My views of the legal contribution to American polarization and what can be done about it have now come out as
Last week I commented that scholars of intolerance tell us that feeling threatened often leads to hate. That’s one reason the economic threat to some American workers matters to all of us.
Trump is clearly working with the free marketeers. The free market is not about your, or workers’ rights; it’s about your boss’s or your company’s right to close your plant, move, lower your wages, reject your union, or just skip protecting your safety.
Trump makes different noises when talking about your jobs and when writing rules and hiring his cabinet. But his Republican Senate will insist on a free market, and Trump is counting on it.
Trump told us he wants to eliminate 75% of regulations. Those regulations protect employees and consumers; in other words, you and me. They protect our wages, require safer working conditions, ban poisons from our food and water and require companies to give us what we paid for. That’s how Trump shows us his true colors.
Obama saved thousands of jobs by saving American auto makers and growing the economy by hundreds of thousands of jobs per month – but gets no credit. Trump may have saved a few hundred but people think he takes action. With victories like that we can all starve.
Trump’s focus on the optics of small victories keeps us looking the wrong way. U.S. factory output is growing. But the jobs have changed. Missing are factory jobs for poorly educated people. I don’t say that out of disrespect. My Uncle Hershel, a truly lovely man, was a factory worker. I remember him sitting by my bed when I was ill. What I’m talking about is how to get good jobs for people like him. If we expect jobs to show up the same way they did a century ago, we’re whistling in the wind. If we think Trump can trump marketplace change by jawboning a few companies, we’re spitting in the wind. He doesn’t have the time or tax cuts to do it that way.
Central New York was once a manufacturing powerhouse. What’s left are mostly small towns far from traditional jobs. Yet one can now work thousands of miles from where things have to be made or done. We could be linked in to the world IF we invested in and rebuilt the economy, instead of jawboning the owners of obsolete factories.
And education must be available and affordable for everyone who wants a good job. Education sounds like elitism to many workers. But what made America an economic powerhouse was our system of mass education. And that’s part of why those who think we can go back to a prior era of American greatness are spitting in the wind – the rest of the world has caught up. To provide jobs, we need to provide retraining for mid-career workers on top of excellent schools, pre-school and after-school programs – all of which provide jobs.
Yes education will have to change. I’m a dinosaur, standing up in front of a class of students, even though the alternatives, so far, are not working very well. But when people figure out better methods, education will take off again – here or elsewhere. That’s where we need evidence-based experimentation – science. We rely on science from morning till night for the things we touch and use. Denying science is the height of idiocy, not a mark of greatness.
Trump yells about foreigners and markets. It’s our job to address reality.
— This commentary was broadcast on WAMC Northeast Report, March 14, 2017.
I’d like to give my spleen a break for a week and talk about some of the dynamics that are polarizing America, that neither side can solve because the problem is structural. Law has contributed with crucial changes regarding political parties, the media, the draft and residential segregation (which Brown did not prevent). I’d love to hear good suggestions for countering the polarizing effects of those legal changes.[i]
Primaries originally broke up state monopoly parties. We’ve long known that primary elections push candidates apart to appeal to their parties’ most committed voters. After 1968 the primary system became the exclusive method for nominating presidents, pushing the parties further apart.
In broadcasting, three networks controlled radio and television until Congress changed copyright rules, allowing cable television expansion to over a hundred channels, and niche broadcasting to separate audiences. The courts and Federal Communications Commission also killed the Fairness Doctrine, which required broadcasters to present a balanced presentation of controversial issues of public importance. Then Congress made it almost impossible to hold any internet company responsible for even the most outrageous falsehoods published on their systems. Those media law changes made it unnecessary to pay any attention to opposing views. Plus, instead of limiting damages for defamation, as Justice Marshall suggested, the Court gave media much more complete protection.
At the Federal Housing Administration, officials long refused to insure mortgages to African-Americans, regardless of income. That prevented African-Americans from joining the march to the suburbs, drove disinvestment in their existing neighborhoods, and pushed us apart.
The end of the draft has been huge. The military had drafted people without regard to wealth, class, or geography. President Teddy Roosevelt said “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.” And indeed the soldiers came home with lifelong buddies from all over America. Arguments about the Vietnam war ended the draft and led to the so-called volunteer army, which doesn’t reach the same cross-section of America. That changed our attitudes toward each other, and how polarized we’ve become.
