought. Even in the late-17th century, when European notions of private property first began supplanting traditional American notions of the land as an inheritance held in common by the indigenous peoples, fence law focused on setting standards for fence heights (back then, their primary concern was with minimum heights for fences whereas, today, we concern ourselves primarily with maximum fence heights). Of note, at that point in time, division fencing was legally mandated (i.e., “boundaries and monuments between them” required by law), unlike today in California. And adjoining property owners had to maintain their “proportion” of division fencing, unless both parties agreed otherwise.
[ 1 March 1682 – 5 December 1682 ] Passed by New Jersey’s General Assembly, “begun and holden at Elizabeth Town, in the Province of East New Jersey, the first day of March, Anno Domini, 1682, and in the five and thirtieth year of the reign of King Charles the Second ... and there continued by several adjournments, unto the fifth day of December following”:
A Bill for the More Regular Ordering of Fences.
Be it enacted by the Governor, Council and Deputies in General Assembly met and assembled, and by authority of the same, that all persons in and throughout this Province, whose house lots hath been improved, or shall hereafter be improved and joining to another persons house lot, that in such case all persons so concerned, their house lots, joining together, shall make and maintain his proportion of a sufficient division fence, except he and his neighbour shall otherwise agree. Be it further enacted by the authority aforesaid, that all fences that are four feet and three inches high, shall be accounted sufficient height for fences.
The Grants, Concessions, and Original Constitutions of the Province of New-Jersey, compiled by Aaron Leaming and Jacob Spicer, 1758; 2nd edn., 1881, 262)
Double fences in suburban developments were also the norm, as we find in John Evelyn’s late-17th-century public-policy tract dedicated to Charles II, which recommended redesigning London as a garden city, by which means air pollution was to be neutralized and abated. Evelyn attributed London’s choking smoke — by which “one half of them who perish in London, dye of Phthisical and Pulmonic distempers” and “the Inhabitants are never free from Coughs,” while the city’s trees would no longer even bear fruit — to a few polluting industries (“Brewers, Diers, Lime-burners, Salt, and Sope-boylers, and some other private Trades”), which he recommended be moved and/or regulated. Evelyn’s proposed remedy for London started with the construction of “plantations” enclosed by double fences:
That all low-grounds circumjacent to the City, especially East and South-west, be cast and contriv’d into square plots, or Fields of twenty, thirty, and forty Akers, or more, separated from each others by Fences of double Palisads, or Contr’spaliers, which should enclose a Plantation of an hundred and fifty, or more, feet deep, about each Field; not much unlike to what His Majesty has already begun by the wall from Old Spring-garden to St. James’s in that Park; and is somewhat resembled in the new Spring-garden at Lambeth. That these Palisad’s be elegantly planted, diligently kept and supply’d, with such Shrubs, as yield the most fragrant and odoriferous Flowers, and are aptest to tinge the Aer upon every gentle emission at a great distance: Such as are (for instance amongst many others) the Sweet-brier, all the Periclymena’s and Woodbinds; the Common white and yellow Jessamine, both the Syringa’s or Pipe trees; the Guelder-Rose, the Musk, and all other Roses; Genista Hispanica: To these may be added the Rubus odoratus, Bayes, Juniper, Lignum-vitae, Lavender: but above all, Rosemary, the Flowers whereof are credibly reported to give their sent [scent] above thirty Leagues off at Sea, upon the coasts of Spain: and at some distance towards the Meadow side, Vines, yea, Hops.
(John Evelyn, Fumifugium: or, the Inconvenience of the Aer and Smoake of London Dissipated, 1st edn., 1661, 24)
[ Click/tap here to open a second-window aside with little-known tales of New Jersey’s fragrant coastline during the 17th and 19th centuries. ]
Also of interest to those of us making big claims about the values enshrined in the U.S.’s founding documents, in April 1686, New Jersey’s Assembly passed gun-carry legislation — an act against wearing swords, pistols and other weapons in public, and against giving or receiving challenges:
[ 6 April 1686 – 19 April 1686 ] Passed by New Jersey’s General Assembly, “begun and held at the Town of Amboy Perth, in the County of Middlesex, and in the Province of East New Jersey, the sixth day of April, Anno Domini, 1686. and in the second year of the reign of King James the Second ... and there continued by several adjournments, until the nineteenth day of the said month of April”:
An Act Against Wearing Swords, &c.
WHEREAS there hath been great complaint by the inhabitants of this Province, that several persons wearing swords, daggers, pistols, dirks, stilladoes, skeines, or any other unusual or unlawful weapons, by reason of which several persons in this Province, receive great abuses, and put in great fear and quarrels, and challenges made, to the great abuse of the inhabitants of this Province. Be it therefore enacted by the Governor, and Council, and Deputies now met in General Assembly, and by authority of the same, that no person or persons within this Province, presume to send any challenge in writing, by word of mouth, or message, to any person to fight, upon pain of being imprisoned during the space of six months, without bail or mainprize, and forfeit ten pounds; and whosoever shall except [sic] of such challenge, and not discover the same to the Governor, or some publick officer of the peace, shall forfeit the sum of ten pounds; the one moiety of the said forfeiture to be paid unto the Treasurer for the time being, for the public use of the Province, and the other moiety to such person or persons as shall discover the same, and make proof thereof in any court of record within this Province, to be recovered by the usual action of debt, in any of the said courts. And be it further enacted by the authority aforesaid, that no person or persons after publication hereof, shall presume privately to wear any pocket pistol, skeines, stilladers, daggers or dirks, or other unusual or unlawful weapons within this Province, upon penalty for the first offence five pounds, and to be committed by any justice of the peace, his warrant before whom proof thereof shall be made, who is hereby authorized to enquire of and proceed in the same, and keep in custody till he hath paid the said five pounds, one half to the public treasury for the use of this Province, and the other half to the informer: And if such person shall again offend against this law, he shall be in like manner committed (upon proof thereof before any justice of the peace) to the common gaol, there to remain till the next sessions, and upon conviction thereof by verdict of twelve men, shall receive judgment to be in prison six month, and pay ten pounds for the use aforesaid. And be it further enacted by the authority aforesaid, that no planter shall ride or go armed with sword, pistol, or dagger, upon the penalty of five pounds, to be levied as aforesaid, excepting all officers, civil and military, and soldiers while in actual service, as also all strangers, travelling upon their lawful occasions thro’ this Province, behaving themselves peaceably.
(The Grants, Concessions, and Original Constitutions of the Province of New-Jersey, compiled by Aaron Leaming and Jacob Spicer, 1758; 2nd edn., 1881, 289–90)
This early gun-control legislation was later extended in 1694 with an act prohibiting slaves from appearing in public with guns and dogs.
[ 2 October 1694 – 22 October 1694 ] Passed by New Jersey’s General Assembly, “begun and held at the Town of Perth Amboy, in the County of Middlesex, and Province of East New Jersey, upon the second day of October, in the sixth year of the reign of our sovereign lord and lady William and Mary ... Anno Domini, 1694, and there continued by the several adjournments thereof, until the two and twentieth day of the same month, for the publick welfare of the said Province”:
An Act Concerning Slaves, &c.
WHEREAS complaint is made by the inhabitants of this Province, that they are greatly injured by slaves having liberty to carry guns and dogs, into the woods and plantations, under pretence of guning, do kill swine. Be it enacted by the Governor, Council and Deputies in General Assembly met and assembled, and by the authority of the same, that no slave or slaves within this Province after publication hereof, be permitted to carry any gun or pistol, or take any dog with him or them into the woods, or plantations, upon any pretence whatsoever; unless his or their owner or owners, or a white man, by the order of his or their owner or owners, be with the said slave or slaves, upon the penalty of twenty shillings for the first offence, and for the second offence, thirty shillings, and so for every offence after so committed ten shillings more; the one half to the informer that shall prosecute the same to effect, the other half to the use of the poor belonging to the town where the fact was committed, to be recovered as an action of debt; forty shillings or under to be tryed at the court of small causes in the town where the fact was committed, and above forty shillings to be try’d by the county court where the fact was committed; the said action to be commenced against the owner or owners, of the aforesaid slave or slaves so offending; and after judgment obtained against the said owner or owners, execution to be levied upon their bodies or estates, for the satisfaction of the said penalty so recovered as aforesaid with cost. And be it further enacted by the authority aforesaid, that no person or persons within this Province, shall suffer his or their slave or slaves, to keep any swine, but what are of their owners mark, upon the penalty of twenty shillings for every swine otherwise marked; to be recovered of the owner or owners of the said slave or slaves as aforesaid. And whereas it is found injurious to many of this Province having slaves, that their slaves are withheld by the countenance, harbouring and entertaining of them by many of the inhabitants thereof, without their owners consent. Be it enacted by the authority aforesaid, that any person or persons on whom it can be proved, that they do presume to suffer any slave to be or remain in his house, not licensed by his owner as aforesaid, by the space of two hours, shall forfeit the sum of five shillings, and so proportionably for a longer time, to the owner wrong’d thereby; and that it shall be lawful for any person to apprehend and take up as a runaway, any slave that shall be found five miles from his owners habitation, or town of his abode, without a certificate for the same, and upon returning the said slave or slaves, to the said owner or owners, he or they so apprehending and returning as aforesaid, shall have paid them by the owner or owners of the said slave or slaves within ten miles distance, five shillings; if within twenty miles, and more than fifteen miles from the said owners habitation, ten shillings per head, and if further, than six-pence per mile more to be paid and recovered as aforesaid. And be it further enacted by the authority aforesaid, that if any person or persons shall lend, give or hire out to any slave, or slaves, pistol, gun or guns, the said person or persons so lending, giving, or hiring, shall forfeit the said pistol, gun or guns, or twenty shillings to the owner of the said slave or slaves, to be recovered as an action of debt as aforesaid.
(The Grants, Concessions, and Original Constitutions of the Province of New-Jersey, compiled by Aaron Leaming and Jacob Spicer, 1758; 2nd edn., 1881, 340–42)
Anglo-American history is full of examples such as these, where the art of law-making often falls short of the mark — the public good — thus requiring alterations or amendments of existing laws. For the legislative process to work in a democratic society, there must be a willingness to acknowledge mistakes and inadequacies and the “many inconveniences” that follow from the passage of a bad law, as New Jersey’s General Assembly did in October 1686 when they repealed an earlier “Act to regulate the passing of Silver” money, which had gone disastrously awry. The initial Act passed in April 1686 (to be repealed in October of the same year) was intended
to prevent the transportation of silver from the province by raising it above its true value in all business transactions; and so little were the mysteries of finance and the circulation of the precious metals understood by its framers, that the law does not seem to have been considered at all objectionable, or its effect doubted, until its evil tendencies were elicited in practice.
