When Did Healthy Communities Become Illegal?

The scene is Upper Monarch Lake, ten thousand feet up in the mountains of the Sequoia National Park in California. If you got here, you climbed thousands of feet in elevation through the wilderness, carrying your tent, sleeping bag, and all your supplies on your back. There is not a single graffito or piece of trash to be seen. If you should happen to have neighbors in a nearby tent for the night, you will not worry a bit about whether they will steal your gear or harm you in the night, even though they are strangers. More likely, they’ll invite you to share some of their bourbon.

Why do backpackers feel safe sleeping outside in public at 10,000 feet but not in their own city parks? It is the steep barrier to entry that creates this microcosm of community that so naturally emerges: anyone who has made it here has the physical, material, social, and informational resources to pass this natural test of good character.

The same is true, to a lesser extent, of Burning Man – the travel and resource outlay required to get to the desert festival forms a barrier high enough to allow for the formation of a temporary community, one in which participants feel safer interacting with strangers than they might in their own hometowns.

Natural human intuition about character has served people well in forming and pruning communities for thousands of years. Specific legal interventions in the United States, however, have limited the ability of individuals to act on their local social intuition and traditions, substituting a legal notion of radical inclusion. Legislation removed barriers to entry that people had erected for their communities, acting in turn on four core areas of social cohesion. While communities at first adapted to the new restrictions and evolved around them, eventually they became so warped that they began to fail to perform their most basic functions: providing members with social belonging, usefulness to others, a sense of meaning, and safety.

The Publican

The first of the big four areas of life to be threatened by legislation was business – especially the kind of business that might have been called an inn or public house in another time, that is, public accommodations and restaurants. The Civil Rights Act of 1964 made discrimination on the basis of race, color, religion, or national origin illegal for businesses of this kind. Federal and state laws have since expanded this anti-discrimination provision significantly; almost half of all states also prohibit discrimination against gay people by businesses, and Colorado recently forced a religious baker to either bake cakes for gay weddings, against his religious principles, or go out of business.

No longer does the restaurateur, publican, or even baker have the privilege to exclude anyone he chooses from his premises and service, for any reason or no reason. Some argue that the publican is better off; with more potential customers, his market is larger now. But is money the only imaginable motivation for owning a small business of this sort, the kind that underpins communities? A barrier to entry for customers at the pub has been removed. The only barrier that is still legal – as we will see in later sections – is money. Rather than having an exclusive pub with its clientele weeded by a kingly proprietor, the patrons must pay high prices as a substitute barrier to entry. Another solution is to arrange businesses so that customers need not interact with strangers, a small-scale version of modern city planning.

This is not a defense of the practice of racial discrimination. But outlawing bad discrimination has chilled the expression of good discrimination – of intuitive, personal discrimination, which sometimes but not always takes things like race or sexual orientation into account. (The race of neighbors at Upper Monarch Lake would scarcely make a difference.) Discrimination – the selection of some and exclusion of others for social interaction – had acquired the characteristic of a slur, but it is a necessary faculty for humans and groups. Peaceful people can hardly remain so if they can’t exclude destructive people. Discrimination, like speech, needs to be free from the chilling effects of lawsuits.

The right of a business proprietor to kick out anyone he likes seems a minuscule freedom in comparison to decades of legal oppression of a race of people descended from legal slaves. But black communities have served as a mascot for legislation rather than actually benefitting from it. Black communities in particular have been deprived through well-intended legislation of their community engines, black-owned small businesses. Black-owned small businesses not only employ more black people than equivalent white-owned small businesses, they employ more labor overall per dollar earned. Their value to the community is not just reflected in employment, however; they serve as meeting places, their proprietors as near, demonstrably successful role models. Unfortunately, when the Civil Rights Act of 1964 opened up white businesses to black customers, drawing black customers away from black-owned businesses, it did not also cause white customers to patronize black-owned businesses. Today, only a nickel of every black dollar goes to a black-owned business; self-employment participation among black people has been significantly below white participation, and quite flat, for decades. The black-owned small businesses visible in street shots of downtown Oakland in the 1960s are nowhere to be found today.

