Against the concept of intellectual property

The Libertarian Case Against Intellectual Property Rights
by Roderick T. Long

This article was published in the Autumn 1995 issue of Formulations
formerly a publication of the Free Nation Foundation,
now published by the Libertarian Nation Foundation

Outline
A Dispute Among Libertarians
The Historical Argument
The Ethical Argument
The Economic Argument
The Information-Based Argument
First Tolkien Story
Alternatives to Intellectual Property Rights: Some Formulations
Second Tolkien Story

It would be interesting to discover how far a seriously critical view of the benefits to society of the law of copyright ... would have a chance of being publicly stated in a society in which the channels of expression are so largely controlled by people who have a vested interest in the existing situation.

— Friedrich A. Hayek, "The Intellectuals and Socialism"

A Dispute Among Libertarians

The status of intellectual property rights (copyrights, patents, and the like) is an issue that has long divided libertarians. Such libertarian luminaries as Herbert Spencer, Lysander Spooner, and Ayn Rand have been strong supporters of intellectual property rights. Thomas Jefferson, on the other hand, was ambivalent on the issue, while radical libertarians like Benjamin Tucker in the last century and Tom Palmer in the present one have rejected intellectual property rights altogether.

When libertarians of the first sort come across a purported intellectual property right, they see one more instance of an individual's rightful claim to the product of his labor. When libertarians of the second sort come across a purported intellectual property right, they see one more instance of undeserved monopoly privilege granted by government.

I used to be in the first group. Now I am in the second. I'd like to explain why I think intellectual property rights are unjustified, and how the legitimate ends currently sought through the expedient of intellectual property rights might be secured by other, voluntary means.

The Historical Argument

Intellectual property rights have a tainted past. Originally, both patents and copyrights were grants of monopoly privilege pure and simple. A printing house might be assigned a "copyright" by royal mandate, meaning that only it was allowed to print books or newspapers in a certain district; there was no presumption that copyright originated with the author. Likewise, those with political pull might be assigned a "patent," i.e., an exclusive monopoly, over some commodity, regardless of whether they had had anything to do with inventing it. Intellectual property rights had their origin in governmental privilege and governmental protectionism, not in any zeal to protect the rights of creators to the fruits of their efforts. And the abolition of patents was one of the rallying cries of the 17th-century Levellers (arguably the first libertarians).

Now this by itself does not prove that there is anything wrong with intellectual property rights as we know them today. An unsavory past is not a decisive argument against any phenomenon; many worthwhile and valuable things arose from suspect beginnings. (Nietzsche once remarked that there is nothing so marvelous that its past will bear much looking into.) But the fact that intellectual property rights originated in state oppression should at least make us pause and be very cautious before embracing them.

The Ethical Argument

Ethically, property rights of any kind have to be justified as extensions of the right of individuals to control their own lives. Thus any alleged property rights that conflict with this moral basis — like the "right" to own slaves — are invalidated. In my judgment, intellectual property rights also fail to pass this test. To enforce copyright laws and the like is to prevent people from making peaceful use of the information they possess. If you have acquired the information legitimately (say, by buying a book), then on what grounds can you be prevented from using it, reproducing it, trading it? Is this not a violation of the freedom of speech and press?

It may be objected that the person who originated the information deserves ownership rights over it. But information is not a concrete thing an individual can control; it is a universal, existing in other people's minds and other people's property, and over these the originator has no legitimate sovereignty. You cannot own information without owning other people.

Suppose I write a poem, and you read it and memorize it. By memorizing it, you have in effect created a "software" duplicate of the poem to be stored in your brain. But clearly I can claim no rights over that copy so long as you remain a free and autonomous individual. That copy in your head is yours and no one else's.

But now suppose you proceed to transcribe my poem, to make a "hard copy" of the information stored in your brain. The materials you use — pen and ink — are your own property. The information template which you used — that is, the stored memory of the poem — is also your own property. So how can the hard copy you produce from these materials be anything but yours to publish, sell, adapt, or otherwise treat as you please?

