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Q U I C K   L I N K S

The Web page giving my two Open Letters to California state legislators, submitted to the office of Brian Maienschein, with follow-on correspondence, and plaintiff’s documentation for San Diego Superior Court Small Claims No. 37-2014-00312813-SC-SC-CTL, decided 7/15/2015 by Commissioner Peter S. Doft, first published to the Web in July 2015.
 
NOTE: this Comments & Questions Web page for lawmakers most recently revised: 11/16/2021 (latest letter to Senator Toni Atkins, copying California Assembly Speaker Anthony Rendon, posted here).

Yet more bad legislation (AB 2167) from our fake representatives in Sacramento: “Insurers Seeking Sneaky Rate Hikes for Homeowners” by Michael Hiltzik (Los Angeles Times, 6/21/2020, p. A2).
  Instead of fixing their botched (by way of the Good Neighbor Fence Act of 2013) repeal-and-replace of Cal. Civ. Code § 841, the California state legislature in 2020 is looking to further thwart the people’s will by “effectively eviscerating key consumer protection provisions of the state’s landmark Proposition 103 insurance reform measure, which has been the law for more than three decades.” (M. Hiltzik, A2)
  This stealth attack on direct democracy in California is apparently the new norm for a legislature which is increasingly unaccountable.
  Senate President pro tempore Toni Atkins isn’t the only one — busily rewriting public policy in California — who figures she doesn’t need to explain herself.
  Hiltzik reports that insurance industry lobbyist Seren “Taylor didn’t reply to my request for further comment” concerning the bill designed to “bring about a sneaky change in insurance rules that could lead to massive increases in homeowner premiums.”
  And neither did Tom Daly (D–Anaheim), chairman of the California state Assembly’s Insurance Committee, and the sponsor of AB 2167: his staff told Hiltzik that Daly “was ‘unavailable’ to comment on his own bill.” (M. Hiltzik, A2)

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And the legislative malpractice pushing AB 2167 forward, without proper public scrutiny, continues unabated: seeConsumer Group Calls on Atkins to Delay Homeowner’s Insurance Bill” by Jeff Mcdonald (posted to the San Diego Union-Tribune website, 8/8/2020).
  “Consumer Watchdog, the Los Angeles nonprofit that introduced and helped pass Proposition 103 in 1988, said its testimony at a hearing earlier this week against a bill backed by insurance companies was wrongly cut off after only a few seconds even though the group was told it would have four minutes before the Senate Insurance Committee.  ¶   Meanwhile, insurance lobbyists were allotted five minutes to make their argument in favor of Assembly Bill 2167, Consumer Watchdog Founder Harvey Rosenfield wrote in a formal request to Atkins, the San Diego Democrat who presides over the California Senate.  ¶   ‘The legislative procedures and protocols that normally safeguard Californians against hasty and dangerous actions have been discarded as the insurance industry tries to ramrod AB 2167 through the Senate,’ Rosenfield said.”
  “Rosenfield is asking Atkins to delay consideration of the legislation until next year.”
  I agree, and will be most interested to see how my fake representative in Sacramento responds to her constituents on this occasion.

NOTA BENE  As of August 2019, government disdain for our property rights now runs the gamut from left to right: not only the Democratically-controlled California state legislature (with its unwavering support for its botched repeal-and-replace of Section 841 of the Civil Code in 2013, via Assembly Bill 1404), but also the Republican-controlled White House and Senate and the Republican party (with the notable exception of GOP presidential primary contender, Joe Walsh) all believe that the state’s seizure of “private property from one owner in order to hand it over to another” (M. Welch, A21) is no big deal.
  I am not surprised to learn from an op-ed by Matt Welch — “Trump Ran on Crazy, So Last Week Was No Surprise: The president has never cared for the rule of law. But is that how the GOP wants to be branded now?” (Los Angeles Times, 9/1/2019, p. A21) — that an unprincipled real-estate developer such as Donald Trump believes that the government’s arbitrary (ab)use of eminent domain is “a wonderful thing” (something Trump reportedly said in the fall of 2015).
  But I am surprised when a Republican President of the United States orders his “aides to break the law by seizing swaths of private property along the southwestern border to build a wall” — “barking ‘take the land’ to his staff” and “promising to pardon those who seized the land” — yet faces no pushback from the rank-and-file of a conservative movement for which “private property rights used to be foundational” (M. Welch, A21).
  Following the election of November 2016, California repositioned itself as leading the liberal resistance to the Trump presidency.
  Well, here’s a rare opportunity for the California state legislature to resist Trump-style autocracy on the basis of undisputed founding principles (Anglo-American settlers began asserting their property rights in the early-17th century).
  Once again, I ask the legislature to commit to securing Californians’ private property rights (by fixing Section 841 of the Civil Code) and show the Trump Republican Party — which has turned its back on this country’s founding values and no longer stands for much of anything at all, as far as I can tell — how a representative liberal democracy is supposed to work.

[ UPDATE 1 ]  The very real human costs of President Trump’s “vanity wall” at the southern border are the subject of Molly Hennessy-Fiske’s reporting, “Wall May Cost Family Its Land, History” (Los Angeles Times, 12/22/2019, p. A6), retitled “Texas Veteran’s Family Set to Lose Land to Trump’s Wall: ‘Why should we sacrifice again?’” for online posting.

[ UPDATE 2 ]  Not surprisingly, President Trump has recently chosen another aggressive real-estate developer, son-in-law Jared Kushner, to lead the Trump administration’s push to take (by way of eminent domain) the private property, owned by U.S. citizens, which is needed to “help President Trump deliver on his campaign promise to build 450 miles of new border wall by 2021.”
  According to Zolan Kanno-Youngs’ reporting for the New York Times, “A Barrier to Trump’s Border Wall: Landowners in Texas. Construction of President Trump’s border wall has been slow going, in part because the Texans who own the land have to be coaxed or coerced to sell it, whether they want to or not” (posted to the NYT website, 12/26/2019), thus far “The administration has built only 93 miles of the new wall, nearly all of it on federal land where dilapidated barriers existed or vehicle barriers once stood, according to Customs and Border Protection. The border wall’s final path is not yet set, but 162 miles of it will run through southern Texas, and 144 miles of that is privately owned, according to the border agency. The Trump administration has acquired just 3 miles since 2017.” (Z. Kanno-Youngs, n. pag.)
  “Adding to the heartache” for families who have held the land in question for generations, and are rooted in place, “is where the wall is actually going. The construction is not on the border, which runs along the Rio Grande. It is well within the U.S. side” and will move the U.S.-Mexico border considerably northwards, in effect ceding U.S. territory south of the new wall to Mexico.
  “‘Forget deplorable Americans,’ [property owner Becky Jones] said, ‘you’re disposable Americans if you happen to be on the south side of the wall.’” (Z. Kanno-Youngs, n. pag.)
  “Ms. Jones and Mr. Drawe said they support Customs and Border Protection and border security. They just wish the administration would focus on changing the nation’s immigration laws, adding agents and paying for technology to monitor the border instead of building an ineffective wall.” (Z. Kanno-Youngs, n. pag.)

[ UPDATE 3 ]  For an alternative take on the “opportunity for constructive change” presented by the Trump administration’s haphazard immigration policies — “a game-changer that sharply weakens the case for a border wall and an expanded Border Patrol” — see the editorial, “Is a New Era Looming at Southern Border?” (San Diego Union-Tribune, 1/19/2020, p. B12).
  The San Diego Union-Tribune Editorial Board here reflects on “the provocative question” raised by Alan Bersin, former commissioner of U.S. Customs and Border Protection and former assistant secretary of U.S. Department of Homeland Security under President Barack Obama: “‘We don’t have a border security problem,’ Bersin said. ‘We have a migration management problem.’” (B12)
  You can link to The San Diego Union-Tribune Editorial Board’s full interview with Alan Bersin here.

[ UPDATE 4 ]  Hoping to speed up construction of his vanity wall on the southern border, President Trump has “rolled back, or simply disregarded” environmental regulations: seeTrump Fast-Tracks Environmental Rollbacks to Deliver on Campaign Promises” by Courtney Norris and Alex D’Elia (posted to the PBS NewsHour website, 7/1/2020).
  “On May 15 [2020], Acting Secretary of Homeland Security Chad Wolf announced that he would allow the circumventing of 26 regulations, including the Endangered Species Act, to fast-track construction of 69 miles of the southern border wall in Texas’s Webb and Zapata counties.”
  “‘It’s with the strike of the pen; all the laws don’t apply,’ said Laiken Jordahl, borderlands campaigner at the Center for Biological Diversity, an organization that has challenged Wolf’s waiver and the constitutionality of border wall construction in Arizona, California, New Mexico and Texas. On Monday [6/29/2020], the U.S. Supreme Court rejected the case brought by the Center for Biological Diversity, among others, challenging six waiver decisions made by DHS in 2018 and 2019.  ¶   Without the waiver authority, the government would have to engage in a lengthy process to consult with conservation scientists and tribal nations to weigh the costs of construction, its impact on local species, air and water quality, and communities in the region.” (C. Norris & A. D’Elia, n. pag.)

[ UPDATE 5 ]  President Trump’s abuse of executive powers in order to seize private property (including tribal lands), and bypass constitutional checks & balances which would slow construction of his vanity wall at the southern border, has now roused the “Kumeyaay Nation and its allies [who] peacefully demonstrated at the San Diego Hall of Justice against the desecration of our Kumeyaay sites and against a segment of the border wall that will destroy our sacred sites” on 5 July 2020. For details, see the tripartite exchange, “Up Against the Wall” (San Diego Union-Tribune, 8/9/2020, pp. B9 and B11).
  SUMMARY: “Kumeyaay tribes have lived in what is now San Diego County and Baja California for more than 10,000 years. This summer, they want the U.S. government to consult with them on border wall construction on their land and to reduce and mitigate adverse impacts. Below, a member of the Kumeyaay Nation and an ally discuss the situation and a spokesman for U.S. Customs and Border Protection, which declined to write a full-length essay, shares a statement.” (B9)
  1. Op-ed, “Our Sacred Sites Are Being Desecrated” by Jacob Alvarado Waipuk, assistant professor of American Indian studies and chair of tribal relations at San Diego State University.
  Alvarado Waipuk notes that the “Kumeyaay Nation extends from North [San Diego] County into Baja California, Mexico. We were violently and forcibly removed from our homelands and pushed onto reservations, and divided by the U.S.-Mexican border into 13 federally recognized tribes in the U.S. and five Kumeyaay tribes in Baja California.” (B9) By law, the Kumeyaay have the right “to sit down and let our voices be heard on what happens with any of our ancestral remains, and we should be included in every part of the project.” (B9) But “Communication and consultation about the border wall project from the U.S. government with the Kumeyaay Nation has been inadequate. [...] Our Kumeyaay lands continue to be desecrated, and we continue to lose sacred sites. We are overwhelmingly tired, upset and frustrated with being disrespected — our presence and voices matter. We demand respect for our Kumeyaay people and all Indigenous peoples. Enough is enough.” (J. Alvarado Waipuk, B9–B11)
  2. Op-ed, “U.S. Trampling on Promises to Tribes” by Pedro Rios, director, U.S.-Mexico Border Program, American Friends Service Committee.
  Noting that “Government contractors are detonating explosives for a replacement border wall, and blasting the area will desecrate and damage sacred artifacts and ancestral remains” (B9), Rios argues that the Trump administration “threatens important tribal culture throughout the borderlands” in order to push forward with his “vanity construction project.” (B11)
  “Amendments to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 that were made after 9/11 give the secretary of Homeland Security, an unelected executive branch appointee, extraordinary power to dismiss dozens of local, state and federal laws, including the Native American Graves Protection & Repatriation Act and the American Indian Religious Freedom Act, to expedite border wall construction.” (B9) Thus far, the Trump administration has invoked the arbitrary power granted to the secretary of Homeland Security in 2005 24 times in order to fast-track construction of a southern border wall, ignoring Kumeyaay requests “for mandatory soil testing and on-site cultural monitors to confirm that human remains, and other cultural artifacts, are not destroyed.” (B9) Moreover, “Border Patrol and the Army Corps of Engineers are relying on an outdated and dubious land survey from 2010 that suggests there are no ancestral remains in the area. So far, government representatives have refused to provide any documentation that they have conducted a more recent archaeological study of the land with potential cultural interest.” (P. Rios, B9–B11)
  3. Op-ed, “U.S. Government Is Working with Stakeholders” by Jeff Stephenson, a supervisory Border Patrol agent in the San Diego sector’s information & communication division.
  Stephenson argues that the Trump administration’s Customs & Border Protection (CBP) border wall system projects are in compliance with the law and that the affected Kumeyaay tribes have been adequately consulted: “Outreach and coordination with the Kumeyaay Tribal Nation began in March 2020 when CBP distributed consultation letters regarding the Department of Defense Fiscal Year 2020 284 Counter Narcotic Funded new border wall system projects.  ¶   CBP has had several discussions with leadership and members of various tribes within the Kumeyaay Tribal Nation since June regarding the San Diego projects to address their specific concerns and requests. CBP is currently coordinating with the Tribes and is utilizing cultural monitors from the Kumeyaay Tribal Nation at the project.  ¶   CBP continues to coordinate with the Kumeyaay Tribal Nation to address areas of concern and requests for additional cultural monitors.” (J. Stephenson, B9)

[ UPDATE 6 ]  On 8/11/2020, the La Posta Band of Diegueno Mission Indians (Kumeyaay Nation) filed suit in federal court in San Diego “to block construction of a section of border wall that the Kumeyaay people say is desecrating sacred burial sites.” See the report by Julie Watson of The Associated Press, “Tribe Says New Border Wall Harming Burial Sites; Sues Trump” (posted to the PBS NewsHour website, 8/12/2020).

[ UPDATE 7 ]  And yet another casualty of President Trump’s vanity wall at the southern border: the San Bernardino National Wildlife Refuge, “established in 1982 to protect the rare wetlands in the middle of the [Arizona] desert that are home to a variety of wildlife, including several species of fish that are protected by the Endangered Species Act. Sitting on over 2,300 acres on the U.S.-Mexico border in southeastern Arizona, close to New Mexico, the refuge is home to hummingbirds, 75 species of butterflies, bats and, most importantly, to fish native to Rio Yaqui, which the refuge was set up to protect.” (Astrid Galvan, “New Border Wall Near Rare Wetlands Refuge Considered an ‘Oasis’ Endangered Water Supply,” AP story posted to the PBS NewsHour website, 8/14/2020)
  As Galvan reports, the wildlife refuge “is supposed to be protected under environmental laws, but the government has waived those in the name of border security.” Since construction began on this section of the wall in October 2019, contractors working for U.S. Customs and Border Protection have pumped “millions of gallons of groundwater to mix cement for the 30-foot (9-meter) steel fencing that has been a signature promise of President Donald Trump.” On the wildlife refuge, “ponds dropped as much as a foot of water” — a situation previously “unheard of during the winter season, when the wetlands experience less evaporation and no transpiration.”
  The agency in charge of the refuge, the U.S. Fish and Wildlife Service, “has documented a correlated drop in deep aquifer well head pressure”; as a result, “larger capacity pumps are now needed to maintain pond levels and outflows,” and “the contractor in charge of the project has purchased and is installing those higher capacity pumps.” The ever-more aggressive water withdrawls required for continuing border wall construction will further damage — for the long term, if not permanently (aquifers take a very long time to replenish) — the wildlife refuge’s magical oasis.
  But the Trump administration doesn’t care that, in recklessly depleting the area’s crucial reserves of fresh water (“blue gold”), it is violating a public trust. With Trump administration oversight, U.S. Customs and Border Protection has become another rogue agency: “They operate outside the law with no regard for other federal agencies and public lands and natural resources and the national heritage of this country.” (qtd. in A. Galvan, n. pag.)

NEW  [ UPDATE 8 ]  In November 2020, the U.S. Court of Appeals for the District of Columbia Circuit ruled on the case, Manzanita Band of the Kumeyaay Nation v. Wolf, denying the First People’s request for an injunction to stop construction of a portion of Trump’s border wall being built in California: see analysis in “Trump’s Border Wall Slices through Religious Freedom: Not all faiths receive equal protection from U.S. courts” by Stephen L. Carter (posted to Bloomberg Opinion website, 12/17/2020).
  Carter notes that “The border wall, one of Trump’s most controversial initiatives, is being built under the authority of a Clinton-era statute allowing federal agencies to construct ‘barrier infrastructure along the southern border.’ [...] The law was designed to make legal challenges difficult, so the outcome in the Manzanita Band of the Kumeyaay Nation v. Wolf might be read as no more than a plausible interpretation of a badly drafted statute.  ¶   But we should look deeper....” (S. L. Carter, n. pag.)
  Carter goes on to argue that religious liberty cases such as Manzanita Band of the Kumeyaay Nation v. Wolf require more than just “coming up with the right statutory language.”
  “America’s indigenous people continue to struggle in their efforts to preserve religious and cultural traditions against encroachment.” “[T]he law has been slow to accept the notion of the natural world in its pristine form as itself a part of religious belief and practice.  ¶   In the common Western-style understanding of religion, your faith is portable. Even if you’re forcibly uprooted, both your beliefs and the rituals that reinforce them travel with you to wherever you end up. For those raised to that conception of how religion works, it can be difficult to take seriously the notion that belief and ritual alike might be tied to a patch of land in its pristine form. If one bit of desert is destroyed, the argument runs, they can just worship somewhere else.” (S. L. Carter, n. pag.)
  In sum: “The failure to appreciate the deep ties between land and ritual for so many native people long predates Trump.” And the need to “change the attitude of judges and policymakers alike toward the protection of unfamiliar faiths” will be with us long after Trump has been removed from office. (S. L. Carter, n. pag.)
  Cf. the upcoming legal battle over an 1852 treaty with the Apache, guaranteeing rights of native religious practices tied to the sacred land of Oak Flat in the Tonto National Forest: “In Arizona, a Struggle over a Sacred Site of the Apache Tribe” (PBS NewsHour Weekend segment, first aired 3/7/2021). “For decades, mining companies tried, and failed, to pass legislation authorizing Oak Flat to be privatized.  ¶   Then in 2014, then-Senator John McCain, just hours before the vote, added a land exchange deal to the national defense spending bill. It passed, and it gave the land to Resolution Copper, a subsidiary of mining giants Rio Tinto and BHP copper. Now, with the land set to be privatized, Nosie [a former chairman of the San Carlos Apache Indian tribe] and other groups have recently sued the U.S. government to stop the mine from going forward.  ¶   The opposition to this project focuses on how the mining itself would take place. Even the mining company agrees, were the project to proceed, Oak Flat, and many of the areas around it, would be completely destroyed. [...] Resolution Copper has said they will work with the Apache, and other Native American communities, to find an alternative site for religious practices. But to Wendsler Nosie, there is no alternative to Oak Flat.  ¶   He says he’s not leaving [his encampment at Oak Flat], and is hoping for a good outcome in the courts.” (Benedict Moran, n. pag.)

NEW  [ UPDATE 9 ]  “Biden Halts Border Wall Building after Trump’s Final Surge” by Elliot Spagat of The Associated Press (posted to the PBS NewsHour website, 1/21/2021).

NEW  [ UPDATE 10 ]  “Biden Asks High Court to Put Off Border Wall, Asylum Cases” by The Associated Press (posted to the PBS NewsHour website, 2/1/2021).

NEW  [ UPDATE 11 ]  “Homeland Security to Repair Damage Created by Border Wall” by Elliot Spagat of The Associated Press (posted to the PBS NewsHour website, 5/1/2021).

NEW  [ UPDATE 12 ]  “GAO: Biden Didn’t Break the Law with Border Wall Pause: The Government Accountability Office said Biden’s action cannot be equated with Trump’s decision in 2019 to freeze military assistance to Ukraine” by Caitlin Emma (posted to POLITICO website, 6/15/2021).
  “In its legal opinion, GAO said the Biden administration has legitimately paused border wall funding provided by Congress ‘in order to perform environmental reviews’ and ‘determine project funding needs in light of changes that warrant using funds differently than initially planned.’” (C. Emma, n. pag.)
  Predictably, Republican lawmakers who asked the GAO to investigate cried foul, accusing the GAO of a double standard: “The decision splits hairs to justify actions that, just two years ago, were determined to be contrary to ‘the faithful execution of the law.’” (Senators Richard Shelby [R-Ala.] and Shelley Moore Capito [R-W.Va.]; qtd. in C. Emma, no pag.)

I wish to remind everyone in California’s 77th Assembly District that Brian Maienschein is up for reelection again in 2020.
  And this time around, he’ll be running as a Democrat, having switched parties in January 2019, shortly after being narrowly reelected as a Republican in November 2018. “Maienschein has said that he switched because he was often at odds with the Republican party and had voted across party lines.  ¶   ‘I continue to vote consistent with my values,’ he said in an email. ‘I will continue to vote for my district.’” (Charles T. Clark, “GOP Faces Battle to Unseat Maienschein: Republicans have rallied behind June Cutter early, but now-Democratic assemblyman carries some significant advantages,” San Diego Union-Tribune, 8/31/2019, p. B3)
  It may well be true that Maienschein is not a Trump Republican, but I interpret the switch in his party affiliation as more opportunistic than principled, since it neatly undercuts his only real competition, making Maienschein a shoo-in for reelection (according to the experts interviewed by Clark). Conventional wisdom holds that voters won’t be paying attention to this particular race in 2020 (which works in his favor), and given Maienschein’s name recognition, and $969,000 war chest, it won’t matter even if they do. The Democratic establishment will now support — not oppose — Maienschein, and “It will be a real uphill battle for” his Republican opponent, newcomer June Cutter (“a 41-year-old civil litigator and businesswoman”), “to unseat him.” (C. T. Clark, B3)
  This sidebar entry is my plea to voters to defy the pundits and at least pay attention to this race: whatever you decide, please don’t just vote on autopilot!
  I will not vote for “fake representative” Brian Maienschein under any circumstances. (IMHO, the last thing the Democrats need is another incompetent career politician in their ranks! ;-)
  I have never voted for a Republican in my life, but I will take a long, hard look at June Cutter, and am open to persuasion, hopeful that her legal and business acumen might serve all of California well, and contribute to the public good. “On the campaign trail Cutter has emphasized a desire to be a champion for all families in the district. She said her priorities are increasing economic opportunity, making the cost of living more affordable, and improving transportation and government accountability.  ¶   ‘That message resonates with people regardless of registration or party preference,’ Cutter said in an interview Friday. ‘When you set party politics aside, everyone is trying to do what is best for their family and kids, and we all have a goal of trying to better our district.’” (C. T. Clark, B3)
  I am especially keen to learn more about Cutter’s plans for “improving ... government accountability,” which I believe to be of paramount importance going forward, especially as we transition into a brave new world of regulatory capitalism.
  After all, if we don’t have a properly-functioning constitutional republic — with truly representative, prudent government, on which we can count to do the people’s business — all else is moot.
  A principled, vibrant Republican party in California will make the Democrats better, and serve the public interest.
  Here’s hoping that Cutter proves to be someone who can contribute to that!
 
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).”

For another example “of the unintended consequences of inattentive lawmaking” in California: Michael Hiltzik’s column, “New Law Is One for the Books” (Los Angeles Times, 16 October 2016, pp. C1 and C8), retitled “Legislative Misfire: Lawmakers Targeted Memorabilia Scams but Hit Corner Bookstores by Mistake” for online posting.
  In this case, the offending legislation is known as California Assembly Bill 1570 (authored by Assemblymember Ling Ling Chang), which Hiltzik describes as “inexcusably sloppy” legislating, calling for “a wholesale revision of the law.”

There is also growing dissatisfaction with California’s Local Control Funding Formula (LCFF) law, enacted in 2013–14.
  Critics charge that LCFF — intended to counter the racial, social and economic injustices undermining California’s education system, and limiting opportunities for too many in successive generations — is plagued by “troubling shortcomings” in its implementation, and needs “more funding, more accountability and more transparency” to improve education for our students.
  Four antagonists evaluate the efficacy of the 2013–14 educational reform law in the op-ed dialogue, “Creating More School Equity, or Less?” (San Diego Union-Tribune, 10/8/2017, pp. B8 and B10).
  SUMMARY: “When California passed a 2013 law to change school funding, the education reform was supposed to devote more resources to English-language learners, students from poor families and foster children. The law, known as the Local Control Funding Formula, was touted as a way to achieve greater equity and called for parent and community member involvement in deciding how the money was spent. Since then, school districts have faced lawsuits for budgeting money meant for the targeted students on other expenses, such as teacher raises and special-education services. Critics say the law is not leveling the playing field for the students it was supposed to help, while supporters say funding is improving the culture and climate of schools. Here, state education leaders and ACLU officials offer their views on the issue.” (B8)
  1. Op-ed advocating that we STAY THE COURSE with the 2013–14 LCFF legislation: “New Funding System Making a Difference for California Schools” by Tom Torlakson & Michael W. Kirst.
  2. Op-ed advocating that we REFORM the 2013–14 LCFF legislation: “School Funding Change: Promise of Law Still Not Fulfilled” by Norma Chavez-Peterson & Sylvia Torres-Guillén.
  Dan Walters calls the style of legislating which produced the 2013–14 LCFF law “half-a-loafism” and questions whether such partial legislative “solutions” are, in fact, better than none (see his commentary, “Half-a-Loaf ‘Solutions’ Consume Energy, Fall Short,” posted to the CALmatters website on 10/4/2017).
  NOTE: Dan Walters — described by the San Diego Union-Tribune editorial board as “the California journalist with arguably the greatest institutional knowledge of state government” — left The Sacramento Bee in 2017, after a 33-year tenure at that newspaper, and is now a columnist with CALmatters, the new “public interest journalism venture committed to explaining how California’s state Capitol works and why it matters.”

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The debate over LCFF continues in another op-ed dialogue, “School Funding Falling-Out” (San Diego Union-Tribune, 12/15/2019, pp. B9 and B11).
  SUMMARY: “In 2013, at Gov. Jerry Brown’s behest, the Legislature decided to provide more money to school districts with higher percentage of English learners, low-income families and foster children. The Local Control Funding Formula program was billed as helping the students who needed it most. Many educators say the program is definitely helping their students. But critics say the money is too often used for general purposes, including teacher raises. A recent state audit found little evidence the extra funding has been used to help struggling students. Here are two perspectives on the issue.” (B9)
  1. Op-ed supporting LCFF as is: “Policy Change Has Been Good for California Families” by Kisha Borden.
  Borden argues that LCFF “has been good for California’s students and parents” by providing much-needed “local flexibility,” in contrast to the one-size-fits-all “former categorical approach, under which local accountability was driven by year-to-year accounting procedures and compliance monitoring rather than a focus on whether spending decisions lead to improved outcomes.” (B9) And she opposes Assemblywoman Shirley Weber’s burdensome accounting reforms, which “turn back the clock” by requiring “investment in the expansion of bureaucracies — when we need an expansion in the number of educators serving our kids.” (K. Borden, B11)
  2. Op-ed calling for meaningful reforms of LCFF: “Students Cheated by Delay in Spending Accountability” by Assemblywoman Shirley Weber.
  Weber argues that state officials have for too long “ignored the need for accountability in school funding. Accountability matters not just to budget hawks or good government advocates. Accountability matters to the tens of thousands of children in this state who are not getting the education that they need or deserve.” (S. Weber, B11)
  I was going to respond to this debate by arguing for a both/and solution: local flexibility + accountability.
  As a small businesswoman and long-time designer/user of spreadsheets and databases, I see no reason why local accountability should be as onerous for schools (or any other recipient of public funds) as Borden claims.
  But, apparently, I am wrong to assume that the great state of California is at least as technologically savvy as your average small businessperson.
  According to an astounding commentary by Dan Walters, “California’s High-Tech Debacle” (posted to the CALmatters website, 12/19/2019), “the state’s aging financial systems” are unable even to “implement standardization across all departments, and maintain a central source for financial data.” So “‘Even though it’s home to Silicon Valley, the state government isn’t letting tech drive transparency when it comes to its own records.’” (D. Walters, n. pag.)
  This is an appalling state of affairs!
  Until the state cleans up its own “accounting functionality,” what good does it do to require schools to provide financial data to an aging, dysfunctional state financial system which continues to produce “incomplete or even misleading financial reports”?

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Assemblywoman Shirley Weber’s indefatigable efforts on behalf of desperately-needed educational reforms may bear new fruit, according to Dan Walters, in his commentary, “California’s Big Educational Dilemma” (posted to the CalMatters website, 1/26/2020).

Two voices for competing public interests debate the need for reforming yet another California law in the op-ed dialogue, “Boon or Burden?” (San Diego Union-Tribune, 3/5/2017, pp. B9 and B11).
  SUMMARY: “The California Environmental Quality Act, a landmark law for the state, was enacted in 1970 to protect the state’s air, wetlands and other natural resources. But for years, critics have called for reforms to stop what they call abusive, economy-damaging uses of CEQA. Here are two perspectives on the issue.” (B9)
  1. Op-ed FOR reforming CEQA: “Law an Obstacle for Housing” by Scott Peters.
  2. Op-ed AGAINST reforming CEQA: “CEQA Works for All of Us” by Donna Frye.

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Ashley Werner, a senior attorney for the Leadership Counsel for Justice and Accountability in Fresno, has written an op-ed (“My Turn” column) for CALmatters, “Don’t Blame Environmental Law for California’s Housing Crisis” (posted 1/15/2019), reminding legislators that “the environmental law is one of our most potent tools for fighting environmental racism”: “No other state law guarantees a seat at the table for disadvantaged communities in land use decisions which impact their health and their future.” (n. pag.)
  I share Werner’s concern about California state legislators being “misled into using the state’s preeminent environmental law as the scapegoat for California’s housing crisis.” Even worse, I worry that any reforms of the 1970 California Environmental Quality Act (CEQA) enacted by this legislature would inevitably be misguided and unwise. Given the legislature’s appalling track record with ill-judged AB 1404 reforms, why would we think they’re going to revise such “a bedrock of California environmental law” more competently?

As for more recent California laws, known to be “flawed” at the outset, but enacted anyway: we now have Senate Bill 826, introduced by Toni Atkins (D-San Diego) and Hannah-Beth Jackson (D-Santa Barbara) during the 2018 session, and signed into law on 9/30/2018: “Gov. Jerry Brown Signs Bill Requiring California Corporate Boards to Include Women,” by Patrick McGreevy (posted to the Los Angeles Times website, 9/30/2018).
  “‘There have been numerous objections to this bill, and serious legal concerns have been raised,’ Brown said. ‘I don’t minimize the potential flaws that indeed may prove fatal to its ultimate implementation. Nevertheless, recent events in Washington, D.C. [scil. the mishandling of sexual assault allegations during the Brett Kavanaugh hearings] — and beyond — make it crystal clear that many are not getting the message.’” (Jerry Brown, qtd. by P. McGreevy, n. pag.) As Governor Brown was well aware, “The legislation is opposed by more than 30 business groups, including the California Chamber of Commerce, which said it appears to violate existing law and the state and U.S. constitutions because it will ‘displace an existing member of the board of directors solely on the basis of gender.’” “The business groups added that federal law says corporations are governed by the laws of the state in which they are incorporated, not by the state where their main office is located.” (P. McGreevy, n. pag.)
  The most obvious “serious legal concerns” to which Governor Brown referred are summarized by Howard Dicker, Lyuba Goltser and Erika Kaneko in an abbreviated analysis posted to the Harvard Law School Forum on Corporate Governance and Financial Regulation website on 10/18/2018: “As acknowledged by Governor Brown in his signing letter, the law could still be subject to legal challenge. The law’s constitutionality could be challenged on equal protection grounds due to the creation of an express gender classification and quota system. In addition, the law could be challenged under the internal affairs doctrine given its application to companies incorporated outside California. It is not clear whether any other jurisdiction, such as Delaware [where more than 80% of the Russell 3000 stock-index companies headquartered in California are incorporated], would enforce the California law.” (H. Dicker, et al., n. pag.)

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A January 2019 study of 642 publicly-traded companies headquartered in California reveals that “Nearly 30 percent of California public companies will have to add women to their boards of directors by year end to comply with a 2018 state law aimed at boosting gender diversity in the boardroom,” as reported in Mike Freeman’s “30% of State’s Public Firms Must Add Women to Boards: Study find companies need to make changes to comply with 2018 law” (San Diego Union-Tribune, 1/11/2019, pp. C1 and C4).
  While SB 826 “is expected to face legal challenges,” no lawsuits had been filed as of mid-January 2019. “Companies still have time to comply, so no fines have been issued to challenge in court”; plus, “public companies are likely reluctant to file a lawsuit that could be seen as opposing gender diversity” (M. Freeman, C4).
  Freeman emphasizes that “The goal of the law is to close the gender gap in the corporate world.” (As noted below, I personally find an equity argument more persuasive than the preferred performance argument: “companies with higher levels of gender diversity have stronger financial performance.”)
  “The lack of women on corporate boards occurs partly because women hold relatively few top executive jobs at companies, said Christina de Vaca, chief executive of the Corporate Directors Forum in San Diego, a nonprofit that works to educate and support board members.  ¶  ‘In the board room, the difficulty is you need to have a talent pool to draw from,’ she said. ‘The more women executives we have, the more that pool expands.’  ¶  ‘So right now companies have to dig deeper,’ she said. ‘The talent is there, but it is not as obvious as it will be when more women are in the executive suite. It is a multi-tiered process.’” (M. Freeman, C4)

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The new law immediately drew criticism from those opposed, on principle, to the use of quotas.
  In her analysis, “California Quota Bill Won’t Help Women” (posted to the Forbes website, 10/1/2018), Carrie Lukas contends: “The quota’s supporters hope this law not only will help the few women added to corporate boards, but encourage other changes, such as increasing female representation in management and closing the wage gap. Yet studies of existing corporate quota systems show disappointing results.” (n. pag.)
  “These results shouldn’t be taken to mean that women can’t make excellent board members or that corporations shouldn’t do more to diversify their leadership. Other research shows that companies with more female board members and representation in senior management have superior performance and are more profitable.  ¶  Rather, Norway’s experience should caution against using quotas to force women into executive leadership. Smart companies will recognize that ... [w]omen ... undoubtedly will be assets. Businesses savvy enough to recognize this will likely be rewarded in the marketplace.  ¶  Yet this is a process that ought to continue organically. Progress may be slow, but it’s still progress. Women are earning more positions of power on their own, which is a lot more meaningful and powerful than when government tries to shatter the glass ceiling for them.” (C. Lukas, n. pag.)

