Banner graphic for Studies in the history of science, technology & culture
Your support enables us to further develop this unique collection of scholarly resources: Donate to!

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.

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.
   Hiltzik documents yet another example “of the unintended consequences of inattentive lawmaking” in California — in this case, 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.”

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.

And there is ongoing controversy over yet another flawed state law, this one proposed May–June 2017, and 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 is now facing 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 recommends 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 is $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)


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).
   NEW  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!


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 election. So what is it? CALmatters health reporter Elizabeth Aguilera answers your questions.”


There is more on California Senate Bill 562 (the single-payer initiative) 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).
   Of note, Kevin de León’s use of mixed metaphors (from football and the culinary arts) to describe the legislative process is revealing. 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.
   Compare incumbent Dianne Feinstein’s old-fashioned approach to legislating, exemplified in the Federal Assault Weapons Ban, which became law in 1994 and expired in 2004. From the edited transcript of Feinstein’s interview, as printed in the 5/6/2018 issue of the San Diego Union-Tribune:
   “[Q:] We’ve talked about guns. Is there any hope for gun legislation [on] bump stocks, assault ban, high-capacity magazines, anything?
   “[A:] Well, our assault weapons ... the new bill ... What the bill does is it bans the manufacture, sale and transfer of 205 different types of assault weapons and it exempts 2,250 rifle, shotguns and other weapons that aren’t. It does ban bump stocks and it does ban clips, drums or strips of more than 10 bullets. We have 29 co-sponsors, the problem is they’re all Democrat and that’s a hard thing.   ¶   Interestingly enough, the NRA never brought a case against the bill I did in ’94. It lasted from ’94 to 2004. Never a lawsuit and there’s a reason, it wouldn’t have won and they won’t win here either.” (B8)
   Legislation able to withstand an NRA challenge under the Second Amendment is the antithesis of the “uncooked” stew of bills emanating these days from Sacramento.


NEW  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.


NEW  UPDATE: The San Diego Union-Tribune Editorial Board has again interviewed California’s top two candidates running for U.S. Senate:
   1. Q&A with incumbent U.S. Senator Dianne Feinstein, a former mayor of San Francisco: “Everybody Belongs in Big Tent Party” (San Diego Union-Tribune, 9/16/2018, pp. B6 and B8).
   2. Q&A with challenger California state Senator Kevin de León (D-Los Angeles), the former Senate president pro tempore: “State Needs Bold New Voice in D.C.” (San Diego Union-Tribune, 9/16/2018, pp. B6 and B8).

Yet another proposed state law — Senate Bill 827, written by state Sen. Scott Wiener (D-San Francisco) — has 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 will 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.


NEW  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)


NEW  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)


NEW  The whole debate over NIMBYs and YIMBYs and race and gentrification — and the power struggles over local vs. state/federal control of land and zoning and development — takes 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.


NEW  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 (spec., 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)
   NEW  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)

NEW  And the most recent “uncooked” legislation to be foisted on California’s citizenry: 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 e-column, “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?

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.)

David Dayen on the California state Legislature’s frenetic final week of its 2017 session, before adjourning on 15 September 2017, when I was still waiting to hear back from Senator Toni Atkins (answering my correspondence dated 2/15/2017 and 8/20/2017).
   Dayen’s op-ed, “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 — 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 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)
   We’re not. Proposition 54, which passed with 64.3% of the vote (11/8/2016 election), was an opening act of resistance. As summarized for voters by the California state Attorney General, Proposition 54:
   • Prohibits Legislature from passing any bill unless it has been in print and published on the Internet for at least 72 hours before the vote, except in cases of public emergency.
   • Requires the Legislature to make audiovisual recordings of all its proceedings, except closed session proceedings, and post them on the Internet [within 24 hours, with videos available for download for at least 20 years].
   • Authorizes any person to record legislative proceedings by audio or video means, except closed session proceedings.
   • Allows recordings of legislative proceedings to be used for any legitimate purpose, without payment of any fee to the State. (Official Voter Information Guide, p. 36)
   And Prop. 54 has already had an impact: “overall the new law has brought more transparency to the lawmaking process. But ... there remain ways to obfuscate.” (Laurel Rosenhall, “What a Difference Three Days Makes: How voters shook up California’s Legislature,” posted to the CALmatters website, 9/20/2017)

