Did The Founders Get It Wrong? Or Has The World Changed?

This is a hard post to write, because I’ve spent the better part of my adult life–as a lawyer,  as a university professor and (at various times) a columnist– defending and explaining America’s Constitution and Bill of Rights. But I just listened to a fascinating podcast from the University of Chicago’s law school, titled “What are rights?” and the reflections it prompted made me connect some “dots” that I’ve encountered over the years, and ponder questions I’ve ignored or–more accurately–repressed.

In the U.S. Constitution, rights are conceived of as negative. When US was founded, governments were far and away the most powerful threat to individual liberty, and accordingly, the Bill of Rights protected individual rights against government intrusions. (When I was Executive Director of Indiana’s ACLU, I was routinely astonished by the number of people who didn’t understand that the Bill of Rights only protected them against government–that its guarantees weren’t some sort of free-floating shield against all manner of restraints.)

Other Western democracies don’t necessarily share–or even understand–that  limited and negative conception of constitutional rights. Many years ago, I delivered a paper at a conference in Milan, Italy, that included an analysis of a then-recent Supreme Court case, and an Irish scholar challenged me; he thought my description couldn’t possibly be correct because the American notion of negative constitutional rights was unfamiliar to him.

And that brings me to the podcast that triggered this post. That discussion distinguished between human rights and  constitutional rights.

Placing rights in a country’s constitution requires a significant government infrastructure to enforce them–statutes, courts, the training of those who must police and protect citizens. As a result, as the participants in the podcast noted, we want to be prudent –to constitutionalize only the most important of those human rights.

What is “most important,” of course, depends on the cultural context.

Listening to the podcast sent me back to the Universal Declaration of Human Rights, issued by the United Nations in 1948. That document enumerated what were considered basic human rights at the time–and  it included both negative and positive rights. As the Preamble describes those rights, they include recognition of the “inherent dignity and of the equal and inalienable rights of all members of the human family.”

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people…

The entire planet is currently watching a government engage in those “barbarous acts,” as Russia continues its assault on Ukraine–an assault that underlines the continued ability of governments to disregard the fundamental right to human and national self-determination.

In today’s world, however, governments are far from the only powerful actors capable of invading the rights of citizens. Multi-national corporations, obscenely rich oligarchs, and angry “tribes” of citizens enraged by loss of privileged status and empowered by “free press” propaganda all pose a significant and growing threat to both human and constitutional rights.

I have become increasingly convinced that a constitution that protects only negative rights–the “right to be left alone”–important as those protections are, is insufficient.

Re-read that paragraph from the Universal Declaration, especially the phrase “freedom from fear and want.” Other Western democracies have constitutionalized positive rights– to education, to health care, and to housing. The Universal Declaration itself includes positive rights, including the right to education, and the right “to a standard of living adequate for the health and well-being of himself and of his family,

including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

America’s Constitution and Bill of Rights were major and dramatic innovations for their time. The documents crafted by the nation’s Founders triggered a  philosophical and cultural departure from the then-widespread  belief in the divine right of kings and the concomitant disregard for the rights of common folks.  For the first time, subjects became citizens, and citizens had rights.

We may have arrived at yet another point in human history when we need to rethink how we envision governing–including reconsideration of where the most significant threats to individual liberty reside today, and which additional human rights are important enough to be constitutionalized.

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Messaging

A longtime friend–a moderate Democrat–recently sent me the following email (I am pasting it in verbatim.)

A recent headline, “The brand is so toxic Dems fear extinction in rural US” jumped off the page. The article by AP writer Steve Peoples repeated and articulated well what so many of us have thought for several years. Ds do a terrible job of creating a desirable brand. Here, in southern Indiana, where less than 10% of the population has a college degree, Ds use terms like metric tons of CO2, while Rs talk about outrageous price per gallon at the pump. Ds read and quote the NYT and US News and condemn the idea of book police. Rs text why Coach Woodson’s player rotation is wrong. Ds promote the statistical benefits of vaccinations. Rs simply demand that the school kids not have to wear a damn mask.

I am proud to be among the 10% who read the NYT, see benefit in exposure to ideas, think the liberal arts professors are underpaid and still wear my mask into ACE Hardware. But Mr. Peoples is correct. One need only look at Indiana’s 9th congressional district to see clear and irrefutable evidence. We Ds are terrible at branding. We seem doomed to take a licking, and maybe soon stop ticking, to paraphrase John Cameron Swayze.

