The Third Coming

Before you click out, know this: I’m not religious. Trained first as an experimental scientist, I spent most of my working life as a lawyer and law professor. I don’t believe in the supernatural, far less in a kindly old man (or lady) sitting up there in the clouds and watching over us. It’s a nice myth to make children feel safer. But all four of my careers depended on evidence, and I don’t see any solid evidence of that.

Nevertheless, I believe that Jesus of Nazareth was real. Even if the history of him that we have today is partly fiction—or perhaps a composite of several real people—we can be sure there was at least one extraordinary man who bore that name.

How extraordinary was Jesus? Well, consider his times. He lived in a region (the Middle East) that still today features incessantly warring tribes. The Old Testament, which tells the history of humanity in the age in which Jesus lived, is a tale of rampant “smiting,” whoring, adultery, treachery, and just plain old murder.

Two millennia’s worth of great minds have pored over that salty tale, trying to turn it into a morality play. But it’s mostly a tale of human crabs in a bucket, motivated by lust, greed, hate and desire to dominate, seeking the slightest pleasure or temporal advantage. The “lessons” that great monastic minds took two millennia to derive from this dismal tale are all “small” lessons: how to live one’s personal life, in various small ways, to produce less chaos, carnage and “collateral damage.”

Jesus was different. He taught one big, overarching lesson. If learned universally, it could change human life forever. That lesson is love.

“Love thy neighbor as thyself.” “Love thy enemy.” These are enduring and memorable “bumper stickers,” composed two millennia before there were bumpers.

But the word “love” is mere shorthand. Jesus certainly didn’t mean carnal love. Nor did he mean the kind of unconditional love that parents have for children and that small children, of necessity, give back. (Teenagers are another story!)

Puzzled by the breadth of that four-letter word, a modern philologist might well choose another, longer word: “cooperation.” A loving family, despite angst and dissension within it, cooperates for the benefit and betterment of all.

In ancient times, there were no business corporations, universities, government bureaucracies, or (for that matter) police departments. The few large “institutions” then existing—armies and work gangs (often made up of slaves)—were hardly exemplars of voluntary cooperation, let alone “love.” So Jesus chose a word evocative of the most universal, willing cooperation then practiced widely: love within a family.

Did Jesus intuit that our human ability to communicate and cooperate is our species’ chief evolutionary advantage, without which our small brains and opposable thumbs mean nothing? I think so. Did he think hard about how to express that truth to primitive minds in primitive cultures, in which only the elite were literate? I think so.

Was he at least partially successful in doing so? The fact that over a billion people still follow him today, and reread his words once a week, if not daily, testifies to that. Today Jesus’ influence far outstrips that of Julius Caesar, the ancient world’s great demagogue, conquering general, and memorable leader of the ancient world’s most democratic Empire, who was practically Jesus’ contemporary.

But Jesus, the myth goes, was divine, the Son of God. His Father resurrected him, and he lives yet, somewhere in the clouds. (Which clouds, on which planet, orbiting which of the trillions of stars in our Universe with solar systems, the myth does not say.) Some day, the myth goes, Jesus the Son will come back again. Then God, apparently tired of watching and correcting all of our species’ many self-defeating acts, will wind it all up.

To see how this myth might actually lessen Jesus’ practical influence today, click here. But there’s an even bigger problem with this myth: Jesus already has come again. At least someone very like him has, with much the same message. In that sense, the Second Coming is not myth. It’s history. The “Second Coming” already has come and gone.

I’m going to make the analogy, but I’m not going to name him. By the time I get through, you’ll be able to do that, especially if you are American.

Who was Jesus? He was a member of a small tribe of people (Jews) living on the periphery of what was then a mighty empire, ancient Rome’s. The tribe was insular, with its own language and script and its own religion. Relative to that great empire, it was small, powerless, and lacking in influence. It was generally despised.

Jesus was an absolute nobody, even within that tribe. He came from no powerful family. He had no high office. He attracted a ragtag group of followers with his unusual and compelling ideas.

He preached love and tolerance in a time of incessant war and hate. With his admonition to “turn the other cheek” if struck—let alone “love thy enemy”—he preached non-violence. Because his strong ideas attracted an unusual following, he attracted the attention of Rome’s local powers, including Herod. They tried him as a common criminal and executed him by crucifixion alongside two common criminals.

The Second Coming is hardly ancient history. He’s in the memory of every living Baby Boomer. He also grew up inside a powerful empire, one that (coincidentally) most resembles ancient Rome today. He, too, was a member of a despised and marginalized group. Like the Jews in ancient Egypt, his ethnic group had been slaves, too.

Jesus’ modern counterpart also had no secular power. He was a nobody from a nothing family. Unlike Jesus, he got his start in an existing religious organization. But like Jesus, he rose to prominence and even adoration on the strength of his unusual ideas.

The Second Coming, too, struggled to express the power of cooperation, not conflict. He, too, oft used the word “love.” But he struggled for something more comprehensible in a secular age of huge nations and mighty armies, with incomparably more powerful weapons than in Jesus’ time.

Eventually, he settled on the concept of “non-violence,” of making social change by voluntary, cooperative action among people of good will. He preached appealing to every person’s goodness, empathy, and sense of justice and mercy. If that was less than “love,” it was far more comprehensible and compelling in a world that had just endured the most destructive war in human history and that had just invented, and had used, history’s most powerful weapon.

Like Jesus, the Second Coming was killed before his time, and for his unwanted social and political influence. But there were some big differences. Rome had killed Jesus by official criminal process, primitive as it then was. Jesus’ murder had been an act of state.

Not so today. The Second Coming was assassinated by an ordinary person, acting on his own. At times and in places official action may have encouraged the murder. But it was neither officially condoned nor perpetrated by any state.

More important still, the Second Coming heavily influenced the powers that were. He became an informal advisor to his nation’s supreme leader. Even while escalating a great war, that supreme leader managed to get that nation’s legislature to pass laws giving the Second Coming’s ethnic group certain rights that it had long coveted, and that it fully deserved.