(William A. Whitehead, East Jersey under the Proprietary Governments ..., 1846, 115–16)
[ 6 April 1686 – 19 April 1686 ] Passed by New Jersey’s General Assembly, “begun and held at the Town of Amboy Perth, in the County of Middlesex, and in the Province of East New Jersey, the sixth day of April, Anno Domini, 1686. and in the Second Year of the Reign of King James the Second, over England, &c. and there continued by several Adjournments, until the nineteenth day of the said Month of April, for the public weal of the said Province”:
An Act to Regulate the Passing of Silver.
FORASMUCH as it is daily found by experience, the growth and prosperity of this Province, is much obstructed by the continual draining the silver money, that is most valuable, by persons that come only to trade and carry away the money in specie, without either turning or trading the same amongst the inhabitants of this Province, whereby whatever money persons bring hither from England, or Scotland, or any other part, not knowing the value thereof, it is presently exhausted out of their hands by non-residents, so that the country is not at all benefitted by such silver money, neither is the growth or produce of the Province at all wasted or made use of by such traders, which is a grievance much prejudicial to the inhabitants, and redounds much to the impoverishment of the Province, so that the commodities arising by the growth and produce of the place, are not estemable by persons bringing commodoties from foreign parts, but the best of the coin is carried away for England, and other places as returns, or else pay’d away to neighboring Provinces for their commodities; for the better regulating therefore of this inconveniency, and the future preserving amongst our selves such good bullion that is brought into this Province, and as much as in us lieth, to put a stop to transient traders transporting the money so suddenly out of the Province before it hath been traded withal by the inhabitants thereof. Be it therefore enacted by the Governor, and Council and Deputies in General Assembly met and assembled, and by the authority of the same, that from and after the publication of this act, all pillar pieces of eight Mexico or Seville, good silver not weighing less than fourteen penny weights, shall pass as current coin in this Province, at six shillings each piece, half pieces for three shillings four-pence, a double bitt for twenty pence, a single bitt for ten pence, and a half bitt for five pence. That Peru pieces of eight, not weighing less than fourteen penny weight, shall pass at five shillings each piece, and lesser pieces in proportion. That an English crown, which is sterling money, shall pass at seven shillings and one penny each crown, an half-crown for three shillings and six-pence half-penny, a shilling for seventeen-pence; and so in proportion all other sterling money. That a guinea current gold, shall pass for thirty shillings. That a New England shilling, shall pass for thirteen-pence. That all rix dollars coined under Prince electors of Germany, shall pass for six shillings six-pence each peice, and in proportion all the less peices. That all ducatoons, shall pass for seven shillings nine-pence; and in proportion all the less peices. That all Scots coin, called the four mark peices, shall pass for six shillings and four-pence, the quarter peices at nineteen pence, and so in proportion all the less peices. That all French crowns, shall pass for six shillings four-pence each crown, and so in proportion all the less peices. And every peice of eight exceeding fourteen pennyweight, shall pass for each penny weight, four-pence more. Provided always, that this act shall no ways alter the value of any money, due by contract or otherwise before the publishing hereof.
(The Grants, Concessions, and Original Constitutions of the Province of New-Jersey, compiled by Aaron Leaming and Jacob Spicer, 1758; 2nd edn., 1881, 285–86)
Six months later at a subsequent session of the same Assembly (October 1686), the act regulating the value of silver coin was repealed.
[ 6 April 1686 – 29 October 1686 ] Passed by New Jersey’s General Assembly, “begun and held at the Town of New Perth, the sixth day of April, Anno Domini, 1686, and in the Second Year of the Reign of our Sovereign Lord James the Second, over England, Scotland, France, and Ireland, and there continued by several Adjournments thereof, until the twenty ninth day of October following”:
An Act to Repeal a Former Act for
Regulating the Passing of Silver.
WHEREAS at a General Assembly begun and held at the town of Amboy Perth, the sixth day of April last past, there was an act made and past in the said General Assembly, for the raising of silver money, above the then current value in this Province, and it being already found by experience that many inconveniences may attend the same. Be it therefore enacted by the Governor, Council and Deputies in General Assembly met and assembled, and by the authority of the same, that the said act, and every article, clause, and thing therein contained, be from henceforth repealed, and made null and void, to all intents and purposes as if it had never been made; any thing in the said act contained to the contrary in any wise notwithstanding.
(The Grants, Concessions, and Original Constitutions of the Province of New-Jersey, compiled by Aaron Leaming and Jacob Spicer, 1758; 2nd edn., 1881, 295)
Unfortunately, as my experience suggests, legislatures nowadays too often lack the political will to respond promptly when it is “found by experience that many inconveniences may attend” a law. This means that it’s up to us to hold legislators accountable, and to push hard for legislative reform when the “many inconveniences” warrant it.
Back to the future
Injunctions against predatory neighbors date back to the sacred scriptures of Judaism and Christianity, where the following is one of the Ten Commandments given in the Old Testament’s “Second Booke of Moses, called Exodus”:
Thou shalt not covet thy neighbours house, thou shalt not covet thy neighbours wife, nor his man servant, nor his maid servant, nor his oxe, nor his asse, nor any thing that is thy neighbours.
(King James Authorized Version of The Holy Bible, 1st edn., 1611, Exodus 20:17)
and repeated in the “Fifth Booke of Moses, called Deuteronomie”:
Neither shalt thou desire thy neighbours wife, neither shalt thou covet thy neighbours house, his field, or his man servant, or his maide servant, his oxe, or his asse, or any thing that is thy neighbours.
(King James Authorized Version of The Holy Bible, 1st edn., 1611, Deuteronomy 5:21)
ATw.jpg)
^ Printed page giving the text of Exodus 20:17 (“Thou shalt not covet ... any thing that is thy neighbours.”) from the King James Authorized Version of The Holy Bible (1st edn., 1611).
In the marginalia for this chapter and verse is a pointer to Romans 7:7, which refers to this Tenth Commandment in its discussion of the law (“What shall wee say then? is the law sinne? God forbid. Nay, I had not knowen sinne, but by the lawe: for I had not knowen lust, except the Law had said, Thou shalt not covet.”). Verse 6 (previous paragraph) makes the point that “wee are delivered from the law” only in death, “wherein ... we should serve in newnesse of spirit, and not in the oldnesse of the letter.” (Romans 7:6)
Given the supreme importance to English society, culture & politics of this newly-authorized vernacular translation of the bible, the holy book was typeset in black letter, as was typical for all official documents during the Jacobean period. Come mid-century, republican revolutionaries such as the Levellers and the Diggers would object to the use of elitist black letter and typography in legal and state documents governing the “English Commoner.” Click/tap here to open a second-window aside with more about the 17th-century debate over democratic typography.
The Christian Bible was often invoked as a divinely-sanctioned guide to just social conduct during the early modern period, and as such, influenced English common law which, as noted above, was adopted by California and other U.S. states.
Legal protections against covetous neighbors date to the 17th century in the U.S. (e.g., in the founding texts of American law quoted above), embodying Christian values held in common by Anglo-Americans across the sociopolitical spectrum — from right to left, and from top to bottom. Even the social-justice visionary, Gerrard Winstanley (bap. 1609, d. 1676), a leader of the Diggers — a mid-17th-century group of agrarian communists who cultivated waste lands to feed the poor — argued that the radical land reforms proposed by the Diggers, which challenged “the inequitable and unchristian nature of private property and its unequal distribution,” would leave the gentry “free to enjoy their enclosures while the poor could cultivate the commons,” mostly Crown and Church lands. (ODNB entry for Winstanley by J. C. Davis and J. D. Alsop, unpaginated) Hence, even in a revolutionary “world turned upside down” when communistic principles were applied to the land, personal property would continue to be protected by law.
If any say, This wil make some men to take goods from others by violence, and call it theirs, because the Earth and fruits are a Common Stock; I answer, The Laws or Rules following prevents that ignorance: For though the Store-houses and publike Shops be commonly furnished by every families assistance, and for every families use, as is shewed hereafter how: yet every mans house is proper to himself, and all the furniture therein, and provision which he hath fetched from the Store-houses is proper to himself; every mans wife and every womans husband proper to themselves, and so are their children at their dispose till they come to age.
And if any other man endeavor to take away his house, furniture, food[,] wife, or children, saying, every thing is common, and so abusing the Law of Peace, such a one is a Transgressor, and shall suffer punishment, as by the Government and Laws following is expressed.
For though the publike Store-houses be a common Treasury, yet every mans particular dwelling is not common, but by his consent, and the Commonwealths Laws are to preserve a mans peace in his person, and in his private dwelling, against the rudeness and ignorance that may arise in Mankind.
(Gerrard Winstanley, The Law of Freedom in a Platform: or, True Magistracy Restored, 1st edn., 1652, 24)
During the 17th century, radical republicans such as the Diggers sought a reformed welfare state that promoted the common good, including government that followed the biblical injunction to assist “the weak” and “the foolish” (“it is the work of all Magistrates to help the weak and the foolish” [G. Winstanley, The Law of Freedom, 33]). But these godly republicans also understood that a true “common wealth” (committed to justice for all) would thrive only after securing individual peace & liberty (without which, most of us won’t play well with others, or put community before self). Indeed, the whole point of law in the Diggers’ communistic utopia is to protect against transgressions — committed by “one against another” — arising from the “ignorant and rude fancy in man” (G. Winstanley, The Law of Freedom, 23):
And because the spirit in Mankinde is various within it self; for some are wise, some are foolish, some idle, some laborious, some rash, some milde, some loving and free to others, some envyous and covetous, some of an inclination to do as they would have others do to them: but others seek to save themselves, and to live in fulness, though others perish for want.
Therefore because of this was the Law added, which was to be a Rule and Judg for all mens actions, to preserve common Peace and Freedom; as Paul writ, The Law was added because of Transgression, one against another.
(Gerrard Winstanley, The Law of Freedom in a Platform: or, True Magistracy Restored, 1st edn., 1652, 32)
[ Click/tap here to open a second-window aside with more about the Diggers’ mid-17th-century program of law reform. ]
It is most disturbing, then, that in a 21st-century liberal democracy, such as that of California, protection of personal property is no longer a legislative priority. With no apparent regard for the rich and revolutionary history attaching to complicated issues of enclosure, California lawmakers acted in 2013 to undermine foundational principles of the Anglo-American church and state. And when asked in July 2015 to return to these foundational principles — or to explain why they feel Californians should not — lawmakers chose instead to simply ignore detailed complaints about the fall-out from their ill-advised legislation. Our elected representatives in Sacramento would neither defend nor fix California’s Good Neighbor Fence Act of 2013 (Assembly Bill 1404), hoping instead to palm off disgruntled constituents onto local government bureaucracies.
