Author Archives: Sheila

Returning To My Civics Preoccupation

A week or so ago, I participated in a panel discussion hosted by the Indiana Philanthropic Association. I’m sharing my remarks, which regular readers will undoubtedly find repetitive. (Yes, I’m riding that horse again…)

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Over the past several years, American political debate has become steadily less civil. Partisanship has overwhelmed sober analysis, and the Internet allows people to choose their news (and increasingly, their preferred realities). 

I’m here today to suggest that an enormous amount of this rancor is a result of civic illiteracy—widespread ignorance of the historical foundations and basic premises of American government.

It matters. 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 and constrain policy choices in the American system. 

The American Constitution was a product of the Enlightenment, the 18th Century philosophical movement that gave us science, empirical inquiry, and the “natural rights” and “social contract” theories of government. The Enlightenment did something else: it  changed the definition of individual liberty.  

We’re taught in school that the Puritans and Pilgrims who settled the New World came to America for religious liberty, and that’s true; what we aren’t generally taught is how they defined that 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 make their neighbors did the same. The Enlightenment ushered in a dramatically different definition of liberty. It begins with the belief that fundamental rights aren’t gifts from government; instead, humans are entitled to certain rights just because we’re human– and government has an obligation to respect and protect those inborn, inalienable rights. 

The Bill of Rights wasn’t conceived as a grant of rights—it was intended to protect our inborn rights from an overzealous government. It is essentially a list of things that government is forbidden to do. Government cannot dictate our religious or political beliefs, search us without probable cause, or censor our expression, for example—and it can’t do those things even when popular majorities want it to do so. The Bill of Rights only restrains government; it wasn’t until 1964 that the United States began to pass laws prohibiting discriminatory behavior by private-sector actors. 

I’m constantly amazed by how many Americans don’t understand the difference between constitutional liberties and civil rights, or the anti-majoritarian operation of the Bill of Rights, or– as we are seeing during this pandemic—the legitimate limits of our individual liberties. 

Governments create what lawyers call “rules of general application” to protect the common good. Public officials can properly and constitutionally establish speed limits, ban smoking in public places—even require us to wear clothes when we’re out in public. As Justice Scalia wrote in Employment Division versus Smith, back in 1990, so long as these and hundreds of other laws are generally applicable—so long as they aren’t efforts to unfairly target specific groups—they don’t violate the Constitution. 

Here’s the thing: the U.S. Constitution as amended and construed over the years guarantees citizens an equal right to participate in democratic governance and to have our preferences count at the ballot box. Those guarantees are meaningless in the absence of sustained civic engagement by an informed, civically-literate citizenry. Let me say that a different way: Protection of our constitutional rights ultimately depends upon the existence of a civically-informed electorate. That’s why efforts like Bill Moreau’s Indiana Citizen and the Bar Foundation’s sponsorship of “We the People” are so important.

The consequences of living in a system you don’t understand aren’t just negative for the health and stability of America’s democratic institutions, but for individuals. People who don’t know how government works are at a decided disadvantage when they need to negotiate the system. (Try taking your zoning problem to your Congressman.) Civic ignorance also impedes the ability to cast an informed vote. Especially at times like these—when official actions trigger massive protests– citizens need to know where actual responsibility resides. 

Today, we are all seeing, in real time, the multiple ways in which civic ignorance harms the nation. What we call “political culture” is the most toxic it has been in my lifetime. (And in case you didn’t notice, I’m old.) There are lots of theories about how we got here—from partisan gerrymandering and residential sorting to increasing tribalism to fear generated by rapid social and technological change. But our current inability to engage in productive civic conversation is also an outgrowth of declining trust in our social and political institutions—primarily, although certainly not exclusively, government. Restoring that trust is critically important —but in order to trust government, we have to understand what it is and isn’t supposed to do. We have to understand how the people we elect are supposed to behave. We need a common understanding of what our Constitutional system requires. 

Here’s an analogy: if I say a piece of furniture is a table, and you say no, it’s a chair, we aren’t going to have a very productive discussion about its use.

Now, let me be clear: there are plenty of gray areas in constitutional law—plenty of situations where informed people of good will can come to different conclusions about what the Constitution requires. But by and large, those aren’t the things Americans are arguing about.

I study how Constitutional values apply within our increasingly diverse culture, the ways in which constitutional principles connect people with different backgrounds and beliefs and make us all Americans.  That research has convinced me that widespread civic literacy—by which I mean an accurate, basic understanding of America’s history and philosophy—is absolutely critical to our continued ability to talk to each other, build community and function as Americans, rather than as members of rival tribes competing for power and advantage. Unfortunately, the data shows civic knowledge is in very short supply.