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Similar arguments are voiced in the op-ed dialogue, “Board Reservations” (San Diego Union-Tribune, 11/25/2018, pp. B6 and B8), introduced as: “California will soon be the first state to require publicly traded companies to include women on their boards of directors. Under a law signed by Gov. Jerry Brown, public companies headquartered in California must have at least one woman on their boards by the end of 2019. By 2021, the mandate is at least two women for five-member boards and at least three women for boards with six or more members. Firms face fines for failing to comply. Supporters of the mandate emphasize the need for gender diversity, pointing out that a quarter of the publicly traded companies in the state don’t have a single woman on their boards. Opponents, including the California Chamber of Commerce, argue that the quotas are likely unconstitutional and a violation of the internal affairs doctrine for publicly held corporations. Here are two perspectives on the issue.” (B6)
  1. Op-ed SUPPORTING SB 826’s legislative requirement for gender diversity on California boards: “Let’s Value Competency More than Chemistry” by Mary L. Walshok, who argues that the mandate is not an added “burden,” but “an opportunity for California companies to get ahead of both national and global competitors” (B8). “If approached correctly, California’s new requirement could result in a much more deliberative, less emotional approach to corporate board membership among the ‘old boys.’ We could move from a situation in which chemistry often trumps competency to one where competency trumps chemistry. The result could be better and more competitive companies.” (M. L. Walshok, B8)
  2. Op-ed OPPOSING SB 826’s legislative requirement for gender diversity on California boards: “Flawed Law Fails to Address Problem” by Carin Canale-Theakston, who argues that “although the spirit of this legislation is on target ... this bill is not the way to solve our diversity problem” (B6). “As a female CEO surrounded by female executive peers and clients, I can confidently say that none of us want a seat at any table that is granted on the basis of gender. At best the bill is misguided. At worst, it’s insulting.  ¶  As a gay woman, I’m particularly concerned at how the focus of this bill will affect other marginalized groups. Gender is an important aspect of diversity, but it’s not the only one. We should not elevate women as a priority over ethnicity, age, or sexual identification.” (C. Canale-Theakston, B8)

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I, too, oppose SB 826, because I think it takes the wrong legislative approach to solving our centuries-old diversity problem at the highest levels of decision-making in multiple industries.
  And I agree with Wharton management professor Katherine Klein in questioning “rhetoric in the legislation that says companies are going to be better, perform better. When you look hard at the research evidence, there is no reason to believe that.... When you look at the meta analyses on these [sc. the cherry-picked studies favored by policymakers] — which are statistically rigorous efforts — they essentially find zero relationship between the diversity and the gender diversity on the board and company performance. There is no business case for putting women on the board. There is no business case for putting men on the board. Gender has zero impact.” (qtd. in “What’s the Impact of More Diverse Corporate Boards?,” posted to the Knowledge@Wharton website on 10/16/2018)
  I prefer Klein’s “compromise solution for companies that may not want to be legally forced to add more women directors to their board. In the least, they must share information on their diversity record, [Klein] said. ‘Give us the gender diversity of the board, the top management team, and of your managers overall. And tell us [about] your gender pay gap — the amount of money that the average woman makes in the company versus the average man.’  ¶  She added that public disclosures of such information could prompt companies to take corrective action, and pointed to legislation in the U.K. that requires reporting on gender pay gaps. ‘Not surprisingly, companies are embarrassed when they have whopping pay gaps. The act of mandating companies to share data [emphasis added] is good for researchers, but also moves the needle on [corporate] practices [in addressing diversity issues].’” (K. Klein, qtd. in “What’s the Impact of More Diverse Corporate Boards?,” n. pag.)

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For more on the statistically-rigorous meta analyses of the hundreds of studies on gender diversity, seeDoes Gender Diversity on Boards Really Boost Company Performance?” by Katherine Klein (posted to the Knowledge@Wharton website, 5/18/2017).
  Among the several reasons Klein puts forth to explain why the presence of more female board members does not much improve — or worsen — a firm’s performance: “The women named to corporate boards may not in fact differ very much in their values, experiences, and knowledge from the men who already serve on these boards. The argument that gender diversity on the board will improve company performance rests on the assumption that the addition of one or more women to an all-male board will increase the board’s ‘cognitive variety’ because women — the argument goes — differ from men in their values, experiences, and knowledge.” (n. pag.)
  “While research indicates that in general male and female adults differ somewhat in their values, experiences, and knowledge (and the differences are not huge), it’s not clear that male and female board members differ all that much in their values, experiences, and knowledge. After all, both male and female board members are likely to be selected for their professional accomplishments, experience, and competence. If male and female board members are fairly similar in their values, experience, and knowledge, the addition of women to an all-male board may not increase the board’s cognitive variety as one might expect at first blush.” (K. Klein, “Does Gender Diversity on Boards Really Boost Company Performance?,” n. pag.)
  True “cognitive variety” — of the sort profiled by Paul Solman for the PBS NewsHour in his interview with Mary Daly, the president of the Federal Reserve Bank of San Francisco, “Can a High School Dropout Turned Top Economist Give a New Perspective to the Fed?” (first aired 12/13/2018) — is not automatically achieved with the kind of gender diversity mandated by SB 826.
  “[PAUL SOLMAN:] Does your nontraditional background — and I mean dramatically nontraditional — does it give you a different point of view than other Fed presidents?
  “[MARY DALY:] I don’t think my experience is something that I have overcome and now I can get a place at the table. I think of it differently. I think of my experience as something that influences my thinking and helps me be good at the place at the table.” (“Can a High School Dropout Turned Top Economist Give a New Perspective to the Fed?,” n. pag.)

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[ UPDATE ]  Mary Daly’s unique perspective was again featured by the PBS NewsHour in “Why U.S. Economic Policy Needs to Support All Americans to Be Successful” (first aired 5/28/2020).
  SUMMARY: “The economic toll of the pandemic and the ensuing shutdowns continues to grow, with more than 40 million people losing jobs so far. Although economic activity will pick up as businesses reopen, there is growing debate about how government policy can support struggling Americans and a fragile economy. Judy Woodruff talks to Mary Daly, president of the Federal Reserve Bank of San Francisco.”
  Among the topics raised by Woodruff: “As you know, Congress right now is debating how much aid, if — and where the aid should go, whether it should go to the unemployed, whether it should go to small businesses.  ¶   The chairman of the Federal Reserve, Jerome Powell, has said there is a role for the federal government, for Congress, particularly among — well, among other things, in supporting state and local governments, who employ these front-line workers.  ¶   How do you see that?” (n. pag.)
  Daly’s reply emphasized (correctly, IMO) that the growing demagoguery around liberating America constructs a series of false oppositions: “I really want to expand our conversation away from trade-offs. I don’t think it’s state and local or small businesses or the unemployed.  ¶   It really has to be everyone....” (n. pag.)
  Critics of the central bank such as “AustrianSchool” objected that “We can’t bail out the entire country.” (posted to the comments section for this NewsHour segment, n. pag.) And “Ellen A” wished that the interview had covered different ground: “It’s always great to hear from Dr. Daly, but with Fed Funds at 0.25% there’s not a lot of room to influence the economy.  ¶   I was hoping Judy would ask her about the recent history of the Fed decisions, specifically about the 3 moves lowering the interest rate back in the Fall [of 2019] — whether in retrospect she now sees them as too early or too late.” (n. pag.) This piqued the interest of “c_woof” who responded: “I agree. The economy last fall was not in trouble AFAIK, but lowering the rates make it cheap for the govt to borrow. Hmm.” (n. pag.)
  But Daly is concerned with much more than just monetary policy moving forward. When queried by Woodruff (“I have read where you have used the term — you said, this pandemic has put a giant magnifying glass on this country’s inequities in education.  ¶   Is this a time when the country can afford to redress that, to do something about that?”), Daly responded: “Yes, I think the way I think of it is, we can’t afford not to.  ¶   This was something that was not simply about fairness before the coronavirus. It was essential to increasing our potential growth rate going forward, ensuring that the pie grows for our entire economy. We have to include everyone.  ¶   That’s important. It has become more important now, when we see that social distancing and other kinds of things are going to be important. If you have a college education, you’re much more likely to be working from home. There are jobs that are going to be created that allow all of our citizens to do that, all Americans.  ¶   But we need to ensure they have the education that’s required. And my view of this is, an investment in human capital is one of the greatest investments we can make. It’s the most durable. And that kind of investment is one we can definitely afford to make, and it’s definitely one that will help all of us.” (n. pag.)

And before SB 826, there was the “fatally flawed” law proposed May–June 2017, sponsored by state senators Ricardo Lara (D–Bell Gardens) and Toni Atkins (D–San Diego): California Senate Bill 562, setting forth a universal single-payer health care system for California.
  I have long advocated “Medicare for all” — with cost controls — myself. But I want to see exemplary legislation for this, ensuring that the proposed single-payer system will succeed and be able to deliver on its promises. Instead of this, we get legislators crafting more bad deals that set California up for failure. So I agree with Los Angeles Times columnist Michael Hiltzik in his summation of Senate Bill 562 as “the very start of a statewide conversation, not the end-point.” (“State Single-Payer Plan Is Doable,” Los Angeles Times, 5/28/2017, C6).
  And I’m dismayed that Speaker Anthony Rendon faced a retaliatory recall effort, spearheaded by single-payer activists, simply for doing his job as the people’s representative and delaying a vote on Senate Bill 562 in the California state assembly, pending its revival in 2018 as a “genuine piece of legislation.” Rendon recommended that the Senate use the intervening time “to fill the holes in SB 562 and pass and send to the Assembly [in 2018 or later] workable legislation that addresses financing, delivery of care, and cost control.” (“Speaker Rendon Statement on Health Care,” posted 6/23/2017; unpaginated)
  If 2017’s debacle of Trumpcare vs. Obamacare teaches us anything at all, it is that pushing through far-reaching legislation without real public buy-in — after a thoroughgoing debate of the issues, in all their complexity — is a mistake. There are too many competing public interests involved, none of which will be served by hastily passing “woefully incomplete” legislation of such magnitude. (California’s single-payer health care law comes with an estimated price tag of $400 billion annually. To put this number in perspective: Governor Jerry Brown’s budget for “total spending” by the state for fiscal year 2017–2018 was $183 billion. CALmatters has a nice online tool for helping visualize the California State Budget here.)
  It is not enough to press forward with SB 562 because “polls have shown Californians support this proposal by a wide majority.” Polls have also shown that “65 percent support drops to 42 percent if a ‘single-payer’ system requires new taxes, which, of course, it would.” (The Lara bill “suggests a 2.3 percent levy on gross business revenue and a 2.3 percentage point hike in retail sales taxes, with some exemptions.”) As Dan Walters points out, “California voters have shown that they are willing to tax others — i.e. the rich or smokers — but unwilling to pay more taxes themselves for public services.   ¶   There’s a good way to settle the issue. Put SB 562 on the ballot, along with realistic taxes to pay for it, and let voters decide.” (Dan Walters, “Californians Like Universal Care, Unless They’re Taxed,” posted to The Sacramento Bee website on 6/2/2017; unpaginated)

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Some important updates:
  1. Dan Walters’ look at a cheaper, but no less contentious, plan for health care reform in California: “Universal Health Care Doable for Less Cost” (posted 12/17/2017 to the CALmatters website). Walters here outlines an alternative to Senate Bill 562, noting that “It’s not necessary for the state to seize control of California’s entire medical care system if the real bottom line goal is covering [“maybe a million-plus undocumented immigrant adults who are, by law, ineligible”]. It could be done for about $10 billion a year, which is a lot less than $100 billion.” (Dan Walters, n. pag.)
  2. Michael Hiltzik’s update on the findings of the legislature’s Select Committee on Health Care Delivery Systems and Universal Coverage, which was tasked with looking into the “hellishly complex and politically daunting but still worthwhile” possibility of achieving universal health coverage in the state (Los Angeles Times, 2/11/2018, pp. C1 and C6), retitled “California Confronts the Complexities of Creating a Single-Payer Healthcare System” for online posting.
  3. Los Angeles Times editorial of 3/18/2018, also updating “The Rocky Path to Single Payer” in California (retitled “Medical Tourists, Undocumented Immigrants and Ballooning Costs: California’s path to single payer is rocky” for online posting).
  NOTA BENE  4. Dan Walters’ reporting that “Universal Health Care [Is] Now California Law — More or Less,” having been enacted by way of a 2018–19 state budget “trailer bill,” Assembly Bill 1810, “without any real debate on how it would be implemented or financed,” in “an exercise in pure power politics with immense economic consequences.” (D. Walters, n. pag.)
  Manipulating the system like this, to avoid the hard work of passionate practical deliberation with an engaged citizenry, epitomizes fake representation!
  5. Michael Hiltzik’s update (Los Angeles Times, 1/20/2019, pp. C1 and C8, retitled “Gov. Newsom’s Healthcare Initiatives Will Test What a Single State Can Achieve on Its Own” for online posting) on Governor Newsom’s “smart” new healthcare plans placing “California in the forefront of the movement for universal healthcare and the drive toward a national single-payer system” — “a strikingly comprehensive package of reform proposals aimed at improving access to care and lowering its costs.”
  “Yet Newsom’s proposals also underscore how difficult it will be for even a huge state like California to make real progress on access and affordability without the cooperation of the federal government” (“which plainly won’t be forthcoming under the Trump administration”), due to “the sheer weight of federal spending on healthcare in California.... According to a 2016 study by UCLA’s Center for Health Policy Research, the federal government provided more than half of the $367.5 billion spent on healthcare in the state. Medicare led the parade, accounting for 20%, followed by the federal share of Medicaid (17.1%), federal tax breaks for employer-sponsored coverage (9%) and ACA subsidies (2.4%). A federal contribution that was $185 billion in 2016 presumably is higher now.” (M. Hiltzik, C8)
  6. And a PBS NewsHour update, “Democrat-Led Cities and States Move toward Universal Health Care on their Own Terms” (first aired 2/13/2019).
  SUMMARY: “Health care continues to be a top political issue. While some congressional Democrats consider universal health coverage, state and local governments are already pushing ahead with proposals to corral costs and broaden access to care, including for the undocumented. Special correspondent Sarah Varney shares stories from California and New York, two states pursuing ambitious health care agendas.”
  7. Needless to say, if passed, Medicare for All proposals being floated at the national level will have a huge impact on the states, and the way in which California implements its Universal Health Care law (see No. 4 above).
  IMO, one of the more interesting national proposals is that co-sponsored by Rep. Pramila Jayapal, who was interviewed on the subject by the PBS NewsHour: “Why these House Democrats Think Medicare for All Is the Best Path for U.S. Health Care” (first aired 2/28/2019).
  SUMMARY: “In the U.S., health care costs continue to rise, insurance is more difficult to obtain and millions lack access to care entirely. As a result, some House Democrats want to implement a single-payer, universal coverage system in which all costs are paid by the federal government. Rep. Pramila Jayapal, D-Wash., talks to Amna Nawaz about the benefits of expanding Medicare for all Americans.”
  One of Jayapal’s more provocative statements, about which I would like more details: “it has cost containment built into it through using something called global budgets, which is a really important tool for building in cost containment.” (Rep. Pramila Jayapal, n. pag.)
  8. Finally, some good news about California’s government and its implementation of health care reform, building on the Affordable Care Act (aka Obamacare), which is thriving in the Golden State, despite President Trump’s (and the Republican Party’s) concerted efforts to sabotage it at the federal level: see Michael Hiltzik’s illustrated column, “California Shows Other States How to Protect ACA” (Los Angeles Times, 8/18/2019, pp. C1 and C8).
  According to Hiltzik, California’s experience protecting patients through a well-run state marketplace (including the state Legislature’s enactment of more than a dozen protective bills early in 2019) proves that “investment in the ACA can pay for itself in lower premiums for residents, higher federal reimbursements, and lower overall healthcare spending.” (M. Hiltzik, C1) E.g., “Insurers aren’t blind to the state’s commitment to a stable marketplace. Blue Shield of California, which already offers standard health insurance through Covered Calfornia statewide, says it decided to expand its HMO to two additional counties from the current 24, partially in recognition of the ‘proactive steps the state Legislature is taking to support affordable coverage in California.’” (M. Hiltzik, C8)
  Of note, “Most of what California has done to keep its marketplace functional and stable is within the capability of any state.” (M. Hiltzik, C1)

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CALmatters has prepared a useful primer on single-payer in California, available here. In sum: “You’ve probably been hearing a lot about a ‘single-payer’ health plan for California. It’s a major overhaul of the state’s health system, shifting most responsibility to government at an estimated cost of about $400 billion. It passed the state Senate last year before stalling in the Assembly. And you’ll hear about it in this year’s [2018] election. So what is it? CALmatters health reporter Elizabeth Aguilera answers your questions.”

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California’s universal health care law (surreptitiously enacted in the 2018–19 “trailer bill,” Assembly Bill 1810) is now being further undermined by an unfolding corruption scandal involving its original (as Senate Bill 562) co-sponsor, former State Senator Ricardo Lara, who is now the State Insurance Commissioner (Lara was elected to this post in Nov. 2018). For details, see:
  1. “The Reader’s Representative: Keeping Watch on Public Officials” by Adrian Vore (San Diego Union-Tribune, 7/14/2019, p. B2).
  2. “Insurance Chief Aided Donor’s State Cases: Lara overruled his own judges after execs gave to campaign” by Jeff McDonald (San Diego Union-Tribune, 7/20/2019, pp. A1 and A10), retitled “State Insurance Commissioner Accepted Contributions and Intervened in Cases Affecting Donor, Records Show: Ricardo Lara overruled his own judges and stayed orders in cases involving a workers comp company whose executives gave to his campaign” for online posting.
  3. “State Insurance Office Again Overturns a Judge’s Ruling to a Political Donor’s Benefit: Move comes after Insurance Commissioner Ricardo Lara says he is recused from all cases involving Applied Underwriters” by Jeff McDonald (San Diego Union-Tribune, 7/27/2019, pp. A1 and A8).
  4. “Editorial: Insurance Commissioner Ricardo Lara Proving to Be his Own Worst Enemy: The former state senator won’t turn over his calendar. It’s fair to wonder what he is hiding” by the San Diego Union-Tribune Editorial Board (posted to the newspaper’s website, 7/30/2019).
  5. Dan Walters’ column, “Will Lara Mess Get Legislative Scrutiny It Deserves?” (posted to the CALmatters website, 8/1/2019).
  Of note, Walters here points out that “The Quackenbush and Lara imbroglios stem from the wrong-headed conversion of a regulatory office to a political plum. It infuses the sort of horsetrading and mutual backscratching one finds in the Legislature into what should be a dispassionate and objective regulatory process.  ¶  If Consumer Watchdog wants to clean up insurance regulation, it should sponsor a ballot measure to undo what it did 31 years ago.” (D. Walters, n. pag.)
  6. “Editorial: Lara Must Come Clean on Campaign Scandal” by the San Diego Union-Tribune Editorial Board (printed in the 8/31/2019 issue of the newspaper, p. B6).

There is more on California Senate Bill 562 (the single-payer initiative) — along with important revelations about the “uncooked” stew of bills emanating these days from Sacramento — in the San Diego Union-Tribune’s feature on California’s 2018 “Race for U.S. Senate: The San Diego Union-Tribune Editorial Board recently met with U.S. Sen. Dianne Feinstein and state Sen. Kevin de León, who is vying for her seat” (5/6/2018, pp. B6 and B8).
  Kevin de León’s use of mixed metaphors (from football and the culinary arts) to describe the legislative process is especially interesting. Apparently, it is commonplace to send “uncooked,” “fatally flawed” legislation from one house to the other, with (former state Senate President) de León estimating that about 2/3 of the bills generated in both houses are sent back-and-forth for consideration and debate in this raw state.
  No wonder Californians are saddled with so much bad legislation! In the business world, taking a half-baked proposal to investors/clients, and asking them to complete the research & discovery & costing on the project, would be a complete waste of everyone’s time, and get you thrown out on your ear before you even get onto de León’s metaphorical field of play. I applaud de León’s call for protecting the integrity of the democratic process, but surely neither chamber honors that process by expecting the other to erect a true & durable superstructure on an improperly-prepared foundation (just to add a few wall-related metaphors of my own to the mix! ;-).
  To the extent that “the constitutional deadline to get all the bills ... out of the house of origin, to the next house” plays a role in the production of so much “fatally flawed” legislation, perhaps it’s time to amend the constitution so that the legislative process can work as it’s supposed to in a faster-paced modern age.
  Here’s the pertinent excerpt from the edited transcript of de León’s interview, as printed in the 5/6/2018 issue of the newspaper:
  “[Q:] Senate Bill 562 is obviously one of the big issues in California politics. Speaker [Anthony] Rendon I think spoke for a lot of us when he expressed incredulity that something this major could be put forth with so many of the details not being filled in. And yet you and your successor, San Diego’s Toni Atkins, strongly defend this approach of committing to something that could cost $400 billion a year and require state and federal obstacles to be overcome. How do you justify backing something that’s a concept and actually passing a bill without filling in the details on the cost and how you overcome state and federal obstacles?
  “[A:] We still have a health issue crisis issue in California and throughout the country. Moving [SB] 562 was a starting point. It was not a final point. It’s not uncommon to move bills from one house to another house. That is ‘uncooked.’ That’s actually quite common. And the whole idea was to keep the idea alive. So we could continue to debate this issue. So we can engage with other economists. Not have the bill stalled and not even have a hearing done. You should have a hearing done and you can through the hearing, through a Republican and Democratic hearing, you can point out all the flaws. And folks want to find flaws and say I believe this is fatally flawed for these reasons. We shouldn’t go there that way and you have a vote on the issue. But it’s not uncommon and plus we were under the constitutional deadline to get all the bills from the house of origin, out of the house of origin, to the next house and vice versa. So this was a starting point. Not an end point. I was clearly aware that the finance mechanism was yet to be identified. That being said that’s equivalent to being down by a touchdown and it’s halftime. And being the third quarter and then you throw the towel in and you say it’s over. How does that work? You have the whole year still left to debate the issue. So it’s not uncommon process-wise to move bills that are not fully cooked yet. That’s why we have the legislative process. You debate, you engage, you hold constant hearings, you bring economists from all over the state, all over the country. At the end of the day the answer may be, like, no, we’re not going to move forward with this issue. Which is fine, that is the prerogative of the Assembly. If they wish to do so. But to stifle it and stop it, without one single hearing, just because there wasn’t a financial mechanism that was identified, then two-thirds of the bills that originated from both houses under that criteria would never see the light of day.” (B6 and B8)
  De León’s defense of Senate Bill 562 was quite a bit longer than this, with his full answer to 3 related questions asked by the newsaper’s editorial board available here.

For more insights into our impending crisis of representational integrity: During her Union-Tribune interview, Senator Dianne Feinstein touted her work ethic, pointing out “how hard my people and I work. I really work my office. We’ve had like 3 million letters every one of which gets answered just this year alone so far” (B8).
  Given that I’ve been waiting since August 2017 for my state senator, Toni Atkins, to answer a simple yes/no question, I was impressed by such efficiencies in Feinstein’s office ... that is, until I read Michael Hiltzik’s column, “Trump’s China Tariffs Will Hit these Start-Up Companies Hard, and You’ll Pay the Price” (Los Angeles Times, 9/2/2018, pp. C1 and C7). Hiltzik here profiles some southern California firms caught up in President Trump’s punitive tariffs and escalating trade war with China, including JLab Audio (headquartered in Carlsbad, CA), a maker of consumer wireless audio products. According to Hiltzik, “So far, there hasn’t been much succor for companies caught in the trade crossfire. Immediately after learning how the tariffs might affect JLab, Cramer [Win Cramer, CEO of JLab Audio] wrote all his local members of Congress and California’s two senators, Dianne Feinstein and Kamala Harris. He got no replies. A company-wide letter-writing campaign yielded a form letter from Feinstein’s office that addressed a completely different issue, as though plucked from the wrong file folder, and some outreach from the office of Rep. Scott Peters (D-San Diego), which Cramer hopes will bear fruit after Congress returns to work next month.” (M. Hiltzik, C7)
  This new information casts a shadow over Feinstein’s vaunted handling of 3 million constituent communications within a 5-month period: however timely her organization’s response, even one formulaic reply, issued without quality control or any rudimentary attempt at engaging on the issues, is nothing to boast about! But it’s also a wake-up call for voters, who probably don’t pay enough attention to the fact that senators representing populous states like California need top-notch management skills that we would be hard-pressed to find even among the most high-powered executives in the private sector. I, for one, did not appreciate the scope of Senator Feinstein’s job, or the unique mix of legislative and executive skills required to do it well.

Yet another improperly cooked state law — Senate Bill 827, written by state Sen. Scott Wiener (D-San Francisco), and quickly amended by him to address acknowledged “issues in the bill” — set off alarm bells within homeowner groups, tenant groups, neighborhood councils, and historic preservationist associations — all opposed to any state take-over of the local neighborhood-led planning process, anticipating that the result would be “gentrification on steroids.”
  The potential effects on Southern California communities are especially concerning, as reported in a feature story for the 3/25/2018 issue of the Los Angeles Times (“Housing Bill Spurs Opposition in L.A.: Proposal could lead to taller, denser development in ‘transit rich’ areas”) by a trio of investigative journalists (David Zahniser, Liam Dillon, and Jon Schleuss) who “found that about 190,000 parcels in L.A. neighborhoods zoned for single-family homes are located in the ‘transit rich’ areas identified in SB 827. Residences in those neighborhoods could eventually be replaced with buildings ranging from 45 to 85 feet, city officials say.   ¶   ‘While we are still evaluating the full effects of the bill, close to 50% of the city’s single-family homes would be impacted under SB 827,’ said Yeghig L. Keshishian, spokesman for the Department of City Planning.” (p. A18; retitled “Plan to Dramatically Increase Development Would Transform Some L.A. Neighborhoods” for online posting)
  “Since it was proposed two months ago [Jan. 2018], Wiener’s bill has received national attention, drawing praise from academics, urban planners and YIMBYs — pro-housing advocates who have adopted the slogan Yes In My Backyard,” who applaud the bill’s “bold vision,” and who agree with using the state as “the lever that unlocks the gridlock around zoning.” (p. A18)
  In contrast, the Los Angeles Times editorialized against the bill on 4/8/2018: “Yes, California has a housing crisis. But killing community planning isn’t how democracy should work.” “The goal of SB 827 is unquestionably worthy,” argues the newspaper’s editorial board. And yet, “The bill as currently written would upzone vast swaths of Los Angeles.... The hard work by residents, activists and city planners drafting land-use laws that serve the broader goals of the community would be overruled by Sacramento.” (4/8/2018 editorial)
  As such, low-income and minority communities “would lose virtually all ability to influence or shape the development of their neighborhoods. That’s the problem. Overruling local control ultimately means ignoring local voices. It robs residents and business owners of the right to shape their communities, and it assumes that local residents and officials can’t be trusted to make decisions for the greater good. It undermines participation in local government, and that can have a corrosive effect on civic engagement. Why bother showing up to a meeting about your city’s General Plan update? Why should you vote in the next City Council election if your voice and choices are ultimately overruled by Sacramento?” (4/8/2018 editorial)
  “Rather than strip away local control completely, the state should first tighten and enforce existing state laws.” (4/8/2018 editorial)
  But will it? As my ongoing experience trying to get AB 1404 amended proves, the Sacramento bureaucracy already ignores local voices with impunity, and is unwilling to fix unjust or poorly-drafted laws already on the books. The last thing struggling California neighborhoods need is to cede more power to unaccountable politicians in Sacramento.
  I wish I could share in the editorial board’s optimism that Sacramento is capable of producing “smart” legislation on this or related housing matters.
  But until my representatives in Sacramento do something about AB 1404, I am not hopeful.

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Liam Dillon has updated Los Angeles Times reporting on Senate Bill 827, with “Housing Bill’s ‘White Privilege Problem’: Disconnect between YIMBYs, anti-poverty groups stalled SB 827” (Los Angeles Times, 5/6/2018, pp. B1 and B5); retitled “A Major California Housing Bill Failed after Opposition from the Low-Income Residents It Aimed to Help. Here’s how it went wrong” for online posting.
  Senate Bill 827 — unpopular across the state for its political overreach and supporters’ disregard for opponents’ “lived experience” — was defeated at its first legislative hearing on 4/17/2018.
  “Activists for low-income residents and communities of color said that they were blindsided by state Sen. Scott Wiener’s proposal and that subsequent efforts by the senator to protect against potential displacement and gentrification were inadequate. Wiener (D-San Francisco) and his allies have acknowledged they need to build better relationships with advocates for poor Californians and vowed to introduce a new bill in 2019. But for now, there is a fundamental disconnect between the approach of the senator and his supporters on one side and influential anti-poverty organizations on the other.” (L. Dillon, B1 and B5)

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Another analysis of the surprise opposition to Wiener’s SB 827 — and to the senator’s continuing preference for use of state preemption laws, which overrule democratically-made local policies & regulations, in order to fix California’s housing crisis — is given in “California’s ‘Yimbys’: The growth machine’s shock troops” by Zelda Bronstein (Dollars & Sense, September/October 2018, pp. 9–15).
  Bronstein, a former chair of the Berkeley Planning Commission, argues here that “What’s at issue is more than distributive justice. Wiener amended SB 827 to require higher percentages of inclusionary housing—housing affordable to people with low to moderate incomes. That didn’t satisfy the representatives of historically disadvantaged communities of color: they seek self-determination. Neither they nor the local governments, neighborhood activists, equity advocates, and environmentalists that also opposed SB 827 could stomach its assault on the local planning process.  ¶   The goal is equity and democratically accountable power and authority. That goal can be achieved only if the public realizes that the top-down, market-oriented, one-size-fits-all, growth-to-the-max paradigm is the source of, not the remedy for, the Bay Area’s housing debacle. Given the growth machine’s grip on public discourse, fostering that realization may be the toughest assignment of all.” (Z. Bronstein, 15)
  Issue no. 338 of Dollars & Sense (September/October 2018) includes another article of interest: “Hope for Housing in California’s Equitable Economy: Third in a series: An equitable economy rises in Los Angeles” by Jane Paul (pp. 16–20). Paul (a specialist in urban studies, alternative economies, and urban sustainability) reports here on a more humble, innovative approach to housing in the heart of Los Angeles’ most densely populated neighborhood (Koreatown) — creation of “an intentional community” named Eco-Village which offers “reasonably priced housing and commercial space” to “artists, electricians, tech workers, therapists, activists, and teachers.” “Because the housing is affordable, residents can participate in the arts, activism, and family life, and they can have a sense of safety and housing security in spite of instability and inequity in the local economy.” (J. Paul, 16)
  Of note, this kind of alternative housing solution emphasizes the very sort of “collective self-determination … where the community has a voice in determining the rules of ownership, land use, living conditions, affordability, and permanent accessibility” (J. Paul, 17) that the state preemption laws pushed by Senator Wiener would reverse.

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Local reporter Joshua Emerson Smith has investigated the short-term vs. long-term consequences of “transit-oriented development” specific to the San Diego region with his feature, “Gentrifying Upends Public Transit Aims” (San Diego Union-Tribune, 5/27/2018, pp. A1 and A16–A17, Back Story p. A2); retitled “Efforts to Build Housing around Transit Threaten to Price Out Those Most Dependent on Bus and Rail” for online posting.
  “With the right policies and incentives, the state may be able to get control of housing costs, but in that process, many low-income communities fear they will be displaced. And many experts agree this is a real concern, especially if wealthier neighborhoods are allowed to continue to block new development. In that case, moderate-to-low-income communities may end up shouldering the majority of the new density, which might continue to be very expensive for a long time.” (A2)
  We need smart & fair government policies such as “inclusionary zoning ordinances that mandate new construction that includes affordable housing ... aimed at a range of income levels” (A2) so that neither low- nor middle-income residents are priced out of the market.
  For example: “Under pressure from local residents, the city of San Diego has repeatedly stalled on plans to allow for greater density around planned transit stations that will serve the Mid-Coast Trolley extension, which is under construction from downtown to University City. Such proposals have routinely drawn huge crowds of angry homeowners from Bay Park, Linda Vista and Clairemont.   ¶   Recently, however, neighborhood residents have shifted from outright opposition to higher-density development to ensuring that whatever gets built is affordable for working-class people in the immediate area.   ¶   ‘What the community wants is workforce housing, and what the proposals are on the table from the land owners are luxury rentals with ocean views,’ said James LaMattery, spokesperson for a group called Raise the Balloon, formed to oppose a city proposal to raise the building height limit in Bay Ho from 30 feet to 60 feet. ‘The city wants to rezone for more housing but they don’t want to guarantee the appropriate housing.’” (A16–A17)

[ UPDATE ]  “San Diego Approves Zoning Plan for Mid-Rise Housing Near New Trolley Stops” by David Garrick (San Diego Union-Tribune, 8/2/2019, pp. A1 and A11). According to Garrick, community activists still believe “Both plans fall miserably short of providing the amount of affordable housing required to make them work” (D. Garrick, A11).