Furthermore, the death of the Second Coming was marked not just by riots among the oppressed, but by official funerals and mourning. Today, most major cities in his nation—and many minor ones—have streets named in his honor. He remains one of our greatest national heroes, perhaps the closest thing we have to a secular American saint.

By now, unless you are brain dead or haven’t passed junior high school, you know whom I’m writing about. If you think hard about the analogy—and suspend for a moment whatever belief you may have in Jesus’ divinity—you have to confess that the analogy is striking.

The message of both Jesus and his Second Coming is compelling, if only we could heed it. What could we accomplish, as a species, if only we could put into practice Jesus’ message of “love,” or at least his Second Coming’s message of non-violent cooperation!? We could cut our global CO₂ emissions in short order, arrest climate change, slow our population growth, support and uplift (not suppress) minorities and marginalized peoples worldwide, and generally make our small blue planet a paradise to match the mythical Garden of Eden.

But we humans are slow learners. No matter how intrinsically compelling and brilliant new ideas may be, we have trouble overcoming our primitive instincts and our tribalism.

Perhaps this is true of most, or even all, intelligent species. Having evolved through hard competition, with only the fittest surviving, maybe they allow that competition to carry over into regional and national governments, producing more and more technologically sophisticated warfare, with more and more deadly results.

Maybe every intelligent species, by the time it discovers atomic energy and nuclear weapons, is on the verge of self-extinction, just as are we today. Maybe this “natural” progress of accumulating power without conscience or reflection is the real source of the Fermi Paradox. Maybe there are millions of habitable planets much like ours, on which intelligent life evolved. But maybe we can’t discover any because most, if not all, failed to take the sage advice of their own Jesuses before it was too late.

If we look analytically at our species’ reaction to our own two, the analysis is not promising. A good teacher would have to give ancient Rome’s immediate response to Jesus of Nazareth a grade of F, notwithstanding subsequent ages’ better receptivity to his message. In comparison, our American response to the Second Coming perhaps rates a C-, or even a C+. That’s a lot better, but still not good enough to insure us against complete or partial self-extinction.

We Americans have made some progress in improving the treatment of our marginalized peoples. But our main achievement in international warfare seem to have been providing better weapons and intelligence to help hapless victims of aggression, as in Ukraine. It’s hard to see how the wisdom of Jesus and his Second Coming can be imposed by force of arms.

So time could be running out for us as a species. Will there be a Third Coming? If so, will enough of us recognize him or her and heed the message to avoid species self-extinction, whether by nuclear war, runaway global warming, or an awkward, divisive and uncooperative response to a far more deadly pandemic?

The celestial jury is still out. But we’ve also had two other messengers to demonstrate the power of non-violent persuasion in lesser empires: Mahatma Gandhi and Nelson Mandela. On our ability to learn from them all more quickly, and take their common messages to heart, our species’ survival and happiness depend.


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Saving What’s Left of the Enlightenment

Nobody talks, writes or thinks about the “Enlightenment” much any more. In the span of human history, it was short, sweet, geographically confined and relatively recent. But it was a vitally important period of explosive growth in human knowledge and betterment. It led to modern democracy, modern science and technology, and modern politics and social life.

It made our modern world. When it began, it was a “new” way of thinking that revolutionized human life on Earth.

What was it, really? It’s hard to put your finger on it, because it was so many things at once. In 1616, Galileo Galilei was excommunicated for inventing “science” as we know it. He had turned his own, Kepler’s and Copernicus’ meticulous astronomical observations into the heliocentric theory of our Solar System. His theory had challenged the Pope’s still-vast authority over most non-political thought.

Think about that for a moment. At that time, there were no real democracies on Earth. Those of ancient Greece’s city-states and ancient Rome were distant memories. Kings, the occasional queen, czars, emperors and other monarchs still ruled the world, nation by nation, including China. There had been engineering, mostly of structures and weapons, but no science. The Pope, a single man (in all senses of that word), told the Western world what to think about almost everything outside of practical day-to-day politics and waging war. He dictated how to conceive the Universe.

Yet change was afoot. Within ten years of Galileo’s inventing modern science, the English Parliament passed the Statute of Monopolies. That law restricted Queen Elizabeth I’s power to reward her favorites economically with royal orders granting them monopolies. She had discovered, quite by accident, that monopolies of common products like playing cards and soap allowed the monopolists to get very rich, very easily, without her increasing general taxes. Members of Parliament and their constituents had discovered, by hard experience, that artificial monopolies raise prices and cut production, harming the economy and the people it serves. So they outlawed them.

Thus were modern science and modern scientific governance of economies both born nearly simultaneously. Both arose within a ten-year period, in the early seventeenth century, in two very different places, Italy and England.

Democracy was slower to re-evolve. But it, too, began to grow at “Warp Speed,” at least compared to the stagnation of the 1,200-plus years of Dark Ages after the fall of Rome.

Pushed and pulled by a rising Parliament, Elizabeth I became one of the most enlightened monarchs in human history. She fostered peaceful royal succession, to replace an endless chain of assassinations. Under her reign, exploration, trade, commerce, and science flowered in England, and reason began to prevail over tribal and family conflict. Perhaps England’s then-long period of peace helped facilitate this transition: it had suffered no major invasion since the Norman Conquest in 1066, and it had prevailed over its immediate neighbors, Ireland, Wales and Scotland, with relative ease.

Whatever the precise reasons, the flowering of science, commerce, trade and exploration in and from England became something of a Western paradigm. Our own American democracy arose out of it.

When our own Thomas Jefferson wrote “All Men are created equal,” many now say he was showing his hypocrisy. He explicitly excluded women, and he implicitly excluded Black slaves, including his own. But his words were nevertheless revolutionary for the time. What he meant was that smart, well-educated, wealthy white people like himself did not have to kow-tow to a monarch anointed by heredity. They could create their own society in a “new land” (new to white Europeans).