There were good reasons for the changes to the nominating system, the media, and the draft but the combined price has been to polarize us. Polarization matters. It blocks our ability to listen to each other, even to care about each other. And if we can’t care, the very notion of public welfare, what’s good for all of us, seems like self-pleading.
The market can’t pick up the slack; it fails in many ways. Worse, for market ideologues, democracy, the major counterforce to the market, seems illegitimate. In other words, the stakes are huge – the legacy of our Revolution, our Constitution, and our collective welfare. Somehow, we have to break down polarization, and restore what used to bring us together or find substitutes – for public schools, military service, media that reached across aisles, and integrated housing and communities.
I doubt the cat can be put back in the bag, especially in this polarized environment, but I’d love to hear good suggestions.
— This commentary was broadcast on WAMC Northeast Report, January 31, 2017. For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).
 For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).
 Quoted in John Whiteclay Chambers, II, Conscripting for Colossus: The Progressive Era and the Origin of the Modern Military Draft in the United States in World War I, in The Military in America from the Colonial Era to the Present 302 (Free Press, Peter Karsten, ed., rev. ed. 1986).
Years ago, when I was working out in a gym, a younger woman was obviously putting more weight on the equipment and doing more and faster reps than I was. I did not know this woman and there was no conversation between us. But as she passed me, she commented that it was OK because I would be stronger on the upper body exercises. When people catch me off guard with a comment like that, I often say nothing, and I don’t think I responded. But I have often wanted to say to her that I don’t keep my ego in my muscles.
Some do of course, people who can do all sorts of things that I can’t, great athletes but also people who move furniture and other heavy work and they have every right to put their egos in their muscles.
But why would anyone put their egos in the color of their skin? I hope everyone has other things to be proud of. That leads me to feeling mostly pity for the people who base their lives on racism, as if their own race is special, not just as good, but superior. That is as shallow as the cosmetics that people apply to their skin.
After the Civil War, Thaddeus Stevens told the House of Representatives that he hoped people would be judged only by their character and ability. By that standard of course, whites, or Caucasians, are all over the map, from killers and thieves to statesmen and scientists. The same is true for other so-called races. If that leaves people feeling like the ground has been knocked from under them, they need to hike onto firm ground, but it isn’t going to be the color of their skin. The people who kept repeating that President Obama couldn’t figure anything out only revealed their own inferiority complex, a struggle they tried to hide by claiming to belong to a supposedly superior white race, and by their inability to see the qualities of an African-American man.
The great Dodger shortstop, Pee Wee Reese, made a very revealing comment when he pointed out that what had really upset some ballplayers when Jackie Robinson broke in to the majors was not the color of his skin; it was his education – Robinson had been a four-letter man at UCLA and came to the Dodgers as a well-educated African-American at a time when most ballplayers had little education. The antagonism of some ballplayers was jealousy concealed as racism.
By the same token, I think what bothered many about President Obama was not just his race, but his accomplishments – an ivy-league education capped by the top position on the Harvard Law Review, a job with a corporate law firm followed by a career in public service. These are accomplishments most of us could envy. But most of us are happy to admire the man without demeaning his obvious accomplishments because somehow his skin color diminishes us. Truly I think racism both masks and reveals the inferiority of the racist. They need to get over it.
— This commentary was broadcast on WAMC Northeast Report, December 27, 2016.
I first heard the term political correctness when we were looking at colleges with our daughter. It was a term raised by other parents. I didn’t know what it referred to. Now it’s so common it’s just called PC. I just think of much of it as manners, and at the root of manners is kindness.
Kids tease each other mercilessly. Some of that becomes so concentrated on particular children we call it bullying. Words can, and do hurt.
I admit that sometimes the search for euphemisms seems useless, where the new term simply picks up the meaning of the old leading to a search for still newer ones. But there is a difference between terms that describe a problem and terms that invest that problem with an insult. It is a problem to be born deaf, blind, or retarded. But there are wonderful, decent, loving people with every one of those problems, and many who are very creative and effective.
And in virtually every case, other people can make that condition more or less severe or disabling. Race, religion, national origin, gender, of course, are only problems to the extent that others make them so. But why would we do that when we could reach out to the very folk that others belittle for such nonsensical reasons? Why when we could be helpful? Why when we can make our surroundings more pleasant rather than more hateful?
