Saturday, August 21, 2010

Net Neutrality - Casting A Wide Regulatory Net To Neuter Us All - Part I

Looking beneath the transparency (Cross posted at 24th State)

Well... good news ladies and gents out there in the free and open skies of internet land, public spirited folks from the IT world, are looking out for bad deed doers and speaking up for your interests. There are such keen eyes as these from a vigilant tech writer for PC Magazine (never realized how well named it was before) who has expressed his dismay at the regulatory process... not over the interference of government into the free flow of information across the internet... no, no... no. He has seen reports of something 'fishy' in the land of regulatory purity, and is shocked at what he's found.

Here, have a look:

"The end of the FCC negotiations is actually good news. What the FCC should do is execute its duties to oversee the industry without apologizing or asking permission. The FCC negotiations sought to compromise with the industry--the very nature of which implies that the agency would be making consessions in order to appease companies like Verizon and Comcast.


Negotiation and compromise are cornerstones of the political process, but they should be conducted openly and involve all parties. The problem with the FCC efforts was that the closed-door meetings excluded most of the affected parties from the process."


To useful ... uhm... pundits... like our PC tech writer here, they feel that government regulation of industry is a good thing, that 'Net Neutrality' will be a benefit to all Americans, and they are only upset that the process hasn't had more transparency involved in it. I'd like to look at that here, and go a bit beyond that 'transparency' to get a wider perspective than their little government issue world viewer window might otherwise afford us. But first, let's try looking through only that itty bitty viewer they use, and see what we can see.

I know I see one thing here that I particularly enjoy, and that's the line "should be conducted openly and involve all parties."... do you suppose that this tech writer for PC Magazine has ever ventured out and onto the internet? I don't know how many providers there are out there, my quick Googling popped up around a hundred or so big and small, providers, still, I do believe it might be just a few more than can conveniently cozy up around a conference table and hash out some regulations that will be 'fair' to all parties. And while he's not alone in his concern for all us little people... what of the millions of users who will be affected and deprived of their ability to pay more, or less, to receive the service they most value? Should the choices of such little people stand in the way of the 'greater good' that can be served by giants like Google & Verizon who are, after all, just intent on 'doing good' unto us?

Google & Verizon are both quick to respond with something having the gist of 'We aren't going around Net Neutrality, we're for it! We're for fair and even distribution of bandwidth... enforced by the power of government regulations, as opposed to having to deal with other ISP's who won't let us do what we want, because they care about serving their differing and annoying customers choices & preference...', well... they leave that last part off of course, but even so, with all that fairness on their minds, what is it that you suppose they are so carefully negotiating about?

After all, according to Google spokesmen there's nothing to be concerned about

""Google has been the leading corporate voice on the issue of network neutrality over the past five years. No other company is working as tirelessly for an open Internet," counsel Richard Whitt argued in a fact sheet on the issue. "We're not saying this solution is perfect, but we believe that [this] proposal ... is preferable to no protection at all."


Whitt pointed out that there is currently no method for the federal government to enforce equal access principles. His assertion does have basis in the facts: following the Comcast decision, it is now case law that the FCC does not have regulatory authority over broadband access under current rules.

Google and Verizon's proposal would for the first time give the FCC a legal basis to ensure net neutrality principles, and Whitt noted that Verizon had voluntarily already agreed to abide by the requirements set forth even without legislative action that would make it mandatory.
Now that is something which is really deserving of some of your own mental bandwidth, "...for the first time give the FCC a legal basis to ensure net neutrality principles...". Just bookmark that in your mind, and we'll return to it in a bit.

Mr. Googleman continues:
A good portion of the criticism has come on the issue of wireless traffic, and Whitt admitted that in order to advance the deal, it agreed to not ask for net neutrality principles on that traffic. He argued that due to bandwidth constraints, it is more necessary to manage traffic actively on wireless connections.

