The Yale Law Journal


The Individual Sector: A Book Proposal

16 Mar 2020


Length: 50,000-75,000 words

Completion: one yearimage003.pngimage004.png

The Individual Sector

The individual in America is threatened by a loss of habitat. This loss is being caused by the same out-of-control forces that are now threatening the habitats of other endangered species—the same forces causing the global crisis of the natural environment. But our response to these two threats has been profoundly different. The threat to the human individual has remained undiagnosed. Without recognizing the true cause of our distress, we have engaged in four decades of misdirected blame and conflict, starting with Richard Nixon’s politics of resentment, the culture wars, the Sixties years of protest and counterculture, and the red-blue split that continues to divide and distract us today.

During these same forty years, the crisis of the natural environment has been widely recognized and correctly diagnosed, even though the question of what to do remains in dispute. Evidently it is easier to see a problem from the outside than to see correctly a problem that affects each of us. Maybe it is better that plants, animals and the atmosphere cannot think and speak for themselves and therefore are unable to make the same mistakes of blaming each other that we humans have fallen prey to. The fact remains that we have seen the plight of other species while remaining unable to see that we humans are now sharing the fate of the rest of nature.

It is fair to say that the human habitat is far more complex than that of any other species. The human habitat includes many spheres, from economics to family life, from politics to popular culture, from employment to consumerism, from education to the media. The human habitat has multiple causes for every consequence. And we all know how much more difficult it can be to see ourselves than to see others. It should not beimage005.pngsurprising that we have seen what is happening to nature long before seeing what is happening to ourselves.

But the politics of resentment, the battle between blue and red, the promises and remedies of our present leaders all fall far short of addressing the true human condition. It is useless and counterproductive to blame outside enemies or the mistaken politics of others. We are the authors of our own fate. We have created the forces and the machines that are supposed to be of benefit to all, but can readily become destructive instead. These forces and machines have brought immense benefits and prosperity. But now we have entered the Age of Self-Destruction. We need protection from our own creations. Many writers of science fiction have foreseen that this day would come. Forces and machines by themselves are indifferent to good and evil. It is our fault that they are out of control.

Good and evil are strictly human concepts. They do not derive from the natural universe. Only humans have evolved ethics and morality, benefit and loss, lawfulness and unlawfulness. These concepts find expression in what is called the rule of law. Thus when humans create forces and machines, the only way to make them serve good instead of evil is to subject them to the rule of law. The crisis of the natural environment is therefore a failure of the rule of law. Human beings have created power so immense that it has escaped the rule of law. And lawless power must inevitably become destructive power. It has turned against nature, and now it has turned against us, its creators.

It is time to use the rule of law to protect the human habitat from further self-destruction. Our present Constitution, adopted in 1789 before the age of the machine, is concerned with the structure of government and its relation to the people. Today there isimage005.pngurgent need to adopt new constitutional provisions designed to safeguard both nature and people from threats which did not exist and could not even be imagined in 1789. Under our present Constitution, there is a public sector, consisting of government, and a private sector, consisting of everything else. We need to adopt new constitutional provisions to protect both the human individual and the natural environment from lawless, unchecked forces. We need to create an individual sector, a sanctuary, home and habitat where human beings can flourish.

We need a constitutional guarantee that every individual shall have access to the economic means of life: an education, a job, an income to purchase life’s necessities: a home, child care, health care, recreation and retirement. We need a guarantee of personal dignity and privacy, control over our bodies, protection from intrusion by government, employers, and sellers of goods and services. We need to safeguard democracy from money and power.

An individual sector should also include constitutional protection of the environment, together with an individual right to enforce this protection. Our existing Constitution declared that “no person shall be deprived of life, liberty, or property without Due Process of Law.” Today we must recognize that destruction of the environment can be, and frequently is, a deprivation of life, and of liberty and property as well. By including environmental protection within the individual sector, the Constitution would make clear that the survival of nature is a human right, not just a right for animals and plants. And since the same forces that threaten nature also threaten human beings, it is appropriate that limits on those forces should also be combined.image004.png

In 1789 individuals were strong, independent, and able to provide for themselves and their families by farming or other occupations open to all. Individuals had direct access to the means of life. All that they required in order to prosper was their own hard work plus freedom. The main purpose of a Constitution was to create a national government with powers sufficient to govern a growing nation.

