Repost Request

I get some repost requests now and then.  (People will sometimes write and ask me to either repost an earlier post or find it for them - "Get thou to a google-ry!").  Anyway this has come up thrice now, mostly on the idea of systemic racism, which is certainly more cogently argued elsewhere.  But what the hell, somebodies out there seem to like it, so here it is again.  Origianlly posted 1/18/06.

Conservative Thought

Hmm.  As if my coffee wasn’t acidic enough, I was referred to this article by AI.  It’s remarkable in that it contains (amid the carefully placed misstatements, spleen and non sequitors) a veritable smörgåsbord of both “conservative thought” and cherry-picked premises that underlie and justify conservative thought.  It’s really a wonderful example. Instead of launching into a critique of the article, I thought I’d talk a bit about how my perceptions of society have changed over time. Hopefully, readers might find something akin in their own thought, or, better, challenge their own conceptions of things.   

I think back to when I was 18.  Like many Americans, while I wasn’t a blind patriot, and while I’ve been on the left side of the ideological spectrum out of a basic humanistic impulse, I never really had the tools to concretely articulate my problems with the legal and social structure of the country.  However, even though I strongly felt that an argument which ultimately left the poor and mentally ill to starve on the street was in some great measure obviously wrong, and diminished our shared humanity, I still held certain premises that made it difficult for me to square what I thought ought to happen with the bedrock vision of what America is and how things work.  I think these premises often interfere with political debate, insofar as they tend to shift entire debates “to the right.”

I think my time at GULC has helped me gain a better vocabulary, and certainly a different perspective on issues.  Granted the perspective articulated by some of my professors may not always closely align with my *own* views, but it’s helped (forced) me to articulate some of mine in ways I ordinarily wouldn’t. 

Like the poetics posts, I’ll try to keep my terms general, non-technical, probably (hopefully) entirely remedial for many law school peeps.  But, again, hopefully a good overview for those who might be interested in such, say, a cousin of mine who is 18.

**
So – a kind of “common-sensical” mindset:

Politics:

Democracy (rather than "judicial activism") is the most equitable way to solve society's ills.  It’s simply fair.  We all think and vote and the best arguments “win.”  If you don’t win you ought to be graceful and “support” the country in that you don’t try to undermine the winners.

In America, there are two basic wings, the left and the right.  To find a center point on an issue, all you have to do was look at the common ground between the two. 

Society:

Racism is an overt “state of mind” existing in one individual that results in discrete “actions” – basically racism was a "bad thing" that someone did to a minority based on the minority’s race.  For example, a mortgage officer might deny an applicant only because they were black. 

This kind of prejudice is played out in the exact same way for different minorities, or, if you will, people who possess different "undesired" characteristics – their religion, race, ethnicity, physical appearance, handicaps, age – you name it. But it always follows the pattern above - one uneducated or jerk individual with a problem does something bad.

Things really have changed since the 1960s.  There’s not much racism or sexism any more.  I mean, when was the last time you heard of someone getting fired just because of their race?

There’s a level-playing field – the idea that, absent any of the impediments described above (racism, ageism, etc.), one could do nearly anything one wanted to.  This was borne up by the many individual examples of people who had “made it” – i.e., climbed the class/economic/educational ladders.  (Note the vertical metaphor).  These individuals seemed to be personally responsible – they took charge of their lives on some level.  There’s also a cut-off point between the haves and have-nots (basically, once you’re over the poverty line you ought to be able to do things like put your kids through college if you’re thrifty and responsible enough)

Society ought not to “pay” for anything that a) encourages people to irresponsible, b) that it’s not “responsible for.”  I.e., society shouldn’t be a safety-net for people screwing up because it penalizes those of us who haven’t screwed up and rewards those who do; that's fundamentally unfair.  People should lie in the beds that they make.  If individuals or churches want to help out with charity, that’s just fine (noble actually) – we certainly shouldn’t hinder this as we don't want to be mean, just fair.

If every individual were to change their behavior for the better (simply stop doing drugs and get jobs) society would radically improve, overnight.

