Goldberg v Kelly illustrated Brennan's jurisprudence—his confidence that the Court was better than the political branches at making social policy.
I was recently invited to speak about ranching to a group of students at Dartmouth, offering them the kind of curve ball Jeffersonian agrarian pitch needed to keep them on their toes. It’s a decidedly left-leaning school (as they all are), so it’s hardly surprising that the talk was, to put it charitably, ‘provocative.’ The students were enthusiastic and well informed, rising ardently to my challenge to their worldview.
Leaving their passions aside, what shocked me most was how deeply entrenched the myth has become for them that government stands in benign counterpoise to private enterprise. This is nowhere more evident than in the realm of land management and conservation. We began our discussion by noting that the lushly forested hills outside their classroom windows were once practically denuded of timber—clear-cut in the 18th century to make room for food production. The overwhelming majority of the room firmly believed that this was deplorable (trees being infinitely better than fields of course) and that government regulation was the “obvious” and largely neutral arbiter to the “excesses” and “externalities” of the open market. The human-caused landscape changes they could see around them (from timber to farms to timber again) were an almost wholly unregulated phenomena, the natural outgrowth of changing market values and environmental norms.
They didn’t believe me. In fact, and this might be the most depressing point, the worldview which says that the environment can thrive only under government supervision appears to be the only one proffered. The students were not just stunned that anyone would question such a basic and fundamental premise, they seemed honestly ignorant of any alternative. I reminded them of Francis Bacon’s adage, “If you accept the premise, you accept the bit” and while the equine metaphor may have been a little lost, I proceeded to offer an alternative.
Innovation is better than regulation for generating the kinds of things we want (goods, services, healthy environment, and more). I hew to the now unfashionable view that government, by and large, is a conservative force, better at protecting property than at generating novel solutions to unexpected problems. Bureaucracies lack innate efficiency or creativity. Disturbing stuff, I know. We decided to examine this premise by walking though a real-life example.
My grandfather graduated from Dartmouth in June of 1938, 14 months before the Nazis invaded Poland. We compared his experience of going to war (troop ship, charts, and semaphore) with my experience 63 years later (chartered jet, GPS, and email). The fact that things changed dramatically in a generation was hardly remarkable to students who have been trained to expect radical technological transformation. It was not always so, of course. Compare the experience of my grandfather’s Pilgrim forebears (1623) with the transatlantic travels of Europeans in the 15th century: unless you had an expert eye, you would be hard-pressed to tell the Niña from the Mayflower, though they bookend a period twice as long as that between my grandfather’s era and mine. It goes without saying that the rate of change in humanity’s material condition has been non-linear, with immense gains in recent history. The reason for this, of course, is the great flowering of innovation that continues to accelerate to this day. Innovation—the bottom-up trial-and-error process of discovery–coupled with the freedom to share these discoveries, is the overwhelming reason we live better lives than ever before.
And what does this all have to do with ranching? Well, operating a private business on public land in the American West is a great place to see the myth of government “management” up close. For 150 years, Americans have convinced themselves that private enterprise is not to be trusted with things as vital as the environment. This distrust of private ownership and an emphasis on government supervision is why 49% of the American West is owned and operated by the US government. Like a vestigial limb, the vast swaths of public land in the West are the physical manifestation of an earlier era, a Progressive epoch that believed in the efficiency of “scientific management.” Lands in the frontier West, rather than being sold to private owners as had been the pattern of centuries, were to be managed (profitably) and for the public good. Central management would cure all our ills. This faith in the “driver’s seat” approach is highlighted by the fact that many of the doyens of this movement (such as Madison Grant, William Vogt, and Margaret Sanger) blended a curious faith in government-mandated eugenics with a faith in top-down control of the physical environment. While eugenics has thankfully come off the central management “To-Do” list, land management never has.
Ignored then and forgotten now is the obvious question: if private land management is so brutally short-sighted, and the superiority of government management so strikingly obvious, then why are the overwhelmingly privately-managed lands east of the 100th meridian not a howling wasteland? Moreover, why is government-managed land a net economic loss to the public it ostensibly serves? The US Forest Service “makes” a mere 30 cents for every tax dollar it spends on public lands. On our ranch we could offer the public a better deal at half that price!
And so here we are: it is cant evolving into holy writ that government “belongs” in the environmental realm. Insofar as this is limited to property-rights protection, I think this is proper. However, the alternative paradigm that so stunned the Dartmouth crew is this: rational private land owners, engaged in a sea of market forces, can do a much better job of creating the sort of environmental conditions we want to see. The process of discovery, with its attendant emphasis on innovation, is what makes the world go ‘round. Government, by and large, (and despite its best intentions) stifles innovation where and when it matters most.