Category Archives: Academic Papers

Does Ignorance Matter?

Does Ignorance Matter? The Relative Importance of Civic Knowledge and                            the Human Tendency to Engage in Motivated Reasoning

Aaron Dusso, Assistant Professor Political Science, IUPUI

Sheila Suess Kennedy, Professor, Law and Public Policy, IUPUI

 

Introduction

The importance of civic literacy is, and has long been, an axiom of democratic theory; a “generally-accepted belief that civic knowledge is an important foundation of democratic self-government” (McCabe and Kennedy 2014). Americans generally agree that a basic understanding of the structure and philosophy of government is a necessary precondition to productive political engagement or policy debate; a mutual understanding of the constitutional framework; agreement on the meaning of basic legal, economic and scientific terminology is necessary if there is to be common ground for discussion.

Former U.S. Representative Lee Hamilton summarized this consensus, writing in 2003

The truth is, for our democracy to work, it needs not just an engaged citizenry, but an informed one. We’ve known this since the nation’s earliest days. The creators of the Massachusetts Constitution of 1780 thought the notion important enough to enshrine it in the state’s founding document: “Wisdom and knowledge, as well as virtue, diffused generally among the body of the people,” they wrote, are “necessary for the preservation of rights and liberties.”

It is this broad agreement on the importance of accurate, basic civic information that raises widespread concern about current, dangerously low levels of civic knowledge. A copious literature confirms the existence of a civic deficit: Only 36% of American citizens can correctly name the three branches of government (Annenberg Public Policy Center Judicial Survey 2007); Thirty-six percent of twelfth-grade students fail to achieve a basic level of civic knowledge (National Center for Education Statistics 2011); only 35.5% of American teenagers can correctly identify “We the People” as the first three words of the U.S. Constitution (National Constitution Center Survey 1998). The National Assessment of Education Progress (NAEP) 2010 report on civic competencies found that barely a quarter of the country’s 4th, 8th and 12th graders could be considered proficient in civics. (National Center for Education Statistics 2011). Numerous other studies confirm the extent of our civic deficit (Bennett 1995; Caplan 2008; Converse 2000; Delli Carpini and Keeter 1991, 1996; Shaker 2012).

Given the depth of the empirical literature demonstrating a broad public deficit of accurate civic information, a growing number of researchers and educators are working to identify best practices and to improve civics education in the schools. Peter Levine at the Center for Information and Research on Civic Learning and Civic Engagement (CIRCLE), Ted McConnell, Director of the National Council for the Social Studies Campaign for the Civic Mission of the Schools, Shawn Healy, Chair of Illinois’ Civic Mission Coalition , Joseph Kahne, Director of Civic Engagement Research, Diana Hess of the Spencer Foundation, and the Center for Civic Literacy at IUPUI are just a few of the scholarly efforts currently underway. They are joined by programmatic endeavors: former Supreme Court Justice Sandra Day O’Connor’s ICivics, the Bar Foundation’s sponsorship of the Center for Civic Education’s “We the People” curriculum and competition and several others.

These efforts to raise awareness of the issue and to identify measures that may ameliorate it are important. At the very least, a shared understanding of basic social and political institutions is necessary for communication to occur— a common reality, after all, is much like a common language. If we are looking to improvements in civic knowledge to reverse the political polarization that has paralyzed so much of our political system, however, the emergence of new lines of research in political psychology suggests we may well be disappointed.

Political Polarization

Theoretically, in order to have a productive argument, the participants need to have at least a basic agreement on the definitions of the terms being employed and the facts involved. The recent debates about the Affordable Care Act—aka “Obamacare”—are a case in point. Citizens debating that legislation may have very different opinions about the wisdom of the policy choices involved, but decisions to repeal, implement or amend the Act should be based upon agreement about what it actually says and does. If opposition to the policy is based upon “death panels” that don’t exist, or its defense is based upon an insistence that the individual mandate isn’t government coercion, the likelihood of reasoned discussion—let alone agreement on policy changes—disappears.

A similar example would be the ongoing battles over religion in the nation’s schools. There are genuine arguments to be made about the proper application of the Establishment Clause in the context of public education. But reasoned disputes require people who recognize that the First Amendment’s religion clauses require government neutrality in matters of religious exercise.

We certainly agree with those who advocate for the importance of a shared vocabulary and a conceptual common ground to facilitate legitimate and productive political debate and discourse. A common civic language—an agreement on the basic nature of our shared political reality—is necessary, but it may not be sufficient. An examination of two robust literatures, political science research on political polarization and partisan sorting, and political psychology research on motivated reasoning strongly suggests that efforts to calm the political waters by supplying accurate information, while necessary, may be inadequate to the task.

A comprehensive review of the literature on political polarization was conducted by Morris P. Fiorina and Samuel J. Abrams in 2008. Fiorina and Abrams surveyed the existing research, testing the “polarization narrative” that began in the early 1990s, when Pat Buchanan famously “declared a culture war for the soul of America in his speech at the 1992 Republican convention” (Fiorina and Abrams 2008). They noted the emergence of the “notorious red-blue map” after the 2000 election, and the acceptance of the polarization narrative by commentators and pundits (one of whom went so far as to compare Republicans and Democrats to Sunnis and Shias). Although the authors noted their agreement with the scholarly consensus that elites and Congress had, indeed, polarized, their review of the then available research convinced them that the situation for the public at large reflected partisan sorting, rather than polarization.

“The political positions of Americans had not become more polarized between the early 1970s and the early 2000s. Importantly, however, within the larger population the parties in the electorate had become more distinct. This change was a product of two other senses of polarization that the DiMaggio group identified: constraint (“the more closely associated different social attitudes become..”) and consolidation (“…the greater the extent to which social attitudes become correlated with salient individual characteristics or identities.”) (DiMaggio et al. 1996, p.693) In the last few decades of the twentieth century, inter-issue correlations were increasing, and partisans were becoming more closely associated with one or the other of the increasingly interconnected clusters” (Fiorina and Abrams 2008).

Whether this differentiation is called sorting or polarization, the authors agreed with other observers that it had occurred and appeared to be continuing. And they conceded that other scholars, notably Abramowitz and Saunders (2008) “believe that the process of partisan sorting has proceeded so far that it is accurate to speak of a polarized America.”

In the wake of Fiorina and Abrams’ influential and much-cited review, a number of other researchers have studied the phenomenon, with most agreeing that the partisan divide is increasing, especially among elites and in Congress (see, for example, Krasa and Polborn 2012).

To further complicate the search for common ground and collaborative policymaking, several political psychologists have found that partisans who are often quite well informed will reject “negatively valenced” information if that information is in conflict with their preferred worldview (Redlawsk, Civettini and Emmerson 2010), and still others have concluded that personality traits can predict a “considerable array of human behavioral patterns” (Ha, Kim and Jo 2013), including political preferences and behaviors. Indeed, Alford, Funk and Hibbing (2005) and Fowler, Baker and Dawes (2008), among others, have concluded that certain political behaviors and attitudes are genetically influenced and/or heritable. Personality traits—extraversion, agreeableness, conscientiousness, emotional stability and openness to experience, sometimes referred to as the “Big Five,” have demonstrable effects upon political behavior. (Ha, Kim and Jo 2013).

Polarization, Political Sophistication and Motivated Reasoning

Motivated reasoning research poses challenges to widely-held beliefs about the way in which individuals search for information. Theoretically, when people are engaged in learning about the world around them, the primary goal is accuracy. The good citizen watches the news, reads newspapers or blogs as part of an effort to gain an accurate understanding of the particular topic under investigation. Unfortunately, as emerging research underscores, this is not how people actually go about gathering information, if they choose to gather it at all. The reality is that people are motivated reasoners (Kunda 1987, 1990).

The concept of motivated reasoning is built on decades of research documenting the biased cognitive processes by which individuals gather and understand new information. It is an unconscious process that occurs through selective perception of reality. Once people have developed a worldview–an idea about how something works, or what they like and do not like– they are extremely resistant to information that would require them to change that worldview.

Research confirms that most people do not engage in a wide search for information in order to understand a subject from various perspectives. Instead, they engage in selective exposure (Lodge, Taber, and Galonsky 1999; Mutz and Martin 2001; Sweeney and Gruber 1984), which means that they seek out information that will confirm what they already know (or think they know) and avoid information sources that might challenge their beliefs. While it may be difficult to avoid all contrary information, encountering contradictory facts will not usually require the individual to change or adapt a preexisting framework; when people are faced with a variety of information, some that is confirmatory and some not, they simply ignore or actively argue against the evidence they don’t like, while uncritically accepting the data seen as confirmatory (Ditto and Lopez 1992; Lavine, Borgida, and Sullivan 2000; Taber and Lodge 2006). Furthermore, when faced with ambiguous information, people do not spend time learning more about the topic; instead, they interpret the ambiguous information so that it is consistent with their current beliefs (Fazio and Williams 1986; Lord, Ross and Lepper 1979; Vidmar and Rokeach 1974).

The consequences of motivated reasoning for politics can be quite troubling. This is especially the case when we consider its effects on a political system in which political polarization is increasing both within elites and the general public (Abramowitz 2010; Bishop 2008; Theriault 2008). As we have seen, the combination of motivated reasoning and increased partisanship leads to more deeply entrenched beliefs and a corresponding increase in unwillingness to compromise as partisans build self-serving, motivated realities. Barker and Carman’s (2012) recent work documents how different the realities are for citizens in Red versus Blue states, and Levendusky (2009) demonstrates how the increased sorting of average citizens into partisan camps has produced more polarized emotional responses to the parties. Politics thus becomes an “us versus them” competition. Taber, Cann, and Kucsova (2009) also find strong support for the polarizing effect of biased information processing (see also Slothuus and de Vreese 2010).

Indeed, the simple act of counting ballots can be affected by motived reasoning when the counting instructions are vague or ambiguous. In such situations, individuals fill in the gaps in a self-serving, highly partisan way (Kopko et al. 2011). Finally, Cohen (2003) shows through a serious of experiments that “even under conditions of effortful processing, attitudes toward a social policy depended almost exclusively upon the stated positons of one’s party.” And to top it off, “…participants denied having been influenced by their political group, although they believed that other individuals, especially their ideological adversaries, would be so influenced” (p. 808). Arguably, this kind of myopic adoption of the positions of one’s party is not what the Founding Fathers had in mind.

Education is often proposed as the solution to the problem of political ignorance (Putnam 2000); it is thus reasonable to consider whether it can also solve the problem of motivated reasoning. Unfortunately, rather than moderating partisanship, political knowledge is often connected to an increase in polarization. Education has certainly been shown to be a good predictor of political knowledge (Delli Carpini and Keeter 1996; Price and Zaller 1993), and it is equally demonstrable that politically knowledgeable citizens are those most likely to acquire political information and most able to incorporate it into their existing knowledge framework (Zaller 1992). A recent study by Gillion, Ladd, and Meredith (2013) showed that the gender gap in voting occurred first among the highly educated because they were the first to be aware of elite polarization. Claassen and Highton (2009) find the same dynamic. Polarization among party elites leads those individuals who are the most politically aware to follow suit. In a similar vein, Federico and Hunt (2013) show that individuals who are highly knowledgeable and heavily invested in politics are more likely to approach politics in an ideological fashion, and more likely to exhibit a polarized response to politics (see also Abramowitz 2010; Federico 2007; Judd and Krosnick 1989; Sidanius and Lau 1989; Zaller 2004).

The dilemma posed by what we now know about motivated reasoning is that it occurs no matter how educated or sophisticated the individual. In his examination of partisan sorting, Levendusky (2009) shows that the highly knowledgeable are just as likely to change their ideology to match their partisanship as the politically unsophisticated. Political theorists might hope that the politically sophisticated would privilege policy positions over their devotion to the correct “team,” but this is apparently not the case. In other somewhat disheartening research, Hartman and Newmark (2012) examined the motivated reasoning behind the belief that President Obama is a Muslim. It is not a shock to learn that this belief is stronger among Republicans than Democrats, but the fact that political sophistication does not appear to attenuate it is distressing.

To summarize, there is strong evidence indicating that political sophistication—rather than moderating ideological commitments—actually contributes to partisan polarization. We argue that this strengthening of the connection of the most highly engaged to a particular party is then reinforced through selective perception. This leaves the politically sophisticated open to significant ideological inconsistency. Ever since the early works of Converse (1964, 2000), it has been understood that the phenomenon of ideological thinking is not occurring in the mass public; it is instead a characteristic of a relatively small percentage of the most politically engaged Americans. But if even those few knowledgeable thinkers are susceptible to motivated blindness, then the prospects for a rational debate are rather dim.

Connecting Political Sophistication to Polarization—Data and Methods

In order to examine the effect of political sophistication and motivated reasoning on polarization, we conducted a national survey measuring partisanship, ideology, and political knowledge, along with specific questions about same-sex marriage. This was an online survey designed and hosted using Qualtrics online survey software. Survey Sampling International (SSI) was then contracted to provide over 2300 respondents. SSI maintains national online panels of respondents; it recruits participants from across the web using numerous methods, which gives them the ability to reach nearly anyone who uses the Internet.