We know this is not happening because affirmative action programs carve out a large chunk of resources for minorities to use.  In fact, in some cases it’s an advantage to be a minority since spots are put aside for them.

Law:

Social problems are different from legal problems – this rests on the idea that the law is something that most people don’t have to deal with on a daily basis.  One would only consult a (very expensive) lawyer in the face of extreme misfortune (blind fate lands you in a car wreck, etc.)

The law is simply the “neutral arbiter” of the game of life, interested in making things fair and correcting “gross fouls” – like those overt acts of racism.  It’s what makes the playing ground neutral, and what allows those disciplined individuals to succeed.

**

OK – I admit I’m being a bit disingenuous.  I didn’t really believe all those things, even when I was 18.  My experiences argued against them in ways both subtle and profound.  However, they were hard to dismiss.  I mean, the country did seem, to an extent to be progressing – cleaner environment, less racism (of the overt kind), easier access to material goods, and many other positive examples of things “moving forward” toward a more humanistic and equitable society.  Sure, we had the Regan/Bush years (today, Clinton seems like a small island) but things really did seem to be better than they were in the 1930s, 40s, 50s, etc. 

Not only were they hard to dismiss on a “nagging doubt” level (for they just seem to be more or less fair, – don’t they?), but these ideas frequently came up in political rhetoric and discourse, sometimes overtly, sometimes as assumptions in the background.  They seemed part of the landscape, part of the dialog about who we were and what was going on.   And for that reason alone, their pervasive “there-ness,” seemed hard to dismiss.

**

There are many sophisticated critiques of that mindset that I’ve rather lazily sketched above, but I’m going to offer an equally lazy sketch

So - to offer a slightly different view to the above:

Politics:

Democracy (rather than "judicial activism") is the most equitable way to solve society's ills.  It’s simply fair.  We all think and vote and the best arguments “win.”  If you don’t win you ought to be graceful and “support” the country in that you don’t try to undermine the winners.

Our democratic process is a actually a winner-take-all republican system.  That means we elect representatives to make decisions for us, and while we might inform the decisions of those representatives through making our opinion known via polls, etc. we don’t vote directly on issues.

Some implications:
If there was a 5 or 10 or 20 percent minority (in a given voting district), that minority could unite on all issues and behind one candidate, wave all the banners they wanted to, and their candidate would *never* get elected if the majority held different points of view.  Hence the views of that minority could be courted by a political party, or they could be ignored by both parties (in a dual party system.)
When the minority is both physically or socially identifiable and isolated from the political system (think, for example, migrant Latino workers in a small southern town, a Jewish enclave in a city) the majority could easily become prejudiced against them and enact unfavorable laws, zoning, etc. against that minority. Or they could enact laws that seemed neutral, but in practice favored themselves at the expense of the minority. 

In America, there are two basic wings, the left and the right.  To find a center point on an issue, all you had to do was look at the common ground between the two. 

The above works in an ideological sense as well – excluding ideas (environmentalism).  Basically, the point is that not *all* ideas are heard, nor are *all* voices heard.  Often, elections can be won by only paying attention to the issues that the majority favor.  Everything else is off the radar.

Society:

Racism is an overt “state of mind” existing in one individual that results in discrete “actions” – basically racism was a "bad thing" that someone did to a minority based on the minority’s race.  For example, a mortgage officer might deny an applicant only because they were black. 

Racism can in fact be systemic.  That means we could envision it as a series of small bumps which add up to a rough ride.  Or we could view it as a cascade effect, where one half-step back and another and another add up to being severely disadvantaged in some ways.  This results in their being not one “equal” field where we only have to look out for “bad” individuals taking a swipe at someone for overtly prejudicial reasons.

For example, it may be that the mortgage officer in the above example would be dealing with a black would-be home owner who went to schools that have a slightly worse reputation than local majority-white schools, and/or that this would-be home owner was then able to only secure employment (add college in there or not) at a slightly lower wage than a white contemporary that went to a better school – on paper they’re just going to be a slightly worse risk than the “comparable” white candidate, and they "happen" to be black. 