All of this suggests to me that our system of representative government has collapsed. No one appears to be representing the interests of ordinary citizens any more. Studies show that the influence of regular folks on U.S. policy may be at an historic low — “negligible,” according to the oft-cited Princeton study by Martin Gilens and Benjamin I. Page (579n44). Even in a state like California, with an out-of-control initiative process whereby voters seek to drive policy by legislating from the ballot box, the average citizen, like me, has no real voice. Moreover, our problems of governance are systemic, and cross the divide of partisan politics — e.g., I have bipartisan “representatives” in Sacramento (Brian Maienschein is a Republican, and Tony Atkins is a Democrat) — as registered by opinion polls showing that both major parties are now deemed “irrelevant” by a growing number of voters.
It will not be easy for the common people to take back our democracy. There are no quick-and-easy solutions which will magically give us real influence over state-wide policies that affect 39.6 million Californians. Indeed, as my experience shows, it is a long and arduous proceeding just to get your voice heard ... let alone effect real legislative reform. I would say the process is best described by the old Chinese proverb from the Tao Te Ching, Englished as:
A journey of a thousand miles begins with a single step.
To overcome unrepresentative government, you have to be willing to agitate for years; you must be patient ... determined ... and have plenty of grit, or the system will wear you down. It should not be this hard for common people to influence policy in a democracy. I’ve been lobbying my “representatives” in Sacramento since 30 July 2015, and no one in power has yet committed to defending or fixing California’s Good Neighbor Fence Act of 2013.
And I won’t be quitting my populist agitation until they do! In addition to posting and maintaining this detailed study of California Assembly Bill 1404, I have taken another step in my long journey for justice by writing to my state senator, Toni Atkins (see the series of e-mails and printed letters beginning with Follow-Up No. 19, dated 2/1/2017, in the Updates section at the top of the Web page with my two Open Letters to California legislators). But Senator Atkins has yet to respond to my request that she fix the law, so that I can regain control of my private property, and more Californians don’t lose control of theirs.
I expect She-philosopher.com’s two Web pages on California’s flawed Good Neighbor Fence Act of 2013 will eventually gain a sizable international audience, but it takes time to develop lasting reach & influence with this type of online communication. So I encourage those of you who are citizens of California to help out, by engaging in the nitty-gritty of our democratic political process and contacting your representatives directly, both in the California State Assembly and in the California State Senate. If your representatives were in office during the 2013–2014 legislative session, ask them how they voted on AB 1404; and if they voted for the law, ask them to explain that vote: e.g., why did she/he vote
1. to repeal a law that, for 140 years, had addressed the process of enclosure and at least offered California property owners minimal protection against predatory neighbors?
2. to replace the minimal protections of that 140-year-old law — Cal. Civ. Code § 841(1) and Cal. Civ. Code § 841(2) — with a new law — Cal. Civ. Code § 841(a) and Cal. Civ. Code § 841(b) — that ignores enclosure issues and has no protections against predatory neighbors?
If your representatives are new to their elective office, and did not cast a vote on AB 1404, ask them where they stand on the law now: e.g., does she/he
1. believe that there is a need to restore protections for property owners against predatory neighbors?
2. intend to do anything about altering or amending AB 1404?
Be vocal, and let your representatives know what you think about AB 1404, and whether it needs to be fixed, or not. I’m assuming there are others out there — like Commissioner Peter S. Doft, who ruled on my small claims court case; the authors of AB 1404; and Brian Maienschein — who disagree with me and believe that the new law serves whatever special interests it’s supposed to and is just fine as is. We need to push those in power who take this position to at least own up to it publicly, so that single-issue voters have the information they need to take direct action and make better electoral decisions in the future. Remember: any California legislator can take on this populist issue and make it their own, especially if my second representative in Sacramento (Toni Atkins) continues to dither. Collaboration among state legislators should be encouraged, and anyone willing to serve as “the people’s representative” on this or other quotidian issues — with real-life consequences for so many of us — deserves our support, no matter what gerrymandered district we’re in.
If the politicians, or anyone in your circle, want to know more, refer them to this Web page, with case-sensitive URL:
https://she-philosopher.com/studies/California-AB-1404.html
I don’t use social media (e.g., Facebook, Twitter, Gab, Reddit, Tumblr, YouTube, Instagram, etc.). Those of you in California who are active users of such online forums can help raise awareness of these important sociopolitical issues by starting your own discussions within your network of friends, family & followers. I’m sure there are plenty of ways to make creative use of social media to further legislative reform. We are all stakeholders in this process, which will only be as good as we make it. We can’t just vote every few years, and leave it to the elected officials (many with dubious popular “mandates”) and their advisors (who have no mandate) to handle things. We have to stay engaged, as best we can, and social media makes this a whole lot easier than it used to be!
Fake representation
The official 5 June 2018 Primary Election results for my representative in the California state Assembly are reported below:
| CALIFORNIA STATE ASSEMBLY – DISTRICT 77 (districtwide results for 6/5/2018 primary election) |
||
|---|---|---|
| Brian Maienschein - Rep | 63,263 votes | 55.99% of votes cast |
| Sunday Gover - Dem | 49,542 votes | 43.85% of votes cast |
| Write-in | 185 votes | 0.16% of votes cast |
I interpret this to mean that over 63,000 voters either don’t know or don’t care that Brian Maienschein personifies California-style fake representation, which I define as: pretending to put constituents’ interests front & center while, in reality, pursuing a factional legislative agenda which is more about getting & holding on to power than it is about serving the larger community (the public good).
During the month of May 2018 my household received a series of 5 mailers from Maienschein’s campaign
- mailer No. 1 of 5, received 5/4/2018 (THEME: “Brian Maienschein: Our leader in Sacramento!”)
- mailer No. 2 of 5, received 5/11/2018 (THEME: “Sunday Gover’s policies would put our community at risk.”)
- mailer No. 3 of 5, received 5/16/2018 (THEME: “When it comes to supporting small businesses and growing our economy, we deserve a qualified representative in Sacramento.”)
- mailer No. 4 of 5, received 5/17/2018 (THEME: “Brian Maienschein doesn’t care about partisan politics. He’s too busy getting things done for our community.”)
- mailer No. 5 of 5, received 5/21/2018 (THEME: “Paying for college is already hard enough. Sacramento shouldn’t be making it harder.”)
which prove my point. I want here to focus on the rhetorical trickery of mailer No. 2, strategically designed to motivate those who tend to be early voters in Assembly District 77:
_front.jpg "e-Copyright 2018 She-philosopher.com")
^ Front side of glossy tabloid mailer “Paid for by Maienschein for Assembly 2018” and received 5/11/2018 (ahead of California’s Primary Election held on 5 June 2018; the top 2 candidates from the Primary — Maienschein and Gover, since there were only 2 candidates on the ballot — will face off in the General Election to be held on 6 November 2018).
The front of Maienschein’s mailer No. 2 of 5 depicts a closed-off crime scene in the background, printed over with glaring scare quotes warning that Maienschein’s opponent (Sunday Gover) for California’s 77th Assembly District seat is an out-of-control advocate of decriminalization, whose “soft” policies on violent crimes such as “theft of a handgun, sex-trafficking of a child, and rape of an unconscious person” “would put our community at risk.”
Click/tap here to view a larger digital facsimile (275KB) of the FRONT of Maienschein’s mailer No. 2 of 5 for May 2018.
_back.jpg "e-Copyright 2018 She-philosopher.com")
^ Back side of glossy tabloid mailer “Paid for by Maienschein for Assembly 2018” and received 5/11/2018 (ahead of California’s Primary Election held on 5 June 2018).
The back of Maienschein’s mailer No. 2 of 5 advances the Gover-threatens-our-community narrative by juxtaposing a dark & indecipherable figure in a hoodie (left) with the same list of 3 violent crimes which jeopardize public safety (right), here reformatted as a (memorable) bulleted list, headed up by a repeat warning, with new scare text underlined for emphasis: “individuals who have committed the following crimes can be let out of jail early.” Again, we are told that Maienschein’s opponent “would implement an agenda that puts our community at risk.” Then the reassuring voice of authority takes control, advising us that “Brian Maienschein is Law Enforcement’s Choice!” for communities at risk. The concluding message — vote for Maienschein — is left implicit. The layers of visual and verbal associations triggered by such anxiety-producing images, coupled with strategic use of code words like “agenda,” make the desired electoral action seem the rational choice when, in fact, it is anything but! We are asked to arrive at this conviction by means of unquestioned authority, not reasoned argument.
Click/tap here to view a digital facsimile (325KB) of the BACK of Maienschein’s mailer No. 2 of 5 for May 2018.
Where mailer No. 1 struck a positive, inclusive tone — touting Maienschein’s bipartisanship and selective “Record of Achievement” (“As your Assemblymember, I’ve been focused on getting things done in Sacramento. With your support this June, I’ll continue working across the aisle on issues important to the future of our community.”), an upbeat message repeated in mailer No. 4 (“Brian Maienschein doesn’t care about partisan politics. He’s too busy getting things done for our community.”) — mailer No. 2 took a negative, divisive turn (like a traditional “attack ad”), invoking tribalism and an “us” vs. “them” mentality with its narrative.
Mailer No. 2 advises voters that Maienschein’s opponent “supports” various unidentified laws (and unidentified “changes to the law”) that place “our public safety ... in jeopardy”; ergo, if elected to office, Maienschein’s opponent “would implement an agenda that puts our community at risk.” Contra Maienschein’s opponent and her putative soft-on-crime “agenda,” Gary Moore (who is quoted on both the front & back of mailer No. 2), President of the Deputy Sheriffs Association of San Diego, designates Maienschein as “Law Enforcement’s Choice” for Assembly District 77: “As a State Assemblymember, Brian Maienschein has been an advocate for public safety. He strongly opposed efforts to weaken sentencing and punishments for violent criminals.” To the left of the deputy sheriffs’ endorsement (here presented as a factual statement), is a dark menacing figure in a hoodie — a stereotypical personification of criminality, with the face redacted so that your visual imagination can project whatever bogeyman you fear most onto the blank.
