Public Policy and Governance – Page 97

Texas Is About Much More Than Abortion

The angry blowback against Texas’ assault on reproductive rights is eminently justifiable–but as I explained previously, most of the criticism of the law misses the even more ominous threat it poses.

In her newsletter last Saturday, Heather Cox Richardson brought a historian’s perspective to that more ominous reality. She traced the nation’s legal trajectory after WW II, and the resistance to efforts by FDR to use government to regulate business and provide a basic social safety net. And as she reminded readers, racist Southern Democrats furiously fought government’s efforts to ensure racial equality.

After World War II, under Chief Justice Earl Warren, a Republican appointed by President Dwight Eisenhower, and Chief Justice Warren Burger, a Republican appointed by Richard Nixon, the Supreme Court set out to make all Americans equal before the law. They tried to end segregation through the 1954 Brown v. Board of Education of Topeka, Kansas, decision prohibiting racial segregation in public schools. They protected the right of married couples to use contraception in 1965. They legalized interracial marriage in 1967. In 1973, with the Roe v. Wade decision, they tried to give women control over their own reproduction by legalizing abortion.

The Supreme Court used the Fourteenth Amendment to apply the Bill of Rights to state governments as well as to the federal government; among other things, that kept state and local government officials from denying certain individuals the same rights enjoyed by other citizens

From the beginning, there was a backlash against the New Deal government by businessmen who objected to the idea of federal regulation and the bureaucracy it would require. As early as 1937, they were demanding an end to the active government and a return to the world of the 1920s, where businessmen could do as they wished, families and churches managed social welfare, and private interests profited from infrastructure projects. They gained little traction. The vast majority of Americans liked the new system.

But the expansion of civil rights under the Warren Court was a whole new kettle of fish. Opponents of the new decisions insisted that the court was engaging in “judicial activism,” taking away from voters the right to make their own decisions about how society should work. That said that justices were “legislating from the bench.” They insisted that the Constitution is limited by the views of its framers and that the government can do nothing that is not explicitly written in that 1787 document.

This is the foundation for today’s “originalists” on the court. They are trying to erase the era of legislation and legal decisions that constructed our modern nation. If the government is as limited as they say, it cannot regulate business. It cannot provide a social safety net or promote infrastructure, both things that cost tax dollars and, in the case of infrastructure, take lucrative opportunities from private businesses.

It cannot protect the rights of minorities or women.

The Court’s refusal to enjoin the Texas law is a truly terrifying omen. If the law is ultimately upheld, the precedent would threaten far more than a woman’s right to control her own reproduction. As Richardson notes, such a result would “send authority for civil rights back to the states to wither or thrive as different legislatures see fit…there is no reason that this mechanism couldn’t be used to undermine much of the civil rights legislation of the post–World War II years.”

In 1957, Republican President Dwight Eisenhower used the federal government to protect the constitutional rights of the Little Rock Nine from the white vigilantes who wanted to keep them second-class citizens. In 2021, the Supreme Court has handed power back to the vigilantes.

I am old enough to remember the billboards demanding “Impeach Earl Warren.” The rage of rightwing White Nationalists at decisions that they (correctly) believed would curtail their ability to deny equal rights to Blacks and other disfavored minorities hasn’t abated. Much of it went underground: into the establishment of “think tanks” devoted to justifications of “originalism”and rollbacks of federal regulations, the (now successful) effort to pack the federal courts with ideologues and capture the big prize: the Supreme Court.

Logically, under the last fifty years of legal precedent, Texas’ effort to “outsource” its abortion ban to vigilantes–its effort to avoid “state action”– should fail. The state’s legislature created the law. Enforcement of its punitive and dangerous scheme requires participation by the state’s judicial system.

What too few of the people arguing for and against this assault seem to recognize is what is truly at stake right now: the entire edifice of current Constitutional law, which rests on the premise that the Bill of Rights applies to all levels of government–that it sets a civil liberties floor below which states may not go.

This fight is about more than Roe v. Wade.

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The Density Divide

The Density Divide is the title of a very important paper issued in June by Will Wilkinson, Vice President for Research of the Niskanen Center. It looks in depth at the phenomenon that I usually refer to as the “urban/rural divide”–delving into the attributes that make individuals more or less likely to move into cities, and examining the consequences of those differences and the steady urbanization of the American polity.

