US Constitutional Dissent Briefs Toward Positive Liberty and Citizenship Rights

How the US might move, constitutionally, from formal-negative liberty to substantive-positive liberty is argued in the dissenting briefs of San Antonio Ind School District v. Rodriguez, 1973.

Universalized Private Property & Mobility: Symbolic Domination Duo

Marketing the “universalized private property” non-solution to the problems of inegalitarian unfreedom has been the worldwide political organization “stock in trade of mercantilists, capitalists, and the jurists and politicians beholden to them ever since the Roman republic” (David Abraham. 1996. “Liberty without Equality” Law & Social Inquiry 21(1): 7, citing Moore 1966 and Mayer 1971). Rousseau once argued that through obeying the General Will, we would all have property, in the state, iff no one had associational capacity (such as private property allocates). Capitalists argue that we have property in our alienable labour. Jefferson tried to define citizenship as a patrimony of 50 acre land ownership. Bourgeois revolutionaries from France to the US South have argued for the universalization of private property. It’s an idea that’s stunting and killing us. By Bush II, the “Ownership Society” was reduced to a requirement to obtain credit, or debt in order to access the conditions of life…universalizing the company mining town model, smallholder slavery to the capitalist class, prioritizing the social reproduction of the lending class, in its internal billionaire rivalry to own and direct the world.

The opposite of exclusive private property is inclusive public property, vilified by conservatives as the True trajectory of injustice, which they define via idealist philosophy, and its impoverished conceptualization of change, as decentering exception. Abraham traces the domination of the marketed non-solution in a history of US ideas and law. With this co-optative discursive strategy, “America’s greatest libertarians could be slaveholders, just as Europe’s were political-economy free marketeers,” Abrahams observes (11) in accordance with Losurdo 2011 (2006). Occasionally, usually after wars, equal protection/fundamental rights jurisprudence “chips away” at the negative-liberty polestar. “The logic and politics that each time ended the progress: a politics and logic” of universalized private property (9).


How can libertarianism remain twinned with slaver interest in the US? Abraham identifies geographic mobility as the necessary, co-optative factor greasing the relentless, little-challenged marketing of absolutist private property right as universal interest within the settler US (13). Yet in capitalism, private property is exclusive, accumulative, unequally allocating sovereign agency and collective action capacity, enhancing economic, social, and political inequality and unfreedom. Cosmopolitan mobility for the few, the ideal, rests upon the imposed, disruptive, depleting mobilization of the many—often war discharging people from citizenship and sovereign socio-material networks–home, Bourdieu said, where you are culturally literate, and by that able to navigate to your own interest, or through which you are symbolically dominated.

But a settler society, wherein freedom is allocated by market power and yet marketed as universal private property and glorified expulsion from home, is a society of vast and pervasive symbolic domination. We are required to black-box capitalism to presume, as political-economic elites have marketed since Cato the Elder in the 2nd c. BC, that citizenship rights, positive freedom, are irrelevant to non-elite liberty. Black-boxing capitalism, we can sink into the familiar, if degraded lullaby of Ownership Society marketing, aided by a sleeping pill: freedom’s idealistic reduction to physical mobility, as proposed by that original conservativizer of liberalism, Thomas Hobbes (1651). Enjoy the institutionalized Enclosure sweeps, and give my regards to your banker, your Master.


Liberal Fart of Freedom: Mobilizing populations

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Liberal Fart of Freedom: Debt as Universal Private Property Ownership

Mobility freedom is subordinated to the Mill state’s global private property right protection obligation:

“But, then, in the 2018 Consolidated Appropriations Act passed on March 23, President Donald Trump not only reinstated the full amount but also added an additional $60 million, for a total of $510 million for the prison project.”

Mass incarceration:
“With 2.2 million people behind bars today and 11 million cycling through jails every year, the United States incarcerates more people, and at a drastically higher rate, than any other country in the world.

Building 1,200 more prison beds reflects our dependency on this system of racialized social control, revealing not only deeply held assumptions about crime and punishment, but also what we believe is possible for, and deserved in, rural America.” –Sylvia Ryerson & Judah Schept, 2018, “Building Prisons in Appalachia,” Boston Review.

