From the Imperial City to the Outskirts of Empire

“New York is the meeting place of the peoples, the only city where you can hardly find a typical American.”

-- Djuna Barnes, Author (1892-1982)

The Great Library of Alexandria, founded around 300BC, was the locus point of the ancient world for philosophers, mathematicians, and scholars. At its height, the Library held 750,000 scrolls, which flowed into its shelves from the great empires of Greece, Egypt, and Babylon, and burgeoning civilizations as far away as India.

Alexandria, positioned at the crossroads of the developed world, soon became the world's intellectual capital and those who came to study understood that the knowledge amassed there was only as useful as it was widely disseminated—not only to the power centers of the old world, but to the small cities and towns on the periphery.

Two thousand years later, the United States is the closest thing we have to a global empire and the center of that empire is New York City. Just as the learned of Alexandria gravitated to the great political and cultural centers of the ancient world, so today many Americans flock to New York and other metropolises to ply their trade.

There is something deeply inspiring about this continued migration. As E.B. White famously wrote in Here is New York, while many native New Yorkers “take[] the city for granted,” there is another New York—“the New York of the person who was born somewhere else and came to New York in quest of something...that accounts for New York's high-strung disposition, its poetical deportment, its dedication to the arts, and its incomparable achievements.”

And yet for all the romantic greatness of the immigrant/migrant story of New York, there is also an undercurrent of danger in its magnetism: the potential for a growing disconnect between the global power centers and the majority of the world’s population that lives in what a friend once described to me as “the outskirts of empire.”

As Thomas Edsall of the Times wrote last month in a column titled, “Will Liberal Cities Leave the Rest of America Behind?” many of the cities that are now on the leading edge of progressive politics in America have significant built-in advantages not available to most cities and towns on the “outskirts”:

[M]ajor research universities; financial and high-tech corporate centers; substantial and strong artistic and intellectual communities. Pittsburgh, for example, has Carnegie Mellon, metropolitan Boston has Harvard and M.I.T., Seattle has Microsoft and Amazon, and New York has its own varied, almost endless resources…These advantages are the exception, not the rule.

In the end, Edsall is left to ask, “whether the current left-leaning urban agenda is restricted to small elite of well-off municipalities with substantial resources.”

It doesn’t help matters that the media is centered in and around these largely liberal metropolises. Indeed, for generations, the media has helped fuel more than a little navel-gazing in centers of empire; from the “New Yorker’s View of the World” to “Beltway Insiders” to Bostonians—whose very nickname for their City, “The Hub,” offers a glimpse into the psyche of the Gateway to New England.

This narcissistic tendency makes getting out of the bubbles and into the back roads of the empire all the more important. As Deborah Fallows, author of Dreaming in Chinese, wrote this weekend, “America is full of places with stories to tell, where generations had spent their lives building, losing and rebuilding, or where newcomers migrate, like pioneers, to strive toward their dreams.”

Of course, the need to assess the problems of the periphery need not blind us to the problems of the center of empire. Even Manhattan, which includes several of the wealthiest neighborhoods in the country, does not lack for significant social and economic ills. For all its wealth and power, the centers of the empire, like the outskirts, are not immune from poverty and suffering.

Nevertheless, just like the knowledge amassed and uncovered in Alexandria, New York’s progressive prosperity or Boston’s quest to become the City on a Hill mean little if their lessons are not spread beyond the walls of the metropolis to the rest of the country. For that to happen, people in cities and small towns have to focus more on what they have in common than by what separates them and avoid falling into the trap of believing that the future of American politics rural interests against urban needs.

Facts and First Principles of American Foreign Aid

“If our Founding Fathers wanted us to care about the rest of the world, they wouldn't have declared their independence from it.” 

-- Stephen Colbert

Last week, the Wall Street Journal released the results of a new poll on Americans view of foreign policy. As is often the case with foreign affairs, Americans seem to simultaneously desire tougher engagement and greater isolationism.

55 percent of those surveyed believed that “We need a president who will present an image of strength that shows America's willingness to confront our enemies and stand up for our principles." Indeed, as applied to President Obama, 36 percent of respondents agreed that “He is too cautious and lets other countries control event,” compared to only 15 percent who claimed he is “too bold and forces issues with other countries.”