An item of intellectual property is a universal. Unless we are to believe in Platonic Forms, universals as such do not exist, except insofar as they are realized in their many particular instances. Accordingly, I do not see how anyone can claim to own, say, the text of Atlas Shrugged unless that amounts to a claim to own every single physical copy of Atlas Shrugged. But the copy of Atlas Shrugged on my bookshelf does not belong to Ayn Rand or to her estate. It belongs to me. I bought it. I paid for it. (Rand presumably got royalties from the sale, and I'm sure it wasn't sold without her permission!)

The moral case against patents is even clearer. A patent is, in effect, a claim of ownership over a law of nature. What if Newton had claimed to own calculus, or the law of gravity? Would we have to pay a fee to his estate every time we used one of the principles he discovered?

... the patent monopoly ... consists in protecting inventors ... against competition for a period long enough to extort from the people a reward enormously in excess of the labor measure of their services, — in other words, in giving certain people a right of property for a term of years in laws and facts of Nature, and the power to exact tribute from others for the use of this natural wealth, which should be open to all."

--Benjamin Tucker, Instead of a Book, By a Man Too Busy to Write One: A Fragmentary Exposition of Philosophical Anarchism (New York: Tucker, 1893), p. 13.

Defenders of patents claim that patent laws protect ownership only of inventions, not of discoveries. (Likewise, defenders of copyright claim that copyright laws protect only implementations of ideas, not the ideas themselves.) But this distinction is an artificial one. Laws of nature come in varying degrees of generality and specificity; if it is a law of nature that copper conducts electricity, it is no less a law of nature that this much copper, arranged in this configuration, with these other materials arranged so, makes a workable battery. And so on.

Suppose you are trapped at the bottom of a ravine. Sabre-tooth tigers are approaching hungrily. Your only hope is to quickly construct a levitation device I've recently invented. You know how it works, because you attended a public lecture I gave on the topic. And it's easy to construct, quite rapidly, out of materials you see lying around in the ravine.

But there's a problem. I've patented my levitation device. I own it — not just the individual model I built, but the universal. Thus, you can't construct your means of escape without using my property. And I, mean old skinflint that I am, refuse to give my permission. And so the tigers dine well.

This highlights the moral problem with the notion of intellectual property. By claiming a patent on my levitation device, I'm saying that you are not permitted to use your own knowledge to further your ends. By what right?

Another problem with patents is that, when it comes to laws of nature, even fairly specific ones, the odds are quite good that two people, working independently but drawing on the same background of research, may come up with the same invention (discovery) independently. Yet patent law will arbitrarily grant exclusive rights to the inventor who reaches the patent office first; the second inventor, despite having developed the idea on his own, will be forbidden to market his invention.

Ayn Rand attempts to rebut this objection:

As an objection to the patent laws, some people cite the fact that two inventors may work independently for years on the same invention, but one will beat the other to the patent office by an hour or a day and will acquire an exclusive monopoly, while the loser's work will then be totally wasted. This type of objection is based on the error of equating the potential with the actual. The fact that a man might have been first, does not alter the fact that he wasn't. Since the issue is one of commercial rights, the loser in a case of that kind has to accept the fact that in seeking to trade with others he must face the possibility of a competitor winning the race, which is true of all types of competition.

--Ayn Rand, Capitalism: The Unknown Ideal (New York: New American Library, 1967), p. 133.

But this reply will not do. Rand is suggesting that the competition to get to the patent office first is like any other kind of commercial competition. For example, suppose you and I are competing for the same job, and you happen to get hired simply because you got to the employer before I did. In that case, the fact that I might have gotten there first does not give me any rightful claim to the job. But that is because I have no right to the job in the first place. And once you get the job, your rightful claim to that job depends solely on the fact that your employer chose to hire you.

In the case of patents, however, the story is supposed to be different. The basis of an inventor's claim to a patent on X is supposedly the fact that he has invented X. (Otherwise, why not offer patent rights over X to anyone who stumbles into the patent office, regardless of whether they've ever even heard of X?) Registering one's invention with the patent office is supposed to record one's right, not to create it. Hence it follows that the person who arrives at the patent office second has just as much right as the one who arrives first — and this is surely a reductio ad absurdum of the whole notion of patents.