"This is a policy proposal -- not a business deal," he wrote. "Of course, Google has a close business relationship with Verizon, but ultimately this proposal has nothing to do with Android."

Regardless of what happens with net neutrality, in the end it will come down to action in Washington. Whitt said that it will ultimately be in the hands of legislators and regulators to do what they need to do in the space to ensure an open Internet.

"We're not so presumptuous to think that any two businesses could -- or should -- decide the future of this issue," he concluded. "We're simply trying to offer a proposal to help resolve a debate which has largely stagnated after five years."
"
Hmmm... that "...will ultimately be in the hands of legislators and regulators to do what they need to do..." Knowing a little bit about the tech world, that doesn't seem like such a good idea to me, just on a basis of functionality, not to mention showing a wee bit less concern for 'fairness' than seems the case of our public minded PC tech writer, who no doubt is only concerned about the plight of the little guy, and surely many people are concerned that all peoples should get their fair share of internet fairness... surely no one wants’ any iOliver Twist's coming round with their blackberries & begging "Please, sir, I want some more?"

But without questioning the goodness of our PC writers PC priorities, ask yourself something... when was the last time that you or your buddies were sitting around having an animated discussion slash argument about... properly allotting bandwidth between various ISP providers so that you could get your fair share of bandwidth?

Has that been a big flash-point in your home or favorite gathering spot recently? Are you or your friends deeply concerned about how bandwidth is allotted?

Is anyone you know confused about whether or not you can pay for greater crazy fast download speed if you want it... or not?

I'm betting the answer is mostly a big NO.

Do you think that the Federal Government has purposely taken the time out of the many issues facing them and demanding their attention, in order to arbitrate the fairness of how companies should negotiate their deals with each other? Do you think they are really deeply concerned about your ease of downloading iTunes?

Hopefully that's a no as well.

So what do you suppose might be going on here?

Hmm?

A Solution in search of a problem
If all you want to say is that 'everyone gets the same bandwidth ...' what's to quibble about in secret negotiations, let alone cause the secret negotiations to break down?

You needn't take that as an accusation of nefarious deeds being done, but hopefully it does make you at least a bit curious about what they are trying to do, which is, in typical proregressivist fashion, to plan out, from the top down, the 'perfect solution' (at least it's not a 'final solution'...) to plan out ahead of time (maybe even in 5-yr increments) how they can meet the 'fair needs' (as determined by them, not you) of what users (you) may require... without having to deal with any pesky issues - such as any of those users own preferences, wish's, judgments and choices... all those sorts of things the neanderthalic 'free market' considers so valuable.

So why is this such an issue? When you're looking for a little perspective on the days events, sometimes it helps to look back to the ODWG's (old dead white guys), and when you're looking for some perspective and insight on how people behave, respond and react in terms of pressure, politics and turmoil, one of the oldest of them, Thucydides is hard to beat, here's one almost selected at random, from the Melian dialog, where the Athenians who once prided themselves on being an exceptionally Just and successful society, the school of their world, now found themselves more concerned with using power to get what they wanted (ok, almost selected at random),:

  • "holding in view the real sentiments of us both; since you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must."

Just let that idea settle into your noggin... then maybe mix it in with Mr. Googleman's "...for the first time give the FCC a legal basis to ensure net neutrality principles..." and "...will ultimately be in the hands of legislators and regulators to do what they need to do...", let it stew a bit, see if you begin to get a handle on where your interests and preferences fit into that picture and we'll come back to it shortly. In the meantime, here's two more clues that don't seem to go together all that well, one from last month, about our ever thoughtful government seeking to expand broadband service to the wilds of Missouri, with our own Sen. Claire McCaskill, looking out for her peep's:

"At the meeting McCaskill, D-Mo., espoused the need for high speed broadband to rural America as an economic necessity. “Without fast speeds to the Internet, our commerce, our job creation in this country is going to continue to fall behind,” said McCaskill.