Without verifiable references to actual “laws pushed by decriminalization advocates” — and an honest discussion of the intent behind “changes to the law” which may well need further revision so as not to “weaken sentencing and punishments” for “theft of a handgun, sex-trafficking of a child, and rape of an unconscious person” — this is just fear-mongering and idle speculation, which we’re to accept simply on the say-so of supposed experts (the spokesman for a political action committee of deputy sheriffs). At the very least, their law-and-order expertise is tainted by deputies’ own criminality and willingness to flout the law, as found in San Diego, e.g.,
1. “Deputy Accused of Sexual Misconduct Re-Arrested in Wake of New Allegations” by Teri Figueroa (posted to the San Diego Union-Tribune website, 8/16/2018) and “More Misconduct Allegations Surface Against Deputy; Sheriff Sends Case to DA” by Jeff McDonald (posted to the San Diego Union-Tribune website, 2/1/2018); and
2. “Former Deputy Sheriff Given Probation, Work Furlough in Insurance Fraud Case” by Pauline Repard (posted to the San Diego Union-Tribune website, 4/10/2018); and
3. “Sent to Prison in 2010, a Former Sheriff’s Detective Finds his Way into Another Kind of Enforcement” as a code compliance officer — empowered to enforce local ordinances and regulations — for the city of San Diego, by Jeff McDonald (San Diego Union-Tribune, 9/30/2018, pp. B1 and B3)
4. “Papers Reveal Deputy Theft, Deceit: Records released under new state law [SB 1421] detail dishonesty” by Greg Moran and Lyndsay Winkley (San Diego Union-Tribune, 3/9/2019, pp. A1 and A11)
5. “Ex-Sheriff’s Captain Indicted in Guns Case: 4 others, including well-known jeweler [Leo] Hamel, also charged” by Jeff McDonald and Kristina Davis (San Diego Union-Tribune, 11/23/2019, pp. A1 and A11). In sum: “A former sheriff’s captain [Marco Garmo] with aspirations to run the department is charged with selling ‘off roster’ guns available only to law enforcement as a way to not only earn money but curry favor with potential donors for the upcoming campaign. ¶ Federal prosecutors said Marco Garmo, who most recently presided as captain over the Rancho San Diego Station, illegally bought and sold approximately 104 guns over a six-year period, continuing to do so despite being issued formal warnings to curtail his activity.” (A1) The gun trafficking “operation was to turn a profit, prosecutors said, but also ‘to build good will with future potential donors or benefactors would could advance his career or support anticipated political campaigns, including Garmo’s expressed intention to run for San Diego County sheriff,’ according to the indictment.” (A11) And the Deputy Sheriffs Association of San Diego (which endorsed Brian Maienschein in 2018, as touted in the campaign mailer analyzed above) is closely associated with key figures in the case: prominent San Diego jeweler, Leo Hamel, a known gun enthusiast, “has been a long-time donor to the Deputy Sheriffs’ Association of San Diego County, the department’s labor group that also operates a store from where Garmo allegedly purchased some of the guns. Hamel had also been previously named an honorary deputy sheriff.” (J. McDonald and K. Davis, A11)
6. And an update on the gun trafficking scandal linking the San Diego sheriff’s office and Deputy Sheriffs’ Association of San Diego (which has endorsed Brian Maienschein repeatedly over the years) with political corruption: “Feds Search Home of Lawyer Tied to Garmo Case: Vikas Bajaj identified in documents as purchaser of 3 guns” by Greg Moran (San Diego Union-Tribune, 10/23/2020, p. B3). According to Moran, “It is unclear if the [10/14/2020] search was connected to the case of former San Diego Sheriff’s Capt. Marco Garmo. He pleaded guilty on Sept. 15 [2020] to a charge of selling firearms without a federal license. He was one of five people, including local jeweler Leo Hamel, charged in the case. ¶ The lengthy indictment included an allegation that on Oct. 28, 2016, Garmo and a second defendant Giovanni Tilotta sold three firearms — an AR-15 style rifle, a Glock handgun, and a Smith & Wesson handgun — to an individual identified as ‘San Diego attorney V.B.’ ¶ A motion to dismiss one of the charges against Tilotta filed on Sept. 25 identified Bajaj as the attorney who purchased the weapons, which were sold inside Garmo’s office at the sheriff’s Rancho San Diego substation.” (G. Moran, B3)
7. Again on the gun trafficking scandal linking the San Diego sheriff’s office and Deputy Sheriffs’ Association of San Diego (which has consistently endorsed Brian Maienschein over the years) with political corruption: “Former Sheriff’s Captain Gets Prison in Gun Sales Case: Garmo sentenced to 2 years for illegal sales of firearms” by Kristina Davis (San Diego Union-Tribune, 3/13/2021, pp. A1 and A7). Prosecutors argued persuasively that “Far from a mere hobbyist, Garmo instead used his badge to skirt state and federal law and ran a profitable side business that sold new ‘off-roster’ law enforcement-only firearms to the public. He saw these specialty guns as a way not only to earn money, but as a way to curry favor with wealthy gun enthusiasts who might in turn support his future bid for sheriff.” (K. Davis, A1) “Now that he has been sentenced, the San Diego County Employees Retirement Association will determine if the conviction qualifies for felony forfeiture. If so, Garmo’s service credit would be knocked down to the first date of the commission of the crime and his retirement benefits recalculated. He would also have to reimburse any amount that was overpaid, including the more than $141,800 in retirement benefits he received last year, according to SDCERA’s Chief of Operations Mary Ball.” (K. Davis, A7) “A felony record prohibits Garmo from ever owning firearms again, and he has agreed to forfeit 58 firearms and more than 5,300 rounds of ammunition as part of the case. In a settlement agreement approved earlier this week, his wife will be able to keep 14 of those guns after asserting community property interest.” (K. Davis, A7) Officials were quick to emphasize that “Former employee Marco Garmo’s criminal conduct does not reflect the values of the San Diego County Sheriff’s Department. His actions violated the public trust and the confidence the department placed in him.” (qtd. in K. Davis, A7) But there does seem to be an emerging pattern of law enforcement personnel engaged in weapons trafficking as part of a larger political agenda — e.g., Wilkinson County (Georgia) sheriff’s deputy Cody Griggers, who offered to supply a San Diego antigovernment militiaman with “law enforcement-only 9 mm ammunition and explosives.”
8. The political clout of sheriffs’ associations in California, especially when their special interests are in conflict with the common good, is on full display in the battle over 2021’s Senate Bill 2: “Bill to Allow Decertifying Police Faces Uncertain Fate: California lawmakers raise concerns about legislation” by Anita Chabria (San Diego Union-Tribune, 5/1/2021, pp. A1 and A9), retitled “Most States Have a System for Ousting Bad Cops. In California, Legislation Is Struggling” for posting to the Los Angeles Times website. “Currently, only Hawaii, New Jersey, Rhode Island and California do not have centralized systems allowing state officials to revoke an officer’s right to work in law enforcement if they are found to have violated set standards, similar to licensing rules for doctors, barbers or acupuncturists. California had that ability in a more limited fashion until a 2003 law pushed by sheriffs and signed by Gov. Gray Davis ended it. ¶ [California] is the only state to have ever revoked its own oversight right, said Roger Goldman, a professor emeritus at St. Louis University who studies law enforcement decertification.” SB 2, co-authored by Sen. Steven Bradford (D-Gardena) and Toni Atkins (D-San Diego), is “a dense proposal that covers more than licensing, opening the door for the kind of nuanced debates that can leave even legislators confused, and it contains details with significant real-world consequences.” “Law enforcement is especially unhappy with a proposed state board that would advise on misconduct decisions and have investigative power. They argue it’s unclear what conduct could lead to a ban and take issue with the board being comprised mostly of advocates and those affected by police violence.” Supporters of the bill’s “reforms say civilian oversight is needed to restore faith in policing. They point out that internal affairs investigations are often conducted in secret, making it nearly impossible to know how and why officers are exonerated or disciplined, and criminal charges for peace officers remain rare.” (A. Chabria, A9)
While California’s situation is singular, the problem is national. Lack of transparency around sheriff/police misconduct is too often protected by legally-binding union contracts, which undermine civilian oversight of law-enforcement agencies (see related sidebar entries, this page). Union leadership and positions are not necessarily representative of the membership, especially when votes are rigged, and significant minorities within the ranks have no voice (see related sidebar entry, this page). Moreover, the law-enforcement accountability issue cuts both ways. Cf. the rise of Second Amendment sanctuary sheriffs who, as locally-elected officials, serve at “the will of the people” and believe they need answer only to voters in rural areas whose lifestyles and views are not represented by urban voters and lawmakers: “Unfortunately for the governor and the attorney general [of Washington state], they’re not my boss,” opined Sheriff Bob Songer of Klickitat County, who supports the local backlash against statewide edicts passed by big-city politicians, and believes he can choose not to enforce state and/or federal gun-control laws he has decided are unconstitutional.
and in Los Angeles, e.g.,
1. the allegations concerning deputy gangs in the Los Angeles County Sheriff’s Department, “Why Do Some L.A. County Sheriff’s Deputies Have Matching Skull Tattoos? It’s a question Compton residents have been asking for years” by Maya Lau (posted to the Los Angeles Times website on 8/11/2018); and
2. the unfolding scandal over “a secret list of 300 L.A. County deputies with histories of dishonesty and misconduct” (here quoting an exasperated Steve Lopez, p. B6 of his 8/19/2018 column for the Los Angeles Times) who continue to testify in court, “An L.A. County Deputy Faked Evidence: Here’s how his misconduct was kept secret in court for years” by Corina Knoll, Ben Poston, and Maya Lau (posted to the Los Angeles Times website on 8/9/2018).
3. “The Sheriff’s Gang Problem: A task force was set up to look into violent deputy cliques in the department. Where’s its report?” by the Editorial Board (Los Angeles Times, 3/31/2019, p. A17)
4. “California Police Slow to Comply with Records Law: Some major agencies are destroying officer misconduct files and ignoring court orders” by Sukey Lewis, Thomas Peele, Annie Gilbertson and Maya Lau (Los Angeles Times, 6/30/2019, pp. B1 and B5), retitled “California Police Are Destroying Files and Charging High Fees to Release Misconduct Records” for online posting, wherein the authors document how “[S]ix months after Senate Bill 1421 went into effect, some of the state’s largest law enforcement agencies haven’t provided a single record. ¶ Some law enforcement organizations [including the Los Angeles County Sheriff’s Department] are charging high fees for records, destroying documents and even ignoring court orders to produce the files.” (B1)
5. “Can the FBI Put an End to Deputy Gangs? Feds aim to do what L.A. hasn’t: root out controversial groups in the sheriff’s ranks” by Maya Lau (Los Angeles Times, 7/14/2019, pp. A1 and A20), retitled “Deputy Gangs Have Survived Decades of Lawsuits and Probes. Can the FBI Stop Them?” for online posting.
6. “Deputy Admits to 2017 Assault of Girl: Investigator of sex crimes was working on teen’s case when he sexually abused her, authorities say” by Alexa Díaz (Los Angeles Times, 7/14/2019, p. B4)
7. “Villanueva’s Trumpian Claims” by the Editorial Board (Los Angeles Times, 8/19/2019, p. A17). Alex Villanueva is Los Angeles County’s new sheriff. The Times editorial notes that lately, he has made “odd and often rambling corruption allegations in various forums,” without any substantiating evidence, proving only that “He brought with him into office and continues to nurture the point of view of a disgruntled employee rather than a leader. His allegations repeat the sort of statements bandied about on sheriff’s deputies’ private message boards: Discipline is unfair, outsiders don’t understand, the deck is stacked against them, and the Board of Supervisors, the public, the media are all out to get them. [...] It is no wonder that the county Democratic Party and others who endorsed Villanueva now have buyer’s remorse. They thought they were getting a progressive sheriff. What they got instead was the opposite: an advocate for deputies who resent stricter standards of conduct.” (A17)
8. “Deputy’s Discipline for Lying Was Secret: His record, exposed under a new state law [California Senate Bill 1421], could upend criminal cases he testified in” by Maya Lau and Ben Poston (Los Angeles Times, 9/22/2019, p. A1), retitled “A Homicide Detective’s Dishonesty Was Kept Secret for Years. Now It Could Upend Criminal Cases” for online posting.