The Economic Argument

The economic case for ordinary property rights depends on scarcity. But information is not, technically speaking, a scarce resource in the requisite sense. If A uses some material resource, that makes less of the resource for B, so we need some legal mechanism for determining who gets to use what when. But information is not like that; when A acquires information, that does not decrease B's share, so property rights are not needed.

Some will say that such rights are needed in order to give artists and inventors the financial incentive to create. But most of the great innovators in history operated without benefit of copyright laws. Indeed, sufficiently stringent copyright laws would have made their achievements impossible: Great playwrights like Euripides and Shakespeare never wrote an original plot in their lives; their masterpieces are all adaptations and improvements of stories written by others. Many of our greatest composers, like Bach, Tchaikovsky, and Ives, incorporated into their work the compositions of others. Such appropriation has long been an integral part of legitimate artistic freedom.

Is it credible that authors will not be motivated to write unless they are given copyright protection? Not very. Consider the hundreds of thousands of articles uploaded onto the Internet by their authors everyday, available to anyone in the world for free.

Is it credible that publishers will not bother to publish uncopyrighted works, for fear that a rival publisher will break in and ruin their monopoly? Not very. Nearly all works written before 1900 are in the public domain, yet pre-1900 works are still published, and still sell.

Is it credible that authors, in a world without copyrights, will be deprived of remuneration for their work? Again, not likely. In the 19th century, British authors had no copyright protection under American law, yet they received royalties from American publishers nonetheless.

In his autobiography, Herbert Spencer tells a story that is supposed to illustrate the need for intellectual property rights. Spencer had invented a new kind of hospital bed. Out of philanthropic motives, he decided to make his invention a gift to mankind rather than claiming a patent on it. To his dismay, this generous plan backfired: no company was willing to manufacture the bed, because in the absence of a guaranteed monopoly they found it too risky to invest money in any product that might be undercut by competition. Doesn't this show the need for patent laws?

I don't think so. To begin with, Spencer's case seems overstated. After all, companies are constantly producing items (beds, chairs, etc.) to which no one holds any exclusive patent. But never mind; let's grant Spencer's story without quibbling. What does it prove?

Recall that the companies who rejected Spencer's bed in favor of other uses for their capital were choosing between producing a commodity in which they would have a monopoly and producing a commodity in which they would not have a monopoly. Faced with that choice, they went for the patented commodity as the less risky option (especially in light of the fact that they had to compete with other companies likewise holding monopolies). So the existence of patent laws, like any other form of protectionist legislation, gave the patented commodity an unfair competitive advantage against its unpatented rival. The situation Spencer describes, then, is simply an artifact of the patent laws themselves! In a society without patent laws, Spencer's philanthropic bed would have been at no disadvantage in comparison with other products.

The Information-Based Argument

Though never justified, copyright laws have probably not done too much damage to society so far. But in the Computer Age, they are now becoming increasingly costly shackles on human progress.

Consider, for instance, Project Gutenberg, a marvelous non-profit volunteer effort to transfer as many books as possible to electronic format and make them available over the Internet for free. (For information about Project Gutenberg, contact the project director, Michael S. Hart, at hart@vmd.cso.uiuc.edu.) Unfortunately, most of the works done to date have been pre-20th-century — to avoid the hassles of copyright law. Thus, copyright laws today are working to restrict the availability of information, not to promote it. (And Congress, at the behest of the publishing and recording industries, is currently acting to extend copyright protection to last nearly a century after the creator's death, thus ensuring that only a tiny fraction of the information in existence will be publicly available.)

More importantly, modern electronic communications are simply beginning to make copyright laws unenforceable; or at least, unenforceable by any means short of a government takeover of the Internet — and such a chilling threat to the future of humankind would clearly be a cure far worse than the disease. Copyright laws, in a world where any individual can instantaneously make thousands of copies of a document and send them out all over the planet, are as obsolete as laws against voyeurs and peeping toms would be in a world where everyone had x-ray vision.