For our survey, a quota method was used in order to match the survey’s demographic and gender distribution to that of the overall United States. Thus, this is not a representative sample of the U.S. population. However, since we were not attempting to estimate some characteristic of the U.S. population (for example, the percentage of the population who voted in the 2012 presidential election) that does not affect our results. We are interested in understanding the connection between cognitive processes and political beliefs. We are unaware of any variable that is correlated with participation in one of SSI’s panels and these cognitive processes that, if present, could bias these results. Furthermore, we control for numerous demographic and political variables, which further alleviates any concern about bias in the sample.

We produce two models. The first is designed to explain the source of the strength of respondents’ party identification. The survey contained standard questions designed to identify respondents’ partisanship following the method used in each American National Election Studies (ANES) survey.[1] This produces a seven-point scale ranging from strong Democrats on the left to strong Republicans on the right. Since we are interested in understanding the causes of polarization, we are more concerned with what drives individuals to the poles of these scales than what causes them choose one side or the other. Therefore, we fold this scale so that it ranges from independent (coded 0), leaning/weak partisan (coded 1), partisan (coded 2), and strong partisan (coded 3), resulting in a scale measuring respondents’ strength of partisan attachment (e.g., Dolan and Holbrook 2001).

We then include measures of political knowledge, education, and their interaction as key predictors of partisan strength. Political knowledge is measured on a nine-point scale and based on respondents’ ability to answer eight factual questions (Zaller 1992). These questions are copied directly from ANES and ask respondents to identify (1) Joe Biden, (2) John Boehner, (3) John Roberts, and (4) David Cameron; and whether they know which party controls the (5) House and the (6) Senate, (7) which party is more conservative, and (8) what the current unemployment rate is. Education is measured on a seven-point scale that indicates the highest level of educational attainment by the respondent.

Finally, the model also includes several standard control variables: Gender (coded 1 if male, 0 if female), race/ethnicity (1 if white, 0 otherwise), age (coded in years), household income (coded on a 10 point scale), and religious fundamentalism. This last variable is based on a General Social Survey question tapping respondents’ beliefs about the Bible as follows:

Which of these statements comes closest to describing your feelings about the Bible?

  • The Bible is the actual word of God and is to be taken literally, word for word.
  • The Bible is the inspired word of God but not everything in it should be taken literally, word for word.
  • The Bible is an ancient book of fables, legends, history, and moral precepts recorded by men.

This produces a three-point scale ranging from most (coded 0) to least (coded 2) religious fundamentalist.

The second model predicts a contradiction in the policy beliefs among respondents. There is ample scholarship suggesting that policy positions are the product of a process of motivated reasoning. Our survey asks two questions about religious freedom and same-sex marriage: 1) should same-sex couples be allowed to marry, or do you think they should not be allowed to marry? And 2) Do you think the federal or state governments should make laws regarding who religious organizations can and cannot marry? If one answers “no” to the second question, one should then not answer that same-sex couples should not be allowed to marry because that would be making a law restricting a religious organization’s marriage policies. This is an instance of individuals contradicting themselves on policy grounds. However, it may not necessarily be a contradiction for conservative Republicans who hold strong beliefs about smaller government and the legality of same-sex marriage. An individual engaged in motivated reasoning should be expected to make such a contradiction, with the strongest partisans and ideologues being the most susceptible. Thus, the comparison of respondents’ answers to these two questions produces our measure of policy contradiction.

The key independent variables in this case are partisanship and ideology. The more conservative and the more Republican one is, the more likely s/he is to answer these questions in a manner consistent with being a conservative Republican rather than in an ideologically consistent manner. The key to motivated reasoning is that partisanship and ideology interact to produce an effect that moves people away from a purely rational thought process by which one either does not accept government intervention in religious choices and thus accepts religious organizations decision to marry same-sex couples, or one is happy with government intervention in religious choices and thus okay with banning same-sex marriage. Simultaneously, disliking government restrictions on religion and liking government banning of same-sex marriage is the product of current partisan and ideological thinking. Those who engage in it are motivated to do so in order to protect their preferred set of beliefs through a form of self-affirmation (Steele 1988). Kahan (2013) finds strong evidence for this. His research shows that individuals are motivated to engage in information processing that reinforces their connection to important ideological groups. In this case a conservative self-identity. Following this line of reasoning, our supposition is that this effect should be most pronounced among the most extreme partisans and ideologues.

We measure partisanship as a set of dummy variables. (1) Republican, coded 1 if one identifies as Republican and 0 otherwise. (2) Democrat, coded 1 if one identifies as Democrat and 0 otherwise; and (3) Independent, coded 2 if one is independent and 0 otherwise. The Democrat variable is then dropped and becomes the comparison group for Republican and Independent when interpreting the results.[2] Ideology is measured on a 7 point scale ranging from 0 (strong liberal) to 6 (strong conservative), with a score of 3 indicating independent or none ideological. We then interact ideology with the Republican dummy variable in order to test for the conditional effect of each on the dependent variable. Finally, the model also includes the same control variables as the model predicting partisan strength above.

****Table 1 about here****

Table 1 presents results after estimation of the two models. The results of an Ordinary Least Squares (OLS) regression model predicting strength of party identification are presented in the first column, while the results of a logit model predicting the likelihood of holding contradictory beliefs about religious freedom and same-sex marriage are presented in column two. Focusing first on the model predicting partisan strength, one can see that political knowledge, education, and their interaction are all highly statistically significant. This means that the effect of political knowledge on strength of partisanship is conditional on the value of education and vice versa. The negative sign indicates that the effect of one variable diminishes as the value of the other goes up.

****Figure 1 about here****

Interaction effects are notoriously difficult to substantively interpret from an output table, thus Figure 1 presents a graphical look at how the effect of political knowledge changes as the highest level of educational attainment moves from having a high school diploma, to a college degree, to a graduate degree. Figure 1 makes clear that the effect of increasing political knowledge is strongest for those having only finished high school. Moving from a political knowledge score of 2 to a score of 7 is associated with an increase in partisan strength of about 3/4ths of a point. That is an 18 percent jump in one’s partisan leanings. The same type of gain in political knowledge for someone with a graduate degree shows virtually no movement in the strength of their partisanship. Interestingly, at low levels of political knowledge people with a high school diploma are the least partisan, while at the highest levels of political knowledge they are the most partisan. Therefore, it would seem that gaining political knowledge without education has a polarizing effect on people. This is a disturbing result for those advocating for civic learning outside of formal education. It would appear that this may simply exacerbate polarization.

Returning to Table 1, the logit model estimating policy preference contradiction includes an interaction between ideology and Republican identification. The interaction and ideology variables reach significance, but the Republican variable does not. This is not particularly surprising since the substantive meaning of that variable is the effect of being a Republican when compared to a Democrat when ideology equals zero, which represents strong liberalism. There are likely very few strongly liberal Republicans and the data cannot tell the difference between them and Democrats. The significant interaction indicates, once again, that the effect of partisanship is dependent on ideology and vice versa. Before looking at Figure 2, which helps clarify the interactive effect of ideology and partisanship, it should be noted that political knowledge and education fail to reach significance. Thus, there is no evidence in this data that political sophistication, as measured by either education or political knowledge, helps individuals avoid contradicting themselves. This is what one would expect when the driving force behind policy preferences is not rational calculation, but motivated reasoning to answer questions in a way that is consistent with one’s partisan and ideological positions.

****Figure 2 about here****

Figure 2 presents the predictive margins of the conditional effect of partisanship and ideology on the probability of contradicting oneself. As can be seen, on the left-hand side of the scale (scores 0-2), which correspond to liberal ideological leanings, there appears to be no discernable difference between Republicans and Democrats. But when one moves to the right-hand side (scores 4-6), which corresponds to increasingly conservative leanings, Republicans and Democrats respond much differently. To be sure, both see an increase in the probability of contradicting themselves, but the slope for Republicans is much steeper. For a strong conservative (score of 6), the probability of contradiction is about 23 percent greater if one is a Republican than a Democrat. Indeed, simply moving from a strong liberal to a strong conservative increases the probability of contradiction for Republicans by nearly 60 percent and about 35 percent for Democrats. This is the effect of motivated reasoning.

Is Civic Literacy Irrelevant?

If motivated reasoning “trumps” accurate information, will our politics inevitably be ideological and polarized? Is the effort to provide credible, evidence-based information a fools’ errand? Not necessarily. Redlawsk, Civettini and Emmerson (2010) explored just this question. The authors did not challenge the research on motivated reasoning, but they did test the thesis that a “tipping point” would be reached—that despite the tendency of motivated reasoners to ignore evidence inconsistent with their preferred beliefs (here, a candidate they viewed positively)—given enough negative information, attitude change would occur.

“The question here is whether there is a point at which the positive affect motivated reasoners try to maintain is overwhelmed by a growing threat to the existing evaluation as more incongruent information is encountered, and thus leading to more accurate updating” (Redlawsk, et al. 2010).

The authors noted that a small amount of evidence contradicting the motivated reasoner’s initial positive impression of a candidate had the effect of confirming that impression; that is, a moderate amount of incongruent information simply resulted in the individual clinging more stubbornly to his or her original beliefs. But at some point, mounting evidence inconsistent with those beliefs did, in fact, generate a change of opinion.

There is also hope of change if individuals are forced to pay attention to new information. Boudreau and MacKenzie (2013) looked at the effect of party cues and policy information in the context of support for ballot initiatives. They find that citizens do indeed privilege policy information over party cues when the policy information gives them a compelling reason to do so. Bullock (2011) found similar results. He concludes, “These results warrant a measure of optimism about partisans’ ability to hold meaningful policy views. To be sure, partisans are rarely exposed to more than meager descriptions of policy. But when they are, the results suggest that they can arrive at policy views that are independent of and even contrary to the views of their party leaders” (p. 512). Of course, these conclusions were the result of controlled experiments in which the audience was captive. The observed effect requires that citizens both receive the compelling information and take the time to understand it.

In another line of research, Binning et al. (2010) documented some success in reducing partisanship by having individuals affirm their self-integrity prior to watching the 2008 presidential debates. They gave randomly selected participants an opportunity to identify values important to them and asking them to write about a time when an important value affected them. The premise of self-affirmation theory is that people want to see themselves as good, moral and efficacious (Steele 1998; Sherman and Cohen 2006). These feelings often get intertwined with group identity. In politics, group identity means partisanship. When individuals reaffirmed their integrity, it lessened the connection to party identification and thus freed them to be more judicious when evaluating the presidential candidates.

Although this research is encouraging, it remains to be seen whether a tipping point exists at which ideology concedes to evidence. Learning that a favored candidate is not as admirable as once thought is one thing; accepting evolution or climate change and adjusting one’s literalist approach to religion accordingly is quite another. If the research tells us anything, it is that good information and civic literacy are necessary, but insufficient to rid us of polarization and a highly selective approach to evidence. It would seem that ignorance isn’t the only enemy of reason and political compromise.

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Slothuus, Rune, and Claes H. de Vreese. “Political Parties, Motivated Reasoning, and Issue Framing Effects.” Journal of Politics 72: 630-645.

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Zaller, John. 1992. The Nature and Origins of Mass Opinion. New York: Cambridge University Press.

 

Table 1

Predicting Strength of Party Identification and Policy Preference Contradiction

Dependent Variable

Strength of                              Preference

Variable                                               Party ID                                  Contradiction

 

Political Knowledge                            0.232***                                 0.050

(0.026)                                                (0.031)

Education                                            0.207***                                 -0.011

(0.035)                                                (0.046)

Pol. Know. x Education                      -0.037***

(0.007)

Ideology                                              -0.064***                                0.420***

(0.014)                                                (0.065)

Republican                                                                                          -0.564

(0.432)

Ideology x Republican                                                                        0.284**

(0.110)

Independent                                                                                        0.486*

(0.196)

 

Control Variables

Male                                                    -0.150***                                0.200

(0.043)                                                (0.126)

White                                                  -0.076                                      -0.121

(0.045)                                                (0.137)

Age                                                      0.005***                                 0.018***

(0.001)                                                (0.004)

Household Income                              0.002                                       -0.043

(0.008)                                                (0.022)

Religious Fundamentalism                  -0.220***                                -0.800***

(0.030)                                                (0.092)

Constant                                             1.255***                                 -2.433***

(0.145)                                                (0.350)

N                                                         2237                                        2244

R2                                                        0.10

Log pseudolikelihood                                                                          -912.18

Notes: Strength of Party ID estimated using OLS. (Since this is a short scale running form 0-3, an ordered logit model was also estimated. The substantive results were identical and therefore the OLS results are presented here for easy of interpretation.) The Preference Contradiction model is estimated using logit.

*= p < .05, ** = p < .01, *** = p < .001, two-tailed.