Chairman Genachowski spoke of the virtues of his Third Way proposal and how it would support rural broadband efforts.
"
Huh. Well that sounds all admirable and swell. But then there's this, from about four years ago:
Internet Neutrality: A Solution in Search of a Problem

"As the Senate holds hearings on net neutrality, it is important to avoid calls for new regulations or mandates that would impede broadband deployment in the United States. Net neutrality is a vaguely defined term that generally refers to access to the Internet, and the need to keep access open to all consumers. While this is an important question for consumers, new mandates on Internet access could reduce incentives to build new high-speed broadband networks or invest capital in innovative new technologies...

Dr. Wayne Brough, Chief Economist at FreedomWorks commented that, "Currently, the United States ranks 16th in the world when it comes to broadband deployment. Introducing new mandates or regulations on networks will only hamper deployment of new networks. We need to look to the future and unleash the innovation and technologies of the next century. To bring these technologies to consumers, we need to avoid unnecessary new mandates."
So while Claire's trying to be ever so helpful to Missourians, promoting the kindly and virtuous Genachowski's Third Way proposal (what does that mean, 'third way'? That's a really good question - you really should answer it, careful though, might prompt a few more questions), there are others who seem to be having the oh so startling thought that new Regulations, 'guidelines' and government interference might actually add costs and slow & even reduce the spread of broadband service throughout the wilds of Missouri, and elsewhere as well.

Here's something that's a little closer to the matter from the American Spectator, which might help shed a little more light and connect a few dots for us:

"In a statement, Free Press said: "We welcome the FCC's decision to end its backroom meetings. Phones have been ringing off the hook and e-mail inboxes overflowing at the FCC, as an outraged public learned about the closed-door deal-making and saw the biggest players trying to carve up the Internet for themselves. We're relieved to see that the FCC now apparently finds dangerous side deals from companies like Verizon and Google to be distasteful and unproductive."

"Verizon and Google to be distasteful and unproductive", yeah, now that sounds just like our friendly PC Tech Writer... very unpleased with backroom deal making and concerned with our fair servicing... but wait, there's more,

The only problem with that statement, it turns out, is that Free Press was part of those "backroom meetings" and at the time the FCC negotiations were canceled, Free Press officials were actually holding a private meeting with FCC Chairman Julius Genachowski in his office.

Free Press, which was founded by Marxist Robert McChesney, and is run by well-known political activist Josh Silver, is a founding member of the Open Internet Coalition. The OIC's executive director, Markham Erickson, had a seat at the table during every negotiating session held by the FCC. "
Ah. Sorta sounds like what's being said for the public consumption of the peep's, and for the useful idiots... er... pundits... like our buddie the PC Tech Writer, just might be a bit different than what's actually taking place behind closed doors, doesn't it? Seems like we're getting a bit more to the heart of the matter, or at least closer to the closed door of the back room where the deals are being made, and if history is any indicator of what's being cooked up (and it is), then you can bet your bottom dollar (while you still have one) that what it doesn't involve, is your well being or best interests.

Ladies and gents, the allotment of bandwidth, and determining whether Verizon or Comcast get's to handle more video across their lines, cable, wired or wireless, at their discretion and price points, is so far besides the point as to be left pointing right back at yourself.

The issue here is Power. And one of the most consequential uses of power in recent history.

Seriously
This isn't a new issue. It's not a new idea. It didn't arise with Verizon & Comcast. It didn't even arise with the Obamao administration.

Ed Morrissey of Hot Air noted:

"Genachowski needed an agreement that involved the private sector in order to give him and Congress political cover for a net-neutrality arrangement that leaves the FCC in charge of the Internet — and perhaps even content, or at least access to it. Without an industry consensus, Congress isn’t about to impose yet another big regulatory burden in a season where voters are already angry about government overreach. Genachowski will have to either wait for the lame-duck session or once again abuse the rule-making process, which the courts have already blocked once and Congress has demanded he stop doing."
What amounts of power and control do you think might accrue to government in general, to their agency in particular, and specifically to Mr. Genachowski and his 'Third Way' ideals, should they succeed in gaining control over the backbone of the internet? What other related efforts might such a thing lend a helping hand to in the future?