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San Diego’s housing debate has gotten more inclusionary, adding the voices of PHIMBYs (Public Housing in My Backyard activists) to those of NIMBYs and YIMBYs, as explained by Michael Smolens in his column, “PHIMBYs Add New Dynamic to Housing Debate” (San Diego Union-Tribune, 4/7/2019, pp. B1 and B9).
  As in the past, state Sen. Scott Wiener (D-San Francisco) has jump-started the discussion with Senate Bill 50 (introduced the beginning of 2019), to which “three dozen nonprofit, social justice and tenant-rights organizations” have again responded with “significant concerns” (M. Smolens, B9).

And Smolens reports on one more emerging player feeling the call to tackle San Diego’s affordable-housing crisis: YIGBYs (Yes in God’s Backyard). In particular, Clairemont Lutheran Church wishes “to build between 16 and 21 affordable apartments on its parking lot,” but has run up against “a city ‘formula dictating how many parking spaces a church needs based on square inches of pew space.’” Learn more in Smolens’ column, “Little Cause for Optimism on Housing, Homelessness” (San Diego Union-Tribune, 6/7/2019, pp. B1 and B4).

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And another acronym spawned by the NIMBY wars: PIBBY (Put In Black’s Back Yard/Put In Brown’s Back Yard), coined by “the father of environmental justice,” Robert Bullard, as described in an article about community activists in the Houston area who have organized and are taking a stand against development-as-usual: “Plastics on Hurricane Alley: A post-Harvey development frenzy in Texas opens up another front in the fight against fossil fuels” by Renée Feltz (The Progressive, Dec. 2018/Jan. 2019, vol. 82, no. 6, pp. 43–46).

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Editorial in the 5/12/2019 issue of the Los Angeles Times re. Senator Scott Wiener’s “most ambitious and audacious proposal yet” to address California’s housing crisis by overriding local zoning laws, Senate Bill 50: “SB 50’s Peril and Promise” (p. A15).
  While acknowledging that “a one-size-fits-all, statewide approach to the problem should be a last resort,” The Times’s editorial board states that it wishes to see SB 50 passed, “if it is amended to give cities a final chance to take the lead in building the necessary housing, and if it gives a pass to those cities that are already succeeding.”
  I agree with the editorial’s authors that “it is preferable to have the state set housing targets while letting cities figure out how to meet those targets. Why? Because local governments are closest to the people most affected by the land-use decisions and can create development policies that address the unique needs of communities. For example, in South L.A., residents helped develop land-use plans that would incentivize affordable housing, grocery stores and sit-down restaurants.” (A15)
  Another example of creative community-based solutions is described in the article, “A Mission to Build Up South L.A. from Within: Before he was killed, Nipsey Hussle sought to use new tax breaks to revive low-income areas” by Angel Jennings (Los Angeles Times, 5/12/2019, pp. A1 and A12).
  “Hussle was part of an investment group that was planning to use a tax incentive carved out in a recent federal law to revive not only his neighborhood, but other forgotten, low-income communities in 11 cities, Washington, D.C., and Puerto Rico.” (A. Jennings, A1) “The plan was to crowd-fund from each community and give residents an ownership stake in every project created in their neighborhood.” (A. Jennings, A12)

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Contrast Nipsey Hussle’s innovative approach to inner-city redevelopment with more traditional models that award special tax breaks to outsiders who invest in economically-distressed communities (and/or their surrounds: “Almost 200 of the [opportunity] zones qualified simply by being next to low income areas.”), as reported by PBS NewsHour Weekend in “Will ‘Opportunity Zone’ Tax Breaks Help Low-Income Communities?” (first aired 6/16/2019).
  SUMMARY: “The 2017 tax law created more than 8,700 ‘opportunity zones’ around the country, where investors receive tax breaks in exchange for putting money in designated, low-income areas. It’s an approach that, according to its supporters, will spur economic development. But critics say it may not do much for the residents it was designed to help. Hari Sreenivasan reports from Tempe, Arizona.”
  As always, a major worry is gentrification which, as Wikipedia notes, is a “controversial topic in politics and in urban planning. Gentrification can improve the material quality of a neighborhood, while also potentially forcing relocation of current, established residents and businesses, causing them to move from a gentrified area, seeking lower cost housing and stores.... The gentrification process is typically the result of increasing attraction to an area by people with higher incomes spilling over from neighboring cities, towns, or neighborhoods. Further steps are increased investments in a community and the related infrastructure by real estate development businesses, local government, or community activists and resulting economic development, increased attraction of business, and lower crime rates. In addition to these potential benefits, gentrification can lead to population migration and displacement. However, some view the fear of displacement, which is dominating the debate about gentrification, as hindering discussion about genuine progressive approaches to distribute the benefits of urban redevelopment strategies.” (Wikipedia page on gentrification, accessed 6/17/2019)
  As Hari Sreenivasan points out: “Virtua’s apartment complex will be priced at market rate. But the company says it will voluntarily set aside [out of “the goodness of their heart”] at least at least nine of the 90 units for those earning around the median income, a category known as workforce housing.  ¶   But there is no requirement within the legislation for a real estate developer to provide a benefit beyond simply creating a ‘substantial improvement’; meaning an increase in the value of the property over a 30 month period.  ¶   That means cities like Tempe can’t force developers to build projects in opportunity zones that deliver specific benefits, like affordable housing.... [and] existing tools like zoning codes don’t alleviate the fears of some critics that opportunity zone investments could push out the very communities they are designed to help.” (n. pag.)
  So the cost-benefit trade-offs for the common good remain an open question.
  “[HARI SREENIVASAN:] But incentivizing these investments is not free. Congress’s Joint Committee on Taxation estimates that the opportunity zone incentive will cost $1.6 billion in lost federal tax revenue over ten years.
  “[MARK STAPP:] This is a public cost. These are public dollars. It’s a public investment. There should be some nexus with public benefit and there’s no way to ensure that there is.
  “[HARI SREENIVASAN:] Mark Stapp is the Director of the Real Estate Development program at Arizona State University, and a long time developer himself. He says the influx of capital could distort the market, and points to existing incentives as being more targeted to deliver benefits like affordable housing.
  “[MARK STAPP:] Where is the definable measurable public outcome that should go with making this public investment which is the tax incentive? Will there be a lot of money that pours into it? Absolutely. Will all of that capital be properly deployed and provide the public benefit that equals the public cost? I don’t think so.” (n. pag.)

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And another voice critical of “the loss of democracy brought about by the financialization of housing”: “California Legislature Should Recognize that Housing Is a Right, Not a Wall Street Commodity” by Susan Kirsch (guest commentary posted to the CALmatters website, 8/7/2019).
  Kirsch too believes that state-wide legislation which “diminishes local control by expanding developers’ rights, investors’ profits, and regionalism will worsen the affordability crisis,” advising California legislators to “Take a breather. Adopt a collaborative approach. Review housing policy and projects at the local level that are proving successful.” (S. Kirsch, n. pag.)

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For an inspiring story of self-organizing networks at the local level, modeling “asset-based community development,” seeFix It and They Will Come: How the renewal of a crumbling New Jersey church became a model for reinvestment in community life” by Laurie Mazur (The Progressive, Dec. 2019/Jan. 2020, vol. 83, no. 6, pp. 25–29).
  For financing, activists in Orange, New Jersey (a post-industrial city of about 30,000 people near Newark) partnered with the social-justice crowdfunding platform, ioby (acronym for “in our backyards” — conceived as “the opposite of nimby — not in my backyard”). Of note, “nearly half of ioby fundraisers are people of color, and many of the projects ioby supports are explicitly focused on racial justice.” (L. Mazur, 29)
  With its mission to be “a partner in community development” (29), ioby aims “to build the capacity of neighborhood residents to define and solve local problems.” (L. Mazur, 28) “That mobilization of political will, Barnes [co-founder and CEO of ioby] says, underscores one of ioby’s most important functions: ‘It gives people a chance to participate in civic life outside of an election. They can witness visible change within a year or two, change that came from their own ideas, that they put their own sweat and financial capital into, and call it their own. Just enabling people to realize that change is possible, and that one person’s role can make a big difference is an important role that we play.’” (L. Mazur, 29)

The state’s battle with recalcitrant communities over development and densification is revving up across California, as captured in a column by Steve Lopez, “Housing? Sure, Elsewhere: In a region beset by homelessness, many appear fine with new shelters and services — as long as they’re not where they live” (Los Angeles Times, 10/28/2018, pp. B1 and B7), retitled “Yes, We’ll Pay to House the Homeless, but Not Here, or Here, or Here, or ...” for online posting.
  Noting that California voters who keep approving money for housing & services are conflicted — “Just don’t put any housing or services anywhere near where we live.” (S. Lopez, B7) — Lopez describes a regional planning process derailed by disinformation campaigns, fear, and government ineptitude.
  “Deepfakes” — which manipulate images to deceive our senses and purvey false narratives — are not just propagating on social media & in digital networks, but are sowing division and spreading fake news through brick-and-mortar neighborhoods as well. Lopez reports on a particularly raucous 10/17/2018 town hall to publicize plans for homeless housing in Pasadena (the planned conversion of a motel into permanent supportive housing), at which outraged residents and property owners confronted local politicians: “city officials who tried to explain the project were called liars and shouted down.” (S. Lopez, B1)
  “[Pasadena City Councilwoman Margaret] McAustin said that at one point a woman held up a piece of paper and said it proved the meeting was a sham because the city had already begun to convert motels in the neighborhood without consulting residents.  ¶  That was news to McAustin, who asked to see the document.  ¶  She couldn’t believe what she was looking at. Someone had used her official city letterhead to misinform the public.  ¶  ‘At that point I said, “Where did you get this? This is a forgery, and this is against the law,”’ McAustin said. ‘She said, “Well, it was on my porch.” That’s when I realized that a lot of the people who came into that meeting came in angry because they were under a false impression.’” (S. Lopez, B1)
  As we see here, the confrontation had less to do with housing the homeless than with what was perceived by residents to be overreach by disengaged politicians and policymakers.

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Elsewhere in the Los Angeles area, community activists are responding to the state’s demand that SoCal cities and counties build 1.3 million new homes within the next decade (2020s) with calls for “equitable development,” and staunch resistance to projects such as Casitas Lofts — a 419-unit mix of mostly upscale apartments, offices and restaurants, with only 35 of the 419 units slated to be “affordable housing for low-income households.”
  As reported by Louis Sahagun in “Housing Project on L.A.’s Riverfront Draws Criticism: The 419-unit development would border a new state park” (Los Angeles Times, 9/29/2019, pp. B1 and B7), supporters say the project will create housing and enliven the area, while detractors say it will harm the ecology, trigger gentrification, and “set a dangerous precedent by allowing a private developer to profit from decades of public planning and investment in river restoration.” (L. Sahagun, B7)
  Of note, neighborhood activists opposed to the Casitas Lofts project reject the NIMBY label, which stigmatizes the desires of local communities: “We’re not NIMBYs. We just can’t imagine a worse proposal in a worse location.” “The land they want to build on is critical to public access to a state park that reflects our needs for open space and access to the river — and it is in a flood plain. Unfortunately, big development proposals in Los Angeles tend to foreshadow gentrification, and low-income neighborhoods rarely survive it.” (Helene Schpak of the Glassell Park Neighborhood Council’s planning and land use committee, qtd. in L. Sahagun, B7)

Scott Wiener (D-San Francisco), chair of the California State Senate Housing Committee, is back in 2019 with something known as “an intent bill, which means the specifics of the policy have yet to be fully fleshed out.” (S. Wiener, B9) I am deeply skeptical of in-process legislation like this. It seems to me that bills should come in only 1 state: complete and fully cooked, ready for debate, amendments & a vote; anything less than this is not a proper bill. Visionary schemes and aspirational policies needing to be “fully fleshed out” (in other words, still in the research & development phase) shouldn’t be given legal standing or framed as government mandates. To do so, is, I believe, premature, and probably counter-productive.
  The San Diego Union-Tribune has published a useful dialogue between Wiener and a critic of Wiener’s Senate Bill 48, which “would declare for the state’s homeless population a legal right to one type of shelter in their community.” (T. Francois, B9)
  1. Op-ed FOR the homeless “right to shelter” bill (SB 48): “California Must Expand Shelter Access” by State Senator Scott Wiener (San Diego Union-Tribune, 1/17/2019, pp. B8–B9).
  Of note, Wiener’s op-ed never really describes his proposed bill for sheltering homeless residents, probably because “We are currently working with stakeholders around the state to come up with the very best policy to expand shelter access. We welcome input.” (B9) He simply outlines the bill’s purpose instead: “to address the lack of access individuals experience every night” because “shelter is a critical step in providing people with safe and healthy transitional living space and services until they can obtain permanent housing. SB 48’s goal is to ensure that homeless people in every community have reasonable access to shelter [emphasis added] so that they can be safe, healthy and off the streets.” (S. Wiener, B9)
  As someone who has tried, in a court of law, to get justice by making common-sense moral appeals concerning mundane fence “use” and fence “benefit” and “enclosure” (see opening narrative at left on this very page), I know from experience that mandating “reasonable access” to anything — let alone when we apply such a loaded legal term to as protean a concept as “shelter” — will result in yet more public-policy prescriptions begging to be litigated.
  2. Op-ed AGAINST the homeless “right to shelter” bill (SB 48): “Mandates Are a Recipe for Disappointment” by Tony Francois (San Diego Union-Tribune, 1/17/2019, pp. B8–B9).
  According to Francois, “Weiner’s bill follows a common pattern, in which a local solution that’s been developed, piloted, improved upon and implemented by a passionate core group is then mandated statewide as the one way that everyone else must follow.” (T. Francois, B9)
  That “one way” — which Francois describes as San Francisco’s navigation centers — “appear to work because their core concept is a deregulatory model that gave program leaders the leeway to respond to changing circumstances. The thicket of rules that dominate the typical shelter system were impeding assistance to the chronically homeless, so the city took a chance by relaxing those rules to try a different approach. To nobody’s surprise, flexibility works.  ¶  SB 48’s conversion of San Francisco’s experiment into a statewide mandate overlooks the key lesson of the experiment: to fix a complex problem, provide lots of resources to passionate and capable people on the ground and let them develop solutions that work, instead of telling them how they have to do it. Creating local responses to local problems, rather than dictating top-down solutions, will have a much higher chance of success at helping California’s homeless residents.” (T. Francois, B9)

For another voice recommending slow haste (festina lente) in crafting an affordable-housing plan for California, and opposing Senator Scott Wiener’s perennial state preemption laws pushing densification on localities, seeCalifornia Legislators Should Take a Breath on Housing ‘Crisis’: Looking at You, Scott Wiener” by Susan Kirsch (commentary posted to the CalMatters website, 1/23/2020).
  For a local voice which supports Wiener’s revised Senate Bill 50 (calling it “the single most promising housing measure now before the Legislature”), seeEditorial: Atkins Deserves Praise for Keeping Needed Housing Bill Alive” (posted to the San Diego Union-Tribune website, 1/23/2020) and the editorial, “Senate Bill 50’s Dead? Time for Son of SB 50” (San Diego Union-Tribune, 2/1/2020, p. B6).

A success story in “the nationwide fight against preemption laws that tie the hands of local officials”: “The Fight Against Preemption: Colorado beat back laws to prevent local governments from improving worker pay and conditions” by Bryce Covert (The Progressive, vol. 84, no. 2, April/May 2020, pp. 42–45).
  “‘For years, we’ve seen the rapid growth of preemption laws around the country to block minimum wages,’ says Laura Huizar, senior staff attorney at the National Employment Law Project. [...] These bills are typically introduced by Republicans and passed at the behest of corporate lobbying interests and patterned on model legislation from the conservative American Legislative Exchange Council (ALEC). ‘The corporate lobby has seen preemption as a very effective tactic to block policies [e.g., minimum wage increases] they don’t like,’ Huizar notes.” (B. Covert, 43)

Again on the subject of homelessness: if you wish to get beyond the alarming numbers and gain real insight on one of California’s most intractable problems, I highly recommend Thomas Curwen’s 4-part feature, “The Street Within: A Times Special Report on Homelessness” (Los Angeles Times, 8/18/2019, pp. U1–U12).
    [Part 1 of 4]  “After Many Years on the Street, Big Mama Needs a New Home: She and her neighbors live in a homeless encampment in South Los Angeles. Little do they know how much their lives are about to change” (pp. U2–U5)
    [Part 2 of 4]  “Had the City of L.A. Forgotten the Homeless of Broadway Place?” (pp. U6–U8)
    [Part 3 of 4]  “Once Indoors, their Pasts Resurfaced” (pp. U9–U10)
    [Part 4 of 4]  “Some Saw a Last Chance; Others Didn’t” (pp. U11–U12)
  Curwen manages to humanize homelessness, in the process revealing several fancied cures as Sisyphean labors which can overwhelm even young, energetic, savvy yet enthusiastic activists like Itty-Bitty (a program director with People Concern).
  “Big Mama and her neighbors called the gritty sidewalks of Broadway Place home until last year, when city and county agencies rolled out a special program to move them into supportive housing. With nearly 60,000 people on the streets and in the shelters of Los Angeles, what can seven chronically homeless men and women teach the city?” (T. Curwen, U1)
  Plenty, especially with Curwen’s telling of their stories.

[ UPDATE 1 ]  “Taking Stock of Homeless Program: City leaders and other stakeholders weigh in on the results of the Encampment to Home initiative” by Thomas Curwen (Los Angeles Times, 9/1/2019, pp. B1 and B6–B7).
  Curwen here follows up on L.A.’s Encampment to Home initiative on homelessness (which took 10 months to implement, at a taxpayer cost of $850,000), asking 11 organizers & supporters & a long-term neighbor for their views on the program, and what we’ve learned from it.

[ UPDATE 2 ]  “2 Friends, Homeless Again: A year ago, Niecy and Dion had new apartments. Today, they’re back on the streets — their situation reflecting a city’s challenge” by Thomas Curwen (Los Angeles Times, 12/29/2019, pp. A1 and A8–A9).
  More nuanced reporting from Curwen who notes, “Their experience shows that housing alone will not solve this crisis for everyone. Living with rules and regulations in a close community can be overwhelming.” (A8)

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Another powerful piece on how “Up and down the state, and more so in L.A. County, outdoor asylums are the norm, a raging drug epidemic is on graphic display, and homeless numbers are on the rise despite all the good intentions, the marginal successes and the hundreds of millions invested in a turnaround”: Steve Lopez’s update on the homeless musician who changed his life, “Aching, Pushing On for All Nathaniels” (Los Angeles Times, 9/15/2019, pp. A1 and A18).
  This is a wrenching personal account from someone who began his advocacy “naively hoping that someone more knowledgeable would have an easy answer,” only to learn “that no two cases are alike, and that some people are easier to help than others. There’s always been too much emphasis on diagnoses and treatment protocols rather than on the specific needs of individuals, and the service cracks are filled with lost souls. [...] Despite the help of the best nonprofit agencies and most devoted case managers, supportive housing didn’t work for Nathaniel.” (S. Lopez, A18)
  “In a few days, I’ll be headed to Trieste, Italy, with a local posse of government and nonprofit officials who are studying a world-renowned mental health model that’s scheduled to be copied in a Hollywood pilot project next year.  ¶   I don’t know why Trieste did it and we didn’t, but I’m curious to learn whether that model can work here, where poverty and addiction are bigger problems. I’ve been told that you don’t see people with severe mental illness suffering on the streets in Trieste, fending for themselves. Can you imagine being able to say that about Los Angeles?  ¶   In Trieste, as I understand it, there’s an ethos of acceptance, inclusion and community involvement. I’ve seen examples of those concepts in various local mental health agencies. But we need a broad cultural makeover.” (S. Lopez, A18)

Dan Walters calls attention to more half-baked, “fatally flawed” California legislation in his commentary, “Ethnic Studies Time Bomb Explodes” (posted to the CALmatters website, 8/11/2019).
  Here we have a new “model curriculum in ethnic studies” for high school students, still in draft form — and already “in bad need of an overhaul” — that has not yet been approved by the state school board.
  But complete ignorance as to the final form of this contentious model curriculum (which Walters describes as “a 303-page draft of undecipherable educational jargon and left-wing rhetoric, advocating the indoctrination of teenagers into believing that everyone who isn’t white and male is an oppressed victim”) has not prevented lawmakers from mandating its use.
  “Current law does not require local school systems to adopt it, but the Assembly — without knowing what the model curriculum would contain — voted in May [2019] to make its use mandatory and a requirement for high school graduation. The bill, Assembly Bill 331, is now [August 2019] pending in the Senate.  ¶   Until, and unless, it is made more contextually accurate, that would be a huge mistake.” (D. Walters, n. pag.)

State officials (including Senator Wiener) have taken note that about 50 cities around the state are in noncompliance with their housing mandates. Michael Hiltzik zeroes in on “one of the more affluent and least diverse in the state” in his column, “City Is a Shirker in State’s Housing Shortage” (Los Angeles Times, 2/3/2019, C1 and C6), retitled “To Fight the Housing Shortage, California Is Right to Come Down Hard on Huntington Beach” for online posting.
  Opposed to the state’s aggressive housing bills, “Huntington Beach is pushing back,” and flouting the law. “It may be unsurprising that Gates [Huntington Beach City Atty. Michael E. Gates, who has filed suit against California] portrays the battle between Huntington Beach and the state as one involving locals’ authority to manage their own affairs.” But Hiltzik is not persuaded: “That almost sounds like the ‘states’ rights’ campaigns waged by Southern states to justify their resistance to federal civil rights laws. In terms of its practical responsibility to help deal with the state’s housing crisis, Huntington Beach doesn’t have a leg to stand on.” (M. Hiltzik, C6)
  “‘Huntington Beach is a good example of why we need stronger state standards’ for housing construction, says state Sen. Scott Wiener (D-San Francisco), ‘because it’s gone into political paralysis over housing.’  ¶  ‘We have put our mayors and city council members in a position where they’re expected to vote on projects that could imperil their political future,’ Wiener, the author of one of the 2017 laws allowing the state to take control of the development approval process for housing in communities that don’t meet their obligations, told me. ‘We as a state have to give cover to local elected officials by creating rules that govern how housing is addressed.’” (M. Hiltzik, C6)

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Here in San Diego county, the city of “Encinitas has been told by state officials it needs to ‘amend or invalidate’ an anti-growth ordinance passed by voters in 2013, or continue to violate California laws.  ¶  On Tuesday [2/5/2019], the city received a letter asking it to take necessary action to eliminate or change Proposition A, a law approved by 52 percent of voters that requires a public vote every time a developer proposes changing zoning or increasing density.” (P. Molnar, C1)
  For details on the state’s move to counteract voters’ determination to exert local control over land-use decisions, see “Encinitas Given Order on Housing: State tells city to abolish or alter anti-growth law passed by voters in 2013” by Phillip Molnar (San Diego Union-Tribune, 2/8/2019, pp. C1 and C4), retitled “State Tells Encinitas to Abolish Anti-Housing Growth Law” for online posting.
  “The 2013 law conflicts with state housing laws that require the rezoning of property to accommodate housing at all income levels. Because Prop A requires a vote every time there is a change to zoning, it also delays attempts at more housing. A small apartment project for an empty retail lot could cause an expensive election, leaving many developers weary of even trying.” (P. Molnar, C1–C4)
  Thus far, “Efforts by Encinitas to increase density requirements through the ballot box have been unsuccessful. Measure U in 2018 and Measure T in 2016 both were voted down.” (P. Molnar, C4)

And for more re. our historical opposition to state government forcing economic integration (by way of low-income housing) on cities and counties: “A Rule that Thwarts Public Housing May Meet New Test: Garcetti Pitches Repealing Law Used to Keep Out the Poor,” by Liam Dillon (Los Angeles Times, 2/3/2019, B1 and B7), retitled “A Dark Side to the California Dream: How the State Constitution Makes Affordable Housing Hard to Build” for online posting.
  I strongly recommend this excellent article on a little-known public housing law (along with the interesting comments it generated in the discussion section).
  According to Dillon, in 1950, Californians added Article 34 — requiring voter approval for public housing — to the state constitution. “The rule stymied low-income home construction in California for decades” (B1), and while “Article 34 is much less of a barrier to low-income housing construction than it used to be ... the provision continues to be an obstacle for some low-income homebuilding. Affordable housing developers structure deals to avoid triggering a vote — legal and consulting costs can be in the tens of thousands of dollars — or must ensure that a city has enough units approved from a prior Article 34 election. But when a local government hits its cap, it must again seek approval from voters.  ¶  That’s happening in Los Angeles. A 2008 ballot measure approved by voters allowed up to 3,500 public housing units per council district in the city. Some neighborhoods are now close to their limit. City officials believe they’ll have to hold another vote within the next couple years to increase the cap, prompting Garcetti to instead pitch a repeal of Article 34 to the Legislature.” (L. Dillon, B7)
  “State Sen. Ben Allen (D-Santa Monica) has introduced legislation to put the repeal before voters. If it goes on a 2020 statewide ballot, it would be the fourth time Californians would consider changing or doing away with Article 34. Three prior efforts, including the most recent in 1993, failed by wide margins with opponents arguing that residents should have the right to keep public housing out of their neighborhoods.” (L. Dillon, B7)
  So “a repeal of Article 34 is hardly a sure thing, said former State Treasurer Phil Angelides, who worked on one of the failed efforts to weaken it. Angelides called the provision ‘a blot on the [state] Constitution,’ but said, on its face, a requirement to hold a public vote doesn’t seem like it might have negative effects.  ¶  ‘While it’s clearly discriminatory, it has the aura of local control, which is something people like in California,’ Angelides said. ‘It’s going to take a campaign of informing voters what it means.’” (L. Dillon, B7)

And for an out-of-state experiment with densification: see the PBS NewsHour Weekend segment, “How Minneapolis Became the First to End Single-Family Zoning” (first aired 11/23/2019).
  SUMMARY: “To help address a housing shortage, Minneapolis became the first large American city to end single-family zoning, the rules that restrict certain neighborhoods to single-family homes. Now, buildings with up to three units can be built on any residential lot. Leaders hope this, and other plans, will add new units, create density and remedy segregation. NewsHour Weekend’s Megan Thompson reports.”
  I found the viewer discussion of this piece equally interesting. Some highlights:
  1. Comment posted by “Candid One”: “Libertarians like to complain about how ‘democracy is tyranny of the majority!’ It was quite apparent that the Minneapolis change in zoning laws was not one-sided, but NIMBY is on borrowed time.” (n. pag.)
  To which “Jim Davies” responded: “Yes, we do make that complaint, and with excellent reason. We favor individual freedom, not majority votes by a collective.  ¶   So we hold that no obligation should bind anyone except freely-entered contracts. If for example all the home-owners in some neighborhood have all agreed not to sell real estate without the condition that restricts it to remaining a single family home, that contract should be honored. Not over-ruled by some bunch of communists in City Hall.” (n. pag.)
  2. Comment posted by “Wulfgar”: “What are the desires of Minneapolis’ residents? Don’t any of them want affordable housing?” (n. pag.)
  To which “Jim Davies” responded: “Probably so; and if they do, in a free market builders will certainly provide it, being well motivated by greed for profit. Unless some government law gets in their way.” (n. pag.)
  To which “Wulfgar” responded: “High density housing and urban growth limits are good things.” (n. pag.)
  To which “tck62” responded: “According to whom? Sure as hell not the standard of living of the average worker who enjoys backyard barbecues and having a dog.” (n. pag.)
  3. And lastly, the comment posted by “Borderlord,” responding to the query “Are you against density?”: “Density equals noise and an excessive number of people doing annoying things. The greater the density, the greater likelihood of the irritation causing some to lash out. If the population is relatively homogeneous, the irritations are held to similar times and days. If not, the annoyances can occur at any time, and seem more irritating.  ¶   Density along with diversity is a recipe for conflict.  ¶   I appreciate my peace and quiet.” (n. pag.)

The whole debate over NIMBYs and YIMBYs and race (PIBBYs) and gentrification — and the power struggles over local vs. state/federal control of land and zoning and development — took an interesting turn in the provocative discussion between two PBS NewsHour regulars in another of their Race Matters installments, “The Arguments For and Against More Powerful Local Government” (first aired 7/31/2018).
  SUMMARY: “Recently, NewsHour analyst David Brooks wrote a New York Times column arguing that it’s time for a resurgence of localism, flipping power and decision-making away from the federal government. Sherrilyn Ifill of the NAACP Legal Defense Fund, another NewsHour regular, says that idea fails to take account of the elephant in the room in America: race. They both join Judy Woodruff to talk about it.”
  As several commentators point out, Brooks and Ifill have much in common: “both are traveling on very long paths to the same destination” (comment posted by “Lance Anderson”); “this conversation was not really adversarial. They find [different] emphasis on jointly acknowledged issues” (comment posted by “Candid One”).
  Nonetheless, the two model here the sort of passionate practical deliberation and persuasion recommended for a well-functioning democracy (and rule by consent rather than force) since Aristotle.

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A far less civil debate over federal vs. state vs. local control is described in Kevin Waite’s op-ed, “California’s First #resistance” (Los Angeles Times, 8/5/2018, p. A17), retitled “Early California Lawmakers also Preached #resistance — But Against Immigration” for online posting.
  Waite here recalls California legislators’ strident opposition to new federal laws (scil. the 14th Amendment, enacted in July 1868, and the 15th Amendment, passed in 1870) weakening white supremacy in the state, by promoting “a stunning and unprecedented experiment in interracial democracy.” During the era of federal Reconstruction, when jingoism was still politically correct, “California Values” were rooted in xenophobia and a Democratic “platform of white racial superiority and resistance to the federal government.” “According to California’s ruling elite, threats to white supremacy came in many shades of brown — African Americans, Native Americans, Latinos and Chinese immigrants.” By the time California passed “the first American law to ban a specific ethnic group from entering the United States” — the Chinese Exclusion Act of 1882 — “many of the protections offered by the 14th Amendment to nonwhite citizens had been stripped away by judicial rulings and greatly diminished federal enforcement. With help from their political allies across the country, California’s leaders had thus made good on repeated promises to preserve white supremacy.” (K. Waite, A17)
  California history thus offers its own ironic commentary on our modern legislature’s historical amnesia when drafting the “California Values Act” in 2017.
  My own historical critique of modern legislators’ misconception of the 1872 fencing statute, also enacted during Reconstruction (1865–77), raises a different set of concerns regarding state vs. local power struggles over “fundamental protections for life, liberty and property.” (K. Waite, A17)

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For another example of cultural amnesia concerning our “California Values” — complete with government-run incarceration camps for people of color regarded as aliens, again justified by fear-mongering and stereotyping — see the joint exhibition presented by the California Center for the Arts in Escondido on one of the ten Japanese-American internment camps in the U.S. during World War II, “Manzanar: The Wartime Photographs of Ansel Adams” and “Wendy Maruyama: Executive Order 9066” (runs through 10 March 2019, with supplementary special events scheduled for 2/10/2019 and 3/3/2019).
  The San Diego Union-Tribune has a preview of the February–March Manzanar exhibition here: “Painful Memories: Joint exhibition in Escondido part of effort to make sure the plight of Japanese Americans during World War II isn’t forgotten,” by Martina Schimitschek (San Diego Union-Tribune, 2/3/2019, pp. E3–E4).

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For more re. California’s conflicting “values” when it comes to immigrant labor, see Michael Hiltzik’s column recognizing 19th-century “Chinese immigrants’ role in building the nation”: “Chinese Immigrants Helped Build California, but They’ve Been Written Out of its History” (Los Angeles Times, 4/7/2019, pp. C1 and C6).
  Drawing on new research by Stanford historian Gordon H. Chang for his forthcoming book Ghosts of Gold Mountain, Hiltzik concludes that “the experience of the immigrant Chinese workers in America bears lessons for us today: Their importance in building the nation, the West and California is incontestable, yet has been obscured by racism and xenophobia that made it easy for subsequent generations to forget their role. They were low-paid laborers, denied a path to citizenship, victimized by violent reaction, yet without them America would be a different and a poorer place.”