Notes on Redoing Abraham:

  1. Writing in 1996, Abraham did not yet realize how hard a Catholicized Supreme Court would be restoring absolute private property right in upcoming years. That can be updated.
  2. His analysis of the poverty of negative liberty’s version of “autonomy,” choice, can be improved by contrasting choice, as delegated agency, to sovereign agency.
    1. We fear dependency (37) in absolute private property right regimes not because it is “entwined with collective action,” but because dependency is the denied condition within which all (except self-aggradizing property owners) make unfree choice. Within a law by, of, and for capitalists, most of our choices are non-sovereign, and we fear being called out. Anti-dependency discourse is a terrifying game of hot potato; the stakes are credit and cooperation.
    2. While the Pro-choice movement (footnote 120, p. 37) has conspicuously played by the pragmatist’s losing game, and, update, has lost massively by it within capitalism’s automated class warfare context, a subtle, thorough, and non-sexist analysis would also observe that social democracies and communist societies have, far more securely than liberal and of course conservative societies, recognized women’s right to reproductive sovereignty (see Baker & Ghodsee), because they recognize, behind the reproductive right, the societal value in the development of the woman, threatened by the high consequences of reproductive work for women’s lives in particular, particularly in commodified economies.
  3. Analysis from his comparator case, West Germany, can be improved. Instead, to grasp socialist-influenced, positive-rights constitutional law, use Sweden.
    1. While the West German constitution excerpt (38) is a fine example, point out how the positive rights constitution is sociological, where the Anglo-American liberal negative rights constitution is anti-sociological.
    2. Attack the (rather-Jewish) reduction of social democracy to merely the reproduction of “homogeneity” (per Abraham, Friedman, etc.). See my critique of Jantelagen decontextualization and fetishization. Ethnic “homogeneity” (reduction of the salience of ethnicity) is socially (not discursively) constructed by an inclusionary sociological definition of society (per Dewey 1916), as where ethnicity is converted into political subcommunity, eg. in Vansterpartiet, or political-economic variation is incorporated, as with the Sami in the Swedish Constitution (Basic Laws). There’s a reason (genetic diversity, including incorporating some isolated, genetically-distinct communities–analogous to Ashkenazi Jews) why long-traveling Swedes “look weird,” as the idealistic Germans like to say. Swedes’ national ethnicity is an historical project of inclusion. Like non-ethnic difference and inequality, ethnicity is also a construction, one that extends outside a multicultural society; it isn’t just subcommunity. It is an alternative society, sometimes (particularly when in relation with capital) functional, and otherwise often ascribed, isolating, somewhat functional (capitalism outlaws working class organization) but not very. Universal celebrations of ethnicity in liberal, negative-liberty regimes are about abstracting functional ethnicity as the universal, non-White condition, and denying the functional servitude assigned to ascribed ethnicization within capitalism.
  4. Ipsum lorem.

The Power and the Mediocrity of the Sign

In “What Americans Keep Ignoring about Finland’s School Success,” Anu Partanen reveals capitalist Anglo-America’s elephant-in-the-room-sized blind spot, why its focus on competition and “excellence” results in diminishing performance in order to promote concentrated power and idealism.

The Finns (Per Sahlberg) on education reform that demands accountability from teachers: “There is no word for accountability in Finnish. Accountability is something that is left when responsibility has been subtracted.” In Finland all teachers and administrators are given prestige, decent pay, and a lot of responsibility.

The Finns (Samuli Paronen) on competition: “Real winners do not compete.” There are no lists of best schools or teachers in Finland. The driver of education policy in Finland is not competition amongst teachers and schools, policy forcing the ideal conservative conditions of bellum omnia contra omnes, but rather cooperation. School choice is not an issue, nor is putting education in the hands of the private sector and profit motive. This is in distinct contrast to America, Sahlberg observes, where “schools are a shop.”

The Finnish education reform goal was always equality and equity, never “excellence” or whatever conservative daydreams that word stands in for. “Education has been seen first and foremost not as a way to produce star performers, but as an instrument to even out social inequality.” What the world dominated by conservative Anglo-american capitalist dogma still cannot face is that it is equality that most efficiently produces star performances and substantive excellence.

Tiger Moms’ genius boys in Shanghai and Singpore can put in 20-hour days of rote memorization and exhaustive cramming, and only manage to approximate in performance the Finnish children who are simply well cared for and supported by valued, independent, unionized teachers and their egalitarian society. Surely, the East Asian genius boys are better poster boys for conservative capitalist discipline; but just as surely they are inefficient…and 99% of these memorizers and crammers will never be able to write a non-plagiarized essay, that is, communicate independently, like humans can.

Why does egalitarianism more efficiently make excellence? The answer is right in front of our nose, right in front of our blind spot. It’s because in the inequality tradition, poor people are overwhelmingly, structurally prevented from attaining their human potentials, and, a factor that perversely torments conservative theorists much more, the rich enjoy the comfort of knowing that surrounded by throngs of shackled “competitors,” they can enjoy many a good old slack.