 

 

 

 

Figure 1

 

Marginal Effect of Political Knowledge and Education on Strength of Party Identification

 

 

 

 

 

 

 

Figure 2

 

Marginal Effect of Ideology and Partisanship on the Probability of Holding Contradictory Policy Preferences

 

 

 

 

 

 

[1] Whenever possible, we simply copied the long established question wording used by either the American National Election Studies or General Social Survey. This provides for easy comparability and avoids the need to reestablish the credibility of survey question wording, since these are well established and understood survey instruments.

[2] See Wooldridge (2012) for an explanation as to why one of these variables needs to be dropped.

Presentation to the Center for Civic Literacy

The 2d annual conference of the Center for Civic Literacy was held this last weekend, and this is an abbreviated version of my introductory presentation. The sessions were videotaped, and will be posted to the Center’s website….I hope at least some of the readers of this blog will view some or all of them when they become available, because several were very thought-provoking.

This blog will return to its regular curmudgeonly ways tomorrow…

—————————————————

One year ago, we convened the first of what I hope will be many annual meetings of the National Advisory Committee of the Center for Civic Literacy. Those of us who had embarked on this venture were still very wet behind the academic ears, and the advice so generously shared by many of you proved invaluable as we considered the direction of Center research.

Because last year’s conference was the first, attendance was limited to presenters and members of the National Advisory Committee; this year, we have opened attendance to other interested parties—so we are joined for some or all of the sessions by teachers, political figures and others who are concerned with the causes and consequences of what we at CCL have come to call our “civic deficit.” We welcome you all and we want to hear your perspectives.

If you will recall, the theme of last year’s conference was “What We Know, What We Don’t, and Why It Matters: Surveying the Civic Literacy research landscape. (We do tend to have LONG titles…all with what my husband calls the ‘obligatory academic colon’…) Our goal for that first meeting was to establish a research trajectory and develop working partnerships, in order to both avoid duplications of effort and generate synergies among scholars and educators working on various aspects of the “civics deficit.”

After everyone went home last year, we spent a significant amount of time reviewing the conversations in which we’d participated, the notes taken by our graduate students, and the emails and other written suggestions provided by those in attendance. In addition to suggestions for specific research projects, some overarching themes emerged. The various comments, critiques and suggestions actually boiled down to a pretty coherent message—at least, according to our post hoc analysis:

  • Don’t reinvent the wheel by continuing to research what Americans do and do not know. We already know that there is a civic deficit; there is ample evidence that confirms the existence of a genuine problem, a worrisome deficit of civic knowledge. There is little to be gained by having yet another set of researchers document the extent to which the sky is falling.
  • Build on your strengths, and one of the Center’s important strengths is the interdisciplinary nature and focus of its faculty. A significant number of comments from last year stressed the value of– and the opportunities inherent in—truly interdisciplinary research. Several of you noted that scholars working on civics tend to come from discrete academic perspectives: educators who focus on curriculum and instructional issues; political scientists who research the political implications of low civic information; scientists and economists worried about public ignorance of basic terminology and principles, and so forth. An interdisciplinary center has an opportunity to “Connect the Dots,” to identify essential knowledge and to demonstrate the effects of the civic deficit across disciplinary boundaries.
  • One reason that there is value in working more broadly across disciplines is that it should allows us to advance another priority identified by last year’s participants: raising the public profile and public understanding of the issue. As several of you pointed out last year, greater public awareness of both the nature and extent of the civic deficit and its consequences is absolutely critical to any effective effort to address the problems that flow from that deficit. Unless policymakers and citizens recognize the importance of civic education in arenas far removed from politics and elections—unless they understand its critical function in providing a common language through which a polity can deliberate—civics will continue to be a neglected stepchild in and out of school.

If I have learned anything in the two years of the Center’s existence, it is that civics is a lot like motherhood and the flag. Everyone gives lip service to its importance, but it isn’t sexy enough to fund. A significant part of that disinclination is a lack of understanding of the function and importance of research—the necessity of sound knowledge upon which to base programs and interventions.

While the philanthropic community is understandably focused on results—on programs that can be evaluated and results that can be quantified—those in this room understand that solutions to any problem require an accurate understanding of the problem to be solved. Diagnosis—as my medical colleagues will attest—must precede treatment.

The mission of the Center for Civic Literacy is to increase public awareness and understanding of the nature and dimensions of our civic deficit and the effect of that deficit upon democratic decision-making. In other words, we want to do careful research that tests the thesis that a deficit of civic knowledge is detrimental not just to political activities in a democratic system, but to the conduct of business enterprises, efforts to improve public policies and the tone and tenor of public discourse, to the ability to distinguish between good science and junk science, and literally hundreds of other aspects of 21st Century American life. If that thesis is correct, it will require other careful research: what is the nature of the information that is essential? Why? Does it vary from domain to domain? Does greater knowledge really enable more constructive civic conversations, or are ideology and motivated reasoning more responsible than ignorance for our current, toxic politics? What are the best practices for raising levels of public knowledge?

If we are going to justify our existence, and the value of our research, we have to start by making a far more visible and compelling case for the importance of civic knowledge. In order to do that, we need to be intellectually honest and methodologically rigorous—we need to truly understand the civic environment in which we find ourselves. We need to ask the right questions, collect credible evidence that will help us answer those questions. We need to connect the dots.

So—what have we been doing this past year to advance that agenda?

Since our last meeting, as most of you know, the Center has published the first issue of the online, peer-reviewed Journal of Civic Literacy, with an introductory essay by former Supreme Court Justice David Souter. (I should note that we are soliciting articles for our next issue, which will come out February 1st, 2015, and we also would love to add reviewers to our editorial board.)

Several of the faculty working with the Center here at IUPUI are pursuing research into questions raised in last year’s meeting and related issues. Center funds are supporting several of those efforts.

  • Robert Helfenbein, Professor of Education, has led a group of doctoral students studying Civic Identity, Public Education and the African-American Community in Indianapolis—a project investigating how members of the local African-American community understand their political environment and form their civic identities. (Rob has left IUPUI for a position as Associate Dean of Education at Loyola University of Maryland, and we wish him well as he moves to a more distant relationship w/CCL)
  • Beth Cate, SPEA Associate Professor of Law and Public Affairs and this Conference’s co-chair, is investigating the Public Use of Government Data to Enhance Civic Participation and ‘Crowdsource’ Problem Solving. I’m particularly intrigued by the part of her research focusing on ways in which things like The National Day of Hacking, the Knight Foundation’s OpenGov Challenge, and the implementation of federal agencies OGI 2.0 initiative are enhancing civic literacy. Or failing to do so.
  • Aaron Dusso, Assistant Professor of Political Science in the School of Liberal Arts has just completed a fascinating survey he employed in gathering information that will inform a book he is writing on Democratic Demands and Citizen Capabilities.
  • Using some of the data from that survey, Aaron and I have just completed an article comparing the relative importance of civic ignorance and motivated reasoning to our polarized political environment.
  • Heather McCabe, Assistant Professor of Social Work, is continuing her collaboration with Social Work Professors at four other urban institutions to determine the degree of civic knowledge of graduate students in social work. Social workers have an ethical obligation to work for policy change benefitting the disadvantaged; the study is intended to ascertain whether those soon-to-be professionals have sufficient civic knowledge and skills to allow them to advance their professional policy goals.
  • CCL is working closely with the Indiana Bar Foundation on both the We the People competition and on this year’s civic health index, about which you will hear more later in the program.
  • Georgetown University Press has now published a slightly expanded version of the monograph we distributed last year, Talking Politics: What you need to know before you open your mouth,” which is our effort to identify what constitutes essential civic knowledge, and Matt Impink and I are currently working on a book that will be jointly produced by CCL and the Bar Foundation, and distributed nationally, with some concrete proposals for raising the relevance and immediacy of civics instruction.
  • The Center is also beginning some very preliminary discussions about potential joint efforts and collaborations with IUPUI’s highly ranked Center for the Study of Religion and American Culture.

This past year we have also produced and expanded the Center’s web page and blog, and thanks to the efforts of graduate students and researchers much, much younger than yours truly, we’ve twittered and Facebooked and—I recently discovered—we even have a YouTube channel.

All of that brings me to a final observation: as thoughtful as our presenters are—and we’re really proud of the line-up we’ve managed to corral!—the value of this annual meeting comes from your responses, your suggestions and cautions, and the interplay and discussion triggered by the various presenters and panelists. We are keenly aware of the gaps in our knowledge, the voids in the existing research—both ours and others—and the danger of just talking amongst ourselves. As fantastic a group as I personally believe we have involved in the Center, there’s nothing as dangerous as working in a bubble. We are counting on each of you to supply the missing information, the pertinent questions, and the needed critiques.

So don’t get too comfortable. You have work to do.

Let me just conclude with an observation. Several years ago, when I was the Director of Indiana’s ACLU, we published a magazine called “Common Ground.” It wasn’t a scholarly journal, but it was several notches up from a newsletter; it was an effort to reach out, to build bridges between our members and thoughtful people who didn’t understand what the organization did or why we did it. We wanted to create a forum that would provide people who didn’t necessarily agree on the issues we cared about with a common language, a common frame of reference (hence the name, Common Ground), within which we could engage in genuine dialogue. I think it is fair to say that the Center for Civic Literacy is engaged in the same effort.

In a diverse country, where people come from very different places, both geographically and ideologically, basic civic knowledge must provide the “common ground” on which we meet. It must equip us with a common language and vocabulary, so that we can talk to each other. We have to figure out why and how we lost that language, identify which of our current problems are a consequence of that loss, and determine what it is we need to do to recover it.

I hope you will evaluate the presentations here today and tomorrow in light of that goal.

Thank you and let’s get started.

 

 

 

 

 

The Social Contract and the Social Safety Net

Text of article published in Journal of Civic Literacy.

Is the Social Contract Incompatible with the Social Safety Net? Revisiting a Key Philosophical Tradition

Eric M. Meslin, Indiana University Center for Bioethics, Indianapolis

Aaron Carroll, Indiana University Center for Health Policy and Professionalism, Indianapolis

Peter H. Schwartz, Indiana University Center for Bioethics, Indianapolis

Sheila Kennedy, Center for Civic Literacy, School of Public and Environmental Affairs, IUPUI

Introduction

As this is being written, two opposing forces are at work: the Obama administration has announced that 7.1 million Americans have signed up for ‘Obamacare’ by the March 31 2014 deadline, meeting expectations that were in doubt only a month earlier; meanwhile, the U.S. Congress (particularly the Republican-led House) remains mired in a dysfunctional relationship with the White House that consistently stymies efforts to reform policies, especially social welfare policies, even when such reforms have widespread public support. Improvements that most knowledgeable observers believe to be necessary seem increasingly beyond political reach. From health care to immigration reform to economic policy, the American political landscape is characterized by ideological posturing and seemingly intractable disagreement. This situation is worrisome for two reasons: first, it is regrettable that programs and policies that would benefit millions are being rejected or curtailed for reasons unconnected to evidence of their value; second, it suggests that civil discourse and civic literacy are themselves under siege.

The question is: why? What aspects of American political culture generate resistance to even modest efforts to mend or extend the social safety net? Why is it that we cannot address the plight of the unemployed and the undocumented, even when it is clearly in the interests of both political parties to do so? Is there an explanation for American legislators’ current unwillingness to moderate their positions even slightly, in order to make at least some progress on the challenges we face? And most importantly, would greater civic literacy—a more informed appreciation of the origins of America’s legal framework and culture by the general public—help ameliorate the current impasse?

We believe the answer to that question lies, at least in part, in what we might call America’s “constitutional culture.” While we certainly recognize—and do not discount—many other factors, especially the influence of a deeply-ingrained if not always visible racism, which continues to distort public debate and derail progress in so many aspects of American life, anthropologists and sociologists have long confirmed the existence of national and regional characteristics, distinctive “folkways” that are an outgrowth of the fundamental assumptions that shape societies. Those folkways are rooted in religious and historical assumptions about the nature of reality and “the way things are.” In the United States, along with a strong and still-potent Puritan influence, the political culture has been shaped largely by the Enlightenment philosophers whose theories about personal autonomy and the proper role of government became an indelible part of its constituent documents and ultimately, the national psyche.

Take the contemporary debate over healthcare reform. This fight cannot be understood without recognizing the continued potency of the country’s foundational assumptions, and especially the continued relevance of social contract theory most directly attributed to John Locke. In this paper, we echo arguments made by historians and legal theorists like Daniel Boorstin and Louis Hartz[1] who noted that Americans who may never have heard of Locke or the Enlightenment, have nevertheless internalized Locke’s philosophy in ways that make social inclusion and extensions of the social safety net particularly difficult. In a very real sense, John Locke doomed more comprehensive healthcare reform, at least in the short term, and made it far more difficult to extend unemployment benefits, increase payments under Temporary Assistance for Needy Families (TANF), or raise the minimum wage. If we are to have any success in changing the long term prospects for these and similar reforms, we will need to go beyond the academic, moral, and fiscal arguments, no matter how persuasive some of us find them, and directly engage the need to update and expand our basic understanding of the social contract.