Let me share an illustrative anecdote: When I teach Law and Public Policy, I begin with the constitutional architecture, how that framework limits what laws we can pass, and what legal scholars mean by “original intent.” I usually ask students something like “What do you suppose James Madison thought about porn on the internet?” Usually, they’ll laugh and then we discuss how the Founders’ beliefs about free expression should guide today’s courts when they are faced with efforts to censor media platforms the founders could never have imagined. But a few years ago, when I asked a college junior that question, she looked at me blankly and asked “Who’s James Madison?”

It’s tempting to consider that student an outlier–but let me share with you just a tiny fraction of available research. The Annenberg Center conducts annual surveys measuring what the public knows about the Constitution. Two years ago, 37 percent couldn’t name a single one of the rights guaranteed under the First Amendment, and only 26 percent could name the three branches of government. 

Fewer than half of 12th graders can define federalism. Only 35% of teenagers recognize “We the People” as the first three words of the Constitution. It goes on and on.

And it matters, because Constitutions address the most basic question of any society—how should people live together? What should the rules be, how should they be made, who should get to make them and how should they be enforced? In America, citizenship wasn’t based upon geography, ethnicity or conquest, but on an Idea, a theory of social organization, what Enlightenment philosopher John Locke called a “social contract” and journalist Todd Gitlin has called a “covenant.” The most revolutionary element of the American Idea was that it based citizenship on behavior rather than identity—on how you act rather than who you are. As the ubiquity of cellphone cameras has demonstrated, we’re still struggling with the application of that principle.

The founders of this nation didn’t all speak with one voice, or embrace a single worldview. All of our governing documents were the result of passionate argument, negotiation and eventual compromise. And as remarkable as the founders’ achievement was, we all recognize that the system they established was far from perfect. The great debates between the Federalists and Anti-Federalists were about the proper role of government. We’re still having that debate. The overarching issue is where to strike the balance between government power and individual liberty.

The issue, in other words, is: who decides? Who decides what book you read, what prayer you say, who you marry, whether you procreate, how you use your property? Who decides when the state may justifiably deprive you of liberty—or tell you to wear a mask? 

How would the conversations we are having about “shelter in place” orders and wearing masks change, if parties to those conversations all understood how our Constitution approaches both the rights of individuals and the duties of government?

In our Constitutional system, individuals have the right to make their own political and moral decisions, even when lots of other people believe those decisions are wrong. What they don’t have is the right to harm or endanger others, or the right to deny an equal liberty to people with whom they disagree. Drawing those lines can be difficult; it’s impossible when citizens don’t understand the basic “rules of the game.” We can—and do—argue about what constitutes harm sufficient to justify government intervention in personal decision-making, but what we can’t do is argue that “Freedom is for me, but not for you.” 

When people don’t understand when government can properly impose rules and when it can’t, when they don’t understand the most basic premises of our legal system, our public discourse is impoverished and ultimately unproductive. We’re back to arguing whether a piece of furniture is a table or a chair.

Like all human enterprises, Governments will have their ups and downs. In the United States, the consequences of “down” periods are potentially more serious than in more homogeneous nations, precisely because this is a country based upon an Idea. Americans do not share a single ethnicity, religion or race. Culture warriors to the contrary, we never have.We don’t share a comprehensive worldview. What we do share is a set of values, a set of democratic institutions and cultural norms, a legal system that emphasizes the importance of fair processes–and when we don’t trust that our elected officials are obeying those norms, when we suspect that they are distorting and undermining the underlying mechanics of democratic decision-making, our democracy can’t function properly. 

There will always be disagreements over what government should and shouldn’t do. But there are different kinds of discord, and different kinds of power struggles, and they aren’t all equal. When we argue from within a common understanding of what I call the constitutional culture—when we argue about the proper application of the American Idea to new situations or to previously marginalized populations—we strengthen our bonds, and learn how to bridge our differences. When widespread civic ignorance allows dishonest partisans to rewrite our history, pervert our basic institutions, and ignore the rule of law, we not only undermine the Constitution and the American Idea, we erode the trust needed to make democratic institutions work.

Ultimately, that’s why civic ignorance matters. 

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Remember The Kerner Report?

In 1967, President Lyndon Johnson constituted the Kerner Commission, and asked its members to identify and analyze the social forces and dysfunctions that had triggered a national epidemic of inner-city riots in the 1960s.

Their findings weren’t what Johnson had anticipated or wanted.

Unhappy with the findings and the flaws they revealed in his “Great Society” agenda, Johnson ultimately distanced himself from the Kerner Report, even refusing to sign thank you cards to the commissioners.