As the culture wars reignite over immigration, shifting demographics, nativist protections, and “California Values,” it is worth remembering that the first publication of the Constitution for the state of California was bilingual:
  1. [English edition] a 19-page octavo, with imprint: Constitution of the State of California (San Francisco: Printed at the Office of the Alta California, 1849).
  2. [Spanish edition] a 16-page octavo, with imprint: Constitucion del Estado de California (San Francisco: Imprenta del Oficio de Alta California, 1849).
  The English edn. consisted of “16 pages of Constitution and 3 of Address To the People of California.  ¶  Riley’s Proclamation of Oct. 12, 1849, is printed on the back of the title.” (Henry R. Wagner, California Imprints, 1922, 21)
  “The Spanish edition is printed in smaller type and thus occupies only 16 pages, the Address being contained on pages 15 and 16. At the end is a certificate of Hartnell as translator, and Halleck as certifying to correctness of the copy.  ¶  It is stated that 8000 copies in English and 2000 in Spanish were printed, paid for by Riley.” (Henry R. Wagner, California Imprints, 1922, 21)
  “This first appearance of the Constitution in book form is an extremely important work. It is also one of the earliest books printed in San Francisco.” (H. R. Wagner, qtd. in Newberry Library exhibition catalog, Henry Raup Wagner, 1862–1957. An Exhibition of Rare Books Honoring the Centenary of his Birth, 1962, 9–10)

And for yet another example of “uncooked” legislation foisted on California’s citizenry: Assembly Bill 375, the “9,900-word bill purporting to protect Californians’ personal and financial information from being revealed without their permission.” Dan Walters discusses this, and more, in his commentary, “Unintended Consequences of New Privacy Law?” (posted to the CALmatters website, 7/9/2018).
  Ten thousand-word bills, drafted in haste — with exemptions for “state and local governments, thereby continuing the state’s practice of imposing laws on others while exempting itself from obeying those same laws” (D. Walters, n. pag.) — underscore the pressing need in California for legislative reform.
  I am reminded of Mark Twain’s witticism: “I didn’t have time to write a short letter, so I wrote a long one instead.” Samuel Johnson, before him, phrased it: “If I had had more time, I would have written more briefly.” And before that, the 17th-century scientist and theologian Blaise Pascal wrote: “I have made this letter rather long only because I had not had time to make it shorter.” (I chose Johnson’s shorter version to head up She-philosopher.​com’s IN BRIEF page.)
  I believe the conceit (about how much craft and time brevity requires) originated with the Roman lawyer, Pliny the Younger (61–c.113). But I can no longer locate the reference for this in my notes, and may well have misremembered the aphorism’s original Greco-Roman author. (If anybody out there can identify the true ancient source, please let me know!)
  Regardless of whether the original source was a lawyer, this bit of ancient wisdom still applies to the postmodern legal context. As does a quote from Fred Rogers, creator and host of the children’s show Mister Rogers’ Neighborhood: “I think we are created deep and simple. Society doesn’t nurture that. Society nurtures shallow and complicated.”
  Here’s a thought: how about legislators make the time to write fewer, simple and deep laws — which apply to everyone alike, and nurture the public good — for a change?

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The California Consumer Privacy Act (Assembly Bill 375), first amended in September 2018 (as Senate Bill 1121), takes effect on 1 January 2020. According to CALmatters guest commentator John Kabateck, “The law is riddled with unclear definitions, overly broad mandates, and small errors that will lead to unnecessary costs and widespread confusion about compliance.  ¶   When the California Consumer Privacy Act passed in 2018, we heard many promises that the Legislature would take the time to fix its flaws and address its unintended consequences. That time is growing alarmingly shorter.  ¶   When the Legislature returns Monday [8/12/2019] for its final month of the year, finding reasonable solutions to the problems associated with the California Consumer Privacy Act must be a top priority.” (“For the Sake of the Economy, California Legislators Must Fix the Flawed California Consumer Privacy Act,” posted to the CALmatters website, 8/12/2019)
  Like Mr. Kabateck, all of us have reason to be skeptical that the legislature can make quality reforms to such an important & complicated law in the 3 frenetic weeks remaining in the 2019 legislative session. “[S]o far, legislative leadership is failing to keep its promise.... The stakes are high and the window to act closing. Because the law has not yet taken effect, many California companies have not begun to focus on the change required by the California Consumer Privacy Act.  ¶   But when they do, there will be anger over the high costs of compliance, uncertainty about how to comply, confusion about the management of data, misinformation about liability, and concern about the changes to the internet economy.  ¶   There is still time for the act to be modified to address these concerns. But that requires legislative leaders to stick to their word, and allow solutions to be considered. If legislators do not attempt to fix the law, then businesses in their districts will have good reason to hold them accountable for the consequences.” (J. Kabateck, n. pag.)

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There will be national repercussions as well, as the federal government also decides how to regulate the aggressive monetizing of Internet user data, by tech firms large and small.
  As pointed out by the San Diego Union-Tribune Editorial Board, “people’s privacy is under siege from plenty of companies.” “The good news for Californians is that the state’s online privacy law enacted last year takes effect on Jan. 1 [2020]. It gives individuals the right to be informed about what data is being collected on them; to request the deletion of the information; and to opt out of allowing the sale of this information, among many invaluable protections.  ¶   The bad news for Californians is that Facebook, Google and other rich tech giants have grown so chummy with lawmakers that there is a chance that Congress and the Trump administration will pass a weak federal law that supersedes the state law.  ¶   California’s congressional delegation must fight that tooth and nail. It’s time for a new era of online privacy in America — with the Golden State in front.” (“Editorial: Facebook and Google Show Why California’s Online Privacy Law Is So Important: Tech companies keep proving anew they can’t be trusted,” San Diego Union-Tribune, 7/21/2019, p. B7)
  The California Consumer Privacy Act should have been — and could yet become? — a model for the nation. With so much at stake, it’s incumbent on legislators to improve the law, as promised in 2018.
  IMHO, legislators should also follow Thomas Jefferson’s lead (in his fight to reform Virginia’s new Constitution, beginning in the fall of 1776, after Jefferson’s heavily-amended Declaration of Independence had been adopted by Congress), and should include a provision for periodic adjustment and revision. I believe it behooves us to embed such provisions in all important laws (as did this country’s first elected representatives during the 17th century). This is especially true for a law as far-reaching as the California Consumer Privacy Act, where unintended consequences are sure to follow, and the law’s effectiveness will need to be regularly evaluated, in order to keep pace with changing technologies, and in order to ensure the best outcomes.

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Laurel Rosenhall has prepared a useful explainer re. the California Consumer Privacy Act (AB-375) enacted in 2018: “How California Is Rewriting the Law on Online Privacy” (posted to the CALmatters website, 12/2/2019).
  In sum: “On one hand, California’s privacy law is the strongest in the United States, giving consumers a new level of control that may become the national standard. Companies are spending an estimated $55 billion to comply, largely on updates to their policies and systems.  ¶   On the other hand, the law doesn’t stop companies from collecting personal data — it just gives people more ways to know what’s being collected and ask that their information be deleted. In other words: the impact of the law may rest in how many people exercise their new rights.” (n. pag.)

A thought-provoking editorial — “Take Politics Out of Sentencing,” by The Times Editorial Board (Los Angeles Times, 7/21/2019, p. A19) — calls our attention to the 2019 session’s Senate Bill 136, “which would repeal the mandatory extra year in prison defendants get for every time they previously were in prison or jail for a felony.” (A19)
  The editorial’s authors argue that “SB 136 is good lawmaking in that it would roll back foolish lawmaking” — “determinate” sentencing laws (with “enhancements”) enacted in response to changing political fashions, not in the interests of justice: “politicians got rewarded at the ballot box for being merciless, not necessarily sensible. There was rarely an adult in the room to tell lawmakers they were being excessive or duplicative, or that their claims that more and longer enhancements boosted public safety were unsupported by data, or that they were filling prisons faster than we could build them — without driving down crime.  ¶   It would have been useful to have someone vet all those tough-on-crime bills collectively and put them in perspective before the Legislature voted on them. [...] What the state needed was a sentencing commission — a panel of non-politician criminal justice experts to sift through proposed sentencing laws and report to lawmakers and the public whether the legislation was supported by data, adhered to a cohesive sentencing philosophy and made good sense from the perspective of justice, and not just politics.  ¶   Lawmakers would still make the law, but with a little more guidance and a little less pressure or frenzy.” (A19)
  Their call for a sentencing commission to provide the Legislature and the public with expert, evidence-based guidance on criminal justice reform makes a lot of sense. The piecemeal enactment and revision of sentencing laws, “one at a time, without context and without data” (A19), is no way to do proper criminal justice reform.
  The first representative assemblies to meet in colonial New Jersey (from the early 1670s) were authorized to make such “prudential laws” among themselves as they deemed advisable. The art and science of lawmaking comprise one of the great components of democratic self-government. What we need now in California is a 21st-century revival of 17th-century-style prudential lawmaking.

Daniel Victor on the complexities of drafting good state law, when million-dollar lawsuits hinge on such subtleties as proper use of the serial comma: “Lack of Oxford Comma Could Cost Maine Company Millions in Overtime Dispute” (posted to the New York Times website, 3/16/2017).
  “The language in the [Maine] law [governing overtime] followed guidelines in the Maine Legislative Drafting Manual, which specifically instructs lawmakers to not use the Oxford comma. Don’t write ‘trailers, semitrailers, and pole trailers,’ it says — instead, write ‘trailers, semitrailers and pole trailers.’
  “The manual does clarify that caution should be taken if an item in the series is modified. Commas, it notes, ‘are the most misused and misunderstood punctuation marks in legal drafting and, perhaps, the English language.’
  “‘Use them thoughtfully and sparingly,’ it cautions.
  “Legal history is replete with cases in which a comma made all the difference, like a $1 million dispute between Canadian companies in 2006 or a very costly insertion of a comma in an 1872 tariff law.
  “Varying interpretations of a comma in the Second Amendment have figured in court decisions on gun laws, including a Federal District Court overturning a Washington gun ordinance in 2007. (The Supreme Court later overturned the law in the case known as District of Columbia v. Heller.)” (D. Victor, n. pag.)

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The Second Amendment (adopted on 15 December 1791) to the Constitution of the United States of America has been modernized to read: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
  EDITED  For the original text of the Second Amendment, as printed in 1809, see She-philosopher.​com’s study on gun & militia laws at this country’s founding, “The Missing Historical Context: Anglo-American Gun Laws & the Original Intent of the Second Amendment.”

As if we don’t have enough laws on the books already — including multiple new statutes, of questionable merit, from which flow “many inconveniences” for ordinary Californians — California Assembly members have increased (by a whopping 25%!) the limit placed on the number of bills each Assembly member is allowed to write. On 12/4/2016, “the 40-bill limit put in place in December 2002” was expanded “to 50 bills per Assembly member”; “The state Senate, on the other hand, kept in place its previous rule of 40 bills per member.” (John Myers, “Assembly Expands Cap on Legislation,” Los Angeles Times, 11 December 2016, p. B3)
  As Myers suggests, the raised 50-bill limit is a boon for the professional lobbyists pushing their special interests, but at odds with the public good: “the simple existence of any rule makes clear that a limit on bills is seen as a good thing, perhaps even a necessary thing when it comes to writing laws some 40 million Californians will ultimately be required to follow.” (J. Myers, B3)

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Predictably, the raised limit resulted in an even more frenetic legislative push in the final weeks of the 2017 session, drawing complaints from David Dayen in an op-ed entitled “5 Days, 623 Bills to Clear by Deadline: In California, monumental decisions affecting millions are given about as much time as a Taylor Swift song” (Los Angeles Times, 9/17/2017, p. A18) — retitled “Why on Earth Do California Lawmakers Compress a Year’s Worth of Bills into Five Days?” for online posting.
  Dayen paints a scene of chaotic government whereby state power is temporarily wielded by two individuals: “Because only the Senate president and Assembly speaker truly know what will be voted on and when, they can play lawmakers off one another, horse trade behind the scenes, and make sure their donors are as happy as their caucuses.” (A18) It should come as no surprise that “lawmakers like the status quo. It provides a shroud for them and special interests to conduct the sausage-making of politics without pesky interference from the people they represent.” (A18) “Dragging out legislation until the final days makes it easier for special interests to kill what they don’t like and sneak through what they do.” (D. Dayen, A18)
  But for California’s citizenry of 39.6 million, “It makes no sense to have rigid, artificial bottlenecks that lead to lawmakers sorting through 120 bills a day in the final week. Monumental decisions affecting the future of millions are given about as much time as a Taylor Swift song.... The system makes it nearly impossible for either constituents or for lawmakers themselves to know what’s going on. This confusion enables legislative leaders to consolidate power and special interests to thrive. And we shouldn’t stand for it.” (D. Dayen, A18)

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There were 1,357 bills pending in the California Legislature the beginning of August 2018.
  Lawmakers adjourned for the year only a few weeks later, on 8/31/2018, leaving Governor Jerry Brown with more than 1,200 bills to consider at the close of the 2018 legislative session. (Los Angeles Times, 8/5/2018, p. B3; Los Angeles Times, 10/14/2018, p. A25)
  In the end — as reported in Dan Morain’s Daily Guide to California Policy & Politics (e-newsletter dated 1/1/2019) — 1,016 bills were signed into law by Governor Jerry Brown in 2018!
  I know I’m not the only Californian who thinks this is way too many new laws.
  IMHO, it’s past time that the California legislature acquaint itself with the classical virtue of temperance — required for the right administration of law (as pictured by Raphael in his Stanza della Segnatura), and without which “justice is corrupted” (according to the early-modern counsellor of state, Giovanni Botero).

Patrick McGreevy re. the “Tab for State Lobbying Reaches $309 Million: Oil, climate, labor and health groups drive spending, which is short of 2015 record” (Los Angeles Times, 2/5/2017, p. B3), retitled “Spending on Lobbying in California Tops $309 Million, the Second-Highest Amount Ever Recorded in the State” for online posting.
  According to McGreevy, “Interest groups spent $309 million on lobbying California government officials last year [i.e., 2016], with new records showing the oil industry, environmental groups, labor unions and the health industry poured the greatest amounts into legislative and regulatory battles.   ¶   It is the second time in the state’s history that more than $300 million has been spent in a year, just short of the record $314 million paid out for lobbying in 2015.” (McGreevy, B3)
  And that’s only part of the story!
  As John Myers reports in his column, “State’s Biggest Lobbyists Are Local Officials” (Los Angeles Times, 8/6/2017, p. B3), retitled “Political Road Map: No One Spends More on Lobbying in Sacramento than Local Governments” for online posting: “It’s California’s local governments — cities, counties and scores of other agencies — that spend the most of any sector to influence the outcome of events at the state Capitol.   ¶   It’s government lobbying government, and it’s paid for with taxpayer dollars.   ¶   Quarterly lobbying reports filed last week show that local and regional governments and their elected officials collectively continue to outpace all other branches of California’s influence industry. Through the first six months of 2017, these government entities together spent more than $24.3 million on lobbying in Sacramento.” (Myers, B3)
  This figure is placed in context by a Los Angeles Times editorial, “Lobbying with Tax Dollars” (8/13/2017, p. A17), retitled “What’s worse than cities and counties spending millions to lobby Sacramento? Not spending millions to lobby Sacramento” for online posting, which makes a strong case for local governments in California spending “more than any other sector spent trying to directly influence Sacramento.” (A17)
  The editorial lists just a few examples of state legislation — SCA 12, AB 1250, SB 649, SB 1 — with a “profound impact on local government,” and concludes: “In a perfect world, local elected officials wouldn’t need to shell out public money to keep track of all the proposals coming out of Sacramento, or to advise state lawmakers on how best to represent the constituents they share. But with a state as vast as California and a political system that relies so heavily on funding from special interests, this is a necessary check.” (A17)

More on Raphael’s fresco known as the School of Athens, in the IN BRIEF topic on the “Sect of antient Philosophers” known as Pythagoreans.
  During the early-modern period, two eminent Pythagoreans were celebrated for their skill as legislators:
  1. Pythagoras (regarded as principal ancient legislator “of the Crotoniates, and most of the Cities of Graecia Major”)
  2. Philolaus (regarded as principal ancient legislator of the Thebans).
  (E. Chambers, Cyclopaedia, 2 vols., 1728, s.v. Legislator, 2.440)

For those like Commissioner Peter S. Doft who don’t value the artisanry of a master mason, and believe that a wall is “just” a wall: Carolina A. Miranda’s report on the Salk Institute for Biological Studies in La Jolla, CA, designed by Louis Kahn: “Past 50, Architect’s Salk Institute Is Aging Gracefully” (Los Angeles Times, 24 Nov. 2016, pp. E1 and E6), retitled “Louis Kahn’s Salk Institute, the Building that Guesses Tomorrow, Is Aging — Very, Very Gracefully” for online posting. As Miranda notes, the “function” of this icon of Modern architecture “may be for science, but Kahn’s structures feel more like a temple to nature.” (E1)
  Also of interest, the online edition of Miranda’s article includes a link to Christopher Hawthorne’s review of the retrospective on Louis Kahn (“Louis Kahn: The Power of Architecture”) held at the San Diego Museum of Art, November 2016 through January 2017.
  And see also the book review, by Paul Goldberger, of Wendy Lesser’s biography, You Say to Brick: The Life of Louis Kahn (2017). Goldberger emphasizes Kahn’s “idealization of the workingman” and life-long belief in “the potential of architecture to make life better” (P. Goldberger, “The Mystic: For Louis Kahn, the Test of Architecture Was in Its Lasting Emotional Impact,” 36). It was Kahn who once said, “I want to give the wall a consciousness.”
  “Kahn, perhaps more than any other twentieth-century American architect, was a ‘public’ architect. Rather than focusing on corporate commissions, he devoted himself to designing research facilities, government centers, museums, libraries, and other structures that would serve the public good.... His signature achievements — like the Salk Institute in La Jolla, the National Assembly Building of Bangladesh, and the Indian Institute of Management in Ahmedabad — can at first seem as enigmatic and beguiling as the man who designed them. In attempts to describe these structures, we are often forced to speak in contradictions and paradoxes: structures that seem at once unmistakably modern and ancient; enormous built spaces that offer a sense of intimate containment; designs in which light itself seems tangible, a raw material as tactile as travertine or Kahn’s beloved concrete.” (Publisher’s blurb for Lesser’s You Say to Brick: The Life of Louis Kahn)
  The master mason who built my wall has also done renovation work at the Salk Institute.

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Admittedly, the next link has little to do with my state-of-the-art masonry wall, or my small claims court case, or the California state legislature’s botched repeal-and-replace of Section 841 of the Civil Code, but it is a compelling story about human ingenuity and the (often overlooked) artistry of those laboring in haute construction: the PBS NewsHour Weekend’s signature segment (first aired 4/6/2019) on the V&A Dundee design museum (in Dundee, Scotland), which opened September 2018. According to Hari Sreenivasan’s fascinating report, the V&A Dundee took “three and a half years ... to build, at a cost of more than $100 million”: “A great deal of that time was just in constructing this extraordinary external form. It’s characterised by these leaning twisting forms that put enormous pressures, physical pressures on the building’s structure. It’s cast in concrete in situ and that itself was a very complex process.” (n. pag.)
  To all those, with boots on the ground, who built this ambitious public space: I am, like Margaret Cavendish when she visited the Royal Society at Arundel House in London on 30 May 1667, “full of admiration, all admiration.”
  I love the building’s design (inspired by “Scotland’s iconic cliffs” and maritime past), but my partner (a design engineer, obsessed with things like structural integrity) faults the design for being overly complex, and so difficult (and costly) to construct. Our ongoing debate (art vs. utility) over the trade-offs involved raise important issues about the design choices we make for our built environment going forward.
  Living in San Diego, I also wonder about related environmental costs, since “SoCal [Southern California] counties could face a rock and sand shortage” quite soon (James Rufus Koren, “Rocks’ Long Journey: Why Builders Use Gravel from Canada instead of Local Materials,” Los Angeles Times, 11/5/2017, pp. C1 and C6–C7). For more on the huge environmental costs of concrete structures — artworks and not — I recommend:
  1. “Our Ravenous Appetite Turns Humble Sand into an Endangered Natural Treasure: Humans use more sand than any other resource besides water,” by Jim Hightower (The Hightower Lowdown, vol. 19, no. 8, August 2017, pp. 1–4).
  2. “In Cambodia, Sand Mining Is Big Business — But It Comes at a Price” (first aired on the PBS NewsHour, 9/18/2019).
  SUMMARY: “Sand mining accounts for 85 percent of all worldwide mineral extraction, a $70 billion industry. In Cambodia, the practice is big business — but it comes with a price. The country relies upon the Mekong River for commerce and transportation, but extensive dredging to harvest sand is fundamentally changing its ecosystem and eroding its banks. Special correspondent Fred de Sam Lazaro reports.”
  3. And Fred de Sam Lazaro’s report (see No. 2 above) serves as a cautionary tale for others around the world eager to profit from sand mining and material dredging opportunities.
  Here in San Diego’s South Bay area, the Sweetwater Authority (which serves National City, Bonita and parts of Chula Vista) has begun “exploratory work” on the plan of contracting with “a company for one-time or ongoing mining and/or dredging,” issuing RFPs to sand mining companies in the hope “that companies will determine the quality and value of any materials, the costs of mining and/or dredging and any potential impacts to water quality, among other factors to consider.” Board members hope to “not only save ratepayers a little money, but potentially make a little money.” But might the costs to the community outweigh the benefits?
  SeeSweetwater Board to Explore Sand Mining, Dredging Opportunities: South Bay water agency could create new revenue stream” by David Hernandez (San Diego Union-Tribune, 9/22/2019, pp. B1 and B8).
  4. “Concrete Questions,” by Vince Beiser (op-ed for the Los Angeles Times, 6/17/2018, p. A21).
  Beiser points out that our transformational invention of and reliance on man-made stone (concrete) “incurs serious costs to people and the planet — and those costs are mounting exponentially.” (V. Beiser, A21)
  “The most frightening aspect of our dependence on concrete might be that the structures we build with it won’t last. The vast majority of them will need to be replaced — and relatively soon.  ¶   We tend to assume concrete is as permanent as the stone it mimics. It isn’t. Concrete fails and fractures in dozens of ways. Heat, cold, chemicals, salt and moisture all attack that seemingly solid artificial rock, working to weaken and shatter it from within. You could say our cities are like castles made of sand, except that they almost literally are castles made of sand.” (V. Beiser, A21)
  And here we have an issue which does relate directly to my small claims court case, by which I seek to reclaim my masonry wall from predatory neighbors, and to be compensated for ongoing damage to its concrete foundation when property owners in a different subdivision are, by California’s Good Neighbor Fence Act of 2013, allowed direct access to & use of the wall, and permitted to plant greenery in the engineered grade (originally an open space) between our subdivisions. The invasive roots of trees and plants located too near the wall — plus these neighbors’ watering of an area they were never intended to directly access — will continue to eat away at the concrete foundation of the wall, causing expensive structural damage.
  5. “Making Something out of Industrial Emissions: From captured carbon to shoes, cement, even beer,” by Evan Halper (Los Angeles Times, 9/9/2018, pp. A1 and A9).
  6. David Wallace-Wells, “The Cautious Case for Climate Optimism: Believing in a comfortable future for our planet probably means some giant carbon-sucking machines” (chapter from his book, The Uninhabitable Earth).
  Includes this alarming observation: “If the cement industry were a country, it would be the world’s third-largest emitter, and China is now pouring more concrete in a span of three years than the United States poured during the entire 20th century.” (D. Wallace-Wells, n. pag.)
  I wish to thank “liayn” for posting the Wallace-Wells chapter reference (which I would not have known about otherwise) in a series of comments on Miles O’Brien’s coverage, for the PBS NewsHour, of trending decarbonization schemes and solar geoengineering, “As Planet Warms, Scientists Explore ‘Far Out’ Ways to Reduce Atmospheric CO2” (first aired 3/27/2019).
  O’Brien’s reporting — and its controversial subject, David Keith’s frontier science — drew some interesting reactions from viewers, including a brief exchange between “Prospector” and “JeanSC” concerning the curing of concrete as a decarbonizing reaction.
  The Wallace-Wells chapter linked to above also opines about Keith’s June 2018 breakthrough in carbon capture.
  7. More re. concrete, “one of the most in-demand materials on Earth, second only to water”: “This Super Strong Concrete Could Repair Aging Bridges. Here’s what’s standing in the way” (PBS NewsHour feature, first aired 2/12/2020).
  Ultra-high performance concrete (UHPC) is embedded with steel fibers and is about 5-to-10 times stronger than standard concrete.
  According to PBS NewsHour special correspondent Cat Wise, “UHPC, which was first developed several decades ago in Western Europe, is not just stronger than traditional concrete. It’s also much more durable and less brittle, and the material is nearly impenetrable to water and chemicals like de-icer.  ¶   UHPC has now been used in bridge projects in 28 other states and the District of Columbia, but mostly on a small scale. One of the main reasons? Cost. Traditional concrete is roughly $100 per cubic yard. Commercially available UHPC costs about $2,000 to $3,000 a cubic yard.  ¶   UHPC’s current price tag makes it unaffordable for most government-funded infrastructure projects, but researchers around the country and here in Iowa are now working to bring those costs down.” (n. pag.)

There is more on the V&A Dundee at Wikipedia, where it is reported that the city’s gamble on design appears to have paid off: “On 30 March 2019, the museum achieved its target of 500,000 visitors within a year, six months earlier than expected.” (n. pag.)

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And another superb story from the PBS NewsHour about our built environment and the artisanry of those men and women who construct & maintain it: “British Artisans Preach Patience for France’s Notre Dame Restoration” (first aired 5/22/2019).
  SUMMARY: “Like Notre Dame in Paris, Britain’s York Minster cathedral has dominated its landscape for centuries, boasting similar architectural characteristics and offering hope for recovery from a devastating inferno. Special correspondent Malcolm Brabant visits York to see how artisans there rebuilt after a fire in 1984.”
  One of the artisans interviewed by Brabant is the 21st-century British woman stone-worker, Harriet Pace.

[ UPDATE 1 ]  “France United in Grief over Notre Dame Fire but Divided in How to Respond” (first aired by the PBS NewsHour on 11/15/2019).
  SUMMARY: “In April, the world watched in horror as flames engulfed Notre Dame Cathedral, the beloved Gothic symbol of Paris dating to the Middle Ages. Now, seven months later, a debate swirls over how to repair the structure, which lost its famous spire and roof in the fire. As Jeffrey Brown reports from Paris, questions about environmental hazards, stability and aesthetics are all sources of heated debate.”
  Given my abiding interest in all things masonry, I was especially interested in researchers’ studies of “how stones drenched with water in the aftermath of the fire expand or contract as they dry.” Researchers hope to learn “to what extent the stones are damaged, and whether they still have some resistance, and then which stones we can keep and which ones need to be replaced.” (n. pag.)

[ UPDATE 2 ]  “Notre Dame Rector Says Fragile Cathedral Might Not Be Saved” (posted to the PBS NewsHour website, 12/25/2019).

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More wall art: “British sculptor Andy Goldsworthy has long been known for his unconventional approach to art. In an ongoing project at Kansas City’s Nelson-Atkins Museum of Art, Goldsworthy has created a ‘walking wall,’ assembling and then disassembling the same limestone rocks, moving across the landscape of the museum’s campus.” The PBS NewsHour’s Jeffrey Brown talks to Goldsworthy about creating objects that won’t last forever in the CANVAS series feature, “Why Sculptor Andy Goldsworthy Is Tearing Down Walls — and Then Rebuilding Them” (first aired 8/30/2019).
  To me, Goldsworthy’s walking wall provocatively plays with common-sense perceptions of our built environment as a permanent product (e.g., “built in stone,” “cast in concrete”) vs. an unending creative process (e.g., Sisyphus forever rolling his great stone uphill). I have long believed that our cultural fixation with product over process retards the construction industry and all of us who neglect to design for maturing use and maintenance of built structures, be they located in the brick-and-mortar or virtual worlds. Ideally, we would plan — and budget! — for the successful aging of everything we build. But it seems it’s human nature to focus more on the initial creative act. In the words of that notoriously undisciplined author, the duchess of Newcastle, “... there is more Pleasure and Delight in making than in mending ...” (Margaret Cavendish, The Worlds Olio, 1655, A3v).
  Goldsworthy’s masonry art project raises yet other profound questions.
  “[STEVE WATERMAN:] [...] every night, I go home and think, I don’t know whether to think this is art or this is life.
  “[JEFFREY BROWN:] A bit of both, no doubt. And add to the mix a bit of politics, in an age where building a wall has a new meaning.
  “[ANDY GOLDSWORTHY:] This work has taken me into uncomfortable territory. And that is a great thing for an artist to be put into. It was conceived as an idea pre-Trump, pre the wall, that is happening now.  ¶   This wall, in some way, has got nothing to do with that and everything to do with it. And how it will resolve itself, I’m not entirely sure, but it’s indelibly written into the making of this.” (n. pag.)
  Notes Jeffrey Brown: “Over time, the scale has grown as his work has been commissioned around the world: nine stacked slate domes at Washington’s National Gallery, large cairns in several locations, this one near his home in Scotland, and a nearly 3,000-foot-long wall that winds its way through the woods at the Storm King Art Center in New York’s Hudson Valley.  ¶   In Kansas City, the material, limestone, came from the nearby Flint Hills, the inspiration from the local landscape, the stone walls marking boundaries all around the city and surrounding prairie. But the idea here is to make the stone move.
  “[ANDY GOLDSWORTHY:] It’s about the movement of stone.
  “[JEFFREY BROWN:] What does that mean, the movement in stone? That’s not how we think of it, usually.
  “[ANDY GOLDSWORTHY:] Well, I think that’s exactly it. You know, rather than seeing stone as a static thing, here, for example, we’re standing in a place where there have been walls come out of the ground rebuilt and built again. This is what we do.
  “[JEFFREY BROWN:] Structures on structures on structures.
  “[ANDY GOLDSWORTHY:] Structures. But it’s not just structures. It’s ideas on ideas.
  “[JEFFREY BROWN:] And the people putting those ideas in action.  ¶   Goldsworthy enlisted a group of locals to augment his own team. All followed the British tradition of a break for tea. Edd Smith and Jason Wilton are experienced craftsmen whose task was to keep the wall moving at a pace of 10 to 12 yards a day. No hammers or machinery and no binding mortar, just stones fit together piece by piece, with big flat ones to level it on the top at four-feet-high, measured the old-fashioned way. [...]” (n. pag.)