 

The Affordable Care Act

Americans have historically been leery of government interventions that might be considered “welfare.” Access to healthcare is a case in point. Rising costs and the plight of the uninsured are not a recent development. Indeed, proposals to provide national health insurance can be traced to Theodore Roosevelt and have included various versions from almost every President since. But with few exceptions (some of which, like Medicare and Medicaid, are significant, and others that were state-wide experiments) the ‘big idea’ of having the federal government ensure universal access to comprehensive health care has been impossible to implement. Equally elusive is an answer to the question why.

In 1993, concerns about the cost of healthcare and the number of uninsured Americans prompted the Clinton administration to propose significant reforms to the U.S. health care system.  The Clinton plan met with great opposition both for the content of its proposals and the process by which it was drafted. After considerable public and political debate, the plan was rejected (Davis, 2001). Subsequently, policymakers limited efforts to reform the health care system to incremental changes such as Medicare Prescription Drug Coverage and expansion of the State Children’s Health Insurance Program (SCHIP) (Institute of Medicine, 2003; Berman, 2004; Frakt & Pizer, 2006).

The effectiveness of such incremental reforms, however, was limited. The United States famously spends more on health care per capita than any other country – about 48% higher than the next highest spending country (Sweden), and about 90% higher than countries that might be considered global competitors, such as France, England, Canada, and Japan (The Henry J. Kaiser Family Foundation, 2007). Health care costs have grown an average of 2.4 percentage points faster than the U.S. gross domestic product since 1970, and in 2010, national health care expenditures in the U.S. totaled $2.6 trillion, a 3.9% increase from 2009 (The Henry J. Kaiser Family Foundation, 2007). Between 2006 and 2007, premiums for employer-sponsored health insurance rose by 4-5%, outpacing overall inflation and wage gains (The Henry J. Kaiser Family Foundation, 2013). By 2012, Census data revealed that the number of uninsured Americans had reached 48 million (DeNavas-Walt, Proctor & Smith, 2013). By 2008, there were more uninsured people in the United States than at any time since the passage of Medicare and Medicaid in the mid-1960s (DeNavas-Walt, Proctor & Smith, 2013). Even more dispiriting, beginning in 1997, though the country saw a steady decline in the percentage of children who were uninsured; 8.9% of children under the age of 18, or 7 million children, were still uninsured in 2012 (DeNavas-Walt, Proctor & Smith, 2013).

As the U.S. approached the 2008 Presidential election, health care reform was again on the minds of most Americans and the candidates. Most observers believed that there was a mandate for sweeping reform, and during President Obama’s first 100 days in office, he and the Democratic majorities in the House and Senate approached the issue from that perspective. In the end, the Affordable Care Act instituted far less sweeping changes than many supporters wished and many critics feared. Gone were “Medicare for All” and a public option as part of the exchanges.  Nevertheless, the resulting lawt did include historic changes to American healthcare – including the individual mandate, the expansion of Medicaid, and requirements that private insurers spend a fixed percentage of policy premiums received on medical care rather than overhead – and it aroused historic opposition and rancor. By March 2014, the House of Representatives had held more than fifty votes to repeal the ACA. Even after the Supreme Court upheld the constitutionality of the mandate and President Obama won re-election in 2012 on a campaign in which the ACA was a central issue, critics fixed their sights on elections in 2014 and 2016 and issued promises to undo or cripple the law.

Why hasn’t the U.S. been able to achieve real health care reform? What accounts for the resonance of recurring accusations about “death panels” and “socialism”? Most Americans are compassionate people who are uncomfortable with the idea that others go without health care in the richest country on the planet; they would be unlikely to endorse the notion that only people with means should have access to medical care. Yet surprisingly large numbers continue to oppose the ACA and similar governmental interventions.

Social welfare programs are where our culture’s deeply ingrained understanding of the social contract conflicts with our more humanitarian impulses. Americans’ current division over the ACA is yet another iteration of the deeply embedded conflict between the Social Darwinist attitudes exemplified by William Graham Sumner and the Social Gospel most closely identified with Walter Rauschenbusch. No matter how logical or effective, programs requiring extensive government involvement, or that include “mandates” of any sort, trigger an almost visceral reaction in those who tend more to Social Darwinism, a belief that “productive” people’s rights are thereby violated, and that such approaches are contrary to freedom, to “real” Americanism. In other words, at a basic—perhaps unconscious—level, many people believe that government involvement in healthcare, or government intervention via provision of a social safety net, is somehow un-American and therefore must be rejected. It does no good to point out how deeply government is already involved in providing a social safety net through Social Security, or in providing health care in particular (e.g., the Veterans Administration which is the largest integrated health care system in the country serving more than 8.75 million Veterans each year) — the issue is emotional, not factual. The passage of Medicare generated cries of socialism, and the New Deal—even in the midst of the Great Depression—was aggressively opposed. It is the rare social program that hasn’t had to contend with accusations of incipient communism, for reasons the next section helps illustrate.

 

The Role of Norms and Values in Social Programs

Efforts to achieve significant and sweeping (rather than incremental) social reforms in the U.S. have largely ignored (or avoided) in-depth discussions of fundamental norms, values, and principles; yet it is the compatibility with these normative ideas that provides the foundation for successful reform efforts. The failure to explore such foundational issues leaves proposals open to crippling attacks. Too often, a meritorious proposal is defeated by attacks portraying it as a violation of individual rights or a deviation from the foundational principles of U.S. society. As noted above, critics often attack reforms by labeling them “socialist,” a tactic that is popular because it is designed to cause an instinctive reaction that equates socialism with communism – a tried and true method of garnering support for what many take to be the antithesis of democracy. Using this rhetorical tactic is effective, especially when uttered dismissively as directly contrasting with fundamental principles of American democracy. Claims about universal health care provide a number of other examples of the favored “scare tactics” used to trigger such worries:

  • The state will choose your doctor and your treatment options, not you – a charge that the proposal threatens individual freedom.
  • Scarce resources will be used inefficiently, or spread too thin, and you will be denied care that you need, perhaps inadvertently, perhaps as a result of rationing – a claim that the measure fails to respect the sanctity of life and that persons will be considered expendable if treatment is too expensive. (Hence the “death panel” accusations.)
  • Scarce resources will be re-allocated so that everyone has the same level of (inadequate) healthcare—a claim that those who “merit” healthcare services by reason of greater productivity will somehow be cheated of what they have “earned.”
  • The government will become larger, more overbearing, and more intrusive – a claim that healthcare reform threatens the value of individual liberty.

 

An especially instructive example of such an argument occurred during the first Clinton administration. In 1992 DHHS Secretary Louis Sullivan described the different approaches to health reform being proposed by incumbent President George H.W. Bush, and candidate Bill Clinton, as follows: The “fundamental difference is philosophical. It is a question of whether we want to remain true to our commitment to choice and the private sector.” The Sullivan statement draws a stark dichotomy between government control of health care and private market control. In a country where belief in the market’s “invisible hand” is quasi-religious, and suspicion of government is endemic—where former President Reagan could count on an appreciative response to his assertion that government “isn’t the solution, it’s the problem”—the prospect of government control of anything triggers deeply-held fears. The fact that this is a false dichotomy (people without health insurance cannot exercise “choice,” and neither can the millions of Americans who get their insurance through their employers) doesn’t detract from its continued political salience.

A more contemporary example comes from those who maintain that policymakers advocating social welfare reforms similar to systems in France, Canada, Germany, Sweden, or New Zealand are advocating “nanny-state” solutions that will inevitably impose stifling governmental bureaucracies on an efficient economic system (Santora, 2007). The term “nanny-state” is both provocative and pejorative, raising the specter of a government that oversteps the bounds envisioned by a libertarian reading of Locke, among others.

The rhetoric used against significant health reform is just the most recent example of themes long used to oppose social welfare measures. The social safety net is repeatedly framed as a threat to life, liberty, and theindividual pursuit of happiness. There is a reason that social welfare proposals have historically faced an uphill climb in the U.S.; not only must such proposals stand on their own merits, by demonstrating their medical or economic feasibility, they must also be defended against claims that they are un-American and contrary to the principles that animated the Constitution and Bill of Rights. Unfortunately, few Americans are sufficiently acquainted with those principles—or those documents—to recognize the speciousness of such claims, and this deficit of civic knowledge is a significant barrier to efforts to revisit social contract theory. For far too many Americans, revisiting social contract theory is impossible, because they have never visited that theory in the first place.

Available data is plentiful and unambiguous, and it demonstrates a troubling and widespread lack of basic civic literacy in the United States. Only 36 percent of Americans can even name the three branches of government (Jamieson, 2007). Fewer than half of 12th grade students can describe the meaning or operation of federalism. The National Assessment of Education Progress (NAEP) 2006 report on civics competencies found barely a quarter of the nation’s 4th, 8th and 12th graders proficient in civics, and only five percent of seniors able to identify and explain checks on presidential power.

Democratic self-government requires a civically educated citizenry. When a polity is very diverse, as in the United States, we would argue that it is particularly important that citizens know the history and philosophy of their governing institutions; in the absence of other ties—race, religion, national origin—a common understanding of constitutional principles is critical to both the formation of national identity and the ability of citizens to assess whether policy proposals are congruent with the national legal system and political culture. This civics deficit is one of the reasons the rhetoric of individualism and the social contract has been so potent a weapon against social welfare measures; concepts like personal autonomy, individualism, liberty and the like have taken on cultural meanings for large numbers of Americans that differ from more nuanced interpretations held by citizens who are familiar with the primary sources of those concepts.

 

Advancing Civil Literacy by Correcting a Key Misunderstanding of the Social Contract

 

Above and beyond the general lack of civic literacy, these examples demonstrate a key dysfunction in our national conversation: much American thought and dialogue is based on a particular interpretation of social contract theory, a reading of key thinkers such as John Locke that supports the belief that government’s job is to promote individual freedom rather than promote the common good. In its most extreme form, such beliefs are seen as mutually exclusive; that government activity can only support the common good at the expense of individual liberty, or promote individual flourishing at the cost to social well being. If that diagnosis is correct, then the treatment must involve exploring and promoting a more nuanced (and, we would argue, correct) reading of key social contract thinkers.   Once the social contract tradition in political philosophy is correctly understood, social welfare policies can actually be seen to fit quite well within it. In fact, we will argue, failure to provide at least a minimal social safety net—including access to healthcare—is a violation of the principles that grow out of this tradition.

In order to make that argument, we review the contours of the social contract, especially as developed in the work of Thomas Hobbes, John Locke and Jean-Jacques Rousseau. Reflecting on these themes does nothing to solve pragmatic policy questions, or to change the political culture that makes passage of such proposals so difficult, but it is a useful starting point. Revisiting the foundations of the social contract may allow us to bring a measure of clarity to some of the confusion and widespread public misconceptions about the roots of America’s governing principles, misconceptions that continue to hobble reforms (Beauchamp & Childress, 1994; Danis, Clancy, & Churchill, 2002). If we are to foster and ground a truly civil dialogue and discourse, we must genuinely understand and engage with the intellectual tradition that gave birth to our country.

In support of this contention, consider the perspective of John Rawls, a philosopher in the social contract tradition, who wrote one of the most important works in political philosophy in the 20th Century (A Theory of Justice, first published in 1971). It is worth noting that even critics of Rawls see this as a central book in recent political philosophy, since it stimulated so many robust and thoughtful arguments and counter-arguments, among them, Robert Nozick’s (1974) arguments for libertarian principles in Anarchy, State, and Utopia, and Michael Sandel’s arguments for communitarianism. Rawls sees political philosophy as playing four key roles in understanding society and political culture. (Rawls & Kelly, 2001) First, political philosophy plays a practical role by helping us to look for common philosophical or moral ground. Second, such philosophy also has a role in orientation, by leading to better understanding of how people think about their social institutions, about themselves, and about their own roles and relationship to society. Third, political philosophy can lead to reconciliation, by facilitating an understanding of how institutions arise and the context within which they are rational. Through explanations, rather than justifications, frustrations can be calmed and raw nerves soothed. Finally, and perhaps most significantly, political philosophy can be used to probe the limits of political possibility. Through such work, Rawls argued, we seek to learn what we can realize as a society; we can discover what is possible, and how we can accomplish our aims. (Rawls & Kelly, 2001)

Those aims are inescapably moral, and morality is a social construct. Even countries with very similar antecedents and values will display differences in their approach to social goods. Jecker and Meslin (1994) illustrated this point two decades ago in a paper comparing and contrasting the United States and Canadian approaches to “justice in health care” and suggesting that the U.S. approach to health care policy reflected the prevailing American understanding of John Locke’s social contract theory, in which justice is a voluntary agreement between consenting and otherwise self-interested groups. Canada’s approach was more consistent with the political theory developed by David Hume, for whom an emphasis on concern for others and the needs of the community took precedence over the prerogatives of the individual. (Beauchamp & Childress, 1994) This strategy was used as a heuristic, to show how a set of shared cultural values developed out of those respective philosophical roots, and how those values continue to shape present day discussions. They were not intended as strict benchmarks against which countries could be tested. But seen in this way it requires little imagination to see how a libertarian reading of Locke’s social contract theory would find support from an American point of view.