Politico notes:

"The Federal Communications Commission Thursday suspended its weeks-long series of talks with Internet providers on Net neutrality, dealing a blow to efforts to produce a deal that the agency could take to Congress.

The decision to cut off negotiations marks a major political setback for Chairman Julius Genachowski, whose office reached out to stakeholders six weeks ago to strike an agreement and avoid a public battle over rules that would treat all users’ Web traffic equally.

But the end to industry discussions — which a source close to the FCC talks blamed entirely on news that Google and Verizon separately sought some form of net neutrality agreement — could now force the FCC to take a more aggressive approach to solidifying its broadband authority.

FCC chief of staff Edward Lazarus stressed in a briefly worded statement that the agency has no plans to back down on Net neutrality, months after a federal court in a case involving Comcast essentially nullified much of the agency’s broadband authority.

Lazarus said the agency’s round of stakeholder meetings had not “generated a robust framework to preserve the openness and freedom of the Internet.” But he added that “all options remain on the table.”
"
Now would be a good time for you to get some perspective - go ahead and glance back up at ol' Thucydides' observation about those with power telling those without it what they're gonna do and like it, and see how well you think it jibes with "...the agency has no plans to back down on Net neutrality..."... are you beginning to get a better grasp of the larger picture? They are intent on passing this with or without law, with or without constitutionality, whether or not it expands or contracts broadband distribution, and whether it increases your service and satisfaction - or not. Feeling all nice and liberty-full now? Sounds more that just a little bit like Nancy Pelosi on health care:
“We’ll go through the gate. If the gate’s closed, we’ll go over the fence. If the fence is too high, we’ll pole vault in. If that doesn’t work, we’ll parachute in but we're going to get health care reform passed for the America people."
... and no doubt we'll just need to experience it as well, before we find out what's in it. Another thing to keep in mind here, especially in regards to our upcoming elections in November: Do you remember when we got Scott Brown elected and 'killed' OamaoCare?

Remember how well that worked? Yeah. Keep that in mind. Because two years ago I was thankful that that incarnation was 'defeated', I was commenting on a speech (here on YouTube, here in text) which Bill Moyers gave about how the government should take over... er... 'support' a 'free press' and impose Rep. Markey's earlier iteration of Net Neutrality, and make no mistake, the two very definitely go together, they are both rooted in the notion that you and I are incapable of making intelligent choices, that we are mindless slaves to slick marketing and unfair (meaning low) pricing. Moyers rails in the video at 6:10 into it,


" ...organizations whose reward comes not from helping fulfill the social compact embodied in the notion of “We, the people,” but from the manufacturing of news and information as profitable consumer commodities, rather than the means to empower morally responsible citizens."
And more so at 14:59 goes on about how private advertisers having the ability to sponsor points of view which they support, and making those available for people to listen to (or not) on something like YouTube,

... "Advertisers have already aggressively seized the new online world to go back into the programming business themselves, creating what’s called branded content. Imagine the Camel News Caravan revived, but this time online as a sponsored YouTube channel!"

What you should imagine instead, are people like Moyers denying them the ability to support and promote the ideas they believe in. He asks in a contemptuous manner,

"Already, newspapers and magazines, and soon television, are encouraged to sell keywords to advertisers in the online versions of stories. Can you imagine advertisers going for stories with keywords such as “healthcare reform,” “environmental degradation,” “Iraqi casualties,” “contracting fraud” or “K Street lobbyists”? I don’t think so."