And so they did. Their conception was flawed for being too narrow. The plan of government that they gave us is just now coming apart, due to its inherent inner conflicts, its many cases of minority rule (mostly intended to preserve slavery), and its failure to anticipate that all-powerful Supreme-Court justices, appointed like ancient monarchs for life, would preserve something very like monarchy in the Nuclear Age.

But notwithstanding these flaws, the “New Republic” that Jefferson and the rest of our Founders created was indeed something new under the Sun. From humble and unruly frontier beginnings, enriched by massive immigration, the United States has become the world’s most powerful nation ever. It remains the world’s richest, even as a much more populous China continues its meteoric rise.

Think about that. Recorded human history is less than six millennia long. In the mere four centuries since Galileo and the Statute of Monopolies—about one-sixteenth of recorded human history—modern civilization rose like a rocket. In the time of Galileo and Queen Elizabeth I, there were no cars, trains, planes, non-sailing ships, submarines, electricity, telephones, radio, television, AR-15s, nuclear weapons, surgery, antibiotics, anesthetics, vaccines, MRI or CAT scanning machines, laparoscopes, genomic medicine, artificial satellites, or traces of our species left on the Moon—to name just a few of our everyday modern miracles. Now there are all of these things. And nearly all of these inventions, achievements and novelties arose out of the United States, England and/or continental Europe, the Enlightenment’s primary centers.

So what was the Enlightenment, really? Can we nail down its essence without regurgitating several centuries of history? I think so. The Enlightenment’s essence was a new way of thinking, about ourselves, our species, our conception of reality, our relations among ourselves, and our place in the Universe.

Lots of words and phrases beat around the bush, but few directly hit the mark. We can say “realism,” “empiricism,” “science,” the “scientific method,” “rationalism,” “rationality” and “reason.” All are apt, but none encapsulates the whole.

The essence, I submit, was an understanding of reality, writ large. We live in reality, but we have trouble conceiving it and focusing on it. Our hopes, dreams, wishes, yearnings, loves, hates, prejudices, and tribalism get in the way.

But reality is neither our emotions nor our culture, although they are part of the “reality” we experience. Reality is something objective and untouchable. We can appreciate it, and sometimes bend it to our needs, only with our “slow thinking,” not our instinctive reactions or “fast thinking.” It’s something we must work hard, study, and ponder to appreciate.

Knowing “reality” takes our conscious minds and considerable education and training. Our human brains are limited in size and understanding, so we divide the work among us by specializing in innumerable fields.

Few of us, without special training, would try to program or design our own computers, fly a commercial airplane, operate a nuclear power plant, take out our spouse’s or child’s appendix (one of the simplest of surgical operations), diagnose or attempt to cure a loved one’s cancer, or presume to design food packaging that is safe, robust and biodegradable. But everyone has an opinion on the national debt, how to reduce it, how necessary is “welfare” for the unfortunate, whether doctors and women or the law should control abortion, and whether we have too little or too much “freedom” in our land. (An interesting recent series in the Washington Post reveals how many think they could grab the yoke of a big aircraft in an emergency and land it, and just how wrong they are.)

And so we have an historic impasse, a paradox, if you will. One of the Enlightenment’s key tenets was the concept of “equality.” At the beginning, it was a mere product of “pure reason,” one of Thomas Jefferson’s “self-evident” truths. But science now tells us that all human DNA is 99.9% identical. The genetic differences among us—including those used to justify the wholly artificial construct of “race”—are minor and practically negligible compared to our similarities.

Science also tells us that education and upbringing in our earliest years, perhaps even in the womb, determines what we will become as adults. This knowledge, confirmed now with multiple large-scale studies, imposes a heavy burden on human societies. Now we know that every human child relegated to growing up in poverty, or denied a proper education and upbringing from the earliest years, is not just a loss to that child and family, but a loss to all of us. It is one more human being we may have to nurture, care for and perhaps correct in adulthood, and one less adult who, if properly nourished and educated as a child, might have helped us reach the stars.

Continuing the Enlightenment requires, at a minimum, investing heavily in early-childhood education for every single child in America and the world. That’s why leaders like Wes Moore, the new Governor of Maryland, who is doing precisely that there, can help put us back on track.

But saving the Enlightenment requires much more than investing furiously in every child as part of our common future. It requires successfully fighting the forces that, quite deliberately and consciously, are trying to unwind the Enlightenment for their own personal benefit.

Part of the “reality” to which the Enlightenment draws our attention is what we lightly call human “nature.” Each of us is, to some degree, selfish, greedy, and eager to dominate or use others. This truth is a product of our biological evolution, our survival in primordial competition for territory, food and mates among our primate rivals in field and forest. You have only to consider how team sports have become gigantic and beloved businesses worldwide to know how deeply competition is embedded in us.

In business, greed and competition are not entirely bad things. Henry Ford was a fierce anti-Semite and an industrial tyrant of the first order. But he invented the assembly line and mass production of cars. More important still, by unilaterally deciding to pay his workers a living wage in 1914 (then $5 a day), he also “invented” our consumer economy. Elon Musk appears to be following in Ford’s footsteps, producing a world-changing electric car and a reusable rocket that might take us to Mars, all the while spewing forth a prodigious amount of useless or counterproductive blowhardry.

It’s bad enough when otherwise successful business people produce dangerous nonsense like Ford’s “Protocols of the Elders of Zion” (a fictitious anti-Semitic tract) or almost every one of Musk’s Tweets not focusing on his real businesses. But when successful people devote their considerable energies, talent and wealth to undermining the Enlightenment’s foundations, the result can be catastrophic.

Unfortunately, that’s precisely what’s happening today, and has been for decades. We Americans like to tickle our dark sides with stories of old Soviet and present Chinese propaganda. But there never has been, and never again may be, propaganda organs as clever, powerful and effective as American advertising and “public relations.” With ruthless practicality and efficiency, we Americans have created by far the best “hidden persuaders” in human history. Among them is Fox.

