Community Engagement Through Judicial Engagement
A story reappearing over and over again in recent years is the fraying of community bonds across America. Small towns with factories closed and community groups closing. Urban neighborhoods devoid of hope and full of drugs. Suburbs displaying crumbling streets and half-built homes. In these places, and in many that at first seem fully functional, lots of people are (at best) lonely or (at worst) addicted, in despair, and witnesses to suicide. Across all of these tales are a few themes: people are not as connected with each other as in years past, men of prime working age are not working or even looking for work, and families are breaking down, especially if headed by parents who didn’t go to college. In some ways it’s an old story, such as that Robert Putnam popularized in Bowling Alone (published in 2000). But for whatever reason (the last Presidential election, the ubiquity of social media, the opioid crisis, etc.) there is now a more intense examination of the myriad issues you might think of when the subject of “community breakdown” comes up.
2019 saw three books that added greatly to understanding all of this: journalist Tim Carney’s Alienated America, photographer and essayist Chris Arnade’s Dignity, and former civil engineer and planner Charles Marohn’s Strong Towns. Agree or disagree with any or all of these authors’ solutions, the portraits they paint of the struggles many American cities and neighborhoods face are hard to argue with. You can learn so much from each of their stories.
This post discusses these books and then turns to how we can tackle some of the problems they address through an increased use of the Constitution to strike down laws that keep people from connecting with each other.
My goals are modest. I do not argue that among the many possible solutions to the ills the books identify, constitutional litigation is the one that will do the most good, let alone is a silver bullet to these very complicated problems. But I do argue that it is something that can help. Often the reasons why people do not flourish and build strong communities is because the law discourages them from doing so, or even does not allow them to. This occurs most often with municipal and state laws designed to regiment people’s lives, mandate what can go where, and who may do which jobs, and generally make life difficult if you are not already an upper middle class professional.
Below I take the authors’ books in turn. Then, I walk us through a few areas where judicial engagement—that is, the practice by courts of not reflexively deferring to the government on whether it is acting constitutionally—could better allow building the community bonds that man, as a social animal, needs to pursue happiness, and which the books demonstrate are so very lacking among so many of us. These areas are (1) where we do not allow neighbors to physically organize and adapt their communities in response to change (zoning), (2) do not allow workers to prove themselves for what they are but instead force them to build government-granted resumes (licensing and credentialing), and (3) do not allow mercy for those who have run afoul of the criminal justice system (collateral consequences and excessive fines and fees).
Social Isolation is Alienating America
Carney’s book is not primarily about politics, but it is the most political of the three. He examines communities, often close-by each other, that voted for Donald Trump in the primaries for the 2016 Republican Presidential nomination, on the one hand, and those that did not, on the other. By and large, he found that the more dysfunctional a community was the more likely it was to vote for Trump. Trump-friendly areas had lower rates of civic engagement and higher measures of community breakdown—addiction, suicide, crime, etc. The more people volunteer for or participate in local organizations such as churches, sports leagues, Kiwanis clubs, or simply any group of people beyond family, a circle of friends, or work, the more likely they are to trust their neighbors and avoid various social maladies. The less strong a community, argues Carney, the more its members seemed to think they needed a supposed-billionaire strongman to flex his muscles and save the country. Carney has extensive original reporting, but admits he is indebted to past sociological work on these issues, especially Putnam and Charles Murray in Coming Apart.
Carney explains how civic or social engagement can arise through a myriad of groups. Often people engage with others in their communities through churches. It also happens through swim clubs, Elks lodges, local political groups, etc. But his thought-provoking explanation is that belonging to groups that are not houses of worship can be expensive. Communities like the tony Chevy Chase, Maryland have high rates of community engagement, but that is because those residents can afford swim club and golf club dues, and also have more intact families and bourgeois jobs. Those in a hard-scrabble town where the major employer closed its factory ten years ago don’t have the funds to pay for, or the flexibility to take part in, the smorgasbord of Chevy Chase-like options. Carney sums it up this way: “In modern suburbia, building civil society requires more deliberate effort and work. This work is harder for single mothers, who are the norm in working-class America. This work is harder if you don’t have a car, or two cars. Being a youth basketball coach may be impossible if your boss gets to set your hours every week, an arrangement more common among the working class.”