Personally, I’ve seen this kind of thing happen often – insurance rates in particular are good examples of “neutral” processes that systemically disfavor certain communities and provide another bump in the road (how much harder is it for someone in a high-crime/low-income area to beautify their house, when their marginal income is sucked up in keeping their car on the road). 

There’s also huge social dimensions to racism – who you go to church with, whose kids you want socializing with your kids, etc.  But that’s an immense and broad force I’ll leave for another day.  (I feel like I’ve only addressed the path of a single pebble in an avalanche - in fact it makes me feel the whole post is just missing the point, but you have to start somewhere).

This kind of prejudice is played out in the exact same way for different minorities, or, if you will, people who possess different "undesired" characteristics – their religion, race, ethnicity, physical appearance, handicaps, age – you name it.  But it always follows the pattern above - one uneducated or jerk individual with a problem does something bad.

You can transplant the systemic argument to any other characteristic which is undesirable by the majority.  Although no one will say to you that they’re not hiring you for an entry level position when you’re 50, it’s still *awfully* hard to get one.  Although its not overtly *because* your a woman that you, like the vast majority of women in the country, are, on average, earning less than your peers.  Not a level playing field. 

Things really have changed since the 1960s.  There’s not much racism or sexism any more.  I mean, when was the last time you heard of someone getting fired just because of their race?  There’s a level-playing field – the idea that, absent any of the impediments described above (racism, ageism, etc.), one could do nearly anything one wanted to.  This was borne up by the many individual examples of people who had “made it” – i.e., climbed the class/economic/educational ladders.  (Note the vertical metaphor). These individuals seemed to be personally responsible – they took charge of their lives on some level.  There’s also a cut-off point between the haves and have-nots (basically, once you’re over the poverty line you ought to be able to do things like put your kids through college if you’re thrifty and responsible enough)

Again, racism, sexism, any of the prejudicial –isms is not best characterized by someone on the street corner, shouting epitaphs. Instead it’s found in the patterns of what actually happens - the basic facts that minorities more often go to substandard schools (as compared to majority schools), then have a lower proportional college attendance, prestigious job placement, access to medical care, etc.  Housing.  Cars.  Cultural and social mobility.  You name it. 

Look at it this way, from a straight up "class" perspective – your parents have a certain income, so they live in the best neighborhood they can afford.  You attend a not-so-great school, and do OK.  Sure, you wish you paid attention a bit more, but you were a teen-ager for chirst’s sake, and you kept your nose clean and did reasonably well. You apply to the best college you can get into, which is a not-so-great school; what with tuition costs and the moderate loan aid you receive - there's simply no place for that additional money to come from.  You don’t even apply to a big-name school (where would the money come from?)   Which lands you a not-so-great job, post-graduation.  Which means you can get a house in the same kind of neighborhood your parents got.  You’re kind of “capped” at every level, even though you might be a straight shooter and a hard worker and fully capable of doing well at a better college/job. 

Now switch that to someone whose parents have resources – the ability to send you to private schools, to let you take time off and get your head together, to let you socialize and associate with people whose social patterns occupy the upper echelons of society, to pay the premium to get you into a college with a “name,” which lands you a better job, higher up the “ladder,” regardless of how well you did there.

Those are systemic problems – the playing field is not level (and we’re not even getting into social prejudices, or the fact that due to a complex interchange of many “small bumps,” the under-resourced are disproportionately minorities).  Further, programs that try to address those problems by opening up universities and institutions to the under-resourced are often attacked (ironically) for tilting the playing field.

Now I’m not saying things haven’t improved in many areas – clearly they have if we look at individual examples.  But if we look at the broad spread, the country is far from a meritocracy, where, proportionally, any given segment of society is equally well represented in the political process, in material goods, in access to services.    

Society ought not to “pay” for anything that a) encourages people to irresponsible, b) that it’s not “responsible for.”  I.e., society shouldn’t be a safety-net for people screwing up because it penalizes those of us who haven’t screwed up and rewards those who do; that's fundamentally unfair.  People should lie in the beds that they make.  If individuals or churches want to help out with charity, that’s just fine (noble actually) – we certainly shouldn’t hinder this as we don't want to be mean, just fair.