It’s hard to disagree with the essential point, which is that Democratic “talking points” aren’t connecting to those we think of as “average Americans.” I would also agree with the rather obvious implication of that observation, to wit: Democrats need to fashion messages that would be likely to resonate with the inhabitants of southern Indiana and the country’s rural precincts.

However.

It’s easy enough to cringe at slogans like “Defund the Police” –which not only repelled large numbers of voters, but utterly failed to describe the policy change that was  being proposed.  The persistent complaints about messaging, however, aren’t limited to such examples.

It may be worth taking a step back and examining the roots of that perceived messaging problem–and the extent to which it is and is not about messaging.

As I have previously noted, today’s Democratic Party is not only a far bigger “tent” than the GOP, it is a far bigger tent than it has previously been, thanks to a massive exodus of sane people from what the Republican Party has become. Devising messages that will appeal to all parts of the Democrats’ ideological spectrum–a spectum that spans from relatively conservative GOP refugees all the way to the Democrats who think AOC and Bernie Sanders are insufficiently liberal–isn’t a simple exercise in clever PR.

There is another challenge to the strategists trying to devise messaging that will appeal to “ordinary Americans” who don’t read the New York Times or accept the scientific consensus on climate change or COVID. As those of us who count ourselves among those refugees (in my case, a long-time defector) can attest, there is no messaging that will penetrate the faith-based  cult that is  today’s GOP. Today’s Republican Party is owned by White Christian Nationalists who cheered for Trump and Putin because they were champions for their version of Christianity–pro-patriarchy, anti-LGBTQ, anti-“woke,” etc. They aren’t going to respond to messages from a point of view that is entirely inconsistent with their  hysterical effort to reinstate cultural dominance.

That leaves “messaging” directed to the dwindling numbers of “persuadable.”  I agree that it would be worthwhile to find an approach that would  appeal to those individuals–but I will also point out that any effort to craft such messages should be preceded by research into the reason(s) for their current status. Are they disconnected and disinterested? Disgusted by today’s political reality and loss of civility? Uninformed? All of the above?

I am by no means intending to diminish the importance of messaging. Words matter, and they matter a lot. But given where we are right now–given the substitution of a semi-religious cult for one of our only two major parties–I’d suggest putting all of our resources into  messages and volunteer efforts focused on turning out the substantial majority of voters who already are in broad agreement with Democratic priorities. Polling consistently shows that the elements of Biden’s Build Back Better, for example, are widely popular.

We just have to remember that–given the multiple political and psychological barriers to casting a ballot–messages alone will not get voters to the polls.

And as Paul Ogden periodically reminds us, we also need to make sure that the people counting the votes of those we do turn out are counting them accurately.

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Who Do We Subsidize?

There was a very interesting–and very odd– article in Governing recently, purportedly about means testing.The introductory argument was that our various policies about who we subsidize have resulted in rewarding those who clearly don’t need the particular benefit involved, while failing to help those who definitely do need help.

The lede gives you a hint of the author’s thesis:

When I turned 65, I instantly became eligible to ride on any D.C. Metro train for half-price. Perhaps I ought to have been grateful for this windfall, but in fact I found it annoying. I’m not rich by any means, but I can afford to pay full fare for a subway ride. I didn’t appreciate the idea of charging the taxpayers (myself among them) to give me and countless others a benefit we didn’t need. Warren Buffett can ride on the Metro for half-price if he comes to visit Washington. Stupid is the only word for it.

It isn’t simply kindness to old folks that has pissed him off; he also attacks the exemption for blind people on America’s tax returns. After all, he says, some blind people are wealthy.

It evidently hasn’t occurred to the author that these accommodations may have been intended as a way to show social respect for the elderly, or as a minor compensation for the lack of sight–that they weren’t measures intended to be part of America’s (admittedly inadequate, crazy-quilt) social safety net.

Aside from that somewhat odd introduction, the article didn’t really focus on problems with means testing, which is defined as a determination of eligibility for government assistance based upon the means (income) of the potential recipient. Instead, the article (quite properly) criticizes the way in which many fines are assessed.

A low-income single mother gets stopped for a minor traffic violation, perhaps a broken headlight or an illegal left turn. The fine is a couple of hundred dollars, which is more than she can afford. She is summoned to a court date that she can’t keep because she has to work or care for her children. A few missed court appearances, and she can be sent to jail and/or have her driver’s license suspended, possibly costing her the job she holds and needs to have.

It doesn’t seem fair, does it? A middle-class violator can walk into court, pay the fine and then walk out again. At first glance, it might seem equitable to charge everyone the same $490 for driving alone in a carpool lane (which is what California does). But it isn’t equitable.