At the same time, 47 percent of Americans are calling for a “less active” foreign policy, with only 19 percent calling for a more active policy.

Isolationism has been a theme throughout American history, on both sides of the political spectrum. Even God Bless America seems to promote this view, its opening line referencing the storm clouds gathering “far across the sea.”

After over a decade of war in Iraq and Afghanistan (one of which was launched/fought under ostensibly false pretenses) and the longest recession since the Depression, it’s understandable that many would seek strength through a retreat from global affairs.

And yet, the views of the majority of Americans are informed by a gross misunderstanding of what foreign aid is and how much of our budget it makes up. As shown in the chart at left from the Center for Global Development, the percentage of the federal budget going to foreign aid has declined significantly over the past half century.

Despite this clear trend, Americans consistently believe that the U.S. spends over one quarter of its entire budget on foreign aid (see chart from a recent survey conducted by the Kaiser Family Foundation). Indeed, only four percent correctly stated that foreign aid makes up one percent or less of the federal budget.

Lest one think that the facts are irrelevant to the public’s consideration of foreign aid, consider that Kaiser found a dramatic shift in sentiment when Americans are told about the actual facts.

Armed with the facts, citizens change their views—a lesson policymakers could learn to emulate—and indeed, they are right to do so, not only because America has a duty to play a leadership role in combating global poverty, but because many elements of foreign aid have proven to be some of the most effective uses of government funds. 

In its 2014 annual letter, the Bill and Melinda Gates Foundation calculated that since 1980 alone, foreign aid has helped to save 100 million children at an average cost of about $5,000 per life: a bargain so good the only question is why we don’t do more.

As America continues to look back at our own Civil War at its 150^th anniversary, I’m reminded of what John Stuart Mill wrote in The Contest in America in 1862:

War is an ugly thing, but not the ugliest of things: the decayed and degraded state of moral and patriotic feeling which thinks that nothing is worth a war, is much worse…A man who has nothing which he is willing to fight for, nothing which he cares more about than he does about his personal safety, is a miserable creature who has no chance of being free, unless made and kept so by the exertions of better men than himself. As long as justice and injustice have not terminated their ever-renewing fight for ascendancy in the affairs of mankind, human beings must be willing, when need is, to do battle for the one against the other.

While the battles of Baghdad and Kabul come to a close, the war on preventable disease and extreme poverty wage on. Are we willing to fight to end those scourges, if not with blood, than with treasure?

We ought to be, and not because there isn’t suffering in our own backyards that demands our concern and attention—there is—but rather because our lives and liberty are degraded by casting aside our gaze and pretending like our wealth is ours to hoard, rather than a tool to be used to bring justice, peace, and a modicum of dignity to all people, everywhere.

More and Less: Justice and the Plight of the Poor

“With the help of well-designed experiments, you can see glimmers of moral thought, moral judgment and moral feeling even in the first year of life. Some sense of good and evil seems to be bred in the bone.”

-- Paul Bloom, “The Moral Life of Babies,” New York Times (9 May 2010)

This week, Annie Lowrey of the New York Times wrote a terrific, front-page story on how the poor in America have much greater access to material goods than in generations past, yet feel as if they are falling farther and farther beyond the middle class. As James Ziliak, director of the University of Kentucky’s Center for Poverty Research, stated, “Without a doubt, the poor are far better off than they were at the dawn of the War on Poverty. But they have also drifted further away.”

If people are better off, why does it matter if they’ve “drifted away” from the middle and upper classes on a relative scale? If the rising tide lifts all ships, what difference does it make if some seas rise faster and taller than others?

As it turns out, it makes every difference in the world—and not just in America, but also across most societies in every corner of the globe. Why? Because rising inequality, no matter how improved the objective standard of living is for individuals across the board, offends something deep within us—an innate sense of fairness, justice, and opportunity.

As Paul Bloom wrote in 2010, “You won’t find a society where people don’t have some notion of fairness, don’t put some value on loyalty and kindness, don’t distinguish between acts of cruelty and innocent mistakes, don’t categorize people as nasty or nice.”

As a result, it should come as no surprise that people are frustrated—even enraged—by how an emphasis on conspicuous consumption has replaced a more fulfilling vision of the American Dream with a vacuous conception of liberty and success.