If every individual were to change their behavior for the better (simply stop doing drugs and get jobs) society would radically improve, overnight.

We know this is not happening because affirmative action programs carve out a large chunk of resources for minorities to use.  In fact, in some cases it’s an advantage to be a minority since spots are put aside for them.

Again, this rests on the level playing field idea.  But given the fact that minorities are often not represented in the political system, and that there’s systemic stratification keeping people largely where their families are, it seems wrong to view what we have as a meritocracy, which is the only possible justification for those statements above.

To put it another way, if a society said, “We’re going to effectively relegate a certain percentage of our populace to poverty by denying the poor access to equal (or hell, just empowering) education, capital, and imposing additional costs on them (say, sucking up time with inefficient public transportation, or locating affordable housing a great distance from the desirable and concentrated jobs),” well, we have to then ask – is it “fair” to impose additional costs, to say, “well, even though we’ve done all this, we’re still kind of embarrassed to see “your kind” congregating in the public places in our nation – and we’d like to now criminalize loitering, pan-handling, homelessness, etc.”  I mean, what’s the message here?   

Tie that into the democratic/political problem above - suppose that the majority thinks that the homeless ought to be excluded from one place, then another, then another.  It's not like the interest of the minority (homeless) is going to enter into the political debate in a significant way, unless they're championed by someone. 

Law:

Social problems are different from legal problems – this rests on the idea that the law is something that most people don’t have to deal with on a daily basis.  One would only consult a (very expensive) lawyer in the face of extreme misfortune (blind fate lands you in a car wreck, etc.)

The law is simply the “neutral arbiter” of the game of life, interested in making things fair and correcting “gross fouls” – like those overt acts of racism.  It’s what makes the playing ground neutral, and what allows those disciplined individuals to succeed.

Well, this basically cuts to what I’m doing here at GULC.  The strong prey on the weak, someone always feels entitled to grab more, to dismiss the weak for being weak.  See above.

The law often simply keeps the non-neutral playing field as it is. Meaning the law reinforces that tilt both by overt rulings and by presuming (promulgating) that it’s simply being fair, that this is simply “the way things are.” 

So, for example, if the law decides that sexual harassment is not a crime (i.e., you can't sue someone for pawing at your genitals in exchange for a favorable job review), it implicitly prevents individuals from taking action on their own - you wouldn't be able to bad mouth (slander) the individual who did such a thing to you, nor could you hit them (battery), and they could just fire you anyway (employment at will) no matter how many years you put into the company.  For straight men who are having problems with this, and other concepts like a "hostile work environment," imagine your boss is a lecherous homosexual with a few open sores on his lips and a penchant for backing you into a corner and talking about dildos. 

This kind of "the law is going to privilege something or not" argument runs through everything.  So, for a more subtle example, if you're under-resourced, you can't take those resources, or force someone to give them to you, or strike out on your own and farm some land somewhere. It seems so obvious that we don't think of such things. 

If, as MacDonald argues, one wonders why train commuters should have less choice about sharing space with the “homeless,” it should be obvious that she's already missing the point - that train commuters have an impact on the political process that the homeless (sans representation) do not.  Train commuters might well support, or remain silent on the issue of homeless people spending rainy afternoons in Union Station - they might even approve, either in an out of mind out of sight way, or because they're miserable human beings who want to exclude those not like them and not be reminded of the realities of the society they live in. 

Or, in other words, assuming such neutral (but effectively) anti-homeless laws are passed, it's not in that Democratic "we all vote and debate" paradigm. 

Nor is it made in a society where those homeless people all had "an equal chance" to "excel" or what not. 

It's made in a society where by design (conscious or not) we choose to have a certain amount of homeless by not a) providing even educational and economic chances, b) accessible medical (physical and mental) treatment to all, c) distributing our resources to make sure everyone has a home. 