He assumes not only that I, or others, wouldn't patronize such sites, but that I shouldn't be allowed to patronize such sites or others more in line with my interests, and that he, or other chosen ones, should have the power to limit and force me to view only what he sees as worthy keywords."
Moyers and his comrades who promote 'Net Neutrality' and 'FreePress', like to denigrate anything that is a commodity - ignoring the fact that a commodity is a product which people will pay their hard earned time and money for, and use - but they've got no compunctions against forcing those same people to pay, against their will, for another commodity, theirs, which those who are forced to watch it might feel to fall somewhere between uninteresting pap, and biased propaganda - as his show was - something which in fact people weren't willing to pay for, even when it was free.

What Moyer's wanted then, and those of like mind still want today, is the ability to remove the inconvenient truth of individual's own right to choose to not be bothered with watching the shows Moyer's demands that they watch. To do so, he wants to enlist the government to skew (at best) or outright control the market, in order to make the public 'morally responsible' in his opinion, and in that of those he chooses to approve of, who he refers to as "professional journalists trained at prestigious universities ". Moyers would like to advance the principles of life, liberty and the pursuit of happiness.. by forcing people to watch what he knows is best for them, and as an ardent supporter of 'Net Neutrality', he was very enthusiastic about how it could be used to aid in 'subsidizing' a 'free press'... at the price of a free press.

At about 6:45 in to the speech he notes a story he might also have remembered from his talks with Joseph Campbell,

"... Why a media anyway? I’m going to let an old Cherokee chief answer that. I heard this story a long time ago, growing up in Choctaw County in Oklahoma before we moved to Texas, of the tribal elder who was telling his grandson about the battle the old man was waging within himself. He said, "It is between two wolves, my son. One is an evil wolf: anger, envy, sorrow, greed, self-pity, guilt, resentment, lies, false pride, superiority and ego. The other is the good wolf: joy, peace, love, hope, serenity, humility, empathy, generosity, truth, compassion and faith.” The boy took this in for a few minutes and then said to his father—to his grandfather, “Which wolf won?” The old Cherokee replied simply, “The one I feed.” Democracy is that way. The wolf that wins is the one we feed. And media provides the fodder. .."
Yes, they one you feed. Pity he didn't pay more attention to how Campbell told those tales, because their points often have Rod Serling-like twists, where the person seeking to do good, is shocked to find that he has been promoting evil instead. What a shocker, eh? In truth, the wolf Moyers and his fellows are seeking to feed, is the state, strengthening its power to control what will, and will not be, heard, in the naive notion that you can 'solve' and 'fix' other (lesser) people to believe as 'those who know better and who aren't biased' do. What Moyer's and the proregressives in general just don't grasp, is that those who claim to know what others should do, are the most fearsome tyrants of all, knowing little about their fellows and even less about themselves.

At 11:52 he laments that the Bush administration (no this isn't Obamao or Robert Gibbs speaking, remember, this is from a few years ago) is giving the 'public airwaves' to nasty, greedy, miscommunicating telecom's,

"Even as we meet, the administration is pressing to give the conglomerates more control .... to awarding some of the most valuable remaining swaths of public airwaves to two of the largest telecommunications companies..."
Now, think about it, does anyone see that happening today? Is the Obamao administration divvying up public airwaves to the big bad telecoms? No? So then... why are they still pushing for the Net Neutrality act today, if the problem it was supposedly a solution for, is not a problem today? Looks like it is still just a solution in search of a problem.

At 12:20, Moyer's goes on with connecting his utopian dreams of a government controlled free press, with a government controlled free internet,

"‘Congressmen Ed Markey has introduced a bill to advance network neutrality' Moyers is fond of invoking the specter of Orwell’s 1984 and double-speak. Please, somebody, tell me what it is that cloaks itself under the name of 'network neutrality' in order to force private companies, telecoms, etc, to provide free access to their services, and force cable companies to provide programs which the Gov’t approves of and deems necessary? Thank God it was defeated yesterday.
Here's a bit of folk wisdom that I'd be ever so grateful for Moyers and all other do gooder's to take to heart, a quote usually attributed to George Washington, which if he didn't say it, he should have,