For far too long, American policymakers have focused on “expanding the pie”, as if GDP growth was gospel sent down from on high—the embodiment of our collective pursuit of happiness. As we’ve explored in this space, however, achieving happiness is a much more complicated task than economic growth. It requires a deep understanding of human nature; a critical examination of the true material needs (as opposed to wants) of individuals, and a commitment to investing in the foundational elements of true prosperity—the infrastructure of opportunity.

That infrastructure is physical—inter-city high-speed rail, urban mass transit, affordable housing, reliable water/gas delivery, clean power—and human—education from K-graduate school, social institutions, mobility (where health care attaches to you as a human rather than an employee), and substantive and procedural justice.

Erecting this infrastructure is a mission statement that acknowledges that government’s primary role is to lay the groundwork (including a robust social safety net) for people to life the lives they’ve imagined, but that the State must also take aggressive steps, as necessary, to allay levels of inequality that threaten to create a “gilded class” (if Thomas Piketty is right that, over time, the rate of return on capital is greater than the growth rate of the economy, then individuals who start with capital are very likely to accumulate more) and undermine the citizenry’s belief in the very idea of Republican government.

While the incredible reduction in extreme poverty worldwide has brought billions of people the bare necessities of life, there remain 1.2 billion people living on less than $1.25 per day. These individuals remain in desperate need of economic growth and actions to address inequality. As the Economist noted last year, “Growth alone does not guarantee less poverty. Income distribution matters, too.” Indeed, while two thirds of the fall in extreme poverty was the result of economic growth; one-third came from greater equality.

As the cartoon above implies, the world has enough—enough to feed the hungry and shelter the homeless, enough to treat the sick and heal the injured. However, that bounty means little unless extreme poverty is eradicated in the developing world (an achievable goal by 2030) and unless the developed world creates an infrastructure of opportunity commensurate with our innate belief that all people deserve an equal chance to succeed.

Crime, Clemency, and Constitutional Corrective Action

“[T]he world may know, that so far as we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”

--Thomas Paine, Common Sense, 1776

Last week, many criminal justice advocates rejoiced at the Department of Justice’s announcement of a broad clemency initiative targeting “nonviolent felons who have served at least 10 years in prison and who would have received significantly lower prison terms if convicted under today’s more lenient sentencing laws.”

Many of the potential beneficiaries of the program were convicted of drug crimes between 1980-2010, during which time there only significantly more draconian penalties across the board and gross disparities in sentences based on certain types of drugs (powder v. crack cocaine being the most infamous).

As the Times notes, while Congress reduced (but did not eliminate) the disparity by passing the Fair Sentencing Act (FSA) in 2010, it has not chosen to apply the new sentences retroactively (though the Supreme Court did rule, 5-4, that the lower minimums apply to people who committed crimes prior to the law being enacted, but who were sentenced after the bill became a law—see: Dorsey v. United States, 567 U.S. ___ (2012)).

The decision not to apply the Fair Sentencing Act retroactively was not made without significant consideration by the Legislative branch. Indeed, in the wake of the FSA’s passage, Senators Dick Durbin (D-IL) and Mike Lee (R-UT) proposed broader retroactively in the “Smarter Sentencing Act”, which would allow individuals to petition the courts for sentence reductions commensurate with the FSA.

While the bill has yet to receive a vote, the Senate Judiciary Committee approved the Act by a bipartisan vote of 13-5 in January 2014. It is a good bill—a critical second act to the FSA—and Congress should pass it without delay.

But where does that leave the President’s new clemency system? Is it an appropriate tool to use to modify potentially thousands of sentences in a way that Congress specifically rejected when it passed the FSA only 4 years ago?

Linda Greenhouse, former SCOTUS scribe for the Times and current Journalist in Residence and Lecturer at Yale, wrote in January, “Keeping a known and finite group of people locked in a system acknowledged to be irrational is irrationality itself.”

I completely agree and that’s a darn good argument to make to urge House and Senate members to pass the Smarter Sentencing Act. It is, however, not such a good argument for the unilateral imposition of what one unitary Executive deems “rational” (indeed, logical as you may be, dear reader, it stands to reason that the officeholder at 1600 Pennsylvania Avenue is quite likely to disagree with your sense of rationality over time).