First Tolkien Story

Here's a story that illustrates some of the needless irritation that intellectual property laws can cause.

Several years ago the avant-garde film animator Ralph Bakshi decided to make a movie of J. R. R. Tolkien's classic fantasy trilogy The Lord of the Rings. Or rather, he decided to split the trilogy into two movies, since the work is really too long to fit easily into a single film.

So Bakshi started off with Lord of the Rings (Part One). This movie covered the first volume of the trilogy, and part of the second volume. The second movie was to have covered the rest of the second volume, and then the whole of the third volume. To make the first movie, then, Bakshi needed to buy the rights to the first two volumes, and this is what he (or, presumably, his studio) did.

But Bakshi never got around to making the second movie (probably because the first movie turned out to be less successful financially than had been anticipated). Enter Rankin-Bass, another studio. Rankin-Bass had made an animated TV-movie of Tolkien's earlier novel The Hobbit, and they were interested in doing the same for the second part of Lord of the Rings, left unfilmed by Bakshi.

But there was a problem. Bakshi's studio had the rights to the first two volumes of the trilogy. Only the rights to the third volume were available. So Rankin-Bass' sequel (released as The Return of the King) ended up, of necessity, covering only the third volume. Those events from the second volume that Bakshi had left unfilmed were simply lost. (Not even flashbacks to events in the first two volumes were permitted — although flashbacks to The Hobbit were okay, because Rankin-Bass had the rights to that.)

Video catalogues now sell The Hobbit, The Lord of the Rings, and The Return of the King as a unified package. But viewers unfamiliar with the books will be a bit puzzled. In the Bakshi film, the evil wizard Saruman is a looming force to be reckoned with; in the Rankin-Bass sequel, he is not even mentioned. Likewise, at the end of the Bakshi film, Frodo, Sam, and Gollum are traveling together; at the beginning of the Rankin-Bass sequel we find them split up, without explanation. The answers lie in the unfilmed portion of the second volume, which deals with Saruman's defeat, Gollum's betrayal of Frodo, Sam's battle with Shelob, and Frodo's capture by the Orcs. Not unimportant events, these. But thanks to intellectual property laws, the viewer is not allowed to know about them.

Is this a catastrophe? I suppose not. The æsthetic unity and continuity of a work of art was mangled, pursuant to the requirements of law. But it was just an animated TV-movie. So what?

So what, perhaps. But my story does serve to cast doubt on the idea that copyright is a bulwark of artistic expression. When a work of art involves reworking material created by others (as most art historically has), copyright laws can place it in a straitjacket.

Alternatives to Intellectual Property Rights: Some Formulations

I may have given the impression, thus far, that intellectual property rights serve no useful function whatever. That is not my position. I think some of the ends to which copyrights and patents have been offered as the means are perfectly legitimate. I believe, however, that those ends would be better served by other means.

Suppose I pirate your work, put my name on it, and market it as mine. Or suppose I revise your work without your permission, and market it as yours. Have I done nothing wrong?

On the contrary, I have definitely committed a rights-violation. The rights I have violated, however, are not yours, but those of my customers. By selling one person's work as though it were the work of another., I am defrauding those who purchase the work, as surely as I would be if I sold soy steaks as beef steaks or vice versa. All you need to do is buy a copy (so you can claim to be a customer) and then bring a class-action suit against me.

There are other legal options available to the creators of intellectual products. For example, many software manufacturers can and do place copy-protection safeguards on their programs, or require purchasers to sign contracts agreeing not to resell the software. Likewise, pay-TV satellite broadcasters scramble their signal, and then sell descramblers.

None of these techniques is foolproof, of course. A sufficiently ingenious pirater can usually figure out how to get around copy protections or descramble a signal. And conditional-sale contracts place no restriction on third-party users who come by the software in some other way. Still, by making it more difficult to pirate their intellectual products, such companies do manage to decrease the total amount of piracy, and they do stay in business and make profits.

