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).
The struggle between Israel and Palestine and the intransigence of Israeli Prime Minister Netanyahu, leads me to think about a founder of American Zionism. In a book to come out early next year, I wrote:
… [P]rior to his Supreme Court appointment in 1916, Brandeis became leader of the American Zionist movement, heading a committee to assist endangered European Jews. He would found the American Jewish Congress, the Palestine Endowment Fund and the Palestine Co-operative Company. Zionism expressed Brandeis’ understanding of American values, the same right for Jews as other nationalities to a homeland, to strengthen their claim to equality among the world’s peoples. Palestine, he argued, must not be claimed by war but by purchase and settlement, “with clean hands … [so] as to ennoble the Jewish people. Otherwise, it will not be worth having.” He compared Zionism to the recent independence and unification of Italy, Greece, Bulgaria, Ireland and the more short-lived Servia. For Brandeis, support for justice, fairness and democracy everywhere, in service to “the brotherhood of man,” makes one a better American.
Brandeis lived long enough to fear events in Europe and advise Jews to leave Germany but he died in 1941 before we joined the war, and before Israel was born in a bath of fire. May he rest in peace.
Instead, conflict has radicalized both Israelis and Palestinians and there seems to be no brakes on the spiral of violence.
A Palestinian graduate student at RPI told me Palestinians had every right to kill any Israeli, and Israelis have no right to fight back because they are wrong. His solution was the mirror image of Israel’s, takeover of the other’s land. I pointed out that would lead to the slaughter of everyone on both sides. He shrugged. Muslims from other places listening to us made clear they got my point. But extremists on both sides make peace impossible.
I see no mechanisms in their societies to resolve the conflicts and bring people together. Israelis and Palestinians are segregated in their living space, often by walls, boundaries and checkpoints. They are segregated in schools by faith and location. They are segregated in business, finance, wherever they might work together – save where Israeli employers hire Palestinian laborers, who work when Israel allows.
Our country has brought people together since the founding, in commerce, finance, colleges and schools. Still we suffer domestic conflict between racial and other groups. Congress and a string of American presidents supported desegregation to bring people together. The formerly segregated South changed a great deal, but backlash persists across America. Curing deep-seated antagonisms is difficult. It is next to impossible where they are reinforced by physical and legal walls.
I doubt Israel and Palestine have either the time or the will to build bridges between them. Each believes in re-taking the others’ lands, not sharing them.
My concern at this point is for America. I see little advantage to our country in being drawn further into an intractable conflict with religious zealots on both sides who kill peacemakers, national leaders, and noncombatants, to prevent or derail the possibility of peace. I fear that the future includes a great deal of slaughter, and am no longer convinced it can be averted. Our only choice may be whether we, in America, get blamed for it. The Israelis need to hear that message loud and clear. There is no chance of a decent resolution as long as Israel believes they have our unconditional support.
— This commentary was broadcast on WAMC Northeast Report, October 27, 2015.
 Unfit for Democracy: The Roberts Court and the Breakdown of American Politics 34 (NYU Press 2016).
Whenever I talk about the Middle East I get lambasted. And when I fail to mention Israel or Palestine I get lambasted because I didn’t. Pro-Israeli listeners brook no criticism whatever of what Israel does. Supporters of the Palestinians recognize the legitimacy of nothing else. Sometimes you can’t please everybody and sometimes you can’t please anybody. So, OK, here goes.
First, I’ve had very disturbing conversations with Palestinians who had absorbed extremist rhetoric. Read the rest of this entry »