The paper is lengthy–some 70 pages–but well worth the time to read in its entirety. it is meticulously sourced, and replete with graphs and other supporting data.

Wilkinson confirms what others have reported: a substantial majority of Americans now dwell in the nation’s cities and generate the lion’s share of the nation’s wealth. But he goes beneath those numbers, referencing a body of research demonstrating that people who are drawn to urban environments differ in significant ways from those who prefer to remain in rural precincts. He focuses especially on ethnicity, personality and education as attributes that make individuals more or less responsive to the lure of city life.

He goes on to describe how this “self-selected” migration has segregated Americans. It has not only concentrated economic production in a handful of “megacities”–it has driven a “polarizing wedge” between America’s dense and diverse urban populations and the sparse White populations remaining in rural areas. That “wedge” is what he dubs the “Density Divide.” (Wilkinson is careful to define “urban” to include dense areas of small towns–the divisions he traces aren’t a function of jurisdictional city limits. They are a function of residential density.)

Wilkinson finds that the “sorting mechanism of urbanization” has produced a rural America that is lower-density, predominantly White, and “increasingly uniform in socially conservative personality, aversion to diversity, relative disinclination to migrate and seek higher education, and Republican Party loyalty.”

That sorting has also left much of rural America in economic distress, which has activated a “zero-sum, ethnocentric mindset.” (That mindset is reflected in the angry rhetoric spouted by rural MAGA hat wearers about “un-American” immigrants and minorities, and disdain for “liberal elites”–all groups that are thought to reside in those multi-cultural cities.)

The density divide–together with America’s outdated electoral structures– explains the 2016 election. The “low-density bias” of our electoral system allowed Trump to win the Presidency by prevailing in areas that produce 1/3 of GDP and contain fewer than half of the population. That low-density bias continues to empower Republicans far out of proportion to their numbers.

Wilkinson reminds us that there are currently no Republican cities. None.

As he points out, the increase in return to human capital and density has acted to amplify the polarizing nature of selective urbanization. Temperamentally liberal people self-select into higher education and big cities, where the people they encounter exert a further influence on their political attitudes. They leave behind a lower-density population that is “relatively uniform in white ethnicity, conservative disposition and lower economic productivity.” Economic growth has been shown to liberalize culture; stagnant or declining economic prospects generate a sense of anxiety and threat.( In that sense, the political scientists who attributed Trump votes to economic distress were correct, but the distress wasn’t a function of individual financial straits–it was a reaction to the steadily declining prospects of rural environments.)

Wilkinson argues that there are no red states or blue states–not even red or blue counties. Rather, there is compact blue urban density (even in small cities in rural states) and sprawling red sparseness.

This spatial segregation of people with very different values and world-views is radicalizing; Wilkinson reminds us that a lack of exposure to intellectual diversity and broadly different points of view breeds extremism. Because urban populations are far more intellectually diverse, more homogeneous rural populations have shifted much farther to the right than urban Americans have shifted left.

The United States population is projected to be 90% urbanized by 2050–not too many years after we are projected to become “majority-minority.” Those projections suggest we will see increasing radicalization of already-resentful rural inhabitants.

The prospects for returning to rational politics and a truly representative governance will depend entirely upon reforming an outdated and pernicious electoral framework that dramatically favors rural Americans. Whether those reforms can pass our very unrepresentative Senate is an open question.

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It Goes WAY Beyond Hypocrisy

While I am on a rant against insanity, can you stand one more diatribe about anti-vaccination, anti-mask hysterics?

There are a number of theories about the motivation of these truly horrible people. (Not everyone who is unvaccinated falls within that category, of course–I’m focusing on the “activists” who are promulgating lies about the vaccines and threatening school board members.)

Paul Krugman recently opined that much refusal is political, pointing to the strong negative correlation between Trump’s share of a county’s vote and vaccinations. As of July, 86 percent of self-identified Democrats said they had had a vaccine shot, but only 54 percent of Republicans did.

He also pointed out that peddlers of quack medicine and right-wing extremists cater to more or less the same audience.

That is, Americans willing to believe that Barack Obama was born in Kenya and that Italian satellites were used to switch votes to Joe Biden are also the kind of people willing to believe that medical elites are lying to them and that they can solve their health problems by ignoring professional advice and buying patent medicines instead.

And those peddlers are making money. Horse dewormer, anyone?

But it’s the sheer lunacy–the extreme cognitive dissonance–that drives me up a wall.