The most famous paragraph, of course, was the one that warned “Our nation is moving toward two societies, one black, one white—separate and unequal.”

The report was an indictment of white America:

What white Americans have never fully understood but what the Negro can never forget — is that white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it.

As an article from the Smithsonian recently put it, the Commission’s inquiry identified those “white institutions”: bad policing practices, a flawed justice system, unscrupulous consumer credit practices, poor or inadequate housing, high unemployment, voter suppression, and other “culturally embedded forms of racial discrimination” that had converged and triggered violent upheavals, primarily in African-American neighborhoods of American cities.

And as black unrest arose, inadequately trained police officers and National Guard troops entered affected neighborhoods, often worsening the violence.

Rereading the report, it is stunning to realize how much hasn’t changed, especially the escalation of violence caused by policing practices. 

Far too many of the “institutions” the Kerner Report identified still persist, half a century later. Thanks to cell phone cameras, America has almost daily evidence of bad policing. A robust academic criminal justice literature documents the flaws in our justice system. Redlining and other discriminatory banking practices continue, although somewhat abated. Housing issues persist. And vote suppression has become more sophisticated and–if anything–more widespread.

That said, there are some striking and hopeful differences in the eruptions we are currently experiencing. For one thing, the crowds on the streets are multi-cultural and largely peaceful. For another, polling reflects widespread public support for Black Lives Matter and for measures to (finally) address the issues first identified by the Kerner Commission.

Also hopeful (yes, I know–hope “springs eternal”) is growing recognition of the structural nature of racism. The Kerner Report was prescient in its use of the term “institutions.”

Racism isn’t just Neo-Nazi rioters chanting “they shall not replace us,”  or the KKK burning a cross, or the refusal of a business to hire or serve “those people.” It isn’t confined to overt bad behaviors or bigoted personal attitudes. 

Racism is implicated in our acceptance of mass incarceration, our failure to notice, let alone protest, social stereotypes, the widespread trust in– and easy acceptance of– official versions of police interactions that turned violent or deadly. It’s reflected in acceptance of the way we  finance public education–methods that ensure that affluent areas will have well-resourced schools while schools in poorer areas will struggle. It’s the reason for the persistent animus and political pushback against efforts to strengthen the social safety net–the reason Americans sneer at poor people, especially poor people of color, who accept “welfare,” while applauding the real recipients of welfare– the “captains of industry” who lobby for and profit from obscenely large subsidies.

In a particularly pertinent observation, the Kerner Report deplored the practice of arming police officers with more deadly weapons. Instead, it recommended “a policy which combines ghetto enrichment with programs designed to encourage integration of substantial numbers of Negroes into the society outside the ghetto.” 

It wasn’t just President Johnson who rejected the findings. Overall white response to the Kerner Report was hostile. According to the Smithsonian article,

White response to the Kerner Commission helped to lay the foundation for the law-and-order campaign that elected Richard Nixon to the presidency later that year. Instead of considering the full weight of white prejudice, Americans endorsed rhetoric that called for arming police officers like soldiers and cracking down on crime in inner cities.

Fifty years later, white America cannot afford to make the same mistake.

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Predicting The Future

It’s impossible to pick up a magazine or log into a blog or website without coming across an article predicting how dramatically the Coronavirus pandemic will change the world.

As Steven Pearlstein recently wrote in the Washington Post,  self-appointed soothsayers are predicting the demise of globalization, the triumph of large enterprises over small business, and dramatic lifestyle changes brought about by fear of dangerous microbes:
everything from diminished travel, as people “think twice about boarding an airplane, checking into a hotel, attending a concert or taking their kids to Disney World” to the emptying out of expensive cities, since so many of us–and our employers– have discovered that we can work just as well from home.

Time to take a deep breath.

I certainly don’t have a crystal ball–nor do I claim any particular expertise in “futurism,” but these predictions strike me as fanciful at best and absurd at worst. Just look at how desperately people are returning to their previous behaviors, even in the face of warnings that it is dangerously early for such return. Humans are creatures of habit.

We are dependent upon those international supply chains. Our families are scattered around the globe, and we still want to visit them. Often, on airplanes. Etc.  Although there is likely to be movement toward remote work, that movement has been underway for quite some time, and it is necessarily limited–not just because many jobs require our physical presence, but because so many of us see real value in face-to-face interactions with our coworkers.

All of this is not to say that change is not underway. It is–and much of the social unrest we are seeing is attributable to it. The pandemic may accelerate some part of the broader social changes that were occurring when it hit–or it may retard some–but the real shifts have been underway for years, fostered by improved transportation and communication technologies and demographics.