The author proposes that, in order to be equitable, fines of this sort should be levied in an amount proportional to what the offender earns in a single day of work. Evidently, other countries do this, and the bulk of the article is an argument for following their example.

It’s a reasonable argument–but it really has nothing to do with means testing or the provision of subsidies–at least, not in the way we usually use those terms.

And that’s too bad, because I’m convinced that policymakers do need to revisit our approach to America’s tattered safety net and the whole concept of means testing, which rests on some deep-seated convictions about “deservingness.” (I once traced that obsession back to England’s 15th Century poor laws, which prohibited giving alms to “sturdy beggars.” The notion that some poor folks are deserving and others are not also has roots in a bastardized Calvinism, an analysis I will spare you…)

This approach to deservingness ignores all manner of structural/systemic inequity. It is also both massively expensive to operationalize and very frequently unfair in application. But aside from all the practical and equitable problems, America’s current approach to social welfare operates to strengthen popular divisions and harmful stereotypes.

Think about it.

I haven’t heard complaints from financially-comfortable Americans that “those people” are getting Social Security. Or that “those people” are driving on roads that I paid for with my tax dollars. I seriously doubt that any of the right-wingers braying about how national health insurance would be “socialism” are refusing to accept their Medicare. As other Western democracies have learned, a universal social benefit is not only less expensive to administer, it is far less socially divisive.

Bottom line: social safety net policy considerations shouldn’t be limited to a single-minded focus on “means,” just as there should be considerations other than uniformity of punishment when we assess fines.

And not so incidentally– policy debates would be  dramaticallyimproved by a more judicious attention to the use of language…

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Diagnosing Democracy’s Illness

A few days ago, I was in a small meeting devoted to civic education. Attendees included some very smart, very savvy individuals, all of whom were veterans of the longstanding effort to increase civic knowledge and civic literacy. But when the individual who had convened this particular group asked what should have been a simple question, we were all stumped.

The question was: why are so many Americans uninterested in voting?

She might as well have asked why so many Americans are uninterested in democracy.

There were, as always, several theories: some of us felt that disinterest was due to a lack of understanding of what government does, and the multiple ways in which its operations affect our daily lives. Others noted that–for the millions of people barely scraping by–the daily struggle for survival leaves little time or energy for political involvement.

Perhaps the culprit is the culture, and the distractions provided by entertainment and celebrity. Or perhaps there’s something to my longtime theory that  gerrymandering has produced so many “safe” seats, it has convinced significant numbers of citizens that their votes won’t count, so why bother? It’s all rigged against them anyway, and taking time to inform oneself and cast a ballot would simply be time spent doing a useless thing.

Of course, even people who would otherwise vote continue to encounter practical barriers to exercise of the franchise. America makes it hard to vote, and Indiana is among the worst: our polls close earlier than those of all but one other state.

In 2020, FiveThirtyEight.com considered the question.

In any given election, between 35 and 60 percent of eligible voters don’t cast a ballot. It’s not that hard to understand why. Our system doesn’t make it particularly easy to vote, and the decision to carve out a few hours to cast a ballot requires a sense of motivation that’s hard for some Americans to muster every two or four years — enthusiasm about the candidates, belief in the importance of voting itself, a sense that anything can change as the result of a single vote.

The site conducted a poll, and found that the answer to the question who votes — and who doesn’t — is complex, and that most Americans don’t fall neatly into any one category.

Of the 8,000-plus people we polled, we were able to match nearly 6,000 to their voting history. We analyzed the views of the respondents in that slightly smaller group, and found that they fell into three broad groups: 1) people who almost always vote; 2) people who sometimes vote; and 3) people who rarely or never vote. People who sometimes vote were a plurality of the group (44 percent), while 31 percent nearly always cast a ballot and just 25 percent almost never vote….there weren’t huge differences between people who vote almost all the time and those who vote less consistently. Yes, those who voted more regularly were higher income, more educated, more likely to be white and more likely to identify with one of the two political parties, but those who only vote some of the time were also fairly highly educated and white, and not overwhelmingly young. There were much bigger differences between people who sometimes vote and those who almost never vote.

Nonvoters were more likely to have lower incomes; to be young; to have lower levels of education; and to say they don’t belong to either political party, which are all traits that square with what we know about people less likely to engage with the political system.