In such a conservative culture, it is the appearance and ideal of excellence that matters, because the sign unmoored is directed by and justifies power. To be chosen is a sign, necessarily imposed upon the material world. The grim “play” of signs, only ordered by the mystified, atopic distribution of power in a reified collective imagination (a world not made but given, or made by all because you cannot choose unfreely), is Anglos’ obsession, and the more people you can induce to submit to this obsession, the more human life chances are allocated by market power and the more absolutely necessary capitalism (or its feudal and slavery complements)  is for any life chance at all.

At or adhered to central nodes of global capitalist accumulation, Anglo-Americans are altogether too kind, too attentive to, too solicitous of the promotional, the unmoored sign, constantly mistaking it for the legitimate, autarkic limits of knowable (meta)reality. Our literature, for one example, is far too ready to believe that the con man is the true knower.

Primitive Accumulation, Negative Externalities and Growth

Over the years, Stefano Bartolini has modeled economic growth, showing that whereas most models of economic growth feature accumulation and technical progress as engines of growth, a third engine is needed to ensure self-perpetuating economic growth. History, the theory of Polanyi & Hirsch, and Bartolini’s models suggest that third engine is 2 negative externalities that combine to drive growth: 1) positional externalities, and 2) externalities that reduce social and natural capital.

Pagano 1999 defined a positional good: consumption by an individual of a positive amount of a positional good involves the consumption of an equal negative amount by someone else. Power and status are fundamental positional goods; others include education and housing.  The positional goods/services/externalities theoretical tradition extends from Veblen 1899/1934 and Hirsh 1976. In addition to Bartolini, Robert H. Frank (“Falling Behind”) has continued to explore this tradition as well as Bowles and Park 2002, Schor 1998, and Corneo and Jeanne 2001.

“Industrial revolutions are the paradigmatic example of this (Growth as Substitution) mechanism: they are the most striking processes of labor supply and accumulation increase because they are the most striking processes of social and environmental devastation recorded by economic history” (Stefano Bartolini, “Beyond Accumulation and Technical Progress: Negative Externalities as an Engine of Economic Growth.” 2003: 9).

Williamson 1995, Krugman 1995, and Bartolini et al have shown that the transition to an industrial economy has always been associated with explosive growth in the labor force participation rate.

Such growth-propelling negative externalities are discussed within the Marxist tradition as primitive accumulation. To further explore: The relationship between primitive accumulation and other capitalist strategies of promoting profit-restoring growth to the point of increasing contradiction / social and environmental irrationality.

Bartolini’s growth-model can better explain the failure of conservative economics’ predicted relationship between growth and happiness (Bartolini 2003). Inter alia, political scientist Lane 2000 shows that American growth is not associated with increased happiness.

Public Schools Beat Charter Schools

We know about how charter schools compare to public schools from a “national study of charter schools by Stanford economist Margaret Raymond (the wife of eminent statistician Eric Hanushek). Known as the CREDO study, it evaluated student progress on math tests in half the nation’s five thousand charter schools and concluded that 17 percent were superior to a matched traditional public school; 37 percent were worse than the public school; and the remaining 46 percent had academic gains no different from that of a similar public school. The proportion of charters that get amazing results is far smaller than 17 percent,” reports Diane Ravitch in “The Myth of Charter Schools.”

On the predatory neoliberal claim that micromanaging and firing teachers will enable the remaining, ill-compensated teachers to single-handedly substitute for a missing welfare state and constructive equality:

“Hanushek has released studies showing that teacher quality accounts for about 7.5–10 percent of student test score gains. Several other high-quality analyses echo this finding, and while estimates vary a bit, there is a relative consensus: teachers statistically account for around 10–20 percent of achievement outcomes. Teachers are the most important factor within schools.

But the same body of research shows that nonschool factors matter even more than teachers. According to University of Washington economist Dan Goldhaber, about 60 percent of achievement is explained by nonschool factors, such as family income. So while teachers are the most important factor within schools, their effects pale in comparison with those of students’ backgrounds, families, and other factors beyond the control of schools and teachers. Teachers can have a profound effect on students, but it would be foolish to believe that teachers alone can undo the damage caused by poverty and its associated burdens.”

