Blame the Supreme Court for America’s sharp political divide

August 24, 2017

August 24, 2017

In the 19th century the Supreme Court set the stage for a century of murder, intimidation and voter suppression in the southern states by nearly obliterating the application of constitutional rights to state behavior, In the 20th century, the Court’s nationalization of constitutional rights long met liberal dreams. The Court now seems poised to use the national application of constitutional rights language to satisfy conservative dreams. Both ways close the states’ rights escape valve and therefore magnify the contentiousness of national politics. And all of those choices have enormous moral costs. I elaborate on TheHill.com, at Blame the Supreme Court for America’s sharp political divide.

Happy reading, Steve

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What’s to blame for our divided nation? The cause can also be the cure

May 10, 2017

My views of the legal contribution to American polarization and what can be done about it have now come out as

“What’s to blame for our divided nation? The cause can also be the cure” [click here] on TheHill.com. Enjoy.


How Can We Protect American Workers

March 11, 2017

Trump’s power, and his policies on jobs, immigrants, religious and ethnic hatreds and the Alt-wrong are all related.

Scholars of intolerance tell us that threat breeds hate. I suspect that all we can say about why immigrants and Muslims are really good people only makes those who feel threatened feel more threatened, because instead of talking about their needs we’re praising someone else.

So I want to talk about the needs of Americans who feel threatened economically and what can be done regarding their economic losses, recognizing that the disfunction in American politics is partly due to the desperation of workers who’ve lost once good jobs.

Protecting American workers is crucial both because people suffer when they can’t find good jobs, and because desperate or threatened people take dangerous risks at the polls and elsewhere. We must protect workers both for their sakes and for ours; it’s much the same thing.

It’s our job because government fiscal, tax, programmatic and other policy decisions daily determine how many jobs there are. Some people can make their own opportunities, but, to be fair, most good, decent, hard-working people can’t.

What can we do about it? Sometimes it helps just to set out the options. Here are the choices I can see:

FDR created unemployment compensation and Nixon proposed a negative income tax – safety-net approaches based on direct income transfers. Many object, including those who benefit from handouts, tax loopholes, deductions, farm price supports, subsidies etc. – the tax code and the budget are replete with them. But direct financial transfers are one possibility.

A second approach is to pay for jobs indirectly through trade policies. All three presidential candidates talked about that. I understand the fear of foreign competition even though there are reasons to look for other solutions for American workers: limiting foreign imports hides the cost in the price of things we buy, and isolates the American economy from developments elsewhere. It also might not work; actual hiring decisions would rest on other people’s decisions. But we can’t overcome the fear if we can’t commit to other steps, and all the talk about the risk to Social Security fans that fear.

A third approach, the conservative free market approach, is not really a solution for the working person at all – it simply puts the monkey on workers’ backs to find jobs or starve.

A fourth approach is to create new jobs by government action – fiscal stimulus, infrastructure development, and investment in science and education, all of which call for construction, maintenance and technical jobs. That’s what Obama called for but Congress drastically whittled his effort down.

Why can’t government be employer of last resort? That would automatically support a minimum wage, create better communities, and make life better for all of us. It’s not the free lunch some people worry about; it’s a job. What’s so terrible about giving people what Tom Paxton called “a job of work to do”? There’s plenty to do if we were willing to invest in our people, our workers, our infrastructure, and our environment. Sometimes spending a little can make the community more attractive and the economy zing while providing a decent income to people who need a job.

Some countries use all of those methods and have quite robust economies.

Those are the alternatives I can see: the free marketeers’ defining it away as the workers’ problem, the safety net approach of income transfers, paying indirectly through trade policies or subsidies for the appearance of helping workers, or creating jobs through fiscal stimulus or hiring people to do needed work. My preference is to put people to work – that way protecting others is good for us all. One way or the other, standing up for each other is essential.

— This commentary was broadcast on WAMC Northeast Report, March 7, 2017.


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).


Is Democracy in America Coming Apart?

December 6, 2016

I wrote Unfit for Democracy to warn that American democracy could collapse in coming decades. But the problems are coming home to roost sooner than I expected.

How the economy treats people matters. That was the starting point for my work and, since World War II, for political scientists studying the survival or breakdown of democracy. But the American economy has been leaving lots of people behind. In my book I argued that the Supreme Court was diluting the value of ordinary Americans’ economic rights in favor of the wealthiest people and corporations. I feared the danger to democracy as people became more and more desperate.

I also worried the Court wasn’t enforcing the Bill of Rights for ordinary people and feared would-be dictators could take advantage of it. And I worried because the Court permitted politicians to fix the voting mechanisms to make fair elections almost impossible.  Changes made after the 2010 census allowed Republican-dominated legislatures to lock Democrats out of Congress and the majority of state legislatures for the foreseeable future. That Court-sanctioned gerrymandering now blocks fair representation in Congress and in many states. Trump kept claiming that the system was fixed, implying that it was fixed against him, but the Court allowed the Republican Party to block access to the polls in many states.[1] The election was partly fixed, in favor of the Republicans and Mr. Trump.