“Government is not reason, it is not eloquence — it is force! Like fire, it is a dangerous servant and a fearful master. Never for a moment should it be left to irresponsible action.”
A fearful master indeed... and a devilishly difficult one to keep down. I was thankful when 'Net Neutrality' was defeated several years ago. But it's back. 'Defeated' to leftists is not the transparent term it might be to the rest of us, it doesn't mean defeat to leftists, it means time to rejigger the wording, and then try to sneak it, or cram it, through yet again. They very much have contempt for their opponents - you and me - and they intend to take every opportunity they have to 'do good' unto us no matter what we might say in response.

This is plainly not about crafting a policy to solve a problem, this is not about making a more 'level playing field' for businesses to compete in. This is not about bringing broadband to rural Missouri or to any other wilderness. This is about gaining power over what you will be able to see and hear, and where and when you can see and hear it, if at all. It is about control of the voices in this nation who oppose what those in power are doing.

I was thrilled when it was defeated back then, and that it was defeated yet again. And yet again, we must defeat it again, and again, and again.

A lame duck congress is coming up... and those who favor neutering the 'net are prepped and ready to be filled with resentment and looking for payback. This November 2nd it is important that you get out and vote for those who will show some respect for your rights.

But while this election is exceedingly important, it is only a start, and if we want to actually 'fix' government, it's going to be a long term project. Talk to your friends, meet your neighbors, get the word out - and make a habit of it.

If we want to avoid being neutered and escape the net that's been cast over us, we've got a lot of unweaving to do.

What you need to keep in mind, is that Net Neutrality, and every other regulatory plan, is going to be aggressively sold to you as benefiting 'the greater good', that we shouldn't allow one business or another to 'overcharge' (absent will be any mention of those who would be charged less, but that is also neither here nor there) a helpless public.

But if you can manage to wipe all that opaque transparency out of your way, the true core of the issue is that if rights, your rights, are tentative things which must yield to whatever the latest hot-button issue that a slick politician succeeds in labeling as the new 'greater good', then you really have no Property Rights, and if that is the case, then you really cannot be said to have any Rights, whatsoever.

You might say that's a wild overstatement, but those who founded this nation would have disagreed with you, and I'll make the case for it in my next post, but in the meantime let me leave it on a brief mention of two important Supreme Court decisions.

The first, "Charles River Bridge v. Warren Bridge Company" was argued as a case which highlighted the importance of Property Rights by the great lawyer Daniel Webster - which he lost. After the decision against his case, he and other prominent lawyers were heard to say that 'That's the death of property rights', or as Chancellor Kent said in The New York Review, that
"A gathering gloom is cast over the future. We seem to have sunk suddenly below the horizon, to have lost the light of the sun."
I'll give you a hint - they were not concerned about their wallets. These were men who believed that property rights formed the very foundation of a republican government and in the view of Natural Law, were the political anchors of all of our individual rights.

If you disagree with that, then you likely agree with the view that our rights have an evolving nature, and as the needs of men change over time, so then we must adjust what are seen as rights, so that 'The Law' can uphold the needs of the 'greater good'. Such was the meaning of the decision against Webster's case, as delivered by Justice Taney when he said,

"While the rights of private property are sacredly guarded, we must not forget that the community also have rights, and that the happiness and wellbeing of every citizen depends on their faithful preservation."
, upholding the defense of the 'greater good' over the mere rights of individuals.

The other case I'd direct your attention to, was one that was decided some years later when that same Justice, Roger B. Taney, had become the Chief Justice of the Supreme Court, and that is the case of Dred Scott v. Sanford, where he made the argument, which men like Webster & Kent knew must come, that individual rights, all individual rights, must be secondary to the interests of the community and that of the state and the greater good - and that in such a view, slavery should be seen as a 'constitutional right' - the 'evolving nature of rights' had evolved to the point of justifying one man owning another.