Indeed, the use of the unilateral clemency power is a far cry from supporting legislative changes to criminal laws, sentencing guidelines, or policies related to the use of prosecutorial discretion. In all three of those instances, the Executive branch is either using authority specifically granted to it and it alone under the Constitution, or is seeking to persuade another branch to support a specific policy recommendation.

The clemency power, while constitutionally authorized, has not traditionally been applied to situations in which Congress or the Courts could act—through their basic structure—to cure the underlying injustice.

As Chief Justice William Rehnquist declared in Herrera v. Collins, 506 U.S. 390 (1993), “Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted” (emphasis added).

Like presidential pardons, which can and often are abused for political gain, a broad grant of clemency by the President, particularly where the underlying effort conflicts with recent Congressional action (see Justice Robert Jackson’s famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)), is a tool that lends itself to overreach, particularly in lame duck terms.

Thus, sympathetic as I am to the urgent injustice the President is seeking to address, I cannot support a blanket use of the clemency power to address such an injustice (just as I cannot accept broad based commutations of death row inmates by governors despite my personal view that the death penalty is heinous and unconstitutional in all cases).

Instead, we must actively persuade our fellow citizens and our elected representatives to pass laws to end the era of irrational drug penalties and, if they choose not to do so, we must punish them at the ballot box. That’s the way democracy functions—not by fiat or force, but by politics and persuasion.

SCOTUSWatch: The iPhone Meets the Fourth Amendment

“The Agema Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath—a detail that many would consider ‘intimate.’”

-- Justice Antonin Scalia, Kyllo v. United States, 533 U.S. 27 (2001)

This morning, the Supreme Court will hear argument in United States v. Wurie and Riley v. California, two cases concerning the right of police officers to search cell phones incident to an arrest without a warrant.

These are just the latest in a long line of cases in which the Court has had to try to graft the text of the Fourth Amendment’s prohibition against unreasonable searches and seizures onto modern technology.

Since 2001, the Court has ruled that placing a GPS device on an individual’s car constitutes a search (United States v. Jones, 132 S. Ct. 945 (2012)), the warrantless use of a thermal device to scan the inside of a home for evidence of heat lamps that could be used to grow marijuana violates the Fourth Amendment (Kyllo), and, my personal favorite, that a California law limiting the sale of violent video games to minors violated the First Amendment (Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011)).

Brown is noteworthy not just for the Court’s strong affirmation of the First Amendment, but also for revealing the limits of the Justices’ understanding of modern technology. During oral argument Justice Elena Kagan stated, “A reasonable jury could find that Mortal Kombat -- which is, you know, an iconic game, which I'm sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing,” at which point Justice Scalia interjected, to the laughter of the courtroom, “I don't know what she's talking about.”

Suffice to say, every Supreme Court justice has a cell phone (whether they have smart phones is another story—the Justices are famous for their paper-based inter-chambers communication), and therefore the issues at stake in the Court today should be at least somewhat familiar.

What are those issues precisely? From my perspective, there are two major questions posed by these cases: (1) What types of content on a phone carry a reasonable expectation of privacy; and (2) How (if at all) does the advent of “cloud” based storage change the calculus for police who seek to preserve evidence incident to an arrest?

First, as NYCLU Associate Legal Director Chris Dunn wrote in a column in the New York Law Journal in February, our phones include a vast amount of information, from emails, photographs, and social media postings to browsing histories, financial data, and GPS-based location tracking.

Some of these “possessions”—like financial records and health information—would seem to fall under the most stringent privacy protection, while others, particularly social media postings (which almost by definition are meant for public display/dissemination), seem to lack the type of reasonable expectation of privacy usually linked with the Fourth Amendment.

Indeed, given that law enforcement agencies already patrol Facebook/Twitter/etc for leads—particularly regarding youth gangs—it would seem odd to not permit cops to examine public social media postings after an arrest, even without a warrant.

On the other hand, why not get a warrant in these situations? For one, a legitimate fear that has long been cited for the need to quickly perform a search incident to an arrest is the concern that evidence could be tampered with, spoiled, or otherwise rendered useless during the booking process. Today, digital “evidence” is uniquely capable of being destroyed from anywhere at anytime by anyone, since a friend could theoretically log in to someone's account and delete potentially incriminating material. That concern creates at least some urgency to a review.