Those of us interested in still more transparency & a say for constituents will benefit from learning about another trick of the trade in Sacramento: “The Suspense Files: California bills vanish almost without a trace,” by Laurel Rosenhall (posted to the CALmatters website, 9/6/2017). Rosenhall here documents 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.)

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)

John Myers re. California “Assembly Expands Cap on Legislation” (Los Angeles Times, 11 December 2016, p. B3).
   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 — new and returning members of the California Assembly have been given a 25% increase in the limit placed on the number of bills each Assembly member is allowed to write. On 4 December 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.” (J. Myers, 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)

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 new 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.

Wikipedia page re. the historical controversy over enclosure.

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).

NEW  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)


NEW  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)


NEW  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.”

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!”).


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.)


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)


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)


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)


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)

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”).

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.

In its June primaries (election day is 6/12/2018), Maine will become the 1st 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”)


NEW  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.

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)


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)

NEW  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)

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.

NOTA BENE  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.)

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....


NEW  UPDATE: 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)

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 now 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.

A good analysis of the 2014 Princeton study of political influence, by Martin Gilens and Benjamin I. Page, was posted to the website for The New Yorker on 4/18/2014: “Is America an Oligarchy?” by John Cassidy.
   Cassidy points out that, to their credit, Gilens and Page “acknowledge another possible objection to their conclusions: ‘Average citizens are inattentive to politics and ignorant about public policy; why should we worry if their poorly informed preferences do not influence policy making? Perhaps economic elites and interest group leaders enjoy greater policy expertise than the average citizen does. Perhaps they know better which policies will benefit everyone, and perhaps they seek the common good, rather than selfish ends, when deciding which policies to support… But we tend to doubt it.’” Cassidy does, too.
   “There can be no doubt that economic élites have a disproportionate influence in Washington, or that their views and interests distort policy in ways that don’t necessarily benefit the majority: the politicians all know this, and we know it, too. The only debate is about how far this process has gone, and whether we should refer to it as oligarchy or as something else.” (J. Cassidy, 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.

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)


NEW  As of 8/22/2018, there are 23 “hover” boxes used on this Web page.
   To learn more about DHTML hover-box technology and possible display problems with it (especially if you are using Google Chrome or Opera for Web browsing and/or viewing this Web page on a mobile device), visit She-philosopher.​com’s “A Note on Site Design” page.
   To view all 23 of this Web page’s hover notes in a second-window aside (where they are clustered together like end-notes), click/tap here.

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!
   To ensure that you’re viewing She-philosopher.​com’s most recently-updated content (both here and elsewhere at the website), don’t forget to use your browser’s Reload current page button — typically, an icon featuring a broken circle, with arrowhead on one end. For some computers, the keyboard shortcuts, Ctrl+R and F5 or Command-R, will also work; or you can right-click for a context-sensitive menu with the Reload this page button/command.
   Refreshing a page is especially important if you find yourself visiting the same Web page more than once within a relatively short time frame. I may have made modifications to the page in the interim, and you won’t always know this unless you force your browser to access the server (rather than your computer’s cache) to retrieve the requested Web page.