But what if I do go ahead and market your work without your permission, and without offering you any share of the profits? Is there nothing wrong with this? Can nothing be done about this?

In the case described, I don't think what I've done is unjust. That is, it's not a violation of anyone's rights. But it's tacky. Violating someone's rights is not the only way one can do something wrong; justice is not the only virtue.

But justice is the only virtue that can be legitimately enforced. If I profit from pirating your work, you have a legitimate moral claim against me, but that claim is not a right. Thus, it cannot legitimately use coercion to secure compliance. But that doesn't mean it can't be enforced through other, voluntary methods.

A good deal of protection for the creators of intellectual products may be achieved through voluntary compliance alone. Consider the phenomenon of shareware, in which creators of software provide their products free to all comers, but with the request that those who find the program useful send along a nominal fee to the author. Presumably, only a small percentage of shareware users ever pay up; still, that percentage must be large enough to keep the shareware phenomenon going.

There are more organized and effective ways of securing voluntary compliance, however. I have in mind the strategy of boycotting those who fail to respect the legitimate claims of the producers. Research conducted by libertarian scholar Tom Palmer has turned up numerous successful instances of such organized boycotts. In the 1930's, for example, the Guild of Fashion Originators managed to protect dress styles and the like from piracy by other designers, without any help from the coercive power of government.

A voluntary boycott is actually a much safer tool than government for protecting the claims of intellectual producers, because, in the course of trying to strike a pragmatic balance between the economic power of producers and the economic power of consumers, a private effort is more likely than a government monopoly freed from market incentives to strike an analogous balance between the legitimate moral claims of the two groups — the producers' moral claim to remuneration, and the consumers' moral claim to easily accessible information.

Something more formal can easily be imagined. In the late Middle Ages a voluntary court system was created by merchants frustrated with the inadequacies of governmentally-provided commercial law. This system, known as the Law Merchant ("law" being the noun and "merchant" the adjective), enforced its decisions solely by means of boycott, and yet it was enormously effective. Suppose producers of intellectual products — authors, artists, inventors, software designers, etc. — were to set up an analogous court system for protecting copyrights and patent rights — or rather, copyclaims and patent claims (since the moral claims in question, though often legitimate, are not rights in the libertarian sense). Individuals and organizations accused of piracy would have a chance to plead their case at a voluntary court, but if found guilty they would be required to cease and desist, and to compensate the victims of their piracy, on pain of boycott.

What if this system went too far, and began restricting the free flow of information in the same undesirable ways that, I've argued, intellectual property laws do?

This is certainly a possibility. But I think the danger is much greater with coercive enforcement than with voluntary enforcement. As Rich Hammer likes to point out: ostracism gets its power from reality, and its power is limited by reality. As a boycotting effort increases in scope, the number and intensity of frustrated desires on the part of those who are being deprived by the boycott of something they want will become greater. As this happens, there will also be a corresponding increase in the number of people who judge that the benefits of meeting those desires (and charging a hefty fee to do so) outweigh the costs of violating the boycott. Too strenuous and restrictive a defense of copyclaims will founder on the rock of consumer preferences; too lax a defense will founder on the rock of producer preferences.

Second Tolkien Story

Let me close with a second story about Tolkien and his famous trilogy. The first edition of The Lord of the Rings to be published in the United States was a pirated edition from Ace Books. For reasons which I now forget, Tolkien could not take legal action against Ace. But when Ballantine came out with its own official author-approved American edition of The Lord of the Rings, Tolkien started a campaign against the Ace edition. The Ballantine edition was released with a notice from Tolkien in a green box on the back cover stating that this was the only authorized edition, and urging any reader with respect for living authors to purchase no other. Moreover, every time he answered a fan letter from an American reader, Tolkien appended a footnote explaining the situation and requesting that the recipient spread the word among Tolkien fans that the Ace edition should be boycotted.

Although the Ace edition was cheaper than the Ballantine, it quickly lost readers and went out of print. The boycott was successful.