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And another feature on artisanal masonry from the PBS NewsHour: “The Painstaking Process of Repairing a Damaged Cathedral” (first aired 6/10/2019).
  SUMMARY: “The Washington National Cathedral in Washington, D.C., sustained major damage during a rare 2011 earthquake. Nearly eight years later, reconstruction is still underway at the country’s second-largest church. Jeffrey Brown visited the landmark to learn more about the long and painstaking repair effort, including how it has been funded and what steps have been taken to avoid future disaster.”
  Jeffrey Brown reports that this “inspiring house of worship and of civic engagement,” begun in 1907 and built over 83 years, is made of Indiana limestone in a 14th century English Gothic style. The damage, requiring 8+ years of repair at an estimated cost of $34 million, was sustained from a 58-second, 5.8-magnitude earthquake — a rare phenomenon in Washington, D.C. Even so, there is the usual debate over investing in such monumental public spaces when there is so much need elsewhere: “[THE VERY REVEREND RANDY HOLLERITH:] We have tried to stay very balanced as we look at our own repairs. We raise money along and along to repair the cathedral.  ¶   And, at the same time, we’re also trying to make sure that we’re raising money that we need to do the mission and ministry that we need, so that we are active in the community, so that we are caring for the sick and the needy.” (n. pag.)
  Viewing this segment from my home in “earthquake country” (Southern California), I couldn’t help but be struck by several related value & design issues, starting with San Diego’s postmodern version (construction finished in 2013) of an earthquake-resistant “concrete cathedral” — the landmark central library awarded a top honor by the American Society of Concrete Contractors’ Decorative Concrete Council, as reported by Roger Showley (San Diego Union-Tribune, 4/12/2013, p. C1) in a piece entitled “The Epitome of Concrete” for online posting (4/9/2013) by the editors of The Morning Call. Funding of this new downtown public library was provided in part through the sale of engraved bricks (yes, I purchased masonry tributes for both my mother and mother-in-law ;-), in an “effective mix of public and private financing, with private donors contributing more than 35 percent of construction costs” — evidence of “San Diegans’ commitment to and belief in their libraries.” For a virtual tour of the iconic 9-story library in downtown San Diego’s East Village, click/tap here.
  But along with such feel-good stories of community commitment to civic renewal, there is growing debate over the cost-benefit trade-offs of retrofitting unreinforced masonry buildings (URMs), and related mitigation projects, throughout California, especially in the state’s poorer areas. In 1986, the California legislature passed a law requiring cities in the state’s most seismically active zones (which did not, back then, include San Diego) to inventory old masonry buildings and come up with ways to get owners to retrofit them. Cities like San Diego have relied on voluntary compliance, with mixed results. For an introduction to the issues as we approach 2020, I recommend:
  1. Advice for San Diego from the prominent seismologist, Dr. Lucy Jones, as documented in “Earthquake Expert: City Needs Updates: Water pipes should be seismic-safe, buildings require retrofitting,” by David Garrick (San Diego Union-Tribune, 11/30/2018, pp. B1 and B3).
  2. “S.D. Buildings Still Quake-Vulnerable: Most unreinforced masonry structures have been retrofitted, but a few dozen have not,” by John Wilkens (San Diego Union-Tribune, 5/13/2018, pp. A1 and A14, A2 for backstory).
  Unfortunately, “The long lag-time between recognition of masonry-building flaws and completion of repairs doesn’t bode well for other seismic retrofits that are in the offing.  ¶   Structural engineers learn lessons every time there’s a major quake somewhere in the world, and they are increasingly concerned about several other kinds of buildings, even some — those with precast, tilt-up concrete walls — that are less than 20 years old.” (J. Wilkens, A14)
  3. “A Region at Risk: Despite decades of warnings, hundreds of Inland Empire brick buildings remain vulnerable to a major earthquake” by Rosanna Xia, Rong-Gong Lin II, and Raoul Rañoa (Los Angeles Times, 2/11/2018, pp. A1 and A10–A11).
  This excellent piece zeroes right in on the real issues: lack of public funding — and public will? — to offset the high costs of seismic retrofitting of URMs (unreinforced masonry buildings) in working-class and low-wealth communities.
  “Forcing owners to retrofit or demolish these buildings just doesn’t make sense in a predominantly working-class region like the Inland Empire, some city officials said. Many treasure the area’s historical character, and a city could be put at an economic disadvantage if neighboring cities don’t enforce the same strict rules.
  “‘The jurisdiction that does not require retrofit can outcompete their neighbor that does require retrofit when attracting new business,’ said Mike Gardner, a councilman in Riverside, where the historic Mission Inn and some of its surrounding brick buildings have been retrofitted. In all, the city has as many as 160 URMs left, the most out of any city examined by The Times.
  “‘There is also a risk,’ Gardner said, ‘that buildings that have not been retrofitted may be abandoned by their owners in economically depressed areas.’
  “Others shrug at the number of unsafe buildings. They say many are only occupied for a few hours each day and question whether retrofitting such old buildings — which might save lives but not necessarily the building after an earthquake strikes — is even worth it. It makes more sense to wait for real estate demand to kick in, they said, when new owners decide it’s more cost effective to tear these buildings down and build anew.
  “The city of Ontario at last count had 42 unretrofitted brick buildings. ‘That’s not a high number,’ building official Kevin Shear said.
  “Seismologist Lucy Jones, whose work guided L.A. in 2015 to enact the most ambitious seismic safety laws in California history and is now helping dozens of smaller cities do the same, said she understands — but also questions — these economic arguments.
  “‘If you’re going to use an economic argument, you have to ask: What’s the value of human life?’ she said. ‘URMs are the reason you have earthquakes in Iran that kill 60% of the population. Most of us don’t have them anymore.
  “‘And the idea that we do know exactly which buildings are the most dangerous and where the dangers will be … what’s the implication of a decision to not retrofit?’
  “In San Bernardino, which sits directly on top of the San Andreas, officials acknowledged the implications and said it’s time to do something about the risks. Despite the challenges posed by a five-year bankruptcy, a weary working community and spotty records on the oldest properties in town, building officials have tried to push ahead.
  “‘It’s a daunting task. A lot of people don’t understand what a complicated issue it is. People just think, “We’ve known that these are high-risk buildings for 25 years, why haven’t cities done anything?”’ said Mark Persico, who took over the city’s building and safety staff in 2014. ‘One of the issues that we’ve had — because there’s been a high turnover in staff as a part of the bankruptcy — is really coming up with a complete list of properties, because the city has started and stopped this process, I think like many cities have, since the early 1990s.’” (R. Xia, R.-G. Lin, and R. Rañoa, A10)
  Their article also calls out one of my own pet peeves: yet again, there is no fully-funded mechanism for following up on the enforcement of our laws (in this case, signage notifying the public of known risks associated with particular buildings).
  Several readers made interesting contributions in the Comments section, adding to the growing debate over forcing taxpayers to pay for the maintenance of privately-owned property: “Redlands is not a poor and mostly minority area and San Bernardino is a mixed area. What is interesting is that the places where they exist are places which have a history of conservative ‘private property sacredness’ The property owner shall not be inconvenienced.” (comment posted by “angelabirch”)
  And another reader gave the accountant’s perspective on the value of a working-class life: “The value of a human life? That’s simple. Lawyers have been valuing a human life for decades.... the math is pretty simple. Future earnings potential discounted to present value — plus the cost of final medical expenses and some pain and suffering if it happened....  ¶   Best possible outcome from a financial perspective is a 30 year old doctor, lawyer or other professional paralyzed. Worst possible? A disabled person killed instantly.  ¶   There is your value.” (comment posted by “comanchepilot”)
  4. Journalist Steve Lopez has had memorable meetings with Lucy Jones more than once. The earliest of which I’m aware was documented by him in “It’s a Big Task for Lucy Jones: Preparing Us for the Big One” (column posted 3/15/2014 to the Los Angeles Times website).
  5. Three years later, Lopez toured the San Andreas fault with Jones — California’s “queen of quakes and go-to authority on why the ground keeps shaking,” here described as a crucifix-wearing, crusading geophysicist who scared the hell out of Lopez and his companions: “Earthquake Denial Gets a Lot Harder When You Stand on Top of the San Andreas Fault” (illustrated column posted 5/13/2017 to the Los Angeles Times website).
  6. Rong-Gong Lin II reports on earthquake recovery efforts from the antipodes, in 2 parts: the summary, “What New Zealand Could Teach L.A.: A visit to Christchurch eight years after a devastating earthquake drives home five important points” (Los Angeles Times, 12/15/2019, p. B3), and the companion feature story, “A Seismic Lesson: In 2011, a New Zealand city was nearly leveled by a quake. California can learn from the devastation” (Los Angeles Times, 12/15/2019, pp. A1 and A14–A16).
  Of note, “New Zealand and California have similar seismic safety standards, their skylines built in the 19th century with collapse-prone brick and in the 20th century with brittle concrete.  ¶   Each also sits on the edge of a huge tectonic plate boundary. Neighborhoods are built on top of soft sediment that magnifies the shaking, and seismic regulations for older buildings in many areas are inadequate to resist collapse from intense shaking.” (A14)
  New Zealanders “‘always used to say, “Recovery is getting back to normal life.” The thing is, after an event like this, normal life has changed, and it’s never going to be the same again,’ said James Thompson, a regional government emergency management official. ‘So you recover into a new normal, or a new way of living. And that change will stay with people forever.’” (qtd. A14)
  New Zealand’s magnitude 6.2 earthquake, which occurred on 22 Feb. 2011, “redrew the geography of Christchurch. Downtown is now flatter and smaller, with 1,500 buildings in the Central Business District having been demolished. Some businesses left for the suburbs and never came back. Officials also bought and demolished 8,000 houses along rivers, the coast and in the hills and restricted those areas from future development.” (A14)
  Recovery “into a new normal” has been “painfully slow.” And “Recovery from a huge quake in Southern California or the San Francisco Bay Area would be many times more challenging than in Christchurch, given the state’s huge population, housing shortage and sprawling infrastructure. The last brush in California with a truly devastating earthquake was the magnitude 7.8 event in 1906 that destroyed much of San Francisco, setting back the Bay Area for generations.” (Rong-Gong Lin II, A14)

For a good summary of wildfire prevention laws enacted by the governor and California Legislature during 2019 — as well as those bills which “fizzled in the Legislature, were vetoed or dramatically scaled back” — seeWriting Wildfire Lessons into Law: A year after Paradise burned, legislators hope to keep history from repeating itself” by Taryn Luna (Los Angeles Times, 11/10/2019, pp. B1 and B9).
  Of note, the legislation introduced by Assemblyman Jim Wood (D-Healdsburg) “that would have created a $1-billion loan fund to help eligible homeowners install fire-resistant vents, roofs, eaves and windows and meet existing requirements to trim trees and vegetation within 100 feet of their homes” was gutted. “Legislators were unwilling to approve legislation with such a high price tag, forcing Wood to completely retool the proposal, instead directing state agencies to develop a pilot program to retrofit homes and create statewide home-hardening standards. No funding was attached to the bill.” (T. Luna, B9)
  And Governor “Newsom vetoed legislation to expand defensible-space laws and require homeowners in the state’s highest-risk areas to develop a 5-foot ember-resistant zone around homes. In his veto message, the governor repeated a California political mantra that has long frustrated wildfire experts: Local communities, not the state, should be allowed to decide what works best for them.  ¶   ‘Each community is different and best practices to achieve resiliency need to be created to meet the individual needs of that community,’ Newsom wrote.” (T. Luna, B9)
  I, too, oppose dictatorial state preemption laws, but am an avid proponent of state-sponsored inducements (which fairly reapportion risks & costs) and state-local partnerships, especially when it comes to such matters as fire-resistant retrofits, which will require statewide coordination & resources to implement effectively. As noted by Michael Wara, director of the Climate and Energy Policy Program at the Woods Institute for the Environment at Stanford University, “to harden building envelopes,” “We’ve got to create a noncombustible zone around homes wherever possible. And focus then on defensible space out to 100 feet. And the way to think about this is vaccination. It doesn’t matter if you vaccinate your kids if no one else does. It’s herd immunity, right? Herd immunity is how vaccines work.  ¶   Herd immunity is how home hardening works, too. So these need to be community-wide programs. Ideally, statewide programs because there’s lots of jurisdictional lines that fires are not going to respect. I think if we don’t provide programs that make this equitable, we won’t get that herd immunity.” (qtd. in “Drier, Hotter and Deadlier: Stanford’s energy policy expert Michael Wara addresses California wildfire prevention efforts that will cost billions and raises financial fairness issues that will hit ratepayers” by Rob Nikolewski [San Diego Union-Tribune, 11/24/2019, pp. C1 and C5])
  Indeed, “We need to figure out how to do that [home hardening, microgrids, and batteries for individual customers] at the state level because if we don’t, everyone is going to suffer from lack of access and affordability of homeowners insurance, whether their house burns down or not. And that’s a crisis to be avoided. And the good thing about avoiding that crisis and about the kind of battery backup power solution things is both are going to create thousands of jobs in California. Once you’re hardening homes, that’s good blue collar jobs all across high fire threat areas, many of which are struggling economically. So this is a jobs program for those communities.” (Michael Wara, qtd. C5)
  Wara also argues (and I wholeheartedly agree) that the state needs to collaborate with local communities on “tough enforcement. And ideally, this is where I think the state can really help. We’ve tried to do this [home hardening] in Northern California and it has met enormous local opposition because people like their trees and their leafy environments. And they don’t want to replace it with succulents or crushed granite in a 5-foot ring around their house. And that’s where I think it might be worth it to have the state take some of the heat and say, ‘You have to do this, but we’re going to provide a lot of resources to help you do it.’” (Michael Wara, qtd. C5)
  One possible scenario: your local “fire department comes and visits with you and says, ‘This year, these are the things you need to do and here’s a list of contractors and here’s a state funding source if it’s means-tested, if you’re low income, so that you can afford to do it.’ Because it really needs to be done. All the science says it has to happen at the community level. It does not matter if individual homes do it.” (Michael Wara, qtd. C5)

While “home hardening is not the state’s current priority” (as of year-end 2019), regional institutions such as San Diego Gas & Electric are offering a “Defensible Space and Structure Hardening Grants Program” through which “We make annual funding available to provide defensible space vegetation clearance around residential structures and to retrofit homes with more fire-resistant building materials.” Click/tap here for information on SDG&E’s 2019 initiative to retrofit vulnerable homes with fire-resistant vents (homeowner grants for 2020 are not yet available).
  In the absence of state leadership, especially when it comes to general guidelines & enforcement of “best practices,” homeowners can also look to one another for anecdotal evidence of what works and what doesn’t in their particular community.
  The Los Angeles Times has compiled “some surprising lessons learned, about landscaping and building materials, what happens after the flames go away, and how to prepare for the next firestorm” from 4 families who experienced the deadly 11/8/2018 wildfire in SoCal’s Santa Monica Mountains: seeLessons Learned: A year later, homeowners share insights from Woolsey fire” by Jeanette Marantos (Los Angeles Times, 11/30/2019, pp. E1 and E5). Of note, some of the lessons learned “run counter to official wisdom and none [...] are offered as gospel.” (J. Marantos, E5)
  In particular, the advice to plant native oaks — which may function as “fire catchers,” “their leaves and limbs catching embers before they could ignite houses” — is specific to homeowners with very large lots, able to accommodate the 90-ft root protection zone required for a mature Quercus agrifolia (Coast Live Oak).
  Those of us living in more typical SoCal tract homes — with minimal setbacks, and neighbors well within the 30–50 ft. zone supposed to contain only “low-growing and fire-resistant plants such as turf grass, vegetable gardens, flower beds” — should follow the conventional wisdom concerning fire-prevention landscaping (see SDG&E’s handout, section entitled “Protect Property - Create a Defensible Space” for an illustration of Fire Department recommendations concerning the 3 fire zones around your home). Not only are large, improperly-pruned trees within 30 feet of any tract home a fire hazard, they can also block solar panels and prevent a neighborhood’s transition to renewable energy sources.
  Learn more about California’s Coast Live Oak and other native plants at the website for the Tree of Life Nursery, physically (the nursery’s Casa La Paz Plant & Book Store is of straw-bale construction) located on the historic Rancho Mission Viejo in San Juan Capistrano. This unique nursery is a special place to visit, regardless of whether or not you are planning a native garden. I recommend that you bring a picnic, and your walking shoes, even if you plan to attend a workshop: the surrounding scenic parkland (Ronald W. Caspers Wilderness Park) is beautiful, with much to explore, making for a glorious day spent outdoors!

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Also contributing to what I hope will become a burgeoning grassroots, citizen-science movement set on developing “best practices” for adapting to climate chaos: Robert Lempert’s commentary, “For this Climate Scientist, the Getty Fire Made Clear the Need to Prepare for Disaster” (posted to the CALmatters website, 12/18/2019).
  Lempert notes from personal experience (and again, I concur, based on my own personal experience) that putting the advice about home hardening “into practice is hard. It requires most people to work well outside the scope of their experience, even someone like me, who is well-versed in adaptation and resiliency science.  ¶   One of the most vulnerable parts of our house is our wood deck which extends out over the hill where we can get even more beautiful views of the Santa Monica Mountains. It’s our favorite place, and where we spend much of our time during summer.  ¶   We developed a plan to protect our deck and hired our contractor to implement it. But watching him implement it by hanging fine wire mesh to prevent blowing embers from lodging under the deck left me uneasy.  ¶   When we renovated our bathroom, I knew our contractor had seen hundreds of such jobs. He knew all the ways bathrooms could go wrong and how to make sure they don’t. But he had never previously installed wire mesh to thwart wind-blown embers from igniting a wood deck.  ¶   Did he inadvertently create crevices that would trap embers? Did he allow for sufficient drainage? Was a wire mesh really the most risk-reducing investment compared to the other things we might have asked him to do?  ¶   I couldn’t help but recall the story of one of our neighbors who had installed and extensively tested an expensive sprinkler system to douse any embers that might lodge on his house. A visiting firefighter with vast experience deflated our neighbor’s confidence by asking whether the sprinklers had ever been tested in 70 mile-per-hour, fire-storm driven winds to see where the water would go?  ¶   As California and our nation head into uncharted territory due to climate change, all of us — not just climate experts — will need to learn how to adjust in response to changing risks. We will all need to become more adaptive by acting, learning, and responding. We will all need to share information about what works and what doesn’t.” (R. Lempert, n. pag.)

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Another installment in Miles O’Brien’s outstanding series of reports on wildfires for the PBS NewsHour: “Australian Bushfires Prompt Conversation about Land Management Practices” (first aired 2/5/2020).
  SUMMARY: “Bushfires are still burning in parts of Australia. So far this season [2019–2020], they have claimed the lives of more than 30 people and destroyed tens of millions of acres of land. The ensuing toll on forest and wildlife has prompted new conversations about how Australian land should be managed — and whether a return to Aboriginal practices might be beneficial.”

And for an in-depth look at Australia’s uncertain path from climate crisis to climate action, even in the aftermath of so many terrible bushfires, I recommend Daniel Judt’s reporting from Australia’s smoke-filled Blue Mountains, “Australia Is Burning: The country’s climate crisis has clearly reached a tipping point. But it could go either way” (The Nation, 2/10/2020, vol. 310, no. 4, pp. 12–19).
  Common sense predicts robust government action and “better climate politics” going forward: “‘There’s no way that politicians cannot react,’ Julie-Anne Richards, the executive director of Climate Action Network Australia, tells me by phone as I ride the train back from Katoomba to Sydney, queasy from the smoke. ‘There’s no way that people experience what we’re experiencing right now and forget that by the next election.’” “And yet, here and whenever else I heard it, this view was less a conviction than a hope.” (D. Judt, 13)
  “As the fires worsen into Australia’s gravest national crisis since World War II, [Prime Minister Scott] Morrison is leaning hard on another defense. He concedes that climate change is real, that it is costing Australia lives and land, and that reducing emissions will contribute to mitigating the crisis. But he insists that Australia has already taken the robust climate action his critics demand. ‘The business-as-usual model gets us there in a canter,’ he said of Australia’s emissions reduction pledge under the Paris Agreement. ‘Our climate policy settings are to meet and beat the emissions reduction targets,’ he asserted in a recent press conference.  ¶   This is a different strain of denial: not a dismissal of the science or an obfuscation of responsibility but rather a complete reshaping of the past. It is the culmination of a decades-long effort by Morrison’s predecessors to put in place the kinds of deceptive structures — accounting tricks, low expectations, complex legal loopholes — that would allow future governments to describe the history of Australia’s inaction on climate change as precisely the opposite.” (D. Judt, 15)

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Joe Mathews floats a wild and enticing idea about community-based approaches for climate-change planning in his op-ed, “It’s Time to Embrace Reality of Sea-Level Rise” (posted to the Zócalo Public Square website, 11/19/2019), wherein he suggests “responding to sea-level rise with beach parties” which “also could stoke local democracy.”
  There is an urgency to the public fun & science: “If local communities don’t get their act together with smart unifying plans for their coasts, the state government in Sacramento is likely to fill the void, imposing one-size-fits-all policies that cause more conflict.” (J. Mathews, n. pag.)

Wikipedia page re. the historical controversy over enclosure.

I have remarked in multiple places on this page concerning USers’ “founding rights to life, liberty & property” (“Californians’ founding rights regarding person & property,” “founding rights of property & security,” etc.).
  For more on the history of these “unalienable rights,” see the premliminary discussion in Section 2 of the Editor’s Introduction for the digital reissue (2014) of Thomas Tryon’s The Planter’s Speech to his Neighbours & Country-Men of Pennsylvania, East & West-Jersey ... (1684) at our sister project known as Roses.
  A digital edition of Virginia’s seminal Declaration of Rights (introduced May 1776, adopted 12 June 1776) — 16 articles which profoundly influenced the United States Declaration of Independence (1776) and the United States Bill of Rights (1789) — is part of She-philosopher.com’s forthcoming study, “The Missing Historical Context: Anglo-American Gun Laws & the Original Intent of the Second Amendment.”

NOTA BENE  An IN BRIEF topic on Thomas Cromwell’s land grab, c.1532: John Stow’s first-hand account in A Survay of London (first printed in 1598, rev. 1603) of “the remarkably arbitrary act” perpetrated by Thomas Cromwell against his neighbors.
  Stowe’s documentary record establishes that predatory neighbors have been a significant problem for property owners (in cities and suburbs) since at least 1532.
  And it gives new meaning to California’s fencing statute of 1872 (Cal. Civ. Code § 841), which began “Coterminous owners are mutually bound equally to maintain: 1. The boundaries and monuments between them; ....”

For more on the 17th-century Diggers’ radical republican program of social, legal, and religious reform, click/tap here (designed to open in a small, floating second window).
  NOTA BENE  I should also emphasize that the centuries’-old quest for legal reform was never just a populist issue. Even high monarchists like William Cavendish, 1st duke of Newcastle, who served as “justice in Ayre Trent-North,” complained about the creeping corruption that inevitably infects the common law. Writing to the future king of England during the republican Interregnum, brought about by civil war and regicide, Newcastle blamed a corrupted body of common law for fomenting rebellion: “After the reformation & Disolution off the Abies [ecclesiastical abbeys], then the Lawe crept upp, & att laste grewe to bee so numerous, & to such a vast Bodye, as Itt suelde [swelled] to bee to bigg for the kingdoume, & hath been no smale meanes to fomente & continewe this late & unfortunate Rebellion,—Howe to deminishe them woulde bee a harde worke theye have taken so Deepe roote in Englande....” (William Cavendish, Letter to Charles II, a scribal publication written c.1650s)
  As one might expect, British experience with the cancer of malversation in government crossed the Atlantic, influencing the body of constitutional law which framed the 17th-century founding of Anglo-America — along with what would become the United States a century later, following the American Revolutionary War of 1775–1783.
  From the mid-17th century, Anglo-America’s Founding Fathers were committed to a legislative philosophy of ongoing “revisal” because the “power and vertue” of the law sometimes degraded with time, such “that the course of justice is thereby obstructed and those that are by the lawes intrusted with power to execute them, may by such their uncertainety be drawne to comitt unwilled errors.” (as stated in the “Acts of Assembly made by a Grand Assembly holden at James Cittie [Virginia], March the 13th, 1657–8”)
  For more on Anglo-America’s historical commitment to revisal and reenactment of the law, click/tap here. For the specific example of how this founding principle was enacted in North/South Carolina, see related sidebar entry (this page).
  In keeping with historical legislative precedent, I am seeking a revisal of Cal. Civ. Code § 841, which I would argue was corrupted by California’s Good Neighbor Fence Act of 2013 (Assembly Bill 1404). And if the California state legislature still is unable to properly modernize the original law in 2021, then I seek a reenactment of the founding statute, as originally enacted in 1872.

There is a tendency to think that the religious right has a monopoly on “values”-based politics in 21st-century Anglo-America.
  Conservative columnist David Brooks expressed concern about this on the PBS NewsHour, noting that “the two big idea generators in the [Democratic] party are Sanders and Warren, and they’re very wonky, and they’re very materialistic, and they’re not particularly spiritual.” Mark Shields disagreed: “I think there is a strong spiritual, almost religious chord to the Democratic story.  ¶   I mean, there is no abolitionist movement in this country without religion. There is no anti-war movement without religion in its ranks. There is no civil rights movement.  ¶   And the Democrats can claim in all three of those. [...] Listen to Elizabeth Warren’s speech at the PUSH conference. It was highly religious. It was on Matthew 23, and it was quite spiritual.” (“Shields and Brooks on Trump and Race, Democrats’ 2020 Values,” first aired 8/2/2019, n. pag.)
  “John Majka” also took note of this exchange, responding in the NewsHour discussion thread for this segment that “It was Matthew 25, not 23, that El[i]zabeth Warren quoted and commented upon at PUSH on June 29, 2019.” (n. pag.)
  Armed with this additional information, I followed up on Shields’s suggestion, and was very interested by what I found.
  Matthew 25 was indeed the text inspiring both Elizabeth Warren and Pete Buttigieg in their talks at the 2019 convention of Rev. Jesse Jackson’s Rainbow PUSH coalition.
  Moreover, another Democratic presidential contender, Tulsi Gabbard, also cited Matthew (verse 22) as her inspiration, creatively juxtaposing the biblical text with her native Hawaiian concept of aloha.
  As Mark Shields predicted, I was moved by all 3 speakers, who grounded their commitment to good government and public service in a biblical precept which has guided social-justice reformers on the religious left since the time of the Diggers and Levellers in the 17th century.
  It’s good to see this Christian legacy of love and redemption in action once again. Matthew’s message continues to have broad appeal, not just to those at various points along the spectrum of religious faith, but to die-hard atheists (like me ;-) as well.

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The struggle over this country’s true values & constitutional ideals — as recorded not only in founding documents such as the Declaration of Independence, but also in our earliest laws (passed by this country’s first assemblies of elected representatives during the 17th century), which Thomas Jefferson, among other 18th-century “founding fathers,” assiduously collected & studied — is far from over.
  Even the aspirational ideal of a multiethnic democracy, guaranteeing liberty and justice for all, is in question today, with Fox News pundits such as Tucker Carlson asking “How, precisely, is diversity our strength?” “Can you think, for example, of other institutions, such as, I don’t know, marriage or military units, in which the less people have in common, the more cohesive they are? Do you get along better with your neighbors, your coworkers, if you can’t understand each other or share no common values?” (qtd. in The Progressive, vol. 82, no. 6, Dec. 2018/Jan. 2019, p. 9)
  (I can, indeed, think of several examples of strength in diversity ... and would note that Carlson’s attitude is completely at odds with that of “the father of the Constitution” and fourth president of the United States, James Madison, who believed in “a national republic that would derive directly from the people, would possess effective, full, and independent powers over matters of general concern, and would incorporate so many different economic interests and religious sects that popular majorities could seldom form ‘on any other principles than those of justice and the public good.’” (Lance Banning, ANB entry for James Madison, n. pag.) So for Madison, heterogeneity was key to preserving the new republic.)
  Unlike the U.S. Constitution’s framers, a growing number of 21st-century Americans believe that the story of multiethnic democracy is a story of decline & fall from some mythical origin they associate with a homogeneous society, guided by traditionalism and anti-egalitarianism. Hence, a fundamentalist backlash against liberalism in church & state is forming, even in the California heartland, as reported by Hailey Branson-Potts in “Preaching Hate in a Blue State Capital: A Sacramento church is part of a growing national anti-LGBTQ movement” (Los Angeles Times, 8/18/2019, pp. A1 and A12–A13).
  Branson-Potts here describes the Red Hot Preaching Conference of July 2019, “featuring some of the most virulently anti-gay pastors in the country.” “The conference’s seven preachers are part of a network of about 30 churches called the New Independent Fundamental Baptist Movement, which, experts on hate and extremism say, is growing and spreading violent rhetoric over the internet in an era when hate crimes against LGBTQ people are increasing.” (A1 and A12)
  Indicative of the movement’s appeal, “Two young men told a Times reporter they moved from out of state to be near a New IFB church after binge-watching [Steven L.] Anderson’s sermons on YouTube. Anderson and his acolytes often complain about being ‘censored’ from YouTube. The New IFB Movement uses Gab, a Twitter-like platform favored by far-right users including white nationalists, and several other social media sites.” (A12-A13) Anderson, a Sacramento native (now a pastor in Tempe, Arizona), founded the NEW IFB Movement and “garnered headlines in 2009 for telling congregants he prayed for the death of President Obama. A day later, a congregant went to an Obama appearance in Phoenix carrying an AR-15 assault rifle.” (A12)
  Of note: “On the final day of the conference, a choir sang: ‘When America was founded, she was strong and pure and good, and her leaders on their knees were not ashamed to call on God. But our nation, in her pride, has turned her back upon the right.’” (H. Branson-Potts, A13)
  Talk about preaching to the choir! This chorale is yet more ignorant and nostalgic myth-making, which distorts our history in order to feed a narrative of liberal moral decay.
  The real story of this country’s founding is much more complicated — and a lot more interesting — than the NEW IFB Movement’s style of “hard preaching” can grasp.
  I hope soon to refocus our attention on neglected stories from the past, with the power to illuminate the present, both here and in a related new study on “Taming & Advancing Our Democracy” (forthcoming as of September 2019).
  In the meantime, I wish to highlight more voices from the 21st-century religious left, including: “Our Next Revolution: We’re in a struggle for the heart and soul of a nation,” by Rev. Dr. William J. Barber II (The Nation, vol. 308, no. 12, 29 April 2019: 4 and 8).
  Barber argues forcefully that we must not “remain silent while America’s experiment in democracy is trampled by those who pretend to honor its founders,” and calls for a people’s movement “committed to reconstructing democracy and guaranteeing equal protection under the law for all. This is what those who struggled before us fought and died for. We must not be satisfied with anything less.”

Another instance where the past serves as a resource for innovation: the revitalized land-tax movement, developing on the “classical” economics model of Adam Smith, David Ricardo, John Stuart Mill, and others.
  For more on the known benefits of shifting property taxes from improvements to land, see She-philosopher.​com’s HTML transcript of the book review (“Putting Land and Power Back into Economics”), by Polly Cleveland, wherein she discusses the new work, Rethinking the Economics of Land and Housing (Zed Books, 2017) — “A comprehensive, critical but accessible guide to the role of land in housing policy and how it has been excluded from mainstream economic theory.” (publisher’s blurb)
  As summarized at Wikipedia, the land value tax (LVT) “generally is a progressive tax, with those of greater means paying more, in that land ownership is correlated to incomes and landlords cannot shift the tax burden onto tenants. LVT generally reduces economic inequality, removes incentives to misuse real estate, and reduces the vulnerability of economies to property bubbles and their collapse.” (Wikipedia article, accessed 7/16/2018)
  This form of progressive taxation is in line with the radical Christian & republican values on which this country was founded. For example, “A participant in the Radical movement, Thomas Paine contended in his Agrarian Justice pamphlet that all citizens should be paid 15 pounds at age 21 ‘as a compensation in part for the loss of his or her natural inheritance by the introduction of the system of landed property.’ ‘Men did not make the earth. It is the value of the improvements only, and not the earth itself, that is individual property. Every proprietor owes to the community a ground rent for the land which he holds.’ This proposal was the origin of the citizen’s dividend advocated by Geolibertarianism. Thomas Spence advocated a similar proposal except that the land rent would be distributed equally each year regardless of age.” (Wikipedia article, accessed 7/16/2018)

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The land value tax deserves a fresh look in light of the looming “big fight over property taxes” and reforming California’s very popular Proposition 13 (1978) (a proposed measure for the November 2020 ballot would reassess commercial and industrial properties — but not residential properties — at their current market value for tax purposes).
  While a majority of voters continue to support it, a growing number of us are concerned about Proposition 13’s gross inequities, especially as compounded by the inheritance tax breaks for children and grandchildren enacted in 1986 (California Proposition 58) and 1996 (California Proposition 193), as reported by Liam Dillon and Ben Poston in “A Tax Shelter for Heirs: California homeowners get to pass low property taxes to children. The inheritance perk has proved profitable to an exclusive group” (Los Angeles Times, 8/19/2018, pp. A1 and A12–A13), retitled “California Homeowners Get to Pass Low Property Taxes to their Kids. It’s proved highly profitable to an elite group” for online posting.
  As the debate heats up, it’s worth remembering that the intent of Proposition 13 was to prevent elderly homeowners, and others on fixed incomes, from losing their homes due to rising property taxes they could no longer afford. This was widely perceived to be unfair, and Prop 13 drew support even from tax-and-spend, left-republicans like me, who believe that social services (like parks, and libraries, and excellent schools, etc.) should be provided by good smart government, and funded by taxes which every one pays.
  Now in 2018, unfair taxation is at the forefront again, as we witness a privileged few — corporations and those who inherit valuable property — able to further enrich themselves at other taxpayers’ expense. Few of us would begrudge the tax breaks guaranteed by Prop 13 to long-time owners who occupy a property as their principal residence. But many of us believe it is unfair when those who inherit that property also inherit its tax breaks (with the exception of children whose primary residence it is, also; they should not be forced, any more than their parents, into homelessness because of skyrocketing property taxes they can’t afford).
  Children and grandchildren who inherit a home which is not their primary residence should not be able to avoid reassessment, and should have to pay the same property taxes as everyone else in the area; if not, their windfall is being unfairly subsidized by other taxpayers and the state. Preposterous as it may seem to the “middle-class,” middle-aged child who inherits a family home with higher property taxes than she can afford (thus forcing her to sell the asset), legacy Prop 13-style tax breaks are the slippery slope leading to the very sort of aristocracy that our founding fathers & mothers hoped they had left behind in the Old World. Radical republicans like Thomas Paine have argued for centuries that a true meritocracy, rooted in equal opportunity for all, requires that taxation be directed against inherited wealth (rather than wealth from labor).
  “Thomas Hannigan, a former state assemblyman from Solano County and author of the inheritance tax break [Proposition 58], admits he did not foresee that the heirs of homeowners would use his law as a moneymaker.” (A12) “At the time, Hannigan said, he and other lawmakers did not consider the long-term effects of Proposition 58. The Legislature, he said, was simply responding to California’s anti-tax political fervor.  ¶  ‘We weren’t practicing good tax policy,’ Hannigan said.  ¶  U.S. Supreme Court justices have felt the same way.  ¶  In 1992, the court heard a challenge to the broad property tax policy created by Proposition 13. Lawyers defending it contended the state was trying to protect elderly homeowners. But during oral arguments, Justice Harry Blackmun questioned why those homeowners’ children received tax breaks, too.  ¶  ‘They get the same benefit and they’re not all that elderly, as I understand it. They’re just sort of a class of nobility in California,’ Blackmun said, causing the courtroom to erupt in laughter. ‘They inherit this tax break and it goes on through generation to generation.’  ¶  Still, the court ultimately ruled in favor of Proposition 13.... But in his dissenting opinion, Justice John Paul Stevens called the inheritance benefit one of the most unfair provisions in California’s system.  ¶  The tax break, Stevens wrote, ‘establishes a privilege of a medieval character: Two families with equal needs and equal resources are treated differently solely because of their different heritage.’” (L. Dillon and B. Poston, A13)

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CALmatters has created an eye-opening feature on Proposition 13 as part of their The California Dream Series, opening with “The Block that Prop. 13 Built” — a detailed analysis of “a middle-class street on a middle-class block in a middle-class neighborhood in North Oakland. The sidewalks are cracked. Overgrown trees stretch across the road. Some residents are wealthy, some are not. Kids and parents and grandparents and dogs walk up and down this street everyday.  ¶  We chose this block not because of any unique features it possesses or noteworthy people that call it home. We chose it for its relative normalcy and for its ability to help understand the subtle impacts of Prop. 13 on the California dream.” There is also a section on “Mapping California’s Prop. 13 Winners and Losers, Down to Your Neighborhood” (yes, you can play with another of their great interactive maps here ;-).