(So, to tie this back to MacDonald's screed - she's assuming a kind of America that only exists on paper, not in reality.  If that America existed, her arguments might make more sense - as our country exists today, they don't.  Although I agree with her that there is a marginal class of people who need legal services and advice which do not receive them - and it would benefit our society if they did.)

More, perhaps, later.

Hmm.  As if my coffee wasn’t acidic enough, I was referred to this article by AI.  It’s remarkable in that it contains (amid the carefully placed misstatements, spleen and non sequitors) a veritable smörgåsbord of both “conservative thought” and cherry-picked premises that underlie and justify conservative thought.  It’s really a wonderful example. Instead of launching into a critique of the article, I thought I’d talk a bit about how my perceptions of society have changed over time. Hopefully, readers might find something akin in their own thought, or, better, challenge their own conceptions of things.   

I think back to when I was 18.  Like many Americans, while I wasn’t a blind patriot, and while I’ve been on the left side of the ideological spectrum out of a basic humanistic impulse, I never really had the tools to concretely articulate my problems with the legal and social structure of the country.  However, even though I strongly felt that an argument which ultimately left the poor and mentally ill to starve on the street was in some great measure obviously wrong, and diminished our shared humanity, I still held certain premises that made it difficult for me to square what I thought ought to happen with the bedrock vision of what America is and how things work.  I think these premises often interfere with political debate, insofar as they tend to shift entire debates “to the right.”

I think my time at GULC has helped me gain a better vocabulary, and certainly a different perspective on issues.  Granted the perspective articulated by some of my professors may not always closely align with my *own* views, but it’s helped (forced) me to articulate some of mine in ways I ordinarily wouldn’t. 

Like the poetics posts, I’ll try to keep my terms general, non-technical, probably (hopefully) entirely remedial for many law school peeps.  But, again, hopefully a good overview for those who might be interested in such, say, a cousin of mine who is 18.

**
So – a kind of “common-sensical” mindset:

Politics:

Democracy (rather than "judicial activism") is the most equitable way to solve society's ills.  It’s simply fair.  We all think and vote and the best arguments “win.”  If you don’t win you ought to be graceful and “support” the country in that you don’t try to undermine the winners.

In America, there are two basic wings, the left and the right.  To find a center point on an issue, all you have to do was look at the common ground between the two. 

Society:

Racism is an overt “state of mind” existing in one individual that results in discrete “actions” – basically racism was a "bad thing" that someone did to a minority based on the minority’s race.  For example, a mortgage officer might deny an applicant only because they were black. 

This kind of prejudice is played out in the exact same way for different minorities, or, if you will, people who possess different "undesired" characteristics – their religion, race, ethnicity, physical appearance, handicaps, age – you name it. But it always follows the pattern above - one uneducated or jerk individual with a problem does something bad.

Things really have changed since the 1960s.  There’s not much racism or sexism any more.  I mean, when was the last time you heard of someone getting fired just because of their race?

There’s a level-playing field – the idea that, absent any of the impediments described above (racism, ageism, etc.), one could do nearly anything one wanted to.  This was borne up by the many individual examples of people who had “made it” – i.e., climbed the class/economic/educational ladders.  (Note the vertical metaphor).  These individuals seemed to be personally responsible – they took charge of their lives on some level.  There’s also a cut-off point between the haves and have-nots (basically, once you’re over the poverty line you ought to be able to do things like put your kids through college if you’re thrifty and responsible enough)

Society ought not to “pay” for anything that a) encourages people to irresponsible, b) that it’s not “responsible for.”  I.e., society shouldn’t be a safety-net for people screwing up because it penalizes those of us who haven’t screwed up and rewards those who do; that's fundamentally unfair.  People should lie in the beds that they make.  If individuals or churches want to help out with charity, that’s just fine (noble actually) – we certainly shouldn’t hinder this as we don't want to be mean, just fair.

If every individual were to change their behavior for the better (simply stop doing drugs and get jobs) society would radically improve, overnight.

We know this is not happening because affirmative action programs carve out a large chunk of resources for minorities to use.  In fact, in some cases it’s an advantage to be a minority since spots are put aside for them.