Today we have become totally dependent on organizations, corporations and other entities to supply our needs. They supply not only the goods but the income to purchase those goods. And by selling high and paying low they have the power to squeeze the individual. Employers are under no obligation to pay for what it costs an individual to live. Manufacturers and suppliers of goods and essential services are under no obligation to provide for those unable to purchase the necessities of life.

Thus a complete reversal has occurred in the circumstances of the individual in America. If this reversal had occurred all at once as a single event, there would have been a second American revolution. But instead the transformation occurred over a period of two hundred years. And while it was taking place, the transformation brought immense benefits in prosperity, science, comfort, and all the other wonders of modern life. There were episodes of resistance and protest, but the incredible rise in everyone’s standard of living was enough to satisfy most people.

In addition, the myth of individual self-sufficiency and independence was preserved long after it ceased to be a fact. The rise of mass media, controlled by the same corporate entities dominating the economy, helped to preserve and perpetuate the myth of individual independence, and politicians based their appeal on the same premise. Thusimage005.pngthere never was a moment when people could recognize that the reality of 1789 had been reversed, and only a myth remained.

Beginning in the 1960’s, Americans began to feel that something had gone wrong. Society and the economy developed a series of ills and disorders, never adequately diagnosed and all too readily blamed on disfavored groups in society, an erosion in values, or enemies at home or abroad. Politicians and the media encouraged this blame. Thus was born Richard Nixon’s politics of resentment. The true cause of this resentment—the gradual destruction of the human habitat under which individual independence had flourished—remained entirely unseen and out of awareness.

In 1789 children were an economic advantage. By 1968 children had become increasingly costly without providing any immediate economic advantage to their families. Inevitably this change affected values, culture, beliefs, and all the unspoken assumptions of 1789. But facts like these never entered into the tumultuous culture wars of the 1960’s. Instead, these wars were fought in ignorance of their true cause.

Had there been an objective viewpoint from which to view the American condition in 1968, the following elements might have been included in the view:

(1) the human habitat crisis was undermining the stability of families and tearing apart relationships such as marriage and parent to child

(2) the human habitat crisis was undermining traditional values and beliefs such as religious faith, patriotism, honesty, and concern for others

(3) the human habitat crisis was causing individuals to seek escapes from mental pain and pressure through alcohol and drug abuseimage003.png

(4) the human habitat crisis was causing an upsurge of crime, violence, and suicidal self-destruction among individuals

(5) the human habitat crisis was causing other individuals to become politically alienated advocates of violence against their own government

(6) the human habitat crisis was causing individuals to rebel against paying taxes, even for such necessities as public schools, and to see “government” as the cause of the nation’s problems

(7) the human habitat crisis was causing other individuals to attempt to create a “counterculture” of peace and love through a transformation of human consciousness

(8) the economic side of the human habitat crisis—the loss of secure, well­paying blue collar jobs—was kept in a separate universe from the so-called “cultural” side of the crisis

(9) the crisis of the natural environment, growing all through these years, was kept in a separate universe from the crisis of the human habitat.

The politics of resentment have never been recognized as the analogue of the environmental crisis. Instead, terms like “cultural conservatism,” “traditional values,” “social conservatism,” “war on crime,” “war on drugs,” “backlash” have been used to obscure the true nature of the issues, divide the electorate into warring parties, and keep the issue of human habitat so completely separate from the crisis of the natural environment that their close similarity went unrecognized for 40 years.

Nixon’s politics of resentment kept divided, and fighting among themselves, the major constituencies which might otherwise have cooperated to address our underlying crisis. Instead, each constituency was incited to see the others as “the enemy” and the cause of what was going wrong. Instead of standing side by side to fight the true danger, the major groups in American life were kept fighting and blaming each other while the true crisis continued to grow unchecked.

During this period the American people found themselves compelled to share a so-called “Private Sector” with giant non-human entities. This was like having small children share a playground with the NFL. Someone was sure to get hurt.

