My views of the legal contribution to American polarization and what can be done about it have now come out as
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).
Looking at the New Year, there are two existential challenges that must be dealt with: global climate change and the threat to American democracy.
Global climate change has to be at the top of the agenda because scientists are telling us we are crossing tipping points. What is a tipping point? It is the point where the damage already done makes the process go out of control. You can’t stop a bomb once it starts – the explosion takes over. And tipping points are being crossed. As arctic ice melts, it’s not just that the earth got warmer already, it’s that the highly reflective ice was reflecting heat back into space and isn’t there to do that any more so without humans doing anything more, global warming speeds up. That’s a tipping point. Other tipping points are in the oceans and the food chain. Climate change threatens real doom, a mass extinction, and the creatures to be extinguished this time are us. So go ahead and throw your grandchildren into the fire and then see if you’re allowed into heaven. Folks, if we send our grandchildren to hell you can be sure that we’ll be right there burning with them.
American democracy is at risk because a foreign power has seen that it is possible to manipulate American elections and an American candidate has seen that it is possible to manipulate the people who are prepared to put weapons in the service of their hatred. And if Trump is half as venal as I think he is, and follows the path of demagogues and dictators, he will bribe members of Congress in order to have his way and to stay in office. Even worse, if he follows the pattern of dictators and demagogues, he will try to distract America with a war. I don’t want to think about the mem, women and children who will lose their lives for the glory of Trump!
We are not in good hands. Americans could be put to work to deal with the environment, build and rebuild our infrastructure, handle real threats to our country and to each other. But to save a few more dollars for the richest among us, people will not be put to work doing the things we need and the richest won’t have to share to take care of our country. That’s kleptocracy folks, it’s precisely the kind of behavior that we expect from Putin and the world’s most bloodthirsty dictators.
No, we are not in good hands because the evil in the Manhattan tower is a greedy grabber of money and power, a denier of global warming, corruption, how the economy works, and the common good.
This is a crisis as serious as World War II – an existential crisis. Will America survive, never mind greatness, if we succumb to a dictator? Will humanity survive, never mind flourish, if global climate change makes refugees and cadavers of us all – and who’ll take in refugees then? What will we do to reign in global warming, protect American democracy, and preserve the country we were blessed with?
Remember ye were strangers in the land of Egypt. We will be strangers – on the planet.
— This commentary was broadcast on WAMC Northeast Report, January 10, 2017.
I walked by a lovely cathedral in Milwaukee and then another of the same faith one block away. Then I noticed someone I knew and asked her what gives. She pointed out that the two cathedrals were built by people divided by their ethnic groups. How far have we traveled! These days we happily rub shoulders with people from all different backgrounds.
The melting pot started with the beginnings of our country. The Frenchman Hector St. John de Crevecouer wrote in 1782 that immigrants wanted to become Americanized and “melted” into Americans. In a 1909 novel, Israel Zangwill wrote “Into the Crucible with you all! God is making the American.” And indeed the melting pot is how we created America and Americans. We are all products of that pot. It was the melting pot that made this a great country, rising above the petty jealousies and foolish fights of the Old World.
We invented the public school as the common school where we all went, mixed, learned and made friends. We work together, laugh together and we’ve made America great together. We’ve made America great together because all our ancestors have contributed to the extent of their skills, character and sometimes their genius. We’ve benefitted from everyone.
And we’re safer because of it.
At the end of the nineteenth and beginning of the twentieth centuries, Americans focused on Americanizing the hordes of immigrants arriving on our shores. What did they do? They used the common public schools. And the corporations and the military played a part. They had soldiers and workers who didn’t speak the same language, share the same customs or celebrate the same holidays. Greeks celebrated Christmas but they did it weeks later which created problems for the factories. Business and the military created Americanization classes and some held a ceremony with a huge pot – the immigrants walked in on one side. On the other, out came the Americans!
The military tried separate units by language but by World War I they put people together in the same tents. Soldiers coming home from the two world wars fixed each other up with their sisters and cousins. Suddenly the melting pot went national.
Many of us fought for integrated schools because we know it makes America stronger, makes our kids stronger and safer. We still fight for integrated schools and communities. But we have just lived through a campaign about divisions, denigrating people for where they came from and how they pray. We have spent eight years watching the most vicious refusal to cooperate with one of the most decent men to occupy the White House on Pennsylvania Ave. because he had an African father.
With Thanksgiving in a couple of days it’s worth stopping to remember that the melting pot is well worth a celebration, well worth giving thanks for, for ourselves and for our country. And it’s worth stirring too.
— This commentary was broadcast on WAMC Northeast Report, Nov. 22, 2016.
Over a century ago, populism was sweeping the country, with white and African-American workers standing together, until a scared Southern aristocracy started race-baiting. Whites took the bait, breaking the back of Southern populism. The rest of the country surged forward because their governments cared about the people, the regular people, not just the fancy financiers. But not in the South, which languished.
That race-baiting aristocracy also killed political competition, leading to the one-party South. No democracy, no concern for the people, no progress. Because race-baiting broke the back of Populism.
Trump uses rhetoric to divide the people hoping he and his cronies can conquer while the rest of us fight each other. Trump attacks everyone – immigrants, African-, Hispanic-, and Muslim-Americans, women, hard-working, warm-hearted, caring Americans of every background.
Democracy is in danger when people can’t accept the legitimacy of disagreement, drown out and threaten opponents, and don’t respect the right to vote of other people because of where they live or where their parents came from. Losing respect for others threatens democracy. Most of us believe that everyone has a right to their opinion. Democracy is in trouble when some try to shut down that right.