But even without so many blatant cases of deputy misconduct to undermine their credibility, deputy sheriffs are no more qualified than I am to opine on what kind of state laws and lawmakers put us and our communities most at risk, especially when my lived experience contradicts the Deputy Sheriffs Association of San Diego’s vague generalities about Maienschein’s effectiveness as “an advocate for public safety.” None of us know with certainty what Maienschein’s opponent “would” or would not do in office. But, as a long-time resident of the 77th Assembly District, I know full well what Brian Maienschein has and has not done when it comes to advancing my priorities for community and personal safety.
[ UPDATE ] A good reminder of just how tenuous our sense of safety and housing security (as provided by even the best fenced-in private property) actually is: “‘The Talk’ Needs an Update: As a black parent I know the importance of schooling my kids about interactions with the police,” by Judy Belk (op-ed for the Los Angeles Times, 11/3/2019, p. A20).
As Belk makes clear, being safe in your own home has for too long been a white privilege in the U.S.: “The history of African Americans should have taught me otherwise. We are a people who have never had the luxury of feeling safe in our homes. Our ancestors were pulled from their beds and hung on trees all over America, some for just making eye contact with white folks. Bombs were thrown in our living room windows, crosses were burned on our neatly manicured lawns, and our land and homes were taken from us time and time again by intimidation and force, with little or no compensation. We have never been safe in our homes. ¶ But, even with this violent history, we still want to believe and hope that, while our lives don’t seem to matter much these days on our neighborhood streets, in our schools, or even in our churches, surely in 2019 we can be safe within the four walls of our homes.” (J. Belk, A20)
I am not overly concerned with the possible early release of individuals classified as “hardened criminals” by a legal system I know to be unfair and unequal in its delivery of justice. I am, however, very concerned with real “changes to the law” (Cal. Civ. Code § 841), codified in the Good Neighbor Fence Act of 2013 (which Maienschein continues to support), which put me and my family at continuous (not just occasional) risk, 24/7, from known predatory neighbors (not fanciful bogeymen) in the adjacent subdivision. As documented here and elsewhere, I have asked, repeatedly, that Brian Maienschein represent me (and all other constituents negatively affected by the Legislature’s weakening of Cal. Civ. Code § 841 in 2013) in this matter, but he has done nothing at all. This strong “advocate for public safety” (mailer No. 2) and “leader who gets things done” (mailer No. 4) — earnestly assuring voters “I believe there is still a great deal we can accomplish working together on behalf of this community.” (mailer No. 1) — is missing in action when ordinary constituents wish to set his legislative agenda. Hence, my designation of Brian Maienschein as 2018’s poster child for Fake Representation. A true representative does not ignore the legislative needs of those constituents to whom he cannot easily pander.
In the end, fixing California’s Good Neighbor Fence Act of 2013 is about much more than just “strongly opposing” some vaguely-defined criminality that “puts our community [emphasis added] at risk” (mailer No. 2). It’s about protecting (and restoring) Californians’ founding rights to life, liberty & property. In a properly-functioning representative democracy, this should not be a partisan issue, and I expect anybody who truly represents me in Sacramento to make fighting for these basic rights a legislative priority. In so doing, a partisan politician with whom I differ over a great many things can still effectively represent me in Sacramento by tending to the public good (which benefits me, too, as part of that public). For example, I consider California Assembly Bill 1404 part of an overall trend (now being challenged by the new land-value tax movement) whereby the state is increasingly involved in picking winners & losers by subsidizing home ownership for some, at the expense of others. Presumably, Maienschein favors this legislative trend (since he continues to support California’s Good Neighbor Fence Act of 2013), while I do not. Nonetheless, we should still be able to agree on the pressing need to strengthen Cal. Civ. Code § 841 — because it’s clearly in Californians’ common interest that we do so — by including language about intent, enclosure, consent, and enforcement that protects individual property rights. A true “representative” would have acted on this long ago. But as of the 2018 primary election, neither of my fake representatives in Sacramento has seen fit to explain their unwavering support for the weak and flawed Good Neighbor Fence Act of 2013, let alone lead a bold bipartisan effort to fix it.
Indeed, the more I look into what many of our elected “representatives” are actually doing in Sacramento, the more alarmed I am by what I learn. (See sidebar, this page, for more examples of flawed — even “fatally flawed” — legislation enacted by our fake representatives.) Dan Walters continues to document legislative shenanigans in Sacramento that are clearly at odds with the public good, such as the passage of Senate Bill 858 in 2014, which Walters describes in his 9/27/2017 commentary as “one of those infinitely complex, multi-point legislative monstrosities deemed to be budget trailer bills” which, in reality, serve as “vehicles for enacting major changes in state law with little or no connection to the budget and without committee hearings and other forms of public exposure.” (D. Walters, n. pag.) In particular, notes Walters,
SB 858’s provision No. 27 should be repealed. But that would require Brown and legislators to admit that it was just an exercise in political expediency and shouldn’t have been enacted in the first place.
Politicians don’t admit to such errors, so in time-dishonored fashion they have been nibbling on the underlying issue, trying to defy the old Capitol axiom that you can’t fix a bad bill.
The latest attempt is Senate Bill 751, which passed both legislative houses without dissent and is now awaiting Brown’s signature or veto. It would raise the supposed reserve cap and exempt some small districts, and thus reduce its overall potential effect.
However, the cap still remains in law, and it still forces school districts to use accounting gimmicks to shield themselves from it, thus making it more difficult for parents and taxpayers to understand their local school district finances.
(Dan Walters, “Capitol Politicians Try to Fix a Bad Law on School Reserves,” posted to the CALmatters website, 9/27/2017)
This kind of fake representation is an outrage, and should be challenged as such. In my opinion, it’s urgent that voters start judging legislators’ “Record of Achievement” (from Maienschein’s campaign literature, mailer No. 1) based on the quality, not quantity, of legislation with which they are associated. We must figure out new ways to evaluate a bill based on real outcomes (especially those pesky unintended consequences! ;-) after legislation is tested in the real world.
In the meantime, don’t be fooled by such tricks of the trade as high-concept brand names (e.g., “the California Values Act,” more prosaically known as Senate Bill 54) that mislead and manipulate us. Who would have thought that something called the Good Neighbor Fence Act of 2013 could have so many negative economic and social consequences for ordinary Californians? ... destroying my quality of life ... impeding my recovery from a Stage 3 cancer & related complications (thus contributing to our soaring health care costs) ... squandering precious resources (water, energy, human capital)....
And don’t settle for neat one-sentence summaries of achievement (usually opinions masquerading as factual statements) that are easy to spin for the base and promote with mailers and on social media. For example:
Brian Maienschein has a track record of delivering results for residents of the 77th Assembly District.
(Brian Maienschein campaign mailer No. 4 of 5 for May 2018)
and
The California Small Business Association named Maienschein the “Small Business Legislator of the Year [2017]” for his support of small businesses in California.
(Brian Maienschein campaign mailers No. 1 and No. 4 of 5 for May 2018)
Maienschein may well deliver great results for select groups such as the California Small Business Association, but he has not delivered at all for me — a small businesswoman and resident of the 77th Assembly District with an unambiguously negative experience of Maienschein’s legislative track record.
Nor should we expect good outcomes for the majority of California residents to follow inevitably from quality legislation. Even the most well-intentioned, carefully-conceived law — perfectly crafted in simple, elegant language to yield flexible guidelines we can all understand and easily adapt to a variety of circumstances — can not cover every particular contingency that may arise in the future.
Abstract rules, sound as they may be in general, turn out sometimes to be inapplicable in particular cases; in politics, this means that decency or fairness (epieikeia) requires that written nomos [i.e., written laws] be occasionally overridden, for the sake of justice itself.... Consequently, it is unreasonable ever to demand of moral and political philosophy (politiquê), and the written laws, that they be exact (akribês) in the way that mathematics might be. We cannot remove the deliberating agent from ethics and politics, reducing politiquê to a passive application of universal principles to particular circumstances. Judgment is required.
(Arash Abizadeh, “The Passions of the Wise: Phronêsis, Rhetoric, and Aristotle’s Passionate Practical Deliberation,” 269–70)
That said, we still need to do a much better job than we’re doing now guiding the kind of action-specific judgment I ran up against in small claims court.
In the radical republican tradition of the Diggers, that is the kind of rectification of law I seek, and that I believe bona fide representatives, whatever their partisan agendas as dissembling politicians, should work to provide.
With a population approaching 40 million, California is a big, messy, diverse and divided democratic union, with many competing public interests, making it difficult — at times, impossible — to advance the common good, which I assume, in an ideal democratic world, to be the legislature’s main business. It is never easy to negotiate what cultural critic Edward Said (1935–2003) called our “overlapping yet irreconcilable experiences”:
... some dialectical oppositions are not reconcilable, not transcendable, not really capable of being folded into a sort of higher, undoubtedly more noble, synthesis.
(E. Said, “The Public Role of Writers and Intellectuals,” 36)
At the very least, this means that citizens and legislators alike must forego a demagogic politics of certainty (the type of militant ignorance taking wing on social media right now may make us feel good for the moment, but it’s no way to govern). Rather, we must educate ourselves about those issues which are most important to us. We must think outside the box and reach beyond the short-term, one-size-fits-all “quick fix” when we’re dealing with long-term, complex and multifaceted problems (like the crises looming around housing, education, immigration, the justice system, poverty, health care, and climate chaos). We must give up on trying to get what we want by manipulating others. And we must commit instead to the hard work of passionate practical deliberation and persuasion.
In his online commentary of 9/27/2017, quoted above, Dan Walters referred to “the old Capitol axiom that you can’t fix a bad bill.” Being neither a lawyer nor a legislator, I am not qualified to judge whether the Good Neighbor Fence Act of 2013 fits in this category (which matters most, I assume, if legislators prefer to repeal & replace, rather than to amend, a bad bill). But I am more than qualified — having lost control of my private property because of the bill’s ill-conceived changes to Cal. Civ. Code § 841 — to evaluate California Assembly Bill 1404 as “flawed” legislation, in need of rectification. Without question, the law should be fixed — and fixed sooner rather than later — unless, of course, the legislators who enacted and/or continue to support AB 1404 in its present state believe that undermining Californians’ founding rights regarding person & property is a successful outcome!
In short, I say again to the California state legislature: You broke it; you fix it.
Fake representatives who do not feel this legislative calling (to maintain & improve the laws they enact), should be voted out of office, as I hope will be the fate of the 77th Assembly District’s Brian Maienschein on 6 November 2018.
