Box Cutters, Mad Cows and Wetlands

Roughly three million people lived in the United States when the Constitution was ratified. Today, more than 300 million do. Yes, there are also many more states – a much larger geographic area over which the 300 million of us spread out. Still, the prospect has sharply risen that individual and group actions and behavior can affect many more people in many more ways than a few centuries back.

We spread ourselves over more than geography in our world of markets, networks and organizations. For example, as described in yesterday’s post about Citigroup, choices made by people in Citi’s New York offices can profoundly affect the happiness (or lack thereof) of people throughout the 50 states. Thus, it’s no surprise that the choices made by the nine people who sit on the Supreme Court reach far more broadly and deeply in the early 21st century than the late 18th century.

Yesterday, the Court (led by new Chief Justice Roberts) chose to hear three cases concerning the Clean Water Act of 1972. The cause celebre of the three involves John Rapanos, a Michigan farmer found civilly and criminally liable for filling in wetlands on his farm.

Serious issues of fact exist about whether the Rapanos site was a wetland and adjacent to, or by hydrology, connected to navigable waterways. The Supreme Court and other appellate courts, though, have a long tradition of focusing more on the law than facts. So, with Rapanos and the other two cases, the arguments and choices will more likely be about the scope, reach and legitimacy of the Clean Water Act of 1972 than about how wet was John Rapanos’ land seventeen years ago.

These cases pit the legitimate use of government regulatory authority against the legitimate uses of property. Folks who are more ideological than reasonable are lining up on predictable sides. But most of the 300 million of us don’t live our lives in idealized abstractions. We live in a real world that is profoundly interconnected and complex. A world where quite recently for example, the private property interests in a cow and box cutters were entirely eliminated if the cow happened to be mad or the box cutter owner brought his or her property to an airport.

Indeed, just a month ago, we experienced the adverse effects of improperly – even dangerously — mishandled wetlands, navigable waterways, and hydrological connections when Katrina hit a Gulf Coast imperiled by erosion notwithstanding the Clean Water Act of 1972.

Our complicated world of markets, networks and organizations uses private property to build immense economic value of great benefit to all of us. In doing so, though, these markets, networks and organization also handle chemicals, poison, disease, earthmovers, concrete, steel, fish, microorganisms, bio-engineered plants and on and on. As much as they help to regulate our affairs, neither the laws of contract nor tort (personal injury)— nor property — are sufficient to govern ourselves in such a world.

With these three cases, we are going to get our first glimpse of how the nine human beings on the Roberts Court choose to shape how and when government helps us govern ourselves. And the choice of these nine will affect the other 300 million of us. Indeed, it will reach into and affect the lives of hundreds of millions outside the United States who are, nonetheless, connected to us, hydorlogically and otherwise.

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