Isn’t that the message that all of our faiths teach us? Doesn’t gratuitous meanness simply make hypocrites of us all?
Is our culture so competitive that everything has to be turned into rankings, insults, failures, and, to use Trump’s favorite term, losers? I know that people justify that to encourage others to be strong. But what is strength? Is strength simply the ability to survive the taunts of others? Don’t we have enough challenges without taking each other down.
There is another possibility, that our own egos are so tender that we can only feel good by putting others down. That life is just a set of opportunities to insult everyone except our friends, and perhaps those people who would know that our taunts are insincere jokes.
It is interesting that President Obama cultivated just such a hard shell at his mother’s urging because of their experience in Indonesia. But Obama has never endeared himself to the taunters here. Clearly racial taunts and racial disdain aren’t for the purpose of strengthening people – they are designed to hurt, as if by hurting others we justify ourselves.
Just the opposite: hurting others undermines our own claims on this world. We are in the holiday season. This is the time when Christians are encouraged to find peace and good will toward all men. Jews embody that message most strongly at the Passover, closer in time to Christian Easter. Both of us are exhorted to love our neighbors. Similar prayers are in Muslim worship. We all share our origins in the story of Abraham. And one of the most crucial problems of this world is for all of us to find ways to live peacefully together.
Ultimately that is what good manners are about. Peace on earth; goodwill toward men – even though one of our friends was arrested not far away for wearing a t-shirt that said exactly that. Let’s start making this a better world. There are demons enough in this world without demonizing each other.
— This commentary was broadcast on WAMC Northeast Report, December 20, 2016.
I don’t usually tell stories, but sometimes an ancient story seems to have contemporary relevance.
We know the character I’m thinking about as DON Juan. In Italian it is DON Giovanni, the title character of a Mozart opera. Don is an honorific title. Like some people with whom we share this world, DON Giovanni is a braggart. Leporello, his servant sings “Mille et tres” – in English, “a thousand and three.” Leporello counts the women all over Europe that DON Giovanni has dishonored – six hundred and forty in Italy alone; two hundred thirty-one in Germany; a hundred in France; ninety-one more in Turkey. And in Spain, oh in Spain already one thousand and three. Leporello adds that these girls came from all ranks of society – girls from the city and the country, maidservants, and noble women, members of the aristocracy. DON Giovanni uses different lines for women of every hair color, shape and weight.
The first half of the opera is light-hearted. Peasants dance in preparation for the wedding of Zerlina and Masetto. But DON Giovanni sends Masetto off with a combination of claims that everything will be fine because he, the DON, is a nobleman, plus thinly veiled threats with his sword. Then the DON dangles enticements before Zerlina. Zerlina sings “I would, but I would not.” I remember seeing a young couple sing that duet on the lawn at Chautauqua – I can no longer remember their names but never forget how well that Zerlina sang, coquettish but embarrassed at her own desire, completely understanding Zerlina’s predicament. Zerlina knew that this nobleman might be insincere, merely to dishonor her, but finds herself unable to resist. That first Act ends with others, who know and resent the DON’s tricks, rescuing Zerlina. DON Giovanni comments that the Devil is playing with him.
The second half of the opera is quite different. DON Giovanni has escaped those angry with him and taken refuge in a graveyard near the statue of the character known in italian as il Commendatore, commemorating a man killed by DON Giovanni, and the father of one of the noblewomen who has rescued Zerlina. An inscription at the base of the statue demands vengeance. There in the graveyard, the statue speaks, warning DON Giovanni he is near the end. Cool and fearless, DON Giovanni invites him to dinner. Sure enough, il Commendatore appears at dinner as a white shrouded statue – we could call him a ghost – demanding repentence. DON Giovanni refuses to repent, claiming he fears nothing. They scream at each other, “Repent;” “Never;” “Repent;” “Never.” Like the Donald we have to live with, the DON that was Giovanni [quotes] “loved” women too much to regret dishonoring them.
Mozart, often thought of as writing music that ranges from merely pretty to soaringly beautiful, grabs musical lightning from the Lord and hurls it at DON Giovanni, pulling him down and taking him to Hell.
Mozart’s opera ends with the characters in chorus making clear that is exactly where the DON belongs.
— This commentary was broadcast on WAMC Northeast Report, Nov. 29, 2016.