Today those persuaders have been put to work not just selling products that may not be quite as good as advertised, but also making the voting public believe things that are just not so. The thrust of this work has been to undermine voters’ confidence in government, expertise, specialized knowledge, and science itself.

Don’t take my word for it. Spend an hour and watch a brilliant TV news show, “Manufacturing Ignorance,” produced in English by Deutsche Welle, Germany’s counterpart to the BBC. It reveals how purely commercial US interests delayed public understanding, and hence public action, on the health hazards of smoking, the global-warming effects of burning fossil fuels, and the disruption of human endocrine systems and other human biology by certain plastics, including BPA and multiple variants of PFAS.

The propagandists’ methods were hardly direct. They did not (because they could not) directly challenge relentlessly emerging science to the contrary. Instead, they created doubt and confusion, with sponsored and sometimes bogus “research.” Then they amplified the doubt persistently with advertising and public relations. Thus they delayed public action and resulting harm to their sponsors’ bottom lines, at the cost of continuing harm to the general public, American society and our species.

In the cases of cigarettes and global warming, this approach delayed effective public action for decades, with virtually no cost or penalty to the propagandists or their sponsors. Millions of lives were cut short by cancer and emphysema. Tens of millions more were, or will be, lost to climate change and its vicissitudes.

Welcome to the world of George Orwell, American style! Once upon a time, Orwell’s England had been one of the Enlightenment’s principal centers. Now the deliberate manipulation of public opinion and sentiment that he so vividly described in his dystopian novel 1984 has come to life in the United States. There it is used as a tool by business, not government, for venal purposes. Those purposes include reducing taxes on and regulation of business, and the hobbling of the expert regulatory/administrative apparatus that protects us from unsafe food, drugs, vehicles and workplaces, and polluted air, water and soil.

Besides intrinsic equality among people, the Enlightenment’s most important foundation was clear, practical and realistic thinking. Call it “realism.” Call it identifying “cause and effect.” Call it “science.” Call it “good and valid information.” Call it just “clear thinking.” Whatever you call it, it produced the Declaration of Independence, the United States, the now-waning American Century, and the strongest, richest, happiest and most equal society yet in human history. (You can’t say it produced the structure of our government, which was a dismal compromise carefully calculated from the outset to preserve and perpetuate the abomination of slavery.)

Our current era’s direct assault on the American public’s clear thinking and assessment of risks is as serious an assault on the Enlightenment as anything since Galileo’s excommunication (which ultimately did not stop his research or its ultimate publication). Our nation’s quasi-religious faith in the First Amendment and the so-called “marketplace of ideas” makes it all the more serious. An all-penetrating medium like the Internet, which can magnify lies algorithmically, instantaneously and automatically—and now with the aid and verisimilitude of artificial intelligence—makes the impact of old Soviet, German Nazi and wartime Imperial Japanese propaganda seem child’s play in comparison.

Our own era’s Demagogue vaguely resembles ancient Rome’s great counterpart, Julius Caesar. Caesar was much more talented: he was a successful general and talented writer of history, some of which he made. But just as Caesar’s assassination failed to forestall Rome's eventual division and decay, so the defeat or even the death of our own Demagogue will not preclude our own. For his success is but a byproduct of massive, deliberate, pervasive and highly effective distraction and delusion of our people by rich and powerful people acting in their own self-interest, over most of the last half-century.

Our own Demagogue did not invent the techniques of public delusion. He’s not even a particularly gifted practitioner. More gifted foreign spooks have amplified his false messages, for their own advantage, more skillfully. They continue to do so. The facts of his continued sway over a substantial minority of our people, and of his virtual capture of an entire political party, show just how powerful the technique of rule by manufactured ignorance and deliberate incitement of passions can be.

The underlying problem is our religious faith in the First Amendment and a “free marketplace of ideas.” That marketplace exists only in our abstract imagination. In reality, the Internet and our visual media have become open sewers of lies, falsehoods, distraction, deception and manipulation. They will only grow in power, influence and public persuasion as AI augments the volume of lies, their instantaneous direction to susceptible minds, and their false “realism”.

In identifying this problem, I don’t mean to belittle its magnitude or the difficulty of solving it. Free speech is an important tenet of our democracy and indeed of the Enlightenment. But Enlightenment thinkers never had to contend with “free speech” that is deliberately and systematically false or distracting, intended to confuse the entire public for ulterior venal motives, and directed to susceptible minds with electronic speed and precision. And they had nothing like the Internet, which can propagate the resulting sewage worldwide in milliseconds. Today we have all these things.

If we Americans and our Western and Japanese counterparts cannot solve this problem, the Chinese and Russians will solve it in the age-old way. They will have a supreme leader—a Pope or a Czar or a Xi—telling people what to say and think and media what to report as true. And with the inadvertent cooperation of our own capable propagandists, operating in their own or their sponsors’ venal interests, they could very likely win. The Russians, Chinese and our own, powerful, venal interests have already shown their skill at a common task: dividing, distracting, deluding, deceiving, confusing and inciting the people whom our democracy is supposed to serve.

So let’s be practical, clear thinkers once again. “Free speech” is one of our American sacred cows. It’s dear to us as a people. But does it require giving rich and powerful people carte blanche to promulgate lies, deception and incitement without limit, in their own narrow, personal, venal interest, with all the power, scope and volume of the Internet? Does it do so when the consequence almost certainly will involve destroying popular democracy and our rules-based Republic and replacing them both, eventually, with something like a softer, wealthier and perhaps less brutal version of Vladimir Putin’s incompetent mafia kleptocracy?

If not, then we’d better start thinking and planning like the social-problem solvers that our Founders thought they were, and that we used to be throughout most of the past century. Even Richard Nixon, the relentless demonizer of Communists, tried wage and price controls when he thought that nothing else would curb inflation. We must do whatever works to stem the tide of crazy, lest we end up on the ash heap of history, and at warp speed compared to ancient Rome.