A much broader understanding of our founding political philosophy will be necessary if we are to overcome existing cultural barriers to enacting sound social policies in the United States. If we are ever going to revisit our own social contract, lawmakers and the general public must be equipped with information and skills that will allow them to counter the (very effective) rhetoric employed by opponents of social welfare programs. As we note below, it is doubtful that a sufficient percentage of the American public currently possesses that information, and that deficit in civic knowledge and skills is a formidable barrier to the sort of renegotiation that is needed.

Any serious exploration of the policy impediments to a more adequate U.S. social safety net must start by confronting the political and philosophical origins of the United States. Over 200 years after the founding documents were drafted, their values have become embedded in our culture and are still expressed through our political dialogue; they remain central to the essential American “message”. Even Americans who know very little about the nation’s history, who have never heard of the Enlightenment, have been acculturated to adopt those values—or at least, a superficial version of them.

Hobbes, Locke, and Rousseau Redux

            In his great work, Leviathan, Hobbes argued that that the principal purpose of a social contract is to protect people from the harm that others might do them. The social contract removes man from the state of nature, and a life that Hobbes famously described “solitary poor, nasty, brutish and short,” where people live in a state of mutual distrust and “war of all against all.” (Hobbes & Macpherson, 1985) Because this is the case, social institutions must be established to control human nature and protect us from each other. Social cooperation and mutual reciprocity flow from the recognition that these are rational behaviors that confer substantial advantages to individuals in a society. Nothing in Hobbes’ approach to the social contract suggests any benevolent, other-regarding motivation to establish civil society. Rather, he suggests that people will participate in social institutions if voluntary compliance is an apparent good to them. Political systems and social institutions are valued for the advantages they provide, not for their fundamental fairness.

Like Hobbes, Locke (1955) argues in Of Civil Government that the state of nature is sufficiently dangerous that a social contract is necessary to protect the interests of individuals. In the standard reading, Locke places great emphasis on the importance of property rights and on limiting the power of the state. (Nozick, 1974) Unlike Hobbes, however, Locke’s state of nature is not necessarily a state of war. The basis for society is not simply avoidance of an unpleasant life, but its ability to improve lives that are already minimally acceptable. But there is another reading of Locke.

According to some interpretations, Locke’s version of the social contract offers a mechanism for social improvement. The evidence for this is found in two passages of the Treatise. Locke writes in Chapter 5:

“For this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.”

The usual reading of this passage is that individuals are entitled to 100% of the fruits of their labor. But the phrase “where there is enough, and as good, left in common for others” is intriguing. Who gets to decide what should be done with the “property” left in common for others and how it will be used?  Locke would certainly agree that the government has the right to use this other property/money for protection of property (e.g. national defense and police), but does the government also have a right to use it on behalf of other citizens—i.e., to redistribute it? Locke is mostly silent on this but arguably, a reading of Locke does support the idea that government has the moral authority, even the duty, to redistribute some portion of wealth/property for the good of others.  Indeed, modern social contract theorists (like Rawls) explicitly argue for this interpretation.

The second passage can be found in Chapter 15 of the Second Treatise, where Locke writes about the relationship between parents and children, saying, that a child “having received life and education from his parents, obliges him to respect… and support… both his father and mother.” What Locke is saying is that there is a responsibility, binding on children, to care for their parents (because parents gave them life, liberty, property, etc.). Perhaps the obligation of children to take care of their parents may serve as an analogy, or even a basis, for government’s obligation to look after all the “parents” in society, i.e., those who helped build or sustain it.  The direct relevance today in the U.S. is Medicare, the federal insurance program that guarantees health insurance to people over 65. Indeed, it is ironic that this government program was the source of the rather bizarre exchange that occurred during one of the town hall meetings discussing the ACA, where a senior citizen demanded that his Representative “keep your government hands off my Medicare.” (Rucker, 2009)

It becomes difficult to discuss the role of government, let alone the social contract, when so many people are unaware that programs from which they benefit are, in fact, government programs.

Here, then, is the genesis of the schizophrenic American reaction to social welfare: individuals become horrified by the stories of destitution, or by their own experiences of the system, and demand that something be done. But with concrete proposals for policy change comes warnings that the reforms will undermine individual liberty, both by reducing individual choice and by imposing onerous taxes. This oppositional rhetoric is especially powerful when coupled with the very human tendency to be uneasy when confronted with change of any sort. This superficial—almost visceral—reaction makes it doubly important to make people aware that the social contract is more complex than generally assumed.

Even at his most libertarian, Locke did not suggest that property rights should trump the power of the state to facilitate human flourishing. Indeed, in some readings of Locke, the social contract allows the state to do much more than most libertarians would countenance, including projects that serve the public welfare. (Rawls & Freeman, 2007) Locke’s social contract is a more substantive collaboration than libertarian orthodoxy allows, and appeals to Lockean social contract theory as the source of oppositional rejections of social welfare programs are not cut and dried. That being said. the dominant reading of Locke is still used to characterize social welfare programs as somehow un-American. That traditional reading makes the goal of “providing a minimum standard of living” or “providing healthcare for all” seem inconsistent with both the need to limit the reach of the state and to respect the sanctity of property rights. The more recent readings challenge this; furthermore, other social contract arguments make the case more compelling.

These themes were developed more explicitly in the writings of Jean-Jacques Rousseau, who, in contrast with Hobbes and Locke, claimed that man is naturally good, only acting badly through his social institutions. Rousseau sought to diagnose the evils in society, explain their origins, and determine how they might be eliminated. He warned that inequalities in society can lead to dangerous alienation, and cautioned that the rich and powerful can create schisms in society. Rejecting Hobbes, he also argued that we need to align our institutions with the social contract to secure moral freedom, political and social equality, and independence:

It is therefore one of the most important functions of government to prevent extreme inequality of fortunes; not by taking away wealth from its possessors, but by depriving all men of means to accumulate it; not by building hospitals for the poor, but by securing the citizens from becoming poor… and in short, venality pushed to such an extreme that even public esteem is reckoned at a cash value, and virtue rated at a market price: these are the most obvious causes of opulence and of poverty, of public interest, of mutual hatred among citizens, of indifference to the common cause, of the corruption of the people, and of the weakening of all the springs of government. Such are the evils, which are with difficulty cured when they make themselves felt, but which a wise administration ought to prevent, if it is to maintain, along with good morals, respect for the laws, patriotism, and the influence of the general will.

Although he argued for free will and respect for the rights of the individual, Rousseau also argued for the existence of a “general will”, a set of social bonds that hold individuals together. (Rousseau, Masters and Kelly, 1990) This general will is what remains after removing all private and particular biases. The general will is not utilitarian—it is not the sum of individual desires. Rather, it is the convergence of individual beliefs (not unlike Rawls’ “overlapping consensus”). Rousseau argued that society and its institutions should be used to ameliorate inequality in order to alleviate suffering and avoid letting urgent needs go unfulfilled. Significantly, Rousseau claimed that inequality is not the wrong in itself; rather the wrong is the suffering that inequality causes. Social institutions must act to prevent some parts of society from dominating others, and must prevent people with less money and power from being treated unfairly. Everything may not be equal for everyone, but we should all be equal citizens. In Rousseau’s just society, inequality is not eliminated, but it is moderated in order to preserve personal independence and avoid the arbitrary use of power and human suffering.

One wonders whether, stripped of the names of the authors or the texts they authored, which of the values (Hobbes, Locke – in either interpretation – or Rousseau) the American public would endorse. Unfortunately, our highly politicized civic discourse and our troubling deficit of civic literacy prevent such conversations from occurring.

He Who Frames the Issue Wins the Debate

We have suggested that the language used to support (and reject) social welfare proposals implicates key values important to Americans. Indeed, some reform proposals have been attacked using arguments that rest on an entirely libertarian reading of Locke, ignoring both his more nuanced passages and the communitarian strains of Hume or Rousseau. Clearly, the history of social policy reform efforts in the U.S. cannot be traced in a straight line from the group of white men who met in Philadelphia back to Hobbes, Locke, Hume, or Rousseau. As with all policies, some have been responses to challenges (such as wars, or economic depression); others have been responses to opportunities (such as great discoveries by scientists, technological advances, or new ways of organizing hospitals and research universities). But the most significant challenge that all policy proposals face is the need to align whatever pragmatic concerns they address with the values of the dominant political culture.

We believe it is possible to defend robust proposals for reform and to place these proposals squarely within the social contract tradition—invoking the fundamental values that Americans hold dear. It would be a major political mistake to appeal to a different tradition to justify reform in a country founded squarely on the ideas and values emanating from the social contract tradition, and that is most definitely not what we propose. Rather, we believe the time has come to show the value and relevance of America’s social contract tradition in formulating and defending meaningful social policies; to re-frame the debate, and to propose that the social contract be re-imagined in order to continue serving us in the modern era.

If such a reframing seems impossibly utopian, we would offer an analogy to civil rights and our expanded understanding of what is meant by “equal protection of the laws.” At one point, the belief that African-Americans, women and GLBT citizens could be afforded equal legal rights, let alone that such inclusion would come to be seen as quintessentially American, seemed idealistic and unrealistic. Yet imperfect and halting as that social change has been, as long as it has taken (and will likely take to be fully realized), Americans have reimagined our history and enlarged our understanding of our founding principles.

It is much easier to frighten people into inaction than it is to inspire them to change. In part, that is due to the fact that we conduct our policy debates using language that is likely to stifle momentum and highlight the risks. Some of our failures, however, are due to our inability to adequately explain the ways in which a robust social safety net actually advances the deepest values of Americans, and how a concern for social justice is consistent with the fundamental philosophy of the United States. If reform is to succeed, proponents must argue for it from within the American constitutional and political culture.

This approach is significantly more difficult than it might otherwise be because so few Americans are acquainted with the ideas that emerged from these seminal Enlightenment figures, or with the basic premises of our constitutional system.

We suspect that Americans value individual liberty and personal freedom as much or more than they did over 200 years ago, when the experiment began. The vast majority of our citizens have views that are rooted in the philosophies of Hobbes, Locke, and Rousseau, even if they cannot identify any of those thinkers. Indeed, one might suggest that the spectrum found in American political thinking reflects the spectrum found in these thinkers: we can find ardent libertarians who might identify with Hobbes, and equally passionate communitarians who would recognize Rousseau as a soul-mate. It is thus not surprising that any attempt at social policy reform based on a monolithic, narrow view of the social contract is doomed to failure. But this is not to say that policy reform is impossible, especially if respectful efforts are made to accommodate those foundational values. It is not enough to argue that a national healthcare system or a more robust social safety net would achieve better results at significantly reduced expense, or to point to public dissatisfaction with the way things are. Any successful attempt to craft legislation expanding the social safety net must argue from within the terms of the social contract itself.

Conclusion

As in all countries, no single event or person is responsible for the policies and institutions currently in place—and no single person or event will be responsible for their reform. All American policy is the result of many hands, (Starr, 1982) and it will be reformed by many hands. Our current social welfare policies are firmly rooted in America’s highly individualistic political culture. Our citizens remain devoted to an ideology of the minimal state and reliance on the free market, no matter how incongruent that ideology may be with the realities of today’s administrative state. Policy proposals that ignore this deeply-rooted belief in a (bygone) minimal government will inevitably fall victim to assertions that the proposals violate our most fundamental social norms. It is not enough to point out that established safety nets are increasingly insufficient, or even that current policies have reduced the social mobility that has been one of the proudest aspects of our “American exceptionalism.” Within the United States, despite mountains of data showing otherwise, a widespread belief exists that our health care is the best in the world, that anyone willing to work hard can succeed, and that the social safety net is available to those who need it (or at least to the deserving poor). Even when individuals do recognize the deplorable state of many social health metrics, there persists a stubborn, “Lockean” refusal to entertain the idea that more government may be the solution.

If we are ever to achieve reform, it will be through a public conversation that re-examines the social contract and frames reform as an extension of, rather than as a departure from, the basic values that have always grounded our democracy. However, that discussion cannot occur without better civic literacy, defined as more—and more accurate—civic information and citizenship skills.

When more Americans are familiar with the country’s history, founding philosophy and institutions, we can invite John Locke back into the national discourse, not to defend barriers to progress, but to expand upon the elements of a social contract worthy of a great country.

 

References

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University Press.

Berman, S. (2004). Financing childhood health supervision services in the 21st century.

Pediatrics 113 (6 Suppl): 1984-1985.

Danis, M., Clancy, C. M., & Churchill, L. R. (Eds.). (2002). Ethical dimensions of health policy.

New York: Oxford University Press.

Davis, K. (2001). Universal coverage in the United States: lessons from experience of the 20th

century. J Urban Health 78 (1): 46-58.

DeNavas-Walt, C., Proctor, B. D., & Smith, J. C. (2013, September). Income, Poverty, and

Health Insurance Coverage in the United States: 2012. US Census Bureau. Retrieved from: http://www.census.gov/prod/2013pubs/p60-245.pdf.

Frakt, A. B., & Pizer, S. D. (2006). A first look at the new Medicare prescription drug plans.