go to TOP of page

First Published:  18 September 2016
Revised (substantive):  21 October 2018

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

N O T E :  Brian Maienschein (Assemblymember for California’s 77th District) is up for re-election again on 6 November 2018. Because I’m so frustrated after 3 years of fake representation in Sacramento, I will not be voting for Maienschein, and I urge others in the 77th State Assembly District not to do so either. Please don’t reward incompetence and unrepresentative government by giving Maienschein yet another term in office. Join me in mounting a voter insurgency instead!
   Those of you who can’t bring yourselves to vote for Maienschein’s opponent (Democrat and small businesswoman Sunday Gover) can always write in a protest candidate. I admit: a protest vote is not the ideal solution, especially if you’re worried about the Democrats regaining their supermajority in the 80-member California assembly (on which, see Dan Walters’ e-column for 7/11/2018 that may, or may not, reassure you ;-). But it is the principled stance, and the right action to take, if you care about the crisis of “representational integrity” that theatens our democracy.
   As for a silver lining: think of your throw-away write-in vote as an opportunity to get creative with your dissent. Seize the moment! and make a statement with your choice of write-in candidate. You can even have some fun with this: e.g., make an expressive yard sign for your dream/mock candidate, making your displeasure with your lack of choices known, and take on the moneyed establishment right where the voters live!
NEW  ... Except that it turns out we can’t! Californians don’t get to vote for “none of the above” in November 2018, as reported by John Myers in “No Write-Ins on Fall Ballot Is No Accident” (Los Angeles Times, 8/26/2018, p. B3), retitled “When California Lawmakers Removed Write-In Candidates from State and Congressional Ballots, It Wasn’t By Accident” for online posting.
   Myers explains here that, 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.” In effect, this takes away voters’ last avenue for independent electoral action and dissent, which I believe is wrong, and possibly even unconstitutional. But it’s the law in California, and there’s nothing we can do about it before the November 2018 election.
   In sum: any of you planning to vote for a write-in candidate of your 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!

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

N O T E :  There are 23 “hover” boxes used on this Web page. To learn more about DHTML hover-box technology and possible display problems with it (especially if you are using Google Chrome or Opera for Web browsing and/or viewing this Web page on a mobile device), visit’s “A Note on Site Design” page. To view all 23 of this Web page’s hover notes in a second-window aside (where they are clustered together like end-notes), click/tap here.

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.
     NEW  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 centuries, 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” (aka 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.

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, 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’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 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:

(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%
(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?

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)

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)

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):

graphic marking new contentAnd 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.”

graphic marking new contentAnd 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 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’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 new 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:

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  graphic marking new content

The official 5 June 2018 Primary Election results for my representative in the California state Assembly are reported below::

(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 have already summarized the message of mailer No. 1 on this website’s home page. Here, I want to take a detailed look at 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)  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).

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.

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 9/27/2018 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)


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.

And I feel just as strongly about my other fake representative in Sacramento, Toni Atkins of the 39th Senate District. Indeed, Atkins 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.

As of the posting of this new section on fake representation (first issued 7/25/2018), Atkins has yet to answer a simple yes/no question posed in two different letters 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 with my two Open Letters to California legislators). I continue to e-mail Atkins’ office, hoping that the new president pro tempore of the California state senate will be a model (not another fake) representative — that Atkins will show real courage, buck the present corrupt system, and opt for accountability and open communication, dealing honestly with her constituents (especially one who has consistently supported her in the past, and is bitterly disappointed by her senate performance thus far). 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.

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. To simply ignore me, as Atkins continues to do, is unconscionable.

    graphic marking new content


N O T E :  On Saturday, 11 August 2018, I finally received a response from Toni Atkins, who has still not answered my simple yes/no question: will you commit to fixing California’s flawed “Good Neighbor Fence Act of 2013” — yes? or no?
   What she did, instead, was pursue much the same course of action 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’ assessment that my issues are properly “covered under the City of San Diego’s code compliance ordinances” rather than Cal. Civ. Code § 841, and I continue to push my case for state-level legislative reform. I have sent Senator Atkins a 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 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” mess.

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.

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 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)

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.)

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

go to TOP of page

up a level: Table of Contents page for’s STUDIES section

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) ::

a comma in the Second Amendment — The Second Amendment (adopted on 15 December 1791) to the Constitution of the United States of America reads in full: “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.” ::

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) ::