“We don’t know what’s in it.” There’s a meme going around Facebook, enumerating all of the things Americans ingest without the slightest idea “what’s in it.” Everything from hotdogs to McNuggets to horse dewormer.
“Bill Gates has placed a chip in the vaccine to track people”–usually uttered by people carrying cell phones equipped with such chips…
“I have a right to control my own body”. This is a particular favorite of mine, coming as it does mostly from men who adamantly refuse to extend a similar right to pregnant women. Or people who disagree with them.
“Requiring masks is government overreach.” If the government can’t require a piece of cloth over your nose and mouth, why can it require that you cover your genitals in public? I want to see these “constitutional scholars” at the grocery, shopping naked. (I bet the men have teeny weenies.)
Speaking of overreach–these also tend to be the people who want government to drug test poor folks on welfare…
“I’m rejecting vaccines because I trust God.” If they truly trusted God, why do so many of them own/carry guns? Do they lock their doors? Buy eyeglasses and/or hearing aids? For that matter, why do they check into hospitals when they’re gasping for breath?
Speaking of individual liberty–government mandates seat belts, imposes speed limits, enforces smoking ordinances and issues multiple other rules to protect public safety. According to Hobbes, the original purpose of government was to remove us from the state of nature, in which there is “no arts; no letters; no society; and which is worst of all, continual fear and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.” Government is supposed to keep the strong from hurting the weak, the predatory from taking advantage of the helpless, and the stupid and/or selfish from spreading a deadly disease.

The hypocrisy is stunning. Republicans are suing businesses that require masks. Florida’s insane Governor is fining businesses that require vaccinations. These are the same Republicans who insist that businesses have a right to refuse service to LGBTQ customers…

I could go on and on…If COVID is a hoax, why ingest bleach or dewormer to treat it?

Many Republicans encouraging vaccine resistance know better. They just want to hurt Joe Biden politically. Biden promised to defeat the virus, and they’re determined to keep him from delivering on that promise. If lots of their own voters get sick and die as a result–well, them’s the breaks…

Former Republican and sane person David Frum made an interesting point in a recent issue of The Atlantic.

As cases uptick again, as people who have done the right thing face the consequences of other people doing the wrong thing, the question occurs: Does Biden’s America have a breaking point? Biden’s America produces 70 percent of the country’s wealth—and then sees that wealth transferred to support Trump’s America. Which is fine; that’s what citizens of one nation do for one another. Something else they do for one another: take rational health-care precautions during a pandemic. That reciprocal part of the bargain is not being upheld…

In the end, the unvaccinated person himself or herself has decided to inflict a preventable and unjustifiable harm upon family, friends, neighbors, community, country, and planet.

Will Blue America ever decide it’s had enough of being put medically at risk by people and places whose bills it pays? Check yourself: Have you?

I certainly have.

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A Perfect Storm

I woke up yesterday to the news that Trump’s Supreme Court–through its “Shadow Docket” and by a five to four margin–had effectively overturned what lawyers call “incorporation”–an odd term for the proposition that the Bill of Rights constrains state and local governments

In a scathing dissent, Justice Sonia Sotomayor wrote: “The court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”

Actually, it’s worse than that. Much worse.

Not only does the Court’s increasing use of the Shadow Docket raise serious questions about the erosion of the judicial transparency fundamental to the rule of law, the decision to allow Texas’ empowerment of culture war vigilantes achieves a goal long held by “states rights” fundamentalists: a return to the days when state and local lawmakers could impose their preferred “morality” on their citizens–and not-so-incidentally decide which citizens were entitled to equal rights– without the pesky interference of the federal government.

As I noted yesterday, approval of Texas’ ploy opens a door to civil strife far removed from the abortion wars. State legislatures can now turn private citizens into “enforcers” of pretty much any goal–and not just conservative ones. The decision effectively approves a federalism on steroids, and the unraveling of the “United” States.

I used to explain to my students that one of the salutary effects of the incorporation of the Bill of Rights was that it ensured a “floor”–so that when someone moves from New York to Alabama or Texas, they don’t suddenly lose their right to religious liberty or free speech or their protection against unreasonable search and seizure..

This case strikes a terrifying blow against that principle.

I titled this post “a perfect storm” because the Supreme Court’s abandonment of fifty years of precedent is only one of the truly existential challenges we currently face.

