Human Rights, Equal Rights, Political Rights

Last night, I spoke at the annual dinner of the Columbus, Indiana, Human Rights Commission. Here’s what I said (sorry for the length…):

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Over the past several years, American political debate has become steadily less civil. Partisan passions have overwhelmed sober analysis, and the Internet allows people to choose their news (and increasingly, their preferred realities). During the recent election cycle, it was clear that in many cases, Americans were talking past each other rather engaging with opponents through thoughtful public discourse.

I am firmly convinced that an enormous amount of this rancor and partisan nastiness is a result of what I call civic illiteracy—widespread ignorance of the historical foundations and basic premises of American government. I don’t want to belabor this lack of civic literacy, but I do want to share some statistics that should concern all of us. A few years ago, the Oklahoma Council of Public Affairs asked high school seniors in that state some simple questions about government. Let me share a few of those questions and the percentages of students who answered them correctly:

• What is the supreme law of the land? 28%
• What do we call the first ten amendments to the Constitution? 26%
• What are the two parts of the U.S. Congress? 27%
• Who wrote the Declaration of Independence? 14%
• What are the two major political parties in the United States? 43%
• We elect a U.S. senator for how many years? 11%
• Who was the first President of the United States? 23%

Only 36 percent of Americans can name the three branches of government. Fewer than half of 12th graders can describe federalism. Only 35% can identify “We the People” as the first three words of the Constitution. Only five percent of high school seniors can identify or explain checks on presidential power. (There’s a lot more depressing research on IUPUI’s Center for Civic Literacy website.)

Why does it matter? Well, for one thing, productive civic engagement is based on an accurate understanding of the “rules of the game,” especially but not exclusively the Constitution and Bill of Rights– the documents that frame policy choices in the American system.

Understanding the history and philosophy that shaped what I call “the American Idea” is critically important for understanding the roots of our national approach to human rights.

The American Constitution was a product of the 18^th Century cultural, intellectual and philosophical movement known as the Enlightenment. Most of us know that the Enlightenment gave us science, empirical inquiry, and the “natural rights” and “social contract” theories of government, but what is less appreciated is that the Enlightenment also changed the way we understand and define human rights and individual liberty.

 We are taught in school that the Puritans and Pilgrims who settled the New World came to America for religious liberty; what we aren’t generally taught is how they defined liberty. Puritans saw liberty as “freedom to do the right thing”—freedom to worship and obey the right God in the true church, and their right to use the power of government to ensure that their neighbors toed the same line. The Founders who crafted our constitution some 150 years later were products of an intervening paradigm change brought about by the Enlightenment and its dramatically different definition of liberty.

America’s constitutional system is based on an Enlightenment concept we call “negative liberty.” The Founders believed that our fundamental rights are not given to us by government; instead, they believed that rights are “natural,” meaning that we are entitled to certain rights simply by virtue of being human (thus the term “human rights”) and that government has an obligation to respect and protect those inborn, inalienable rights.

Contrary to popular belief, the Bill of Rights does not grant us rights—it protects the rights to which we are entitled by virtue of being human against infringement by an overzealous government. The American Bill of Rights is essentially a list of things that government is forbidden to do. For example, the state cannot dictate our religious or political beliefs, search us without probable cause, or censor our expression—and government is forbidden from doing these things even when popular majorities favor such actions. 

In our system, those constraints don’t apply to private, non-governmental actors. As I used to tell my kids, the government can’t control what you read, but your mother can. Public school officials can’t tell you to pray, but private or parochial school officials can. If government isn’t involved, neither is the Constitution. Private, non-governmental actors are subject to other laws, like civil rights laws, but since the Bill of Rights only restrains what government can do, only government can violate it. I’m constantly amazed by how many Americans don’t understand that.

Unlike the liberties protected against government infringement by the Bill of Rights, civil rights laws represent our somewhat belated recognition that if we care about human rights, just preventing government from discriminating isn’t enough. If private employers can refuse to hire African-Americans or women, if landlords can refuse to rent units in multifamily buildings to LGBTQ folks, if restaurants can refuse to serve Jews or Muslims, then the broader society is not respecting the human rights of those citizens and we aren’t fulfilling the obligations of the social contract that was another major contribution of Enlightenment philosophy.