Law:

Social problems are different from legal problems – this rests on the idea that the law is something that most people don’t have to deal with on a daily basis.  One would only consult a (very expensive) lawyer in the face of extreme misfortune (blind fate lands you in a car wreck, etc.)

The law is simply the “neutral arbiter” of the game of life, interested in making things fair and correcting “gross fouls” – like those overt acts of racism.  It’s what makes the playing ground neutral, and what allows those disciplined individuals to succeed.

**

OK – I admit I’m being a bit disingenuous.  I didn’t really believe all those things, even when I was 18.  My experiences argued against them in ways both subtle and profound.  However, they were hard to dismiss.  I mean, the country did seem, to an extent to be progressing – cleaner environment, less racism (of the overt kind), easier access to material goods, and many other positive examples of things “moving forward” toward a more humanistic and equitable society.  Sure, we had the Regan/Bush years (today, Clinton seems like a small island) but things really did seem to be better than they were in the 1930s, 40s, 50s, etc. 

Not only were they hard to dismiss on a “nagging doubt” level (for they just seem to be more or less fair, – don’t they?), but these ideas frequently came up in political rhetoric and discourse, sometimes overtly, sometimes as assumptions in the background.  They seemed part of the landscape, part of the dialog about who we were and what was going on.   And for that reason alone, their pervasive “there-ness,” seemed hard to dismiss.

**

There are many sophisticated critiques of that mindset that I’ve rather lazily sketched above, but I’m going to offer an equally lazy sketch

So - to offer a slightly different view to the above:

Politics:

Democracy (rather than "judicial activism") is the most equitable way to solve society's ills.  It’s simply fair.  We all think and vote and the best arguments “win.”  If you don’t win you ought to be graceful and “support” the country in that you don’t try to undermine the winners.

Our democratic process is a actually a winner-take-all republican system.  That means we elect representatives to make decisions for us, and while we might inform the decisions of those representatives through making our opinion known via polls, etc. we don’t vote directly on issues.

Some implications:
If there was a 5 or 10 or 20 percent minority (in a given voting district), that minority could unite on all issues and behind one candidate, wave all the banners they wanted to, and their candidate would *never* get elected if the majority held different points of view.  Hence the views of that minority could be courted by a political party, or they could be ignored by both parties (in a dual party system.)
When the minority is both physically or socially identifiable and isolated from the political system (think, for example, migrant Latino workers in a small southern town, a Jewish enclave in a city) the majority could easily become prejudiced against them and enact unfavorable laws, zoning, etc. against that minority. Or they could enact laws that seemed neutral, but in practice favored themselves at the expense of the minority. 

In America, there are two basic wings, the left and the right.  To find a center point on an issue, all you had to do was look at the common ground between the two. 

The above works in an ideological sense as well – excluding ideas (environmentalism).  Basically, the point is that not *all* ideas are heard, nor are *all* voices heard.  Often, elections can be won by only paying attention to the issues that the majority favor.  Everything else is off the radar.

Society:

Racism is an overt “state of mind” existing in one individual that results in discrete “actions” – basically racism was a "bad thing" that someone did to a minority based on the minority’s race.  For example, a mortgage officer might deny an applicant only because they were black. 

Racism can in fact be systemic.  That means we could envision it as a series of small bumps which add up to a rough ride.  Or we could view it as a cascade effect, where one half-step back and another and another add up to being severely disadvantaged in some ways.  This results in their being not one “equal” field where we only have to look out for “bad” individuals taking a swipe at someone for overtly prejudicial reasons.

For example, it may be that the mortgage officer in the above example would be dealing with a black would-be home owner who went to schools that have a slightly worse reputation than local majority-white schools, and/or that this would-be home owner was then able to only secure employment (add college in there or not) at a slightly lower wage than a white contemporary that went to a better school – on paper they’re just going to be a slightly worse risk than the “comparable” white candidate, and they "happen" to be black. 

Personally, I’ve seen this kind of thing happen often – insurance rates in particular are good examples of “neutral” processes that systemically disfavor certain communities and provide another bump in the road (how much harder is it for someone in a high-crime/low-income area to beautify their house, when their marginal income is sucked up in keeping their car on the road). 