Today when it comes to civil society, many towns mostly just have churches, and those are closing as Americans become more secular. Carney’s reporting in various small towns in places like Iowa and Michigan indicate that the more people are involved with churches, the healthier their communities are.
Whether a church, a book club, or a country club, groups bring people together who then get to know each other and form social bonds that can later help them in everything from forming new friendships to turning to a wide spectrum of people in time of need. Carney gives a health crisis in his own family as an example of the latter, when he and his wife were overwhelmed by the help poured on them from various parts of their social network. Not just their church, but sports clubs, reading groups, co-workers, etc. If you fail to make and maintain your own network, that social insurance simply might not exist when the caprice of fortune comes for you.
What Carney seems to be saying is that dependable social bonds and networks that promote individual flourishing and the flourishing of communities are the result of people joining civic groups even though that often isn’t the reason they join those civic groups. (These ideas are consistent with the concept of “spontaneous order” discussed by economists such as Adam Ferguson and Friedrich Hayek. For example, no one person or group of people get together to feed the people bread, yet it exists at affordable prices through the various self-interested decisions of farmers, distributors, bakers, and consumers. A system where almost everyone can get bread at affordable prices absolutely exists because of human action, but very little of it has to do with human design.) People usually join swim clubs so their kids can swim with other kids, not so the parents can get to know each other. People join Kiwanis to network for their self-interested business interests, not to form friendships. People often go to church either out of tradition, pressure from family members, or to save their own souls. This is by no means always the reason people join groups, nor perhaps it is even usually the motivation, but it is a lot of the time. People do often volunteer with groups because they simply want to help the community, although even then it frequently is because of social pressure. Also, people, of course, often go to church and to many other groups to “meet people,” because they know that having friends makes them better off and even because they think through about the larger social insurance/network benefits. But what Carney demonstrates is that if we rely on people only joining groups because they want to meet people or want to help the community, you’re going to have a lot less people joining groups. And for whatever reason, today people join groups a lot less than they used to.
Why people don’t join groups as much is a complicated issue. Technology certainly plays a part. Carney gives the seemingly tiny example of ordering groceries online for delivery instead of trudging down to the grocery store. That’s amazingly convenient, but it leads to less serendipitous encounters with neighbors, old classmates, and parents from your kids’ school who ask you to volunteer at the next play.
Disengaged in the Back Row
Chris Arnade provides a different angle on much the same picture in his anthropological adventure through the overlooked communities of American life. In Dignity, Arnade details his journey as a PhD physicist who worked on Wall Street—where he traded bonds for two decades—into some of the most destitute places in the country. In these communities he got to know, and even made friends, with people unimaginably unlike himself. Much of the book is simply listening to those he meets, often in a McDonald’s, tell him their stories of addiction, prostitution, familial dysfunction, unemployment, despair, and also resilience. Although the lives of these people seem very hard, Arnade shows and explains how they still find meaning and, often, dignity. But that dignity doesn’t come easy.
What these people have in common—from Hunts Point in the Bronx to Cairo, Illinois to Milwaukee’s north side—is they are, as Arnade describes them, “back row kids.” That is, the folks who received the furthest thing from an elite education and elite credentials. They didn’t go to college and don’t know the customs and morays of those who did. They didn’t have family connections, or make connections of their own, that then launched them into positions of power. In contrast, “front row kids” are people like Arnade himself, and probably most people reading this essay. They got a respectable education and acquired or were handed connections that helped find them a career. They also speak the language of other elites (including what the latest politically correct terminology is), can debate important issues with other front row kids, and sound like they fit in. In short, back row kids don’t have the credentials, and the language, that are the coin of obtaining respect in modern society.
Instead of lines on their resume, back row kids have three things to turn to: faith, place (i.e., where you’re from), and race. These are qualities that front row kids shun as either ridiculous (faith) or accidental (place and race), and therefore not worthy of respect, and certainly shouldn’t be the basis of one’s sense of self. In short, they are told these things don’t give you dignity. Because those of the back row lack what they’re told does provide dignity (a shiny resume) they are dehumanized by the broader society.