Getting people to the polls is pretty daunting–especially in Indiana, which routinely ranks at the bottom for measures of engagement and turnout. But the small contingent of civic educators continues to try…

Among that contingent is Bill Moreau, who established the Indiana Citizen a couple of years ago. It’s sort of a one-stop shop for electoral information –how to register, where to vote, and other practical information–but also a place to find the sorts of nonpartisan reporting that allows readers to cast an informed vote. What is Indiana’s legislature doing now, and why? Why can’t Hoosiers get redistricting reforms passed? How will this year’s gerrymandering affect me? Who’s running for what, and what are their policy proposals?

We used to turn to local newspapers for this sort of coverage, but–as I constantly complain–the pathetic remnants of those papers no longer provide the coverage that a democratic polity requires. The Indiana Citizen is among the various credible websites trying to fill the gap left by what we now call “the legacy press”–but of course, in order to fill that gap, people need to know it’s there–and that’s a significant barrier to overcome.

If you are a Hoosier, check it out. Tell your friends. And vote.

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Potpourri

There are a number of recent news items and  comments to this site  that don’t merit a full blog post, so today is a “potpourri” of several unrelated observations.

First of all, kudos to the College Board, which is evidently preparing to remove the AP label from classes in states that prohibit the accurate teaching of history or otherwise restrict what can be taught in the classroom. In a letter to participants in the AP Program, the Board reiterated its commitment to the intellectual integrity of AP classes and the principles upon which the AP Program is built. As the Indianapolis Star article reported, those principles include

 “an unflinching encounter with evidence,” opposition to censorship and indoctrination and “an open-minded approach to the histories and cultures of different peoples.”

Should schools, presumably on their own at the behest of state or local government, violate these principles, the letter says they could lose their AP Program designation. It gives as an example the concepts of evolution.

In 2019, the most recent year for which data is available, nearly 13,000 Hoosier students took and passed at least one AP exam.

Next, a recent report may explain why so many of our fellow Americans are receptive to propaganda, conspiracy theories–including Trump’s “Big Lie”– and various other simple-minded explanations of complicated realities. Okay, this is snark–but the Guardian recently focused on a study showing that over 170 million Americans who were adults in 2015 had been exposed to harmful levels of lead as children. That might explain it…

In a paper published in the Proceedings of the National Academy of Sciences on Monday, they estimated that half the US adult population in 2015 had been exposed to lead levels surpassing five micrograms per deciliter – the Centers for Disease Control and Prevention threshold for harmful lead exposure at the time.

The scientists from Florida State University and Duke University also found that 90% of children born in the US between 1950 and 1981 had blood-lead levels higher than the CDC threshold. And the researchers found significant impact on cognitive development: on average, early childhood exposure to lead resulted in a 2.6-point drop in IQ.

And that leads me to Item #3, my response to a question posed recently by several people who are regular readers and commenters to this blog: why have I not blocked  a couple of recent trolls, or Todd’s increasingly unhinged posts?

Let me explain.

WhenI first began this blog, I established a very simple rule for commenters: civility. No ad hominem attacks. So long as regular commenters and the various trolls who visit here from time to time refrain from personal nastiness (or repeated efforts to dominate the discussion), I don’t block them, no matter how looney-tunes I may personally regard their various theories and accusations.

One of the significant downsides of the Internet is its enabling of “bubbles.” Blogs with a definite point of view–a category into which this one certainly falls–are especially likely to “preach to the choir.” That preaching has some value–it may illuminate issues in new ways, enable thoughtful discussions, and/or reassure people that others see the world the way they do.

But bubbles can also be blinders.

Most of us agree in the abstract that we should listen more carefully to those with whom we disagree. That’s in the abstract, however. I’m just as guilty of this as anyone–I tend to pay much more attention to people who express opinions and take positions with which I broadly agree–or at least regard as reasonably evidence-based– and dismiss the opinions of those I’ve categorized as ideologically rigid and/or irrational. It’s called confirmation bias, and most of us are guilty of engaging in it.

That said, it really is important that we recognize the extent to which many people on both the Right and Left desperately need to see the world in black and white, need to identify  the “bad guys” who are responsible for their troubles and disappointments,  and need to impose conceptual order of some sort on a complicated, shades-of-gray world. For many of those people on the Right, the “bad guys” are all people of color and/or non-Christians; for those on the Left, the “bad guys” are all rich people and corporate actors, a/k/a nefarious Oligarchs.

Reasonable people can have productive debates with folks who occupy a different place on the political spectrum, but who live in the real, shades of gray world. We need to recognize the difference between those people–with whom we can have principled and even heated disagreements– and those whose anger, fears  and inability to tolerate ambiguity have permanently warped their world-views.

We can’t make those distinctions if we wall ourselves off and refuse to acknowledge their existence, or the distinct nature of the challenges they represent.

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