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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Melting Pot – Good for Thanksgiving; Good for America

November 22, 2016

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.


This campaign makes me nostalgic for the draft

September 15, 2015

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).


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