For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

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The Common Law: an Antidote to Section 230

For most of a millennium after Magna Carta, our Mother Country England developed a unique—and uniquely successful—system of law. We call it the “common law.” It still exists in the US and most other English-speaking countries today.

The common law had a unique advantage over other systems of law. Where it still prevails, it still has the same advantage.

It doesn’t try to predict and micromanage human behavior in advance. Instead, it recognizes certain general principles of responsibility and excuse. It allows those principles to develop organically, through a system of precedent, by means of case-by-case decisions that take all relevant facts into account.

At its essence, the common-law system is one of legal humility. It recognizes that no one is smart enough to decide, in advance, what facts might be relevant or important in cases that haven’t yet arisen.

Common-law courts apply the previous decisions of equal or higher courts by analogy. They “make” new law only when the old law is inapplicable; and even then the new law must be consistent with the old. In this way, the common law evolves organically, in response to the needs of a developing and maturing society.

One of the common law’s greatest products was the concept of negligence. In pre-industrial societies, most killings and injuries were intentional. But as cities grew denser, roads more congested, and conveyances and machines more powerful, more people came to be killed or injured by accident. So courts had to decide under what circumstances a person associated with an accident would be liable. Over centuries, common-law courts developed the concept of “negligence” as the failure to use reasonable care.

But even today, “reasonable care” is a standard, not a precise specification. Today’s courts invite expert testimony on the standard of “reasonable care” in settings as diverse as an auto accident, a factory’s assembly line, a transcontinental airplane flight, or the application of genomic medicine. At common law, they apply the same general standard, with care and discretion, to everything from overturning carts to mishandling of radioactive isotopes. That’s what judges at common law can do.

The common law thus recognized a basic truth of the human condition. People’s intelligence and imagination are limited. Even the wisest legislators or judges can’t conceive—let alone predict with accuracy—all the messes that human beings may find themselves in a decade or a century ahead. In a rapidly developing commercial, scientific and social society, those disputes can change rapidly and radically.

There will always be unpredicted and unpredictable circumstances and contingencies. There will always be unforeseen excuses and justifications that beg for analysis with care and wisdom.

That’s why we have judges. And that’s why, in appointing or electing them, we carefully consider their education, qualifications, experience, temperament and impartiality. We understand that, in each of our own personal lives, there is no substitute for having a wise man or woman look at all the evidence, after the fact, and make a reasoned decision on our fate or liability when we are accused of a crime or sued in civil court.

Unfortunately, in our zeal to build a highly sophisticated, complex, specialized and powerful scientific-technological society, we have neglected this human wisdom. We have forgotten that we are and will remain flawed and limited creatures, with very little useful foresight. Increasingly during the last century, we Americans began to abandon the common law’s timeless wisdom in a futile attempt to micro-specify and micromanage everything with detailed statutes and regulations.

Don’t get me wrong. Detailed regulation has its place in our complex scientific-technical society. Regulating the precise contents of drugs and medicines is rational. So are precise numerical limits on the amount of poisonous pollutants in our water or air, greenhouse gases in our warming climate, dangerous impurities in our food and drugs, and the level ozone in the air before we warn people to stay indoors and avoid exercise.

But there is as yet no reliable scientific-engineering formula for human care and culpability. As a society, we laud “risk-takers” as “entrepreneurs” or scientists, at least when they are successful. But daredevils and many criminals are also “risk takers.” How do you tell the difference? There is as yet no scientific-engineering formula for that.

So at a basic human level, when we consider human motivation, culpability, reward or punishment, there is no engineering or scientific formula for analysis on which we can rely. When we get down to crime and punishment, or civil reward and liability, we must rely on case-by-case analysis, after the fact, as under common law.

That, in a nutshell, is why Section 230 was such a catastrophic mistake. Not only did it reject common-law, case-by-case, after-the-fact analysis as a method of governance. By its very terms, it purported to wipe out the entire common law of defamation, as applied to the most powerful means of human communication ever invented, namely, Internet platforms. In immunizing the only practical choke-points for lies promulgated by foreign spooks and extremists hiding behind electronic Internet anonymity, it effectively opened the floodgates to lying by anyone who could afford a laptop.

In a society whose First Amendment is a near-absolute endorsement of free speech, the common law of defamation (and it business cousin “trade libel”) was the only thing in our law that penalized lying. Section 230(c)(1) entirely wiped out the law of defamation as applied to owners and operators of those platforms. It immunized them from the common-sense liability that had applied to everyone in English-speaking societies, with increasing sophistication and sense, from the middle of the last millennium.

This was not evolution. This was revolution. It was a revolution in law wrought by lobbyists for rich and powerful industrialists in a single-sentence midnight amendment that, to my knowledge, never underwent legislative hearings or public discussion before becoming statutory law. (The tipoff is the title of Section 230(c), which doesn’t even match subsection (c)(1).)

Section 230(c)(1) was a product of legislative negligence of a high order. I’m astonished and disgusted that a progressive Senator whom I generally admire, Ron Wyden (D., Ore.), still supports it. As far as I can tell, he and other senators adopted it in 1996 based largely on the following simplistic syllogism, offered by Silicon Valley lobbyists:

“The Internet is the mightiest tool of communication and enlightenment in human history, which we Silicon Valley geniuses are bringing to America and the world, mostly for free. If we are taxed with liability for what other people say on it, we will sit at home and pout, or we will drag our heels, and we will fail to develop it. So if you don’t exempt us from the same liability for defamation that now applies to every newspaper publisher and radio and TV broadcaster in the country, you will destroy the twenty-first century’s greatest gift to democracy and humanity, which we are otherwise ready to provide.”

