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* Special update: After writing this open letter Professor Philip Pettit of Princeton University called the claims in it “home truths” and allowed us to share his good words publicly. Take action below to urge Gerken to admit the fallacy in her work and support Fair Start legislation that moves us towards the first condition of being free.

Dear Dean Gerken,

This is a great headline: “‘You cannot be an academic or a lawyer and not believe in free speech’: Dean of Yale Law.” And the points you make are compelling. Yale Law School (YLS) is clearly taking a position on the value of free speech in the context of elevating controversial speakers, including some who might reinforce unjust hierarchies based on the history of colonization (Elon Musk leaving South Africa during apartheid with the wealth his family made under it would be an example).

Would YLS be willing to take a position on the need to level the power relations of speakers to complete the commitment to freedom and fairness? Are you assuming speech occurs between free and equal people, when in fact it occurs between people with massive influence differentials inherited at birth that determine how people actually interact, differentials that impact speech and are based on state-backed property rights that are enforced through threats of violence?

YLS and its alums will have intimate knowledge of what concentrations of wealth and power – like working on or with the Supreme Court – look like, even when those concentrations are totally attenuated from the citizens over which they have authority. Would YLS take a position on ensuring liberating power relations through family reforms that should precede free speech forums, especially if the changes needed to ensure that would – by empowering people with meaningful voices in participatory democracies – would long-run mitigate the climate crisis?

And from your work on democracy, I will assume you want those relations to be formed bottom-up, in which case there seems to be only one pathway:

Free people will fundamentally limit and decentralize the power (including subtle influences like climate emissions, the slow dilution of democracy, the concentration of wealth, power and control in a few, and the impact of bad parenting on communities) others have over them. They will not allow themselves to be subject to political systems where they are not actually empowered. How do they do this? Fair Start family reforms, like climate restoration and #birthequity baby bonds to physically constitute democracy and consensual governance using an inversion test, ensure that people are actually empowered long-run – in places like town halls – to make the ultimate rules under which all must live.

This evades the undemocratic concentrations of power that – as Robert Tsai saw – prevent people from constituting true legalities by creating relationships between people that are more empowering than disempowering, relative to a neutral point, like Rawl’s original position. It evades the aborted version of freedom Joseph Raz exposed.

These reforms correct something called the constitutive fallacy: Ignoring the way our creation and development does and (assuming we use baselines like the Children’s Rights Conventionshould – fundamentally – constitute actual power relations, between humans, and between humans and the nonhuman world or nature upon which freedom is based. Each person chooses to commit or evade the fallacy in every normative claim they make by accepting or rejecting particular forms of supreme political obligation like written constitutions and choosing to orient from a relatively just or unjust place. If they did not the idea that governmental authority derives from groups of people, the authority of which depends on the individuals in those groups, would make no sense. This is about the creation of power relations and relative self-determination more than “population.”

From your work I will assume you see the U.S. Constitution as supreme, perhaps limited by some form of international law. Could a more supreme norm exist in the form of whatever norm would best account for creating the people from whose authority these other norms derive?

Who we are might be different mixes of nurture, or nature, or influential power relations like climate policies or our tendency to simply imitate others, but all flow (and among self-determining peoples should flow) from our creation. How do we correct the fallacy: Taking wealth from the top and giving it to young women to ensure parental readiness that avoids things like parents torturing their children to death, #birthequity redistribution of that wealth to ensure true equality of opportunity, and a universal ethic and default of sustainable families that long run ensure decolonization, participatory democracy and the freedom of nature.

One can imagine this process simply as using good democratic representative ratios to move toward what many see as optimal world population ranges. If government is to derive from the people, there must be a first election in which the people decide who is in their polity. Immigration/emigration might have determined that “first election” at one point, but how can we ignore family policy as a more primary form? We cannot and remain in a preconstitutional modes, choosing things like the creation of large populations in the hopes of geniuses magically emerging rather than seeing the genesis of efficiency as actually developing each child to their full capability, as long as we make that mistake.

 Fair Start family reparations override because being just in who we are precedes being just in what we do. And we cannot assign things like property rights that derogate from our being (or constituting the fundamental power relations so that we are) free and equal people. Wealthy people, and the unscrupulous politicians and charities that shill for them, will hide the fallacy, and its overriding nature.  

But without these reforms people will continue to try to wrongly empower themselves through acts of violence., and against the wrong targets rather than the people responsible for or who benefitted from the family policies that externalized the costs of their wealth and refuse to change course. They will harm innocents, rather than those extracting personal power from collective freedom by crowding people (including the future majority) out of town halls and into the shopping malls, the move that fundamentally created the climate and other deadly crises we face today.

Freedom requires forums of speech, like democracies, be bounded by objective norms of human rights, the first of which is the right to have children.

Help us make that right ecosocially fair, to decolonize the future and become sufficiently other-regarding to actually constitute just communities.

TAKE ACTION – Urge heather.k.gerken@yale.edu to complete her commitment to freedom and promote fairness in family policy.

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