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Proving that we do, in fact, have the political will for a just reform of property taxes in California, the ballot measure known as Proposition 5 (the Portable Real Estate Tax Break), sponsored by the California Association of Realtors, went down to defeat in the 11/6/2018 General Election, with 59.8% of voters rejecting the proposition which would have given new property tax breaks to older homeowners.
  I was among those who voted NO on Proposition 5, because I believe the additional tax breaks are unfair, benefiting a few at the expense of the common good. As summarized by CALmatters, the main arguments against Proposition 5, which persuaded a majority of 11/6/2018 election voters, are: “Of all the ways to address the state’s housing crisis, this is one of the least direct and most costly. This proposition won’t increase the housing supply by a single unit. It won’t subsidize rents. It merely switches homes from one group to another. Meanwhile, it costs the state an extra $1 billion while handing a massive tax break to some of the wealthiest people in the state.” (n. pag.)

Democratic debate over the socioeconomic perils of inherited wealth — and the plutocrats’ unpatriotic evasion of their tax obligations — gains momentum with “NYT Investigation Unearths New Details about Trump’s Early Millions,” a PBS NewsHour feature first aired on 10/2/2018.
  SUMMARY: “The New York Times has published a special investigation that digs deep into the Trump family finances. It paints a detailed picture of how the president used potentially illegal tax schemes to acquire millions from his father. The account contradicts President Trump’s long-repeated narrative that he was a self-made man. Judy Woodruff talks with Susanne Craig, a Times investigative reporter.”

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And another example of the rich taking advantage of tax breaks which violate the intent & spirit of the law: “Life on the Ranch Gets You a Hefty Tax Break: State open-space law benefits residents of gated property,” by Steve Lopez (Los Angeles Times, 10/21/2018, pp. B1 and B6), retitled “At Hollister Ranch, Homeowners Enjoy Private Beaches — and Hefty Tax Breaks, Too” for online posting.

Also related to Proposition 13 reforms, property taxes, their redistribution, and community well-being is the renewed interest in what’s known as “redevelopment.” Dan Walters explains: “Should California Revive Redevelopment?” (e-column posted to the CALmatters website, 1/17/2019).

More about John Evelyn’s Fumifugium (1661) — the 1st English book on air pollution and urban planning, which recommends redesigning urban centers as garden cities & enclosing suburban developments with double fences — in the 2nd-window aside for She-philosopher.​com’s webessay entitled “The New She-philosopher.​com: a Note on Site Design” (scroll down to the link for “In comparison, reading lots of close-set black letter these days feels effortless!”).

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The historical use of plants — along with “fragrant and health-breathing Trees” (Henry Oldenburg, “An Accompt of Some Books,” Philosophical Transactions of the Royal Society of London, 1675, 114.324) — to fight air pollution in big cities is brought up-to-date in the 2/20/2017 airing of Fred de Sam Lazaro’s “Fighting to Breathe in the World’s Most Polluted City” (another segment in his excellent “Agents of Change” series for the PBS NewsHour).
  “Delhi now [as of Feb. 2017] outranks Beijing as the world’s most polluted city. Carbon dioxide, ozone and fine carbon particles get trapped over India’s capital, mostly due to dirty fuels, causing long-term health consequences such as lung and heart disease. Special correspondent Fred de Sam Lazaro reports on some efforts to lessen the environmental toll on residents,” including the introduction of plants as a “central air cleaning system” for office buildings and homes. “FRED DE SAM LAZARO: Plants do more than produce oxygen, he [environmental activist and designer, Kamal Meattle] says. They are natural air purifiers. Their roots eat bacteria and fungi and they absorb chemicals like formaldehyde and benzene produced by office products. [...] Most importantly, he says, these are common, fast-growing species and should be in every home for clean air benefits to both lungs and brains.” (n. pag.)

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Closer to home in Los Angeles, health officials believe that such mitigating steps as the use of indoor plants to soak up bad air from traffic pollution “are good, but that the only way to solve the problem is for city and county officials to stop residential building near freeways.”
  In their feature story, “Life in Freeway Danger Zones: Southern California continues a surge of residential building in high-traffic pollution zones, even though living there makes people sick” (Los Angeles Times, 3/5/2017, pp. A1 and A12-A13), Tony Barboza and Jon Schleuss report that “Public funds, including millions of dollars from California’s cap-and-trade program to cut greenhouse gas emissions, are going to developers to build new homes in freeway pollution hot spots” despite all the evidence that residing within 500 feet of freeways leads to “higher rates of asthma, heart attacks, strokes, lung cancer and pre-term births. Recent research has added more health risks to the list, including childhood obesity, autism and dementia.” (A1)
  But business groups and local politicians — such as Los Angeles Mayor Eric Garcetti, who “said that he grew up near the 101 and 405 freeways and that many in his family had cancer” — “have consistently opposed any suggestion of restricting development near heavy traffic.” (A12)
  Of note, “The failure of such restrictions to gain traction has left some local officials wondering if the only way to keep cities from building more homes near freeways is through a state law.” But once again, state law has come up short: “One precedent is a 2003 law California passed prohibiting the construction of new public schools within 500 feet of freeways out of concern for children’s health. But school districts have used exceptions in the law to keep building.” (Barboza & Schleuss, A13)

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Weighing in on this same dispute, the Times Editorial Board supports a both/and resolution of competing public interests in their related editorial, “3 Rms, Freeway View” (Los Angeles Times, 3/12/2017, p. A23), retitled “Los Angeles Needs Housing, Yes, but Not Right Next to Its Freeways” for online posting.
  They editorialize here that an improved quality of life is possible in freeway pollution hot spots with better design of the built environment, including the planned use of trees: “If cities do allow housing within 500 feet of freeways, research has shown that both sound walls and a thick planting of trees can reduce the amount of pollution. Those measures should be required, as well as high-quality air filtration inside the buildings, which the city of Los Angeles now mandates for all new homes within 1,000 feet of freeways. Some developers have even designed their projects to put the hallways and elevators on the side of the building that abuts the freeway, with apartment windows and ventilation facing away from traffic.   ¶   Cities and developers can’t just throw up their hands and say, ‘We have a housing crisis,’ to justify building in dangerous places. We do have a shortage of housing, but that doesn’t negate the need to build safe, healthy places to live.” (A23)

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[ UPDATE ]  Another update to the Los Angeles Times’s investigation into the surge in residential development along freeways, despite growing warnings about the health problems tied to traffic pollution: “No Fast Fix to Keep Traffic Pollution Out: LA officials rely on air filters to protect residents, but they capture only some of the dangerous particles,” by Tony Barboza (Los Angeles Times, 7/9/2017, pp. A1 and A10–A11), retitled “L.A. Requires Air Filters to Protect Residents near Freeways. Are They Doing the Job?” for online posting.
  Again, “In a report released in April [2017], the California Air Resources Board reviewed more than a decade of scientific studies and highlighted what it said are ‘promising strategies’ to help decrease pollution exposure for residents close to freeways when cities do not heed its warning against building homes within 500 feet.   ¶   Among the solutions endorsed by the agency are sound walls, vegetation barriers and buildings with varying shapes and heights to help disperse traffic pollutants.” (A10)
  But, “Air-quality officials have also advised cities that the benefits of filters are significantly undermined if the building’s heating, ventilation and air conditioning system isn’t running at all times with all doors and windows closed.” (A10)
  This is not practical for most buildings, which are not required by the state to have high-performance panel filters (with MERV ratings of 13–16) anyway: “The state’s current filtration standard for new homes is MERV 6.” (A10)
  And, as usual, there is no mechanism in place to enforce the minimal standards that do exist.
  “Neighborhood activists have long complained that the city has ignored or failed to enforce promises extracted from developers as conditions of approving their projects, including enhanced air filtration requirements for homes near freeways.   ¶   ‘There’s no filter police,’ said Silverstein, the attorney who has challenged Los Angeles’ approval of residential projects. ‘The developers can say, OK, we’re going to do this. But it’s meaningless because the city is never going to go back and check.’” (A10)
  “Unless it receives a complaint, the city does not conduct follow-up inspections to see if air filters are being maintained and replaced because there is no requirement in the building code, said Frank Bush, the building and safety department’s general manager.” (A11)

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[ UPDATE ]  And another update to the Los Angeles Times’s series investigating taxpayer subsidies of low-income housing developments located within 500 feet of freeways, where people suffer higher rates of asthma, heart disease, cancer and other health problems linked to car and truck pollution: “Low-Cost Apartments — Next to an Offramp,” by Tony Barboza and David Zahniser (Los Angeles Times, 12/17/2017, pp. A1 and A16–A17), retitled “California Officials Say Housing Next to Freeways Is a Health Risk — But They Fund It Anyway” for online posting.
  This is a disturbing report on a 96-unit elder care facility, known as the Sun Valley Senior Veterans Apartments, sited on land which was re-zoned by the Los Angeles City Council — at the urging of prominent politicians (U.S. Representative Tony Cardenas, then-State Senator Alex Padilla, and then-Assemblyman Raul Bocanegra) who “received a steady stream of political contributions from developers, architects and others who worked on the Sun Valley development” — expressly for this purpose, thus enabling the owners to sell the property to the non-profit housing developer, the East L.A. Community Corp., “for $3.5 million, more than three times the amount paid in 2006, when only three homes could be built on the site.” (A17)
  Construction of the affordable housing complex for seniors and veterans, located about 200 feet from Interstate 5, is slated to begin in January 2018.
  State officials will contribute $11.1 million in climate change funds from California’s cap-and-trade program for building.
  California’s Strategic Growth Council (a committee appointed by the governor and state lawmakers) will award a further $255 million in affordable housing funds, and critics want new restrictions (a freeway buffer requirement) placed on the distribution of cap-and-trade funds to developers. Otherwise, “Agency officials will score projects by proximity to transit, greenhouse gas reductions, walkability and other criteria. One thing they won’t measure is how close the projects are to freeway pollution.” (Barboza & Zahniser, A17)

In addition to growing concerns over developers siting affordable housing “in freeway pollution hot spots,” we confront new public health threats from the giant warehouses taking root in and around existing residential communities, bringing air pollution, noise and traffic, along with much-needed jobs and property-tax revenues: see Paloma Esquivel’s reporting, “Effort to Limit Warehouses Seen as Falling Short: Some officials in the Inland Empire say standards, including buffers to protect homes, are too weak” (Los Angeles Times, 12/1/2019, pp. B1 and B10).
  According to Esquivel, Riverside county’s burgeoning warehouse industry has been mostly welcomed by local politicians, even though “The boom has brought warehouse projects closer to homes and communities. Some facilities have been built 100 feet or less from residential property lines, despite warnings from state air quality officials, who recommend against people living that close to warehouses because of truck pollution.” Yet, elected officials have, for the most part, been reluctant to confront the industry over growing environmental and quality-of-life issues, or impose broad standards on warehouse development: “‘At the local level, we need some elected officials that are a little more courageous and are willing to fight for the residents,’ said Sen. Connie Leyva (D-Chino), who says her district has more warehouses than any other place in the country. ‘There seems to be a real lack of concern for the constituents that they represent.’” (P. Esquivel, B1 and B10)
  One exception: Riverside County Supervisor Kevin Jeffries, who is concerned “about the impact that the tractor trailer rigs are having on health and the immediate residents around it,” and has “pushed for the county to adopt a ‘Good Neighbor Policy’ of minimum standards for warehouse projects, including a 1,000-foot buffer between large warehouses and homes.” In November 2019, the county approved a watered-down version of the Good Neighbor Policy: “instead of the 1,000-foot buffer that Jeffries had proposed, they adopted a 300-foot buffer, measured from warehouse loading docks to property lines. [...] In the end, the warehouse industry ‘got a better deal than what they were even asking for,’ Jeffries said. ‘It was two years of work literally down the drain.’” (P. Esquivel, B10)

For more on late-17th-century proposals for gun-control legislation, see the digital reissue (2014) of Thomas Tryon’s The Planter’s Speech to his Neighbours & Country-Men of Pennsylvania, East & West-Jersey (1684) at the subdomain known as Roses.
  Tryon’s 17th-century polemic is a seminal text in this country’s founding debate over gun culture, which spawned the gun-control laws (documented at left) passed in 1686 and 1694 in the most “rebellious” of the Anglo-American colonies (East New Jersey).
  A prefatory discussion of Tryon’s early contribution to the gun culture debate in America is available at the Roses website’s What’s Blooming news page (entry dated 5/9/2014). And see also the news blog’s entry posted on 3/26/2018 for more 17th-century “alternative facts” which rebut 19th-century mythologizing about the foundational status of gun rights in the U.S. (including the 19th-century marketing campaign persuading us that “guns are what make you free”).

I have learned from Dan Walters about another California law enacted in 1872 — Penal Code Section 196 — this one in dire need of updating: “1872 Law Gives Police a License to Kill” (posted to CALmatters website, 3/7/2019). According to Walters, this late-19th-century statute “is the basic reason why California’s police officers are almost never prosecuted when they kill someone, even when the circumstances indicate that deadly force was not needed.” (D. Walters, n. pag.)
  Assemblywoman Shirley Weber (D–San Diego) has taken up the issue and is trying for a second time to change the legal standard for police use of deadly force in California with Assembly Bill 392 (proposed in the 2019 legislative session). Given the 3/2/2019 determination (in the use-of-force investigation) that the Sacramento police officers who shot and killed Stephon Clark on 3/18/2018, just a few miles from the Capitol, did not commit any crimes and would not be charged, Walters thinks this second bill has “a much better chance of passage” than did the first.
  See also Laurel Rosenhall’s update on AB 392’s chances: “Factions Take Shape as California Advances Nationally Watched Police Shooting Bill” (posted to CALmatters website, 4/9/2019).

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And Laurel Rosenhall now has a Force of Law podcast series, in which she will follow Assemblywoman Shirley Weber’s bill (AB 392) from idea to vote, “to explain how legislation is made in California.”
  “Episode One is live and available.... Over the course of this year [2019], you’ll have an inside look at the process, from the initial idea through drafts, negotiations, lobbying, revisions, more lobbying, more revisions, more negotiation and eventually a vote. You’ll hear from people who feel strongly about this bill, which would redefine the circumstances in which police officers are allowed to use deadly force. Some want a tougher standard, especially after the death of Stephon Clark. Some say it’ll make it harder to be a law enforcement officer here.” (Neil Chase, CALmatters newsletter, 6/14/2019)

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Unfortunately, there is limited political will in legislatures these days for letting the legislative process play out (including public hearings, and a floor vote) as most ordinary citizens in a representative democracy believe it should.
  In “The Suspense Files: California bills vanish almost without a trace” (posted to the CALmatters website, 9/6/2017), Laurel Rosenhall documented how the Legislature’s two appropriations committees provide a means of quietly killing off a bill, with no public vote, so that lawmakers can avoid making difficult choices (such as “choosing between a popular idea and one that aggravates powerful interests in the state Capitol”) for which they will be held accountable. “Officially, the committees — one in each house — are supposed to pull the Legislature’s purse strings, weighing how much a proposal is expected to cost, and comparing bills against one another to establish priorities for spending state tax dollars. Unofficially, the appropriations committee is where bills go to die — especially the ones the ruling party wants to bury with little trace.” (L. Rosenhall, n. pag.)

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Now Rosenhall is back with a new report on “How Powerful Lawmakers Are Killing California Bills — Without a Peep” (posted to the CALmatters website, 4/30/2019).
  “Under a rule the California Assembly put in place at the start of the current [2019] session, committee chairs can decide whether to bring a bill assigned to their committee up for consideration. As key deadlines came and went this month for bills to move out of committee, chairs used the new power to quash bills by just not scheduling them for a public hearing.  ¶   No hearing, no debate, no vote.  ¶   Democrats — who hold all the chairmanships because of their party’s mega-majority in the Legislature — flexed their muscle not only to bury GOP legislation, but also to silently sideline bills by fellow Democrats that might be embarrassing to publicly vote down.” (L. Rosenhall, n. pag.)
  Among those bills that died in committee, without public debate, was Assemblywoman Shirley Weber’s legislation to alter the Local Control Funding Formula for public schools, in order to devote more money to low-achieving students. The San Diego Union-Tribune editorial board has long supported Weber’s educational reform efforts, and railed against “this betrayal of struggling students,” whereby Weber’s bill couldn’t even get a hearing: “Invoking new Assembly rules, Assembly Education Committee Chairman Patrick O’Donnell — D-Long Beach by way of Burlingame, headquarters of the California Teachers Association [CTA] — unilaterally refused to let Weber and civil rights groups make their case.” (“Editorial: Rule Change Hurts Schools, Democracy,” San Diego Union-Tribune, 5/5/2019, p. B6)
  The editorial continues: “The rule change was sought by Assembly Speaker Anthony Rendon, D-Lakewood. In response to an email from an editorial writer, a Rendon aide wrote that ‘he believes in empowering his colleagues and the general theory that the concentration of power in politics (in this case, within his own office) is not a good thing.’  ¶   But if ‘concentration of power in politics’ is a concern, then Rendon should join Weber in seeing the CTA’s clout as an obstacle to better schools and to the reforms that have helped students in Massachusetts, New Jersey, Florida and Texas.” (San Diego Union-Tribune editorial board, B6)
  I don’t generally share this editorial board’s anti-union sentiments, but I’m with them on this matter.
  Nor do I see how empowering committee chairs, at the expense of ordinary legislators and the people they represent, benefits our fragile democracy or the common good.

As reported by the PBS NewsHour, deputy sheriffs are not the only law enforcement officials engaged in criminal behavior who need to be held accountable: “New Investigation Reveals Widespread Police Misconduct Never Publicly Revealed” (first aired 4/25/2019).
  SUMMARY: “Although the conviction of a Florida police officer for killing an African American motorist is currently making headlines, a wide-ranging investigation into police misconduct finds that most incidents are never publicly revealed. Amna Nawaz talks to the Cincinnati Enquirer’s James Pilcher, who helped compile the report, about how law enforcement made it difficult to obtain this critical data.”
  Of note:
  “[AMNA NAWAZ:] Reporters around the country, from the USA Today network and the non-profit Invisible Institute, spent more than a year compiling the largest database of misconduct records. They found that at least 85,000 officers have been investigated or disciplined for some 200,000 incidents of alleged misconduct, much of it previously unreported to the public. Most were minor infractions, but there were still thousands of more serious cases, including allegations of excessive force, rape, domestic violence and drug dealing.  ¶   They also found frequent dishonesty. The database uncovered more than 2,200 instances of perjury, tampering with evidence or witnesses, or falsifying reports.  ¶   And, 32 people became police chiefs or sheriffs despite a finding of serious misconduct, usually at another department.” (n. pag.)
  As with the deputy sheriffs (see body text at left), police officials have stonewalled and made it difficult to compile the data needed for public accountability:
  “[JAMES PILCHER:] Well, in many cases, it was difficult. We had to sue in some cases. The police unions and so forth have been able to make it very difficult to access some of this information, and we still feel like we’ve only scratched the surface.  ¶   We’ve covered maybe, you know, a tenth of the total agencies in this country. We’ve probably got data from about 700 to 800 different departments covering 80,000 officers, while there are 750,000 officers in this country at 18,000 different departments. So we’re just getting started.” (n. pag.)
  And again:
  “[AMNA NAWAZ:] So you mentioned in some cases unions stood in the way of getting to the information. In a typical police force, in a typical environment, what usually happens to those records of misconduct?
  “[JAMES PILCHER:] Well, in most cases, they are filed in their personnel file, although in some cases they actually have a separate file you might not know as a regular public citizen for discipline versus their personnel file. That’s the case sometimes here in Cincinnati, for example.  ¶   And then it stays with their record. But in some cases, the unions have been able to negotiate and have some episodes or discipline taken off their record after five or seven years and it sort of cycles. If you’re on good behavior for a while, the bad behavior falls off. So, the bad incident may not be reported or may not be known in their file anymore after 10 years or so.” (n. pag.)

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NEW  “Police Contracts Can Stand in the Way of Accountability” by Martha Bellisle of The Associated Press (posted to the PBS NewsHour website, 7/19/2020).
  “‘These examples bolster the hypothesis that some union contract provisions may impede effective investigations of police misconduct and shield problematic officers from discipline,’ Rushin [i.e., Stephen Rushin, “a Loyola University Chicago law school professor, has studied police contracts nationally and detailed their problems in an article published in the Duke Law Journal”] said.  ¶   The problem is more than union overreach, he said. ‘It’s an indictment of the city for granting those concessions. Police unions only have the power that politicians give them,’ he said.  ¶   Seattle is an example of how elected officials allowed police unions to insert controversial measures during closed negotiations, over the objections of community groups.  ¶   ‘The Seattle story is a microcosm of what’s happening elsewhere in the country,’ Rushin told The Associated Press. ‘It highlights perfectly this conflict between major reform efforts and the extent to which labor protections can make it hard to engage in real change.’” (M. Bellisle, n. pag.)

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NEW  “Editorial: AG’s Office Should Investigate MTS Killing” (San Diego Union-Tribune, 5/2/2021, p. B14), retitled “Opinion: California AG Should Investigate MTS Killing, Aftermath: An Independent Probe Is Needed to Answer Basic Questions about Death, Aftermath” for online posting.
  Noting that we are now “in an era of immense public concern about law enforcement and accountability,” “The San Diego Union-Tribune Editorial Board believes an independent state investigation of this incident and its subsequent handling is necessary. Rob Bonta, California’s new attorney general, told lawmakers this month that he was ready to provide such oversight, unlike his predecessors. Here’s a chance to prove it.  ¶   But what’s also needed is a revision to state laws that make it clear when someone is injured or dies after dealing with a public employee, all relevant evidence — including video in its entirety — should be quickly released. Every public official must be reminded that under a state constitutional amendment overwhelmingly approved by voters in 2004 — Proposition 59 — rules on the release of information ‘shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.’” (Editorial Board, B14)

NEW  The American people are not the only constituency raising concerns about accountability on the part of law-enforcement unions. Political overreach by organizations such as the Deputy Sheriffs’ Association of San Diego can be a problem for its own members, as well as for the public at large. For example: “Black Officers Break from Unions over Trump Endorsements” by Claudia Lauer of The Associated Press (posted to the PBS NewsHour website, 10/18/2020).
  “Many fraternal Black police organizations were formed to advocate for equality within police departments but also to focus on how law enforcement affects the wider Black community. There have often been tensions between minority organizations and larger unions, like in August [2020], when the National Association of Black Law Enforcement Officers issued a letter condemning use of deadly force, police misconduct and abuse in communities of color.  ¶   While support for the Republican incumbent does not strictly fall along racial lines, many Black officers say the endorsements for Trump don’t fairly represent all dues-paying members.  ¶   ‘We are members of these unions, and [if] they don’t take into consideration our feelings about Donald J. Trump, then they don’t care about us and ... they don’t care about our dues,’ said Rochelle Bilal, the recent past president of the Guardian Civic League of Philadelphia, calling the National Fraternal Order of Police’s Trump endorsement an ‘outrage.’  ¶   Bilal, who was elected as Philadelphia’s first Black female sheriff last year, spoke at at an early October news conference with other Black law enforcement groups in Philadelphia to condemn Trump endorsements and the process they say ignored their concerns over what they perceived to be racist remarks, support for white supremacist groups and a lack of respect for women from Trump.” (C. Lauer, n. pag.)
  Union “leaders say the process is designed to give everyone a voice and the endorsement represents the majority of officers,” but the Club Valiants of Philadelphia (an organization of more than 500 minority firefighters) counters that Local 22’s break-away endorsement of Donald Trump (Local 22’s parent organization, the International Fire Fighters and Paramedics Union, endorsed Democrat Joe Biden) “was based on survey responses from about 500 of the union’s nearly 5,000 members” and was not representative; nor was the process, culminating in the presidential endorsement, “fair.” (C. Lauer, n. pag.)
  Elsewhere, “In New York City, Patrick Lynch — the head of the Police Benevolent Association that represents about 24,000 officers — announced the union’s endorsement of Trump at August’s Republican National Convention, something members said they had no warning would happen. An unsigned letter from the Guardians Association said the Black and minority officers the group represents felt blindsided by Lynch’s endorsement and wished the union had stayed neutral.” (C. Lauer, n. pag.)
  With the growing politicization of law-enforcement organizations, it is important to remember that their leaders’ endorsements of particular policies & politicians may well be misleading, implying a professional consensus where there is none.

The November 2016 presidential election brought to the fore intractable problems of representation & governance in a diverse and divided democratic union. We learned that the U.S. body politic is riven by partisanship and factional geopolitics, not just at the federal level, but at the state and local levels, too.
  Is the answer to our democratic troubles “a multiparty, proportional representation system”? That’s what Lee Drutman proposes in his op-ed for the Los Angeles Times, “The Devastating Power of the Presidency” (LA Times, 3/5/2017, p. A23), retitled “How a Too-Strong Presidency and a Too-Weak Congress Are Destroying the American Experiment” for online posting.
  Wikipedia provides a detailed explanation of Drutman’s recommended “proportional representation” voting system, in which each party gains seats in proportion to the total number of votes it receives — a form of representation based on numerical rather than regional division of the electorate. This electoral method is usually contrasted with a winner-takes-all, or plurality/majoritarian voting system, favored in much of the U.S., in which “votes cast for losing candidates or votes cast for winning candidates in excess of the number required for victory” are “wasted votes,” as happened in California with the presidential election of 2016. Donald Trump’s election strategy, by which he won the popular vote (often by slim margins) in 85% of the counties across the U.S. (2622 counties out of 3112), resulted in few wasted votes. On the other hand, Hillary Clinton’s win of “the popular vote” nationwide (receiving about 3 million more votes than Trump), and loss of the presidency, exemplifies what some see as unrepresentative winner-take-all electoral systems: “a large majority of votes may play no part in determining the outcome.” (Wikipedia article, accessed 3/15/2017)
  For a far-reaching criticism of institutionalized winner-takes-all politics in the U.S. — leading to rising inequality; economic crisis; and government of the plutocrats, by the plutocrats, for the plutocrats — see the book, Winner-Take-All Politics. How Washington Made the Rich Richer — and Turned its Back on the Middle Class (Simon & Schuster, 2010), by political scientists Jacob S. Hacker and Paul Pierson. The book’s arguments — which focus more on matters of political economy than electoral politics — are summarized at Wikipedia.

I want here to recommend a new research program on the science of electoral systems, sponsored by the Union of Concerned Scientists, and introduced in a newsletter article by Elliott Negin, “Examining the Science of Voting: What’s the relationship between electoral reform and environmental justice? Just ask UCS Kendall Fellow Michael Latner” (Catalyst, Fall 2018, 16–19).
  “‘The voting rights debate has often focused on fairness and civil rights, but we were interested in its broader impact on democracy and science-based decisionmaking,’ explains Andrew Rosenberg, director of the Center for Science and Democracy at UCS. ‘In other words, how does the abrogation of voting rights affect policymaking on the wide range of issues UCS cares about? We found that there is strong quantitative science around voting rights that could help us understand the impact. And we found that working on voting rights gives us an opportunity to connect with new partners in civil society.’” (E. Negin, 17)
  Fellow Michael Latner, whose research has focused on how redistricting, gerrymandering, and electoral laws influence political representation, will be broadening his scope “to include the impact of electoral system bias on public health & environmental protection — two key UCS priorities.” (E. Negin, 17)
  Latner’s take on proportional (vs. winner-takes-all) elections: “Consider a state with five congressional districts where candidates from the dominant party win all five districts by getting 60 percent of the vote. Their party would control 100 percent of the state’s overall representation even though 40 percent of the state’s residents voted for the other party’s candidates. Conversely, if the five single-seat districts were combined into one five-seat district encompassing the entire state, that same statewide vote share would produce three seats — 60 percent — for the majority party and two seats — 40 percent — for the minority party. Everyone’s vote counts and there is real competition.” (E. Negin, 19)

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NEW  Click/tap here for an annotated link which raises interesting issues concerning “fairness” and proportional representation: “Nobody said proportionality was the goal. That might be your intuition, but if you want a proportional system, the conservative justices like to say, you should move to Europe. Most of the rest of the world has a different way of composing its legislature that is built to guarantee more proportionality with voters’ party preferences. We don’t do that in the U.S. So, we’re in a funny position, where the universal intuition of what ‘fairness’ would mean is nowhere in the rules.” (Moon Duchin, n. pag.)

Democratic presidential contender Senator Elizabeth Warren is floating some big, bold ideas on how to restore our democracy by protecting U.S. citizens’ voting rights: see Warren’s “My Plan to Strengthen Our Democracy” (posted to the social journalism website Medium, on 25 June 2019). Warren is right to assert that “Enough is enough. It is time to make high-quality voting in the greatest democracy in the world easy, convenient, and professional. It’s time to secure our elections from all threats, foreign and domestic. It’s time to address election security, administration problems, and voter suppression.” (E. Warren, n. pag.)
  According to Elana Schor, of the Associated Press, Warren’s plan entails “a sweeping overhaul of the nation’s systems for securing its elections, including the creation of a ‘uniform federal ballot’ and the replacement of the independent commission that currently helps administer the vote” (see Schor’s “2020 Hopeful Elizabeth Warren Launches Election Security Plan,” posted to the PBS NewsHour website, 6/25/2019).
  “We’re building a grassroots movement to fight for big, structural change.” is how Warren describes her candidacy. Love it or not, her plan to secure federal elections certainly qualifies as “big, structural change.” And it’s attracting big, bold ideas in turn. E.g., I was struck by the comment posted by “Ben Werdmuller” who suggests the use of open-source software for election equipment so that we can crowd-source (at least in part) election security: “Senator Warren: thank you for everything you do. I’d strongly urge you to enforce open, verified code for voting machines, so that their source code can be examined by everyone, and we can quickly validate that a machine is running the version of the code it’s supposed to be. Rather than weaken electronic voting systems, this will strengthen them, and allow all of us to trust them.” (n. pag.) And “James Methvin” raised another vexing technical issue, familiar to many of us who design digital experiences: “So you want voting to be easy and secure. You can’t have both.” (n. pag.)
  And then there’s the comment posted by Trump supporter “Steven Sicular” who has no interest in advancing representative or participatory democracy, which he equates with “mob rule”: “What a freekin’ whack job, Fauxcahontas!  ¶   For starters, America is a Constitutional Republic, not a ‘democracy’. America is not led by mob rule — as much as you’d like it to be.” (n. pag.) This same complaint has been raised against suggested electoral reforms like the National Popular Vote Interstate Compact (NPVIC) by a minority that fears demographic trends which they interpret as threatening white nationalist identities along with this group’s historical claims to political power.
  These are not easy issues, but it is important that we grapple with them — however we define our democracy.
  For more of Elizabeth Warren’s provocative position papers on a wide range of subjects, see her Medium.com page.

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Our need to get serious about electoral reform is even more pressing now than when Warren floated her proposals for securing the vote back in June 2019. As I write this in July 2020, recent primary elections in battleground states such as Georgia have revealed the fragility of our electoral democracy, and given credibility to President Trump’s wilder claims about rigged/stolen elections in this country. As reported by Jill Colvin of The Associated Press, “Americans already have widespread concerns about the security and integrity of elections. A February [2020] poll from The Associated Press-NORC Center for Public Affairs Research found that only about one-third have high confidence that votes in the 2020 election will be counted accurately.” (J. Colvin, “Trump’s Attacks Seen Undercutting Confidence in 2020 Vote,” n. pag.)
  Miles O’Brien’s recent reporting for the PBS NewsHour on this year’s many election challenges — even without President Trump’s alarmist assertion “that the 2020 presidential election would be ‘the most corrupt election in the history of our country’” (qtd. in J. Colvin, n. pag.) — should arouse all of us: seeIn Georgia, Primary Election Chaos Highlights a Voting System Deeply Flawed” (first aired 6/22/2020).
  SUMMARY: “Georgia experienced major problems with its voting processes during a primary election earlier in June. People waited in line up to eight hours to cast ballots, and poll workers struggled with new machines on which they hadn’t been trained due to the pandemic. What do Georgia’s election issues mean for other state primaries — and for American democracy more broadly?”
  As “fed-up-Redhead” trenchantly commented (click/tap on “Leave a comment” or “# comments” speech bubble to view Disqus discussion thread): “Millions of dollars probably misspent, all in an effort to cover up the fact that some states simply want to make it too hard for us to cast our votes. Ineptitude or outright malice?” (n. pag.)
  Click/tap here for related discussion of President Trump’s false narrative concerning mail-in voting.

Those of us interested in revitalizing our democracy — and the crucial role played by state law in guaranteeing (or not) the integrity of absentee voting (voting by mail) — should all read John Myers’s column, “To Guard Your Vote, Check on Your Signature” (Los Angeles Times, 10/1/2017, p. B3), retitled “Political Road Map: A sloppy signature might keep your 2018 ballot from being counted” for online posting.
  Myers notes here that, in California alone, “some 45,000 ballots were discarded last November [i.e., the 11/8/2016 presidential election] with mismatched signatures cited as the reason.” (J. Myers, B3)
  “California’s signature-matching system was fine prior to 1978, when absentee voting was limited to a medical excuse or being out of town on election day. Now, with permanent absentee voting allowed, it’s hugely popular. Last November, 61% of all registered voters received a ballot in the mail.   ¶   And that’s expected to grow substantially....” (J. Myers, B3)
  As highlighted by an ACLU lawsuit filed in August 2017 on behalf of a disenfranchised “Sonoma County voter whose ballot was rejected because of his signature,” “California law is so flexible as to be vague when it comes to what an elections official should do when faced with an absentee voter’s sloppy signature.” (J. Myers, B3)
  The situation is so confused right now that “Elections officials concede that there’s no guide for what to do when a 50-year-old woman, who last signed her voter registration form when she was 18, now has a different signature.” (J. Myers, B3)
  I would point out that all sorts of medical conditions, beyond aging, can cause our signatures to evolve. While I was on chemotherapy for a Stage 3 cancer, my usual swashbuckling signature was reduced to a tiny, uptight script that even I didn’t recognize, as I struggled to wield a pen, due to encroaching peripheral neuropathy (a side effect of the chemo). Fortunately, I was no longer undergoing chemo when I signed my absentee ballot for the 11/8/2016 election. But I could have been....