Beginning in the Nineteenth Century, entities enjoyed an ever more privileged position under the Constitution, while the rights of individuals were steadily shrinking. As a result, entities gradually became a form of government superimposed upon the democratic government established by the Founders. Entities are autocratic, not democratic. They make rules that employees are required to obey. Employees do not enjoy the protections of the Constitutional bill of rights. There is no free speech within an entity. There is no fair trial if an employee is accused of wrongdoing. There are no checks and balances, no separation of powers, no judicial review—all safeguards deemed essential by the Founders to keep government from abusing its power. An entity can prohibit smoking or drug use without any democratic vote or judicial review. This is totalitarian government superimposed upon our earlier form of constitutional government. But at the same time, entities have no obligation to pay employees a living wage. They have no obligation to enable employees to pay for health, retirement, education, or the raising of children. They have no obligation to serve the public’s interest or the nation. Their powers are governmental, but their responsibilities are merely to make a profit. Ironically, the less responsibility imposed on entities, the greater the talk of “personal responsibility” for individuals.

image006.pngEntities enjoy rights of free speech beyond anything available to individuals. Entities control the media—television, radio, newspapers, magazines. Entities enjoy access to Congress, the executive, and state legislatures unavailable to individuals. The money used by entities to influence government outweighs the votes of millions of individuals.

At the same time that entities have failed to pay the true cost of exploiting the natural environment, they have failed to pay the true cost of the human labor they use.

It should be obvious that entities and individuals ought not to occupy the same “Private Sector.” This concept is obsolete. There should be a public sector for government, an organized sector for corporations and other institutions, and an individual sector for human beings.

It should be equally obvious that when we talk about “freedom” we need to ask “whose freedom?” More freedom for entities may mean less freedom for human beings.

Are human individuals necessary or are they disposable? Entities seem to think the latter. A person may faithfully pay a utilities bill each month for thirty years, but if illness causes a payment to be missed, those thirty years get no recognition at all, and a “notice of disconnection” is sent. Likewise a faithful employee can be laid off after long years of service, and promised pensions can be cancelled without a trace of human emotion.

But entities are machines, and machines have no vision and no brakes. Machines have no commitment to the continuance of life on the planet. They will continue to run until they turn progress and prosperity into disaster.

image003.pngA machine dominated society will prosper for a while, but it will ultimately self destruct. That is why we cannot allow society to be run by machines. That is why the human individual is still necessary.

What about the individuals who staff our entities—executives, directors, employees? They have a divided loyalty. Their job is to serve the machine, not to serve the welfare of the public or the planet. It was not the executives at the helm of our greatest corporations who first recognized and warned about the oncoming environmental disaster. It was not our Directors and C.E.O.s who saw that the nation’s economy was in profound trouble. Only the independent, democratic individual—only We the People—can save us from self-destruction caused by our own out of control creations.

Today the power created by human beings is out of control, and capable of destroying all life on the planet. The means by which humans can control human-created power is called the rule of law. It is law that distinguishes good from evil uses of power. A stone picked up from the ground is a form of power that can be used for good or evil. It can be used to grind corn for food or it can be used by Cain to kill his brother Abel. It is the function of law to tell us how to use every form of power.

Today as never before we need to restore the rule of law. The environmental crisis must ultimately be recognized as a large scale retelling of the Cain and Abel story—the failure of human beings to control power that they—we—have created. The environmental crisis must be seen as a colossal failure of the rule of law. We have unleashed uncontrolled power on the natural world.

If our entity-based economic system becomes a disaster, the ultimate cause will also be a failure of the rule of law. We will have failed to use economic power for theimage004.pngwellbeing of all. And if the habitat of the individual is destroyed, that will represent the ultimate failure of the rule of law—Cain and Abel on a global scale.

Let us take a naturalist’s view of the human habitat in America today. We are experiencing homelessness—on a scale never known before. We have become a society that engages in mass incarceration of its own people. And recent studies have shown a decline in the life expectancy of an entire segment of the population at the lower end of the economic scale. An immense proportion of our wealth is spent for the military and the police. How many more symptoms are needed to tell us we are creating a habitat unfit for human life?

Today’s politics do not come anywhere close to diagnosing our condition or offering genuine remedies. Fear is still a tool used to win elections, not a warning sign of dire peril for us all. Blame obscures the fact that out problems are self-created, not the work of “enemies.”

A Constitution to protect the human individual and the natural environment would be as momentous an event in human history as the adoption of our original Constitution in 1789. That document was designed to establish the rule of “We the People” as the best form of rule for humankind. Today we need to create a safe and secure habitat where “We the People” can once again flourish. We cannot recall the powers that we have unleashed. We can create an Individual Sector to protect us from those powers.