Health Affairs, 25(4), W252-W261.

The Henry J. Kaiser Family Foundation. (2013). 2013 Employer Health Benefits Survey.

Retrieved from: http://kff.org/report-section/ehbs-2013-section-1/.

The Henry J. Kaiser Family Foundation. (2012, May). Health Care Costs: A Primer. Key

Information on Health Care Costs and Their Impact. Retrieved from: http://kaiserfamilyfoundation.files.wordpress.com/2013/01/7670-03.pdf

Hobbes, T. & Macpherson, C. B. (1985). Leviathan. Harmondsworth, England: Penguin.

Institute of Medicine, National Academy of Sciences. (2003). Insuring America’s Health:

Principles and Recommendations. Washington, D.C.: Author.

Jamieson, K. H. (2007, October 17). Public Understanding of and Support for the Courts.

Annenberg Public Policy Center of the University of Pennsylvania.Retrieved from: http://www.annenbergpublicpolicycenter.org/Downloads/20071017_JudicialSurvey/Judicial_Findings_10-17-2007.pdf

Jecker, N. S., & Meslin, E. M. (1994). United States and Canadian approaches to justice in health

care: a comparative analysis of health care systems and values. Theoretical medicine, 15(2), 181-200.

Jonsen, A. R. & Toulmin, S. E. (1988). The abuse of casuistry: a history of moral reasoning.

Berkeley: University of California Press.

Locke, J. (1955). Of Civil Government: second treatise. Chicago: Regnery.

National Assessment of Educational Progress (NAEP). (2006). Civics Assessment. U.S.

Department of Education, Institute of Education Sciences, National Center for Education Statistics.

Nozick, R. (1974). Anarchy, state, and utopia. New York: Basic Books.

Rawls, J. & Freeman, S. R. (2007). Lectures on the history of political philosophy. Cambridge,

MA: Belknap Press of Harvard University Press.

Rawls, J. & Kelly, E. (2001). Justice as fairness: a restatement. Cambridge, Mass.: Harvard

University Press.

Rousseau, J., Masters R. D. & Kelly, C. (1990). The collected writings of Rousseau. Hanover,

NH: Published for Dartmouth College by University Press of New England.

Rucker, P. (2009, July 28). Sen. DeMint of S.C. is Voice of Opposition to Health-Care Reform.

The Washington Post. Retrieved from: http://www.washingtonpost.com/wp-dyn/content/article/2009/07/27/AR2009072703066.html?hpid=topnews

Santora, M, (2007, October 11). McCain Health Care Plan Puts Focus on Spending. New York

Times. Retrieved from: http://www.nytimes.com/2007/10/12/us/politics/12health.html?ref=politics&_r=0

Starr, P. (1982). The social transformation of American medicine. New York: Basic Books.

 

Acknowledgement:

The authors wish to thank several people for comments on earlier versions of this paper including Eric Wright, Heather McCabe, Halley Rose Meslin, Kimberly Quaid.

 

 

[1] Boorstin and Hartz authored two of the most influential books of the 1950s, explaining—and defending—the notion of American exceptionalism. In The Genius of American Politics, in 1953,Boorstin attributed American “greatness” to a lack of class conflict and an “instinctive conservatism.” In The Liberal Tradition in America (1955), Hartz agreed. Both credited Locke with providing a philosophical base for the new country, obviating the need to create a new and separate tradition; American political philosophy was seen as a “long footnote” to Locke.

Fourteenth Amendment: The Privileges or Immunities Clause

 Section 1 of the Fourteenth Amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

As Constitutional scholar Erwin Chemerinsky has written (in The Supreme Court and the Fourteenth Amendment: The Unfulfilled Promise), “The simplest, and perhaps most elegant, way of understanding the Fourteenth Amendment is to view the Privileges or Immunities Clause as protecting rights from government interference, the Equal Protection Clause as assuring equal treatment, and the Due Process Clause as prescribing the procedures that government must follow when it takes away life, liberty or property.”(1151-52)

Although subsequent case law has relied far more substantially upon the Due Process and Equal Protection Clauses, the history of the Amendment suggests that the Privileges or Immunities Clause was originally intended to play a far more vital role than has subsequently been the case.

The Privileges or Immunities Clause should not be confused with the Privileges and Immunities Clause of Article IV, Section 2 of the Constitution. That clause reads “The Citizens of each State shall be entitled to all Privileges and Immunities in the several states,” and has been applied to situations where residents of one state have been disadvantaged under the laws of another state; in other words, to situations involving the refusal of a state to treat U.S. citizens from other states equally under its laws.

History

Passage of the Privileges or Immunities Clause and the rest of the Fourteenth Amendment was a direct outgrowth of the national debate over slavery, and the subsequent emancipation of the slaves during the Civil War. In the aftermath of that war, Congress confronted a number of thorny issues: what would be done about the rebel leaders? Would the defeated states contribute to paying off the Union’s debts? Would slave owners be compensated for the loss of their property? What measures would be required of the defeated states as a condition of their full re-admittance to the Union?

While the Republican Congress wrestled with these and other issues, and engaged in arguments with Democratic President Andrew Johnson about their resolution, the governments of the former slave states were passing measures intended to prevent the freed slaves within their jurisdictions from enjoying the same rights accorded to white citizens. There was little or nothing Congress could do about these efforts. The Constitution offered no remedy to people treated unequally or unfairly by state and local governments, as the Supreme Court had made abundantly clear in 1833, in Barron v. Baltimore.

John Barron was one of the owners of a wharf in Baltimore’s harbor. The wharf had been quite profitable; however, as the city expanded and more and more development occurred, the city allowed large amounts of sand to be dumped in the harbor. The build-up of sand eventually deprived Barron and his partners of the deep waters they needed in order to continue their successful operation of the wharf. Barron sued the city to recover a portion of his financial losses, citing the Fifth Amendment’s prohibition on taking private property for public use without just compensation. The Supreme Court ruled that the Fifth Amendment, and the other provisions of the Bill of Rights, applied only to actions by the federal government.

The Barron decision thus prevented Congress from using provisions of the Bill of Rights to punish states that acted to oppress or disadvantage former slaves, no matter how official or egregious the act.

Several Senators and Representatives had come to believe that the Constitution should be amended so that the limitations of the Bill of Rights would restrain state level governments, but the first section of the Fourteenth Amendment owes both its form and substance to Ohio Representative Jonathan Bingham, who authored the language and worked tirelessly for the enactment of the Fourteenth Amendment. In an important speech that later was reprinted as a pamphlet (One Country, One Constitution, and One People: Speech of Hon. John A Bingham of Ohio in the House of Representatives, February 28, 1866, In Support of the Proposed Amendment to Enforce the Bill of Rights), Bingham argued that the proposed Amendment was not an intrusion on states’ rights, as some asserted, because no state had the right “to withhold from any citizens of the United States, on any pretext whatever, any of the privileges of a citizen of the United States.” He insisted the Amendment was necessary to correct both the racial inequities upheld by the Supreme Court in the infamous Dred Scott decision, and the economic injustices allowed by Barron v. Baltimore.

The Fourteenth Amendment was ratified on July 28, 1868, but only after passage of the punitive Reconstruction Acts. Re-admittance of former Confederate states to the Union was conditioned upon that state’s vote to ratify, a coercive measure still cited by opponents of the Amendment who argue that ratification under duress should be considered ineffective.

A reading of the legislative history of the Fourteenth Amendment strongly suggests that its supporters saw the Privileges or Immunities Clause as the vehicle to incorporate the Bill of Rights, that is, to impose the limitations on federal action enumerated in the first eight Amendments on state and local government actors as well. The Supreme Court, however, declined to read the Clause in that way, and in The Slaughterhouse Cases,  dramatically limited its scope.

The Slaughterhouse Cases

The State of Louisiana awarded a 25-year monopoly to Crescent City Livestock Landing and Slaughter-House Company. Other abattoirs were ordered closed, and the legislature authorized the fining of competing businesses.  The Court majority dismissed claims that this favoritism violated the Fourteenth Amendment, and narrowed the Privileges or Immunities Clause into virtual irrelevance.

In a 5-4 decision, Justice Samuel Miller held that the first sentence of the Fourteenth Amendment, “All persons born and naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State where they reside,” distinguished between two citizenships, one of the United States and one of the state. He further held that the second sentence, forbidding abridgment of the Privileges and Immunities of citizenship, applied only to situations in which a state was abridging federal rights.

“The privileges and immunities of citizens of the United States are those which arise out of the nature and essential character of the national government, the provisions of its Constitution, or its laws and treaties made in pursuance thereof, and it is these which are placed under the protection of Congress…” The Court limited application of the Equal Protection Clause to protection “of the Negro Race,” and upheld the grant of the monopoly as a proper exercise of the state’s duty to protect public health.

Most legal scholars today agree with the four dissenters, who read the protections of the Amendment more broadly. The Slaughterhouse Cases ignored the plain effect of the language, and gutted the Privileges or Immunities Clause. In America’s Constitution: A Biography, Yale law professor Akhil Amar explains why credible legal scholars today do not consider the Slaughterhouse Cases a plausible reading of the Amendment.

Current Status and Interpretation

Perhaps the best summary of the unfortunate and continuing consequences of the opinion in the Slaughterhouse Cases was written by Kimberly C. Shankman and Roger Pilon in a 1998 Cato Policy Brief, No. 326,  Reviving the Privileges or Immunities Clause to Redress the Balance Among States, Individuals and the Federal Government.

Although intense litigation under the [Fourteenth] amendment should not surprise, what is surprising is that most of it has taken place not under the Privileges or Immunities Clause, which was meant to be the principal font of individual rights, but under the Due Process and Equal Protection Clauses. Using the Due Process Clause, judges have “incorporated” most of the Bill of Rights under the Fourteenth Amendment, then applied those protections against state actions to find the actions unconstitutional. More recently, judges have used the Equal Protection Clause to the same effect and others, raising all manner of questions about the scope of their authority and the grounds of their reasoning. In all of this, however, neither liberals nor conservatives have given more than a moment’s attention to the cardinal clause of the Fourteenth Amendment, the Privileges or Immunities Clause, which remains uncited, unlitigated, uncommented upon–in a word, unnoticed. Whole chapters of modern constitutional law casebooks are devoted to due process and equal protection while privileges or immunities are dismissed in a few pages at most. Like the bark of the hound in the canon of Sherlock Holmes, what is most striking about the Privileges or Immunities Clause in the canon of Constitutional law is its absence.

Bibliography

Amar, Akhil Reed. 2005. America’s Constitution: A Biography. Random House.

Chemerinsky, Erwin. 1992. “The Supreme Court and the Fourteenth Amendment: The Unfulfilled Promise,” Loyola of Los Angeles Law Review. Vol. 25: 1143-1158. June.

Magliocca, Gerard N. 2013. American Founding Son: John Bingham and the Invention of the Fourteenth Amendment. New York University Press.

Shankman, Kimberly C. and Roger Pilon. 1998. Reviving the Privileges or Immunities Clause to Redress the Balance Among States, Individuals and the Federal Government. Cato Policy Analysis, No. 326.

——————————————————————

Sheila Suess Kennedy

Professor of Law and Public Policy, School of Public and Environmental Affairs

Indiana University Purdue University Indianapolis

 

Legal Regime and Public Service: Legitimacy, Ethics and Comparative Context

International and comparative studies have the ability to enlarge our worldviews and inform our policy landscape, but only if we are sensitive to context.[1] Learning from the “best practices” of other countries works best when the practices being shared are technocratic: traffic management, water treatment, construction standards and the like.  When lawmakers move to import more complicated policies and practices, especially those requiring some measure of political support and implicating government services and actions, the prospects become considerably more fraught.[2]

Public law and public management are inescapably particularistic, rooted in very specific national norms and reflective of the regimes within which they operate. Indeed, the discipline of public administration is defined as analysis and management of the public’s business as that business is defined by a particular society at a particular time. Efforts to study or replicate “best practices” from other countries, even other Western democratic countries, without due regard for the governing premises and legal systems of the society within which those practices occur are at best inexact and at worst counterproductive.

There’s a Reason They’re Called Norms

The importance of legal and social context presents educators and public officials with a significant challenge: how do we learn from each other while recognizing and respecting the cultural distinctions that shape and define legal approaches to governance? The ongoing debate over the proper approach to comparative public administration pedagogy raises both normative and technical questions about what those of us teaching law and policy tell our students. Several such questions come immediately to mind: How do we teach students to approach public policy with an informed sensitivity to the operation of national norms? How do we identify and assess the function and relative importance of mediating institutions—nonprofits and NGOs—in countries with very different understandings of the roles such organizations should fill? How do we ensure that students will recognize and accommodate the systemic structures that empower or constrain public officials in different constitutional contexts? How do we connect ethical practice to foundational legal principles? In short, how do we marry relevant legal norms to public management skills and practices, so that public policy and administration will be informed by both sets of competencies?