While the First Circuit insisted in Wurie that officers could remove the phone battery, place the phone in a available bag that blocks incoming signals, or copy the phone’s contents without examining them before obtaining a warrant, the fact remains that the evidence accessible via the phone often isn’t on the physical phone. Even the New York Times editorial board fell into this trap, insisting that “any evidence on the phone can be preserved by using special devices to prevent remote deletion of the data.” That’s not true now and is far from a guarantee in the future.

Finding a way to preserve potential evidence stored in the cloud within the framework of the warrant system is a challenge, but not an impossible one. Warrant procedures would need to be streamlined—such that if probable cause exists that evidence of a crime is accessible via the phone, a warrant could be issued in something close to real time.

Establishing such a system is important because the Times is right on the merits—cell phones today are not the 5-pound blocks of Wall Street fame, but are instead repositories of our most intimate associations, private thoughts, and day-to-day movements. For originalists, this means viewing phones as diaries, bank ledgers, and general store receipts rolled into one—precisely the type of “papers and effects” that the Fourth Amendment was designed to protect.

This Land is Whose Land? From NYCHA Housing to Nevada’s Ranches

Was a high wall there that tried to stop me

A sign was painted said: Private Property,

But on the back side it didn't say nothing —

This land was made for you and me.

-- Woody Guthrie, “This Land is Your Land,” 1940

In the summer of 2000, our family rent-a-car emerged from the Grand Tetons and traveled down National Highway 26 into the town of Jackson, Wyoming. As we sped along (the urgent need for pancakes and flat, clear terrain propelling us forward at speeds that would be reckless at best on the I-95 corridor), I stared out the window and watched the cows chewing their weight in grass on federal property (about half of Wyoming is owned by the U.S. Government—see map, below).

Curious about the agreements that allowed for such private use of public property, I asked our waiter at the local diner who owned the cows and how much he/she paid to have them grave on “federal property.” The waiter, already put off perhaps by a New Englander wearing his ever-present Sox jacket, set his pen and paper on the table, looked at me, and declared simply, “That’s our land.”

I was firmly committed to putting pancakes over politics, so I demurred further argument, certain that whoever the “our” was didn’t include me.

This month, a dispute over federal grazing fees charged to Western ranchers once again erupted, with armed civilians taking up positions against Bureau of Land Management rangers who, pursuant to a court order, attempted to confiscate 500 cattle owned by Cliven Bundy, who has been illegally grazing his herd on public land since 1993.

Senate Majority Leader Harry Reid (D-NV) responded by calling the armed vigilantes “domestic terrorists”, while Nevada’s junior Senator, Dean Heller (R), called Bundy’s supporters “patriots.”

Not only is there no agreement on what taking up arms against the federal enforcement of a court order should be called, there isn’t even consensus on the facts underlying the case. Washington Post columnist Marc Theissen decried Reid’s “domestic terrorist” comment, stating that “defending your property against a paramilitary force of armed federal agents is not the equivalent of blowing up a federal building or sending letter bombs” (emphasis added).

Indeed, while Bundy’s abhorrent comments on race and his unwillingness to pay below-market grazing fees to the Federal Government have given him 15 minutes in the national spotlight, what his case and the story of the diner in Jackson are really about is the very nature of property rights—not just in the American West, but across the country.

Indeed, I’ve spent the last week pondering Theissen’s remark, trying to come up with an East Coast equivalent to understand the “ownership” Bundy and people like him feel over land whose title is in our collective name. As it turns out, we have a pretty good analog right here in New York City in how we try to grapple with the difficult concept of “home” as it relates to scarce and precious public housing resources.

This month, NYCHA General Manager Cecil House testified before the New York City Council about the Housing Authority’s “rightsizing” plan. As the wait list for public housing continues to grow (in 2012, NYCHA projected that nearly one in three units (55,000) were “underoccuiped”, while the wait list swelled to 160,000 families), NYCHA has sought to optimize apartment usage by “transitioning families to apartments appropriate for their needs.”

As House stated, “Rightsizing does not only improve the quality of life of current NYCHA residents but also provides housing to more New Yorkers on our waiting list.”