Arnade, rightfully, argues that placing reliance on race in one’s sense of value is dangerous. But if people are told their faith is irrational and their place is a meaningless accident, you can’t be surprised if back row kids will turn there. Readers are probably familiar with the battle over faith and dignity. But his discussion of place makes for thought-provoking reading to rootless cosmopolitans like yours truly. Addressing the argument that if people aren’t flourishing where they live, they can “just move,” Arnade asks several back row folks why they don’t do just that. In response, he receives looks like he’s the man on the moon. “Move?” comes a typical reply, “But, this is my home.” Without savings, connections outside their hometown, or educational credentials, moving somewhere else is almost inconceivable. More importantly, where someone lives is often central to who they are. Asking that person to move is like asking a devout Lutheran to change religions or a political activist to switch ideologies. Explains Arnade, “Moving would mean destroying their identity and breaking their support system of family and friends. Their happiness would be reduced. The few good things they have going for them, things that don’t cost money, would disappear.”
Arnade is exceedingly honest in admitting he doesn’t have a solution to the back row’s misfortunes. He does take a number of swipes at free trade and the closing of factories (many people he interviewed talked about how things used to be better when there were more manufacturing jobs in whatever town or neighborhood they live in). But overall his message is that many back row people get a lot of meaning from their faith and where they live, and the rest of us should respect that, and shouldn’t denigrate them because they don’t go to college, or still utter non-PC terms. In that way, Arnade’s message is as old as Eliza Doolittle. But in our age where communication and identity are more and more national and global for the front row, it becomes much more intense regarding the back.
Growing to Bankruptcy
Rather than chronicle the lives of individuals in distressed communities, Charles Marohn digs deep into communities themselves; that is, the physical stuff literally underneath them. Marohn displays the markings of a highly unusual animal, a former civil engineer and current president of an urbanist nonprofit who deeply understands and values the free market. Through his work in the planning industry he came across a series of realizations that led him to start the nonprofit Strong Towns, whose mission is now detailed in the same-titled book.
Marohn’s message is 180 degrees different from what almost everyone else says about our cities. And that is that we have too much infrastructure. You know those calls to “rebuild” our roads and bridges and “modernize” both our cities and our transportation systems? Nonsense says Marohn. Since World War II we have vastly overbuilt our physical environment, he continues, constructing miles upon miles more streets, sewer systems, and even public transit stations, than their communities can support. Marohn argues this is a destructive addiction that we should end, the sooner the better.
He forcefully demonstrates that post-War growth is contrary to how cities used to grow, a history we’ve forgotten far too quickly. Before modern zoning, subdivision planning, and federal highway grants, cities grew through incremental steps where failure didn’t lead to ruin, and public works were built little-by-little as the community demonstrated it was ready to support them.
For example, in Marohn’s hometown of Brainerd, Minnesota, there is an old, seen-better-days, downtown. Its neighborhood grew according to traditional, pre-zoning, development. An entrepreneur constructed a building on a block at the end of a street. If the business there succeeded, someone else might build one next door. After a few properties demonstrated they were here to stay the city would extend the road to them, and so on. Residences might be built above retail stores, according to the needs of the owners. Houses were intermingled with businesses because economically that made sense to the workers and the residents, and because zoning laws didn’t tell them they couldn’t.
Fast forward to today. The properties downtown often aren’t in great shape and some might be boarded up, but the density and organically driven layout remain. That organically grown design is value waiting to be tapped, argues Marohn.
Now look at a new subdivision outside of Brainerd. Virtually every large and shiny-new building is residential. Almost all were built at the same time. As were the streets. And the homes are spread apart so that there is low density of properties per foot of street and sewer line. The infrastructure was perhaps paid for by the developer, but even if it was the city takes over its upkeep into the indefinite future. The same goes for a new commercial development nearby, perhaps a big-box store, with a massive parking lot and a huge investment of sewer and water works. (Marohn examines a Mills Fleet Farm that, along with an auto dealership and gas station occupies about the same amount of land—actually more land—as the entire downtown.) The property is only viable as long as the store stays, and has no diversity of ownership or use. And, because of the parking, a relatively small percentage of the area is actually economically productive.