The Schools

Schools were the second core area affected by legislation. The Civil Rights Act of 1964 paved the way for integration of public schools, but it did not truly tear apart communities until the legal decision of Swann v. Charlotte-Mecklenburg Board of Education six years later. This decision authorized the busing across cities of white children to black schools, and black children to white schools.

The decision imposed a significant change in the relationship of a school to a community, and a child to his schoolmates. Communities in which busing was implemented experienced white flight and degraded race relations. Worst of all, the academic achievement of minority students failed to improve. This unfortunate result is consistent with modern longitudinal research to the effect that equalizing educational spending does not increase educational achievement.

The government’s substitution of the neighborhood school model with an all-city model again removed a barrier to entry, one that, parents found, could only be recreated legally with lots of money – by moving to the suburbs or sending children to private schools.

Housing

The Civil Rights Act of 1968, known as the Fair Housing Act, outlawed discrimination in housing based on race, color, religion, or national origin; disability and family status (e.g. being unmarried or having children) were later added to the protected categories. Many states have broadened this protection as well. The decision to sell a house or rent a living space, with all its potential externalities falling on the neighbors, became the government’s business. The local judgment of individuals in the community was replaced with the government’s judgment that any buyer or renter who could pay the price was as good as any other as a neighbor. This removed any barrier to entry besides price for choice of neighbors.

Suburbs look nothing like any functioning society that has ever existed. It may take more than houses and strip malls and schools for a healthy community to satisfy its citizens’ needs; the new markets have proven themselves better at supplying an idea (“gated community”) or temporary feeling (national chain bars) of social belonging than the real thing.

It is not necessary that actual discrimination occur for a landlord or seller of property to be sued; it is easy to establish a prima facie case of discrimination, which is to say, enough of a case to oblige the landlord to spend thousands of dollars responding to the claim, even if it ultimately loses in court. Here as elsewhere, expression of even good discrimination is chilled by the threat of a lawsuit for bad discrimination. The economic need to avoid lawsuits deprives the landlord of the ability to rent only to those of good reputation and morals, or whatever criteria, other than money, that he chooses. Depriving a landlord or seller of this right deprives the neighbors, by proxy, of the right to use their influence to choose whom they live near – again, except as may be measured in money. However, a geographical means of exclusion, measured in commute times, has also soared, despite the persistent, negative effects that long commutes have on subjective well-being.

Crime

Finally, many civil rights decisions – here generally court cases rather than legislation – severely hampered police in their ability to catch and punish criminals who violate community standards. At the same time, the ever-escalating drug war has made police less interested in solving crimes that directly harm individuals, such as burglary, robbery, and rape. Drug crimes, like traffic crimes, are plentiful and easy to prove, even in light of the new legal limitations; they have been given the additional incentive of asset forfeiture, wherein property used in the commission of drug crimes may be seized by police. Violent crimes and property crimes have become less attractive to police departments, and more difficult to solve anyway.

The rights of criminal defendants were significantly expanded during the 1960s. Miranda v. Arizona required police to formally warn a suspect of his right to remain silent and to legal counsel before attempting to obtain a confession; the rate at which suspects confessed declined significantly, as did the rate at which violent and property crimes were solved. Also in the 1960s, defendants in all felony cases, in state and federal court, were given the right to a state-provided lawyer if they could not afford one (many are not aware that this is a relatively newly-discovered Constitutional protection). The expansion of the rights of criminal defendants continued into the 1980s; the few reductions in the rights of defendants have been most relevant to drug crimes, such as the holding that a dog sniff of an automobile does not count as a search. These new rights were not given to accused criminals by their communities; they were imposed on communities by federal courts.