The rightsizing issue has been extremely controversial, largely because its very nature necessitates removing people from their homes and placing them in smaller apartments (particularly older residents whose children have moved out). NYCHA is, after all, a public resource and rightsizing is absolutely needed to ensure that new families can take advantage of the opportunities it provides.

However, if our homes are indeed our castles, it is also understandable as to why ranchers or public housing tenants would feel ownership, the deed notwithstanding.

In situations like these, where emotions run hot and mistrust lurks around every corner, there are few good choices. However, our system of government is rooted in the consistent application of the rule of law, rather than the fallible whims of officials.

Indeed, just as the BLM didn’t attack Bundy for who he was, but for what he did (violate the law by refusing to pay a standard fee), so NYCHA’s rightsizing is not directed at individual residents as punishment, but is instead enforced as part of a contractual agreement entered into by tenants with the Housing Authority.

As long as the system itself is fair and people have the opportunity to argue their case before a neutral arbiter, that’s all we can ask in a Republic. Taking up arms against that effort is an affront to a government of laws itself—a government that is fallible, but far better than the alternative.

Net Neutrality: A Revolutionary Solution to a 21st Century Problem

 “Whatever facilitates a general intercourse of sentiments, as good roads…a free press, and particularly a circulation of newspapers through the entire body of the people…is favorable to liberty.”

--James Madison, Public Opinion, 19 Dec. 1791

This week, the Federal Communications Commission (FCC) announced a major shift in policy concerning “net neutrality”—the principle that has heretofore established that all legal internet traffic must have equal access to the networks of service providers. This shift will potentially allow larger companies (particularly providers of bandwidth-busting streaming video, like Netflix or ESPN) to pay for preferential access to the internet’s infrastructure—what the New York Times deemed “the digital equivalent of an uncongested car pool lane on a busy freeway.”

A host of consumer and civil liberties groups—from Common Cause to the American Civil Liberties Union (ACLU)—have spoken out against the proposed rule changes, with the ACLU predicting, “barriers to innovation will rise, the marketplace of ideas on the internet will be constrained, and consumers will ultimately pay the price.”

On the other side of the argument are telecommunications companies that for years have insisted that “tiered” bandwidth would benefit the majority of consumers. As David Cohen, an executive at Comcast declared at an FCC hearing at Harvard Law School in 2008, “Bandwidth-intensive activities not only degrade other less-intense uses, but also significantly interfere with thousands of Internet companies’ businesses.”

While I personally believe that net neutrality should remain the law of the land, I am not blind to the pressures facing ISPs or the writing on the wall from the FCC. Therefore, I want to focus today on the potential effect that a “bandwidth to the highest bidder” system could potentially have on a free press and whether an ancient Constitutional clause long forgotten—the Post Roads Clause—can be seized on by Congress to ensure a free and equal exchange of ideas online.

I propose that Congress enact legislation recognizing fiber-optic/broadband cable as the post roads of the 21^st century, and (assuming the FCC’s plans go through) require all ISPs that choose to implement differentiated services to permit news organizations to have free and uninhibited access to the fastest possible connection to end users. This designation would reduce the potentially devastating effects of “bandwidth to the highest bidder” and would comport with the history of Congressional awareness of the importance of a free and open press.

The Old Boston Post Road-- From Wall Street to the Hub

In 1791, Massachusetts Congressman Elbridge Gerry declared, “Wherever information is freely circulated there slavery cannot exist; or if it does, it will vanish, as soon as information has been generally diffused.” Shortly thereafter, the first Postal Act passed and ever since, the Post Roads power of Congress (Art. I, §8, Cl. 7) has been used to support the work of newspapers. Newspapers were permitted to use the mails at deeply discounted rates throughout the 18^th and 19^th centuries and were eventually joined in that privileged position by magazines, books, and other periodicals.

Over time, the Post Office has continued to be at the forefront of using transportation and communications technologies to improve both the reach of the press and the speed at which its product could be transmitted across the continent.

In 1823, waterways were declared post roads. In 1838, all railroads in the United States were declared post roads. And in 1922 and 1923, the Post Office was awarded the Collier Trophy for important contributions to the development of aeronautics for its contributions to airliner safety.