On the predatory neoliberal comparison of public schools in poor neighborhoods with a couple of massively-funded charter schools, that, it turns out, don’t perform much better than the average, underfunded public schools, especially given these charters’ extremely high cost, and which just kick the students out on the street when the children can’t supply the stats to justify the charter business:

“Geoffrey Canada is justly celebrated for the creation of the Harlem Children’s Zone, which not only runs two charter schools but surrounds children and their families with a broad array of social and medical services. Canada has a board of wealthy philanthropists and a very successful fund-raising apparatus. With assets of more than $200 million, his organization has no shortage of funds. G. Canada himself is currently paid $400,000 annually. For charter-school advocates, including filmmaker Davis Guggenheim, to praise G. Canada while also claiming that public schools don’t need any more money is bizarre. G. Canada’s charter schools get better results than nearby public schools serving impoverished students. If all inner-city schools had the same resources as his, they might get the same good results.

But contrary to the myth that Guggenheim propounds about “amazing results,” even Geoffrey Canada’s schools have many students who are not proficient. On the 2010 state tests, 60 percent of the fourth-grade students in one of his charter schools were not proficient in reading, nor were 50 percent in the other. It should be noted—and Guggenheim didn’t note it—that G. Canada kicked out his entire first class of middle school students when they didn’t get good enough test scores to satisfy his board of trustees. This sad event was documented by Paul Tough in his laudatory account of G. Canada’s Harlem Children’s Zone, Whatever It Takes (2009). Contrary to Guggenheim’s mythology, even the best-funded charters, with the finest services, can’t completely negate the effects of poverty…

Another highly praised school that is featured in the film is the SEED charter boarding school in Washington, D.C. SEED seems to deserve all the praise that it receives from Guggenheim, CBS’s 60 Minutes, and elsewhere. It has remarkable rates of graduation and college acceptance. But SEED spends $35,000 per student, as compared to average current spending for public schools of about one third that amount. Is our society prepared to open boarding schools for tens of thousands of inner-city students and pay what it costs to copy the SEED model? Those who claim that better education for the neediest students won’t require more money cannot use (these charters) to support their argument.”

On the predatory neoliberal promotion of micromanagey-student testing and proletarianizing teaching:

“Guggenheim ignored other clues that might have gotten in the way of a good story. While blasting the teachers’ unions, he points to Finland as a nation whose educational system the US should emulate, not bothering to explain that it has a completely unionized teaching force. His documentary showers praise on testing and accountability, yet he does not acknowledge that Finland seldom tests its students. Any Finnish educator will say that Finland improved its public education system not by privatizing its schools or constantly testing its students, but by investing in the preparation, support, and retention of excellent teachers. It achieved its present eminence not by systematically firing 5–10 percent of its teachers, but by patiently building for the future. Finland has a national curriculum, which is not restricted to the basic skills of reading and math, but includes the arts, sciences, history, foreign languages, and other subjects that are essential to a good, rounded education. Finland also strengthened its social welfare programs for children and families. Guggenheim simply ignores the realities of the Finnish system…

(N)ations with high-performing school systems—whether Korea, Singapore, Finland, or Japan—have succeeded not by privatizing their schools or closing those with low scores, but by strengthening the education profession. They also have less poverty than we do. Fewer than 5 percent of children in Finland live in poverty, as compared to 20 percent in the United States. “

Do you see a systematic picture yet of what is wrong with the US and its sorry-assed leadership? How can leaders so wealthy be so bankrupt when it comes to ideas and policies?

Perhaps it’s because their lousy ideas keep the elite and the elite alone above the crises they inflict.

Hedge fund managers are the machine behind the US campaign to privatize education. Hedge fund managers don’t do anything for altruistic or public-good reasons. They have an abiding interest in promoting a high-inequality society: Their wealth comes from being able to exclusively control resources, commandeering social wealth (appropriating wealth, for example, currently “locked up” in working class people’s property) to gamble with it. They may liberally seed media, think tanks, and politics with a small percentage of their appropriated wealth, but hedge fund managers’ apotheosis depends on reducing the mass of people to powerlessness and poverty.

We have to keep our eyes on a larger framework: If engaged members of society want to improve the efficiency and performance of institutions, such as education, then we will have to design, innovate and institutionalize policies and practices that contribute to increasing equality and decreasing poverty. Privatization–taking institutions designed to achieve broader goals and converting them to the singular cause of accumulating profit for a few–is socially-irrational, socially-inefficient, expensive, corrupt (encourages graft), unfocused, de-optimizing, and wasteful. Privatization worsens inequality, positional goods inflation, opacity and disinformation, poverty, and the costs of poverty. That is why it is precisely the path to perdition in many areas of goods and services provision.