Here’s the shocking truth Marohn reveals with detailed analysis: The old downtown is much more financially viable than either the modern subdivision or the big-box store. Wherever they are, roads and sewer pipes need to be repaired and replaced. The less property owners you have per unit of infrastructure the more the cost of that repair and replacement will be borne by those owners and their property taxes. Because the downtown grew organically, its assets (both private buildings and public infrastructure) were built at different times and can be fixed at different times. It also has a relatively high amount of economic activity, and thus property taxes, available per foot of road and sewer. However, in the curvy streets of the new subdivision, all the homes will age at the same time. So will the roads and other infrastructure. One day the bill will come to repair them, 30 or 40 years from now, and they’ll need to be done all at the same time. As will the (then) aging properties, which themselves will need work to keep up. All of this work can be incredibly expensive, especially for busted sewer mains, as Marohn reveals in a series of anecdotes. And the plight of the big-box property is perhaps even worse. Everything depends on one tenant, who can leave if the city needs to drop a massive special assessment to fix the arterial roads and water lines that make it viable.
In addition, a neighborhood like Brainerd’s downtown allows for people to do things like walk to a store, or to school. Perhaps even set up a business in one’s home. These connections and opportunities are much harder in a modern subdivision, where the assumption is everyone will drive everywhere, and everyone will work somewhere else. And they are obviously non-existent with a big-box store. And yet, our communities look less and less like an organic downtown with every year that goes by.
Marohn’s story is bleak at times. In the 70-plus years since the old, prudent practice of market-based city expansion was cast aside for debt-filled suburban explosion, he claims that so much has been built we won’t be able to pay to keep it all. Detroit, and its Mad Max-like implosion, he labels the canary in the coalmine. He goes so far as to say that some suburbs will have to be abandoned as we’re forced to make hard choices about what we can afford. His solution is that the old way worked—before we were enamored by the one-two punch of modern social science and the automobile—and cities should go back to organically letting their communities develop. As needs arise for cities to act they can make “small bets” that won’t bankrupt the town if things don’t work out.
Human Rights to Action
These books are a massive slap upside one’s head to remind us that people need connections with other people. Sure, a few people can enjoy life as an island, but most of us just aren’t wired that way. We don’t put “make healthy social connections” on our shopping list, but that’s the unintended consequence of the stuff we affirmatively design into our lives, like going to school, getting a job, or buying a home. Therefore, where there are barriers to making social connections, we should think hard about whether those make sense. And, it turns out, those barriers are often legal, and they’re often so insensible that they’re unconstitutional as well.
Zoned to Be Alone
Behind so much of what Marohn, but also Carney, detail is the law of zoning. In virtually all American cities, the incremental growth ubiquitous before zoning is now illegal. That means the neighborhoods that spontaneous, market-driven development created can no longer come into being. Unless you’re lucky enough to live in a grandfathered area (as in the core of many older cities), modern suburbia is your only community architecture, by law. Very few of these areas allow a property owner to simply put up a building and use it for whatever makes the most economic sense, whether that be a corner store, a duplex, or a restaurant. Instead, the land is zoned for one thing or another long before the building is even built. Not only is the land divided up this way, but oodles of acres are mandated for one use, and one use only: single-family homes. Want to buy groceries, take your child to the nearest school, or go to the gym? These acts are inconceivable for most suburban Americans without driving a car, because only homes can legally be built within walking distance. And public transport isn’t a viable option because there are so many suburban roads that trains or buses simply cannot service them all. This not only forces everyone to rely on cars, but puts a barrier on running into one’s neighbors. Something that’s second-nature to those who live in urban neighborhoods, such as walking to the local coffee shop, become another drive there and back, placing friction between us and the rest of the world.
There’s even more friction on turning one’s property into an income, something that people have done since property became a thing, bringing neighbors together in the process. Apple, the Walt Disney Co., and Mattel—just to name a few—were all started in garages or sheds and bloomed into wildly successful companies. But, starting a business from home is today often extremely limited, allowing the visiting of few if any clients or workers. And, of course, forget about using it for retail.