For 3 years now I have been trapped in government limbo, with serious physical and financial consequences — for me, my family, my friends, my colleagues & clients & business partners — multiplied by way of a ripple effect. And the longer this drags on, the more damage there is to our fragile democracy by unrepresentative government, as more of us lose our free agency as citizens.
I am still hopeful enough about California’s grand democratic experiment that I refuse to believe that any of us must settle for fake representation in Sacramento ... at least, not for the long term!
It will cost us time & effort, but voters have the power to root out fake representation.
So carpe diem, folks! I can’t do this alone.
Fake representative Brian Maienschein reelected on 11/6/2018
Well, we almost got rid of one fake representative from the California state assembly! For an entire month, the Maienschein-Gover race remained too close to call, with Gover whittling away at Maienschein’s election-night lead right up to the end, when the last ballot was counted and a final, official tally publicly posted on 12/6/2018.
Those of you who think that your vote doesn’t matter, take note: only 607 votes made the difference in this close election.
I give the official 6 November 2018 General Election results below:
| CALIFORNIA STATE ASSEMBLY – DISTRICT 77 (districtwide results for 11/6/2018 general election) |
||
|---|---|---|
| Brian Maienschein - Rep | 99,880 votes | 50.15% of votes cast |
| Sunday Gover - Dem | 99,273 votes | 49.85% of votes cast |
| Write-in | not counted [*] | ?% of votes cast |
| [*] In 2009, the California Legislature enacted a law banning write-in candidates in general (but not primary) elections, with language that reads: “A person whose name has been written on the ballot as a write-in candidate at the general election for a voter-nominated office shall not be counted.” (see 8/26/2018 column by John Myers for the Los Angeles Times, p. B3, retitled “When California Lawmakers Removed Write-In Candidates from State and Congressional Ballots, It Wasn’t By Accident” for online posting) In sum, those of us wanting to vote for a write-in candidate of our own choosing have been officially disenfranchised by the state (and the California Court of Appeals), in a system every bit as rigged against the democratic principle of “one person, one vote” as the Electoral College (for more on how the Electoral College undermines democracy, and proposed workarounds for this, see sidebar entry). For an interesting discussion of how electoral system bias impacts political representation and the future of our democracy, see sidebar entry for UCS’s new research program on the science of electoral systems. I’m also excited to learn about Sam Chang’s proposal to bring “negative voting” — whereby voters have the option to vote against a candidate — to California, as part of a global democratic reform effort. See sidebar entry on “the negative vote” project for details. |
||
While our voter insurgency fell somewhat short of the mark, enough of us turned out — even in losing, Sunday Gover garnered more votes than the winning candidates in several other races — to send a clear message to Sacramento that there will be consequences for elected politicians who think they can continue to get away with neglecting the needs & interests of 49.85% of the electorate.
This time around, voters in the 77th Assembly District have rewarded incompetence and unrepresentative government by giving incumbent Brian Maienschein yet another term in office.
But I’m willing to wager that, next time around, with two more years of fake representation to account for, he won’t be as lucky.
Is California Senate President pro tempore Toni G. Atkins a fake representative, too?
Since my assemblymember won’t step up and lead a bipartisan effort to fix California state Assembly Bill 1404, I have had to ask for help from my other representative in Sacramento, Toni Atkins of the 39th Senate District. While Atkins is no longer an assemblymember, she has even less excuse than Maienschein for legislative malpractice now that she is one of the Capitol’s true power brokers, having been sworn in as president pro tempore of the California state senate on 3/21/2018.
And yet, I’ve been waiting since August 2017 for Toni Atkins to answer a simple, pointed question
will you commit to fixing California’s flawed Good Neighbor Fence Act of 2013 — yes? or no?
posed in multiple letters, including two sent certified mail to her Sacramento office in November 2017 and February 2018 (see Follow-Up No. 23, dated 11/14/2017, and Follow-Up No. 24, dated 2/13/2018, in the Updates section at the top of the Web page giving my two Open Letters to California legislators).
It is not unreasonable to demand that my elected representatives either take responsibility for the legislation that they enact, and work to fix Cal. Civ. Code § 841, as I have asked, or decline to do so and explain to me why.
Rather than engage on the issues, my “representatives” in Sacramento continue to prevaricate.
On Saturday, 11 August 2018, I received notification of Senator Atkins’ first attempt to act on my behalf, short of addressing the thorny policy issues involved. Without even acknowledging the traditional role of the state and Cal. Civ. Code § 841 in protecting individual property rights — that is, until AB 1404 reforms gutted Californians’ longstanding right to enclosure — Senator Atkins decided that my issues fall under local, not state, jurisdiction, and she pursued much the same course of action as that taken in February 2016 by Assemblymember Brian Maienschein of the Assembly Committee on Judiciary, which authored AB 1404: she tried, once again, to palm me off onto local government officials, this time directing my San Diego City Councilmember, Chris Cate, to take over and “quickly determine an appropriate next step for” me “to take.”
Unfortunately for all concerned, I adamantly disagree with Senator Atkins’ preliminary assessment that my issues are properly “covered under the City of San Diego’s code compliance ordinances” rather than Cal. Civ. Code § 841. Laws giving broad-based guidance on fencing and enclosure (directives for maintaining “the boundaries and monuments between” coterminous landowners) have been the purview of state legislatures since the founding of this country in the early 17th century (scil. the fence law enacted by the Virginia assembly in February 1632), and in California from 1872–2013. Furthermore, it is my contention that state lawmakers ought to focus on those areas of the law historically assigned to the states — such as Section 841 of the California Civil Code, “relating to real property” — rather than relegating a matter historically falling under state jurisdiction to the cities, and engaging in power struggles with cities over what have historically been local matters. As in the “red states” with right-wing, activist legislatures looking to preempt local regulations and “stomp out local control” — as phrased by Utah state senator Howard Stephenson, a member of the American Legislative Exchange Council (here voicing support for ALEC’s latest agenda) — in their more progressive communities, California legislators are intent on overriding the will of the people at the local level with state preemption laws like Senate Bill 827. This kind of political overreach on the part of autocratically-inclined lawmakers needs to stop. Large, diverse states like California should proactively collaborate with local communities on community-based solutions for our mutual problems, rather than simply imposing more one-size-fits-all mandates on localities. At the very least, state legislators should tend to their own governmental role, and pay more attention to those areas of the law historically assigned to the states. To this end, I sent Senator Atkins a detailed 7-page letter (written the evening of 8/13/2018) explaining why I still believe it is the responsibility of the California state legislature (not San Diego City Councilmember Cate) to deal with the fallout from California’s flawed Good Neighbor Fence Act of 2013, which repealed and replaced a perfectly good statute enacted in 1872 with a “clarified and modernized” (Atkins’ words) mess (click/tap here for the text of Cal. Civ. Code § 841, as revised in 2013).
Senator Atkins’ response (dated 10/18/2018) to my letter of 8/13/2018 again dodges my question; nor does she offer any substantive explanations for her continued support of AB 1404. Her letter of October 2018 merely recycles arguments from 2013 to justify the legislation. Moreover, her letter was evidently written without having read (and/or comprehended) the communications from me to which it ostensibly responds (see Follow-Up No. 28, dated 8/13/2018, and Follow-Up No. 33, dated 8/15/2018, in the Updates section of the link page for my 2015–16 Open Letters to legislators). Indeed, Senator Atkins’ continuing negligence was fully exposed when she enclosed, for my edification, two legislative documents which (1) I had already posted to my website, over three years earlier (in July 2015), and (2) I openly disparaged (“the legislature’s 5! highly-repetitive, superficial analyses of AB 1404”), plus quoted from extensively, in my 8/15/2018 and 8/13/2018 communications with her office.
In turn, I complained about her perfunctory response in my reply of 10/21/2018, which took weeks to reach the senator, in part because her office ignored my request for a forwarding address. The senator has yet to answer this epistle, in which I argue that even if the legislature’s rationale for AB 1404 was appropriate in 2013 (and I have yet to be convinced it was), legislators’ reforming zeal back then is easily challenged today when we have actual outcomes by which to judge the reformed law’s de facto performance in the real world. While Atkins’ point that AB 1404 reforms were non-controversial in 2013 (read: no lobbyists or plutocrats complained) may in part explain why she and others voted to reform Cal. Civ. Code § 841, it offers no real defense of AB 1404 now that the reforms have proven highly controversial in practice.
Significantly, none of Senator Atkins’ arguments defending AB 1404 in her letter of 10/18/2018 address whether or not Cal. Civ. Code § 841 — in its former and current states — is good law. Instead of assessing the 1872 fencing statute with due diligence, before voting to repeal & replace it, California legislators just succumbed to “whiggish narratives” concerning progress and modernity, which Senator Atkins resorts to still. Conventional wisdom held that a late-19th-century statute no longer pertains to the early-21st-century human condition, as delimited by the United States Census Bureau, and apparently no one thought to question this. But someone should have. As the Ten Commandments for the Abrahamic religions make clear, human nature has not changed all that much since biblical times. Laws like the original Cal. Civ. Code § 841 — giving age-old guidance on the politically-contentious issues of personal property, enclosure, and covetous neighbors — are deeply rooted in the Anglo-American experience, dating from this country’s founding, and remain relevant today: our earliest legislatures, beginning with the Virginia House of Burgesses which first met in 1619, wrestled with these very issues, because good fence laws were always a legislative priority for this country’s founders. Fundamental republican principles & values are involved, and this republican heritage should not be overturned by ignorant legislators, acting in haste, with little regard for the common good, without very good reason.
Atkins’ other argument in favor of AB 1404 is even lazier than California legislators’ knee-jerk ageism: “Other states including Iowa, Louisiana, Minnesota, Nebraska, and New Hampshire have updated their statutes and adopted similar neighborhood fencing laws because our state’s neighborhood fence statute had not been updated since 1870.” (see Senator Atkins’ letter of 10/18/2018) In other words: If it’s good enough for Nebraska, it’s good enough for California! Needless to say, I do not find this kind of argument persuasive.
Still unwilling to accept that fake representation — pseudo-engagement with constituents, question dodging, and obfuscation — is to be Toni Atkins’ legacy, I continue to correspond with Atkins’ office, hoping that the new president pro tempore of the California state senate will miraculously transform into the model representative I voted for in the 11/8/2016 General Election. In other words, I keep looking for Senator Atkins to live up to her progressive political brand: to show real initiative and buck the present corrupt system (which ignores the will of the people in order to advance the legislative agendas of lobbyists, special interests, and politicians); and to embrace public deliberation of the highest quality, which includes having the courage to deal honestly with her constituents and critics (especially one who has consistently supported her in the past, and is bitterly disappointed by her senate performance thus far).
Senator Atkins’ continued indifference to the legislative priorities of ordinary constituents like me is why trust & confidence in representative government is at an all-time low. Yet I do not share in the fatalism felt by so many. As an historian, and as a citizen-activist concerned about the crisis of “representational integrity” that theatens our democracy (see separate discussion in sidebar), I have a responsibility to stick with and document our ongoing struggle for “the powers of citizenship” — “the ability to participate in democratic life as valued, autonomous, and self-determining beings” (Gabriel Winant, “What We Do: The Evolution of Work,” 28).