The Enlightenment concept of human rights and John Locke’s theory of a social contract between citizens and their government challenged longtime assumptions about the divine right of kings. Gradually, people came to be seen as citizens, rather than subjects. The new concept of human rights also helped to undermine the once-common practice of assigning social status on the basis of group identity.

The once-radical idea that each of us is born with the same claim to human rights has other consequences. For one thing, it means that governments have to treat their citizens as individuals, not as members of a group. America was the first country to base its laws upon a person’s civic behavior, not gender, race, religion or other identity or affiliation. So long as we obey the laws, pay our taxes, and generally conduct ourselves in a way that doesn’t endanger or disadvantage others, we are all entitled to full civic equality, no matter what our race, religion, gender or other identity. When our country has lived up to that guarantee of equal civic rights, we have unleashed the productivity of previously marginalized groups and contributed significantly to American prosperity. And I think it is fair to say that—despite setbacks, and despite the stubborn persistence of racial resentments, religious intolerance and misogyny, we have made substantial progress toward a culture that acknowledges the equal humanity of the people who make up our diverse nation. So on that scale, good for us!

In addition to civic equality, however, respect for human rights also requires democratic equality—an equal right to participate in self-government. We now recognize—or at least give lip service to—the proposition that every citizen’s vote should count, but on this dimension of human rights, we not only aren’t making progress, we’re regressing, as anyone who follows the news can attest.

One element of civic literacy that gets short shrift even among educators is the immense influence of systems in a society—an appreciation of the way in which institutions and conventions and laws shape our understanding of our environments, and obscure our recognition of social problems. Right now, longstanding practices are obscuring the degree to which American democracy is becoming steadily less democratic—and the extent to which we are denying citizens the human right to participate meaningfully in self-government.

Vote suppression has been on the rise, especially but not exclusively in Southern states that have not been required to get preclearance from the Justice Department since the Supreme Court gutted the Voting Rights Act. Thanks to population shifts, the current operation of the Electoral College gives disproportionate weight to the votes of white rural voters, and discounts the franchise of urban Americans. Ever since Buckley v. Valeo, which equated money with speech, and especially since Citizens United, which essentially held that corporations are people, money spent by special interests has overwhelmed the votes and opinions of average citizens.

The most pernicious erosion of “one person, one vote” however, has come as a consequence of gerrymandering, or partisan redistricting. There are no “good guys” in this story—gerrymandering is a crime of opportunity, and both political parties are guilty.

Those of you in this room know the drill; after each census, state governments redraw state and federal district lines to reflect population changes. The party in control of the state legislature at the time controls the redistricting process, and they draw districts that maximize their own electoral prospects and minimize those of the opposing party. Partisan redistricting goes all the way back to Elbridge Gerry, who gave Gerrymandering its name—and he signed the Declaration of Independence—but the process became far more sophisticated and precise with the advent of computers, leading to a situation which has been aptly described as legislators choosing their voters, rather than the other way around.

Academic researchers and political reformers alike blame gerrymandering for electoral non-competitiveness and political polarization. A 2008 book co-authored by Republican Norman Orenstein and Democrat Thomas Mann argued that the decline in competition fostered by gerrymandering has entrenched partisan behavior and diminished incentives for compromise and bipartisanship.

Mann and Orenstein have written extensively about redistricting, and about “packing” (creating districts with supermajorities of the opposing party) “cracking” (distributing members of the opposing party among several districts to ensure that they don’t have a majority in any of them) and “tacking” (expanding the boundaries of a district to include a desirable group from a neighboring district). They have tied redistricting to the advantages of incumbency, and they have also pointed out that the reliance by House candidates upon maps drawn by state-level politicians has reinforced what they call “partisan rigidity”– the increasing nationalization of the political parties.

Interestingly, one study they cited investigated whether representatives elected from districts drawn by independent commissions become less partisan. Contrary to their initial expectations, the researchers found that politically independent redistricting did reduce partisanship, and in statistically significant ways, even when the same party retained control.

Perhaps the most pernicious effect of gerrymandering is the proliferation of safe seats. Safe districts breed voter apathy and reduce political participation. After all, why should citizens get involved if the result is foreordained? Why donate to a sure loser? (For that matter, unless you are trying to buy political influence for some reason, why donate to a sure winner?) What is the incentive to volunteer or vote when it obviously won’t matter? It isn’t only voters who lack incentives for participation, either: it becomes increasingly difficult for the “sure loser” party to recruit credible candidates. As a result, in many of these races, voters are left with no genuine or meaningful choice.  Ironically, the anemic voter turnout that gerrymandering produces leads to handwringing about citizen apathy, usually characterized as a civic or moral deficiency. But voter apathy may instead be a highly rational response to noncompetitive politics. People save their efforts for places where those efforts count, and thanks to the increasing lack of competitiveness in our electoral system, those places often do not include the voting booth.