Work is the primary way people come together in life, because economic necessity makes it so. But zoning mandates we do most of this in the few “commercially zoned” strips near highways. If people could start businesses more from home, or from their neighborhoods, the connections they have with their coworkers could be made that much stronger. To put it another way, we have “bedroom communities” because the law separates our sleeping from our working.
Something unusual or sometimes entirely absent from modern cities is the “missing middle” of housing. Buildings with anywhere from two to six to a bit more units, generally offered as rentals. Instead, cities put so many barriers in the way of building anything other than a single-family home that developers go big whenever they’re actually allowed to put up multifamily structures. This pushes up the cost of housing, but also makes it more likely the owners of multifamily housing will be the rich and large corporations, not an entrepreneur putting up a triplex, living on the ground floor and renting the rest out.
And this even extends to the nonprofit world. A social entrepreneur who wanted to give the homeless somewhere to stay in the backyard of his commercial property—instead of under bridges or in the woods—was shut down by the city of Akron because it wasn’t legal to live in a tent on the property. It wasn’t legal to sleep under a bridge, either, but moving back under the bridge is the end result of not allowing people to come together and try and solve problems by using property in different ways.
In 1926 the Supreme Court ruled that zoning, at least in a general sense, was constitutional under the U.S. Constitution. And it’s not going away anytime soon, despite some recent incremental legislative reforms, such as the push to end single-family districts in places like Minneapolis and Oregon. But even just a limited amount of judicial engagement could trim some of its excesses and allow people to legally make connections that today are stifled through our forced segmentation of space. Challenges to home-based business restrictions would open those homes to productive activity. Parking minimums, which are usually trotted out to justify denials of missing-middle properties, could be challenged in excessive situations. And even allowing a corner store or coffee shop in a suburban subdivision might be something an aggressive case of constitutional litigation could take on.
Single-family zoning was touted to protect the quality of family life. Instead, it has segmented that life away from anyone but the traditional, nuclear family, and threatened it in the process (zoning even often prohibits more than a couple unrelated people—including nontraditional families—from living together). More judicial engagement in defense of people’s property rights could lead to more engagement with people’s neighbors, and help tear down these new and unnatural segmentations of our lives.
The Law of Resumes
Arnade doesn’t go into this, but it seems one big reason why there’s such a divide between the back and front row is because we have made front row credentials legally required in so many ways. Over a quarter of all workers must hold a government-issued license to work, all the way from doctors and lawyers to dental technicians to hairdressers and even florists. In the 1950s it was more like 5% of workers. And those licenses often require expensive education to hold them.
Education requirements for licensing run the gauntlet, but they have one thing in common: they are all excessive. Front row kids have long been used to licenses for doctors and lawyers. But now there are more and more for “back row” jobs as well. For example, to teach preschool—not high school English, but preschool—in a public school requires a four year degree in many states. And the District of Columbia recently adopted a rule that requires any daycare provider, public or private, to have a college degree. So you have to go to college for years, and pay thousands of dollars, to look after one-year-olds. The message is back row kids can look after their own babies, but they need to attain some front-row piece of paper to look after the children of the front row.
For far too long over-credentialing has already been true in cosmetology, where practitioners need a high school education plus cosmetology school. Is it beneficial for hairdressers to graduate from high school? Yes, in general—the same way it’s helpful for everyone to have a broader knowledge base. But is it necessary to be a successful hairdresser? Absolutely not. I’m sure it helps, but if someone didn’t finish twelfth grade, what value is there in forcing a woman to retake geometry before she can cut hair? Further, although going to cosmetology school would better help her in the abstract, what about giving her the chance to learn under her mother or a family friend as an apprentice instead? This would free her from paying thousands of dollars in tuition and allow her to learn the same skills. But this route is generally illegal.
These credentialing rules are arbitrary restrictions on the right to earn a living. Under current precedent either would very likely be upheld as constitutional under either the U.S. Constitution or most, if not all, state constitutions. But if judges took a more engaged analysis of these and similar requirements, and how they divide the well-credentialed, connected, and raised from kids in the back row, these rules could be susceptible when challenged in court.
If we had less legally required credentials—or at least credentials that do not require as much time and money—the divide between the front row and the back row would not be aswide or important. By legally valuing workers by how they perform on the job, and not how much time they spent sitting in a desk and paying tuition, we could extend them a lot more dignity, as well as hope that they can stay in their communities and thrive.