The Post Office not only asserted control over transportation technology, but also over new forms of communication technology. As the Supreme Court of the United States noted in Pensacola Telegraph Company v. Western Union Telegraph Company, a case upholding Congressional regulation of telegraph lines:

Post-offices and post-roads are established to facilitate the transmission of intelligence…The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances. They extend from the horse with its rider to the stage-coach, from the sailing-vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth.

Pensacola Tel. Co. v. W. Union Tel. Co., 96 U.S. 1, 9-10 (1878) (internal citations omitted) (emphasis added).

Like the canals, rails, and wires before it, the internet has become the great facilitator of knowledge—tying the nation and the globe together and transmitting ideas across oceans in ways the Founding generation never could have imagined. And yet, as the Court said 136 years ago, the Constitution stands ready to adapt to the “progress of the country.” In 2014, the time has come for Post Roads to meet Cyber Space.

What it Means to be #1: Happiness and Social Policy

“Gross National Happiness is more important than Gross Domestic Product.”

-- His Majesty Jigme Singye Wangchuck of Bhutan

Last week, Nicholas Kristof of the Times noted that between 1975 and 2006, “99 percent of the French population actually enjoyed more gains in that period than 99 percent of the American population.” In other words, if you exclude the top 1 percent, the average French citizen did better than the average American.

Nevertheless, on one of the more common metrics used to determine the prosperity and halth of a nation—the Gross Domestic Product (GDP)—the U.S. actually came out on top during the same period, as the American economy significantly outperformed the French.

So who’s “#1”? Before you start chanting, “U-S-A! U-S-A!” (too late?), let’s take a closer look at just what we’re trying to measure.

In recent years, researchers have prodded cities and states to step away from the traditional measures of prosperity and embrace tools to measure overall “happiness”. In December 2013, the National Academy of Sciences issued a report calling on governments to ask citizens a series of questions related to their happiness and to use the results to shape social policy priorities and prescriptions.

This type of survey—which began in the small nation of Bhutan in the early 1970s—has spread to other nations, like the U.K., France, and Canada, all the way down to the local level, as in Somerville, Massachusetts.

Indeed, several U.S. cities are now experimenting with happiness or wellbeing measures. Santa Monica, California, which defines “wellbeing” as, “[p]ersonal satisfaction with life, influenced by social connections, economic stability, personal safety, physical surroundings, fulfilling employment, civic engagement, and health,” recently won a Bloomberg Philanthropies award for its efforts to measure wellbeing and respond accordingly.

In New York, Megan Golden (NYU) and Liana Downey (Liana Downey & Associates) wrote that the de Blasio Administration should pilot a happiness survey to determine “whether some groups are struggling more than others, where problems are concentrated, and what conditions affect New Yorkers’ happiness the most.” This pilot would borrow from the Centers for Disease Control and Prevention, which already surveys Americans every four years about health and life satisfaction, as well as “Measure of America”, a project of the Social Science Research Council.

Of course, measuring happiness is easier said than done. As with any broad survey, getting a representative sample is a challenge, particularly in a City like New York, where many are often wary to respond to formal government surveys (see: New York’s experience with the 2010 Census). Furthermore, since most people filling out the survey have different definitions of happiness, questions that seek to gauge the subjective mindset of any population may be inherently suspect.

An even more fundamental question exists, however. And that is whether happiness, however defined, should be the goal of social policy in the first place. As David Brooks wrote this week, “Happiness wants you to think about maximizing your benefits. Difficulty and suffering sends you on a different course.”

No, Brooks is not advocating for a political system that promotes difficulty and suffering. But he’s also cautioning against viewing certain types of suffering as in need of eradication. To put it in concrete terms, suffering that flows from hunger, disease, violence, or neglect carries no short or long term benefit (much to the contrary), whereas the pangs that come with failure, the loss of a loved one, or can make us fuller people—changed souls, rather than shattered ones.

Ultimately, since that the unique number of paths to happiness is roughly as numerous as the number of people alive, the Framers probably got this one right—namely, that the government’s role is to ensure the foundational elements necessary for the pursuit of happiness (food, shelter, health care, employment), leaving to the individual citizen to decide how to chart his own course toward that seemingly universal goal.