It is no longer possible to pretend that climate change is some sort of elitist, liberal theory that can safely be ignored. Fires in California (now threatening Nevada), increasingly powerful hurricanes battering not just Louisiana but causing flooding and chaos all the way to New England, the continuation of “extinctions” threatening to disrupt the global ecology…the list goes on. There are some valiant efforts underway to combat climate change, but the likelihood is that even if those efforts manage to moderate its effects, there will be enormous disruptions of global life–including famines and massive population movements.

Then, of course, there’s the pandemic. Two pandemics, actually–COVID and insanity. The insanity makes it highly likely that COVID won’t be the last disease to decimate populations around the world.

Speaking of insanity, Leonard Pitts reminds us of the rising tide of rightwing violence.

While it’s unlikely we’ll see regional armies clashing as they once did at Antietam and Shiloh, is it so hard to imagine the country descending into a maelstrom of conservative terrorism, the kind of hit-and-run asymmetric warfare — random bombings and shootings — that rocked Iraq and Afghanistan in the early 2000s? Certainly, the weapons and the sense of grievance are there.

On top of all of this, outdated elements of America’s legal architecture are impeding our ability to confront these challenges. In a recent, very important paper by Will Wilkinson of the Niskanen Center (I will have much more to say about his paper in future posts), Wilkinson concluded his analysis of what he calls “The Density Divide” with a recitation of the mismatch between America’s population realities and that framework.

As Wilkinson notes, our Constitutional system has a strong small-state bias, “which effectively gives extra votes to topsoil in low-population states.” In a country where 50 percent of voters identify or lean Democratic and 42 percent identify or lean Republican–a Democratic advantage of some 18 million voters– the GOP has erected “an imposing fortification” through gerrymandering, voter ID laws, voter-roll purges…the list goes on.

Wilkinson underscores what many others have said: we desperately need structural reforms and especially strong new legislation protecting voting rights. What he doesn’t say–since his paper was written before the Court’s recent assault on the supremacy of the Constitution–is that such protection must be nationally enforceable.

This “perfect storm” has created a genuinely existential moment. It is no longer possible to ignore the fact that American governance by We the People is teetering on a dangerous edge. The question is: can a nation burdened with a substantial minority of QAnon-believing, MAGA-hat wearing, Ivermectin-ingesting, Confederacy-loving citizens–many if not most of whom are White racially-resentful rural residents empowered by outdated electoral structures– rise to the challenge?

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A New Social Contract

Time Magazine recently ran an interview with a top global economist, who has authored a book about what humans owe each other–in other words, about a new or perhaps renewed social contract. Several of her concerns mirror my own; as readers of this blog are aware, my last book, Living Together, was focused on the same question.

The notion of a social contract was first introduced by John Locke and his formulation became a foundation of American law and culture. The U.S. Constitution was heavily influenced by Enlightenment philosophers like Locke, who rejected the divine right of Kings in favor of a belief in a theorized “contract” in which citizens grant government an exclusive right to the exercise of coercive power in return for an obligation to provide for their safety and welfare–the “law and order” required for civilization. Citizens could revoke government’s authority if government failed in its mission or breached the bounds of the contract.

Most European nations have subsequently adopted social contract theories that are considerably more expansive than the version embraced by most Americans. Those versions interpret government’s obligation to provide “social goods” broadly, including access to healthcare.

Several years ago, I collaborated with colleagues in on an article intended to probe America’s limited view of the proper role for government in social welfare, and to demonstrate that the Affordable Care Act–and for that matter, single-payer health insurance–really was consistent with Locke’s view of a social contract. (We noted that a deficit of civic knowledge poses a significant barrier to efforts to revisit social contract theory–revisiting a theory is impossible for those who have never visited that theory in the first place.)

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 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.

We were writing during the initial debates over the ACA, which we noted was yet another iteration of America’s deeply embedded conflict between Social Darwinism and the Social Gospel.

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.

Our article explored the reasons for that “emotional” response, and those of you with time and temperament to wade through its scholarship can agree or disagree with our analysis, but I think it is fair to say that the underlying issue has become considerably more salient.

Humans around the globe are faced not just with a pandemic, but with the existential threat posed by climate change. Individuals are powerless to address those threats. Collective action is required, and government is our mechanism for collective action.

A workable social contract requires government to protect individual autonomy, provide a supportive social infrastructure and take decisive action to protect the common good.

I’m convinced John Locke would agree.

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