Polarizing America

January 31, 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.”[2] 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).

[1] 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).

[2] 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).

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The March in Albany

January 25, 2017

This weekend was busy. The New York Civil Liberties Union, the National Lawyers Guild and others trained people in nonviolence and to serve as observers for the Women’s March on Washington, including a couple of training sessions at Albany Law.

Saturday I joined the Inaugurate Resistance March here in Albany. People joined the crowd from every direction, walking toward the planned start of the march. With so many people it was long before I saw anyone I knew. State Senator Neil Breslin commented to me that a march of this size had never happened in Albany. The only numbers I’ve heard seemed much too conservative – this was really big.

I saw speakers and marchers from women’s groups, Citizen Action, Upper Hudson Planned Parenthood, the Coalition Against Islamophobia, labor unions, religious leaders, community service groups, gay rights groups, and many others.

Eventually I ran into friends who’d served in the Peace Corps, or been mainstays of activism in this area. I got close enough to the rear of the platform to see the back of speakers’ heads.

A common theme was solidarity across all the causes we each primarily work on. United we stand and can protect each other. Divided we fall; we’re all vulnerable separately. All for one and one for all.

When John Dunne wrote the immortal lines, “Ask not for whom the bell tolls, it tolls for thee,” he wasn’t whistling dixie. Our welfare is bound to each others’:

  • Slavery to northern workers was both morally indefensible and a threat to their own livelihoods.
  • Sweatshops bring down everyone’s paychecks and safety.
  • Minimum wages affect everybody’s wages. It’s about whether some people can take advantage of other people, and us.
  • Abuse of women threatens our families and our children – do I have to count the ways?
  • Abuse of any of us – racial minorities, immigrants, gays, lesbians and the trans-gendered, any of us – threatens all of us.

Treating people like trash threatens us all – by example, not to mention their business, their support for us, and the damage to all of us of making some people desperate – desperate for jobs at any price, desperate for food, clothing and shelter for themselves and their families, at any price. Desperation threatens everything and everyone.

The folks at the Inaugurate Resistance March got it. We celebrated our inter-dependence and we cared about each other. I like to quote the ancient Rabbi Hillel who asked the people, “If I am only for myself, who am I?” In that crowd I enjoyed the reaffirmation of our mutual concern. Need I point out for the doubters that a major reason for our country’s success was our ability to work with each other – it matters that we see each others’ humanity, brotherhood and sisterhood.

But that cannot be enough to deal with the blowhard in Chief. The Tea Party’s example was its organizing. Their targets were primaries to take over the Republican party and publicity to take over the public agenda. Obviously it worked. And it will work for liberals too.

It must. Obama’s election was a major step toward a just, decent world. The blowhard-in-Chief is poised to take the brotherhood of mankind apart. It’s our job to make that fail, never to be resurrected, and drive its proponents out of American politics. It’s our job to keep in touch, stay united, publicly push for a decent America until the racist blowhards are sobbing in their caves. We’re the majority and we’ll make OUR muscle felt.

— This commentary was broadcast on WAMC Northeast Report, January 24, 2017.


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