A well-regarded American introductory public affairs text describes the policy process as a series of eight steps: 1) establish the context; 2) formulate the problem; 3) specify project objectives; 4) explore alternative solutions; 5) set the policy; 6) develop an implementation plan; 7) monitor and evaluate; and recycle the process.[3] This prescription and sequence begins with an instruction to understand the context because a failure to do so is likely to lead policymakers astray.

“Establishing the context,” necessarily starts with national histories and legal systems, because those are the forces that shape distinctive national cultures and norms, and thus establish the relevant context. Where they exist, constitutions are controlling declarations of public policy, embodying a society’s fundamental philosophical assumptions about law, legitimacy and government power. Constitutions dictate the ways in which citizens “formulate the problems” and effectively foreclose exploration of certain “alternative solutions.” To take illustrative examples from America, the United States Constitution does not permit officials to entertain the “alternative solution” of imposing martial law when burglary rates get too high,[4] or the “alternative solution” of censorship when music lyrics are deemed by a majority of Americans to be too suggestive.[5] It does not permit American deficit hawks to reduce welfare rolls by feeding only Caucasian children,[6] or to combat pollution by appropriating privately owned property.[7] The U.S. Constitution and the jurisprudence it has generated control the methods Americans use to “set the policy” and how we proceed with the “implementation plan.” In civil law countries, where case law does not constitute legal precedent in the same way court decisions do in common law countries,[8] the guidance provided by the relevant Constitution is textual rather than jurisprudential, but that document nevertheless requires managers to discharge their responsibilities within the framework of rules provided.

Accountability and Legitimacy

Failure to follow the applicable rules, failure to operate within the appropriate legal or constitutional context, undermines legitimacy—the very definition of which is “operational rules rooted in constitutional or societal norms.”[9] A legitimate exercise of authority, no matter how coercive, is different from the exercise of raw power unrestrained by adherence to codes rooted in normative values, and members of the polity can be counted on to see it differently.[10] Being perceived as legitimate is especially critical to the continued effectiveness of those serving in local government agencies who must make and implement policies having an immediate and concrete impact on the citizens with whom they regularly interact.

Constitutions and other settled legal regimes circumscribe the arena within which public policy debate may legitimately occur in a given society; familiarity with applicable legal principles and the culture they have shaped also provides citizens with a common language allowing for meaningful democratic dialogue.[11] Lawmakers and public officials operating within a particular regime need not agree with every choice required by a nation’s constitution, but in order to communicate effectively with their fellow-citizens, they do need to understand what those choices were, why initial legal or constitutional decisions were made, and why and how they continue to matter (or not). Without that essential shared framework, public policy issues cannot be properly framed or their connection to the regime clearly understood; they will tend to be viewed as isolated and unconnected challenges rather than aspects of a coherent approach to the use of state power. It is likely that the absence of a recognizable and readily perceived connection to a familiar regime—the inability to connect new approaches and practices comfortably to a pre-existing worldview or frame of reference–is one of the many barriers to the creation of effective pan-national and international bodies.

It is important to recognize that unless they are trained to look for inconsistent normative assumptions, inhabitants of different cultures will take for granted the universality of their own worldviews. This very human tendency makes it difficult to identify significant differences in the cultures of democratic countries that on the surface seem quite similar.  To offer just one example, the term “public affairs” implies the existence of both public and private realms. A generally underappreciated reality is that even in Western democratic countries, legal and constitutional systems define those spheres very differently.

In the United States, the legal system draws a constitutionally significant distinction between the public sector, defined as government and its agencies and officials, and civil society, defined as the multitude of nongovernmental, voluntary communal and religious associations through which individuals may act and connect. That distinction is a crucial, if unarticulated, element of most U.S. policy decisions, because only government actors can violate the American Bill of Rights, which limits government actions but not private behaviors.[12] Based upon this particular understanding of the relationship of public and private behaviors, the American Constitution does not grant affirmative rights; it limits the power of the state to infringe private ones. This is not the case in many other Western democratic states, where it is common to have a constitutional system that both restrains and empowers government,[13] and where social entitlements frequently are embedded in the constitution. As a consequence of these differences in legal context, public managers working in different countries must confront a different set of questions when they are contemplating collective social action.

 An example of the practical significance of such legally disparate worldviews can be seen in the responses of different systems to efforts to privatize previously governmental functions. The move toward greater privatization has gained popularity in a number of countries over the past quarter-century despite considerable confusion over the precise meaning of the term.[14] The government continues to determine the need for the program or service, funds it, and remains ultimately responsible for its management; however, the relevant agency enters into an arrangement—typically a contract, but sometimes a grant or other partnership arrangement—with a private or nonprofit organization to deliver the service or otherwise perform the designated function. In the United States, during the past century, these arrangements have fundamentally transformed governance. The scope of government action has increased at all levels of our federal system, but the truly radical changes have been in the means through which agencies of government address service delivery and public problem-solving.[15]

In the United States, a transfer of sovereignty to nongovernmental agents is more than merely a management problem, as it is in many other countries, because constraints on the use of public authority are fundamental to the United States’ political and constitutional order. The Bill of Rights restrains only government action, making it essential that citizens and public managers alike be able to identify when government has acted. The growth of contracting arrangements has made that identification increasingly problematic, blurring the boundaries between private and public action and making it difficult in many situations to determine whether a particular action or decision can fairly be attributed to government. The result, in the opinion of many scholars has been a loss of essential governmental accountability and thus legitimacy.[16] Note, however, that this is not an issue in countries with constitutions that do not rest on foundations of “negative liberty.”  In those regimes, public service delivery by private contractors or NGOs raises management issues, not constitutional ones. Different systems embed different concepts of accountability and legitimacy.

Similarly, most European governments routinely contract with religious organizations; separation of church and state, if it exists at all, is framed very differently than in the United States.[17] American courts have long held that, whatever else the First Amendment’s Establishment Clause may mean, it definitely precludes the use of tax dollars to advance religion or support religious endeavors.[18] On the other hand, faith-based and religious organizations remain free to contract with agencies of government to provide secular services, and local units of government fund thousands of them to provide job training, childcare, adoptions, homeless interventions and a plethora of other human services.[19] Legally, public managers must ensure that the contracting organizations providing these services are not engaging in constitutionally prohibited activities, i.e., that they are not proselytizing clients, requiring their attendance at church services or engaging them in prayer. The ability of cash-strapped government agencies to assure compliance with these constitutionally required prohibitions is virtually non-existent; as a result, the propriety and legitimacy of governmental partnerships with religious organizations has from time to time become a heated and bitterly contested political issue.[20] This is simply not a problem in most of the E.U., where close partnerships between governments and religious bodies are common, and do not raise issues of legitimacy.

These outsourcing issues are far from trivial. They do not simply reflect different ways of delivering social services. Instead, they implicate the previously-referenced, normative understandings of accountability—a concept absolutely integral to the legitimacy of public actionIn an important article on outsourcing and the New Public Management, Peters, Guy and Pierre, made precisely this point:

The basic problem in both theories [outsourcing and NPM] is that the linkage between control and accountability—the heart of democratic theory and a democratic system of government—has been confused. Both models of public administration seek to replace political power derived from legal mandates or elected office with an entrepreneurial style of leadership or—with NPM—a remote and indirect model of leadership. This creates two different problems, derived from different perspectives on governance and citizenship. First, if elected political leaders have such limited control over public administration, is it reasonable to hold them accountable for the decisions and actions of the public service, and if elected officials should not be held accountable, then who is accountable?[21]

Contracting with a third-party surrogate for service delivery is simply one example of the complex interplay between basic governmental institutional theories and managerial efforts to improve service delivery. Peters, Guy and Pierre quite accurately note the problem with assigning accountability—the problem with determining who is responsible for what. There is, however, an even more foundational accountability issue, and it brings us back to the central concern of this article, the role of national political culture in determining accountability. It is necessary, but not sufficient, to identify the person or institution responsible for a particular government action. It is even more critical to ask the question “accountable to what?” What is the system of rules, what are the normative expectations, against which we are to measure action and determine accountability?  If we do not understand that legal and cultural context, we cannot form a coherent theory of accountability, and without a coherent theory of accountability—a theory that is grounded in normative expectations and transparent enough to allow citizens to identify responsible actors—we simply cannot teach a discipline called public administration. At most, we can offer technocratic skill training.

A Question of Ethics

Legal cultures not only dictate perceptions of accountability and legitimacy, they also provide the framework within which a polity defines ethical public service. One of the thorniest problems faced by employees of multinational businesses is how to navigate the ethical landscape in countries where payments that would be considered bribes in the U.S. are common and expected. Often, laws forbidding such practices exist, but as relatively new and to-date ineffective grafts on pre-existing and more forgiving legal systems.[22] Law shapes culture, but the process takes many generations, and ingrained practices are demonstrably difficult to eradicate.

Much of the recent literature on what constitutes ethical behavior in the American context has focused upon explication of specific ethical principles, the challenges of contracting out, the New Public Management, and the consequences of America’s increasing “marketization” and a corresponding diminution in concern for the public good.[23] These are important topics, but considerably less attention has been paid to the importance of the nexus between ethical public behavior and the relevant legal culture.  Yet as scholars have long recognized, ethical public service is rooted in, and defined by, the legal context within which it occurs.

In the United States, ethical public service is ultimately defined as consistency with the American Constitution and Bill of Rights, and that consistency is essential to government legitimacy.[24] It is important to emphasize the often-conflated distinction between personal and professional ethics in this context. While personal ethics are very important to avert what Adams and Balfour have called “administrative evil,”[25] the professional ethical obligations emphasized by Rohr and Rosenbloom, among others, require fidelity to the principles of the American legal and constitutional system. As Kennedy and Schultz have written,

The decision-making procedures and substantive protections for rights found in the Constitution and Bill of Rights define the first layer of duties and obligations that public servants have. Together, they define how decisions are to be made (procedural justice) and what can be decided or done (substantive fairness or justice)…the Constitution and Bill of Rights form the first tier of a public administration or public service ethic.[26]

Lawmakers and public officials, as well as those who teach them, need to recognize both the constitutional roots of public sector ethics, and the negative systemic consequences of frequent deviations from exemplary behavior. Average citizens may not be able to articulate the constitutional bases of their discomfort with conflicts of interest and other ethical departures, but they expect public servants to understand that they have an obligation to place the public good above private interest. When breaches of the public trust engender widespread cynicism, it is not only a situation constituting a genuine threat to the conduct of the business of government, but also a failure to understand the relevant constitutional and civic culture and context. As noted above, ethical and effective public performance depends significantly upon consistency with the legal and constitutional context of the relevant regime.

 Comparative Public Administration: Some Final Observations

Unfortunately, conscientious public affairs instructors who understand they must begin any comparative exercise with an introduction to the basic assumptions of a regime do not have a wealth of pedagogical materials available to them. Too many books dealing with comparative public administration and law ignore or slight foundational social and contextual differences, preferring to highlight the more technocratic issues common to governments everywhere.  There are a few scholars who have argued for the importance of grounding public management pedagogy in the relevant political theory.  Michael Spicer’s book, The Founders, the Constitution and Public Administration, published in 1995, made a strong case for the importance of a public management rooted in a nation’s constitution.[27] “The purpose of this book,” Spicer noted in his introduction “is to examine the worldviews underlying public administration and the Constitution.” Although Spicer directed his attention to the U.S. Constitution, all legal systems are constitutive of national cultures to a greater or lesser extent, and they all shape the worldviews of those who operate within them. Differences in those worldviews can be seen in the varying attitudes toward government that characterize different countries, even when the countries being considered are all constitutional democracies. In the U.S., as public administration has concentrated on the need to legitimize the administrative state, it has found itself at odds with a polity fixated on the need to limit government power, a central U.S. Constitutional concern. As a result, administrative actions that are taken for granted in European countries with strong administrative traditions often generate accusations of illegitimacy in highly individualistic America.

Unlike citizens of countries characterized by racial or ethnic homogeneity, American identity is rooted in allegiance to a particular worldview; it is based upon an understanding of government and citizenship originating with the Enlightenment and subsequently enshrined in the U.S. Constitution and Bill of Rights. Understood in this way, “constitutional culture” has a considerably broader scope than law and policy; it is an expression of the ongoing dialectic between society’s legal norms and the broader culture within which those norms are situated and must be understood. The American “constitutional culture” arises from the operation of our constitutional values in a radically heterodox culture, and the effects of that interaction on policy choice and contestation.

Decisions made by those who designed America’s constitutional architecture shaped contemporary definitions of public and private, notions of governmental and personal responsibility, and conceptions of human rights. They dictate the manner in which we frame and understand civic responsibility, and allocate collective social duties among governmental, nonprofit and private actors. In short, as with regimes elsewhere, those initial constitutional choices have been constitutive of a distinctive American culture. What Kennedy and Schultz have called “the Constitutional Ethic” is behavior grounded in, and compatible with, the United States Constitution.[28] In the U.S. and elsewhere, when significant segments of a population do not know the history, philosophy or contents of their legal system, they are unable to make informed judgments about the propriety of behavior of their public officials.