If you oppose property rights, then you oppose the principle of all individual rights - Daniel Webster knew it, and so did Roger B. Taney.

Do you?

If you really want to change things, read the Constitution and discuss what it means with others, learn what our Founder's knew to be the vital nature and source of our rights, and why they must be defended in the details of property and contract. An excellent place to start is at The Founders Constitution, from the University of Chicago Press and the Liberty Fund. It goes through the Constitution, clause by clause with a collection of hyperlinks to the relevant material which the Founders had in mind during the constitutional debates on that clause, such as the Preamble. If you want to be able to meet the argument that 'Well, the 'general welfare clause' enables the government do whatever it wants to do' - that's the link to go to for your ammunition!

If this was only about 'Net Neutrality', I'd end this post here. But it's not, it is about extending the net over all that we know and knew... and it task's me... sorry, but the html has only begun to flow... Part II coming up soon.

Repeal. Reduce. Restore.

NOTE: A good post and set of resource links for learning about and battling Net Neutrality: The Right Needs to Wake up to Net Neutrality, on Gateway Pundit, by Warner Todd Huston.

8 comments:

Ex-Dissident said...

Van,
I agree wholeheartedly with you on the dangers of "Net Neutrality" and with your statements on government expansion. And yet, in my last 2 posts I've argued that the needs of the community may at times trample over property rights. That is the basis of my argument opposing the construction of the mosque at Ground Zero. Certainly when a nation is at war, it must be able to seize the property of those who are at war with that nation. People must have a right to protect their lives and their liberty against those who would seek to subvert the nation's laws.

Ex-Dissident said...

I should have finished my last sentence with: People must have a right to protect their lives and their liberty against those who subvert the nation's laws in order to slaughter and enslave the population.

Van said...

Ex-Dissident said "I've argued that the needs of the community may at times trample over property rights. That is the basis of my argument opposing the construction of the mosque at Ground Zero. "

I won't get into the wider aspects of our current 'war' - we've mucked that up so badly from almost day one (and 'day one' could easily be pushed back to the Eisenhower administration, but to keep this to a comment rather than a series of posts, I'll use day one to mean 9/11), I couldn't even begin to reply without spewing out 30,000 words just to get warmed up - I'll just say that we are in a war, a desperate one, and in the last decade none of our leadership has yet to even properly identify who and what we are at war with, and so it's not surprising that we are losing that war, no matter how many battles we might have won and are winning.

Van said...

Ex-D said "... in my last 2 posts I've argued that the needs of the community may at times trample over property rights."

I haven't had a chance to read yours yet, so I'll stick to what you've said here, and point out that there are a couple of problems with how you've put that.

Mainly, there is a difference between trampling over property rights (always bad), and upholding the real property rights which people have in their local community, from being defaced by social vandals. There is a reasonable expectation people have in their community - not at a representative extension, but at the direct participatory community level of the ward, assembly & town level. I think most of such legitimate extensions of property rights dissipate the more you are removed from direct contact, the more abstracted the distances and participatory levels you reach - even reaching upwards to a city level such real interests blur and it requires a lot grey areas and level of judgment calls, but larger more removed areas of participation such as a county or state, I think direct such expectations on particular use of property are illegitimate.

But at a neighborhood level for instance, if they've incorporated themselves (using the term very loosely here) in some fashion ranging from that of a subdivision to a collection of them, Ward, Assembly, etc; property is purchased with some known version of CCR's (conditions, covenants & restrictions) going into the purchase which are known to apply, and there is the knowledge that a governing board, elected from the residents and open to their participation in meetings, etc, can make decisions regarding any such property so that the purchase, use or even appearance of property which that group feels affects the reasonable expectations of their communities common interests, whether aesthetic (no zebra stripe & polka dot paint schemes for the front of your house, etc) or type of use the property will be put to (trying to build a strip club next to a school is probably not gonna go over well). They can also say (I think in the majority of the cases wrongly, but besides the point) they don't want businesses built among houses, etc.