I also worried that legal changes underlying changes in the media and the primary systems were contributing to the polarization of America. As Jim Hightower once titled a book,  There’s Nothing in the Middle of the Road but Yellow Stripes and Dead Armadillos. I thought that was dangerous.[2]

Now we are finding out that only a quarter of Americans still believe that it is important to live in a democracy. And we’ve elected a president who befriends autocrats – autocrats who destroyed democratic governments, censored the press, put opponents in prison, and took over.

Once that happens, the people who wanted to break the system down have no voice in what the new system does. Autocrats around the globe become kleptocrats – they steal from everyone for themselves and their friends. In commentary earlier this year I described that as the Sheriff of Nottingham syndrome – the sheriff from the Robin Hood legend who took from the poor to fill the pockets of King John. Corruption in democracies doesn’t hold a candle to what autocrats do to their people financially, how opportunities suddenly depend on the dictators’ favor, how freedom disappears, real freedom, the freedom to walk around out of prison and take care of one’s family. Those folks who were so ready to break the system are likely to be among the first broken by it.

The Court won’t protect us. Those with power have no motive to protect us, but only to keep their own advantages. The rich will have more, not less control. Just look around at how Trump is deepening the threats:

  • His worldwide set of conflicts of interest become opportunities for Trump enterprises in the pattern of third-world kleptocracies;
  • He proposes to cut benefits for ordinary Americans, leaving more for himself and friends;
  • He selects America’s wealthiest to run our economy;
  • He rants about asserting “Second Amendment rights” at the polls as if menacing people at polling places advances democracy;
  • He rants about throwing people in jail – starting with his political opponent – though that threatens democratic competition;
  • He seems to think that winning means he can do whatever he wants.
  • And he and the Republicans seem to believe recounts are legitimate only for themselves – not to protect and enforce the voters’ choices.

If American democracy collapses, it will be the biggest victory for the world’s worst people. As Trump pounds on the pillars of democracy, we will have to do all we can to preserve the American democratic way of life.

[1] Unfit for Democracy, at 195-204.

[2] Id.  at 153-67; Law and the Polarization of American Politics, 25 GEORGIA STATE L. REV. 339 (2008).

— This commentary was broadcast on WAMC Northeast Report, December 5, 2016.

 


Democracy and Compromise

September 13, 2016

Since Obama’s election, congressional Republicans and their Tea Party challengers made Obama’s defeat their overriding goal, and when they couldn’t do that, they did everything they could to make him seem like a total failure, an example of politics gone completely awry. To accomplish those goals, they refused to give him any victories – not on infrastructure, not on economic stimulus, not on judicial nominations and they tried to retract his success with the Affordable Care Act under a Democratic Congress.

The Republican decision that nothing could go forward without support of a majority of the Republicans in each house of Congress gave power to a majority of their caucus but a minority of Americans. Had dissenting Republicans been able to vote their conscience, some real negotiation would have been possible. The harsh stance driven by the Tea Party was a form of power play by a determined minority that got its hands on a way to block the congressional majority from even bringing bills to the floor.  It was not a prelude to negotiation and it was not an example of democracy at work.

On the other side of the political spectrum, many Sanders supporters argued that they could take nothing less than Sanders or a third party – even if it made a Trump victory more likely.

In this era of my-way-or-the-highway politics, it needs to be explained why democracy is and should be about compromise.

If a majority can do anything, or a majority of representatives, can do whatever they wish, then one portion of the population can be left with virtually nothing. That may be majority rule. But it has nothing to do with fairness or equality. Democracy gets its moral authority from taking everyone’s interests and needs into account. We routinely talk about the combination of majority rule and minority rights. Merely giving the majority the power to exercise power over everyone else is a definition of tyranny, not democracy. Where bargaining is possible, even small or unpopular groups can get some recognition of their needs. Where bargaining is possible, even permanent minorities can get some modicum of decent treatment. Without bargaining, permanent minorities can be stripped of virtually everything. Bargaining gives some meaning to the ideal of equality. The willingness to work things out has always been one of the things that had made America a leader of the free world.

The Founders of this country tried to force some degree of compromise by the different ways they constructed the Senate and the House of Representatives. Before the Civil War the struggle to reach compromises was all about slavery and freedom, the rare area where compromise ultimately became as impossible as it was immoral. After the war, a spirit of compromise reemerged so that America could deal with conflicts between rural and urban areas and other issues.

Sometimes compromise works better than others. Some of us remember within our own lifetimes when absolutely nothing could be done if it included any benefits for African-Americans, and the use of the filibuster to prevent any breach in the wall of segregation.

Many astute observers of democratic government point out that the system works best and most fairly when the needs of different groups of people overlap – disagreeing on some, agreeing on others. That gives groups an incentive to bargain so that everybody gets a fair shake. Even so-called nonnegotiable demands can sometimes be balanced against other similarly important demands of other groups.

Civil war becomes more likely when democracy becomes a contest over nonnegotiable demands that are beyond any form of bargaining. Democracy does not have to be a zero-sum game, where some win the brass ring and the rest merely polish the brass.

Americans need to relearn the art of compromise. Our democracy and our country will be better for it.

— This commentary was broadcast on WAMC Northeast Report, September 13, 2016.

 


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