There’s also huge social dimensions to racism – who you go to church with, whose kids you want socializing with your kids, etc.  But that’s an immense and broad force I’ll leave for another day.  (I feel like I’ve only addressed the path of a single pebble in an avalanche - in fact it makes me feel the whole post is just missing the point, but you have to start somewhere).

This kind of prejudice is played out in the exact same way for different minorities, or, if you will, people who possess different "undesired" characteristics – their religion, race, ethnicity, physical appearance, handicaps, age – you name it.  But it always follows the pattern above - one uneducated or jerk individual with a problem does something bad.

You can transplant the systemic argument to any other characteristic which is undesirable by the majority.  Although no one will say to you that they’re not hiring you for an entry level position when you’re 50, it’s still *awfully* hard to get one.  Although its not overtly *because* your a woman that you, like the vast majority of women in the country, are, on average, earning less than your peers.  Not a level playing field. 

Things really have changed since the 1960s.  There’s not much racism or sexism any more.  I mean, when was the last time you heard of someone getting fired just because of their race?  There’s a level-playing field – the idea that, absent any of the impediments described above (racism, ageism, etc.), one could do nearly anything one wanted to.  This was borne up by the many individual examples of people who had “made it” – i.e., climbed the class/economic/educational ladders.  (Note the vertical metaphor). These individuals seemed to be personally responsible – they took charge of their lives on some level.  There’s also a cut-off point between the haves and have-nots (basically, once you’re over the poverty line you ought to be able to do things like put your kids through college if you’re thrifty and responsible enough)

Again, racism, sexism, any of the prejudicial –isms is not best characterized by someone on the street corner, shouting epitaphs. Instead it’s found in the patterns of what actually happens - the basic facts that minorities more often go to substandard schools (as compared to majority schools), then have a lower proportional college attendance, prestigious job placement, access to medical care, etc.  Housing.  Cars.  Cultural and social mobility.  You name it. 

Look at it this way, from a straight up "class" perspective – your parents have a certain income, so they live in the best neighborhood they can afford.  You attend a not-so-great school, and do OK.  Sure, you wish you paid attention a bit more, but you were a teen-ager for chirst’s sake, and you kept your nose clean and did reasonably well. You apply to the best college you can get into, which is a not-so-great school; what with tuition costs and the moderate loan aid you receive - there's simply no place for that additional money to come from.  You don’t even apply to a big-name school (where would the money come from?)   Which lands you a not-so-great job, post-graduation.  Which means you can get a house in the same kind of neighborhood your parents got.  You’re kind of “capped” at every level, even though you might be a straight shooter and a hard worker and fully capable of doing well at a better college/job. 

Now switch that to someone whose parents have resources – the ability to send you to private schools, to let you take time off and get your head together, to let you socialize and associate with people whose social patterns occupy the upper echelons of society, to pay the premium to get you into a college with a “name,” which lands you a better job, higher up the “ladder,” regardless of how well you did there.

Those are systemic problems – the playing field is not level (and we’re not even getting into social prejudices, or the fact that due to a complex interchange of many “small bumps,” the under-resourced are disproportionately minorities).  Further, programs that try to address those problems by opening up universities and institutions to the under-resourced are often attacked (ironically) for tilting the playing field.

Now I’m not saying things haven’t improved in many areas – clearly they have if we look at individual examples.  But if we look at the broad spread, the country is far from a meritocracy, where, proportionally, any given segment of society is equally well represented in the political process, in material goods, in access to services.    

Society ought not to “pay” for anything that a) encourages people to irresponsible, b) that it’s not “responsible for.”  I.e., society shouldn’t be a safety-net for people screwing up because it penalizes those of us who haven’t screwed up and rewards those who do; that's fundamentally unfair.  People should lie in the beds that they make.  If individuals or churches want to help out with charity, that’s just fine (noble actually) – we certainly shouldn’t hinder this as we don't want to be mean, just fair.

If every individual were to change their behavior for the better (simply stop doing drugs and get jobs) society would radically improve, overnight.