Maybe this is hyperbole. But if so, only a bit. This is the essential lure that Congress gobbled up, hook line and sinker, without a thought to possible consequences. Among those consequences, we have already seen an explosion in lying about politics and elections, an attempted insurrection based on those lies, and a people made largely reluctant to accept the most miraculous vaccines ever invented, even to fight a global pandemic.

Never to my knowledge has an entire industry been made so categorically exempt from the normal rule that action that causes harm has consequences. Never has Congress granted such a categorical exemption not just from the law of defamation, but arguably from all of tort law. (I argue against such an exemption here, but the Supreme Court’s recent decision refusing to touch Section 230 tilts to the contrary.)

The solution, to my mind, is astonishingly simple. It’s to repeal Section 230(c)(1), with a statutory preamble stating clearly Congress’ intent neither to specify or preclude liability, but to let the courts of our great nation do their common-law jobs, on a case-by-case basis.

Maybe defamation and disinformation on the Internet are indeed different. Certainly providers and operators of Internet platforms should not be treated the same as foreign spooks and Internet extremists who willfully promulgate misinformation, hate, and incitement to discord and violence. But just as certainly, if the platforms are exempted from all liability, as Section 230 purports to do, lies, misinformation, and foreign and domestic propaganda will overwhelm truth and sanity, and our ship of state will founder in a sea of lies.

It is not for Congress to micromanage the Internet. Congress has nothing like the expertise, let alone the time and patience, to deal with an avalanche of self-motivated lobbying and yes, motivated lying that would ensue. The proper way to handle Internet misinformation and hate is under the common law.

Let courts review each case, after the fact, with all the knowledge that comes from evidence— not speculation or lobbyists “studies” (often a form of pseudo-science). Let them review, in detail, the damage and the harm, what was known to the platform and its employees and executives, the attempts (if any) they made to reduce or avoid the harm, and the costs of doing so. Let them even consider the likely effect on the Internet and society as a whole, with the aid of evidence- and science-based expert testimony developed after the fact.

This incredibly complex and nuanced assessment of culpability and responsibility will be hard enough to assess after the fact, when all the considerations, precautions and consequences are known, and the only speculation might be what else the platform might have done. There is no way that Congress—or any other human institution—can create a useful general rule in advance, let alone under an avalanche of lobbying from interest groups pushing their own abstract agendas.

This is a matter to trust to our courts, to resolve piecemeal, step by step, case by case, under common law. That’s how we got from assessing ox-cart accidents in the King’s Courts to dealing with intercontinental air terrorism, industrial explosions and railroad disasters today. The technology may change, but the general need for meticulously developed standards of care to avoid foreseeable harm doesn’t.

Resort to the common law is essential for another reason. Under existing Section 230(c)(1), Internet platforms’ managers know with certainty that they will never incur liability for harm caused by lies or hate pushed by others on their platforms. Therefore, every penny they spend to curtail those lies or hate is an unnecessary expense, motivated, if at all, by altruism and good citizenship. In nation that runs on profit and loss, and whose Founders based on a careful balance of powers, that’s a weak foundation for either democracy or science.



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Are We the New Rome?

No, I’m not an historian. From early adolescence well into senescence, I’ve mostly occupied myself with fields based on reason and current reality—first science and engineering, then law and social organization. Learning the names and succession of kings and other tyrants, their endless conflicts and alliances, and their futile attempts at building durable empires, has always seemed to me a fruitless endeavor, one without evident benefit or end.

But ancient Rome was different. I spent four pre-college years learning Latin, the language of Rome. Well into professing law, I stopped to devour Anthony Everitt’s celebrated biography of Cicero, one of Rome’s greatest orators and politicians.

Why? Because Rome, until the twentieth century, was unique. It was not just one of the greatest and most powerful nations in human history; it was also, at least for most of its regional supremacy, democratic. The standards that Roman legions bore as they relentlessly conquered the known (Western) world proclaimed “SPQR,” or “Senatus Populusque Romanus.” That meant “the Senate and the People of Rome”—not the name of the current emperor, dictator or commanding general. Unlike every other ancient great empire we know of, Rome conquered not in the name of a despot, but its people.

Conscription, in ancient Rome, was for twenty years, not four. But young men from the hinterlands willingly signed up in the hope that, if they survived the brutalities of war that long, they would become elevated from nobodies, or from captured slaves, to “Citizens of Rome,” the greatest ancient empire ever outside of China.

And as far as we can tell today, Rome treated people of all colors and creeds more or less equally. There was no concept of racial superiority. That demented notion thrived in eighteenth-century America, apparently to justify and perpetuate the enslavement of people shanghaied from Africa. The Nazis later “perfected” it, only to have their “Thousand-Year Reich” flame out in a dozen years.

But Rome itself, albeit after several centuries, also was gone. Its democracy, its democratic Senate, its laws, its world-beating military and social organization—all vanished. The tides of history erased them as if they had been nothing more than sandcastles on a beach. Even the noble Roman language—Latin—disappeared, eventually morphing into modern French, Italian, Portuguese, Romanian, and Spanish. It survives today only in history books, in the “classics,” and in bits and pieces in law, medicine and proverbs.

Ancient Rome had no science. Galileo and his contemporaries didn’t invent science until early in the seventeenth century, far more than a millennium after Rome fell to Alaric the “Barbarian.” But ancient Rome had superb civil engineering, which you can still see in modern Rome today. The Coliseum, the Forum, the aqueducts and viaducts (some still in use!), emperors’ villas and some Roman cities throughout Eurasia all still stand as mute testaments to the inventivity and power of ancient Rome.

Yet the culture and the nation behind those structures vanished over a millennium and half ago. Why?

Isn’t that a key question of human history? Answer it, and we perhaps can prevent something similar from happening to the United States of America. For in human history there has never been another real democracy with the global reach, power and influence of our own nation, except for ancient Rome. (Britain, perhaps, was once a contender, but its global influence, which really lasted less than three centuries, has already dissipated, with Brexit a following indicator.) Except for Rome and the US, all the great empires of human history have been monarchies or tyrannies of one sort or another, many of them vying to be more brutal, capricious and despotic than the last.