Unlike many of our European allies and trading partners, the American Constitutional ethic grows out of an approach to government based upon—and structured to so as to minimize—political distrust.  The battle to separate from England was triggered by distrust of King George III and the British Parliament.  The weak government of the Articles of Confederation was rooted in distrust of central authority; the Constitution of 1787 was the result of distrust of both weak decentralized government and “majority factions” that could infringe upon the rights of individuals. In fact, the entire American constitutional machinery—separation of powers, checks and balances, federalism, bi-cameral legislatures—grew out of an effort to address this fundamental suspicion of concentrated power, and the belief that abuses of power are likely in the absence of structural constraints on administrative behavior.

This mistrust could be considered constructive, since it led to the creation of institutional limitations on abuses of power.  But a culture of distrust also has quite negative implications for democratic governance: distrust of individuals who are in a position to abuse power for personal gain or to engage in other forms of self-dealing.  That sort of mistrust is corrosive.  It generates public suspicion that those who participate in government are corrupt. When such suspicion or cynicism becomes pervasive, it becomes much harder for government to generate citizen engagement, let alone the voluntary compliance necessary to achievement of public purposes.[29]

If it is important for citizens to believe in the honesty of those who serve, and that most officials be viewed as trustworthy public servants, it is equally important that government officials not only be honest, but that they be seen to be honest—both personally honest and honest in their fidelity to the relevant legal regime and its ethics of public service. As a consequence, conflicts of interest and the appearance of impropriety—while considered improper in virtually all regimes—will be defined differently in the U.S. than in India, for example, just as office-holders’ sexual peccadillos generate quite different responses in the U.S. than in France.

A nation’s legal and social culture are products of a complex interplay between its history, religious and ethnic composition and legal regime, and the latter consists of considerably more than a nation’s founding documents and/or assumptions. Citizens of one country are unlikely to fully understand and appreciate the nuances of another nation’s culture without considerable effort and exposure, but that should not deter us from recognizing the fundamental challenge of comparative law and policy: Measurements of legitimacy and accountability are necessarily contextual, and public administrators focused upon the importation of “best practices” need to preface that exercise with a review of the nature of the practice at hand and the extent to which its success or failure requires an administrative context within which it makes sense.

Unfortunately, there is no simple test for appropriateness; each case must be assessed on its merits. What we can do, however, is highlight the issue and its significance.

All constitutions and legal systems rest upon considered normative judgments about the conduct of public affairs, judgments that have their roots in the particularities of that country’s history and experience. Trying to teach comparative law or public administration without constant reference to those foundational judgments is like trying to teach reading without reference to the alphabet.

 

References

Alberti, A., & Bertucci, G. (2006). Replicating innovations in governance. In Innovations in Governance and Public Administration: Replicating What Works (pp. 1-25). New York, NY: United Nations.

Bonser, Charles F., Eugene B. McGregor Jr., and Clinton V. Oster Jr. 1996. Policy Choices and Public Action. Upper Saddle River, N.J. Prentice-Hall.

Cortazar, Juan Carlos. 2006. “Learning from Best Practices in Public Management: A Methodological Approach” in Alberti & Bertucci (eds) Innovations in Governance and Public Administration: Replicating What Works. New York, NY: United Nations.

Cross, F. B. (2001). The error of positive rights. UCLA Law Review, 48, 857-924.

Frederickson, H. George. 1993. “Ethics and Public Administration: Some Assertions” in Ethics and Public Administration, H. George Frederickson (ed). Armonk, NY: M.E. Sharpe.

Gilmour, Robert S. and Jensen, Laura S. 1998. “Reinventing Government Accountability: Public Functions, Privatization, and the Meaning of ‘State Action.’” Public Administration Review

Hartmus, D. M. (2008). Teaching constitutional law to public administrators. Journal of Public Affairs Education, 14(3), 353-360. Retrieved from http://www.jstor.org/stable/40215822

Heady, F. (2001). Public administration: A comparative perspective. New York, NY: Marcel Dekker, Inc.

Kennedy, Sheila Suess. “Checks and Balances? Or L’etat, C’est Moi?” The Remnant Review Vol. 2, No. 1, 2006. pp. 65-78.

Kennedy, Sheila Suess. (2001) “When is Public Private? State Action, Privatization and Public-Private Partnerships.” George Mason Civil Rights Law Review. Vol. 11 #2, Spring. 203.

Kennedy, Sheila Suess and Wolfgang Bielefeld. (2006)  Charitable Choice at Work: Faith-Based Job Programs in the States. Georgetown University Press, Washington D.C.

Kennedy, Sheila and Schultz, David. 2011. American Public Service: Constitutional and Ethical Foundations. Jones & Bartlett Learning.

Kettl, Donald F. 2002. The Transformation of Governance: Public Administration for Twenty-First Century America (Interpreting American Politics). Johns Hopkins Press.

Lupu, Ira C. and Robert W. Tuttle. 2003. The State of the Law 2003: Developments in the Law Concerning Government Partnerships with Religious Organizations. Roundtable on Religion and Social Welfare Policy. Albany, NY: Rockerfeller Institution of Government.

Lupu, Ira C. and Robert W. Tuttle. 2004. The State of the Law 2004: Developments in the Law Concerning Government Partnerships with Religious Organizations. Roundtable on Religion and Social Welfare Policy. Albany, NY: Rockerfeller Institution of Government.

Lynn, Laurence E., Jr. 2001. “Social Services and the State: The Public Appropriation of Private Charity.” Social Service Review.

Lynn, L.E., Jr., Heinrich, C. J., & Hill, C. J. (2000). Studying governance and public management: Challenges and prospects. Journal of Public Administrations Research and Theory, 10(2), 233-262.

 

McGrath, C., Moss, D., & Harris, P. (2010). The evolving discipline of public affairs. Journal of Public Affairs, 10, 335-352. doi: 10.1002/pa.369

Metzger, Gillian E. 2003. “Privatization as Delegation.” Columbia Law Review 103: 1367-1502.

Pierre, J. (1995). Bureaucracy in the modern state: An introduction to comparative public administration. Northampton, MA: Edward Elgar Publishing Limited.

Peters, G. B., & Pierre, J. (1998). Governance without government? rethinking public administration. Journal of Public Administration Research & Theory, 8(2), 223-243.

Pollitt, Christopher (2011) accessed at http://blogs.worldbank.org/governance/30-years-of-public-management-reforms-has-there-been-a-pattern

Rohr, John. 1999.  Public Service, Ethics, and Constitutional Practice. University of Kansas Press.

Rosenbloom, David H., Carroll, James D. and Carroll, Jonathan D. (2000) Constitutional Competence for Public Managers: A Casebook. Wadsworth Publishing

Salamon, Lester M., ed. 2002. The Tools of Government: A Guide to the New Governance. New York: Oxford University Press.

Spicer, Michael. 1995. The Founders, the Constitution, and Public Administration: A conflict in worldviews. Georgetown University Press.

Taube, C. (2002). Baltic Diversity: Comparing Constitutions. Jurisprudencija30(22), 42-46.

 

 

 


[1] Sheila Suess Kennedy, Context Matters: Pedagogy and Comparative Public Administration, Croatian and Comparative Public Administration 161-172 (2013), available at http://en.iju.hr/ccpa/ccpa/downloads_files/06%20Kennedy.pdf

[2] Id.

[3] Charles F. Bonser et al., Policy Choices and Public Action (Prentice-Hall 1996).

 

[4] U.S. Const. art. I, § 2, cl. 15.

[5] U.S. Const. amend. I; See also Miller v. California, 413 U.S. 15 (1973).

[6] U.S. Const. amend. XIV, § 1.

[7] U.S. Const. amend. V.

[8] The Common Law and Civil Law Traditions, in The Robbins Collection (The University of California at Berkeley), available at http://www.law.berkeley.edu/library/robbins/pdf/CommonLawCivilLawTraditions.pdf

[9] Kennedy, supra note 1, at 166.

[10] See, for example, reactions to police actions when officers are perceived to have disregarded constitutional limits, or exceeded their authority.

[11] Footnote: a concern voiced by many Americans is that we are losing that common language.

[12] See generally Sheila Kennedy & David Schultz, American Public Service: Constitutional and Ethical Foundations (Jones & Bartlett Learning 2011); D. M. Hartmus, Teaching Constitutional Law to Public Administrators, 14 J. Pub. Aff. Educ. 353 (2008); Frank B. Cross, Article, The Error Positive Rights, 48 UCLA L. Rev 857, (2001); and Sheila Suess Kennedy & Wolfgang Bielefeld, Charitable Choice at Work: Faith-Based Job Programs in the States (Georgetown University Press 2006) [hereinafter Charitable Choice at Work].

[13] Cross, supra note 12.

[14] Although “privatization” literally means ceding government-run enterprises to the private sector, much as Margaret Thatcher did in England, most of these arrangements are more accurately described as “contracting out.” Sheila Suess Kennedy, When is Public Private? State Action, Privatization and Public-Private Partnerships, 11 Geo. Mason L. Rev. 203 (2001).

[15] See Charitable Choice at Work, supra note 12; Kennedy & Jensen 2005; Lester M. Salamon, The Tools of Government: A Guide to the New Governance, (Oxford University Press 2002); H. George Frederickson, Ethics and Public Administration: Some Assertions, in Ethics and Public Administration (H. George Frederickson ed., 1993); and Donald F. Kettl, The Transformation of Governance: Public Administration For Twenty-First Century America (Interpreting American Politics) (Johns Hopkins Press 2002).

[16] Gillian E. Metzger, Privatization as Delegation, 103 Columbia L. Rev. 1367-1502 (2003); See also Sheila Suess Kennedy, When is Public Private? State Action, Privatization and Public-Private Partnerships, 11 Geo. Mason L. Rev. 203 (2001); and Robert S. Gilmour & Laura S. Jensen, Reinventing Government Accountability: Public Functions, Privatization, and the Meaning of “State Action,” 58 Pub. Admin. Rev. 247 (1998).

[17] For a compendium of research on the various relationships between church and state in Europe, see International Consortium of Law and Religion Studies, http://www.iclars.org/

[18] See Murdock v. Pennsylvania, 319 U.S. 105 (1943).

[19] Charitable Choice at Work, supra note 12.

[20] Id. See also Ira C. Lupu & Robert W. Tuttle, The State of the Law 2003: Developments in the Law Concerning Government Partnerships with Religious Organizations, Roundtable on Religion and Social Welfare Policy, available at http://www.rockinst.org/pdf/faith-based_social_services/2003-12-the_state_of_the_law_2003_developments_in_the_law_concerning_government_partnerships_with_religious_organizations.pdf; Ira C. Lupu & Robert W. Tuttle, The State of the Law 2004: Developments in the Law Concerning Government Partnerships with Religious Organizations, Roundtable on Religion and Social Welfare Policy, available at http://www.rockinst.org/pdf/faith-based_social_services/2004-12-the_state_of_the_law_2004_partnerships_between_government_and_faith-based_organizations.pdf; and Laurence E. Lynn, Jr., Social Services and the State: The Public Appropriation of Private Charity, Social Service Review (2001).

[21] G.B. Peters & J. Pierre, Governance without Government? Rethinking Public Administration, Journal of Public Administrations Research and Theory 223-243 (1998).

[22] For an illustrative discussion of the infirmities of such measures, see “Latin American Anti-Corruption Laws Ineffective” at http://www.latin-corporate.com/2012/11/latin-american-anti-corruption-laws-ineffective/

[23] April Ejka-Ekins, Teaching Ethics in Public Administration, 48 Pub. Admin. Rev. 885-891 (1998); See H. George Frederickson, Public Ethics and the New Managerialism: An axiomatic Theory, in Ethics and Public Management (H. George Frederickson ed., 2005); Metzger, supra note 13; Peter W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry (Cornell University Press 2003); Steven R. Smith & Michael Lipsky, Nonprofit for Hire: The Welfare State in the Age of Contracting (Harvard University Press 1993); and Lisa A. Zanetta & Guy B. Adams, In Service of the Leviathan: Democracy, Ethics, and the Potential for Administrative Evil in the New Public Management, 22 Administrative Theory and Practice 534-554 (2000).

[24] John Rohr, Public Service, Ethics, and Constitutional Practice (University of Kansas Press 1999); Rosenbloom Carroll & Caroll 2000; and Paul C. Light, Preface: An Audacious Task, 71 Pub. Admin. Rev. S5-S6 (2011).

[25] G.B. Adams & D.L. Balfour, Unmasking Administrative Evil (Sage Publications 1998).

[26] Kennedy & Schultz, supra note 12, at 74-75.

[27] Michael Spicer, The Founders, the Constitution, and Public Administration: A Conflict in Worldviews (Georgetown University Press 1995).

[28] Kennedy & Schultz, supra note 12.

[29] John T. Scholz, Voluntary Compliance and Regulatory Enforcement, 6 Law and Policy 385-404 (1984); Organization for Economic Cooperation and Compliance (OECC), Reducing the Risk of Policy Failure: Challenges for Regulatory Compliance (2000), available at http://www.oecc.org/dataoecd/23/37/46466287.pdf.