I suspect that changes in the wake of the video of George Floyd’s murder by a police officer will turn out to be far more consequential than those triggered by the pandemic.

Last year, Gallup documented major social changes that have occurred “since Woodstock”: religious attachment has waned, support for marijuana legalization has grown, interracial marriage–and its acceptance– has increased, a majority of Americans now support reproductive rights, voters are far more willing to elect women or people of color, family sizes have shrunk, and given the option, most women now prefer to enter the workforce to staying home. And of course– to belabor the obvious–attitudes about premarital sex and LGBTQ citizens have dramatically changed.

There is a (hotly disputed) academic theory that posits cultural “swings” every forty or fifty years. Whatever the accuracy of that theory, anyone even slightly conversant with social history can recognize how the disruptions of one era lay a foundation for those of the next, and how technological innovations affect those changes (usually, in unanticipated ways).

My absolutely non-crystal-ball conclusion is that humans are approaching one of our inevitable turning points. (This one is made far more dangerous by climate change, and by the sheer number of humans on our planet.) One aspect of our new reality is already visible: thanks to demographic change and significantly increased urbanization, it has become far more difficult for people to live in geographic–as opposed to ideological–bubbles, far more difficult for most folks to ignore the reality of human diversity and the complexities of our daily social interactions.

At times like these, when social transformation seems overwhelming, people everywhere fall into two broad (very broad) categories–those who accept the new realities and those who reject them. Those who adapt–or try to– and those who panic.

In the United States, the MAGA folks, the alt-right provocateurs, the fundamentalist preachers, the Fox-News audience members and their ilk are clinging to a world that no longer exists, insisting that we can bring back a time when everyone knew their place– and the straight white Christian guy’s place was on top.

The pandemic will impel some changes around the edges, but the real transformation will be produced by people who recognize the necessity of building a different, fairer world. I’m betting that there are enough of those people, that they outnumber and certainly out-think the reactionaries, and that the disorientation and unrest we are now experiencing will ultimately lead to a vastly improved social contract.

I sure hope I win that bet….

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Unmanly: A Perceptive Analysis

The Atlantic continues to publish some of the most thoughtful articles to be found anywhere. One recent essay was by Tom Nichols, whose book The Death of Expertise I found illuminating; in the article, Nichols pointed to the disconnect between the historic definition of masculinity held by Trump’s working-class base and the President’s daily behaviors.

Here’s his thesis/question:

Why do working-class white men—the most reliable component of Donald Trump’s base—support someone who is, by their own standards, the least masculine man ever to hold the modern presidency? The question is not whether Trump fails to meet some archaic or idealized version of masculinity….Rather, the question is why so many of Trump’s working-class white male voters refuse to hold Trump to their own standards of masculinity—why they support a man who behaves more like a little boy.

Nichols identifies himself as a product of the working class, and points to the values he grew up with: “a culture that looks down upon lying, cheating, and bragging, especially about sex or courage,” admiration for “understated swagger, rock-solid confidence, and quiet reserve.” The men Nichols grew up with believed strongly that a man’s word is his bond, and that a handshake means something.

These qualities and values–it is almost too obvious to note–are not elements of Trump’s persona.

And yet, many of these same men expect none of those characteristics from Trump, who is a vain, cowardly, lying, vulgar, jabbering blowhard. Put another way, as a question I have asked many of the men I know: Is Trump a man your father and grandfather would have respected?

Nichols goes through the various attributes of masculinity purportedly valued by working class men, and points to the obvious: Trump has none of them. His ultimate conclusion is that Trump’s lack of masculinity is excused because he’s not seen as a man. He is a boy.

It should not be a surprise then, that Trump is a hero to a culture in which so many men are already trapped in perpetual adolescence. And especially for men who feel like life might have passed them by, whose fondest memories are rooted somewhere in their own personal Wonder Years from elementary school until high-school graduation, Trump is a walking permission slip to shrug off the responsibilities of manhood.

The appeal to indulge in such hypocrisy must be enormous. Cheat on your wife? No problem. You can trade her in for a hot foreign model 20 years younger. Is being a father to your children too onerous a burden on your schedule? Let the mothers raise them. Money troubles? Everyone has them; just tell your father to write you another check. Upset that your town or your workplace has become more diverse? Get it off your chest: Rail about women and Mexicans and African Americans at will and dare anyone to contradict you….