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[ UPDATE 1 ]  A new law, authored by state Sen. Mike McGuire (D-Healdsburg), mandates that “a California voter whose signature can’t be verified on an absentee ballot will have eight days to fix the problem.” As reported by John Myers (“New Law a Boost for Mail Ballots,” Los Angeles Times, 9/23/2018, p. B2), the new legislation, signed into law by Governor Jerry Brown, “takes effect immediately ... The new eight-day period will be in effect for the statewide election on Nov. 6 [2018].” (Myers, B2)

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[ UPDATE 2 ]  The unverifiable signature issue continues to plague California voters, and was one of several problems depressing the popular vote during the March 2020 presidential primary, when “about 1.5% of the nearly 7 million mail-in ballots returned” were disqualified and not counted: “That percentage is the highest in a primary since 2014, and the overall number [of disqualified ballots] is the highest in a statewide election since 2010.” SeeCalifornia Rejected 100,000 Mail-In Ballots Because of Mistakes” by Michael R. Blood of the Associated Press (posted to the PBS NewsHour website, 7/13/2020).
  I also recommend the related discussion thread for this AP article (click/tap on “Leave a comment” or “# comments” speech bubble to view comments section), with several participants expressing concern about potential vote tampering in the upcoming November 2020 presidential election. For example, “Ellen A” comments: “For this election, I plan to take a photo of my ballot at home before I drop it off or send it in. Not sure that’s kosher, but the games being played with our election aren’t kosher either.” (n. pag.)
  I, too, took a picture of the section of my March 2020 primary election ballot where I voted for my 2 representatives in the California state legislature, and posted the documentary evidence here. At that time, I intended only to prove to the Democrat incumbents of State Senate District No. 39 and State Assembly District No. 77 that they had lost my — an independent progressive, who has always dismissed the Republicans as the party of Big Business — vote because of their continuing legislative malpractice. In my experience, both Senator Atkins and Assemblymember Maienschein personify “bureaucracy and inefficient government.” As such, I wished to make clear that my vote was cast in opposition to more of their fake representation in Sacramento, and had nothing whatsoever to do with Donald Trump or partisan battles between Democrats and Trump Republicans in San Diego.
  It turns out now that the digital facsimile I posted on 2/28/2020 documents something far more precious to me than my refusal to fall into line and vote Blue in 2020: it records my actual vote (in the uncompetitive State Senate District No. 39 “race”), which has disappeared into the system and is nowhere recorded in the official tally of election results published in April 2020 by the San Diego County Registrar of Voters.
  Was my ballot disqualified? I have no idea, and will be writing to the San Diego County Registrar of Voters about this as soon as I get a chance.

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[ UPDATE 3 ]  In the meantime, I have more pressing signature-related issues to worry about going forward, now that state and local databases have again butchered my hyphenated last name. Outdated technology (which too many government agencies still use) often had strict data-entry requirements prohibiting the use of anything other than 36 alphanumeric characters (A–Z + 0–9) in the name fields, and punctuation symbols (such as the hyphen in my last name) simply would not take. The solution for this is to run hyphenated names together as one (so that, in my case, the new hybrid still begins with T), but too many systems lack standardized rules for how to treat hyphenated words, and simply separate them instead, turning the word to the left of the hyphen into the equivalent of a dispensable middle name, and the word to the right of the hyphen into the last name (so that, in my case, the database decrees that my last name now begins with P). And, of course, the errant database then spreads this fake identity all over the universe, and a new person, birthed by technology, emerges.
  This is exactly what occurred to me in 2009, when I last wrote to the San Diego County Registrar of Voters asking them to fix their records (which showed my last name beginning with P instead of T in the voter rolls). In 2009, their database still wouldn’t accept a hyphen in the last name field, so I instructed them to run the hyphenated names together as one word beginning with T, which is how I have appeared in the voter rolls ever since.
  Come March 2020, I had to renew my California driver’s license, and switched to a REAL ID, which required that I re-register to vote. The DMV database can not display the hyphen in my last name either (once again, making it appear as though my last name begins with P, instead of T), but I was assured my last name would be printed properly (with a hyphen) on my REAL ID driver’s license (which it was).
  However, the new voter registration card I received in the mail in June 2020 has, once again, gotten it wrong, showing my last name as beginning with P (instead of T)!
  Hard to believe that in 2020, a system designed to verify REAL ID, is instead creating fake IDs, which gum up the voter rolls, and could possibly lead to my vote in November 2020 being disqualified when names and signatures don’t match across databases!
  So it is this issue that I’m going to have to take up with the San Diego County Registrar of Voters first. At a time when the president of the United States is hell-bent on suppressing the popular vote by asserting “fraud” at every opportunity, government complacence concerning database design glitches which erase us as citizens is inexcusable.
  There is more on the trials & tribulations of engaging with California’s automatic voter registration system here.

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[ UPDATE 4 ]  Some updated reporting for California voters on how election workers verify voter signatures: “Voters’ Ballots Go through Elaborate Journey at Registrar’s Office Before They’re Counted” by Shalina Chatlani (posted to the KPBS website, 10/19/2020). Chatlani has interviewed San Diego County’s Registrar of Voters, Michael Vu, who explained the basics of ballot processing. Of note, “Vu says with every election, there are often a lot of damaged ballots. So staff have to remake the ballots according to voters’ intent, so that the ballot is counted correctly.” Moreover, “Vu says some voters have brought up concerns like mismatched signatures on their ballots versus their drivers’ license. He says that’s not an issue. The system is actually checking for the uniqueness of the signature, how the letters are curled or dotted, in order to verify it.” (And yes, I am one of “some voters” who have contacted Mr. Vu about this. ;-)
  “Loops, Slants and Crossed ‘T’s’ Examined to Verify Signatures” by John Wilkens (San Diego Union-Tribune, 10/18/2020, pp. A1 and A10) provides a more detailed account of the absentee ballot verification process. “‘A vast majority of voters don’t know that their ballot can get rejected,’ said Mindy Romero, a political sociologist who directs the Center for Inclusive Democracy at the USC Sol Price School of Public Policy. ‘There is a verification process, which is a good thing, but if more people knew about it, I think they’d be more careful with their ballots.’” (J. Wilkens, A10)
  In particular, “Young voters, those ages 18 to 24, are particularly susceptible to having their ballots rejected.” Some younger voters “‘pre-register’ at age 16, and by the time they actually begin voting years later, their signatures have changed and won’t match what’s on the ballot return envelopes. Or the comparison signature on file at the Registrar of Voters is from a driver’s license, also obtained years before casting the first ballot.” Thankfully, “changes in state law now require counties to contact voters and provide a way to clear up discrepancies.  ¶   In San Diego County, voters receive a letter asking them to verify that they sent in the ballot in question, and asking them to provide another signature. (Depending on when the problem is found, and the fix-it letter is sent and answered, this could happen all the way up to when the results are certified, 30 days after the election.)” (J. Wilkens, A10)
  But, “the single largest reason ballots get turned away” is that they arrive too late. In California, “a ballot returned by mail has to be postmarked on or before Election Day. Some people assume that means they’ll be OK if they put it in a mailbox on Nov. 3. That’s not necessarily true, depending on when the mail is collected and when it’s processed.” (J. Wilkens, A10)
  In San Diego, the Voter Information Pamphlet (mailed to all registered voters this year, in advance of your absentee ballot) recommends in a note on the back cover that mail-in voters “Return your ballot by mail no later than October 27.” And if you can’t make this mail-in deadline, rather than trusting to the postal service, you should return your absentee “ballots to official drop boxes or to in-person polling places by closing time on Election Day (8 p.m.)” if you want to ensure that your vote is counted. (J. Wilkens, A10)
  This is especially prudent in 2020, given that “U.S. Postal Service records show delivery delays have persisted across the country.... Postal data through Oct. 9, released through a federal court order, show nearly all the agency’s delivery regions missing its target of having at least 95 percent of first-class mail arrive within five days. Parts of the presidential battleground states of Minnesota, Wisconsin, Michigan, Pennsylvania and Ohio fell short of delivery goals by wide margins as the agency struggles to regain its footing after a tumultuous summer.” (“Battleground Postal Delays Persist with Mail Voting Underway” by Anthony Izaguirre; posted to the website for The Associated Press, 10/23/2020)
  “Delays have plagued the Postal Service during the coronavirus pandemic and worsened under a series of cost-cutting policies implemented by [Trump loyalist] Postmaster General Louis DeJoy, who took over the agency in June [2020]. Following a series of court orders and intense public scrutiny, the agency has reversed the policies and seen improvements, but has not yet fully restored delivery times.” (A. Izaguirre, n. pag.)
  Izaguirre’s report includes an interactive chart of “Postal Service Performance,” showing “how much better or worse postal districts did at delivering First-Class Mail on time using the most recent data from the week of October 10th. First-Class Mail includes election mail, and in this week no postal district reached the USPS’s election mail on-time delivery goal of around 95%. Type in your ZIP code to see how your postal district is doing before the election. You can also click on the bars or map to investigate other districts.” (A. Izaguirre, n. pag.)

In addition to worrying about protecting the integrity of absentee voting, and ensuring that legitimate voters are not disenfranchised (e.g., by automated purging of voter rolls and/or ballots), Californians have cause to worry about the security of recorded voter data and voting history: see19 Million California Voter Records Hacked, Held in Bitcoin Ransom, per Report” by Luis Gomez, posted to the San Diego Union-Tribune website on 12/15/2017.

With its June primaries (election day was 6/12/2018), Maine became the first state to experiment with ranked-choice voting, whereby voters rate candidates on the ballot (as their 1st, 2nd, 3rd, etc. choice) instead of voting for their favorite: “This structure ensures that winners collect the majority of votes, not just the plurality, in a state that often nominates governors who don’t. But as Hari Sreenivasan reports, there are still some hurdles.”
  PBS NewsHour Weekend’s reporting on this controversial statewide “improvement” to the electoral process (“Voters Will Rank Candidates in Maine’s June Primary,” first aired 5/26/2018) drew mostly favorable comments from viewers who “love the idea of ranked-choice voting. We need to eliminate the two-party dominance in this country. Anyway, it’s falling apart, it seems.” (comment posted by “Mirko Sansan”)
  This positive assessment drew the following retort from a more critical viewer: “Proportional voting leads to an ‘Italian Job’ of multiple regional parties and a menagerie in the central government.   ¶   However, your remark joins ranked-choice to ending a two-party system. It doesn’t. It gives the ‘compromise’ candidate a greater chance of winning — everyone’s 2nd or 3rd choice. hth.” (comment posted by “owl905”)
  And again: “There are a number of weaknesses with any and every form of voting. The biggest danger with a ranked-choice vote is stumbling into a lunatic fringe candidate with a nice name (Roy Moore is a nice name). Before stepping into this cow pie possibility, an assessment of the electorate’s savvy is warranted.” (comment posted by “owl905”)

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[ UPDATE ]  Regarding Maine’s new system of ranked-choice voting, as tested in the primary (June) and general (November) elections of 2018: see around the 22:00 minute mark of the video podcast for the 1/5/2019 episode of PBS NewsHour Weekend (scil. the NewsWrap at the close of the full episode).
  News anchor Hari Sreenivasan reports on the results of one hotly-contested race in Maine: “In the 2nd congressional district, Republican incumbent Bruce Poliquin got the most first-place votes, but not a majority. After second- and third-place choices were tabulated, his challenger, [Democrat] Jared Golden, was declared the winner by roughly 3,500 votes. The narrow margin prompted a recount by state officials, and Poliquin challenged ranked-choice voting in federal court. But in late December [2018], he conceded the race, making Jared Golden the first ranked-choice congressman in U.S. history.” (n. pag.)

Given the unintended consequences of California’s “top two primary” held on 5 June 2018 — in particular, Lt. Gov. Gavin Newsom’s ability to “pick” his preferred opponent in November 2018 (Republican businessman John Cox, rather than the much more competitive Democrat and former mayor of Los Angeles, Antonio Villaraigosa) — there are growing calls for further reform of the electoral system Californians instituted in 2010 (via Proposition 14).
  Four antagonists give three perspectives on Californians’ options for electoral reform in the op-ed dialogue, “‘Top Two’ Primary: Time for a Change?” (San Diego Union-Tribune, 6/10/2018, pp. B7 and B9).
  1. Op-ed arguing that “the top-two primary system is bankrupt and deserves to be scrapped,” returning to a system whereby parties elect their nominees: “System Doesn’t Remotely Live Up to Promises” by John Nienstedt.
  2. Op-ed arguing that “top-four primaries with ranked choice voting,” not a return to the old incumbent-friendly system, is the most voter-centric reform: “Needs of Voters — Not Parties — Must Be Heeded” by Dan Howle & Rob Richie.
  3. Op-ed arguing that 4 alternatives (open primary, semi-closed primary, blanket primary, no primary) all “keep the advantages of the top two primary and cure its problems”: “Keeping the Pros while Fixing the Cons” by Richard Winger.

As someone who has long wished I had the right to vote NO on people as well as propositions — e.g., to cast a ballot against fake representatives such as Brian Maienschein — I was fascinated by Joe Mathews’ op-ed, “Can Our Politics Be Made More Positive by Voting Negative?” (San Diego Union-Tribune, 1/18/2019, p. B7). Mathews describes a Taiwanese activist’s push to bring “negative” voting to California, starting with the internationally-renowned locale of Berkeley: “California and its communities, who are famously open to new ideas advanced by initiative, are likely to become proving grounds for coordinated initiative campaigns that advance democratic reforms internationally.” (J. Mathews, B7)
  According to Mathews, “Berkeley is a charter city, so it can enact new election ideas that don’t conform with state laws. Qualifying an initiative for the ballot there is also relatively cheap — about $50,000. But the city is also famous globally.” Moreover, Berkeley has already implemented ranked-choice voting reforms. “Chang says that he proposes to keep those rankings, but allow Berkeley voters to negatively rank candidates as well (-1, -2, -3, etc.).” (J. Mathews, B7)
  Mathews suggests that negative voting (or “disapproval voting”) would offer voters a real “choice ... that fits our time.” I agree, and would love to see a California community step up and take the lead that state officials, like Toni Atkins, have relinquished.
  I have already chided Atkins for ceding California’s leadership role — in modeling modern democratic reforms on the world stage — in a letter dated 10/21/2018 (see page 4 of 4). Needless to say, she has not responded and, apparently, has little interest in rising to this challenge.

In recent years, the anti-democratic bias of the Electoral College has come under increasing scrutiny, especially for its historical role in giving an unfair advantage to slave-holding states when electing the president. For more of the background story, seeElectoral College Is ‘Vestige’ of Slavery, Say Some Constitutional Scholars” (posted to the PBS NewsHour website, 11/6/2016).
  Even though slavery in the United States was outlawed in 1865 by the Thirteenth Amendment, “We the People” are still subject to the Electoral College — an outmoded, pre-Civil War “ugly compromise” which puts states’ rights before individual rights. Following the 2016 presidential election, lawmakers in Ohio, Florida, Georgia, South Carolina, Texas and several other states have tried to pass state-level legislation mandating that all of a state’s electoral votes be given to the presidential candidate who wins the national popular vote, regardless of who wins the state. This push for electing POTUS via a nationwide, rather than the statewide, popular vote is known as the National Popular Vote Interstate Compact (NPVIC), and as of January 2019, it has been adopted by eleven states (Maryland, New Jersey, Illinois, Hawaii, Washington, Massachusetts, Vermont, California, Rhode Island, New York, Connecticut) and the District of Columbia. “Together, they have 172 electoral votes, which is 32.0% of the Electoral College and 63.7% of the votes needed to give the compact legal force.” (Wikipedia article, accessed 1/22/2019)
  Elsewhere, the momentum for change has slowed or reversed, as reported in “The Racial History of the Electoral College — and Why Efforts to Change It Have Stalled,” by Kamala Kelkar (posted to the PBS NewsHour website, 1/21/2018). “‘The idea was to pitch this as something that was of interest to Democrats and Republicans alike,’ said Joshua Tucker, a professor of politics at New York University. ‘Now it’s seen as a way of undermining the Republican party.’” (K. Kelkar, n. pag.)
  But for Ohio Rep. Emilia Sykes, “who represents her hometown city of Akron [Ohio], changing the system has less to do with partisanship than with recognizing a history that still resonates today. The Electoral College was built in part to accommodate white, male slave owners who could not have anticipated a two-party system, that slaves would be freed or that black people and women would be able to vote.” Black legislators such as Sykes are thus “challenging the Electoral College over racial underrepresentation.” (K. Kelkar, n. pag.)

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With the 2020 presidential election looming, Joseph J. Ellis has written an op-ed about refashioning the Electoral College for the modern democratic age, “A Way to Fight the Electoral College” (Los Angeles Times, 1/20/2019, p. A21), retitled “Sorry, we’re stuck with the Electoral College. But there is a workaround” for online posting. At least one respondent describes Ellis’s tactical assault on the Electoral College as weak: “The headline to the article promises workarounds but I didn’t read any, unless wearing of T-shirts is considered one, in which case the author is a fraud.” (comment posted to website by “6591 BRASS,” n. pag.)
  I was disapointed by this also (especially given that Ellis fails to mention the interstate compact to establish a national popular vote), but Ellis’ op-ed is more a call to action, than a blueprint for change. In the face of vocal opposition from the small minority who benefit disproportionately from the Electoral College’s residual bias in favor of state sovereignty (vs. liberal individualism), “The goal is to generate and fully expose an overwhelming mandate for reform.” (J. J. Ellis, A21)

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[ UPDATE ]  Another state joins the National Popular Vote Interstate Compact! See “Colorado Joins List of States Endorsing Presidential Election Popular-Vote Bill,” by Michael Brice-Saddler and Deanna Paul of The Washington Post (posted to the Los Angeles Times website, 3/16/2019). This raises the number of committed Electoral College votes to 181 (of the 270 EC votes needed to win the presidency).
  Unfortunately, “Because Republican-controlled legislatures haven’t embraced the effort, changing the electoral college delegate procedures in enough states to reach the 270 combined electoral votes needed to become president could be difficult, Reed Hundt, chairman and co-founder of Making Every Vote Count, told the Washington Post last month. The remaining states where the initiative may pass are smaller and left-leaning, he said.” (M. Brice-Saddler and D. Paul, n. pag.)
  As a result, “Due to changes in state demographics, elections are now fought in a tiny number of swing states, Hundt noted. In the 2012, 2016 and 2020 elections, nearly 40 states, representing about 80% of the country’s population, were or will be ignored by both candidates, he said.” (M. Brice-Saddler and D. Paul, n. pag.)

Recognizing that we have a crisis of “representational integrity” in the U.S., and concerned that “Today, our government is a malfunctioning mess, and it will not fix itself,” Richard Kreitner calls for amending the Constitution in his essay, “Conventional Wisdom: Why the Left Should Embrace the Movement for a New Constitutional Convention” (The Nation, 304.14 [20/27 Nov. 2017]: 20–24; retitled “The US Constitution Is Over 2 Centuries Old and Showing Its Age: To fix our broken system, we need a new constitutional convention” for online posting).
  Kreitner — who opposes “historically naive” veneration for the Constitution, along with “worshipful invocations” of its framers — argues here that an Article V convention of the states “is our best remaining chance” to pursue “needed constitutional reforms” and “to prevent a breakdown in the US constitutional order.”
  “Article V is clear: Any amendment would have to be ratified by special conventions or by both chambers of the legislature in 38 states,” thus ensuring that no amendment can make it into the Constitution without widespread popular support.
  Kreitner points to multiple reforms which already have bipartisan support and could be raised in a convention of states: “an amendment to suppress the influence of money in politics”; “term limits for Supreme Court justices”; and an amendment to abolish the Electoral College. (R. Kreitner, 24)

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The debate over the wisdom of amending the U.S. Constitution continues with the Letters to the Editor published in the 15–22 January 2018 issue of The Nation (“The Long Con ...,” vol. 306, no. 2, pp. 2 and 26). Here, author Richard Kreitner replies to 2 critics, both of whom are pessimistic “regarding the theoretical progressive benefits of a constitutional convention” (2). The first epistolary respondent argues that our country lacks the “spirit of constructive compromise” (2) required to forge a win-win for competing public interests. The second fears that the process of delegate selection would be rigged, such that, “In accordance with the state-oriented voting rules, a conservative voter in Wyoming would have 80 times the representation of a liberal voter in California” (2).
  For his part, Kreitner “remain[s] unmoved” by “those who believe salvation lies somewhere down the road we are currently traveling.” “A country that finds itself blown this far off course and yet forswears the only instrument available for self-correction is a country that no longer believes it is capable of self-government, and may not be, and may well deserve the entirely foreseeable consequences of that information getting abroad.” (26)

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According to Matt Sedensky of the Associated Press — “Conservatives Want to Bypass Usual Way to Amend Constitution” (posted to the AP website on 11/3/2018) — it is the Right that is organized and pushing hardest “for an unprecedented Constitutional convention of the states. While opponents are afraid of what such a convention would do, supporters say it is the only way to deal with the federal government’s overreach and ineptitude.” “Among the most frequently cited changes being sought: amendments enforcing a balanced federal budget, establishing term limits for members of Congress, and repealing the 17th Amendment, which put the power of electing the Senate in the hands of the public instead of state legislatures.” (M. Sedensky, n. pag.)
  “‘That second clause of Article V was specifically intended for a time like this, when the federal government gets out of control and when the Congress won’t deliver to the people what they want,’ said Mark Meckler, a tea party leader who now heads Citizens for Self-Governance, which runs the Convention of States Project calling for an Article V convention. Legislation promoted by the group calls for a convention focused on the federal government’s budget and power, and term limits for office holders. It has passed 12 states and one legislative chamber in another 10.” (M. Sedensky, n. pag.)
  “For the past 229 years, constitutional amendments have originated in Congress, where they need the support of two-thirds of both houses, and then the approval of at least three-quarters of the states.  ¶  But under a never-used second prong of Article V, amendments can originate in the states. Two-thirds of states — currently, 34 — must call for a convention at which three-fourths of states approve of a change.” (M. Sedensky, n. pag.)

Others who have refused to “make gods of the Founding Fathers” include a former justice of the Supreme Court, Thurgood Marshall, as pointed out by Michael Long in his op-ed, “Justice Thurgood Marshall’s Answer to the Originalists” (Los Angeles Times, 9/2/2018, p. A18), retitled “Let’s Let Thurgood Marshall Explain What’s Wrong with Brett Kavanaugh’s Originalism” for online posting.
  Rather than joining in uncritical celebration of the U.S. Constitution (as “‘fixed’ at the Philadelphia Convention”), Justice Marshall stressed the “Constitution’s inherent defects,” “requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.” (qtd. in M. Long, A18)
  In a speech given May 1987, Marshall made clear his preference for the profound vision of justice embodied in the 14th Amendment over the more stinting sense of justice exhibited by the framers of the founding document in 1787: “‘While the Union survived the Civil War, the Constitution did not,’ [Marshall] said. ‘In its place arose a new, more promising basis for justice, the 14th Amendment, ensuring protection of the life, liberty and property of all persons against deprivations without due process, and guaranteeing equal protection of the laws.’” (qtd. in M. Long, A18)
  There is more on the revolutionary 14th Amendment — and California’s ignominious role in opposing it — in the sidebar entry on historical “California Values” (see above, this page).

NOTA BENE  For those who view our founders’ art of governing as timeless (and the resulting body of law, along with the wisdom enshrined therein, as above any tinkering by mere 21st-century mortals ;-) “the Model and Form of Government” established in the Carolinas — “wherein it is made every Man’s Interest to preserve the Rights of his Neighbor with his own” — offers unique insight.
  Among “The Fundamental Constitutions of Carolina,” as drawn up in 1669 by the first earl of Shaftesbury (Anthony Ashley Cooper, 1621–1683) and the political philosopher John Locke (1632–1704), we find term limits — not for legislators (which is how we try to ward off corruption today), but for the legislation they’ve enacted.
  Accordingly, in 1670s Carolina “There is to be a Biennial Parliament, consisting of the eight Proprietors, the Landgraves and Casiques, and one out of every Precinct, that is the six neighboring Colonies, for the People, chosen by the Freeholders; these are to sit and Vote altogether for the making of Laws, which shall be in force no longer than sixty years after their Enacting, the great mischief of most Governments, by which not onely the People are mightily entangled by multiplicity of Rules and Penalties, and thereby laid open to the Malice and Designs of troublesom Men and cunning Projectors; but, which is far worse, the whole frame of the Government in tract of time comes to be remov’d from its original Foundation, and thereby becomes more weak and tottering.” (John Ogilby, America, 1st issue, 1670–1, 212)
  For more on the competing models of liberal government established in 17th-century Carolina vs. New Jersey, see the Editor’s Introduction to the digital reissue (2014) of Thomas Tryon’s The Planter’s Speech to his Neighbours & Country-Men of Pennsylvania, East & West-Jersey (1684) at the subdomain known as Roses.

It appears a number of us are concerned about the growing threat to our democracy posed by fake representation in the legislative branches of state & federal government: see Lawrence Lessig’s op-ed responding to the Democratic presidential primary debate held in Los Angeles on 12/19/2019 (moderated by the PBS NewsHour and Politico), “Mayor Pete’s ‘Wine Cave’ Isn’t the Problem” (Los Angeles Times, 12/22/2019, p. A22).
  Lessig suggests here that the “squabbling over which of them [Elizabeth Warren and Pete Buttigieg] was the more virtuous fundraiser” isn’t the real issue. “The broken and corrupted branch of our government — the current president notwithstanding — is Congress, slowed to a standstill under the influence of big money. It is relatively easy for the rich (Michael Bloomberg and Tom Steyer) and the famous (Sanders and Warren) to run presidential campaigns free of the influence of big donors. But how exactly should we fix the one institution that is systematically corrupted by its dependence on big money — Congress?” (L. Lessig, A22)
  One answer Lessig likes is Andrew Yang’s “idea of providing ‘democracy dollars’ to every voter, enabling regular citizens to rival wealthy campaign contributors in influencing candidates,” and Lessig notes that “Bernie Sanders has recently endorsed the idea.” Moreover, “Democracy dollars has had a trial run in Seattle since 2017. The program proved crucial there in resisting the extraordinary amount of money spent by Amazon to wrest control of the Seattle City Council from its more progressive members. It can be a model for Congress, and the leadership of Sanders and Yang is essential to moving the party along to this fundamental reform.” (L. Lessig, A22)
  According to Lessig, “We won’t get an uncorrupted Congress until something like democracy dollars gives Congress an easy way to raise money from all Americans.  ¶   Warren can articulate the challenge perfectly: ‘If we don’t attack the corruption first,’ she said on Thursday [12/19/2019 debate], ‘if we don’t attack the corruption head-on, then we’re not going to be able to make the changes we need to make on ... all of the big problems that face us.’” (L. Lessig, A22)
  Of related interest: PBS NewsHour Weekend ran a feature on Seattle’s experiment with democracy dollars, “Seattle Candidates Find Funding through Public Financing” (first aired 11/3/2019).
  As we enter the presidential primaries of 2020, a lot of non-Trump voters are agonizing over which Democratic candidate is the most “electable” (i.e., able to attract Trump voters). I believe this exercise in divining the mind of the Trump electorate to be a waste of time & energy (unless you spend a lot of time actively listening to pro-Trump media and voters, you will have absolutely no idea what motivates them to vote as they do).
  The one thing we do know with some degree of certainty is what Trump voters don’t want: politics as usual.
  And yet that is exactly what the “most electable” Democrat according to December 2019 polling — Joe Biden — represents. We see this in the ongoing Burisma scandal tainting the Bidens (with many Trump supporters convinced that both Bidens are guilty of influence-peddling), as well as in a fine piece of investigative reporting by Joseph N. DiStefano, “The Delaware Way: In a small state the lines between business and politics can be hazy. Which could be a big problem for Joe Biden” (The Nation, 309.13, 25 Nov. 2019: 22–26).
  This revelatory reporting has led The Nation to come out “Against Biden” in that issue’s editorial: “Let us be clear: Joe Biden is not a crook. Unlike Donald Trump, he has not violated the emoluments clause of the Constitution or appointed members of his family to positions of influence and power. The point about ‘legal graft’ — the corrupt trading of favors, from Tammany Hall to the Delaware Way, so ably anatomized by DiStefano — is that it’s perfectly legal.  ¶   But that doesn’t make it right or a winning platform. Biden and his backers need to face the facts. It may still be unclear which Democrat is best positioned to beat Donald Trump, but we know one thing: The answer is not Joe Biden.” (The Nation, 309.13, 25 Nov. 2019: 3)

The age-old debate over what a “liberal democracy” actually is and/or ought to be is far from finished. I prefer, and follow here, the definition given in the historically-nuanced Oxford English Dictionary: “a democratic system of representative government in which individual rights and civil liberties are officially recognized and protected, and the exercise of political power is limited by the rule of law.” (s.v. Liberal Democracy)
  The OED traces this historical definition of a liberal democracy to a former president and “founding father” of the United States of America, the learned John Adams (1735–1826), who warned about fake liberal democracy in vol. 1 of his A Defence of the Constitutions of Government of the United States of America: “Thus we see the people [of Biscay] themselves have established by law a contracted aristocracy, under the appearance of a liberal democracy. Americans, beware!” (J. Adams, Def. Constit. Govt. U.S.A., 3 vols., 1787–88, 1.20)
  A social and constitutional conservative, Adams “propounded a separation and balance of powers between a two-house legislature, a powerful executive, and an independent judiciary,” and it is thought that the first volume of his historical treatise (A Defence of America’s state constitutions, particularly Adams’s Massachusetts constitution of 1780, “the world’s oldest written constitution still in operation”) “may have given some ammunition to the delegates in Philadelphia framing America’s new federal constitution.” Often accused of being a monarchist, Adams’s political theory of “ordered liberty” (checks & balances on republicanism, exercised by a strong central government/executive) was presented as a hedge against what Adams saw as the inevitable rise of pluto-populism and oligarchic government once hereditary wealth took hold.
  Of note, Adams’s stubbornly-independent political philosophy — informed by his extensive practical study of past and present governments (in A Defence, and elsewhere) — was influenced by the Italian political philosopher and diplomat Giovanni Botero (c.1544–1617), whose Della Ragion di Stato Libri Dieci [The Reason of State in Ten Books (1589; rev. 1598)] featured in Adams’s library. Like Botero, Adams saw a role for the church in securing the people’s liberties from a grasping aristocracy. “Arminian and then Unitarian religious convictions placed him somewhere between orthodox Christianity and the deism of Franklin and Jefferson, a position that was not uncommon among his fellow parishioners in Braintree/Quincy. Above all, Adams believed that the great value of organized religion, like that of sound government, was in curbing the excesses of all men, including himself.” (Richard Alan Ryerson, ODNB entry for Adams, n. pag.)
  Click/tap here to view a digital facsimile (at the Internet Archive) of Adams’s own library copy of Botero’s Della Ragion di Stato Libri Dieci (1597).

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There is more re. Botero’s best-selling Della Ragion di Stato Libri Dieci (running to 10 editions in Italian, as well as 6 in Spanish, 4 in Latin, and 1 in French during the author’s lifetime) — including two excerpts, in English translation, on liberal government — in the section on “The Early-Modern Welfare State” for the FYI page, “Conversations About a Wiser Use of Our Health Care Dollars & Resources,” at our sister project, the subdomain known as Roses.