It might be objected that Tolkien devotees tend to be more fanatical than the average readers, and so such a strategy of boycott could not be expected to succeed in ensuring such loyalty generally. True enough. But on the other hand, Tolkien's boycott was entirely unorganized; it simply consisted of a then-obscure British professor of mediæval language and literature scribbling hand-written responses to fan letters. Think how effective an organized boycott might have been!

Catastrophist governance and the need for a tricameral legislature

Interesting essay.

Catastrophist Governance and the Need for a Tricameral Legislature
William Irwin Thompson
Printed in Annals of Earth, Spring, 2007 Issue.

As American school children, we were all raised to believe the wisdom of Thomas Jefferson's "That government is best that governs least." Americans of a Republican and Libertarian persuasion feel that interference of the state in the life of the individual is evil, and the excesses of fascism and communism in the nineteen-thirties and forties confirmed their Superman comic book sense of the superiority of "The American Way." Even to this day in a new century with new problems, the Republicans and Libertarians in their think-tanks like the Cato Institute continue to rant on about the evils of Big Government.

When government is seen as an intrusive menance, then cutting taxes as a way of starving it to death is the basic neocon philosophy of governance--a philosophy that Bush has eagerly sought to implement. In an updated version of Kipling's nineteenth-century imperialism of "the white man's burden," the neocons sought to bring suburban Right Wing party politics to tribal, medieval, and socialist societies in Afghanistan and Iraq in a policy of enforced modernization through unrestrained market economics and military invasion.

The liberalism of FDR's New Deal was a response to a man-made economic catastrophe, but the historical landscape we are now entering is one of natural catastrophes: of tsunamis that can devestate the coastlines of many countries at once, of earthquakes and hurricanes that can devastate entire cities, of volcanic eruptions that can darken the planet's skies and eliminate summers and the harvests that come at their finish, and pandemics spread by the jet travel of economic globalization. When one adds human contributions to the forces of nature in the form of global climate change, then one begins to see a new world in which the individual citizen is utterly powerless to address the rise of oceans or the shift of tectonic plates.

A philosophy of government based upon nothing more than tax cuts simply won't cut it any more. In a tranquil world, nature can be taken for granted as a stage upon which the human drama unfolds, and agriculture and industry can be used as the foundation for a business model of political governance. Farmers and merchants became the first wave of representatives elected to Congress; then, as the process of governance became larger and more complex, lawyers became the representatives of the businessmen who supported their campaigns for office.

But this tranquil world in which nature is a stage only for human ambition is a thing of the past. The rumblings of a new global storm have sounded on the horizon with the tsunami of Boxing Day, 2004, and Katrina in 2005. When hurricanes again devastate our coastal cities, and earthquakes strike the populous cities of the West, this global storm will strike us head-on and full force. At that time we will need something other than businessmen grousing about Big Government and proposing tax-cuts for the wealthy to serve as our philosophy of government.

What will the politics of catastrophe look like? In a crisis, our first instinct will be to revert to the archaic politics of the primate band and look to some alpha male to deliver us from evil. We will pray to some archaic paternal god in the sky to save us and we will surrender to the will of some dominant Big Brother to protect us through martial law and even stronger versions of the Patriot Act. But alpha male dominance and military power will be utterly incapable of addressing the problems we face. In this crisis, we will need scientists and not more soldiers and lawyers.

Certainly, when East Coast multiple hurricanes overlap with West Coast earthquakes at a time of massive neocon war deficits, we will enter a time when natural catastrophes, and not just terrorist attacks, create the punctuated equilibirium that drives evolution. At that time, the smug boomerism of capitalism that takes nature for granted in industrial development and distorts the ecological sciences to reinforce its own political ideology will be as historically irrelevant as peasant magic was to the industrial revolution. At this time, whatever culture is able to miniaturize science into a civilization—American, European, or Asian—and keep it intact during a period of catastrophes, whether from gobal warming or volcanic eruptions, or both, will determine the fate of humanity.