In part because of all the new protections, and in part because of the skyrocketing crime rates due to the drug war and the destruction of the cities, criminal trials have become very rare, declining, in federal courts, from trials occurring in 16% of cases in 1962 to less than 3% of cases in 2010. Plea bargaining or the dismissal of charges is substituted in the vast majority of cases. Despite courts and prisons crowded with bodies, clearance rates for serious crimes declined precipitously. The prisons and court system used to form a fairly reliable barrier protecting communities from harmful people; courts and drug legislation degraded this barrier, so that once again, housing prices, long commutes, and investment in private security became the only legal means to escape proximity to criminals.

No Barriers, No Community

By legally removing community-enforced barriers to entry to important institutions such as neighborhoods, schools, and businesses, and by undermining the tools available to protect communities from predators, legislation and court decisions have dismantled existing communities and forced the formation of inferior communities whose power of exclusion is limited to wealth. With money as the only legal community barrier for housing and schools, family formation has become much less affordable for people with high standards, which is to say responsible people.

Why were people willing to let go of their community boundaries? It wasn’t always voluntary. In some cases, such as busing to integrate schools and expanding rights for accused criminals, courts created new law that would never have passed the legislative process. However, elected officials passed many of the laws that undermined community barriers.

A new morality, originating among the intellectual elite, paved the way for the coming changes and hastened them once underway. This morality, emphasizing racial and sexual equality as its sacred values, gradually replaced its traditional moral counterparts. Good discrimination was certainly not recognized as a sacred value; bad discrimination acquired the status of almost a religious violation. According to the new morality, people are not only equal, they are actually fungible.

Even when faced with terrible consequences, people are reluctant to even think about trading off their sacred values against non-sacred values, and community barriers and good discrimination are definitely non-sacred, even actively tabooed. The people who were most enthusiastic about removing the boundaries were those with the most ability to avoid the direct effects of the subsequent community failures, either geographically or economically. The sacred value of equality proved an excellent banner under which to increase federal power, necessarily decreasing the power of individuals, states, and towns.

Small businesses provide a “third space” for adults to interact with each other outside of work and home. Schools are the first major social institution children experience; in the years they are stuck in school, they form their beliefs about social belonging and their social behaviors. Residential neighborhoods used to provide the opportunity for social interaction and helpfulness, but today only a small proportion of Americans even know their neighbors’ names (and the proportion is lowest for younger Americans). Deprived of face-to-face proximity, the possibility for repeated, unplanned meetings, and environments encouraging intimacy, today’s adults report difficulty making friends. And crime without justice makes the trusting behaviors that build community seem foolhardy.

Social belonging is a foundational human need, on par with food and water, and it is something a person cannot provide for himself. Isolation and loneliness make people miserable. We need not only the company of others, but a sense that we are useful to them, helpful and not a burden. There are few opportunities for helpfulness in the absence of community, and it hurts the would-be Samaritan as much as those in need of help. Participating in a community also provides a sense of meaning; suffering is inevitable in human life, but sharing it within a framework of meaning bolstered by a group makes it easier to bear. It is a very modern and untested notion that a single person can give himself a sense of meaning. And without community, we are not safe – from crime or other misfortunes. We are assured that diversity is strength (cf. a more controversial analysis), but the doors are locked, the alarm systems are on, and everyone drives everywhere.

In a modern American town, there are no children wandering in the woods or playing on sidewalks; as in the UK, they have lost the right to roam. Strip malls and big-box retail dominate the built landscape. Both the car itself and the distance it must travel provide protective barriers where the community has failed to do so. In sufficiently diverse neighborhoods, healthy, dense social networks do not form; people trust each other less, even others who look like them. The doors are all locked, and the people are inside. Each space is open to everyone, according to his willingness to pay – but not particularly well-suited to anyone. There are houses and schools and restaurants there, but hardly any community. You’ll have to climb a very high mountain for that.