Democracy is threatened by campaign crowds yelling “Lock her up” and “Hang her in the streets.” Promising to appoint a special prosecutor to go after Hillary, Donald feeds their hostility to democracy. Like Italy’s Berlusconi, Donald tries to cover revelations about his behavior by throwing hate to angry crowds. Hillary responds “That happens in dictatorships, not democracies.” She’s nailed it; Trump does not want to lead a democratic country; he’s trying to sabotage it.
Trump’s racism and nativism has broken the back of the movement for economic justice. His invitation to settling the election by beating people up and using their Second Amendment rights encourages force, intimidation and even guns, to take Hillary out. Telling his supporters to prevent the polls being rigged codes Trump’s message to control the election by threats and intimidation.
Democracy is in serious trouble when police and military institutions take sides. Individuals in the uniformed services have every right to their political views. But we’ve had a tradition of keeping the military out of politics. We should be able to rely on them to protect every voter’s rights regardless of politics. The military and police need to be above politics or democracy is at risk.
Trump is trying to forge a coalition to muscle democracy out of the way.
If the self-proclaimed rich guy wins, he knows how to enrich himself and his cronies. But he pulls his supporters along with constantly repeated half-truths, lies and fabrications until they seem true because he says them so often – stringing them together like a rant overwhelming any attempt to answer because there’s too much to deal with.
Economic desperation leaves many open to his lies. But they cannot put a populist program together on the back of a divided America. They cannot get government to work on behalf of all the people, not just the super rich, by dividing over skin color, national origin and gender.
The Constitution, the Declaration, the Founders’ legacy, are in trouble when despondent and demoralized people lose faith in self-government. When democracy is in trouble, everyone is in trouble because dictators don’t take care of their people – they take care of themselves.
These same patterns have brought democracy down in many parts of the globe. But for Mr. Trump, we’re all losers and our democracy is a loser too. For Trump, only Trump counts.
— This commentary was broadcast on WAMC Northeast Report, October 25, 2016.
This campaign makes me nostalgic for the draft.
The Republican candidates have been telling us who they want to keep out, and whom they don’t like or wouldn’t lift a finger for – Mexicans, Iran, Muslims, the poor, women, peaceniks. And they make it pretty obvious whom they do like – whites, “real men,” cops, soldiers, guns, the U.S., especially the U.S. before any of us were born, and Christians. It’s all stereotypes, of course. No group of people is all good or all bad – not even conservatives, a big stretch for me. There are always gradations – people need to be judged on their behavior. But that’s too much work. Simplification is so much easier.
Let’s talk about something else they don’t like – democracy. All their blather about the free market and government is little more than an attack on democracy. In fact polls reveal that, on average, conservatives are typically less supportive of the freedoms in the Bill of Rights – except the freedom to carry guns so that, if what they define as the need arrives, you can blow whomever away. Heaven forbid we should have to live together. I glory in walking out of Penn Station in New York – it seems like the whole world is right there and managing to get along; how wonderful in this increasingly contentious world.
Oh on the subject of New York City, that’s a stereotype right there – for much of America New York City is Sodom and Gomorrah. Never mind that the City is actually composed of Americans from all over the country – their own relatives, friends and classmates – as well as a major first stop for immigrants, the same immigrant streams that composed the rest of the country. No, New York is heathen. I remember stopping downstairs for a haircut in a building where I had a temporary apartment in Ohio. The barber was a woman and as we chatted she told me that she was surprised that New Yorkers actually tried to help each other in the days after 9/11. Really – did she think we were coyotes?
It makes me nostalgic too – for the draft! There was actually a time when Americans from all over had to meet, interact, make friends, and did. They introduced each other to their eventual brides, formed business partnerships, learned to appreciate the best in each other’s backgrounds. The draft was truly the incubus of democracy. Theodore Roosevelt proclaimed “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.”[i] Got that right.
Actually the military has been working on that problem since the country was formed. Contrary to what many people think, Americans at the founding spoke many languages and have continued to speak many languages. The military struggled with whipping those disparate forces into a unified fighting team. They tried separate local units and units recruited by leaders like Roosevelt’s “Rough Riders” but they tossed all that aside and put people into those military tents without regard to their origins.
The racial divide forced the military to think again about the problem. It turned out that mixed race units in World War II came back positive about the possibilities of integration. But Vietnam was hard, a stalemate in the swamps in the middle of turmoil back home. But the military responded by making it a part of every officer’s responsibility not only to achieve racial peace and cooperation, but to make sure that soldiers of all races developed appropriately, got training and took on responsibilities leading to promotions.
As a youth I feared the draft; I knew my own physical weaknesses. For me the Peace Corps was a good choice, one that helped me develop as a human being. And there were problems with the way the draft was handled. But I miss it nonetheless. Truly national service is a very good idea for a democratic country.
— This commentary was broadcast on WAMC Northeast Report, September 15, 2015.
[i] 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 (New York: Free Press, Peter Karsten, ed., rev. ed. 1986).
If we can believe the observations of commentators over more than two centuries, Americans have always wanted to be liked. We want people to like us, not to fear or feel coerced by us. That works well for a democracy where politicians want people to vote for them.
But liking each other is almost irrelevant to negotiations. Lawyers constantly negotiate with people they don’t like. What’s crucial is that we trust each other’s honesty and ethics. The principle difference is that liking the people you’re negotiating with makes it harder to see their motive to do you harm.
The Egyptian generals don’t have to like us. And at least in the short term, they don’t much need us. They will do what they think their own interests require and won’t much be bothered by whether they have warm feelings for America. So if I were in the White House, aside from having a stroke from the stress, I wouldn’t give a bleep for whether the generals like us. Read the rest of this entry »