If the ability to participate meaningfully in self-governance is a human right, partisan game-playing that makes elections meaningless should be seen as an assault on human rights. And increasingly, it is.

Safe districts do more than disenfranchise voters; they are the single greatest driver of governmental dysfunction. In safe districts, the only way to oppose an incumbent is in the primary–and that almost always means that the challenge will come from the “flank” or extreme. When the primary is, in effect, the general election, the battle takes place among the party faithful, who also tend to be the most ideological voters. So Republican incumbents will be challenged from the Right and Democratic incumbents will be attacked from the Left. Even where those challenges fail, they create a powerful incentive for incumbents to “toe the line”— to placate the most rigid elements of their respective parties. Instead of the system working as intended, with both parties nominating candidates they think will be most likely to appeal to the broader constituency, the system produces nominees who represent the most extreme voters on each side of the philosophical divide.

The consequence of this ever-more-precise state-level and Congressional district gerrymandering has been a growing philosophical gap between the parties, each with an empowered, rigidly ideological base intent on punishing any deviation from orthodoxy and/or any hint of compromise.

A study done by researchers at the University of Chicago concluded that Indiana is the fifth most gerrymandered state in the country. We had a chance to change that system in the just-concluded legislative session; Representative Jerry Torr, a good government Republican, introduced a measure that was co-sponsored by Brian Bosma, the Republican Speaker of the House. Thanks to efforts by the League of Women Voters and Common Cause, the public came out in droves from all over Indiana in a massive show of support for the bill; however, the chair of the Elections Committee, Milo Smith, refused to allow his committee even to vote on it, and killed it.

In the United States, we tend to think of Human Rights in terms of legal rights: equality before the law, an equal right to participate in democratic governance and to have our preferences count at the ballot box. But most of us recognize the existence of non-legal challenges to full realization of equal human rights. Poverty is one; a citizen working two or three jobs just to put food on the table doesn’t have much time for civic engagement, and in Indiana, that’s a lot of people.

In 2014, the United Ways of Indiana took a hard look at “Alice.” Alice is an acronym for Asset Limited, Income Constrained, Employed; it applies to households with income above the federal poverty level, but below the actual, basic cost of living. The report was eye-opening.

• More than one in three Hoosier households cannot afford the basics of housing, food, health care and transportation, despite working 40 or more hours a week.
• In Indiana, 37% of households live below the Alice threshold, with some 14% below the poverty level and another 23% above poverty but below the cost of living.
• These families and individuals have jobs, and most do not qualify for social services or support.
• The jobs they are filling are critically important to Hoosier communities. These are our child care workers, laborers, movers, home health aides, heavy truck drivers, store clerks, repair workers and office assistants—yet they are unsure if they’ll be able to put dinner on the table each night.

ALICE families don’t have time or energy for civic participation or political engagement through which to exercise their human and civil rights. Human Rights Commissions lack the jurisdiction to address ALICE inequities, but we all need to recognize that people preoccupied by a daily struggle for subsistence are unable to participate fully in the formation and conduct of civic society.

How can our civic institutions—including local Human Rights Commissions– help guarantee citizens’ human rights?

Human Rights Commissions can act when employers or owners of public accommodations violate local ordinances. Indiana also has a civil rights law, although it currently omits protection against discrimination based upon sexual orientation and gender identity, and the federal government has several agencies charged with enforcement of civil rights—although recent statements from Administration officials have called their commitment to doing so into question. Local to federal, these agencies are important, and the work they do is critical to social stability and fundamental fairness.

Critical as they are, there are rights violations these agencies cannot address or solve. Reversing the erosion of America’s democratic norms, turning back the assault on equal access to the ballot box, and fixing the gerrymandering that makes too many votes meaningless will require political action and persistent civic engagement by an informed, civically-literate citizenry. We all have a stake in improving civic knowledge and encouraging informed participation, because safeguarding human rights ultimately depends upon the existence of a civically-informed electorate.

It won’t be easy, but We the People can do this.