More rethinking of “our founding ideals and documents” has been undertaken by the American Academy of Arts and Sciences, as reported on by the PBS NewsHour (whose own Judy Woodruff was a member of the bipartisan commission tasked with analyzing the state of U.S. democracy, and detailing recommendations for how to strengthen it): “Amid Inequality and Polarization, How Can We Strengthen American Democracy?” (first aired 6/11/2020). Woodruff here interviews 2 of the 3 commission chairs, Harvard University’s Danielle Allen and Stephen Heintz of the Philanthropic Foundation.
  Responding to growing citizen complaints “that our representative democracy is neither truly representative or very democratic,” the AAAS commission recommends “increasing the size of the House of Representatives by 50 more members.”
  Commentators on this NewsHour segment — who have a great deal of interest to say — remark that, true enough, “our 435 [representatives] has not scaled to our hundreds of millions”; e.g., “California, 53 House Reps.  ¶   Wyoming, 1 House Rep.” (comments posted by “amyinnh,” n. pag.)
  For some commentators, this unfairly skews our ratios of representation, giving “California, 760,000 voters per Representative.  ¶   Wyoming, 572,000 voters per Representative  ¶   By that measure California is 16 Representatives short.” (comment posted by “John B, Des Moines,” n. pag.) “amyinnh” took issue with John B’s use of the term “voters” in this context: “Representatives aren’t allocated by number of voters.  ¶   Representatives are allocated by population - all population, including children, legal permanent residents and migrants.” (n. pag.) And I would further add that the more accurate historical term, used by census takers and lawmakers in Anglo-America since the early 17th century, is inhabitants.
  Other commentators are concerned that the AAAS commission’s recommended fix “would further erode representation for those of us in rural areas, and give more power to urbanites, who have most of it now. It would change the makeup of the electoral college to give a few populous states a stranglehold on the country” (comment posted by “Borderlord,” n. pag.); still others believe that the representative democracy envisioned would be unconstitutional: “Let us start with this: Article 4 Section 4 of our supreme law [U.S. Constitution] mandates a republican form [of] government not a democracy” (comment posted by “virgil,” n. pag.).
  I agree with AAAS commission recommendations that we add 50 more representatives to the House, which is supposed to fairly represent “the people,” while the Senate represents the states (giving to rural states like Wyoming the exact same number of senators as states with large urban populations like California). California is a huge state, with a large rural as well as urban population, and I believe both would be even better served if we ditched our current system of winner-take-all politics (everywhere ... not just in California). It’s not a perfect solution, but it would prevent “a few populous states” from exercising “a stranglehold on the country,” as many such as “Borderlord” worry about, and restore some intended checks & balances.
  EDITED  Ironically, the new debate over fairer representation recalls the 18th-century fight over the first of the 12 “Articles in addition to, and amendment of, the Constitution of the United States of America, proposed by Congress [1789], and ratified by the Legislature of the several States [1791], pursuant to the fifth article of the original Constitution.” Article I of XII, “Of Representation,” would have raised the “one for every thirty thousand” baseline ratio of inhabitants per representative specified in Article I, Section II of the Constitution of the United States (1789) to “one representative for every fifty thousand persons,” with text that read in full: “AFTER the first enumeration [census] required by the first article of the Constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall be not less than two hundred representatives, nor more than one representative for every fifty thousand persons.” (Article I of XII, as printed in 1809)
  Article I of XII, “Of Representation,” attempted to micromanage growth in the House of Representatives, setting unnecessary milestones — first, when “the number of representatives” in the newly-established House reached 100, and again when it reached 200 — to trigger an increase in the ratio of inhabitants to elected representative (first 30,000 to 1, then 40,000 to 1, then 50,000 to 1). Because there was nothing in the more flexible language of Article I, Section II of the U.S. Constitution that prohibited Congress from pursuing this exact course of action if it so chose, the proposed amendment “Of Representation” proved to be a solution in search of a problem. Neither the original Article I of XII, nor the original Article II of XII (which concerned the compensation of members of Congress), were adopted by a constitutional number of states. The remaining 10 Articles were all ratified by the legislatures of the several states (1791), and became what is now known as the Bill of Rights (Constitutional Amendments I through X).
  That the original Article I (“Of Representation”) amending the Constitution was not adopted by a constitutional number of states during 1789–1791 (the right decision, IMO) is especially interesting in light of Danielle Allen’s comment to Woodruff regarding the panoply of available approaches to democratic reform: “The first thing for people to recognize is that a healthy democracy depends on a virtuous circle linking effective, functional political institutions, civil society organizations that bridge differences and that connect people to their institutions, and a civic culture that cultivates a commitment of Americans to one another and to our constitutional democracy.  ¶   So, our — our recommendations are not just a sort of hodgepodge, a sort of grab bag of policy ideas. They’re very considered things that interact with each other.  ¶   So, yes, a requirement for universal voting, but, at the same time, a recommendation to make voting easier. And across the slate of our recommendations, there are champions for all of them, people are already working hard on these things.  ¶   We spent a lot of time, actually, evaluating feasibility. We also sought to make sure that the actions could be moved forward on many levels of our system.  ¶   So, there are some things that municipal leaders can move forward, some that state leaders can move forward, some that require actions by Congress, only one constitutional amendment. That was our goal, was to try to avoid constitutional amendments whenever possible. So, that one, we do think we need with regard to issues of campaign finance.  ¶   But, for example, even the change with the Supreme Court, term limits, that is a change that can be made within our existing constitutional parameters.  ¶   And across the board, we saw a pathway to implementation that was highly aligned with usability, taking 2026, the 250th anniversary of the nation’s political birth, as our target.” (n. pag.)

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President Trump has taken a more exclusionary approach to the growing debate over equalizing the ratio of inhabitants per representative, arguing that if we exclude unauthorized immigrants from the apportionment count, we will strengthen our representative democracy.
  Click/tap here for my historian’s perspective on President Trump’s misguided Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census (issued 21 July 2020), wherein I argue that the founding “principles of representative democracy underpinning our system of Government” are not what he thinks they are.

Another radical fix for our crisis of representational integrity is proposed by Terrill Bouricius, David Schecter, Campbell Wallace, and John Gastil in their op-ed, “Imagine a Democracy Built on Lotteries, Not Elections: We Already Randomly Select Our Juries. Why Not Do the Same With Congress?” (posted to the Zócalo Public Square website, 4/5/2016). These proponents of a randomly selected legislature (such selection by lot is known as “sortition”) note that “Sortition has precedents. It was part of the earliest recorded history of democracy. In the reformed democracy of ancient Athens, panels of citizens chosen by lot (not the mass Assembly) made remarkably good laws for a hundred years. Aristotle’s Politics stated that ‘the appointment of magistrates by lot is considered democratic, and the election of them oligarchic.’” (n. pag.)
  Ideally, selection of representatives by lot will result in a more principled politics and a legislature that is, as John Adams put it in April 1776, “in miniature, an exact portrait of the people at large.” (n. pag.)
  “Americans from all walks of life would see people like themselves in a Citizen Assembly selected at random. Women, for instance, would make up roughly half its membership, and a plurality of its members would probably identify as political independents.” (n. pag.)
  “Imagine how refreshing it would be to watch the Citizen Assembly in action. Picture this body of everyday Americans speaking and acting out of a genuine desire to develop good policy, rather than playing partisan power games. One could see honest dialogue in committees and vigorous debates on the floor. Without the predictability of partisan scripts, such events would have real drama. The legislators would bring to the nation’s toughest problems perspectives informed by a wide range of occupations, ages, ethnicities, and viewpoints.” (n. pag.)

A sobering look at the perils of Californians budgeting by ballot, using an initiative process dominated every bit as much by “special interests” as is the legislature, is provided in John Myers’ column, “Political Road Map: Californians’ Blind Spots on State Budget” (Los Angeles Times, 2/12/2017, p. B3), retitled “Political Road Map: What Does the State Spend More Money On, Prisons or Schools?” for online posting.
  Myers points out the hard truth that while “Voters want the power to craft state budgets” because of “underlying beliefs that the government is somehow not able to find its way to spending money on what’s most important,” annual surveys conducted since 2005 show that they “don’t know the basics of how those budgets are put together.” (J. Myers, B3)
  “Interest groups that place budget-related measures on the statewide ballot may promise their proposals — from taxes to spending mandates — will only help California. But without a better understanding of the fundamentals, voters could make the state fiscally weaker, not stronger.” (J. Myers, B3)
  Learn how the state gathers and spends taxpayer money with CALmatters’ interactive graphic for the California State Budget, 2017–18.

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Learn more about how California’s initiative process has been coopted by the moneyed interests (resulting in yet more fake representation) in “How California Initiatives Went from ‘Power to the People’ to a Big Money Game,” by Meghan McCarty Carino (posted to the CALmatters website, 31 October 2018).

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And another perversion of voter intent, this time as pertains to bond funding: “California districts with the most affluent students have been averaging more than twice as many local school bond dollars per student as the most impoverished districts, a CALmatters analysis reveals.” Get the details here: “Data Exclusive: With California School Bonds, the Rich Get Richer and the Poor, Not So Much,” by Ricardo Cano (posted to the CALmatters website, 10/31/2018).

Among those who remain optimistic about “the direct democratic processes of Initiative & Referendum” is the indomitable populist, Jim Hightower: “Beyond the Blue Wave of New Legislators: How Workaday Folks Are Curbing the Power of Plutocratic Elites” (The Hightower Lowdown, December 2018, vol. 20, no. 12, pp. 1–4).
  Hightower argues that “When legislators obstinately ignore the people’s will, ballot initiatives allow grassroots citizens to propose a new law and put it up for a direct democratic vote. And when a legislature passes a special interest law, the referendum process lets citizens put it on the ballot and veto it.” (J. Hightower, 1–2)
  “And the people are winning! Even though, as University of Southern California’s John Matsusaka notes, ‘corporations have spent $925 million [on ballot initiatives] in California alone since 2000, far more than they contributed to candidate elections,’ the direct democracy process generally favors the public interest. And 2018 greatly added to the people’s victorious tally.” (J. Hightower, 2)
  Admittedly, “the forces of repression also use the I&R processes, but alert progressive activists scored several wins by beating back bad proposals.... Progressives did lose some initiative battles this year [2018].... Still, our wins greatly outnumbered our losses. We’ll be back.” (J. Hightower, 4)

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IMO, a really great use of the initiative for advancing grassroots democracy is Sam Chang’s proposal to bring “negative voting” — whereby voters have the option to vote against a candidate, which would give many of us more of a voice than we have now — to California, as part of a global democratic reform effort. See sidebar entry (this column) on “the negative vote” project for details.

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As for a big referendum effort spearheaded by a “special interest” (the $2-billion bail industry), “California’s Historic Overhaul of Cash Bail Is Now on Hold, Pending a 2020 Referendum,” by Jazmine Ulloa (posted to the Los Angeles Times website, 1/16/2019). The “misguided bill” activists hope voters will overturn in 2020 is Senate Bill 10 (enacted in August 2018).
  Opponents of SB 10 include groups not normally allied with the bail industry: “as the bail industry’s campaign against the law gears up, some criminal justice and civil rights groups, including the American Civil Liberties Union of Northern California, could find themselves in a difficult position: They supported the end of the cash bail system but moved to oppose the new law amid fears that it would grant judges too much power to put more people behind bars.  ¶  They have since sought to distance themselves from the bail industry’s referendum efforts, and are instead pushing for new court rules from the Judicial Council to prevent racial bias in the use of risk assessment tools.” (J. Ulloa, n. pag.)
  “Human Rights Watch senior researcher John Raphling, whose organization supports a bail overhaul but opposed the final legislation signed by Brown, said his and other groups will work on proposing a different pretrial model in the Legislature that ends money bail and requires the release of more people based on the presumption of innocence.  ¶  ‘We will not be joining the bail industry’s efforts, but we are not fighting for SB 10,’ he said. ‘We have a different vision of how to reform the pretrial detention system.’” (J. Ulloa, n. pag.)
  State lawmakers, feeling what Hightower calls “the political punch of direct democracy,” have countered by turning “an eye toward new legislation. On the first day of the 2019 legislative session, Hertzberg introduced a proposal that would require counties to report how they use the risk assessment tools in an effort to prevent improper and biased conclusions.” (J. Ulloa, n. pag.)

Gabriel Winant’s book review of the English edition of Andrea Komlosy’s Work: The Last 1,000 Years (Verso Books, 2018) is available online.

Learn more about back-to-the-future models of engagement and confrontation — in which “social groups with differing interests encounter each other in a struggle that produces change, that drives the story forward” — in the IN BRIEF topic on critical pluralism.
  Among other useful aphorisms you’ll find there:
  “Difference must be not merely tolerated, but seen as a fund of necessary polarities between which our creativity can spark like a dialectic. Only then does the necessity for interdependence become unthreatening....” —Audre Lorde, Sister Outsider (1984)

N O T E

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As the NEW stickers scattered around this Web page indicate, the present write-up is among the most mutable of She-philosopher.​com content.
  Once published, the conventional monograph is not usually subject to change, and even when reissued in a new edition, is never revised or superseded at the same rate as true ephemera, such as the sort of “news” and the steady stream of photos & emoting & instant feedback which dominate online publishing.
  My unique scholarly study of California neighbor/fence law is not, however, a production of the “ivory tower.” It was created and is maintained in conjunction with real-world, present-day actions (plus inaction!) which dictate the frequency of updates. As such, a different style of monograph is required — along with new forms of ongoing, interacting, and adjusting scholarship able to accommodate the messy world of politics and variable human events.
  It’s not easy to strike a proper balance between catering to novelty and focusing on value, especially when “what’s new” crowds out what’s valuable because things of value are associated with a past news cycle that long ago (e.g., 3 months! ;-) ran its course. By definition, scholarship can not track what’s happening/trending now, because it takes time & distance to digest new information in a scholarly manner. That’s one of the reasons why I keep the NEW stickers on this page up for about 6 months, which, while an eternity for social media feeds fixated on the here-and-now, is like yesterday to scholarly readers who might take 6 months (or more!) to revisit this page.
  Since “what’s new” and what’s valuable are often at odds, I have decided to single out the latter with a bright fuchsia sticker labelled NOTA BENE, a scholarly term (sometimes abbreviated NB or N.B.) Englished as “take notice” or “mark well.” I posted the first two NOTA BENE stickers to this page on 7/31/2018, with the intent that they highlight information, ideas and arguments worth revisiting & digesting in slow haste (festina lente) over the long term. As such, the new NOTA BENE stickers will be used sparingly (since their whole point is to help declutter the sidebar), and once up, they shouldn’t come down, unless something causes me to devalue the associated content in favor of something else. This kind of paradigm shift doesn’t often happen to scholars, and I’m not expecting it to happen here, but you never know!
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First Published:  18 September 2016
Revised (substantive):  16 November 2021

graphic showing the palm of the hand in a raised position (iconic gesture for "stop & attend to this")

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facsimile of early-16th-century fresco

^  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)

facsimile of early-16th-century fresco

^  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:

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:

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.

pointer[ 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)

pointer[ 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)

pointer[ 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)

pointer[ 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)

pointer[ 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.

pointer[ 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:

pointer[ 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.

pointer[ 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)

pointer[ 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.

pointer[ 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)

facsimile of early-17th-century printed page

^  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

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:

facsimile of mailer front

^  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.

facsimile of mailer back

^  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 agendae.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.”  graphic marking new content

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)  graphic marking new content
     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.  graphic marking new content

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.

pointerClick/tap here to open a second-window aside with “A Voter’s Manifesto: How I Voted in the Presidential Primary Election (3 March 2020).

pointerTo 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)

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facsimile of early-18th-century engraving

^  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)

facsimile of early-18th-century engraving

^  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)

facsimile of mid-17th-century engraving     facsimile of mid-17th-century engraving

^  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.

facsimile of early-18th-century engraving

^  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.

facsimile of mid-17th-century engraving

^  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.

Tail-piece from John Bate's _The Portraiture of Hypocrisie_ (1589)

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up a level: Table of Contents page for She-philosopher.com’s STUDIES section

For millennia — Temperance was a classical virtue, long before it was a theological virtue. In the Greco-Roman West, teachings about the virtue of temperance predate Christianity. For example: “Temperance was the Vertue [Pythagoras] recommended with most care, because it is necessary to tame the Body. Therefore [Pythagoras] used to get a Table full of Dainties for his Disciples, and making them to sit down, they should rise from it without touching any thing, to exercise their Vertue by so strong a temptation.” (The Athenian Society, The Young-Students-Library, 1692, 193) ::

Botero pointedly made the personal political, blaming intemperance [...] for the downfall of empires — E.g., “When the soft ways of Asia and Greece reached Rome, they so delighted the martial people of that city that the spirit which had been unconquered by the sword was vanquished by pleasure, and, from being men, the Romans became effeminate, from being just rulers they became cruel murderers of their subject-peoples. Because each of them wished to live like a king, they sacked the cities committed to their rule, and thus on the one side valour was stifled by indulgence, while on the other the affection of the people was quenched by the violence of the governors: and from this the barbarians drew heart to enter the provinces and then to attack Rome itself.... Such is the nature of human greatness that at its very height it engenders the worms of self-indulgence and the rust of luxury which gradually devour it and bring it to nothing. The best example of this in our own time is the kingdom of Portugal, whose downfall was brought about not by the Moors but by the soft ways of the Indies. No situation is harder to remedy than this, for usually those who should remedy it are the first to be ensnared and to give themselves up to luxurious living; indeed those who are not made licentious by victory nor spoilt by prosperity nor turned vicious by the power to do evil, are rarer than white crows.” (Giovanni Botero, The Reason of State [Della Ragion di Stato, 1589; rev. 1598], Eng. trans. by P. J. and D. P. Waley, 1956, 70–1) ::

Gregory IX — Pope Gregory IX (c.1170–1241). ::

St. Raymond — Saint Raymond of Peñafort (1175?–1275). ::

Emperor Justinian — Justinian I (482–565), Byzantine emperor (527–565). “Throughout much of his reign his troops were engaged in a defensive struggle against Persia in the east and a successful war against the barbarians in the west. Believing that they had lost their initial vigour, he hoped to revive the old Roman empire. His general, Belisarius, crushed the Vandals in Africa (533) and the Ostrogoths in Italy (535–553), making Ravenna the centre of government. His greater claim to fame lay in his domestic policy in which he was strongly influenced by his powerful wife, Theodora (c.500–548). He reformed provincial administration and in his Corpus juris Civilis he codified 4652 imperial ordinances (Codex), summarized the views of the best legal writers (Digest), and added a handbook for students (Institutes). A passionately orthodox Christian, he fought pagans and heretics. His lasting memorial is the Church of St Sophia in Constantinople.” (Oxford Dictionary of World History, ed. A. Isaacs and others, 2000, 333–34) ::

yet to learn and which has yet — As I write this on 9/18/2016. ::

compiled by Aaron Leaming and Jacob Spicer, 1758 — The first 18th-century compilation of the laws of New Jersey (enacted during the period 1703–1731, after East & West Jersey were reunited as a crown colony) was prepared by the speaker of the New Jersey Assembly, John Kinsey (1693–1750), and printed in 1732 by William Bradford, of Philadelphia.
   The next compilation to be printed covered the original laws passed by the New Jersey, East Jersey, and West Jersey assemblies under the government of the 24 proprietors, from 1682–1702, before New Jersey became a royal colony. This early record “was compiled by Aaron Leaming [1715–1780] and Jacob Spicer [1716–1765], under an Act of the Provincial Assembly, and published in 1758. It contains all the principal documents referring to the settlement and transfers of both East and West Jersey, with the acts of their respective Assemblies prior to the surrender of the government to Queen Anne.” (W. A. Whitehead, East Jersey under the Proprietary Governments, 1846, 87)
   By the time Leaming & Spicer’s compilation was reprinted in 1881, many of the original “ancient” legal documents — already rare and “only to be found in a few hands” by 1750 when the compilers began their work — were no longer extant, “tho’ in part incorporated in the essence of our Constitution.” As such, the original Leaming & Spicer collection continued to be of interest as a unique record of “the popular plans of government” of the founding proprietors, who “were wise and happy enough” in their 17th-century framing of “the natural rights of a reasonable creature,” “to hit upon that system which of all others is the most worthy pursuit of a rational being, namely, the security of the religion, liberties, and properties” of the immigrants who “settle[d] and transform[ed] New Jersey, with such great rapidity, from a savage wilderness to a Christian civilized country.... Civil and religious freedom and security being not only essential for the speedy settlement of a colony, but also for the happy government thereof....” (A. Leaming and J. Spicer, Grants and Concessions, Preface, n. pag.)
   Indeed, during the 17th century, New Jersey was marketed to prospective immigrants as superior to other colonies in North America and the West Indies precisely because of its early egalitarian political institutions, which “were so much more liberal in their character” than was the case elsewhere in the Anglo-American colonies. In meritocratic New Jersey, the “privilege of the people” was paramount. Propagandists such as George Scot, author of The Model of the Government of the Province of East-New-Jersey, in America; and Encouragements for such as Designs to Be Concerned There (Edinburgh, 1685) — himself a covenanter and “irreconcilable” who suffered multiple bouts of imprisonment in Scotland for attending conventicles and consorting with religio-political rebels and fugitives — were drawn to emigrate by “the blessings of civil and religious liberty” unique to early New Jersey (G. Scot, Model, 91). ::

the one moiety — In legal or quasi-legal use during the 17th century, moiety meant “A half, one of two equal parts.” (Oxford English Dictionary::

under pretence of guning — i.e., gunning. In the 17th century, a term used for “the act or practice of hunting game with guns.” (Oxford English Dictionary::

guide to just social conduct — For example, in John Aubrey’s scribal publication concerned with educational reform, he grounds religious and moral instruction for “a young gentleman viz from the age of nine or ten years; till seventeen or eighteen” — as needed to maintain a civilized & just commonwealth — on the bible’s golden rule, “do as you would be done by” (Matthew 7:12 and Luke 6:31), citing the unethical pursuit of enclosure by contemporaries as an example of sinful behavior: “The first rule that children should be taught should be ‘do as you would be done to.’ ’Tis very short and easy to be understood: if you do not so, you are unjust, a sinner, wicked. This little rule is the basis of right reason and justice, and consequently all other virtues. For want of observing this rule we see how strangely and brutishly we live among one another.... Let them make observations of God’s judgements upon oppressors. For example, the gentlemen in Northamptonshire that depopulated [the land, as a result of their enclosures]: none of them have thriven. The like in Buckinghamshire....” (J. Aubrey, Idea of Education, ms. begun in 1669 and completed c.1684, transcribed and ed. by J. E. Stephens, 46) ::

the Diggers — Led by the radical Puritan, Gerrard Winstanley (bap. 1609, d. 1676), the Diggers started seizing common land in Surrey during 1649–50, when food prices had risen sharply, and sharing it out. They called themselves the True Levellers, but were opposed by the Levellers (radicals seeking to level all differences of position or rank among men), who denounced the Diggers’ communistic attitude towards property.
   With the notable exception of the Leveller political theorist, Richard Overton (fl. 1640–1663), the Levellers (concentrated in urban areas) paid little attention to mounting grievances in the countryside caused by profiteering and enclosures of land subject to rights of common (i.e., rights to take the produce from land of which the right-holder is not the owner). Although penalized by statutes and royal proclamations from Tudor times, rural landlords profited significantly from their enclosures, and the practice continued.
   The enclosures and aggressive extension of seigneurial rights (over the right of commoning) were deeply unpopular, threatening the interests of wealthy and poorer tenants alike, which led to a great deal of social unrest, the best known being Kett’s Rebellion of 1549, which was violently suppressed. A popular quip of that era held that the sheep were now eating the men, as small farmers, peasants, and villagers lost both employment and tillage to the new grass enclosures where the gentry’s privileged sheep grazed.
   By the second half of the 18th century, enclosure by private Act of Parliament had “increased dramatically, and the General Enclosure Act of 1801 standardized the procedure. Enclosures were less unpopular in the 18th century, as they enabled farmers to introduce improvements in crops and breeding without reference to their neighbours.” (Oxford Dictionary of World History, 2000, 199) Nearly 4000 Enclosure Acts were passed between 1760 and 1844.
   Although the Diggers rejected the use of force, their settlements in Surrey were not tolerated, and were dispersed by the authorities in March 1650. ::

the radical land reforms proposed by the Diggers — “The Diggers’ first manifesto, The True Levellers Standard Advanced, signed by Winstanley and fourteen others, appeared on 26 April [1649]. On a millennial account of divine history it built a particular historical application to post-revolutionary England. The earth had been created a common treasury in which all were to share equally. The Fall saw some enclosing the earth and excluding others, tyrants whose theft and implied murder made slaves of the majority. As long as they continued to work for others for hire, the slaves were complicit in their own slavery. The tyrants, however, were also oppressed in so far as their expropriation of others alienated them from creation right and common preservation. But the millennium approached and it was ‘the old world that is running up like parchment in the fire and wearing away’. More particularly, the [revolutionary] events of 1648–9 had promised to make the English a ‘Free People’ but oppression, destitution, and confusion were greater than ever. It was time to renew the foundations of the earth as a common treasury, freeing England from the legacy of the Fall and its particular consolidation in the Norman conquest. Essential to this restoration was that ‘the poor that have no land, have a free allowance to dig and labour the commons’. Begun on St George’s Hill [in Walton parish, adjacent to Cobham, where Winstanley and others first dug into the common land in April 1649, preparatory to sowing parsnips, carrots, and beans] was a restoration which would spread to ‘all the Commons and waste ground in England, and in the whole World’. These themes — the millennial context, the civil-war contract between parliament, army, and people, and the logic of a revolution which overthrew kingly government and declared the English a free people — remained constant.... Activism was justified by the direct command of God and the growing suspicion that neither parliament nor army would deliver on the promises of the revolution.” (ODNB entry for Gerrard Winstanley by J. C. Davis and J. D. Alsop, unpaginated) ::

but by his consent — Relying on citizen & neighbor consent to ensure constitutional rights to life, liberty, and property has been a founding principle of democracy since the ancient Greeks: “Aristotle asserts that the ‘master art’ of politics has as its end ‘the good for man’ and used subordinate arts and sciences, such as rhetoric and economics, to achieve this all-encompassing purpose. Political science aims at ‘the highest of all goods achievable by action,’ generally agreed to be happiness. The Rhetoric and the Nicomachean Ethics [two texts written by Aristotle, c.350 BCE] concur that ‘the good’ is to be discovered in ‘that which is sought after by all.’ Certainly as power becomes entrenched, dependence upon persuasion and public support diminishes and the possibility of selfish interests dominating and tyranny resulting emerges. This potential necessitates law, or as Aristotle notes, ‘is why we do not allow a man to rule, but rational principle.’ In this presumed rational universe the ultimate legitimacy of the authority of those who ruled rested on the efficacy and wisdom of their efforts to realize the ideal of the art of politics. Rule by consent rather than force makes requisite the virtue of practical wisdom and the art of rhetoric; it involves persuasion on the basis of public values (at least, the values of those who could participate in public discussion), appeals to the ‘true opinion’ of the citizenry and the ethos of the society.” (Lois Self, “Rhetoric and Phronesis: The Aristotelian Ideal,” 136) ::

“because the spirit in Mankinde is various within it self ... was the Law added, which was to be a Rule and Judg for all mens actions ...” — This core principle undergirding the Diggers’ social-justice platform for the new republic, which Gerrard Winstanley derived from the Christian bible as well as from classical philosophers pondering the origins of society & government, is upheld by 21st-century social science.
   If we accept the statistics put forth by researchers such as Martha Stout, author of The Sociopath Next Door (Broadway Books, 2005), as much as 4% of the U.S. population — 1 in 25 people — are without conscience “and can do anything at all without feeling guilty” or remorseful (cover, paperback edn., 2006).
   Critics have suggested that Stout’s “book occasionally appeals to readers’ paranoia,” that Stout’s number of sociopaths is inflated, and even if it’s not, that U.S. sociopaths are not distributed evenly throughout the population (e.g., they tend to cluster in particular fields, careers, and socioeconomic classes).
   Regardless, I believe there are enough of them in every neighborhood to warrant protective legislation, as I noted in a 2/15/2017 e-mail to the office of California State Senator Toni Atkins.
   As the Diggers and other radical republicans of the 17th and 18th centuries well knew, simply relying on altruism, or ethical appeals to the greater good and to people’s common decency and desire to do the right thing, will not protect the many who play by the rules from the few who do not. We need well-conceived laws to do that. ::

the oft-cited Princeton study by Martin Gilens and Benjamin I. Page — “Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens” (Perspectives on Politics, vol. 12, no. 3, September 2014, pp. 564–581).
   The entire article is freely available online; see the bibliographic citation on She-philosopher.​com’s Secondary Sources page (in the References section) for a link to the downloadable PDF. ::

an out-of-control initiative process — There were 17 propositions on the ballot in California’s General Election on 11/8/2016, requiring a 223-page Official Voter Information Guide to explain the issues, of which I read every page, plus did additional research of my own, and am all too painfully aware that I still don’t grasp the full legal implications of my vote on each initiative. ::

case-sensitive URL — When a Web address (Uniform Resource Locator or URL) is case-sensitive, capitalization matters, and capital letters must be used where indicated. For example, in the URL for this Web page, the “C” in California, plus the “AB” must be capitalized; all other letters may be input as lower case). ::

the Roman Fasces, with an Ax in it — A bundle of rods bound up with an axe in the middle and its blade projecting. These rods were carried by the lictor, an officer whose functions were to attend upon a magistrate, bearing the fasces before him (as an emblem of the power and authority of the superior magistrates at Rome), and to execute sentence of judgement upon offenders. ::

his Janua — I.e., Janua Linguarum Reserta [The Gates of Languages Unlocked], by Johannes Amos Comenius (Leszno, 1631).
   This was Comenius’s first great published success, printed while he was still living in Poland. “With the exception only of the Bible, Comenius’s Janua was the most widely circulated book on the continent in the second half of the [17th] century.” (B. Asbach-Schnitker, Introduction, lxviin121)
   Janua Linguarum Reserta “was the first of a graded series of texts that proposed a new way of teaching Latin. Comenius proposed shifting the entire emphasis from instruction in words to instruction in things — the things to which the words referred. Comenius wished to replace the previous emphasis on language as rhetoric with language as description. Bacon’s Great Instauration was a central text for him, and he acknowledged that his manner was Baconian. All teaching must be achieved, he argued, not from books and traditions but from things. This material emphasis, and the schemes in which he ordered it, were recognized by Baconians in England, who in 1641 persuaded Comenius to come and join them in a plan to create an institution to further their common aims.” (S. Alpers, The Art of Describing, 94) ::

frontier science — I have in mind here the important distinction between “frontier science” (research) and “textbook science” (the science we learn as fact) made by Henry Bauer in his still-provocative introduction to Science and Technology Studies (STS), Scientific Literacy and the Myth of the Scientific Method (1992).
   I can’t recommend enough Bauer’s easy-to-read book on the subject. In particular, Bauer’s warning about our misguided quest for certainty in human affairs, and the dangers of scientific imperialism (“scientism”) — scil. using methods and ideas developed for one domain of inquiry in others where they are inappropriate — is as relevant this century (the 21st) as it was the last.
   Three excerpts from Bauer’s informative book can be read online at our sister project known as Roses; see the bibliographic citation on She-philosopher.​com’s Secondary Sources page (in the References section) for a deep link. ::

Article V is clear — Article V of the Constitution of the United States of America reads in full: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” ::

the Carolinas — “This considerable Province of Carolina” (named for Charles II) was originally “the most Southerly part of Virginia” — which, at the time of Sir Walter Ralegh’s claim to it, encompassed “that Tract of Land, reaching from Norumbega [Maine] to Florida” and from the Atlantic coastline to the Pacific coast of California. (Believing that the Pacific ocean lay on the other side of the Appalachian mountain range, Ralegh et al. had no idea what a large portion of the North American continent they laid claim to, calling all this virgin territory Virginia “in Honor of our Virgin-Queen Elizabeth.”)
   Carolina didn’t come into being until the late-17th century, when the crown separated it from Virginia, birthing it as a lord proprietary by way of “a Patent from His Majesty” on 24 March 1663. Henceforth, the new royal province became “that part of Florida which lies between twenty nine and thirty six Degrees and thirty Minutes of Northern Latitude: It is wash’d on the East and South, with the Atlantick Ocean; on the West with Mare Pacificum, or the South Sea; and on the North, bounds on Virginia,” and it “included some part of that Land which formerly belong’d to the said dissolv’d Company of Virginia.” (John Ogilby, America, 1st issue, 1670–1, 192, 295 & 195) ::

the eight Proprietors — The eight men, including Shaftesbury, named by Charles II as joint proprietors (the “true and Absolute Lords and Proprietaries”) of the province of Carolina. On 24 March 1663, Charles II granted letters patent to Edward Hyde, earl of Clarendon (1609–1674); George Monck, duke of Albemarle (1608–1670); William Craven, earl of Craven (bap. 1608, d. 1697); John Berkeley, Baron Berkeley of Stratton (1663–1697); Anthony Ashley Cooper (1621–1683), Baron Ashley of Wimborne St. Giles, subsequently earl of Shaftesbury; Sir George Carteret (1610?–1680); Sir William Berkeley (1605–1677), governor of Virginia; and Sir John Colleton, a prosperous Barbados sugar planter, related to the duke of Albemarle. ::

Landgraves and Casiques — Landgrave was a German term for a count with jurisdiction over a territory; while a casique (or cassock) was an American term used to describe a chief (or “prince” or “king”) of the aboriginal peoples of the West Indies and adjacent parts of America. Both terms were used in 17th-century Carolina to create an American nobility (ruling class) who occupied “a middle state between Lords and Commons” and sat in the upper house of parliament.
   Ogilby describes the unique sociopolitical hierarchy in the lord proprietary of Carolina, reorganized by Baron Ashley and John Locke in 1669, as follows: “Every County is to consist of forty square Plots, each containing twelve thousand Acres. Of these square Plots each of the Proprietors is to have one, which is to be call’d a Signiory. Eight more of these square Plots are to be divided amongst the three Noble-men of that County, viz. a Landgrave, who is to have four of them; and two Casiques, who are to have each of them two apiece; and these square Plots belonging to the Nobility, are to be call’d Baronies. The other twenty four square Plots, call’d Colonies, are to be the Possession of the People: And this Method is to be observ’d in the Planting and Setting out of the whole Countrey [of Carolina]; so that one Fifth of the Land is to be in the Proprietors, one Fifth in the Nobility, and three Fifths in the People.” (John Ogilby, America, 1st issue, 1670–1, 212) ::

catering to novelty — Publishers have long struggled with this, even before our desire for such stimulants was exacerbated by the digital age.
   The prominent London bookseller John Dunton (1659–1733), whose “search after novelties led him to experiment with new literary forms, and his influence may be traced in the rise of the eighteenth-century periodical” (Helen Berry, n. pag.), had this to say on the matter: “... NOVELTIES have Charms that are very taking, but a Little Leisure and Consideration discovers the Imposture, those false Lights are dispeld upon a serious Review, and second thoughts are wiser than the first.” (J. Dunton, The Life and Errors of John Dunton Late Citizen of London ... Together with the Lives and Characters of a Thousand Persons Now Living in London ..., 2 pts., 1705, 1.223) ::