In the end, Trump will continue to act like a little boy, and his base, the voters who will stay with him to the end, will excuse him. When a grown man brags about being brave, it is unmanly and distasteful; when a little boy pulls out a cardboard sword and ties a towel around his neck like a cape, it’s endearing. When a rich and powerful old man whines about how unfairly he is being treated, we scowl and judge; when a little boy snuffles in his tears and says that he was bullied—treated worse than Abraham Lincoln, even—we comfort.

Donald Trump is unmanly because he has never chosen to become a man. He has weathered few trials that create an adult of any kind. He is, instead, working-class America’s dysfunctional son, and his supporters, male and female alike, have become the worried parent explaining what a good boy he is to terrorized teachers even while he continues to set fires in the hallway right outside.

When you think about it, this is a pretty stunning indictment of the men who make up Trump’s base. (Nichols readily admits it doesn’t explain the working class women who support Trump, but also notes that their numbers are shrinking.) It joins other efforts to explain what so many of us consider otherwise inexplicable–the devotion of distressing numbers of Americans to a man who constantly shows us that he is an inadequate and thoroughly horrible human being.

The bottom line: Whether Trump’s base is essentially racist or adolescent or both, it isn’t going anywhere. The rest of us have to work to ensure that adult, non-racist Americans turn out massively in November–and that America holds a fair and orderly election that month.

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About Those Statues…

In the last couple of days, I’ve gotten two messages from friends in different (Northern) states who are troubled about the efforts to remove statues of Civil War figures. 

Here’s the first:

I am in a quandary. I am an educated, white, privileged male.  I can understand, but not empathize with, the thoughts of those who wish to see the statues of Confederate officers removed.  As an English major, I also see the statues as art.  So what is next? Paintings, then books? Are the Holocaust museum displays too emotional, the paintings at the WWII museum too one-sided, the ceiling of the Sistine Chapel acceptably historical?  And who would decide?  

Shakespeare said a rose by any other name would smell as sweet.  Is Fort Bragg any less offensive to humanity than Fort Sherman?  

I don’t want to get too deep in the weeds with the idea, but I do see the opportunity for a slippery slope.  Maybe it’s just my white, privileged male quandary? 
I look forward to your thoughts.

Here’s the second:

I’ve been thinking a lot about the new wave of dismantling Confederate statues, not displaying the Confederate flag, dropping Gone with the Wind from Netflix, Lady Antebellum changing their name to Lady A, etc. I agree with a lot of this, but I wonder if we’re going too far? Where do we draw the line? I noted on Facebook that Washington and Jefferson were slave owners. Should we tear down their monuments while we’re at it? Is it rewriting history? I would love for you to write a blog about this and help me figure it out!

Both of these individuals are progressive, thoughtful and public-spirited. If they are uncomfortable with removing these monuments and renaming bases, I’m sure many other people are equally conflicted.

Here’s my “take” on the issue:

First of all, I see a profound difference between statues and monuments that honor historical figures, and museum and other displays that educate about those figures. The placement of statues in public places pretty clearly falls into the first category. (In a couple of instances, Confederate statues have been moved to museums rather than destroyed–an implicit recognition of the difference, and in my view, an entirely satisfactory resolution.) With respect to the names of military posts, same thing—we don’t name streets, buildings, etc. for “bad guys,” we reserve naming rights for figures we admire.

Germany doesn’t have statues of Hitler, but German history certainly hasn’t been lost.

The men who fought for the South in the American Civil War were defending slavery– an indefensible system–and they were traitors to their country. We should remember them, but we certainly shouldn’t honor them. (There’s also the fact that most of these monuments were erected long after the war, to signal white resistance to the civil rights movement.)

So I think removing Civil War statues is a relatively easy call. But I understand the concern about “slippery slopes.”

None of the historical figures we admire were perfect people. As the second message notes, Washington and Jefferson (among others) were slaveowners. But we don’t honor them for slave-holding; we honor them for their willingness to risk their “lives, fortunes and sacred honor” to bring a new nation into existence, and for their crafting of the Constitution and Bill of Rights.  

If being a flawed human being was reason to ignore significant contributions made by historical figures, there wouldn’t be many statues. (Maybe Mother Teresa, although who knows? There might be something in her past….)

Before we either defend or dismantle a monument, I think we need to ask why it exists, and what it is that we are honoring.

It’s pretty clear that the only reason there are statues of Robert E. Lee and other Civil War figures is because they were central figures in an uprising–a rebellion– against our country. We are honoring their decision to be traitors, and implicitly sending a message that although they lost, their “cause” was honorable.

In the case of figures like Jefferson, Madison, Washington, et al, we are honoring their undisputed service and the importance of their contributions–and those contributions are clearly worthy of honor.

Anyway–that’s my take on the issue. I welcome the perspectives of my readers.

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