No doubt, human fear more than Western science will shape our response and probably create a mood of religious superstition and End of the World popular scenarios in which the face of Jesus is seen in the clouds and Elvis sightings are reported over Graceland. The Executive branch of government will probably once again seek to manipulate this fear to its own ends in the same manner that it used the fear of terrorists to secure its re-election, but in other biomes within our national ecology of mind, we might just begin to glimpse an opportunity for a new era of democratic revolution.

Our eighteenth century constitution was conceived by rural aristocratic land owners and slave holders who feared popular democracy as the rule of the urban mob, but it was also midwived by urban Federalists who wished to bring forth the economy of a modern nation-state. The machinery of the state with its checks and balances was an eighteenth-century steam engine fueled by the people but held on course by a governor. A bicameral legislature was that century's vision of balance between passion and reflection--between a lower house of pushy and uncouth merchants and farmers and an upper house of men of property and culture.

But in an age of global warming and suden catastrophes from pandemics, earthquakes, coastal innundation, tsunamis and volcanoes, a scientific academy will be needed for a tricameral legislature in which government is provided with sound and objective scientific information and informed guidance. The Bush Administration sought to constrain and edit science so that it would tell it what it wanted to hear for its own neocon ideological reasons; in other words, it sought to treat science in the same way it treated Intelligence and the CIA in particular. Since the CIA has only the single client of the Presidency, both the CIA and the Supreme Court have been corrupted by the growth of the "Imperial Presidency." A third chamber will be needed to be composed of truly intelligent and independent scientists, artists, scholars, and professors of constitutional law. These outstanding citizens will need to be men and women of "intellectual property," and not simply popular celebrities chosen through elections funded by the wealthy and the few owners of the media. They will need to be elected to this third chamber by an ad hoc electoral college composed of the faculties of the state universities and the outstanding private universities of the nation, from Harvard in the East to Stanford in the West. And at the same time that this twenty-first century ad hoc Electoral College is created, our present anti-democratic eighteenth-century Electoral College should be abolished. The President should be elected by a simple popular majority so that Florida, 2000 can never happen again. And it is this third chamber that should nominate members to the Supreme Court based upon their knowledge of constitutional law and not their party politics. In the election of 2000 we saw what happens when the Supreme Court intrudes and applies party politics to negate a plurality in the popular vote.

To avoid the imperial presidency and the neocons' doctrine of "the unitary executive" that have sucked power away from Congress, something needs to be done about the flawed institution of the American Presidency. The conventional wisdom of the Founding Fathers was that to avoid a takeover of the republic by a military dictator one should insure that the military was under the governance of a civilian President as Commander-in-Chief; but in choosing a military hero as our first president, the Founding Fathers also showed how difficult it was to avoid the shadow of Julius Caesar. The neocons' perversion of the Founding Fathers' wisdom has transformed our civilian presidency into nothing but the Commander-in-Chief of the world's largest military-industrial establishment. As the Presidency has evolved over centuries, we have seen--even before the horrors of Bush and Cheney--that purely civilian presidents like Lincoln, Franklin D. Roosevelt, and Harry Truman were capable of suspending habeas corpus and creating a National Security State without the need of a military putsch. Parliamentary democracies-- such as Ireland, Germany, and Israel--have settled for the wisdom of separating the Head of State from the Head of the Government with the two offices of President and Prime Minister, or Chancellor. Switzerland, a country refreshingly immune to charisma, chose the most radical solution of all by having an executive council in which the Presidency rotates among the members of its "Bundesrat." Having grown sick of our contemporary simulacrum of a Roman Emperor, as well as the dominance in American culture of sports celebrities, movie stars, and military heroes, I confess that I am attracted to this bland Swiss model, but our American culture has so labored over the centuries to construct a hagiographic image of the President that I doubt that Americans could ever deliver themselves from this idolatrous worship of POTUS. POTUS omnipotens est. So our popularly elected President would most probably be expected to chair an Executive Council for the four years of the term of office.