Senator Atkins may believe that AB 1404 is settled law, and our debate is over. She may also believe that there is no further requirement for her to have to explain herself to me, or derail her legislative agenda for the upcoming session.
I disagree, and will continue to shine my historian’s spotlight on the “inattentive lawmaking” that has taken over Sacramento, leading to passage of, and unwavering support for, California’s flawed Good Neighbor Fence Act of 2013, along with other “uncooked,” “fatally flawed” pieces of legislation such as the 2017 session’s Senate Bill 562 (the single-payer initiative sponsored by state senators Ricardo Lara and Toni Atkins), the 2018 session’s Senate Bill 826 (the gender quota bill for corporate boards sponsored by state senators Toni Atkins and Hannah-Beth Jackson), and the 2018 session’s Assembly Bill 375 (the California Consumer Privacy Act, sponsored by assemblymember Ed Chau and state senator Robert Hertzberg).
2019 in review
As for the 2019 session which concluded on 13–14 September 2019, Toni Atkins chose to focus her efforts on Senate Bill 1, “The California Environmental, Public Health and Workers Defense Act of 2019,” regarded as “the most significant legislation she ever authored” (Dan Morain, “Newsom Breaks with Democrats on Environmental ‘Trump Insurance’ Bill,” posted to the CALmatters website, 9/14/2019). “Senate Bill 1 sought to lock in place clean water, air and labor law that existed on Jan. 19, 2017, the day before President Donald Trump took office. The bill was set to expire in January 2025, when Trump would be scheduled to leave office after a second term.” (D. Morain, n. pag.)
The bill is opposed by many different interests, including Governor Gavin Newsom and Senator Dianne Feinstein, so I wonder how many of her constituents wanted Senate President Pro Tem Toni Atkins to make the reactionary SB 1 a legislative priority? I certainly didn’t.
I am deeply skeptical of locking in the status quo — which, no doubt, includes at least a few outmoded or flawed laws (like AB 1404, and others documented here) — at such a pivotal time for our liberal democracy. What we need most right now, I believe, is maximum flexibility. I couldn’t do my work otherwise, and I don’t see why the making of public policy should be any different, as evidenced by the growing debate over fuel breaks. Here we find state government locked into outmoded fire-prevention strategies that don’t actually work, all the while giving “people a false sense of security” in addition to “causing tremendous damage to the resources, tremendous erosion and habitat loss.” While state government commits to wildfire prevention policy based on wishful thinking (our desire for an “easy approach” and quick fix) and on anecdotal evidence, it is left to the insurance industry to conduct “scientific assessments of the effectiveness of fuel breaks in California,” and their research shows that the primary fuel for California’s deadliest and most destructive wildfire, the Camp fire, “was houses, not vegetation.” As such, “There is more bang for the buck [...] in making houses resistant to the glowing ember blizzards that set buildings ablaze in firestorms. ¶ ‘Vegetation clearance is an expensive proposition and it needs to be addressed often times on an annual basis,’ he [John Todd, deputy chief for prevention in the county fire department] said. ‘You can change a vent and protect an attic space for 30 years instead of clearing miles of weeds [every summer].’ ¶ But home hardening is not the state’s current priority. Vegetation management is. The $32 million earmarked for the Cal Fire projects is part of $1 billion — primarily from the proceeds of California’s cap-and-trade greenhouse gas program — which the state plans to mostly spend on fuel reduction projects over the next five years. ¶ Meanwhile, the Legislature this year [2019] stripped the funding from a proposal to establish a $1 billion low-interest loan and rebate program that would help homeowners pay for fire-resistant retrofits.” For details, see the investigative report, “State Spent $32 Million on Fuel Breaks, But Will It Help?: Such projects offer little defense from wind-borne embers” by Bettina Boxall, with graphics by Jon Schleuss (Los Angeles Times, 9/15/2019, pp. A1 and A16–A17), retitled “Forest Thinning Projects Won’t Stop the Worst Wildfires. So Why Is California Spending Millions on Them?” for online posting.
Given life-threatening catastrophes such as wildfires, where the state “is focusing on the wrong thing,” why on earth would we condemn ourselves to five more years of bureaucratic waste & mismanagement (SB 1) in order to save California from Donald Trump?
President Trump, who disdains science and the advice of experts, also bears responsibility for much imprudent law-making with his ignorant calls for ideologically-driven “forest management” in California, threatening “No more” “$$$ help” from the federal government if Governor Newsom doesn’t first “‘clean’ his forest floors, regardless of what his bosses, the environmentalists, DEMAND of him. Must also do burns and cut fire stoppers.” See the “WILDFIRES” section of the “AP Fact Check” (posted to the PBS NewsHour website, 11/9/2019) in which Hope Yen and Calvin Woodward of the Associated Press fact-check two presidential tweets trolling state officials.
And a reminder from Dan Morain in the CalMatters newsletter for 1/30/2020 about President Trump’s bizarre proposals for preventing wildfires: “‘And, by the way, he’s serious about the raking. He called me personally to double check on the raking. I thought it was a prank call.’—Gov. Gavin Newsom, describing a call he received from President Donald Trump about forest management practices, including raking.” (D. Morain, n. pag.)
Indeed, “It is far from clear whether a state law [like SB 1] can nullify a federal one.” (Jennifer Pierre, “Senate Bill 1 Will Lead to Conflict. There Is a Better Way to End California’s Water Wars,” posted to the CALmatters website, 9/13/2019) And even if it can, there are better, more targeted ways to fend off President Trump’s predatory strikes on California — such as the 2018 “law that barred the State Lands Commission [...] from allowing new infrastructure that would help energy businesses move their product onshore,” thus effectively blocking Trump’s moves “to offer offshore oil and gas leases off the California coast” and to “open more than a million acres of federal land in California to oil and gas exploration” (Julie Cart, “On Bill [Atkins’ SB 1] to Blunt Trump’s Environment Aims, It’s Farms or Endangered Species — and Newsom Must Choose,” posted to the CALmatters website, 9/11/2019).
[ UPDATE ] On 9/27/2019, Governor Newsom vetoed Senator Atkins’ Senate Bill 1, calling it “a solution in search of a problem” (“Newsom Vetoes Bill to Blunt Trump Policy,” San Diego Union-Tribune, 9/28/2019, p. A3). SB 1 backers disagreed, “saying Newsom was wrong to veto a bill they said he did not understand.” Au contraire. A bill too complex for Governor Newsom — a known policy wonk and successful businessman — to understand should not be foisted on the rest of us!
I also believe that the best way to defeat Donald Trump is to peel off his base of support, by making them stakeholders in the public process of planning for California’s future. The anti-Trump resistance needs to engage fairly with its legitimate critics & opponents, and make them part of the solution, not keep treating them as the problem. IMO, this kind of broad-based buy-in is the only way we move forward with the many difficult issues ahead.
Pesident Trump claims to represent big swaths of the electorate whose interests are being ignored by the Democratic establishment running this state. I encourage California legislators to prove him wrong! But I suspect that he’s not wrong, because even constituents like me — progressive populists, with a forward-looking agenda — are so desperate for representation that I’m willing to ally with, possibly even vote for, principled & capable Republicans willing to sweat the small stuff and put the needs of ordinary voters before their own. I have neither time for nor interest in grand gestures like Senate Bill 1, where Donald Trump is driving the agenda. Instead, I want my private property back, and with it, my health and well-being and middling quality of life.
Hence, I will continue to exercise my First Amendment right “to petition the Government for a redress of grievances,” and keep on pushing my case for state-level legislative reform of misguided AB 1404 reforms, which I believe should be a political priority.
Long after my fake representatives in Sacramento have been termed out, this Web page will be instructing visitors from around the world about our microcosmic struggle for legal and political reforms that advance the common good.
Click/tap here to open a second-window aside with “A Voter’s Manifesto: How I Voted in the Presidential Primary Election (3 March 2020).
To view the results (finalized 4/2/2020) of the Presidential Primary Election (3 March 2020) for California State Senator, 39th District and State Assemblymember, 77th District, click/tap here (A Voter’s Manifesto, part 2 of 2)
w.gif){kind=small}
[ Having trouble getting some of the underlined text links on this page to work?
A note about the 25 hover-box notes (or “pop-ups”) used on this Web page.
To view all of this Web page’s hover notes in a second-window aside, click/tap here. ]
w.jpg)
^ Judgement. Emblem 139 in Pierce Tempest’s English edition of Cesare Ripa’s Iconology, entitled Iconologia: or, Moral Emblems, by Caesar Ripa (London, 1709).
Ripa’s male personification of Judgement is glossed: “A naked Man, attempting to sit down upon the Rainbow; holding the Square, the Rule, Compasses, and Pendulem, in his Hand. ¶ The Instruments denote Discourse, and Choice, Ingenuity should make of Methods to understand, and judge of any thing; for he judges not aright, who would measure every thing in one and the same Manner. The Rainbow, that much Experience teaches Judgment; as the Rainbow results from the Appearance of diverse Colours, brought near one another by Virtue of the Sun-beams.” (P. Tempest, Iconologia, 1709, 35)
w.jpg)
^ Just Judgement. Emblem 186 in Pierce Tempest’s English edition of Cesare Ripa’s Iconology, entitled Iconologia: or, Moral Emblems, by Caesar Ripa (London, 1709).
Ripa’s male personification of Just Judgement (or Good Counsel) is glossed: “A Man in a long, grave Robe, with a human Heart for a Jewel, engrav’d with the Image of Truth; stands with his Head inclin’d, and his Eyes fixt on open Law-books, at his Feet; which denotes Integrity in a Judge, who never ought to take his Eyes off the Justice of the Laws, and Contemplation of naked Tr[u]th.” (P. Tempest, Iconologia, 1709, 47)
ACw.jpg)
ACw.jpg)
^ Mid-17th-century engravings by J. Vennekool, after the two marble sculptures of Justice, by Artus Quellinus the Elder (1609–1668), which ornament Amsterdam city hall (now known as Koninklijk Paleis Amsterdam) — a palatial monument to Dutch merchant capitalism, designed by the architect Jacob van Campen (1596–1657), and constructed 1648–1655. Published in Afbeelding van ’t stadt huys van Amsterdam, in dartigh coopere plaaten, geordineert door Jacob van Campen; en geteeckent door Jacob Vennekool [Images of the City Hall of Amsterdam in 30 Engravings], by Jacob van Campen, with engravings by Jacob Vennekool (Tot Amsterdam: Bij Dancker Danckerts, 1661), pl. W (image on left) and pl. G (image on right).