When you purchase property in a community, you are in effect bringing that community in as silent partners with your ownership of that property - in most cases they will remain silent and maybe even forgotten, but you cannot flagrantly offend their interests and expect that they will not then make themselves heard.

Districts and Towns have a very legitimate right, based upon what the community has already long since established, as zoning control over what is allowable in their particular region - again, I think it is often unwisely used and decided, but the people in that area, and having the ability to directly voice their concerns, form associations for or against particular issues, they can directly make themselves be heard and have their say, and if they disagree so much with an issue, or a string of issues, they can pack up and move to a different district, town, etc. And also those various boards have a real duty to their community to recognize and reassess issues which spark unexpected (to them) concern and uproar from their constituents, or resign themselves.

(annoying blogger size break)

Van said...

(cont)
The general sense of this, is in common practice, completely uncontroversial and is in no way 'trampling on property rights' - property is purchased in that location with the understanding that it is purchased with less than a full 100% control over it's use. If you want full, unconflicted use of property and no messy community issues, there's still plenty of rural land you can purchase and go enjoy your zebra polka dot expression of yourself as a hermit.

That is not in any way a negation of property rights, but an expression of them, there is no right of contract violated here, in fact the larger right of contract held on the part of the community, is upheld against the attempted breach of their contracted sensibilities by the zebra dot house painter. BTW, this is also a common flashpoint with libertarians, and one of many reasons why I am not one.

But that reasonable expectation on the part of the community had nothing whatsoever to do with, say, the Charles River Bridge case, in that case there was a contract made, and the reasonable and necessary implications of the contract which gave the contract it's value in the first place, were breached and violated by the representatives of the community who decided after taking payment, they no longer wanted to be bound by the contract they made to the bridge builders.

That was an egregious violation and assault on Property Rights, and on every right you have a right to expect to have as a free person. That was an issue where the community, particularly Justice Taney, but also all those who think rights come from external powers and decrees, rather than from our nature as human beings, blasted away the principles of contract and property which this nation cannot hope to exist without.

That was, and is, an issue of raw power being used to trample upon property rights.
(annoying blogger size break)

Van said...

(cont)

But that is entirely different from the issue of the mosque in New York... without getting into the wider issues of war, on the simple local level, there in that district of the city of New York, those people have not been allowed to be heard, their political representatives are attempting to shunt aside their real rights to have a say in their community, they are being told that they should not and cannot exercise their reasonable expectations for their community to reflect an understandable respect for the open wound nearby.

We had an issue here recently, where a zoning board decided that a church, one that has owned and operated their church for years on their property, could not build a larger, more visible and attention getting cross on their property - property already owned and operated as a church - because it might loom too much into the sensibilities of the community.

And now bloomberg and obamao are telling those people in New York that they have no reasonable expectation of not building a 'community center' and mosque, in a massive and attention getting form, just two blocks from where those very people had their lives mangled and torn, lost family and friends, property and places of business, all under the banner (legitimate or not) which that mosque will wave in their faces on a daily basis?

Just on the level of that local zoning level consideration alone, the people in that neighborhood and business district have every right to say - "No. We find it in poor taste and offensive. Scat!" We don't even need to begin taking into consideration the feelings and interests of the entire city of New York, it's county & state, not to mention that of New Jersey, etc... there is no constitutional issue involved here, this is simple local issue of property rights, pure and simple, and they are being egregiously violated by bloomberg & Co. who are trying to negate those rights of all those people, and IMHO, they can go to hell.

Ex-Dissident said...

Van,
You make a brilliant point here: especially in stating that property rights arise from "our nature as human beings," rather than something forced on us with decrees. This is a a gem of a thought and I will incorporate it into my next post. As always, I appreciate your extensive and thought provoking reply.

Van said...

Thanks Ex-D, I'm jumping the gun a bit, but you've got a point, so I just turned this into a post.