We know this is not happening because affirmative action programs carve out a large chunk of resources for minorities to use.  In fact, in some cases it’s an advantage to be a minority since spots are put aside for them.

Again, this rests on the level playing field idea.  But given the fact that minorities are often not represented in the political system, and that there’s systemic stratification keeping people largely where their families are, it seems wrong to view what we have as a meritocracy, which is the only possible justification for those statements above.

To put it another way, if a society said, “We’re going to effectively relegate a certain percentage of our populace to poverty by denying the poor access to equal (or hell, just empowering) education, capital, and imposing additional costs on them (say, sucking up time with inefficient public transportation, or locating affordable housing a great distance from the desirable and concentrated jobs),” well, we have to then ask – is it “fair” to impose additional costs, to say, “well, even though we’ve done all this, we’re still kind of embarrassed to see “your kind” congregating in the public places in our nation – and we’d like to now criminalize loitering, pan-handling, homelessness, etc.”  I mean, what’s the message here?   

Tie that into the democratic/political problem above - suppose that the majority thinks that the homeless ought to be excluded from one place, then another, then another.  It's not like the interest of the minority (homeless) is going to enter into the political debate in a significant way, unless they're championed by someone. 

Law:

Social problems are different from legal problems – this rests on the idea that the law is something that most people don’t have to deal with on a daily basis.  One would only consult a (very expensive) lawyer in the face of extreme misfortune (blind fate lands you in a car wreck, etc.)

The law is simply the “neutral arbiter” of the game of life, interested in making things fair and correcting “gross fouls” – like those overt acts of racism.  It’s what makes the playing ground neutral, and what allows those disciplined individuals to succeed.

Well, this basically cuts to what I’m doing here at GULC.  The strong prey on the weak, someone always feels entitled to grab more, to dismiss the weak for being weak.  See above.

The law often simply keeps the non-neutral playing field as it is. Meaning the law reinforces that tilt both by overt rulings and by presuming (promulgating) that it’s simply being fair, that this is simply “the way things are.” 

So, for example, if the law decides that sexual harassment is not a crime (i.e., you can't sue someone for pawing at your genitals in exchange for a favorable job review), it implicitly prevents individuals from taking action on their own - you wouldn't be able to bad mouth (slander) the individual who did such a thing to you, nor could you hit them (battery), and they could just fire you anyway (employment at will) no matter how many years you put into the company.  For straight men who are having problems with this, and other concepts like a "hostile work environment," imagine your boss is a lecherous homosexual with a few open sores on his lips and a penchant for backing you into a corner and talking about dildos. 

This kind of "the law is going to privilege something or not" argument runs through everything.  So, for a more subtle example, if you're under-resourced, you can't take those resources, or force someone to give them to you, or strike out on your own and farm some land somewhere. It seems so obvious that we don't think of such things. 

If, as MacDonald argues, one wonders why train commuters should have less choice about sharing space with the “homeless,” it should be obvious that she's already missing the point - that train commuters have an impact on the political process that the homeless (sans representation) do not.  Train commuters might well support, or remain silent on the issue of homeless people spending rainy afternoons in Union Station - they might even approve, either in an out of mind out of sight way, or because they're miserable human beings who want to exclude those not like them and not be reminded of the realities of the society they live in. 

Or, in other words, assuming such neutral (but effectively) anti-homeless laws are passed, it's not in that Democratic "we all vote and debate" paradigm. 

Nor is it made in a society where those homeless people all had "an equal chance" to "excel" or what not. 

It's made in a society where by design (conscious or not) we choose to have a certain amount of homeless by not a) providing even educational and economic chances, b) accessible medical (physical and mental) treatment to all, c) distributing our resources to make sure everyone has a home. 

(So, to tie this back to MacDonald's screed - she's assuming a kind of America that only exists on paper, not in reality.  If that America existed, her arguments might make more sense - as our country exists today, they don't.  Although I agree with her that there is a marginal class of people who need legal services and advice which do not receive them - and it would benefit our society if they did.)

More, perhaps, later.