Cycles of Disengagement
Something none of these authors discuss in that much detail, but is relevant to all their stories, especially Arnade’s, are the cycles of poverty created by the criminal justice system, most specifically the shadow of convictions after they leave prison, even for not-so-serious offenses. This, along with the imposition of fines and fees on low-level offenders—including recipients of speeding tickets—drive those who cannot pay their initial assessments into bankruptcy or in a modern-day equivalent of a debtor’s prison. This despair exacerbates their already challenging lives, and undoubtably robs them of the dignity they deserve. It’s also a product of some of the ills Marohn identifies, as fines and fees are a way to buff up declining municipal revenue and cover expanding municipal budgets.
There are two related problems here: collateral consequences, and excessive fines and fees. Collateral consequences are legal barriers that exist because of a past run-in with the law, typically a conviction or arrest. Typically, they prevent the issuance of some form of license, often an occupational license. Once someone has exited prison, the best thing we can do to rehabilitate the person is to get them into a job. Indeed, many states provide job training for inmates so they can work upon release. But it is extremely difficult to get them into a job when laws block the path. Sometimes this arguably makes sense, such as a past crime of embezzlement preventing someone from obtaining a license in the finance industry. But often there’s a blanket barrier for any past felony, even if it was given years ago and unrelated to the occupation. For example, in Pennsylvania the state will deny someone a cosmetology license even if a crime was committed years before. And in California, people are barred from working as community firefighters when they leave state custody, even when those exact same people fought wildfires as prisoners. There are often legal mechanisms to appeal these barriers, but they’re no sure bet and depend on the proclivities of the individual board members of the particular license. These barriers serve to block those trying to make a fresh start and frequently push them back instead of helping them move forward.
Excessive fines and fees are an immense problem, and thankfully have received increased attention in recent years. Part of this comes out of the spotlight on Ferguson, Missouri, after the killing of Michael Brown, and the uncovering of the city’s extensive use of fines and fees to cover its budget. Governments often impose fines to punish people for minor violations and impose them plus fees as a means of funding their local government. These often appear at the municipal level and leave many already poor individuals devastated in their wake. This corrupt system allows municipalities to resist raising taxes on their general populations, or cut spending, and instead impose that pain on the select few caught violating often arbitrary and completely pointless laws, such as not having matching drapes in a window, or walking on the left side of a crosswalk. Whatever legitimate punishment there is for a fine, that fine should be imposed to do justice, not to raise money to fund the city’s operations by turning citizens into ATMs. Given who is normally fined, that truly is a regressive tax on back row kids.
This drive for obtaining additional municipal revenue leads to absurd policies, such as not allowing defendants to pay their fines for traffic offenses on a payment plan. Not paying a simple traffic ticket can lead to a finding of contempt, and that in turn can lead to additional penalties and even imprisonment. And even if you don’t go to jail, failing to pay a fine can lead to losing a drivers license—which most of us need in order to work, in order to pay the fine in the first place. All of this because of a speeding ticket that a working-class defendant could pay, but couldn’t pay all at once. This repeated story in “back row” communities across the country further marginalizes anyone trying to escape poverty.
Judicial engagement—where judges actually judge and ask tough questions of the government rather than merely accepting its arguments at face value or rubber-stamping its requests—has a lot to offer these problems. Currently my organization, the Institute for Justice, along with other groups are pursing various challenges to both collateral consequences and excessive fines and fees. Rulings against the more aggressive uses of these practices can make it easier for people living at the margin to find dignity, and make it harder for municipalities to escape their own mismanagement on the backs of their less-well-heeled residents.
People need people. We may not want people, or even know that we need people. But when people do not connect with each other—even if they otherwise would only connect for naked self-interest—bad things start to happen. We’re only beginning to figure this out in the new age of computers, cars, and small families. Along the way, the least we can do is minimizing laws that prevent us from connecting. Judicial engagement is a small solution that can help with this immense problem that these three authors have helped document.
Anthony Sanders is the Director of IJ’s the Center for Judicial Engagement.
Vigorous Property Rights in Vermont