If we can figure out what did away with Rome and its rational and egalitarian social organization, maybe our own faltering democracy has a chance to survive and prevail. Then maybe future human history can become something more than a dispiriting parade of sequential despotisms.

No doubt a democracy, at its best, keeps its people better off, happier, and more dedicated to its survival than tyranny. So why did Rome die?

I’ve been thinking about this question for over sixty years, ever since I graduated high school. So far, I’ve come up with only three big themes to explain Rome’s slow but sure demise: corruption, vulgar degeneration, and environmental poisoning. Let’s look at each in turn.

Corruption in Rome was classic. Many Roman senators achieved their positions through business or business connections. As time when on, their businesses incurred debt. So they used their political power to get the state to pay if off. The state fisc declined. Promises of land and pensions to soldiers were broken, and society slowly came apart. This process, perhaps the first case of “corporate welfare,” Everitt describes in his biography of Cicero.

Corruption is a universal human evil. Our world’s most successful current despot, Xi Jinping, once recognized this point. His struggle against corruption in China was a big part of his rise to power. Yet to get there, he subordinated the Plenum to his personal despotism, descreasing its membership from nine to seven. Then he made himself the sole successor to Mao—something akin to a secular deity in modern Chinese governance. All this he has done now, and so he has become a king or emperor in all but name.

But Xi neglected (or never understood) a controlling principle. The more concentrated political power becomes, the more quickly and easily corruption prevails.

As power concentrates at the top, the fewer people there are to pay off or influence to achieve one’s personal goals. Rich people’s influence increases as their money rises to the top. So perhaps the best way to resist their influence is to distribute political power.

It propbably doesn’t matter much whether the mechanism of distribution is federalism, a regulatory bureaucracy, an “administrative state,” or something else. The ancient Chinese were pretty successful with their expert Mandarin bureacracy, selected through rigorous testing. Its motto of power distribution was, “Heaven is very high, but the Emperor is far away.” The more people who have influence in decisions, the more they consider local needs and conditions, and the more they base their decisions on neutral, non-pecuniary principles, such as science, the harder it is for corruption to take hold.

This, of course, is precisely why our own Demagogue rails against the so-called “Deep State.” A Deep State involves a lot of people, including some who respect non-pecuniary principles like science and the “greatest good for the greatest number.” The more people like that there are in a society, and the more power they collectively wield, the more resistant their society is to corruption.

Of course we Americans are now going in the wrong direction. Our own Supreme Court—the closest thing to a despotic power our Constitution provides—is a perfect example. It concentrates absolute power over the structure and principles of our democracy in a cabal of nine fallible minds. With lifetime appointments and Congress now so divided that impeachment is practically impossible, none of the nine is accountable to anyone. (The recent controversy over Harlan Crow’s generous gifts to Justice Clarence Thomas is just the latest proof of this enduring reality.)

Already, the rich in our nation have managed to capture this citadel of power with a thing called the Federalist Society. This is a small, relatively new and elitist arm of the rich and their interests. Almost without anyone noticing, over the last several decades it has managed to steal the gatekeeping role of vetting Supreme-Court nominees (at least during Republican presidencies) from the American Bar Association, a much bigger and more democratic body that formerly played that role.

So if you want to see our democracy succumb to corruption, just as did ancient Rome’s, watch the processes of: (1) concentrating power at the top; (2) taking policy-making authority from recognized experts with Ph.D.s and putting it in the hands of partisan political hacks like Karl Rove (what the old Soviet Union used to call “Commissars”); and (3) reducing the number of people and steps involving in policy making, so that money can find easier purchase.

The second big theme in the degeneration of Rome’s democracy was what I call vulgar degeneration: the seduction and corruption of ordinary people. At the end of the day, we are all vulnerable flesh. Shakespeare said it best, in his play The Merchant of Venice, from the mouth of a Jew: “If you prick us, do we not bleed? if you tickle us, do we not laugh? if you poison us, do we not die? and if you wrong us, shall we not revenge?” The more a society operates at a primal level of crushing vulnerable flesh in violence and revenge, the more the rich prevail, with their wealth, well-paid lawyers and hired muscle.

Today we forget how vulnerable the common person was in ancient times—even the much admired “Citizen of Rome.” In those days, there were no universities and no police forces. The rich enjoyed personal protection by virtue of their paid guardians and armed slaves; the poor had to survive by their own wits, subordination to the powerful, and personal fighting skills, if any. Most of the poor couldn’t even afford proper weapons, then well-tempered swords and daggers, let alone training to fight well.

So the “bread and circuses” that Caesar and other demagogues introduced served two seemingly contradictory purposes. First, watching a losing gladiator being dismembered, or an early Christian being eaten by lions, allowed the common Roman to experience a brief reprieve from constant danger. He could think, “At least I’m not that poor bastard down there in the arena.” He could, for a moment, share the twisted triumph of a gruesomely violent state. He could even, by cheering or gesticulating, share in the Emperor’s thumbs-up or thumbs-down sealing of the victim’s fate.

But the minute that same citizen left the Coliseum, he or she was even more conscious of personal vulnerability, as a lone man or woman without armed guardians. The Roman Coliseum had a floor of sand, several feet deep, just to absorb all the blood and gore from the human combat and human sacrifices intended to drive these bitter lessons home.

Today we see what took place in the Roman Coliseum as crude, cruel and primitive. But two things in our own society perform similar functions in making ordinary people more vulgar, insensitive and crude, and more conscious of their own personal vulnerability. One is the increasing prevalence of weapons of war in ordinary life, and the regular cadence of massacres of ordinary people going about their daily business. The other is the tendency of pols like the Demagogue to mock and ridicule as “weak” the infirm, those with hereditary or other weaknesses, or just the aged.