To avoid the excesses of the imperial presidency, I propose that in the catastrophic condidtions to come, we replace the Presidency with an Executive Council of four, consisting of the popularly-elected president, the popularly-elected Vice President as President of the Senate, and one representative elected by the new Academy of Arts and Sciences and another by the traditional House of Representatives. The popularly elected President should be defined as the Head of the Government, and the President of the Academy of Arts and Sciences should be defined as the Head of State. At the end of four years, the two chambers of the Academy and the House would elect new representatives to the Executive Council, so the Executive Council would change along with the popularly elected President and Vice President. The line of succession in which the Speaker of the House remains third in line after the popularly elected President and Vice President could remain as is in our present constitutional situation. Since the Speaker of the House has enough to do in overseeing the largest third house of the Congress, it might better serve the model of an executive council if the House elected another representative to the Council and that this position was separate from the position of Speaker of the House. It would be the work of this Executive Council to sign bills into law through a ¾'s majority. The President could remain as Commander-in-Chief, since it is hard to direct a war by committee, and the current Presidential Cabinet could continue its work of advising the Council and administering the various departments of government, such as Agriculture, Defense, and Foreign Affairs or "State."

Would conflict and abuse of power be avoided in such a situation of an executive Council of Four? Given human nature, naturally not. Bush, Cheney, Rumsfeld, and Rice were a disaster, so there is no absolute protection from evil simply by sharing it, but there is hope that if all are not of the same party and ideology, there are more opportunities for balance and self-correction.

Of course, I realize that such an amending of the Constitution would open up the political process to crazies and not simply scientists--and to some crazy scientists as well. The possibility for such dramatic change would only be possible under unimaginable circumstances that I am here trying to imagine—such as the innundation of the East Coast and the earthquake devastation of the cities of the West Coast. Under such circumstances of unimaginable crisis, we would need to hold a new Constitutional Convention composed of the members of Congress and the Electoral College of the members of the faculties of our universities and colleges who would then elect their representatives for the creation of the new Third House, the Academy of Arts and Sciences. This new tricameral legislature would then address itself to the reconstruction of our devastated environment and polity. Since the Senate would probably be fearful of the lessening of its power, the third house should probably be limited to two members from each state and be required to submit legislation to the popularly-elected House and not directly to the Executive Council. I am not a constitutional lawyer, so it should be the work of any future Constitutional Convention to hammer out the details on the iron anvil of politics.

My modest proposal for a tricameral legislature and an amending of the Constitution is merely an amateur's sketch, but the sketch, like any political cartoon, does come from a pattern-recognition of the dangers inherent in our new mediocracy. The electronic media have created a new technopeasantry whose attacks on the imaginary castle of science's Dr. Frankenstein now threaten to eliminate scientific textbooks from our schools to replace them with the Bible. As popular ministers thrust themselves to the head of the empassioned multitude, waving their Bibles in the air, we will be brought back to the ugly Thirty Years War of religions that preceded the Age of Revolution from 1689 to 1789. If we slide into that abyss of a new dark age, then we will have indeed fallen off the edge of history.

Warriors and high priests have been the entwined poles of human culture since the origin of urban civilization in the fourth millennium B.C.E. Now that formation has expressed its sunset-effect in the evangelical fundamentalism of Karl Rove's redesign of the Republican party and Cheney's Halliburton hostile take-over of Iraq. This supernova of the dying star of militarism and religious fundamentalism is, of course, not confined to Christianity, but also expresses itself in the extremism of the Israeli West Bank settlers, right-wing Hindu nationalists, and Islamist terrorists. In ideological thinking, the content camouflages the structure, and that is why very often in conflict extremes are very much like one another.

But this too shall pass. Like the Dark Ages and Inquisition that preceded the Renaissance, or the period of global slavery that preceded the Enlightenment, humanity has still a chance to face the coming era of ecological devastation, pandemics, and natural catastrophes and respond in a way other than chaos and rule by war lords in collapsed states. Like the Dark Age monks who miniaturized classical civilization and made it a curricular content inside medieval civilization, whatever cultural group that can miniaturize scientific civilization and place it within a new formation of a post-religious spirituality of fellowship and not followership will carry us across the great rift into a new stage of cultural evolution. If we fail, then the dark age interval will be much longer.