Part of “a vast symbolic scheme designed to record Amsterdam’s achievements and historical position at a moment of triumph [the Peace of Münster, of 1648] and to encourage government and citizens alike in the virtues of civic life” (K. Fremantle, "Themes from Ripa and Rubens in the Royal Palace of Amsterdam," 258), Quellinus’s two sculptures of Justice emphasize the city’s good and just government, and the public happiness which this brings. The image at left shows a desirable woman holding a sceptre surmounted by a ray-emitting eye (the all-seeing eye of God) in her right hand, and the scales of reward and punishment (“With the Measure with which one measures one shall be measured.”) in her left hand.
The sculpture depicted at right shows what has become the iconic image in the Latin West of a “blinded” Justice, wielding scales and sword — the same learned symbolism selected by Raphael for his Stanza della Segnatura (see top of page) and adapted by Comenius in his picture book for children (see below). Despite sometimes being misinterpreted by popular culture, this Baroque symbol of blind Justice — “with hoodwinked eyes that she may not respect [i.e., regard] persons” (J. A. Comenius, Orbis Sensualium Pictus, Eng. trans. by C. Hoole, 1659, 236) — was not meant to be a rigid egalitarian ideal abstracted from casuistical circumstance.
Four centuries ago, the blindfold was less about making everyone equal before the law, and more about ensuring that no one is above the law. A blinded Justice would be less predisposed to the sort of favoritism typically accorded those with status, wealth & power in a hierarchical society. (Indeed, the radical implementation of blind justice in the progressive Anglo-American colony of East New Jersey — intended to offset the corrupting nature of inherited wealth, and assert instead the “privilege of the people” — was a major selling-point for prospective emigrants.)
Moreover, fair & equal treatment before the law does not necessarily mean the exact same “deserts” and “rewards” for everyone, regardless of individual status, resources and situation (according to Comenius, Justice’s scale is custom-balanced for each individual such that each of us is appropriately “incited to virtue”). In other words, Just Judgement must be at the same time universal & particular.
The dilemma posed to families, communities, societies, professions, courts and governments committed to this double concept of blind justice is all too real. E.g., there are few parents out there, determined to treat their children “equally,” who have not felt the weight of having to deal with/compensate for differences among siblings. How do we equally apportion punishments & rewards when situations and individuals are different and unequal to begin with? As most parents discover, resorting to a reductionist, one-size-fits-all understanding of equality is seldom the answer.
This judicial dilemma is also raised in the editorial, “Pros and Cons of Blind Justice” (Los Angeles Times, 6/16/2019, p. A13), wherein it is pointed out that “In recent years, algorithms and new technologies have promised to remove human bias from many aspects of the justice system, including bail. But critics say these tools often simply amplify preexisting racial biases in the system.” (A13) When it comes to dispensing justice, there is simply no escaping age-old uncertainties and risks in the imperfect art & science of rhetorical reasoning.
In my opinion, a peculiarly modern, technocratic notion of equality similarly mars judgment and impedes case reasoning about antique laws such as Cal. Civ. Code § 841 (as originally enacted in 1872), which began: “Coterminous owners are mutually bound equally to maintain: ....” According to the analyses prepared for the California state legislature, justifying repeal and replacement of this late-19th-century statute in 2013, the original law forced modern-day courts to blindly (and unfairly) apportion equal responsibility for division fencing:
“While maintaining the centuries-old rule in California that neighbors who share a fence equally share in the responsibility for maintaining it, the bill [AB 1404, aka the Good Neighbor Fence Act of 2013] also takes into account that neighborhood fences are not always mutually beneficial, and that an adjoining landowner who receives little or no benefit from a fence will not be required to subsidize an adjoining landowner’s fence construction or maintenance. By allowing such owners to demonstrate the unfairness of imposing equal responsibility in a particular case, this bill prevents the inequities that would result from a hard and fast ‘blanket’ presumption of equal benefit and responsibility.” (Legislative Analysis prepared by Drew Liebert, 30 April 2013, p. 2; see Item 1 of 5, Floor Analysis 1 for the complete text of this document, which Senator Toni Atkins recapitulates in her letter to me, dated 10/18/2018)
In fact, the original law makes no such “hard and fast ‘blanket’ presumption of equal benefit and responsibility” vis-à-vis fencing. Indeed, the original law says nothing at all about deriving “an equal benefit [emphasis added] from the shared fencing that divides their properties” (Legislative Analysis prepared by Drew Liebert, 30 April 2013, p. 1) or about “equal responsibility [emphasis added] for the reasonable costs of construction [emphasis added]” of fencing (Legislative Analysis prepared by Drew Liebert, 30 April 2013, p. 1). The original statute stipulates equal responsibility only once, and that in a limited context: mandating that coterminous owners are “equally” bound to maintain (in the sense of keep up) “the fences between them.” Ergo, I can find nothing in this 1872 statute dictating that modern-day courts force adjoining property owners to assume equal costs for construction of an expensive fence that they do not want or do not choose to use. In other words, there was never any call for an indiscriminate application of blind justice. Quite the contrary.
w.jpg)
^ Justice. Emblem 188 in Pierce Tempest’s English edition of Cesare Ripa’s Iconology, entitled Iconologia: or, Moral Emblems, by Caesar Ripa (London, 1709).
Ripa’s female personification of Justice is glossed: “A Virgin all in white; blinded; in her right Hand she holds the Roman Fasces, with an Ax in it; in her left, a Flame, and an Ostrich by her side. ¶ The White shews that she should be spotless, void of Passion, without Respect of Persons, as she, being hoodwink’d, declares. The Fasces denote Whipping for Small Offences, and cutting off the Head for Hainous ones. The Ostrich, that Things should be ruminated upon, how hard soever they be, as the Ostrich, in time, digests hard Iron.” (P. Tempest, Iconologia, 1709, 47)
Not mentioned by Tempest in the gloss is the chained beast (viewer’s bottom right) — possibly a bear? — symbolizing anger, which has been suppressed and made captive by a righteous Justice.
.jpg)
^ Hieroglyphic character of Justice. From lesson No. 116 (pp. 236–37) in the first English edn. (1659) of the illustrated elementary school-book, Orbis Sensualium Pictus [The Visible World Pictured], by the eminent theologian and educational reformer, Johannes Amos Comenius (aka Jan Amos Komenský; 1592–1670).
In Comenius’s best-selling picture-book — used to teach children the Latin and vernacular “nomenclature of all the chief things that are in the world; and of mens employments therein” — the female personification of Justice is glossed: “Justice [callout 1.] is painted, sitting on a square Stone; [callout 2.] for she ought to be immovable; with hoodwinked eyes [callout 3.] that she may not respect persons; stopping the left ear, [callout 4.] to be reserved for the other party; ¶ Holding in her right hand a sword, [callout 5.] and a Bridle, [callout 6.] to punish and restrain evill Men; Besides a pair of ballances, [callout 7.] in the right scale [callout 8.] whereof deserts, and in the left [callout 9.] rewards being put are made even one with another, and so good Men are incited to virtue, as it were with Spurs, [callout 10]. ¶ In Bargains, [callout 11.] let men deal candidly; let them stand to their Covenants & Promises; let that which is given one to keep, and that which is lent be restored; let no man be pillaged, [callout 12.] or hurt; [callout 13.]. let every one have his own; these are the precepts of Justice. ¶ Such things as these are forbidden in Gods 5. & 7. Commandement, and deservedly punished on ye Gallows and the Wheel. [callout 14.]” (J. A. Comenius, Orbis Sensualium Pictus, Eng. trans. by C. Hoole, 1659, 236–37)
Comenius’s pansophical bilingual primer, first published in Latin and High Dutch (Noribergae: M. Endter, 1658), and translated into English within a year of its publication by the English schoolmaster Charles Hoole (1610–1667), was an immediate success and universally popular. It was translated into most European and some of the Oriental languages (Arabic, Turkish, Persian, and Mogul), continuing as a textbook of the German schools for nearly 200 years, despite vocal detractors during the Enlightenment who were increasingly at odds with Comenius’s brand of pansophy, the ultimate goal of which was a millennial recovery of the knowledge that mankind had lost when expelled from the Garden of Eden.
The last English edition of Orbis Sensualium Pictus appeared in 1777, and was reprinted in the United States in 1812. But the new Comenian pedagogy had made its way across the Atlantic well before that, and influenced republican politics, as well as American popular culture, from the mid-17th century. Indeed, the New England Puritan, Cotton Mather (1663–1728), recorded in his Magnalia that Comenius was even offered the presidency of Harvard College (subsequent to the resignation of President Dunster in 1654): “That brave old man, Johannes Amos Commenius, the fame of whose worth has been Trumpetted as far as more than three languages (whereof everyone is indebted unto his Janua) could carry it, was indeed agreed withal, by one Mr. Winthrop in his travels through the Low Countries, to come over to New England, and illuminate their Colledge and Country, in the quality of a President, which was now become vacant. But the solicitations of the Swedish Ambassador diverting him another way, that incomparable Moravian became not an American.” (C. Mather, qtd. in The Orbis Pictus of John Amos Comenius, ed. by C. W. Bardeen, 1887, ii)
Comenius’s great design of a Pansophic Institute, or College of the Sciences, held real appeal for 17th-century Americans with advanced views such as the scientifically-minded John Winthrop, Jr. (1606–1676; social reformer, physician, and governor of Connecticut from 1657), looking to reform the organization of human affairs in the new world in order “to ensure that a right philosophy, religion, and politics could lead to harmony and enlightenment, rather than division and chaos.” (M. Greengrass, ODNB entry for Johannes Amos Comenius, n. pag.)
Charles Hoole’s 1659 English translation of Orbis Sensualium Pictus reused the same copper plates (for graphics) with which the first High Dutch edition (published at Nuremberg, in 1658, by the bookseller Michael Endter) was printed. As such, the impressions made by the already-worn plates were of uneven quality, which has further deteriorated over the centuries as generations of curious children thumbed through the book’s pages, again and again, while interacting with the uniquely-entertaining pictures. With the above print of Justice, it is hard to make out the callouts for #7, #9, and #10. For a close-up of the above detail from Comenius’s lesson No. 116 on Justice, which allows you to zoom in on the callouts, click/tap here (719KB image file).
For an enlarged digital facsimile of the entire 2-page spread on Justice (all of lesson No. 116) from Charles Hoole’s 1659 English translation of Orbis Sensualium Pictus, click/tap here (921KB file).
For purposes of comparison, click/tap here for a large digital fascimile (479KB file) of the lefthand page (with detail of Justice) of the lesson on “Die Gerechtigfeit” (No. 116) from the 1st printing in 1658 of the High Dutch edition.
.gif)
up a level: Table of Contents page for She-philosopher.com’s STUDIES section
.gif "Academic research is a public good, but too much of it is sequestered behind paywalls. Help She-philosopher.com buck this trend by donating now!")
w.gif)
_front(Lg).jpg){kind=link}
_back(Lg).jpg){kind=link}
.jpg){kind=link}
.jpg){kind=link}
AT.jpg){kind=link}