Mockery is the human emotion that leads to heedless neglect of people’s dignity and personal security. And too many guns—including weapons of war designed for the battlefield—make them exceedingly vulnerable.

All this is hardly a perfect match for ancient Rome’s gladiatorial combat, “mock” real battles—with real blood, gore and death—and the staged sacrifices of Christians in ancient Rome’s Coliseum. But it all produces much the same political and psychological results.

Too many massacres with too many weapons of war make common people feel helpless and vulnerable, increase their disdain and decrease their empathy for their fellow citizens. This is turn makes them more dependent on, and subservient to, the rich and powerful, who enjoy greater safety in their gated communities, bullet-proof limousines, and private jets with personal bodyguards. The fantasy of ordinary people, unwilling to train themselves constantly as disciplined soldiers, being capable of defeating hardened criminals or suicidal maniacs with weapons of war, only increases the risk of mayhem and tragedy, and hence their sense of vulnerability.

It bears emphasis that none of this—neither the staged spectacles of real human slaughter in the Roman Coliseum nor the now-regular series of actual massacres of innocent civilians—has, to our current knowledge, ever occurred at the same level in other so-called “advanced” civilizations. What happened in the Roman Coliseum is unique. So is the level of regular gun massacres in the modern United States. Both, when you think about it, have much the same result: making common people feel vulnerable and in need of protection by stronger men, namely, the rich, the powerful and the all-powerful despot. And mocking the infirm, sick and weak is the antithesis of an orderly, decent and fair society, in which the strong protect the weak so that all feel secure.

The third and final major theme I’ve found in the decline of Rome is environmental poisoning. It may ultimately be the most important.

Modern science has established beyond question that ancient Rome’s elite suffered slow poisoning by lead. Rome’s slightly acidic water leached lead from the lead pipes that fed the homes of the emperors, high officials and rich merchants. (Our modern English word for plumbing comes from the Latin word for lead, “plumbum.” That’s why lead’s atomic symbol is “Pb.”)

Rome’s common people avoided this poisoning by getting their water not through plumbing, but from communal concrete fountains fed by concrete aqueducts. So ancient Rome, as a society, poisoned itself from the top down, as shown by lead in exhumed skeletons. This, along with inbreeding among powerful families, is undoubtedly the cause of the series of “crazy” emperors who presided over Rome’s most precipitous spates of decline: Nero, Caligula, and Commodus.

Is something like this slow lead poisoning of a society’s entire elite happening in the US today? It’s hard to tell. It’s also hard to exclude the possibility with any degree of certainty. Science tells us that certain hard-to-degrade chemicals, including BPA and the many thousands of variants of PFAS, appear in all our bloodstreams, where they can have extreme effects on human endocrine systems, far out of proportion to normal dose-response relationships. We also know that the rich people who profit from producing and selling these chemicals have poured a lot of money into delaying and preventing their detailed study and regulation, let alone their phasing out.

In other words, the rich who profit from selling things that may inadvertently be poisoning us are consciously reducing sensible study of, and cutbacks in the use and ubiquity of, those poisonous things. So they thwart us in saving ourselves from something like the environmental poisoning that helped destroy ancient Rome. Thus does the very first cause of Rome’s fall, corruption, likely propel the last, environmental poisoning, in our American case.

But we also have two differences from ancient Rome, one bad, one good. In Rome the lead poisoned only the elite; so the people watched helplessly as their leaders went crazy. Today, the poisons likely affect everyone. They could even be responsible for the increasing craziness of the MAGA crowd and some members of Congress, especially pols who can’t control their diet and eat a lot from plastic boxes while on the campaign trail. Disruption of his endocrine systems could be why Jim Jordan (R., Ohio) seems genuinely and perpetually enraged.

The good news is that we today, unlike ancient Romans, have science. If we can only use it, we can study the gradual poisoning effect in real time—not centuries later—and maybe stop it before it destroys our society, our leaders’ perspectives, our social cohesion and our democracy.

Except for the US, and maybe Britain during its relatively brief maritime transcendence, there has never been anything like the democracy of ancient Rome. According to legend (history is unclear) it took most of a millennium for Rome to perfect its great democracy and decay into empire, then nearly another half a millennium to complete the fall that led to the great city’s sacking. The Pompeiian Civil Wars that the Demagogue Caesar started (but that long outlived him!) were a key element of the political descent from democracy into empire. Corruption, degradation of the common people (the “vulgate”), and environmental lead poisoning were key precipitating factors. Those very same elements appear to be infecting our American society, with violence, discord and the rise of visible social and political “craziness” as evident results.

After Rome fell, the Western World fell into the Dark Ages. I would say they lasted at least 1,200 years—well over a millennium—from Alaric’s sacking of Rome in 410 AD, to Galileo’s excommunication for discovering how Earth orbits the Sun in 1616.

Today we refer to this dismal period eupehmistically as the “Middle Ages.” But they were dark indeed. During that time, China, not the West, reached the pinnacle of human civilization, then fell from grace and into disorder again, while the “Western” world stagnated in innumerable, primitive, now mostly-forgotten imperial struggles—all until the Enlightenment. Only then did the principle of greatest good for the greatest number prevail. Only then did science and modern democracy begin to fluorish.

Today, a general setback for us, similar to Rome’s, might involve the use of nuclear weapons, if only due to a military miscalculation or a transient imbalance of power. If so, our human recovery period could be as long as eight times the half-life of plutonium-239, or 8 x 24,110 years = 192,880 years. (Eight half-lives, which reduce radioactivity by 1/256, are generally considered essential to reach a level safe for normal biology.)

To avoid a new Dark Age lasting some forty times as long as our written record of human civilization so far, shouldn’t we now make a supreme effort? Shouldn’t we try to root out from our society everything that we now know destroyed ancient Rome: growing corruption, a rising, carefully cultivated taste for violence and unreason among our people, and things that we make and use that could be poisoning us slowly but surely?

For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

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